'f^ CORNELL UNIVERSITY LIBRARY 3 1924 085 5 4 317 The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085514317 THE LAW OF REAL PROPERTY By JOHN G. HAWLEY AND MALCOLM .McGregor, Authors of "Hawley and McGregor on Criminal Law" FIFTH EDITION CHICAGO CALLAGHANrAND COMPANY 1915 COPYKIGHT, 1907 BY The Sprague publishing Company TO THE HON. CARL E. SCHMIDT, A BUSY BUSINESS MAN, TO WHOM NO FIELD OF KNOWLEDGE IS JOKBIGN, THIS VOLUME IS DEDICATED. AUTHORS' PREFACE TO FIRST EDITION This book is in a measure an innovation. Existing works on the law of real property have given more space to law which is obsolete, except when resurrected for the purpose of quizzing a student, and much less than this volume to those branches of the law pf real property which are important in questions which are constantly coming before the courts. We have tried to steer our bark into a middle course. Perhaps we may share the fate of the ancient mariner so graphically described by the Eoman poet, ' ' Qui vult vitare Scyllam incidit in Charibdim, ' ' which in the language of the present day might be taken as a hint not to get too far in front of your procession. But, to speak seriously, for we regard our preface as a little confidence between ourselves and our readers, we have tried to make as plain as we could those problems which are likely to con- front the practitioner at any moment, while, at the same time, endeavoring to sufficiently explain the fundamental principles of real property. In other words, our aim has been to furnish that knowledge which is useful rather than that which is orna- mental. If we may be permitted to say it, this book is intended as a practical book, adapted to the needs of those who are now, or shortly expect to be, engaged in the active practice of law. The sections devoted to mortgages, fixtures, and landlord and tenant illustrate our idea in this regard. We have not tried to make our book a sarcophagus. We have made a free use of cases where they served to illustrate, or, perhaps, we might better say illuminate, the text, but we have not tried to make a large table of eases. We desire to acknowledge our indebtedness to Prof. Jasper C. Grates, of the Detroit College of Law, for many valuable sug- gestions we have received from him during the progress of this work. If this volume shall meet with as much favor at the hands of the profession as our book on Criminal Law, it will be sufficient reward for three toilsome years. THE AUTHOES. Publishers' Preface to First Edition A little more than three years ago, thinking that we per- ceived merit in the work of the authors on the Criminal Law, which has since receired wide-spread recognition, we asked them to prepare a strictly up-to-date work on real property, and it was a hurry-up order. They accepted the proposal to prepare the book, but only upon the condition that, while they would work as expeditiously as possible, we could not have their MS. until they themselves were satisfied with it. We finally concluded that good work was worth waiting for, and decided to let them have their own way as to time. We suppose that we are not the only publishers who have had to wait a long time for a book, which finally satisfied the mind and conscience of the author. We hoped to have had this book in print two years ago, but after examining it we are satisfied that it is better to wait for a good book than to get an undigested book in a hurry. We are satisfied with the result. Comparing the MS. with the authors' preface we think it reasonably answers to the purposes which they have there outlined, and we commit it to the judgment of the profession as the most helpful book on the law of real property for the student and general practitioner which is now upon the mar- ket. THE SPRAGUE PUBLISHINQ CO. Detroit, 1900. TABLE OF CONTENTS Part i. CHAPTER I. NATURE 01' REAL PROPERTY. Definition of Property 1 Classes of Property 2 Essentials of Real Property 4 Land 6 Space ' Minerals 8 Water 10 Accretions 12 Ice 12 Natural growths (fructus naturales) 14 Fructus industriales 16 Manure 22 Church pews 23 Heirlooms 24 Effect of severance from soil 24 CHAPTER n. FIXTURES. Definition 26 Intent determines character 26 Rule when land and chattel are owned by same person. 28 Rule when chattel and land are not owned by same per- son 29-32 Character of annexation 32 Fixture adapted to a building 33 Application of rules 34-36 Removal of fixtures 38 TABLE OP CONTENTS. Vii Part ll. CHAPTER I. ESTATES. Introductory 40 Definition of Estate 42 Feudal system 43-4^ CHAPTER n. FREEHOLD ESTATESi OF INHERITANCE. Fee Simple 47 Incidents 48 How created 48 Fee conditional 52 Fee tail 53 CHAPTER in. FREEHOLD ESTATES NOT OF INHERITANCE. life Estates 55 Conventional Life Estates 55 Legal Life Estates 58 CURTESY— Estates by curtesy 60 Essentials: 1. A valid marriage 61 2. Seisin 61 3. Issue 63 4. Death of wife 65 How barred 65 Statutes 65 DOWER— Definition 68 Requisites: 1, Marriage 68 2. Seisin of husband 68-76 Viii TABLE OF CONTENTS. IK)WER— Continued. In what property and estates 76-83 Mortgaged lands 77 Partnership lands 78 Improved property 79 Mineral lands 80 Lands sold on contract 80 In property in which husband has a deter- minable estate 81 In money 83 Wild lands 83 3. Death of husband 83 Inchoate dower 83 Consummate dower 85 Assigned dower 86 Assignment of dowef 86 How barred or defeated 88 1. By act of wife: (a) Eelease 88 (b) Estoppel 91 (c) Abandonment and adultery.... 92 2. By act of husband 93 3. By act of legislature 94 4. By divorce 94 5. By eminent domain 95 6. By dedication 95 7. By determination of husband's estate 96 8. By partition sale 97 9. By statute of limitation 97 10. By election 97 11. By non-residence and alienage 98 12. By jointure 99 13. By ante-nuptial settlement 100 14. By post-nuptial settlement 101 TABLE OF CONTENTS. ix Homestead 102-125 Origin 102 Legislation 104 Oonstruction of statutes 105 Nature of right 106 Definition 107 Wh.0 may claim 107-111 la what property 111-115 Extent of homestead 115-117 In what estates 118 Against what debts protected 119-121 How lost: 1. By abandonment 123 2. By alienation 123,125 CHAPTER rv. EIGHTS AND LIABILITIES OF LIFE TENANTS. Relation of life tenant to remainderman or reversioner. . 126 Rights of life tenant: As to rents and profits 127 To alien estate 128 As to estovers 128 As to emblements 128 Liability of life tenant: To pay taxes 129 To pay interest 130 To nmke repairs 130 For waste 130-135 CHAPTER V. ESTATES LESS THAN FREEHOLD. Chattels real 136 Estates for years 139 Landlord and Tenant 139 X TABLE OF CONTENTS. Landlord and Tenant — Continued. Eelation and rights 139 Liabilities arising thereunder 143-145 Modern tenancy 145-149 Possession 14:9 Landlord's license to enter leased premises 153 Leases 155 Leases in writing under seal 158 When seal essential 160 Written leases not under seal 164 Signing of written leases 167 Becording leases 170 Verbal leases 172 Implied leases 173 Agreement for lease 177 Sub-leases or under-leases 179 What covenants run with the land 184 Parts of a lease 186 Date of lease 188 Operative words 190 Description of premises 190 Of the term 193 Of rent 194 When payable 196 Where payable 197 To whom payable 198 On what grounds may be refused 202 Avoidance of lease for fraud 204 Abandonment of premises 209 Refusal to pay rent 210 Destruction of leased premises 211 Set-off and recoupment 213 Restrictions on use of premises 214 Covenant for quiet enjoyment 216 TABLE OF CONTENTS. xi Leases — Continued. Re-entry for forfeiture 218 Covenant of tenant to repair 220 Covenant not to sub-let or assign 223 Surrender of possession by tenant 226 Covenant for 226 TENAJSrCIES FOR INDEFINITE TERMS: Tenants at sufferance 228 Tenants at will 230 Characteristics 233 Tenancies from year to year 236 CHAPTER VI. MANNER OF ENJOYMENT OF ESTATES. Absolute Estates 238 Estates upon condition 238 Condition precedent 239 Condition subsequent 239 Performance and non-performance 240 Effect of illegality of conditions 240 Validity of conditions 243 Conditional Limitations 247 CHAPTER Vn. MORTGAGES. History 248 Definition and nature of 249 Form of 251 Legal 252 Equitable 252 1. An absolute deed intended as a security. . 253 2. Deed and contract for reconveyance 255 3. Trust deeds 256 1. Agreements to give a mortgage and mort- gages improperly executed 257 Xll TABLE OF CONTENTS. History — Continued. 5. Other agreements 258 6. Deposit of title deeds 258 7. Vendor's lien 258 8. Vendee's lien 261 Relation of mortgagor and mortgagee 261 Mortgagee's interest at common law 261 Mortgagor's interest at common law 261 Modification of common law 262 Tenancy between mortgagor and mortgagee 264 Eights and liabilites of mortgagor 266 Eights and liabilities of mortgagee 268 Consideration 270 What may be mortgaged 273 Assignment — (a) Transfer of mortgagor's interest 273 (b) Assignment of mortgagee's interest 276 Eights of assignee 279 Merger 280 Subrogation 282 Discharge and release 285 Eedemption 287 Registration 289 Foreclosure 293 Marshalling assets 300 CHAPTER Vni. TIME OF ENJOYMENT OF ESTATES. Estates in possession 302 Estates in expectancy 302 Reversions 303 Definition 304 Eights of reversioner 306 Possibility of reverter 306 TABLE OF CONTENTS. xiii Estates in expectancy — Continued. Bemainders 307 Vested 311 Contingent 319 Alternate 326 Rule in Shelley's case 327 Executory interests 331 Springing uses 332 Shifting uses 332 Executory devises 333 Rule as to perpetuities 336 CHAPTER IX. JOINT ESTATES. Estates in severalty 338 Joint estates 338 Joint tenancy 339 Tenancy by entireties 342 Estates in coparcenary 851 Estates in partnership 352 Tenants in common 354 Incidents of joint estates 355 CHAPTER X. USES, TRUSTS, AND POWERS. Uses and trusts 360 Active trusts 365 Passive trusts 365 Express trusts 366 Implied trusts 366 Resulting trusts 367 Constructive trusts 367 Charitable trusts 374 Powers 375 XIV TABLE OF CONTENTS. CHAPTER XI, EASEMENTS AND LICENSES. Incorporeal Hereditaments 881 Easements 381 How Created 387 How Lost or Extinguished 393 Eights and Liabilities of the Owners of the Tene- ments 396 Light and Air 397 Su^Jort — Lateral and Subjacent 400 Party Walls 403 Water 406 Highway® 411 Licenses 416 Part III. CHAPTEE I. TITLE TO REAL PEOPEETX. Title 422 How acquired by governments 433 How acquired by private persons 425 1. Descent 426 Principles of 430 Who may inherit 435 Eelations of half blood 435 Posthumous children 435 Adopted children 437 Aliens 438 Murderers 438 Advancements 440 2. Adverse possession 441 Possession must be continuous 444 Possession must be actual 445 Possession must be hostile 449 Possession must be open, visible and notorious. . 450 TABLE OF CONTENTS. VX Fosfiession must be ezclusiTe 453 Must be an intent to assert title 464 Effect of adverse possession 456 3. Estoppel — Definition 457 By record 457 By will 457 By deed 458 Estoppel in pais 459 By silence 461 Boundaries: Estoppel to deny line fixed 463 4. Accretions — Definition 464 Alluvion 465 CHAPTER n. TITLE BY INVOLUNTARY ALIENATION. Title by execution 468 Title by eminent domain 473 Tax titles 478 Sales by administrators and guardians 479 OHAPTEE in. TITLE BY VOLUNTARY ALIENATION. Title by deed 481 Essentials : 1. Parties capable of entering into a valid con- tract 481 2. An interest in real property which is the sub- ject of the contract 481 3. A writing 481 Xiv TABLE OP CONTENTS. CHAPTER XI. BASEMENTS AND LICENSES. Incorporeal Hereditaments 881 Easements 381 How Created 387 How Lost or Extinguished 393 Rights and Liabilities of the Owners of the Tene- ments 396 Light and Air 397 Support — Lateral and Subjacent 400 Party Walls 403 Water 406 Highways 411 Licenses 416 Part hi. CHAPTEB I. TITLE TO REAL PEOPEETY. Title 422 How acquired by governments 433 How acquired by private persons 425 1. Descent 426 Principles of 430 Who may inherit 435 Relations of half blood 435 Posthumous children 435 Adopted children 437 Aliens 438 Murderers 438 Advancements 440 2. Adverse possession 441 Possession must be contiuuous 444 Possession must be actual 445 Possession must be hostile 449 Possession must be open, visible and notorious. . 450 TABLE OF CONTENTS. VX Possession must be exclusive 453 Must be an intent to assert title 454 Effect of adverse possession 456 3. Estopi>el — Definition 457 By record 457 By will 457 By deed 458 Estoppel in pais 459 By silence 461 Boundaries: Estoppel to deny line fixed 463 4. Accretions — Definition 464 Alluvion 465 OHAPTEE n. TITLE BY INVOLUNTARY ALIENATION. Title by execution 468 Title by eminent domain 473 Tax titles 478 Sales by administrators and guardians 479 OHAPTEE m. TITLE BY VOLUNTARY ALIENATION. Title by deed 481 Essentials: 1. Parties capable of entering into a valid con- tract 481 2. An interest in real property which is the sub- ject of the contract 481 3. A writing 481 XVi TABLE OF CONTENTS. 4. Apt words of conveyance • ^2 5. Delivery of writing ^2 6. Eegistration ^* Deeds: Definition ^^ Form of *85 Date and parties ^^ Consideration ^"" Words of limitation ^91 Description ^^2 Habendum clause *93 Covenants 494-497 CHAPTEE IV. TITLE BY DE5VISB. Definitions 4:98 i.. Will must be testator's wish 500 2. Testator must be competent 500 3. Will must be in writing 503 Revocation 507 Construction 508 CHAPTER V. Land contracts 510-528 CHAPTER VL CAPACITY TO HOLD AND CONVEY TITLE TO REAL PROPERTY. Who may be grantee? 529 Corporations 529 Aliens 530 Who may convey 530 Infants 531 Married women 533 Persons non compos mentis 534 Aliens 535 Corporations 535 PART I. CHAPTER I. NATUEE OF KEAL PROPERTY THE WORD FBOFEBTT EN ITS OBDINABY USE MEANS ANYTHXMQ WHICH HAS AN OWNEB. WHILE THE WOBD IS OFTEN USED IN THE LAW IN THIS SENSE, YET IT IS FBEQUENTLY USED TO INDICATE THE EXCLUSIVE BIGHT TO THE USE, ENJOYMENT AND DISPOSAL OF ANYTHING OWNED. It is one of the functions of the State to protect an owner in his property rights. The right to be protected in property rights, is of the highest character and is classed with the right to be protected in life and liberty. The United States and the State Constitutions provide that "no man shall be deprived of life, liberty or property without due process of law." In order to fulfil the function of protecting property rights satisfac- torily, it is necessary that the State should prescribe laws in accordance with which they may be protected by the State. In order that a proper and suflBcient code of law for the accom- plishment of this purpose should be established, it is necessary that property should be properly classified ; because laws which are needed to protect one kind of property, would be either unnecessary, or inadequate, to protect another kind of prop- erty. For instance, the law of larceny protects personal prop- erty, but is entirely unnecessary to thus protect real property rights; for, as Blackstone humorously remarks, "no man, how- ever feloniously disposed, ever stole an acre of land." The pith of this saying is found in this, that larceny, or in familiar 2 NATUEB OF EEAL PEOPEBTX language, stealing, can only be predicated of that which, in the language of indictments for larceny, can be "stolen, taken and carried away." No man can steal, take and carry away an acre of land. The laws of forgery serve only the purpose of protecting property ri^ts which are evidenced by written instruments. If there were no written instruments which were evidence of rights of property, there would be no laws against forgery. The laws against counterfeiting would be of no use in a state of society where money was not issued, and its value stamped upon it, by the State. It is unnecessary to pursue the thought further. THE LAW DIVIDES PROPERTY INTO TWO GREAT CLASSES —REAL PROPERTY AND PERSONAL PROPERTY. Not only our law, but every code of law which prevails in a civilized country, distinguishes between real property and per- sonal property. In the civil law, the prolific mother of most of the codes of continental Europe, property is divided between the movable and the immovable. These words better represent the essential difference between these two classes of property, than our words, real and personal. It may not unnaturally be asked why it is a matter of im- portance to distinguish between what is real and what is personal property. It might occur to the non-legal mind that as long as property is property, and is something that belongs to one whose ownership can be transferred to another, it should make no difference whether it is called real or personal, or whether it is assigned to one class or the other. The answer to this inquiry is found in the necessary differences in the laws by which the two different classes of property are pro- tected, and their transfer, and contracts with regard to them are regulated. NATURE OF SEAL PEOPEBTY 3 If a man dies intestate, that is, without having made a legal will, his heirs immediately become the owners of the real property of which he died possessed. His heirs are those who inherit his real property, the most common case being his children.* Immediately on his death the children succeed to the ownership of the realty, subject only to the widow's right of dower. It is different with regard to personal property. The title to this does not pass by operation of law from the deceased to his heirs. The legal ownership remains in abey- ance until an executor or an administrator receives letters of administration from the proper legal authority, and then such executor or administrator is the legal owner of the personal property, and he holds it until the purposes of administration are accomplished. When administration is completed, that is, when the expenses of administration, debts, and in case there is a valid will, the legacies have been paid, the residue of the personalty is distributed in accordance with the terms of the will, or, in the case of an intestate estate, in accordance with the provisions of the "Statute of Distribution." Executors and administrators are called "personal representatives." Again, the title to real property cannot be transferred with the same facility and simplicity as the title to personal property. The law requires certain formal and solemn proceedings in trans- ferring the title to real property, which are entirely unneces- sary when dealing with personal property.* Again, if a man dies intestate possessed of both real and personal property, his real property is allotted according to the law of the country in which the real property is situated, while his personal property is distributed according to the law of the place where ' Overturf vs. Dungan, 29 Ohio St., 230. The widow is not classed as an heir: Barnett vs. Powers, 40 Mich., 379. " Austin vs. Sawyer, 9 Cowen (N. Y.), 39. Hirth vs. Graham, 50 Ohio St., 57. 4 NATURE OF EBAL PKOPBBTY he, at the time of his death, had his domicile.* Again, con- tracts with regard to real property are governed and construed according to the law of the place where the land is situated, while contracts as to personal property are ordinarily governed by the law of the place where the contract is made. Again, the actions for redress for injuries to real and personal prop- erty differ in form and in some instances in the place in which they may be brought.^ It is unnecessary at this time to multiply illustrations of the importance of accurately distinguishing between what is real and what is personal property. Enough has been said to illustrate the importance of the distinction. What has been adverted to will require more extended discussion hereafter. THE ESSENTIAL OTTALITIES OF REAL PROPERTY ARE THAT IT IS IMMOVABLE AND IMPERISHABLE. Only that which is immovable and imperishable can be as- sented, as a matter of law, to be real property. To determine the character of anything which is not immovable and im- perishable, resort must be had to extrinsic evidence. By the terms immovable and imperishable is not meant an absolute immovability or imperishability, but the immovability and im- perishability possessed by this earth. THE THIWa WHICH IS THE BASIS OE THE LAW OP REAL PROPERTY IS LAND IN ITS NATURAL STATE. Land, as Blackstone says, is a word of the widest significa- tion, or in Latin phrase nomen generalissimum. That is, it includes not only the surface of the earth, but also everything growing upon it without cultivation, and the water which covers parts of the earth's surface, and also the space above the surface and the contents of the earth below its surface. White vs. Howard, 46 N. Y., 144. Rlckett vs. Dowell, 55 Ind., 470. McGonlgle vs. Atchison, 33 Kan., 726. NATURE OF REAL PfiOPEETY 5 Cnjus est solum ejus est usque ad coelum, (he who owns the land, owns the space above even to the heavens) is a familiar maxim of the law. Therefore the correct legal idea of land, or of real property, is of a portion of the earth whose boundaries, beginning at a point at the center of the earth, extend straight upwards to the earth's surface, and indefinitely upward beyond. It follows from this that land may be divided horizontally as well as vertically, and the owner of land may divide and sell the space above the surface, and the earth be- neath the surface, as well as he can divide the surface into city lots." Properly speaking, therefore, land is so much space and the natural contents of the space. Of the artificial contents of the space, that is, those brought there by the labor of man, such as planted trees, cultivated crops, and buildings, some belong to and are reckoned as a part of the real property, and some are reckoned as personal property. These things must be explained in detail hereafter, • LllIlbTldKe -va. Lackawanna Coal Co., 143 Fa. St., 293: 13 L. R. A., 627. Defendant was the owner In fee of coal underlying plaintiff's prop- erty. The deed to defendant contained the following clauses: "To have and to hold the coal in and under said land unto said party of second part, its successors or assigns, until exhaustion thereof," and, "with yie sole and exclusive right to mine and remove same." The defendant cut a tunnel through the underlying coal into an adjoining piece of property owned by it and was carrying coal through the tunnel from such adjoining property. Complainant filed a bill in equity to restrain the defendant from removing coal from adjoining property through the tunnel under complainant's land. The lower court refused to grant the injunction. It was contended by the complainant that the defendant's right to mine coal on his property was an incorporeal right to remove coal, and that once the coal was removed, the defendant had no further right in the property and no right to use the tunnel formerly occupied by coal. The court did not accept this contention and held that the defendant was the absolute owner of the coal, i. e., of a corporeal hereditament with all the rights and incidents peculiar to the ownership of land; that the surface may be held in fee by one person and the mineral also In fee by another person. The court held that the defendant being the owner of an estate in fee simple, It would still be entitled to the space it occupies when coal is removed. The decision of lower court was affirmed. 6 NATUBE OF BBAL PEOPEETT From the explanations given, it will appear that the following ia a correct definition: JjAstd is a portion of space owned by somebody, and measuring prom the center op the earth up- wards to the sky, and includes that portion of the solid contents op this space which is by law con- sidered an inherent fart of it. The phrase, "owned by somebody," includes goTernments, public and private corporations, as well as individuals. In our country vast tracts of land are still owned by the National Government; other lands are owned by the State governments. But whatever portion of the earth's surface is within our national boundaries has an owner. The test of ownership, so far as real property is concerned, is the right of user and ex- clusion.' This right is not an absolute and unlimited right, but a limited one, but it is, after aU, of the very essence of ownership of real property. No person, using the word person as including every legal entity which is recognized by the law as having a right to own property, can be said to own real property, unless there is a right of exclusion. For this reason the high seas, the great oceans, are not real property, because they are the common heritage and property of mankind- National and State terri- torial jurisdiction, a term which involves a species of owner- ship, extends into the high seas for a distance of one marine league from low water mark. Beyond this limit the high seas are the common heritage of mankind, and therefore, being free to all the world, there is no right. of exclusion, and conse- quently no real property there. Those who own lands on the shore of the ocean own simply to the low water mark. Be- tween this and the marine league limit, there is a species of ' Eaton vs. Boston, Concord & Montreal R. R., 51 N. H,, 604. NATUEE OF EBAL PBOPEBTY 7 gOTernmental ownership. How much of this ownership is National, and how much State, the courts have not yet been called upon to determine. It is sufficient for the present pur- pose to say that within the territorial limits of the United States every cubic foot of real property has an owner. A given portion of space measuring from the center of the earth is absolutely immovable. What is contained within that space, whether soil, water, mineral, plant life, or buildings, may be removed and carried away, but the space remains. It is im- movable, and may be filled with other substances, or made available to new uses. This then, is the essence of real, or as it is better termed, immovable property. ONLY SPACE IS ALWAYS AND UNDER ALL CIRCUM- STANCES REAL PROPERTY, FOR IT ALONE IS IMMOVABLE. WHETHER, IN ANY GIVEN CASE, MATTER IS REAL OR PER- SONAL PROPERTY, DEPENDS ON ITS LEGAL RELATION TO THE SPACE WHICH IT OCCUPIES. Having attained a clear conception of this idea, it becomes necessary to inquire what things contained within a defined portion of space are considered by law as inherent parts of it, and are therefore governed by the laws affecting real prop- erty, and not by laws affecting personal property. We have already seen that land (using the term in its broadest sense) is real property. It only remains to consider what constitutes land. THE SOLID MATERIA! OP THE EARTH IN ITS NATURAL STATE IS REAL PROPERTY. This proposition requires no explanation. The solid ma- terials of the earth, including the soil, rocks, etc., until severed, have all the essentials of real property, as explained. In its common and restricted use, the word "land" includes only this 8 NATUEE OF EBAL PEOPBBTY solid material of the earth, and the student will sometimes find this restricted use of the word in statutes. WHATEVER IS IMBEDDED IN THE SOLID MATEEIAIi OP THE EARTH, IN ITS NATTJRAI, STATE, IS A PART OF THE LAND, AND IS REAL PROPERTT. This proposition needs no elaboration and no qualification. It will be made sufBciently clear by a consideration of the fol- lowing particulars: MINERALS. THE OWNER OF THE STTREACE, IN THE ABSENCE OF AN EXPRESS RESERVATION IN HIS GRANT, IS THE ABSOLUTE PROPRIETOR OF ALL MINERALS BENEATH IT IN A DIRECT LINE TO THE CENTER OF THE EARTH. Minerals are not merely incidents to the ownership of the land in which they are imbedded, but are part and parcel thereof. They are land. As such they pass on a conveyance of the land without any special designation, and a grantor desiring to retain the title to the minerals in the land con- veyed must expressly resen^e the same. The owner of the land has a right to subdivide his property in any direction, and he has the right to convey special in- terests in the subdivided portions. He may, for instance, convey the surface and retain the underlying strata, or he may sell the underlying strata and retain the surface, or he can sell one or more of the minerals beneath the surface. It frequently happens in mining districts, that the surface is owned by one man, the coal beneath the surface by another, the petroleum and other minerals by other persons. The rights of the respective parties under such circumstances to their respective portions, are considered by the law to be interests NATURE OF REAL PROPERTY 9 or CBtates in real property." They are conveyed, Inherited, and are subject to dower and other laws relating to real property.* Where a special interest is conveyed in a particular mineral, the general owner retains all the rest, subject only to the rights incidental to such grant. Thus where a grantor con- veyed the salt in certain lands, it was held that his grantee must account to hini for the petroleum raised with the salt and disposed of by the grantee.^" At the conmLon law, there was one exception to this rule as to the ownership of minerals. It was one of the functions of the English sovereigns to furnish coins to carry on the commerce of their subjects. Gold and silver were re- quired by the sovereign for this purpose, and it was a prin- ciple of the common law that all the gold and silver in the realm belonged to the sovereign. 'Plninmer TS. Hillside Iron Co., 160 Pa. St.. 483. This was an action of trespass. Defendant claimed the right to enter plaintiff's land under an instrument made by one Calendar, through whom plaintiff claimed title. The instrument recited that "possession of the leased premises shall extend only to their use as a coal field." The purchase price of the coal was fixed at $200.00, and if the coal proved abundant another $100.00 was to be added. The plaintiff contended that this writing granted only an incor- poreal right of user to the lessee, and that this right had been lost by adverse possession on part of plaintiff. The defendant contended that it was the owner, not of a mere right of user, but of an absolute estate in the coal, and that an adverse possession of the surface was not adverse to the rights of the owner of an estate in the underlying strata. The court held that the instrument was Intended as a sale of the underlying coal. "Such a conveyance operates to sever the surface from the underlying stratum of coal; and after such severance the continual occupancy of the surface by the vendor is not hosti'e to the title of the owner of the underlying estate and will not give title under the statute of limitations. ♦ * • The owner of the surface can be affected only by the invasion of the surface. The owner of the under- lying stratum is not bound to talte notice of the Invasion of the estates that do not belong to him, but when his own estate is invaded he is bound to talie notice. The conclusion thus reached disposes of the title by possession set up by plaintiff and her right to recover in this case." • Adams vs. Briggs Iron Co., 61 Mass., 361. " Kler vs. Peterson, 41 Pa. St., 357. 10 NATUEE OF REAL PEOPEETY This doctrine, as a general rule, does not obtain in this country. In New York it has been followed to this extent, the State in its grants has reserved the right to all gold and silver in the land granted, but, by statute, owners are entitled to the gold and silver discovered on their lands for a limited period. The word "mineral," as used in connection with this dis- cussion, includes not only substances of which metal is an ingredient, but also other substances which are mined. Thus oil and gases have been classed as minerals, and while in the earth in their natural state, are subject to the general rules of real property applicable to their condition,*^ WATER. Water, not in a well defined surface channel, but which percolates through the earth, is regarded as part of the land.^" It belongs to the owner of the surface, and may be the subject of sale, the same as minerals." Surface water being "water which is merely spread over the surface and flows without any regular course or channel, or circulates under the surface through the pores of the earth"" is a part of the realty and belongs to the owner of the land on which it is, as long as it remains on his land, and no longer. " Westmorland & Cambria Natural Gas Co. vs. De Witt, 130 Pa. St., 235. Wilson vs. Hughes (W. Va.), 39 L,. R. A., 292. Kelley vs. Ohio Oil Co., 57 Ohio St, 317; 39 L. R. A., 765. " For a fuller discussion as to property rights In water, see Easements, post page 406. Slocum vs. Seymour, 36 N. J. L., 139. Miller vs. Zufall, 113 Pa. St, 365. McClintock's Appeal, 71 Pa. St, 365. " Ocean Grove Camp Meeting Assn., Asbury Park, 40 N. J. Bq., 447. <* Sweet vs. Cutts, 50 N. H., 446. NATUEB OF EBAL PROPERTY 11 It may be used by him, free from any usufructuary claim by others.*' Water flowing in a definite channel and having a definite bed and banks, is not a part of the realty and is not the subject of absolute ownership. While the owner of the land through which it flows may use it, yet his right to do so is qualified and limited by the rights of others in the stream."^* The statement as to surface waters ought to be limited to this extent, that if they become a permanent body of water, without outlet, and are situated on the land of two or more persons, the different owners have only the same rights therein as in flowing streams." It is more difficult to determine the character of things grow- ing on or attached to the surface of the land. Many of the things attached to the surface of the earth are the result of natural forces or are natural growths; others are the result of natural forces set in motion and guided by the labor of man, and others are the result solely of the industry and labor of man. In reference to these attachments, we state the following propositions: WHATEVER IS ATTACHED TO THE STJHFACE OE THE EARTH BY NATURAL FORCES IS A PART OF THE SOIL AND IS REAL FROFERTT. This proposition requires no explanation. A reading of the illustrative case and the discussion of the law relating to accre- " Wilson vs. New Bedford, 108 Mass., 261. " Merrifield vs. City of Worcester, 110 Mass., 216. See Post Easements. " Schaefer vs. iMarthaler, 84 Minn., 487. 12 NATURE OF KEAL PEOPEETY tions and ice will indicate the force and application of the principle." Accretions which have been defined as "the increase of real estate by the addition of portions of the soil by gradual deposition through the operation of natural causes," comes within this principle and will be discussed hereafter." lOB. Ice is generally regarded as part of the soil over which it forms and to which it is attached. The reasoning of the cases holding this view is, that water being congealed and attached to the soil, is like any other natural accession to realty and must be considered a part thereof, and that, since the owner of the soil can entirely ap- propriate it without detriment to the public and the usufruc- u Goodard vs. 'Wlncbell, 86 loTva, 71. The plaintiff was the owner of a half section of land in Iowa. On this land there "fell from the heavens a 66-pound aerolite which was found by one Hogland, Imbedded three feet in the earth. Hogland dug it up and removed it to his own property; subsequently he sold it to the defendant for $100.00. Plaintiff then replevied the aerolite from the defendant, claiming title under the rule 'that whatever la affixed to the soil belongs to the soil.' Defendant contended that his grantor obtained title by occupancy of a thing which belonged to no one, and as finder of abandoned or lost property." The court In part said: "It (that is aerolite) came to its position in the earth through natural causes. It was one of nature's deposits, with nothing in its material composition to malie it foreign or unnatural to the soil. It was not a movable thing 'on the earth.' It was In the soil and In a very significant sense immovable; that is, it was only movable as parts of the earth are made movable by the hands of man. It was in substance a stone and was not of a character to be thought of 'as unclaimed' by the owner, and because unclaimed supposed to be aban- doned by the last proprietor, as should be the case under the rule invoked by the defendant." The court held that the aerolite, under the doctrine of accretion, became the property of the owner of the soil, and that the rule as to lost property was not applicable, as the property was not lost or aban- doned. The judgment of the lower court in favor of the plaintiS was affirmed. "• See post Title, page 422. NATURE OF REAL PROPERTY 13 tuary rights of others, no reason exists why he should not en- tirely appropriate it.*" In some States, the soil under navigable rivers is owned by the State, and in that case the riparian owner is not the owner of the ice, but it belongs to the general public." Where this doctrine prevails, the person who first definitely appropriates it becomes its owner.** " Washington Ice Co. vs. Shortall, 101 111., 46. Brookville & M. Hydraulic Co. vs. Butler, 91 Ind., 134. liorman vs. Benson, 8 Mich., 18. People's Ice Co. vs. Excelsior, 44 Mich., 229. Shortall -vs. Waablnston Ice Co,, 101 III., 46 This was an action of trespass quare clausum fregit by plaintlft against the Ice Company, for cutting, removing and appropriating Ice which formed over the bed of the Calumet river within limits of plain- tiff's land. The court held that under the rule adopted in Illinois, the plaintiff was the owner of the land to the center of tht stream, subject to the easement of navigation. It was contended by defendant that the plaintiff had a mere usufructuary use of the stream, and that therefore had no title to the ice, sirce it was only congealed water. In answer to this contention the court says: "When water has congealed and become attached to the soil, why should it not, like any other accession, be considered part of the realty? Wherein in this regard should the addition of ice formed over the bed of a stream be viewed differently from alluvion which is the addition made to land by the washing of the sea or rivers?" The court held that the owner of the river bed was the owner of the ice forming over it, and affirmed the judgment in favor of plaintiff by lower court. » Wood T«. Fowler, 26 Kan., 6S3. This was a petition for an injunction to restrain defendants from removing ice which was alleged to belong to petitioner. Petitioner claimed ownership as lessee of one Splittlog, the riparian owner. The defendant claimed that the title of Splittlog extended only to the bank of the river; that the title to the bed of the river was in the state and that he was entitled to remove the ice, being the first occupant of same. The court found that the river on which the ice formed was navi- gable, and held that under the laws of Kansas, Splittlog's title did not extend to the center of the stream but to the bank, and that therefore plaintiff's lessor had no title to ice found over public or state property; and that the ice belonged to the one who first appropriated and secured it, on the same principle that he who catches a fish in a public stream owns It. See also Hettinger vs. Ames, 121 Mass., 539. " Woodman vs. Pitman, 79 Me., 456. 14 NATURE OF EEAL PEOPEETT Ice formed on private ponds is owned by the owner of the land on which it forms, and ice formed on public ponds is owned by the public.'" THE NATXmAIi GBOWTHS FEOM THE SOIL WHICH DO NOT EEQTJIBE A PERIODICAL PLANTING OE LABOE AEE, WHILE UNSEVEEED, A PAET OF THE SOIL TO WHICH THEY AEE ATTACHED AND AEE EEAL PEOPEETY. Such growths are known as fructus naturales. Thus trees, grasses, herbs and perennial roots are a part of realty and pass with it on conveyance without any special designation. So, in an interesting case, the court held that blackberries growing on the bushes were a part of the realty and not sub- ject to a levy on execution in the same manner as personal property.2* The principle stated finds the most frequent application in the case of trees. TREES. Standing trees are a part of the realty. There is an ap- parent exception to this statement. Trees planted or raised in a nursery for the purpose of transplanting, while a part of the realty so that they would pass as a part of the freehold on a sale or mortgage by the owner of the freehold, he being also the owner of the nursery trees, are yet regarded, as between a landlord and tenant, and for the purpose of sale, as personal property.25 It was formerly contended that trees standing so near the boundary line as to draw nourishment from adjoining property, belonged partly to the adjoining owner. It is now settled that the owner of the property on which the trunk of the tree is, " Eowell vs. Doyle, 131 Mass., 474. •* Sparrow vs. Pond, 49 Minn., 412. NATURE OF REAL PROPERTY 15 is the owner of the tree; and this is true, even though the branches extend over the adjoining property. But, while the tree, and the whole of it, belongs to the owner of the soil on which it is, when any part of it is found across the boundary, the adjoining owner may demand its removal, or, remove it himself.'^ This doctrine is entirely in accord with the principle that the owner of the soil owns all above and below it, and that the right of exclusion is the very essence of the ownership of land." The right to cut the branches must not be confused with the right to the tree; for the overhanging branches and the fruit thereon, even when cut, belong to the owner of the tree.'" " Smltli TS. Price, 39 Illinois, 28. The defendant sold land to plaintiff and the writing contained no reservation. After plaintiff went into possession defendant attempted to remove certain fruit trees and ornamental shrubbery growing on the land and cultivated for nursery purposes. Plaintiff filed a bill of complaint praying for an injunction to restrain defendant from remov- ing the trees and shrubbery. The court held that an Injunction should issue as prayed; that while the trees and shrubberies were for nursery purposes only, yet they were a part of the freehold, and as between a vendor and a vendee, would pass with the land; and that parol evidence is inadmis- Bible to show a reservation. The court intimated that as between a landlord and a tenant it would hold the trees to be personal property. » Hlckey vs. M. C. R. R., 96 Mich.. 498; 21 L. R. A., 729. " Robinson vs. Clapp, 65 Conn., 365. See Hickey vs. M. C. R. R., 96 Mich., 498. Hoffman vs. Armstrong, 48 N. Y., 201. » Skinner ts. Wilder, 38 Vt., 115. Plaintiff and defendant were adjoining owners. Plaintiff planted some apple trees six feet from boundary line and the trees grew until the roots extended into and some of the branches overhung defendant's land. Defendant packed and carried away the apples on the branches overhanging his property and plaintiff then brought this action of trespass and of trover for the conversion of the apples. The defendant contended that he was the owner of everything above his land, and that since the roots of the tree drew nourishment from his land he was a part owner and tenant in common of the tree and Its product. The court held that while the owner of the land was the owner of the space above It and might remove or lop off the branches, yet It did not follow that he was the owner of all material substances which 16 NATURE OF KEAL PEOPERTY K the body of the tree is on the dividing line, it is the com- mon property of the adjoining owners;^® and each must so use his portion as not to destroy or impair the rights of his neigh- bor in the other portion.^" We come now to the consideration of the nature of those growths which are the result of the forces of nature set in mo- tion by the labor of man, and which require periodical planting and care. Such growths are known as fructus industriales or came into that space; for instance, the court pointed out that personal property wrongfully placed on owner's land does not belong to him. The court held that the apples belonged to the owner of the tree. The contention of defendant that he was a joint owner by reason of the extension of the roots of the tree into his property was also overruled; since it would be Impossible to tell to what extent the tree drew nour- ishment from adjoining property, and the rights of the parties would be constantly changing by the growth and extension of roots across the boundary line. The court therefore held that the tree and its product belonged to him on whose land It was situated. See also Griffin vs. Bixley, 12 N. H., 454. " Musch vs. Burlchart, 83 Iowa, 301; 12 L. R. A., 484. '"'Robinson -vs. Clapp, 65 Conn., 3C5. Suit by plaintiff to restrain defendant from injuring a tree, partly on plaintiff's and partly on defendant's land. The boundary line between plaintiff's and defendant's property ran through the middle of the tree over which the controversy arose. The tree was valuable to plaintiff as a shade tree and ornament. The defendant was about to build on his own property, and threatened to remove that portion of the tree which was on his own property. The removal of the portion of the tree on defendant's property would de- stroy the life of the entire tree. The lower court rendered a judgment for plaintiff restraining the defendant "from such interference with the tree as will destroy or injure same." The court modified the injunction of the lower court. It held that each of the land owners had an interest in the tree equal to or incidental with the part which was upon his land, and that each owner had a right to demand that the owner of the other portion should so use his part as not to unreasonably injure or destroy the whole. "But we thinli the law Is well settled, that where the branches of a tree extend over on adjacent owner's land, he may lop them off up to the line, even though that were practically to the trunk of the tree. * * * That the defendant should have less right to lop these branches because he owns a portion of the tree than if he owned none of it, seems to us to be unreasonable. The injunction should not extend further than to restrain defendant from cutting any portion of the trunk." To the same effect see Musch vs. Burkhart. 83 Iowa, 301. NATURE OF REAL PROPERTY. 17 emblements, and include all kinds of crops, vegetables and other products resulting from an annual planting and cultl- yation. In reference to these, it may be said as follows : AS BETWEEN A GBANTOR AND GRANTEE FRTJCTUS IN- DUSTBIALES AKE REGARDED AS A PART OP THE SOIL, AND, IF ATTACHED TO IT AT TIME OF A TRANSFER, WILL PASS AS A PART OF REALTY, WITHOtTT SPECIAL DESIGNATION." Fructus industriales will also pass by will to the devisee as part of the realty.^^ The same principle applies as between a mortgagor and a mortgagee.^* In some States a distinction has been made between ma- ture and inunature crops. It has been held that ripened crops, since they have ceased to draw any nourishment from the soil, are not a part of it, and do not pass with a conveyance of the land, although unsevered at the time of the sale.''* The rule stated in the text is supported by the weight of authority, and is the better rule, since it is only natural that unsevered crops, whether ripe or not, entered into the view of the purchaser or mortgagee and were a factor in determin- ing the value of the property. For other purposes, and for the purpose of sale and contract, a contrary rule prevails. FOR THE PURPOSES OF SALE AND CONTRACT, AND AS BETWEEN DEBTOR AND CREDITOR, FRTICTtrS INDUSTRI- ALES ARE REGARDED SOLELY AS THE PRODUCT OF LABOR AND ARE PERSONAL PROPERTY.'' Thus, they are subject to levy and sale under an execution, " Sexton vs. Breese, 135 N. Y., 387. Tripp vs. Hasclg, 20 Mich., 258. Herron vs. Herron, 47 Ohio St., 544; 9 L. R. A., 667. " Rough vs. Warner, 76 Mich., 375. See Stael vs. Wilbur, 77 N. Y., 158. " Batterman vs. Albright, 122 N. Y., 484. Caldwell vs. Aslop, 48 Kans., 571; 17 L. R. A., 782. " Caraufle vs. Cooley, 33 Kans., 137. Richards vs. Knight, 78 Iowa, 69; 4 L. R. A., 453. " McKenzie vs. Lampley, 31 Ala., 526. IS NATURE OF REAL PROPERTY. the Bame as other personal property;" and may be bartered and sold, subject only to the laws governing personal prop- erty.*^ It is sometimes difficult to tell whether a particular growth is fructus industriales or fructus naturales. Fruit is generally classed as fructus naturales; but in one case in which fruit required an annual expense and labor, it was held to be fructus industriales." Hops do not require an annual planting, but require an annual manuring and labor for their existence and are bo largely a product of labor, that they have been classed as fructus industriales.'* The principles relating to things attached to the soil and which determine what is real and what is personal property, find their most frequent application in cases arising under the statute of frauds. The fourth section of the statute requires, in part, that no action shall be brought upon any contract for the sale of land or any interest in or concerning land, unless the agreement, or a memorandum thereof be in writing and signed by the party to be charged thereby. The seventeenth section relates to the sale of "goods, waresi and merchandise," and piovides that no contract for the sale of goods, wares and merchandise for the price of £10 and upwards shall be allowed to be good, unless the buyer shall receive and accept part of the goods so sold, or give something in earnest to bind bargain or in part payment, or unless some note or memorandum of the bargain be made and signed by party to be charged by such contract. A careful reading of this statute will show that if the par- ticular thing attached to the surface is a part of the realty, " Parkham vs. Thompson, 2 J. J. Marshall (Ky.), 159. Preston vs. Ryan, 45 Mich., 74. Penhollow vs. Dwight, 7 Mass., 34. " Cruie vs. Tifts, 65 Ga., 644. ^ Purner vs. Piercy, 40 Md., 212. " Stewart vs. Doughty, 9 John. (N. Y.), 108. NATtlBE OF EBAL PROPEUITT. 19 a contract in reference to same must be in writing; but if it is not a part of the realty, a contract in reference to it need not be in writing, if its value is less than |50, or if there is a partial delivery and acceptance, or if something is given in earnest to bind the bargain, or if there is a partial payment. Applying, then, the principles enunciated, to questions re- lating to the statute of frauds, we have the following proposi- tions: ANT CONTRACT WHICH VESTS IN THE BTJYEB AN INTER- EST IN FRUCTirS NATTTRALES, BEFORE THEIR SEVERANCE, IS A CONTRACT IN REFERENCE TO AN INTEREST IN LAND, AND MTtrST BE IN WRITING, AS REQXnREB BY THE FOTTRTH SECTION OF THE STATTTTE OF FRAUDS. 'Oius, an agreement vesting a present interest in standing trees or in the soil or any of its natural products, must be in writing.*® ANY AGREEMENT WHICH VESTS IN THE BUYER AN IN- TEREST IN FRUCTUS INDUSTRIALES BEFORE OR AFTER THEIR SEVERANCE, IS A CONTRACT IN REFERENCE TO PER- SONALTY, AND IS GOOD IF IT COMPLIES WITH THE SEV- ENTEENTH SECTION" OF THE STATUTE OF FRAUDS. Thus, a sale of crops, whether it vests an interest before or after severance, or whether the crops be mature or inmia- tore, does not relate to an interest in land, and does not come within the fourth section of the Statute of Frauds.*^ We shall afterward see that things attached to the surface, if severed to such an extent as to lose the characteristics of real property, become personal property. This being true, many courts as a logical consequence adopt the following rule: " Slocum vs. Seymour, 36 N. J. L., 139. MiUer vs. Zufall, 113, Pa. St., 365. Herth vs. Graham, 19 L. R. A., 721 (Ohio). " Marshall vs Ferguson, 23 Cal., 65. Heard vs. Fairbanks, 46 Mass., 111. 20 NATURE OF REAL PROPERTY. IF THE CONTRACT IS FOR THE SALE OF FRUCTTTS WAT- XTRALES THEN ATTACHED TO THE SOIL, BUT WHICH ABB TO BE SEVERED, AUD THE CONTRACT DOES NOT CONTEM- PLATE A VESTING OF TITLE UNTIL AFTER SEVERANCE, SUCH AGREEMENT IS FOR THE SALE OF GOODS, AND IS GOV- ERNED BY THE SEVENTEENTH SECTION." This principle is frequently applied to contracts in refer- ence to standing trees, wMck are to be seyered, eitter by the purchaser or the seller. The requisites as to the formalities and execution of such a contract, as we have seen, depend on the intention of the parties as to whether or not a present in- terest Tests in the purchaser. In many States, in the absence of a clear intention that a present interest should pass, the courts are inclined to construe the agreement to be an executory contract to purchase chat- tels, with a special license to enter and remove them. "While this contract is executory, no title passes to the pur- chaser, and the seller may at any time revoke the license to en- ter. This revocation of the license does not defeat any valid title, for as yet none has vested in the purchaser, and he has therefore no action to recover the trees; but the revocation is a breach of the contract, the remedy for which is an action for damages, as in the common case of a failure or refusal to de- liver the ordinary chattels in pursuance of a contract of sale.*' If the agreement to purchase and license to enter are acted upon and the trees are severed by the purchaser, they at once vest in the purchaser and, even though they are not removed from the seller's property, the latter may not now revoke the li- cense to enter and take the trees already cut; for the trees be- ing severed and the title having passed to the purchaser, he may enter and remove them under the rule that where the chattels of one person are placed or left on the land of an- "Killmore vs. Hewlett 48 N. Y., 569. " Drake vs. Wells, 11 Allen (Mass.), 141. Terrel vs. Frazier, 79 Ind., 473. NATURE OF REAL PEOPBETY. 31 other, with, the tatter's permission, the owner of the chattel has an implied irrevocable license to enter and remove them.** IN SOME STATES A, CONTRABY RTTLE PREVAILS AND A SALE OE STANDING TIMBER, WHETHER OR NOT THE PAR- TIES CONTEMPLATE ITS IMMEDIATE SEVERANCE AND RE- MOVAL BY THE VENDEE, IS A CONTRACT CONCERNING AN INTEREST IN LAND, WITHIN THE MEANING OF THE POURTH SECTION OP THE STATUTE OP PRATJDS, AND IS VOIDABLE BY EITHER PARTY IF NOT IN WRITING." The question frequently arises as to the right to fructus indus- triales or emblements, planted by a tenant, when his estate terminatesi before the maturity of the crop. The law always endeavors to promote and encourage agri- culture. For this reason it has been held that manure made on the land is a part of it and must remain there on the re- moval of a tenant. For a like reason the law will preserve to every tenant the crops that he has sown, providing that at the time the crop was sown there was a reasonable expec- tation that it might mature before the expiration of the ten- ancy, and providing also that the tenancy was not terminated by the act of the tenant. Any other rule would tend to discourage the planting and cultivation of crops by a tenant whose term is of uncertain duration. In order that this right to reap by a tenant after the ter- mination of his tenancy may arise the following conditionB must exist. 1. The tenancy must be of uncertain duration, as a ten- ancy for life or at will. " Yale vs. Seeley, 15 Vt., 221. Owens vs. LewJs, 46 Ind., 499. See Drake vs. Wells, 11 Allen (Mass.), 141. Leonard vs. Meaford, 85 Md., 666; 37 L. E. A., 449. " Herth vs. Graham, Ohio, 19 L. R. A., 721. Miller vs. Zufall, 113 Pa., 317. Olmstead vs. Niels, 7 N. H., 522. Heflin vs. Bingham, 56 Ala., 574. 22 NATURE OF REAL PROPERTY. 2. The tenancy must be terminated by the act of G^od or of some person other than the tenant. 3. The product must come within the class known as fructus industriales. It follows from these propositions that a tenant whose term is certain to expire before the maturity of the crops, and a tenant who by his own act terminates his tenancy, are not entitled to reap the crop at its maturity. There is, however, some limitation to this ruling. If a tenant after planting his crop and before any default in the terms of his tenancy, sells the crop to another and then ter- minates the lease, the purchaser is not chargeable with the tenants default and may afterwards enter and reap the crop on its maturity. To return again to the discussion of things attached to the surface of the earth, there remains only one other class to consider, viz: things attached to soil solely by the labor of man. This class is the most comprehensive, and includes all arti- ficial attachments, such as buildings, fences, railroads and im- provements of all kinds. The law relating to this class will be discussed under the head of fixtures. There are several special species of property which, under certain circumstances, are considered by law as real property, but which do not have the general characteristics of real property. MANURE. When manure is made on agricultural land it is regarded as a part of the land upon which it is made. The rule originated out of a desire to benefit agriculture; for it was considered essential to the successful cultivation of the land that the manure made on it should be retained for its use.** For this reason, when agricultural land is conveyed, "Fay vs. Muzzey, 13 Gray (Mass.), 53. NATURE OF REAL PROPERTY. 23 the manure on it, whether piled up or scattered, is considered to be a part of the realty, and passes to the grantee; and it has been held, as between a landlord and tenant, that, in the ab- sence of a special agreement or a local custom, the tenant could not remove manure made on the land from it on the termination of his lease.*^ So it has been held that manure belonging to the owner of a farm was not personalty and could not be taken under an execution as personal property .*8 The rule applies only to manure made upon the premises, and manure hauled from other places is personal property and not a part of the realty.*' For the purpose of sale, separate from the land, manure is treated as personalty, and the contract is within the seven- teenth section of Statute of Frauds.^" If the manure is not made upon agricultural land, but at a place where it could not be used for agriculture, as in a city, the reason of the rule fails and it is treated as personal prop- erty.81 So it was held that a tenant had a right to remove ma- nure produced on leased premises by stock in excess of that maintainable by the products of the premises from fodder produced elsewhere.''^ CHURCH PEWS. In some States, church pews are regarded as real prop- erty;"^ arid, in these States, for the purpose of Statute of Frauds, conveyancing and descent, are governed by the law of real property .°* "Middlebrook vs. Corwin, 15 Wend., 169. Contra, Southwick vs. Ellison, 2 Iredell, 326. "Sawyer vs. Twiss, 26 N. H., 345. "Haslem vs. Lockwocd. 37 Conn.. 500. ■"Strong vs. Doyle, 110 Mass., 92. "Fletcher vs. Herring, 112 Mass., 382. ■•Pickering vs. Moore (N. H.), 31 L. R. A., 698. "Jackson vs. Rounesville, 46 Mass., 127. "Brumfield vs. Carson, 22 Ind., 94. Sohier vs. Trinity Church, 109 Mass., 1. Aylward vs. O'Brien, 160 Mass.. 118; 22 L. R. A., 208. 24 NATURE OF REAL PROPERTY. The owner of the pew in the States holding this view is not the owner of the land under it, or of the church in which the pew is situated, and his right to occupy the same expires with the destruction of the church.^^ The doctrine as to the nature of pews does not prevail in most States. HEIRLOOMS. Heirlooms are such chattels, as by force of custom pass to the heir and not to the administrator. In England, family jewels, title deeds, coats of arms, were examples of this class of property. Before taking up the discussion of fixtures, it may be the most opportune place to consider what effect the severance of things imbedded or attached to the surface has upon its nature and classification. as a geneeal eule, ie any of the mateeials ad- heehtg to oe imbedded in the eaeth, eithee by natttee oe by laboe, aee completely seveeed eeom the soil by a peeson having the eight to do so, they cease to be a paet op the land, and become peesonal peopeety. If property is to be classified by its nature, and if one of the characteristics of real property is its immovability, it fol- lows that a loss of that characteristic will change its character. Thus, the soil itself, if severed from the land, becomes per- sonal property, and a personal action may be maintained for its conversion.^* So trees, completely severed from the land, are not subject to the laws of real property, and are considered as timber or lumber.^'^ "Brownson vs. Chapman, 63 N. Y., 625. "Riley vs. Boston Water Power Co., 11 Cush., 11. "Coolc vs. WTiltlns, 16 111., 480. Cook was the owner of a certain farm and previous to the sale of the property to the defendant he cut down trees and hewed them Into timbers, posts and round logs. NATURE OF REAL PROPERTY. 25 Trees cut or blown down, and remaining as they have fallen, are not considered as severed ;°* and it has been held, as be- tween vendor and vendee, that trees severed by vendor before transfer and not made into logs, were a part of the realty. So it was held that petroleum oil, as it formed in the cavities of the rock, is part of the realty; but when it reaches the sur- face it becomes personal property.'" It must not be understood that immovability is always the test in determining what is real or personal property. Ordin- arily, the test of movability or immovability is useful; but there are classes of property having the attribute of movability and which are held to be real property. Thus, in some States the rolling stock of a railroad is held to be real property. Plaintiff subsequently conveyed the farm to the defendant and the latter took possession of the farm and of the timber and logs. On the refusal of the defendant to give u,p the timber and logs, plaintiff com- menced an action In trover to recover their value. The court held that the separation of the trees by the act of the owner was complete, and that they were converted into personalty previous to the sale to defendant and that they did not pass to the grantee as part of the realty. "Brackett vs. Goddard, 54 Me., 309. Action to recover the price of certain logs sold by defendant to the plaintiff. The defendant, while owning certain land, cut down a quantity of hemlock trees, and subsequently conveyed the property to another. At the time of transfer the hemlock trees were lying on the lot where they had been cut, with the tops remaining thereon. After transfer, the defendant sold the hemlock to plaintiff, and', on refusal of the grantee of defendant to deliver the hemlock, he sued to recover the price paid defendant. The question presented was as to whether the title to the hemlock was in the defendant or his grantee. The court held that the hemlock being unmanufactured was much the same as timber blown down or severed by a stranger, and that, reasoning by analogy, the hemlock was a part of the realty and did not belong to defendant at the time of sale and that it belonged to defendant's grantee under the deed. The court intimated that had the hemlock been cut into logs or hewed Into timber, a different rule would have prevailed. "Kelley vs. Ohio Oil Co., 57 Ohio St., 317; 39 L. R. A., 765. CHAPTER 11. FIXTURES. The chief difficulties which arise in determining what is real and what is personal property, are to be fonnd in classi- fying those things which have been added to the land by the labor of man. Among these are included planted trees and shrubs, cultivated crops, fences, buildings, and things afOxed to existing buildings which are commonly called fixtures. The word fixture is sometimes used by the courts as meaning a chattel, that is, an article of personal property, which, by hav- ing been affixed to real property, has become a part of the real property. Sometimes it is used to designate a chattel which, although it has been affixed to real property, still retains its character of personal property. The word being used in both senses is to be defined as follows: A nXTUBE IS A CHATTEL WHICH HAS BEEN ATFIXED TO BEAIi PROPERTY, EITHER, TO BE USED TEMPOBARIIiY m CONNECTION WITH THE REAL PROPERTY, OB, TO ADD TO ITS PERMANENT VALTJE. In the first case the fixture retains its character as personal property; in the second case it becomes a part of the realty. From this statement the next proposition logically flows. THE INTENT WITH WHICH A CHATTEL IS AFFIXED TO REAL PROPERTY DETERMINES ITS SUBSEQUENT CHARAC- TER AS BEAL OB PERSONAL PBOPEBTY.' Having said this, it might be thought that it would be very easy to determine whether a given chattel is real or personal 'Eaves vs. Estes, 10 Kan., 314; Funt vs. Brlgaldi, 4 Daly (N. Y.), 359. Binkley vs. Forkner, 117 Ind., 176 ; 3 L. R. A., 33. Morley vs. Hoyt, 62 Conn., 542; 19 L. U. A., 611. 26 FIXTURES. 27 property, because probably the one who affixes it does it in- tending either that it shall keep its place only temporarily or that it shall remain permanently. This is not always true, but assuming that it is for the purpose of elucidating the sub- ject further, a difficulty arises in applying the test. The law does not permit a man, in a controversy as to a property right between himself and another, to maintain his claim by swear- ing to an intent, or state of mind which was not disclosed to the other party to the controversy. Suppose, for instance, the owner of a dwelling house were to put into the house a very expensive set of gas fixtures for a temporary purpose, in- tending after the temporary purpose had been accomplished, to replace them with cheaper and inferior fixtures. While the expensive fixtures are in place, he makes a contract to sell the house without disclosing to the purchaser his purpose as to the existing fixtures. He will not afterwards be heard to say as between himself and his vendee that these fixtures were not part of the realty because when he put them in he only in- tended to put to a temporary use. In the absence of notice, or a specific agreement, the purchaser has a right to demand that the fixtures which were there when he agreed to buy shall be considered a part of the realty.^ 'In Rldge^ray Stove Co. vs. "Way, 141 Mass., 557, it appeared that the owner of two dwelling houses had purchased and set up a portable furnace in each house. It was agreed between him and the seller of the furnaces that the title to the furnaces should not pass until they were fully paid for. Before they were paid for the owner of the dwelling houses sold the property to one who had no notice of this agreement and who supposed the furnaces were part of the realty. In a suit between the innocent purchaser and the seller of the furnaces, it was held that the furnaces were part of the realty, and the title to them passed to the innocent purchaser by his deed. The furnaces were set up and connected with a system of pipes and registers in the usual manner. The same principles are upheld in Cunningham vs. Cureton, 96 Ga., 489. In that case the controversy was between a mortgagee without 28 FIXTUEES. Since an unexpressed intent cannot be allowed to be the test as to whether a fixture is personalty or realty,' we are now to see what tests the law does resort to in order to de- termine the question of intent in any given case. Whether or not a fixture becomes a part of the realty by being afOxed to it, depends partly upon the permanency and solidity of the method of its attachment, and partly upon the relation which the per- son who affixes it bears to the land and upon his interest in the chattel. If he is the owner both of the land and of the chat- tel, the ancient doctrine of our law still prevails. It is ex- pressed in this maxim : "WHATEVER IS AFFIXED TO THE SOIIi, BELONGS THEEE- TO.'" When the owner of a chattel aflflxes it to land of which he is the absolute owner our law holds that he does it with the pur- pose of adding to the permanent value of the land, and he makes it a part of the land. While he owns the land he may dissever it and make it again a chattel,^ just as he may cut down a tree and thereby make it personal property. But if he conveys the land by deed, mortgage or lease, or contracts to do so, while the iixture remains affixed, it is considered as a part of the real^ and passes by the conveyance just as much as a tree." The importance of being able to distinguish be- tween fixtures which become part of the realty and those which remain personal property originates in the way real property is ordinarily conveyed or encumbered. The most notice and the seller of planers, molders, belting and shafting, which had been placed in and attached to a mill for milling purposes. Stillman vs. Flenniken, 58 Iowa, 450; Funk vs. Brigaldi, 4 Daly (N. Y.), 359. •Rogers vs. Brokaw, 25 N. J. Bq., 496. Blancke vs. Rogers, 26 N. J. Eq., 563. *Quicquid plantatur solo solo cedit. "Gooding vs. Riley, 50 N. H., 400. "Leonard vs. Clough, 133 N. Y., 292; 16 L. R. A., 305. FIXTURES. 39 usual form of a land contract, deed, mortgage, or lease of land simply describes the land, either by its boundaries or by refer- ence to a recorded plat. If there are buildings on the land, they are not mentioned, although, ordinarily, they go with the land. If there is valuable machinery in the buildings, this is not men- tioned, although it may, or may not, go with the land. Now, as we have said, every fixture, aflflxed by a person who is at the same time owner of both the land and the fixture, becomes at once a part of the realty. So far it is plain sailing. The diffi- culties begin when the fixture is attached to the land by a per- son who is not at the time owner of both the land and the fixture. He may be the owner of the land and not of the chat- tel; he may be owner of the chattel and not of the land; he may not own either. He may mistakenly believe that he owns the land while he is building upon it, and the true owner of the land may, or may not, share in the error, or may, or may not, know that another is building on his land. He may be a mere trespasser. These, and other varying states of fact must be considered. And, first, as to the case when the fixture is at- tached by one who owns the land but does not own the chattel. This situation divides itself into two classes; those in which the chattel is attached to the land, wrongfully, without the consent of its owner, and where the owner of the chattel consents to its annexation to the realty. As the law does not allow any man to profit by his own wrong, it is manifest that no man can make that a part of his realty which is the property of another, and which he has wrongfully affixed to the realty.' 'In Honzlk -vb. DelasUse, 55 Wis., 494. it appeared that Honzik was in possession of real estate, under a valid oral land contract. Honzik had paid for the'land but had not obtained a deed. Delaglise executed a deed of the land to one Putnam, who, thereupon, with full knowledge of Honzik's rights, unlawfully expelled 30 FIXTURES. But where the owner of a chattel permits the owner of land to attach the chattel to the land under some agreement by which the chattel is not to become a part of the realty, a differ- ent question arises, not as between the owner of the chattel and the owner of the land, but as between the owner of the chattel and a purchaser of the land who buys the land in ignorance of the agreement that the particular fixture is to retain its char- acter of personal property. Upon this question the law is that such an agreement, as against a purchaser without notice, is void, and the fixture passes as a part of the realty." This is in harmony with a general principle of tbe law that where one of two innocent persons must suffer a loss it shall fall upon him whose conduct made it possible for the other to her by force and took possession of the land, and thereupon went on and built a dwelling house on the land. In a suit by Honzik to compel Delaglise to give her a deed and to prevent Putnam's grantee from removing the building from the land, which the case states, "could be removed without injury to the premises except as it would be necessary to remove fences for that purpose, and except that it would leave the cellar uncovered;" it was held, that the building was a part of the realty and not subject to removal, upon the ground that where a wilful trespasser erects a building upon the land of another he thereby makes it a part of the realty. And the fact that he thought that Honzik's contract was invalid was of no consequence in a case where he had full notice of her equities. Huebschman vs. McHenry, .2fl Wis., 655. Ridgway Stone Co. vs. Way, 14 Mass., 547. Wade vs. Donan Brewing Co., 10 Wash., 284. ■In Tililietts vs. Home, 65 N. H., 242, it appeared that Home had sold to a mill owner an engine and necessary machinery for a mill, which was placed in and annexed to the mill. The mill owner gave Home a chattel mortgage on the engine and machinery to secure him for his pay, and this mortgage was filed with the township clerk. Afterwards the mill owner gave a real estate mort- gage to Tibbetts, who had no actual notice of the chattel mortgage. The chattel mortgage not having been paid. Home undertook to foreclose it. Tibbetts filed a bill for an injunction to restrain Home from foreclosing the chattel mortgage, on the ground that the engine and machinery were part of the realty. And it was held that, as between Tibbetts and Home, the engine and machinery were part of the realty, the filing of the chattel mortgage not being constituted a notice of a lien on that which appeared to be a part of the realty. Davenport vs. Shauts 43 Vt., 546. FIXTUEBS. 31 be deceived. By consenting that liis chattel shall be annexed to the realty under such circumstances as makes it appear to be part of the realty, the owner of the chattel makes it possible that a purchaser flhall be deceived into supposing that it is a part of the realty, and he is therefore estopped, as against an innocent purchaser of the realty, from claiming that it is not a part of the realty. If the purchaser have notice of the agreement by which the fixture remains personal property, he is bound by it." The rule now under discussion has no application except where there is an innocent purchaser, by which is in- tended, one who parts with his money or something of value to acquire an interest in the realty under the honest belief that the fixture in question is a part of the realty.^" It has heretofore been stated that in determining the im- expressed intent with which a chattel was aflflxed to the realty, the courts look to two things: first, what is the relation be- tween the owner of the land and the owner of the chattel; and, second, how solidly and securely is the chattel affixed. The general principles governing courts in the application of these two tests may be stated as follows: •Crippen vs. Morrison, 13 Mich., 23. "In St. Paul Fnrnltmre Co. vs. Saner, 63 If. TV., Rep., 110, it appeared that the plaintiff had made a conditional sale of a bar counter, back bar, and plate mirror to a tenant of the defendant, who rented a building of the defendant for saloon purposes. The articles were attached to the building in such a manner that they were easily removable without injury to the building. After the tenant had moved out, leaving the fixtures in the building and not having paid for them, plaintiff demanded permission to take away the fixtures, which was refused by the landlord. In an action to recover their value it was held that the fixtures did not become a part of the realty and that plaintiff should recover. It was also ruled that the ordinary rule requiring a tenant to remove fixtures during his term or not at all had no application to a case of this kind. See also Baldwin vs. Young, 17 Sou. Rep. (La.), 883; Hawkins vs. Hersey, 86 Mo., 394. 32 PIXTUKES. THE FACT THAT A MAN HAS A FREEHOLD ESTATE IN THE LAND, TO WHICH HE ANNEXES A CHATTEL WHICH IS HIS OWN PROPERTY, IS EVIDENCE THAT HE ANNEXES IT FOR THE PURPOSE OF ADDING TO THE PERMANENT VALUE OF THE LAND AND CONSEQUENTLY, THAT HE INTENDS TO MAKE IT A PART OF THE REALTY. THE FACT THAT A MAN IS A MERE TENANT FOR YEARS OF LAND, TO WHICH HE ANNEXES A CHATTEL WHICH IS HIS OWN PROPERTY, IS EVIDENCE THAT HE ANNEXES IT TO BE TEMPORARILY USED AS A PART OF THE REAL PROP- ERTY, AND CONSEQUENTLY, THAT HE INTENDS THAT IT SHALL REMAIN HIS PERSONAL PROPERTY AND NOT BECOME A PART OF THE REALTY." THE FACT THAT A FIXTURE IS LOOSELY ATTACHED SO THAT IT MAY BE READILY DETACHED WITHOUT SERIOUS INJURY TO THE FREEHOLD, IS EVIDENCE THAT IT WAS NOT INTENDED TO MAKE IT A PART OF THE REALTY. THE FACT THAT A FIXTURE IS SECURELY AND SUB- STANTIALLY ANNEXED SO THAT IT CANNOT BE DETACHED WITHOUT SERIOUS INJURY TO THE FREEHOLD, IS EVI- "Im Conrad ts. SaglnaTF Mining Co., 54 Slicli., 249, it appeared that Conrad had given the Mining Co. a 15 years of lease, of some wild land for mining purposes. The mining company erected on the land a number of cheap dwelling houses of a temporary char- acter for the use of their employes, and also erected solid brick and stone foundations upon which they placed large engines which were bolted down solidly to the ground. The mining company also placed large boilers connected with the engines in brick arches, built from the ground and bolted down in the most substantial manner. After working the mines for about ten years the mining company decided to abandon the mine, and claimed the right to remove the buildings and machinery. Conrad filed a bill for an injunction to prevent the removal of the buildings and machinery, claiming that their character and the manner of annexation made them a part of the realty. And it was held, that the circumstances showed that the mining company never intended to make them a part of the realty and that they remained personal property, and that the mining company had a right to remove them during the term of the lease. A comparison of this case with O'Brien vs. Kusterer, 27 Mich , 289, illustrates in a striking manner the progress of the law in enlarg- ing a tenant's right to remove fixtures. FIXTUEES. 33 DENCE THAT IT WAS INTENDED TO MAKE IT A PART OF THE EEAXTY." There is still one more circumstance -which the courts look to in determining the quality of a fixture. IE A FIXTTJRE IS MADE AND FITTED FOR USE IN A PAR- TICULAR BUILDING, SO THAT IT WILL BE USEFUL FOR THE PURPOSE TO WHICH IT IS ADAPTED IN THAT BUILDING AND NOT ELSEWHERE, THIS IS EVIDENCE THAT IT WAS INTENDED TO MAKE IT A PART OF THE REALTY. IF IT CAN BE EASILY REMOVED AND MADE EQUALLY USEFUL IN ANY OTHER BUILDING, THIS IS EVIDENCE THAT IT WAS NOT INTENDED TO MAKE IT A PART OF THE REALTY. The better way to illustrate the subject under discussion is to select and illustrate the Tarious phases in which it is pre- sented to the lawyer in actual practice. Let us take a case which involves Lot 10 in Block No. 4 of Williams' Subdivision of out-lot 56 of Addison's western addition to the City of Co- lumbus, Ohio. In 1890, the bare lot is sold by Williams, the owner of the Subdivision, to Benjamin Jones by a land con- tract. By the terms of the land contract, Jones pays one-fifth of the price down and is to pay the balance in four equal annual •^MeConnell -VB. Blood, 123 Mass., 47, ■was a case in which it was necessary to determine, as between a mort- gagee, and an assignee of the mortgagor, what part of the machinery in a shoe factory was part of the realty and what was personal prop- erty. And in this case the questions involved were determined by the solidity of the method of annexation, and also by considering whether what part of the machinery, which was easily removable, would be equally serviceable for the use to which it was adapted in any other building. It was held that "the engine and boiler, which were put In to supply the premises with power; the steam gauge which is essential to the safe use of the same; the water tank for supplying the building with water for general use; the steam pump connected therewith, and the shafting, are evidently designed as permanent additions to the realty, and could not be removed without seriously injuring the building for use." It was further held that the rest of the machinery consisting of a sole leather stripping machine; a sole leather splitting machine; a sole cutting machine; and other machines of like general character were personalty, although more or less securely attached to the building or to the shafting which was held to be a part of the realty. See also Chase vs. Tacoma Box Co. (Wash), 39 Pac. Rep., 639. 34 FIXTURES. payments thereafter, with the atipnlated interest The con- tract allows Jones immediate possession and to keep posses- sion so long as he complies with the terms of the contract. Jones having bought the lot for a homestead, goes on and builds a house. He makes no payments after the first, and the contract is consequently forfeited. The question arises whether the house is part of the realty or whether it is personalty and subject to removal by Jones, who, in the meantime, has bought the adjoining lot, to which he proposes to remove it. In this case the house has become a part of the realty, whether it is built on a brick or stone foundation, or simply set on posts.^* This is in accordance with the doctrine already stated. Jones being the owner (in equity) of the lot attaches to it the house, also his own property. The house becomes a part of the realty.^* This is because it is in accordance with the experi- ence of mankind that when a man buys a lot for a homestead and builds a house upon it he intends it to remain there perma- nently and therefore his intention makes it a part of the realty. But suppose that, instead of a contract to sell, Williams executes a lease of the bare lot to Jones for five years, and thereupon Jones goes on and erects a house upon it, does it become a part of the realty so that Jones is precluded from re- moving it during the five years of his term? In this case. "Miller vs. Waddingham, 91 Cal., 377; 11 L. R. A., 510. "In L.lte Ins. Co. vs. Cronk, 93 Micli., 49. it appeared that the Life Ins. Co.'s grantor sold Cronk 40 acres of land on contract. Cronk went into possession and immediately erected on the land a one-story frame dwelling, 20x26, In which he lived for two years. He then defaulted in his contract and removed the house to another piece of land. The Life Ins. Co. brought an action of replevin for the house, and it was held that under the facts of the case the dwelling was a part of the realty, and having been wrongfully dis- severed by the defendant, the plaintiff was entitled to recover. See also Kingsley vs. McFarland, 82 Me., 231; Milton vs. Colby, 6 Melc. (Mass.), 78. FIXTURES. 35 both of the tests are to be applied. Applying the first test, ac- cording to the conunon experience of mankind, it is not likely that a tenant for five years would build a house on the property demised with the purpose of making a present of it to his land- lord at the end of his term. Therefore, if he merely puts up a frame house on posts, which may easily be removed, it does not become a part of the realty.^' But if, on the other hand, he builds a brick house with a cellar on a stone foundation, the solidity and permanence of the structure indicates an in- tention that the house shall remain permanently, and conse- quently the house becomes a part of the realty. The student must understand that we are stating now in a general way those legal rules applicable to fixtures in cases where there is no express agreement binding upon all the par- ties interested. In other words the rules here laid down apply to cases of implied contracts. The law has no rules which prevent people from making such contracts as they choose, either expressly or impliedly, with regard to the status of a fixture, i. e., as to whether it is personalty or realty. WHATEVER THE PARTIES AGREE ITPON BETWEEN THEMSELVES IS BIBrDIUG." For instance, in the case first supposed, of a land contract, if there is an express agreement, that the vendee in the land contract may at his pleasure remove any building which he may erect upon the premises he may do so. In the second case, if it is agreed that any building which the tenants put upon the premises shall remain, this makes any erection a "Macdonough vs. Starbird, 105 Cal., 15; Nigro vs. Hatch (Ariz.), 11 Pac. Rep., 177. "Thus in the case of the Lake Superior Iron Oo. vs. McCann, 86 Mioh., 106, it was held that the parties having agreed that the property attached to the realty should remain personal property, the manner or permanency of its annexation was Immaterial. Sha-w vs. Shaw, 59 111. App., 264. 36 FIXTURES. part of the realty no matter how loosely or firmly it is at- tached.^^ Since in the vast majority of controversies which are de- termined in the courts, as to whether a fixture is real or per- sonal property, it is a matter of implied contract, it is not to be wondered at that there is a great apparent conflict in the decisions of the courts. The term implied contract is used in a somewhat broader sense than it is frequently used. By the term it is now intended what conclusion the courts will reach as to whether a fixture is personalty or realty as between the parties who have not come to any express agreement with re- gard to the particular matter in controversy.^^ It is pecu- "In Etandfortli vs. Jackson (Mass.), 22 N. S,, Rep., 634, it appeared that Jackson built some ice-houses on land owned jointly by himself and one Bardwell, under an agreement between himself and Bardwell that the ice-houses were to remain Jackson's individual prop- erty. Jackson and Bardwell leased the land to Handforth and in and by the lease sold the ice-houses to him. Afterwards they deeded the land to a third person, who took the deed with knowledge of the con- tents of the lease. Handforth, assuming that the ice-houses were part of the realty, and passed by the deed to the third party, sued Jackson for the value of the ice-houses. And it was held that by the express agreement of the parties the ice-houses were personal property and not part of the realty, and, therefore, they did not pass by the deed to the third party who took with notice of the agreement. "Walker vs. Schmidiel, 58 Md., 360. "In BroTrn -vs. Baldwin (Mo.), 25 PI. W ., Rep., 863, it appeared that Brown had erected a stave factory on land the title of which was at the time in dispute between Brown and Baldwin. The value of the factory and the machinery put into it was $32,000. The value of the land aside from the timber on it did not exceed ?200. Baldwin knew the factory was being built and took no steps to prevent It, but, on the contrary, said he wanted it to progress and run, and the question of title would be settled by him and Brown. Baldwin finally recovered the land from Brown in an action of ejectment. And, in a suit between the parties as to whether the stave factory was a part of the realty; it was held, that it was not, but that, under the circum- stances of this case, it remained personal property. The court said: "Considering the fact that it was placed there pending an honest dis- pute as to title, with the acquiescence of Pool, and the portable char- acter of such property, we violate no rule of law in holding that it was not a fixture; and, certainly, none of the equities in not giving Mrs. Baldwin property of the value of ?30,000, for which she has paid nothing, and whose removal will not injure her land." FIXTURES. 37 liarly a rule of implied contracts that they are construed ac- cording to what are called "equitable" principles. And by this is meant that instead of being determined by rigid and un- bending rules, every case is determined largely in the light of its own facts according to the justice of the case as between the parties. Where people make express contracts, and especi- ally if they are in writing, our law in construing the contract does not usually allow any enquiry beyond what meaning the law had affixed to the words used in the writing before it was executed; because ordinarily the law presumes that every man knows the law or, better, it treats him as though he did know the law. But in cases of implied contract it is difficult to impute to parties a contract in set terms and, also, to fix an exact construction upon this imputed contract and, in this way, reach what the law aims at, justice between the parties. Consequently, it results that in cases of implied con- tract there is a much greater apparent conflict in the decisions of the courts than in cases of express contracts, or to illus- trate this thought in concrete form the law with regard to promissory notes is vastly more exact and settled than the law with regard to fixtures. Upon a fuU consideration of the subject it appears that the general principles which we have stated are rather rules of evidence than unbending rules of law. In other words, in every case in which a dispute arises as to whether a fixture is real, or personal property, the question is more a question of fact than a question of law.^° Taking this to be the correct view of »In Allen ts. Mooney, 130 Masfs., 155, it appeared that Allen was executor of the •will of one Saunders and that Saunders held two mortgages on a dwelling house owned by one Dud- ley. After the execution of the mortgages, Dudley bought of Hooney on credit a portable furnace with the usual pipes and registers, and it was put into the dwelling house. Dudley did not pay for the furnace and while he remained in possession he permitted Mooney to take away 38 FIXTURES. the law, it helps us to see that what is said by many courts and authors to be the irreconcilable conflict in the decisions as to fixtures is rather apparent than real, since, generally, every case must be decided in the light of its own facts. It is a disputed question whether the rolling stock of a rail- way is to be regarded as personal or real property. In many states the question is determined by a statute or by a con- stitutional provision. In the greater number of the states roll- ing stock is personal property. In formulating the rule as to fixtures annexed by a tenant for years, it was said that such fixtures are regarded as per- sonalty, that is, they remain the personal property of the ten- ant and do not become a part of the realty and thus the prop- erty of the landlord. But this general principle is subject to this qualification: IF A TENANT DOES NOT BEHOVE HIS FIXTURES DUB- ING HIS TEBlff, THIS INDICATES THAT HE ANNEXED THEU, OB HAS ABANDONED THEK, WITH THE INTENT THAT THEY SHOULD BECOICE A FABT OF THE BEALTY AND HE CANNOT AFTEBWABDS CLAIM THEM AS HIS FBOFEBTY.* This rule, like other general rules, has its natural and rea- sonable exceptions. If the tenant is prevented from removing them during his term by the wrongful conduct of the landlord the furnace and some of the pipes and registers. Allen, as executor, sued Mooney for the converBion of the furnace and the pipes and reg- isters which he tools away. The case was tried before a judge without a Jury. The judge found that the furnace was personal property and never became a part of the realty. Upon a review of the case in the Su- preme Court it was held that the matter in dispute was so far a question of fact that the decision of the circuit judge could not be reviewed by the Supreme Court. The same doctrine was maintained in Turner vs. Wentworth, 119 Mass., 459, in which case the judge in the court below found that the portable furnaces had become a part of the realty. Pea vs. Pea, 35 Ind., 387; Voorhees vs. McGlnnis, 48 N. Y. 278* Campbell vs. O'Neill, 64 Pa. St., 290; Ambs vs. Hill, 10 Mo. Am>. 108 ' "Fuller vs. Brownell (Neb.), 67 N. W. Rep., 6. ' FIXTURES. S9 the rule has no application. If the rule applied in such a case, the landlord would be allowed to profit by his own wrongful conduct, a thing which our law never permits. And, also, the rule only applies where the tenant's term expires at a fixed time. If the expiration depends upon a contingency, the ten- ant is allowed a reasonable time after the expiration of the term in which to remove the fixture."^ "Wlttenmeyer vs. Board of Education, 10 Ohio Clr. Ct. Eep., 119. PART III. CHAPTER I. ESTATES. Since real property is essentially so much space measuring from the center of the earth upward, which can be made avail- able for the uses of and subjected to the exclusive dominion of the individual man, it is in its nature immovable and inde- structible. There can be no ownership, and therefore no prop- erty, in that whicb cannot be subjected to the exclusive con- trol of an individual. Therefore, for example, there is no prop- erty in the oceans, for space in them cannot be enclosed, nor can visible boundaries be established. This is analogous to the doctrine of our law, that there is no property in wild ani- mals, ferae naturae, because they are not subject to the ex- clusive dominion of an individual. Bearing in mind the imperishability of real property, and remembering that man is mortal, it is evident that there must be frequent changes in the ownership of land. It would naturally be expected that in many cases different individuals would have different interests in land at the same time, and this we find to be true. One person may own it for a term of years, another for his life, his right to the enjoyment of it being postponed until the expiration of the term of years, and ESTATES. 41 still another may own it perpetually, his right to the enjoy- ment of it being postponed until the death of the one who has a right to the enjoyment of it during his life. There is nothing to prevent these three ownerships or interests subsisting at the same time, for, when one interest expires, it is certain that the land will be there, ready for the next taker. But, in the case of personal property which is both movable and perishable, if such interests existed, there could be no certainty that when one right expired there would be anything left for the one next in succession. This is one reason why the principles which will be treated under the head of estates are peculiar to the law of real property. Again, considering the uncertainty of human life, it often occurs in such a case as we have suggested for the purpose of illustration, that, when the right of the first or second in order of succession to the enjoyment of the real property has expired, the next taker is dead. Such a contingency may have been provided for, and, that in such a case, a different person shall take the place of the deceased in the order of succession. The right of this last named in such a case depends on which of two future events shall happen first, i. e., whether the term or the person next in succession shall expire first. The value of the provision made for this last person depends therefore on an uncertainty or contingency, and so it is called a contingent interest. Many other situations might be stated which would still further illustrate the various natures of interests in real property, but, as these must all be discussed and explained under their separate classifications, it is conceived that enough has been said to enable the student to understand the definition of the word "estate." 42 ESTATES. IN THE LAW OP REAL PBOPEBTY, THE WOBD "ESTATE" IS USED TO DEHOTE THE QUANTITY AND QUALITY OP AN INTEREST IN REAL PROPERTY.' In this definition, the word "quantity" is equivalent to du- ration, i. e., whether the right or interest is for years, or for life, or perpetual. The word "quality" calls especial attention to the question whether the interest is contingent, as this has been explained, or vested, which is the opposite and correlative of contingent, and, in the case of a vested estate, whether it is absolute or conditional. In taking up the subject of estates we will consider first the quantity, second, the quality of estates. The latter division we will discuss under the following heads (a) Time of enjoy- ment of estates, (b) Number and relation of tenants, (c) Manner of enjoyment, (d) Equitable estates. Before taking up the discussion of the particular estates, it may be well to briefly call the student's attention to the system out of which our law of real property springs. THE FEUDAL SYSTEM. Our real estate law is derived from the common law of England, which, in turn, is founded on the feudal law, that iron system which attained its vigor and probably had its birth in the days when the Boman Empire tottered and fell beneath the attacks of the western invaders. Originally all land was allo- dial — that is, the possessor had absolute dominion over it, not recognizing any superior to whom duties or services were due in connection with it. He might transfer the land by gift, sale 'In Robertson vs. Vancleave, 129 Ind., 217; 15 L. R. A., 68, the court defines an estate as follows: "An estate in land is the degree, quantity, nature or extent of Interest which a person has in it." ESTATES. 43 or devise; it was liable to be taken for the satisfaction of his debts, and on his death was divided among his heirs. But this simple and natural method was completely reversed under the feudal system. As the invading tribes moved westward, all the land in their newly acquired territory was appropriated by the king or military chieftain, who parcelled it out among his followers as a reward for their services in war. He who thus granted the land was called the lord, and the recipients his vassals or tenants. Those who received their lands directly from the chief lord might in turn allot it among their own followers, who then became vassals to their immediate donor, while the latter assumed as to them the relation of lord. In return for the use of the land and the lord's protection, the tenant was required to follow him in his wars and to take an oath of fealty to him, swearing to faithfully defend his lands, his title and his person. Upon taking possession of the land, he was further required to do homage to the lord, which con- sisted in "openly and humbly kneeling, being ungirt, uncovered and holding up his hands both together between those of the lord, who sat before him, and there saying: 'I do become your man from this day forth, of life and limb and earthly worship, and unto you will be true and faithful and bear your faith for the tenements that I claim to hold of you, saving the faith that I owe to our sovereign lord the king,' and then he received a kiss from his lord." At first the land was held strictly at the will of the lord who might at any time forfeit the vassal's estate if he considered that his services were not faithfully performed. The only security the tenant had was the con- science and honor of the lord — a very precarious one in many cases. Gradually, however, lands came to be granted for one or more years, and then for the life of the feudatory. Fre- quently, by the favor of the lord, they were renewed to the 44 ESTATES. sons of the former possessor, and so by degrees feuds at last became hereditary. The feudatory, however, could not alien nor devise his estate without the consent of the lord. Such is an outline of the system which existed, with slight variations, among all the Teutonic tribes and which was established in England in all its rigor by William the Con- queror. There are, it is true, traces of a feudal tenure among the Saxons, but if it existed at all it was in a very imperfect form. The system was essentially military and was well cal- culated to preserve by force what had been forcibly acquired, as was proven by the tenacity with which these tribes retained their conquests; but as conditions changed and a more settled mode of life began to prevail, many of its features became inapplicable to the new state of affairs, and this and the abuses grafted upon it by the subtleties of the Norman lawyers con- verted it into a terrible engine of oppression. Thus, it became a principle of law that all lands were held mediately or imme- diately of the king, while the tenant was entitled only to the present enjoyment; that if, therefore, upon the tenant's death, the heir wished a continuance of the king's favor, it was only reasonable that he should pay for the privilege of succeeding to the estate. It was also held that the lord was entitled to have a tenant upon the land who could render service as a soldier, and that if the heir was incapable, by reason of his youth, of rendering such service, the lord should have the use of the land during his minority, to defray the cost of providing a sufficient substitute; or, if the heir was a woman, that the lord should have the disposal of her hand in marriage. The tenant was also required to furnish sums of money (aids) to the lord upon certain emergencies, as when the lord was taken prisoner, when he made his son a knight or when his daughter was married. ESTATES. 45 Absolute restraint from alienation was one of the most striking characteristics of the feudal system. But such a rule, contrary to the very nature of property, was bound to yield to the Anglo-Saxon love of independence. Its first mitigation was the power of alienation when the lord consented. Then followed successively the right to alien when the tenant took by purchase and not by descent, and when the grant was to him and his assigns. By the lime of Edward I., the restriction had virtually disappeared through the practice of subinfeuda- tion and the enactment of the statute Quia Emptores, and in 1660 the last vestige of restraint, fines upon alienation, were formally abolished by the statute 12 Car. Oh., 24. The services required of the tenant for the use of the land were of two kinds — ^free service and base service. Free services were such as it was considered not unbecoming a freeman to perform — ^for instance, to follow the lord in his wars. Base services were such as became only peasants or persons of low rank, such as ploughing the lord's fields. Services might also be certain, such as the payment of an annual rent, or uncertain, such as military duty. When the service was free and certain and yet not military, the tenant was said to hold by free and common socage. Originally, where knight service was required, the tenant was obliged to personally attend the lord ia his wars; but in the reign of Henry 11., the practice arose of permitting him to send- a substitute or pay a sum of money in lieu of personal service, and this practice quickly became the general rule. Owing to these various changes and the altered conditions of society, the virtues of the feudal tenure were gradually eliminated, and only its evils remained. As the services which the lord might require of his vassal were uncertain in their extent, the compensation which he might demand in lieu of 46 ESTATES. services was also uncertain and might be increased at his pleasure. The lord's rights of relief, aids, wardship and marriage were made a cloak for robbery and extortion. It is said that at one time the wealthy heiresses of the kingdom were inventoried like the slaves on a plantation. The young heir, after a long minority, frequently found his patrimony wasted and almost worthless through the lord's rapacity, and even then was obliged to pay a "relief" for the privilege of tak- ing what remained. The oppression and abuses of the great landlords finally became so great that in the reign of Charles n. tenure by knight service and all its incidents were abolished and landed property relieved of its intolerable burden. Although no such tenures exist in this country (except in the case of leasehold estates), yet we are in this somewhat anomalous position — that while all land is allodial, the nomen- clature of the old system continues to be employed, and its principles are still applied where they do not conflict with the spirit of our own jurisprudence. When our ancestors settled the American colonies they brought with them so much of the English common law and the statutes enacted in amendment thereof as was applicable to their new situation and circum- stances. A large portion of the law, relating to matters which were peculiar to the political and social conditions of the Old World and had no counterpart in the New, was of course inapplicable to the changed condition of the colonists and has never been recognized as a part of our jurisprudence. Notwith- standing this exception, however, the presumption is that the common law is the same here as it is in England, and the inapplicability of the latter must be shown before it will be rejected. CHAPTER II. FREEHOLD ESTATE OF INHERITANCE. Estates as to their quantity or duration are divided into estates of freehold, and estates less than a freehold. Estates of freehold are again divided into freehold estates of inheri- tance and freehold estates not of inheritance. ESTATES IN PEE SIMPLE. Formerly the word "fee" represented an estate in land held of a superior in consideration of services to be rendered. The term now means an estate of inheritance. When the word "fee" is used without any qualifying adjective, it means an estate of inheritance, free from conditions or limitations. The use of the words "fee simple" or "fee absolute" indicate the same un- limited and unconditioned estate. AN ESTATE IIT PEE SIMPLE MAY, THEBEFORE, BE DEEINED AS AN ESTATE OF HTHEBITANCE, UNLIMITED AND TTNCONDITIONED. It is the greatest estate known to the law; for it entitles the owner to hold the land absolutely and unconditionally to himself and his heirs forever; it permits and conveys an abso- lute dominion over the real property in so far as immovable property admits of the same. The owner may alienate it to anyone he pleases; he may devise it; he may commit unlimited waste upon it, and he may make any use of the land he pleases not prohibited by law, providing, of course, he does not invade the legal rights of ad- joining owners or other persons. 48 FREEHOLD ESTATES OF INHBKITANCB. THE RIGHT TO ALIENATE IS ONE OF THE ESSBNTIAI, INCIDENTS OF AN ESTATE IN FEE SIMPLE. A grantor cannot create an estate in fee simple in his grantee and attach conditions inconsistent with this essential right of alienation. Thus, a condition in a grant of a fee which restrains all power of alienation is void, as inconsistent with the nature of the estate granted. "It is absurd and repug- nant to reason that he that hath no possibility to hare the land revert to him should restrain his feoffee in fee of all his power to alien because his whole interest is out of him, so he hath no possibility of reverter, and it is against trade and trafSc and bargaining and contracting between man and man."^ The effect of a condition limiting all power of alienation for a limited period, or preventing alienation to certain persons, will be discussed hereafter.^ The other incidents of an estate in fee simple are as fol- lows: The right of dower, curtesy and descent, and a liability to be taken to satisfy the debts of the owner. None of these incidents require explanation at this time. AN ESTATE IN PEE SIMPLE, AT THE COMMON LAW, AROSE ONLY WHEN AN ESTATE WAS CONVEYED TO A GRANTEE a.ND "TO HIS HEIRS" FOREVER. Littleton states the rule as follows : "A tenant in fee simple is he who hath lands or tene- ments to him and his heirs forever. For, if a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his purchase, 'to have and to hold to him and his heirs,' for these words, "his heirs,' make the estate of 'Mandelbaum vs. McDonald, 29 Mich., 77. '^Truesdell vs. Lehman, 47 N. J. Eq., 218. See Sisson vs. Donnelly, 36 N. J. L., 432. Bdwardsville R. R. Co. vs. Sawyer, 92 111., 377. FREEHOLD ESTATES OF INHERITANCE. 49 intLeritance. For, if a man purchase an estate by these words: 'to have and to hold to him forever,' or by these words: 'to have and to hold to his assigns forever,' in these two cases he hath but an estate for life, for that there lack these words: 'his heirs,' which words only make an estate of inheritance in all feoffments and grants." To this common law rule there are a number of exceptions. I. Where land is devised, if it appears from the whole context of the will that the testator intended that a fee simple should pass, a fee simple will pass. This rule has been stated by the Supreme (Dourt of Pennsylvania as follows: "In con- struing a will, although a fee is not given by the devising clause, yet, if there is anything on the face of the will to indi- cate an intention to give a fee, any words equivalent to words of perpetuity, anything in the four comers of the will from which a fair and demonstrable inference can be drawn of an intention to give a fee, to the disherison of the heir, a fee will n. A conveyance to a corporation aggregate, the word "heirs" need not be used, for a corporation has no heirs.° HI. A conveyance to a trustee, where the nature of the trust is such as to require a fee, the trustee will take an estate of inheritance, although the word "heirs" is not used.* TV. In the case of a division of real property between joint tenants or tenants in coparceny, if a release is made by one tenant to another of a separate portion, the latter will take 'Campbell vs. Carson, 12 S. & R. (Pa.), 54. See also Godfrey vs. Humphrey, 18 Pick. (Mass.), 537. "Wilcox vs. Wheeler, 47 N. H., 488. Emerson vs. Mooney, 50 N. H., 320. 'North vs. Philbrook, 34 Me., 542. Ewing vs. Shannahan, 113 Mo., 188. This rule does not extend to a conveyance by a tenant in common to a co-tenant. 50 FREEHOLD ESTATES OF INHERITANCE. a like estate as he previously had in common with the others, even though the word "heirs" is not used/ V. In case of a legislative grant the word "heirs" is not necessary to convey an estate in fee simple.' VI. Where reference is made in a conveyance to another deed which indicates that the estate conveyed is one of inherit- ance, the word "heirs" is not necessary. Thus, where one endorsed on a deed that he conveyed his right, title and in- terest in and to "the within deed" it was held that the word "heirs" used in the deed referred to, became a part of the con- veyance and that an estate in fee simple was conveyed.* The rule requiring use of the word "heirs" the student will understand is the common law doctrine, the reason for which grew out of the feudal system. Under that system a grant was made in consideration of services to be rendered by the grantee, and, inasmuch as the services were of a personal nature, in which the skill and ability of different persons might vary, the grant as understood to be limited to the life of the grantee, unless it was expressly agreed that it should go to his heirs.^" The reason of this rule has ceased, and it has been generally abrogated by statute. In some States the rule has not been recognized as part of the common law.^^ The student will get an idea of the legislation on this sub- ject from the New York statute, which has been followed by the legislatures of many States. It reads as follows: "The Tlector vs. Waugh, 17 Mo., 13. 'Jackson vs. Housell, 17 John., 281. Proprietors, etc., vs. Permit, 5 N. H., 280. 'Lemon vs. Graham, 131 Pa. St, 447. "2 Blk. Com., 108. ""This rule which would destroy the plainly expressed contract of the parties in the present case, is not adapted to our institution or to the condition of things in this State, and it never became a part of the law in this State." Coll vs. Lake Co., 54 N. H., 242. FREEHOLD ESTATES OF INHERITANCE. 51 term 'heirs' or other words 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 hereafter to be executed shall pass all the estate of the grantor and testator, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied in the terms of the grant." Under the common law rule, unless the word "heirs" was used, a life estate only passed; under the statutory rule as enacted in many States, an estate in fee passes where the grantor is seised of it, unless the contrary appears. In some of the States the use of the word "heirs" is only done away with in wills. The student ought to consult the statutes of his own State on this subject. ESTATES IN FEB TAIL. At the common law, it early became a practice on the part of the grantors (who, as a rule, were the nobles and the great landlords), to attach conditions to their grants, for the purpose of retaining the title to the land in the family of the grantor or his heirs, by restricting an alienation by the grantee. These conditions usually provided that if the grantee died without particular heirs, the estate should revert to the grantor. Thus, an estate was granted to a man and the heirs of his body; in which case if one died without direct (lineal) descendants, the estate reverted to the grantor, even though he might have collateral heirs, as his sisters or brothers. So, an estate was sometimes granted to a man and the heirs male of his body, which excluded from the succession both the collateral heirs and lineal female heirs, and the estate reverted to the grantor if there were no lineal male heirs. These estates at the common law were called conditional fees. 52 FREEHOLD ESTATES OF INHERITANCE. A CONDITIONAL FEE AT THE COMMON LAW IS AN ESTATE OF INHERITANCE LIMITED TO PAK.TICULAB, HEIBS OE THE DONEE."^ The courts have always looked with jealousy upon re- straints upon alienation, and we find this tendency majiifested in the decisions of the early judges. By a subtlety the judges were able to overcome the restraint on alienation which it evidently was the intention of the donor to impose.^^ They ruled that a grant of land with the condition already stated, created an estate in fee simple on condition that the grantee had certain heirs, and that upon the birth of an heir of the class limited, the condition was performed and the estate for the purpose of alienation became absolute and unconditional, and that the grantee, on the birth of the heir of the kind lim- ited, might alien the land and cut off the donor's possibility of reversion. If the grantee did not convey the land on the birth of the issue, and afterwards died without leaving any issue of the kind limited, the estate would then revert to the donor. As a rule, the grantee of the estate took the first op- portunity he had to alien and, by conveying the land to a third person and taking a re-conveyance back to himself, acquire a title to the property in fee simple. The barons and landlords in the reign of Edward I., for the purpose of preventing such alienation by the donee, procured the passage by parliament, of an act which provided that the donee could not disinherit his issue contrary to the intent of the donor, and that the estate should remain after the death of the donee to his issue, or to the donors if the grantee or "4 Kent's Co., 11. "Lord Mansfield, in speaking of these decisions, says: "It was by subtlety in odium of perpetuity and for the special purpose of alien- ation but for no other." Buckworth vs. Thirkell, 3 B. & P., 652n. FREEHOLD ESTATES OF INHERITANCE. 53 his heirs failed in the issue of the kind limited. This statute is known as "De Donis Conditionalibus." Under it and the de- cisions construing it, the donee no longer took a conditional fee simple, but an interest which became known as fee-tail. This interest the donee had no right to alienate, and it de- scended to his heirs in the manner limited by the grantee. AN ESTATE IN EEE TAIL, IS AN ESTATE OF INHER- ITANCE ARISING trNDER THE STATUTE DE DONIS, WHICH IS SO LIMITED THAT IT MUST DESCEND TO CERTAIN HEIRS OF THE GRANTEE, SO LONG AS THEY CONTINUE, AND WHICH, ON THE FAILURE OF SUCH HEIRS, REVERTS TO THE DONOR OR HIS HEIRS. Under this statute the conditional fee was cut in two, and the donee took an estate in possession and the donor retained an estate in reversion which he might grant to another. The effect of this statute was to stop all alienation of con- ditional fees. Its results were soon felt; the parent was unable to cut off his children and they became independent; creditors were unable to take the land for debt, and titles became inse- cure by reason of hidden entails which defeated the purchaser of the property purchased. The people were unable to secure relief from this eril system from parliament, because it was dominated by the landlords and nobility. Belief finally came from the courts, which again by subtleties enabled the tenant to bar the entail. This was done in two ways; by fines and by common re- coveries. Estates tail have been so generally abolished that in a book of this size it is not expedient to discuss at any length the incidents and nature of this estate; but for the purpose of familiarizing the student with terms which he will sometimes meet, we call his attention to the subdivision of estate tail. Estates tail are of two kinds; general and special. A tenancy in tail general is created where land is given to a man 54 FEBEHOLD ESTATES OF INHERITANCE. and the heirs of his body without any other limitation, in which event his issue in general by any wife will inherit. A tenant in tail special is where land is given to a man and to certain heirs of his body, to exclnsion of other general heirs. Thus, an estate in tail special was created when land was given to a man and the male heirs of his body (called an estate in tail male) or to the heirs female of his body (called an estate tail female) or where it was restricted to his issue by his present wife. After the possibility of issue ceased, the tenant in tail had a life estate and was called a tenant in tail after possibility of issue extinct. In the colonial times estates taU existed in this country. On the principle already stated that the law abhors a per- petuity, they have been abolished in nearly all the States. In some States the statute de donis is not recognized as a part of the common law. In many States where the estate is abolished by statute, it is provided that a grant of land with conditions which would formerly create an estate tail, now passes an estate in fee simple.^* In other States, the donee under sueh circumstances takes a life estate with remainder in fee to the 4>ersons limited in the grant.^^ In a few States where the estate exists, it can be easily barred; for instance, in Massa- chusetts, it may be barred by a deed.^' "Wheatly vs. Barker, 79 Ga., 790. "Lehndorf vs. Cape, 122 III., 317. Wheart vs. Cruser, 49 N. J. L., 475. "Coombs vs. Anderson, 138 Mass., 376. CHAPTER III. FEEEHOLD ESTATES NOT OF INHERITANCE LIFE ESTATES. A LIFE ESTATE IS AN ESTATE WHICH IS MMITBD IN ITS DITRATION TO THE LIFE OF THE TENANT OB OF SOME THIBD PERSON OR PERSONS, OR AN ESTATE WHICH MAY ENBXTRE FOR LIFE, BUT WHICH MAY BE DETERMINED EARLIER BY THE HAPPENING OR NON-HAPPENING OF AN UNCERTAIN EVENT. Life estates are of two kinds, — conventional and legal. Conventional life estates are created by the acts of tlie parties; legal life estates are those created by operation of law. The latter estates are estates during coverture, curtesy, dower, estates tail after possibility of issue extinct, and homestead. CONVENTIONAL LIFE ESTATES. Conventional life estates are of three kinds, — estates for the life of the grantor, estates for the life of the tenant, and estates for the life of some third person or persons. Estates of the last kind may be for the life of some single third person, or for the joint lives of a number of persons, or for the life of one of a number of persons who lives the longest. "Where the tenant holds the property for his own life, be is called a tenant for life; where he holds for the life of some third per- son, he is called a tenant pur autre vie; and the person on whose life the estate is limited is called the cestui qui vie. An estate for the life of the tenant terminates on his death; an estate pur autre vie does not terminate on the death of the tenant, but on the death of the person upon whose life it is 66 56 FREEHOLD ESTATES NOT OF INHERITANCE. limited, which may be before or alter the death of the tenant. When the estate is for the joint lives of two or more persons, it terminates on the first death of one of the designated per- sons, bnt if the estate is created to endure during the lives of persons named and their survivor it continues until the death of the last one. At the common law, if the tenant for the life of another died before the cestui qui. vie, the estate continued, but it did not descend to the heirs, for it was not an estate of inherit- ance. The interest of the deceased could be taken by the one who first took possession, and he was called a general occupant. Statutes were subsequently passed in England enabling the heirs to enjoy the balance of the life estate as special occu- pants. In this country, as a general rule, the statutes provide that if the tenant for the life of another dies before the cestui qui vie, the interest of the deceased passes to the administra- tor, the same as the other personal property; in other States, the statutes provide that such an interest descends to the heirs. The foregoing statement is made on the supposition that the tenant did not devise his interest in the land; for, in all States, the tenant pur autre vie may dispose of his interest by will. So, if the tenant pur autre vie conveys the property, his grantee will hold the property until the death of the cestui qui vie, and unaffected by the death of his grantor. Conventional life estates, as indicated by the word "conven- tional," arise only out of the agreement of the parties, and can only be created by a deed or devise. At the common law, no particular words were necessary to create a life estate; for, as we have seen, the grant of an estate without the use of the word "heirs" created a life estate. In a number of States, as has been stated, the common law rule is changed, and a grantee in a deed which does not contain FREEHOLD ESTATES NOT OP INHERITANCE. 57 the word "heirs" takes the entire interest of his grantor, unless the grant is limited. In these States, therefore, if it is in- tended to create a life estate by a grantor having an estate greater than a life estate, the grant should be expressly limited to the life of the grantee or of some other person or persons, as desired. In a number of instances, it has been held that a life estate may arise by implication. Thus, where land was devised to the heirs of the testator after the death of B, it was held that B took a life estate by implication.^ A life estate may also arise where one having a freehold estate of inheritance conveys it to another subject to a life estate in the grantor or some other person. Originally, the term "life estates" included only those es- tates wliich were for the life of a certain designated person or persons, but it has been extended to include those estates which may continue for life, but the duration of which is un- certain. Thus, a grant of land to a woman, to be held by her "as long as she shall remain a widow" was held to create a life estate. So, a grant of land, to be held by the grantee as long as he should use it for a certain purpose, or until he can, out of the rent or profits, pay off the debt of the grantor, will create a life, and, therefore, a freehold, estate^. The rights and liabilities of a conventional life tenant are as a general rule the same as a life tenant whose estate arises by operation of law. We will, therefore, after briefly dis- cussing the legal life estates, discuss the general rights and liabilities of all life tenants. 'Barry vs. etelby, 4 Hayn (Tenn.), 229. 'Kurd vs. Chishing, 7 Pick., 179. 58 FREEHOLD ESTATES NOT OF INHERITANCE. LEGAL, LIFE ESTATES. All of the legal life estates, with possibly one exception, arise out of the marital relation. In view of this fact, it may be well to briefly discuss the effect of marriage on the property rights of the husband and wife at the common law. While it is true that the common law rules, imposing disa- bilities on married women and conferring rights on the hus- band have been generally abolished, or so limited as to be of little force, yet the student ought to hare clear understanding of the common law doctrine in order that he may be able to understand the purpose of, and determine the extent and scope of the statutes relating to this subject. In many of the States, for instance, the statutes do not en- able the wife to make all contracts; but the common law disa- bility has only been removed, to the extent that she may make contracts with reference to her separate property. Under such statutes, the wife's capability to contract in matters not relat- ing to her separate property, must be determined and con- trolled by the common law. It was one of the fictions of the conmion law, that by mar- riage the husband and wife became a legal unit; the legal exis- tence of the wife became merged in the husband; she took Ms name and became civilly dead. From this fiction sprang all the disabilities of a married woman. She became incapable of making a valid contract and could not sue or be sued in her own name. The common law not only imposed disabilities on the wife, but, as a result of its doctrines, the marriage operated as a gift to the husband of much of the wife's property. The husband became the absolute owner of that part of his wife's personal property, which was reduced to possession during coverture and became the absolute owner of her chattels real, such as FREEHOLD ESTATES NOT OF INHERITANCE. 59 estates for years^ etc., and as such absolute owner miglit mort- gage or sell them as he pleased. If, however, the husband died without disposing of the wife's chattels real, they again belonged to the wife. In the land of which the wife was seised of a freehold estate, the husband became seised jointly with the wife of a freehold estate, in her right,' and, by virtue of his estate, be- came entitled to the rents and profits and could use and occupy the land during coverture. The husband's right in land of which the wife was seised of a freehold, continued only during coverture. The husband could dispose of his estate; and it was subject to be taken to satisfy his debts. The husband, of course, could not create any greater estate in his grantee than the estate he enjoyed. For instance, he could not grant any right in her land which continued after the wife's death. On the death of the husband, the wife's rights to the profits and use of the land revived unaf- fected and clear from any acts of the husband. This estate which the husband had in his wife's freehold lands was known as an estate by coverture. The harshness of the common law rule was relieved some- what by the court of equity which very early preserved to the wife property which had been settled on her "for her sole or separate use." Statutes have generally, if not universally, abolished or limited the estate by coverture, and, as a general rule, a mar- ried woman is entitled to and may manage and control her own property, the. same as a feme sole. At the common law if, during the wife's life a child was born, alive and capable of inheriting her property, the hus- •Foster vs. Marshall, 22 N. H.. 491. Babb vs. Perley, 1 Me., 6. 60 FREEHOLD ESTATES NOT OF INHEEITANCE. band's right in his wife's inheritable freehold land was in- creased so that he might use and enjoy the land, not only dur- ing coverture, but for his own life. This increased right of the husband, resulting from the birth of issue, was not supposed to rest on any moral foundation. It was, therefore, called an "estate by curtesy," or an "estate by the curtesy of Eng- land." ESTATES BY OUBTESY. AN ESTATE BY CURTESY IS THAT ESTATE WHICH A HUSBAND HAS IN" LAND OF WHICH HIS DECEASED WIFE WAS SEISED DURING COVERTURE OF A FREEHOLD ESTATE OF INHERITANCE PROVIDING LIVE ISSUE, CAPABLE OE IN- HERITING THE WIFE'S ESTATE, WAS BORN DURING THE LIFE OF THE WIFE. The estate of which a husband is seised by reason of the coverture is in the wife's right; but, after the birth of issue, if the other essentials to an estate by curtesy exist, the hus- band has an estate in his own right. The former confers on him the right to the profits during coverture; the latter confers the right to the profits of the land for his own life, irrespective of the life or death of such issue, or the life or death of the wife. It is not our purpose to discuss at any length the nature and incidents of this estate, for it has been abolished in so many States and so limited in others by statute, that it is im- possible to do more than point out to the student the common law essentials and refer him to the statutes and decisions of his own State for the modifications and limitations of the estate as it existed at common law. At the conmion law, in order that an estate by curtsey may arise by operation of law, the following essentials must exist: FREEHOLD ESTATES NOT OF INHERITANCE. 61 1. THERE MUST DB A VALID MARRIAGE. If the marriage is valid according to the laws of the place where it is contracted, it is valid everywhere; if the marriage is invalid at the place where made, it is invalid everywhere.* As a general rule, marriage is regarded as a civil contract; so that an agreement between a man and woman to assume toward each other the relation of husband and wife, followed by cohabitation as man and wife, constitutes a valid marriage without any ceremony." In England and in a few of the States it has been held that a ceremony is necessary to constitute a valid marriage.* A void marriage being of no effect, cannot confer any rights upon the alleged husband; if the marriage is not void, but merely voidable, the husband is entitled to curtesy, unless the marriage is decreed to be void during the life of the wife by a court of competent jurisdiction. 2. THE WIFE MUST HAVE BEEN SEISED, IN PACT, DURING CO- VERTURE OF AN ESTATE OF" INHERITANCE. Seisin is of two kinds; seisin in deed or fact and seisin in law. Seisin in deed or fact is the actual possession of a freehold estate; seisin in law is the present right to possession without an actual possession. The reason of the rule requiring an actual seisin of the wife seems to be that at the common law, livery of seisin was necessary to the transfer of a freehold estate by deed and an entry was necessary to i)erfect the title, and if the wife failed to enter, or the husband for her, there was no actual seisin' *Hutchins vs. Kimball, 31 Mich., 126. 'Meister vs. Moore, 96 U. S., 76. Peet vs. Peet, 52 Mich., 464. ■Commonwealth vs. Munson, 127 Mass., 459. Classen vs. Classen, 57 Ind., 510. 62 FREEHOLD ESTATES NOT OF INHEEITANCB. and she could not acquire an mheritable estate, and not hav- mg an estate of inheritance, there was nothing remaining after her death, which her issue could inherit.'' The application of this rule prevented the estate of curtesy arising in land in which the wife had a reversion or remainder, expectant upon a freehold estate, which did not terminate dur- ing the life of the wife.* If the wife's reversion or remainder was dependent upon an estate for years which was a mere chattel interest, the possession of the tenant was deemed to be hers, and the hus- band was entitled to an estate by the curtesy, even though the estate for years did not terminate during the life of the wife.^ As a general rule, in this country a present right to pos- session on the part of the wife where there is no adverse pos- session, is suflcient to entitle the husband to curtesy, if the other essentials exist.^" And in some States, if the wife is seised in law, adverse possession will not prevent curtesy at- taching.i^ The estate of which the wife is seised must be a freehold of inheritance," for a life estate would terminate on the death of the wife, and her heirs could not possibly inherit, which is an essential since "tenancy by curtesy is an excrescence out of the inheritance."^^ The right to curtesy exists in the wife's equitable, as well as her legal estates, where the trust is one of inheritance and the wife is equitably seised of same; but curtesy does not at- TLiessee of Borland vs. Marshall, 2 Ohio St., 308. 2 Blk. Com., 128. 'Todd vs. Oviatt, 58 Conn., 174; 7 L. R. A., 693. •Robertson vs. iStevens, 36 N. C, 247. "Baker vs. Oakwpod, 49 Hun., 416. "Borland vs. Marshall, 2 Ohio St., 308. Bush vs. Bradley, 4 Day, 298. ■^Bigley vs. Watson, 98 Tenn., 353 ; 38 L. R. A., 679. "3 Bac. Abr., 11. PBEBHOLD ESTATES NOT OF INHERITANCE. 63 tach. to land held in trust by the wife, ^* neither does curtesy attach to those equitable estates of the wife where the inten- tion of the party granting or devising the estate was to exclude curtesy, if such intention is expressed in the instrument creating the estate.^^ It is not necessary that the seisin of the wife should exist daring the life of the issue; it is sufficient if she is seised at any time during coverture. Thus, if issue is born and dies and sub- sequently, during coverture, the wife becomes seised of an estate of inheritance, the husband, on the death of the wife, is entitled to curtesy.^* 3. ISSUE CAiPABLE OF INHERITING THE WIFE'S ESTATE MUST BE BORN ALIVE DURING THE LIFE OF THE "WIFE. The child must be born alive; but even if it dies immediate- ly after birth, curtesy attaches. If it tries to breathe after being fully delivered from the mother, it is deemed to be alive, even though the naval cord is not severed and there is no Independent circulation.^^ The child must be born during the life of the wife; if the child is born after the death of the mother by means of the Oaesarean operation, curtesy does not attach.*' The issue must be capable of inheriting; thus, if the wife holds in estate taU female, the birth of a male child will not entitle the husband to curtesy. It is not necessary that the birth of the child and the seisin of the wife should be concurrent. If the child is born and dies, the husband's curtesy will attach not only to all property of "McKee vs. Jones, 6 Pa. St., 425. '"McTigue vs. McTigue, 116 Mo., 136. "Templeton vs. Twitty, 88 Tenn., 595. "GofE vs. Anderson, 91 Ky., 303; 11 L. R. A., 825. "Witham vs. Perkins, 2 Me., 400. 64 FEEEHOLD ESTATES NOT OF INHEKITANCE. wife of which she was seised at the time of the birth, but to all property of which she becomes seised after its death.^* In a ntmiber of States the statutes provided that the birth of issue is not necessary in order that curtesy may attach.^o On the birth of the issue the husband becomes seised in his own right, for life, of a vested freehold estate in all prop- erty of which the wife is then seised of a freehold estate of inheritance, and such estate cannot be divested by act of the wife, for she becomes on creation of the life estate in her hus- band, merely the owner of an estate in remainder.^i The hus- band's estate at this time and before the death of the wife is known as curtesy initiate. This estate, like other life estates, may be conveyed by the husband, and is subject to his debts, even during the life of the wife, and he has in general the same rights as other life tenants. In some States it has been held that the estate vests on the birth of issue, and that it cannot afterwards be affected by acts of the legislature.^^ In some of the States, either by express statute or by judi- cial decisions under the married women's acts permitting the wife to control her own property, the estate by curtesy initiate is not regarded as vested on birth of issue, but is a mere con- tingent estate, dependent upon the husband's survival of the wife; and in these States the estate may be abolished or modi- "Templeton vs. Twitty, 88 Tenn., 595. ""This is the rule in Pennsylvania, Wisconsin, Ohio and Nebraska. ''Stewart vs. Ross, 50 Miss., 776. Rouse Est. vs. Directors of Poor, 169 Pa. St., 116. So it was held in Illinois that curtesy initiate is a vested estate which cannot he destroyed by legislation which takes efEect after the estate comes into existence. McNeer vs. McNeer, 142 111., 388; 19 L. R. A., 256. Contra Alexander vs. Alexander, 85 Va., 353; 1 L. R. A., 125. FREEHOLD ESTATES NOT OF INHBKITANOB. 65 fled by statute at any time before the estate becomes vested by the death, of the wife.^^ 4. THE DEATH OP THE WIFE. On the death of the wife the curtesy becomes consummate, and the husband's estate devolves upon him by operation of law, and it is unnecessary to make an entry or do any other act. Tenant by curtesy consummate has all the rights, and is subject to the same restrictions as an ordinary life tenant. HOW BARRED. The estate by the curtesy may be barred at the common law by an agreement between the husband and wife, made either before or after marriage, whereby the husband expressly agrees to relinquish his curtesy^ * or by the husband's joining in a conveyance of the property with the wife. A decree of divorce a vinculo, dissolves the relation of husband and wife and terminates all rights of the husband in his wife's land which arise out of the marital relation.^" At the common law, a divorce a mensa et thoro does not affect the curtesy of husband, since the relation of husband and wife still continues. This is the rule in most States; it has been held, however, that where the estate of the husband is vested and has passed into the hands of a bona fide purchaser "Duncan vs. Terre Haute, 85 Ind., 108. Thurber vs. Townsend, 22 N. Y., 517. "Charles vs. Charles, 8 Gratt. (Va.), 486. "Burgess vs. Muldoon, 18 R. I., 607; 24 L. R. A., 607. By statute in some States if the divorce be granted the husband on the wife's fault, the former will not lose his rights as tenant by curtesy initiate. In some States the statutes provide that on divorce the wife shall be entitled to all her real estate, except when the divorce is granted for adultery of the wife, and, in some States, the statutes pro- vide that the adultery of the husbaifd will work a forfeiture of his estate. Meacham vs. Bunting, 156 111., 586; 28 L. R. A., 618. 66 FREEHOLD ESTATES NOT OP INHEEITANCE. prior to the decree of divorce, the Tatter's rights will not be affected by the decree.^^ It is possible to settle upon the wife real property, so that the right to curtesy of the husband will not arise. It is a com- mon practice in settlements on the wife to expressly exclude the husband from curtesy. If in the settlement the intention to exclude the husband from curtesy is clear and unquestioned, the estate by the curtesy will not arise.^' STATUTES. In many of the States the estate by curtesy is abolished by statute.^* In other States, the rights of the husband have been modified and limited. It has been held that the married women's statutes, which enable a married woman to possess and enjoy her property free from the control of the husband, impliedly abrogate the right of the husband to curtesy.^' Other courts hold that the statutes granting the right of the wife to control her own property unless they expressly or by necessary implication abolish or limit the estate, do not affect the husband's right to curtesy on the death of his wife. "Gillespie vs. Worford, 2 Cold. (Tenn.), 632. "Hlglit TS. Hall, 74 Wis.. 152, 3 !■. R. A., 857. This was an action of ejectment brought by the heirs of a married woman against persons claiming title under the husband's right of curtesy. The deed to the property in question to the married woman con- tained this clause: "To her sole and separate use, free from the inter- ference or control of her said husband or any husband, and her heirs and assigns, to her and their only proper use and benefit forever." The court held that this clause excluded the husband's right of curtesy. '^The estate by curtesy has been abolished by statute or judicial legislation in the following states: Alabama, Arizona, Arkansas, Cali- fornia, Dakota, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louis- iana, Michigan, Minnesota, Mississippi, Montana, Nevada, South Caro- lina, Texas and Wyoming. "Tong vs. Marvin, 15 Mich., 60. FEBBHOIiD ESTATES NOT OP INHERITANCE. 67 The latter ruling is supported by the weight of authority.'" In a number of states by statute the husband is entitled only to curtesy in those lands of which the wife was seised at the time of her death. In other states the husband has curtesy only in the lands which the wife did not convey during her life or devise by her will. DOWER Dower is a provision made by the common law for the sus- tenance of the widow.'^ It is founded upon the moral and equitable claim of the widow for support and maintenance out of the estate of her deceased husband.^^ For this reason the estate has always been favored by the law. Lord Coke says: "There are three things highly favored in law— life, liberty and dower." The exact origin of the right of dower is not known, but it has existed in various forms from ancient times. The extent of the estate varied under the old law, from one-tenth to onfe- half; but was finally settled at the common law as one-third. Under the English law, there were five kinds of dower; only one of these has been recognized in the United States, viz: dower at the common law. "Hatfield vs. Sueden, 54 N. Y., 280. liuntz vs. Greve, 102 Ind., 173. Breeding vs. Davis, 77 Va., 639. "Dower has sometimes been confused with dowry. Dowry is that portion which a wife brings to her husband in marriage, and has no resemblance to dower. ""The court says, in Banks vs. Sutton, 2 Sr. Wms., 702: "The wife is the proper object of the care and kindness of the husband; the husband is bound by the law of God and man to provide for her during his life; and after his death the moral obligation is not at an end, but he ought to take care of her provision during her own life. Thus is the wife said to have a moral right to dower." 68 FREEHOLD ESTATES NOT OF INHEEITANCE. DOWEB, AT THE COMMON LAW, IS THE LIFE ESTATE OF A WIDOW IN ONE-THIBB OF ALL BEAL PEOPEBTY, OF WHICH HEE HTTSBAND WAS BENEFICIALLT SEISED IN LAW OB IN FACT, DTJBING COVEBTXTBE, OF A FBEEHOLD ESTATE OF INHEBITANCE, WHICH HEB ISSUE MIGHT INHEBIT. In order tliat an estate of dower may arise the following essentials must exist: (1) A valid marriage, (2) Seisin of the husband, (3) Death of husband. 1. MARRIAGE. The claim of dower is founded upon the marital relation; it is only by virtue of that relationship that a woman has any claim which arises by implication of law upon a man's property. It follows, therefore, that a void marriage, even though the woman innocently supposes herself to be mar- ried, cannot give dower.*' As in the case of curtesy, if the marriage is voidable, and has never been avoided during the life of both parties, dower will attach. The essentials of a valid marriage are discussed under the head "Tenancy by the Curtesy." 2. SEISIN OF THE HUSBAND. The requisites as to the seisin of the husband may be stated in the following propositions: (a) THE HUSBAND MUST HAVE BEEN SEISED OF A FBEE- HOLD ESTATE OF INHEBITANCE AT SOME TIME DUBING COVERTUBE. nsmitli va. Smltb, 5 Obio St., 32. Petition by Ruth Smith to recover dower from the estate of her alleged husband, David Smith. Petitioner's name was formerly Atherton and she married one Dennis. Subsequently petitioner separated from her husband, and, without any divorce, married Smith. In this proceeding she claims dower in land of which David Smith was seised after her alleged marriage to him. The court held that the second marriage, while the first husband was living, was absolutely void and not voidable, and that therefore petitioner was not entitled to dower. Petition dismissed. See also Price vs. Price, 124 N. Y., 589; 12 L. R. A., 359. FREEHOLD ESTATES NOT OP INHEEITANCB. 69 The estate of which the husband is seised must he a free- hold. Dower does not attach to estates for years or any in- terest in lands which is not a freehold."* For the same reason, a widow is not at the common law en- titled to dower in an estate pur autre Tie, where the husband dies before the person on whose life the estate is limited; for, as has already been stated, what remains of the estate after the death of the tenant pur autre vie, is a mere personal in- terest, which, at the common law, went to the first occupant. But in some States sitatutes provide that after the death of the tenant pur autre vie, what remains of that estate shall be considered as real property, and descend to his heirs; but it is believed that such statutes do not operate to confer dower. The husband must be seised not only of freehold estate, but it must be a freehold of inheritance. The reason of this is at once apparent. A freehold estate not of inheritance, as an estate for life of another, terminates on the death of the ten- ant. Thus, where a man was a tenant for life, and the fee was in his heirs, it was held that his widow was not entitled to dower."^ While the estate of the husband must be a freehold estate of inheritance, yet it need not be an estate in fee simple. ■'GoodTvin vs. Goaa-rrln, 33 Conn., 314. Horace Goodwin devised and bequeathed a portion of his property to his wife and declared his purpose to be that the devise and bequest should not bar her right of dower. A part of deceased's property consisted of an estate for nine hun- dred and ninety nine years, and this case raised the question whether the wife was entitled to dower in that part of the estate. It was conceded by the wife's solicitor that dower would not attach to an estate for a short term of years, but it was contended that an estate for so long a term of years was for all practical purposes a fee simple, and that the reversion was a mere imaginary estate. The court held that an estate for years was a mere chattel real classed as personal property, and that the length of term did niot affect the nature of the estate, and that therefore the wife was not entitled to dower. "Harriot vs. Harriot, 49 N. Y. S., 447. Burrls vs. Page, 12 Mo., 358. 70 FREEHOLD ESTATES NOT OF INHERITANCE. Dower attaches as well to a determinable or conditional fee as to estates in fee simple or fee tail. In the case of conditional fees, the wife's dower is subject to the same conditions which attach to her husband's estate, and her dower will continue un- til the estate is defeated by the happening of the condition on which it was limited. That is, the estate of dower will not con- tinue to exist after the extinction of the estate from which it is derived.^' It is not essential that the husband's title should be perfect. As against persons claiming title through her hus- band, the widow is entitled to dower, even though the hus- band's possession was wrongful, and the wife may have dower until she is dispossessed by the paramount title. The seisin of the husband must have been at some time during coverture. At the common law it was not necessary that the husband should have been seised at the time of his death. In some States, the common law has been changed by statute, so that the wife is entitled to dower only in the land of which the husband was seised at the time of his death. The effect of such statutes is to permit the husband to convey •'Greene -vs. Reynolds, 73 Hun., 565. This was an action to declare the dower of the defendant in certain premises to be forfeited and terminated. Phebe Abbey executed and delivered to her son a conveyance which contained conditions requiring the son to support, maintain and clothe her during her natural life, pay her funeral expenses, keep the building on the premises insured and in good repair and pay the taxes thereon, and provided that upon his failure to perform any of said covenants and conditions, the grant should be void and of no effect. The son accepted the deed, assented to its conditions and went into possession of the premises, but he wholly failed and neglected to perform the conditions agreed upon, and con- ceded his inability to do so; he afterwards at the request of his mother, reconveyed to her the same premises. The wife of the son refused to join in the latter deed and this action was commenced. The court held that the defendant's dower right was a mere incident to the title held by the husband; that her right to dower depended upon the per- formance by her husband of the conditions mentioned; and that the dower interest of the wife fell with the estate of the husband. See Toomey vs. McLean, 125 Mass., 122. Laboree vs. Laboree, 33 Me., 343. FREEHOLD ESTATES NOT OF INHEEITANOE, 71 during his lifetime his real property, free from the claims of his wife (b) THE SEISIN OF THE HTTSBAITD MUST BE SOLE. The husband must be solely seised. We shall afterwards see that one of the incidents of joint estates is that the survivor or survivors takes the entire property. If the husband were jointly seised, his interest would, upon his death, De ab- sorbed by the surviving tenants, and there would not be any- thing to which dower could attach." If the husband owns land in common with others, he is deemed to be solely seised of an undivided portion, and his widow is entitled to dower in his portion.'^. In some States, the right of survivorship in joint estates is abolished by statute, and in such States dower attaches to joint estates. (c) THE SEISIN OE THE HXTSBAND MUST BE BENEFICIAL. The wife is not entitled to dower in land in which the hus- band has not a beneficial interest. Thus, the wife is not nBa1>1)ltt TB. Babbitt, 41 ]V. J., E. R. A., 814. William H. Dudley was the owner of property, a part of which was a homestead, In the City of Madison, Wis., of the value of $7,000. He died intestate, leaving a wife, Elizabeth H. Dudley, defendant in the above cause, and a son Charles. All of his real estate was assigned to his son, subject to the mother's homestead right and right of dower. 74 FREEHOLD ESTATES NOT OP INHEBITXNCB. which is not determined during his life time, he is not imme- diately seised of the property, and his widow is not entitled to dower in the remainder.*^ For the same reason, a widow is not entitled to dower in any estate of her husband's, dependent on the termination of a prior freehold estate, if such freehold estate is not determined during the life of her husband.** If the right of possession of the husband is dependent upon the termination of a prior estate which is less than a freehold, as an estate for years, his wife is entitled to dower, even though the husband's right to possession did not accrue during his life; for an estate less than a freehold is a mere personal in- terest and the seisin is in the owner of the expectant freehold estate. After his father's death Charles Dudley married and subsequently died, before his mother, and his wife brought action to establish her dower in the premises held by the mother as her homestead, and in other property. The Court held that Elizabeth H. Dudley was seised of a life es- tate in the homestead property, and that, therefore, Charles Dudley did not die seised of it, and that the plaintiff could have no dower in It; that the homestead right of the defendant was an estate in possession and actual occupancy in one alone for life, and was inconsistent with dower in another person. See also Browning vs. Harris. 99 111., 456. Hafer vs. Hafer, 33 Kas., 449. "Durando vs. Durando, 23 N. Y., 331. Baker vs. Baker, 167 Mass., 575. "Durando -vs. Durando, 23 N. Y., S31. A father died seised of certain land which he devised to his wife for life, and after her death to his children. The petitioner married one of the testator's sons, and her husband died seven years before the death of the life tenant, his mother. After the death of the mother, part of the land was taken by eminent domain on a proceeding to ex- tend a street, and damages for such taking were paid into court. Peti- tioner, as widow of the son, asked for a portion of the money. The court held that the life estate not having terminated during the life of the husband of the petitioner, he was not seised either in fact or in law of an estate of inheritance during coverture, and his widow was, therefore, not entitled to dower. Petition denied. FREEHOLD ESTATES NOT OF INHERITANCE. 75 EQUITABLE ESTATES. At tlie common law the wife was entitled to dower only in the husband's legal estates, and had no dower in his equitable estates. In many of the States the common law rule has been changed by statute, and the wife is given the right to dower in the husband's equitable estates.*" In a few States, the com- mon law rule is still in force. Under the common law rule, equities of redemption and all uses and trusts for the husband's benefit were exempted from dower. To entitle the wife to dower in equitable estates under the statutes, the husband must have more than a mere equity, he must have an inheritable equitable interest. "Everitt tb. Everltt, 71 Iowa, 221. The Iowa statute provides that a wife shall be entitled to "one- third in value of the legal or equitable estates in real property pos- sessed by the husband at any time during tHe marriage." This was an action brought by Bie widow of Geo. M. Bveritt to set aside a certain conveyance, and to have one-third of the value of the property set off to the plaintiff as her widow's share therein. The plain- tiff's husband, Geo. M. Everitt, conveyed the land in question to a man named Young in consideration of an indebtedness. Such conveyance was made before his marriage to the plaintiff. Subsequently a parol agreement was entered into whereby Young agreed to reconvey the property to the plaintiff's husband upon the payment of the amount of the indebtedness. In pursuance of this agreement plaintiff's hus- band made a number of payments to Young to an amount equal to the original indebtedness, with interest thereon. Plaintiff's husband, how- ever, instead of taking a deed to himself, directed Young to make a deed to his son by a former marriage, the defendant in this case. The Court ruled as follows. "The question whether the plaintiff has a dower right in the property depends upon whether the husband acquired a legal or equitable title therein under the agreement with Young. The contract was by parol, but Everitt took possession under it and made valuable improvements upon the property, and continued in possession up to the time of his death. At the time he directed the conveyance to be made to the defendant, the full amount of the con- sideration had been paid. That he was the equitable owner of the prop- erty at that time cannot be doubted. All that was required to be done in order to vest him with the actual ownership was the passing of the naked legal title to him; and that he was entitled to have done. It is quite clear that plaintiff is entitled under the statute to have one-third In value of the property set off to her." 76 FREEHOLD ESTATES NOT OF INHERITANCE. As a general rale the statutes proTlde that the wife has dower only in equitable estates of which the husband was equitably seised at the time of his death. (e) THE SEISIN OE THE HUSBAND MUST BE IN LAND, WHICH MIGHT POSSIBLY DESCEND TO THE ISSUE OF THE MABBIAGE. If land were given to A for life and afterwards to his heirs by his wife B, and if B should die and A should marry 0, the issue of the latter marriage could not possibly inherit the property, and G would not be entitled to dower. The student will note that in dower the birth of issue is not essential; but it is essential in order that the wife should have dower, that if she has any children they may possibly inherit the property in which she claims dower. (f) IE ALL THE ESSENTIALS MENTIONED AS TO SEISIN EXIST, IT IS SUEEICIENT TO GIVE DOWER IE THE HUSBAND IS SEISED FOB ONLY AN INSTANT." IN WHAT ESTATES AND PROPERTY DOWER MAY EXIST. In connection with the discussion as to the requisites of the seisin of the husband, we have pointed out to the student the legal estates in which the wife may or may not have dower. We have seen that the wife at common law is entitled to dower in the following estates: Estates in fee simple and fee tail; conditional and determinable fees and estates in common. We have also seen that the wife is not entitled to dower in the following estates: Estates for life, estates for years, dower estates, estates in joint tenancy, estates in remainder or re- version dependent on termination of a prior freehold estate, "Mclntyre vs. Costello, 47 Hun., 289. Sutherland vs. Sutherland, 69 111., 481. FEEBHOLD B3STATBS NOT OF INHBEITANCB. 77 legal estates in which the husband had no beneficial interest, and at the common law in equitable estates. These various estates may exist in various kinds of real property, and it is perhaps the most opportune place to discuss the law of dower in relation to particular classes of property. MORTGAGED LANDS. A mortgage does not convey such an estate to the mort- gagee as to entitle his widow to dower. The mortgagor is regarded, until foreclosure, as the holder of the title. It follows that the mortgagor's wife is entitled to dower in the mortgaged premises, and that the mortgagee's wife has no dower interest in them until the mortgage has been foreclosed and the title vested in her husband. The inchoate dower interest of the wife in her husband's property is in no way affected by a mortgage in which she does not join. If the wife joins in the mortgage, she releases her dower and may not, thereafter, as against the mortgagee, or those holding under the mortgage, maintain a claim for dower, but, as against another person, she is still entitled to dower. The effect of the wife joining in the mortgage is merely to subject her interest to it, and die is entitled to the same rights and remedies against the mortgagee as an ordinary mortgagor. Thus, if on foreclosure the property realizes more than suf- ficient to cover the amount due under the mortgage and costs, the wife in States giving dower in the equitable estates will be entitled to dower in the surplus.^^ So the wife having an interest in the premises, has a right to redeem. "Holden vs. Dunn, 144 111., 413, 19 L. R. A., 481. tJnger vs. Leiter, 32 Ohio St., 110. 78 FREEHOLD ESTATES NOT OF INHERITANCE. So the wife may, in some States, by paying a proportionate amount of the mortgage, have her dower freed from the mort- gage lien.=2 In other States the wife in order to have her dower released, must pay the entire amount due under the mortgage. We shall afterwards see that the wife's dower is subject to all claims agatast the husband's estate, existing at the time of the inception of the wife's rights, viz., at time of the marriage. H, therefore, the husband prior to his marriage gave a mort- gage on his property, the wife's dower will be subject to the mortgage. It has been held in a few States that the personal estate of the husband is primarily liable for the mortgage debt, and if there is sufflcient personalty belonging to the husband's estate to pay the debt, the wife is entitled to have it applied on the mortgage.^' In most States the courts hold that the wife by joining in the mortgage, thereby subjects her interest to it and is not en- titled to have the mortgage paid out of the personal estate of the husband.'* PARTNERSHIP LANDS. If lands are purchased by partnership funds and are held for partnership purposes, in the absence of an agreement that the property shall be held as personalty, the wife of a deceased partner is entitled to dower, subject, however, to the right of the creditors of the partnership.^^ In other words partnership "'Holden vs. Dunn, 144 111., 413. Unger vs. Leiter, 32 Ohio St., 110. Jennison vs. Hapgood, 14 Pick., 345. ™Boynton vs. Sawyer, 35 Ala., 497. Mandel vs. McClane, 46 Ohio St., 407. "Scott vs. Hancock, 13 Mass., 162. Hemitt vs. Cox, 55 Ark., 225. "Bopp TS. Fox, 63 III., 540. Four partners purchased land with partnership funds and for part- nership purposes. Afterwards the property was sold by the receiver FREEHOLD ESTATES NOT OF INHEEITANCB. 79 real property must first be applied to the payment of partner- ship debts; and the widow of a partner is not entitled to hare her dower assigned until the partnership debts are paid.''' During the continuance of the partnership, the partners can convey the partnership real property for partnership purposes, free from any claim of inchoate dower."'' For most purposes, partnership real property is treated as personalty; but after the partnership purposes have been accomplished, the real property is treated as realty and is subject to dower."' It has been held that the partners may agree that the real property shall be treated as personalty, not only as between themselves, but as between their heirs. Under such an agree- ment the wife of a partner would not be entitled to dower, even after the payment of partnership debts."" IMPROVEMENTS. "When the husband dies seised of the land, the wife's claim of dower extends to the buildings and improvements on the land. If the husband, previous to his death, conveyed the of the partnership on an order of the court, and on such sale was bought in by defendant. Bopp, one of the partners, subsequently died, and his widow filed this petition in equity for the assignment of dower, claiming a right of dower in one-fourth of the real property purchased by the partner- ship. The court held that although one-fourth of the title to the land vested In petitioner's husband, yet he never had any beneficial interest in it, distinct from 'partnership purposes, but that he took it clothed with an implied trust that it should be applied to the payment of part- nership debts, if necessary, and that his widow was not entitled to dower until this trust was fully executed and fulfilled, and the interest of Louis Bopp having been applied to the purpose of the implied trust upon which it was taken, the widow was not entitled to do*er. "Espy vs. Comer, 76 Ala., 501. Free vs. Beatley, 95 Mich., 426. "Woodward-Holmes Co. vs. Nudd, 58 Minn., 236, 27 L. R. A., 340. "Woodward-Holmes Co. vs. Nudd (ante). "Perin vs. Megibben, 53 Fed. Rep 86. Greene vs. Greene, 1 Ohio, 535, 80 FEBBHOLD ESTATES NOT OF INHERITANCE. land without his wife joining in the deed, and improTements are made by the husband's grantee, the wife will only be en- titled to dower in the value of the property, less the value of improvements made since the time of the conveyance by the husband. Improvements made by an heir or persons other than the husband's grantee, are made at tiie risk of the i)er- sons making them, and the widow will be entitled to dower in them.*" MINERAL LANDS. At the common law a wife had dower in mines which were open at the time of the husband's death; but she could not open new mines even upon the portion assigned to her for her dower.'^ This rule excluding the wife's dower in unopened mineral deposits seems to have been adopted in . many States. In Michigan the statutes give to the widow of every deceased per- son "the use during her natural life of one-third of all the lands whereof her husband was seised." In the case of In Ke Seager Estate, the question arose whether, under this statute, a wife had dower in mineral de- posits undeveloped at the time of the husband's death. In a careful and learned decision, in which all the decisions are reviewed by Mr. Justice Grant, the Court held that the stat- ute was intended to include all the land of the husband, "irre- spective of whether mines were opened upon them before or after the husband's death."'^ LAND SOLD ON CONTRACT. Where the husband contracts to purchase land, and the contract provides that the fee shall not pass until aU payments "Larrowe vs. Beam, 10 Ohio, 498. "Freer vs. Stotenbur, 36 Barb., 641. Clift vs. Cllft, 87 Tenn., 17. '=In re Seager Estate, 92 Mich., 186, 16 L. R. A., 247. FREEHOLD ESTATES NOT OF INHBEITANCB. 81 have been made, the wife will not be entitled to dower until the husband acquires the legal title, or, in some States, in which dower is given in equitable estates, until he acquires the equitable title.®' Possession without a legal or equitable interest under an executory land contract will not give dower. THE WIFE'S CLAIM OE DOWER IS SUBJECT TO AT.Tj THE IITCXJMBRANCES, CLAIMS AKTD EQUITIES EXISTING AGAINST TEE HUSBAN^B'S ESTATE AT THE TUSIE OF THE MABBIAGE. It foUows that if the husband, previous to his marriage, entered into a contract to convey the property, the wife's right of dower will be subject to all equities and rights of the vendee; and the vendee on performing the conditions of the contract will take the properly free from any claim of dower.** As between the husband's heirs or personal representatives and the wife, the latter may, under some circumstances, have dower in the interest of the husband in the land sold on con- tract, when it does not prejudice the rights of the vendee, and when the contract has not been performed during the life of the husband. For instance, if the husband, previous to his marriage, en- tered into a contract to sell land, and if he subsequently marries and dies, leaving a widow, and at the time of his death there is something due on the contract, the question arises as to the dower right of the wife in the unpaid portion of the contract. In such a case it will be noticed that the husband still has the legal title to the property, and, while it may be contended that he holds it in trust for the vendee in the contract, yet he has a beneficial interest equal to the un- paid portion of the contract. ■"Hunkins vs. Hunkins, 65 N. H., 95. "McClure vs. Fairfield, 153 Pa St., 411. 7 82 FREEHOLD ESTATES NOT OF INHERITANCE. An interesting case as to the right of the wife in this beneficial interest arose in Michigan. Henry P. Pulling, prior to his marriage, entered into a contract to sell nine pieces of property for an aggregate consideration of f49,000. He sub- sequently married and at the time of his death there was still due on the contracts the sum of $45,000. The wife petitioned to have dower assigned her in the in- terest in the land, represented by the unpaid portion of the contract. The court held that even though a trust in the vendor for the benefit of the vendee be implied, it was one coupled with a beneficial interest, and under the ruling that a wife of a trustee is entitled to dower commensurate with the husband's interest, the court held that the wife was entitled to dower in the interest of the husband at the time of his death, and that while dower could not be assigned out of the land the wife should have a sum in lieu thereof. This case does not conflict with the rule that the wife's dower is subject to the equities and rights of a vendee prior to the marriage; for it was not sought to affect the purchaser's interest, but the interest held by the husband at the time of his death.^^ If the contract for sale is made during coverture and the wife does not sign, her dower will not be affected. If the wife joins in the contract, she may be compelled to release her dower on the fulfillment of the terms of the contract. MONEY. When land in which the wife has a valid claim of dower is converted by a judicial proceeding into money, the character of the land is impressed upon the fund and the wife's right of dower is still recognized and protected.*^ "Pulling vs. Pulling, 97 Micli., 875. "Wteeler vs. Kirtiand, 27 N. J. Eq., 324. Holden vs. Dunn, 144 111., 413, 19 L. R. A., 481. FREEHOLD ESTATES NOT OF INHBEITANOB. 83 WILD LANDS. In some States it has been held that the widow is not entitled to dower in wild lands. The cases holding this view are based on the reasoning that dower was intended for the benefit of the widow, and there being no rents or profits from such lands, dower woidd only be a clog upon the transfer of the property, without any corresponding benefit to the widow.'^ DEATH OF THE HUSBAND. At the common law the wife's right to dower became con- summate on the death of her husband. A civil death of the husband was not sufficient to vest the wife's right to dower. In some States the wife's right becomes consummate on divorce granted the wife for the fault of the husband. In some States where the husband has been absent and unheard of for a certain number of years, he is presumed to be dead, and his wife may have her dower assigned.®* We have seen that from the time of the marriage, or, of the seisin of the husband, up to the time of the husband's death, the wife's right is inchoate; and that on the death of the hus- band, this inchoate dower becomes consimimate. There is yet another stage: The consummate right of the wife to dower develops into a freehold estate when speoifio property is set apart to her. The act of setting apart this specific portion is known in the law as an assignment of dower. We will briefly consider the widow's rights in each of these stages : INCHOATE DOWER. As soon as there is a concurrence of marriage and seisin in the husband, if the other essentials exist, the wife has a con- "Conner vs. Shepherd, 15 Mass., 164. Contra, Schuelley vs. Sohuplley, 26 111., 116. "Sherod vs. Ewell, 73 N. W., 493. 84 FREEHOLD ESTATES NOT OP INHEEITANCB. tingent and uncertain interest which cannot be barred or de- feated by the husband. This inchoate right cannot, at this stage, be said to be a chose in action; for it is contingent on future events, such as the survivorship of the wife. This con- tingent interest of the wife has many of the attributes of property; it is capable of being valued; it may be a sufficient consideration to support an agreement or a conveyance of property;^" and the wife may maintain an action to protect it. Thus, if the husband, prior to his marriage, without the knowledge of his intended wife, and with the intent to defeat her dower, conveys the property to another, the wife may even, during the life of the husband, maintain an action to have such conveyance adjudged to be fraudulent and void, as against her right to dower.^° This inchoate right has not all the attributes of property. It may not be sold or conveyed to a stranger to the title; it may, however, be released to one who has an inde- pendent interest in the land.^^ Neither can such interest be affected by the Statute of Limitations, or be taken on an execu- tion against the wife.''' The right of the wife at this stage is not an estate, nor has she a vested interest. As a consequence, her interest may be modified or entirely abolished by legislative enactment.''' And the law at the time of the husband's death and not the law at the inception of the inchoate right of dower determines the wife's rights in the husband's property.'* "Mandel vs. McClave, 46 Ohio St., 407, 5 L. R. A.. 519. Gore vs. Townsend, 105 N. Y., 228, 8 L. R. A., 443. "Dudley vs. Dudley, 76 Wis., 567, 8 L. R. A., 814. Murray vs. Murray, 90 N. Y., 8 L. R. A., 95. "Hart vs. Burch, 130 111., 426. See post page 89. "McMahon vs. Gray, 150 Mass., 89. "Jourdan vs. Haran, 3 N. Y. S., 541. "Hatcher vs. Buford, 60 Ark., 169, 27 L. R. A., 507. FEEBHOLD ESTATES NOT OF INHEEITANCB. 85 It is settled that inchoate dower is an incumbrance on the land and comes within a covenant against incumbrances." The inchoate right of dower does not confer seisin, or a right to possession. CONSUMMATE DOWER. On the death of the husband the wife's uncertain and con- tingent interest becomes certain and flxed.'" Being then absolute and vested, her interest cannot be impaired by legislation. It is a chose in action, entitling the wife to have certain of her husband's land set aside to her.'^ The wife has not yet acquired an estate; she has simply an absolute right to have an estate assigned to her. This right does not entitle her to enter into possession of her husband's land (e), and she may be held guilty of trespass as against the husband's alienee by an entry before her dower has been assigned (d). At the common law the widow was entitled to occupy the principal mansion of her husband, and to be supported therein for a period of forty days. This right of the widow is known as quarantine.^* The right of possession given to the widow as quarantine, is not an incident of consummate dower. At the common law, the widow could not sell and convey her consummate right to a stranger to the title;''' but as in the case of inchoate dower, she might release it to one having "Shearer vs. Ranger, 22 Pick., 447. "Motley vs. Motley, 73 N. W., 738. "Raynor vs. Lee, 20 Mich., 384. (d) Tucker vs. Tucker, 45 S. W., 344. (e) McMahon vs. Gray, 150 Mass., 289, 5 L. R. A., 748. "The right of quarantine has been extended in many States. In some States the right continues until dower is assigned. (2) Payne vs. Becker, 87 N. Y., 153. "Weaver vs. Rush (Ark.), 34 S. W., 256; Hart vs. Burch, 130 111., 426, 6 L. R. A., 391; Salem Nat. Bank vs. White, 159 III., 136. A ■widow cannot lease her dower interest until it has been aa^ signed to her. Union Brewing Co. vs. Meier, 45 N. B., 264. 86 FREEHOLD ESTATES NOT OF INHERITANCE. an interest in the property. In equity a conveyance to a stranger to the title will be enforced. Being a mere chose in action, consummate dower at common law is not subject to be taken on a writ of execution, but it may now be reached in equity by the widow's creditors.*" In some States the widow is now permitted by statute to convey her dower before its assignment, to a stranger to the title. The Statute of Limitations begins to run against the widow from the time that the right to the assignment accrues, viz., the death of the husband. ASSIGNED DOWER. When there is assigned to the widow a specific portion of land for her use and enjoyment, her right to dower develops into a freehold estate for life, except where statutes give her an estate in fee simple. She is now seised of an estate and is entitled to possession of the portion assigned her. Her estate has all the attributes of a life estate; she may alien it, lease it and deal with it as any other life tenant. She is also liable in the same way as other life tenants, as for waste, payment of taxes and interest on incumbrances, etc. ASSIGNMENT OF DOWER. Dower may be assigned voluntarily by the acts of the parties or by legal proceedings. At the common law on the death of the husband if he left a widow, it became the duty of the heir or owner of the freehold to set aside her dower. If the heir was an infant, his guardian could make the assign- ment. If this duty were performed fairly, it was binding upon the widow, and she became entitled to a life estate in the portion assigned to her. •^cMahon vs. Gray, 150 Mass., 289, 5 L. R. A., 748. FREEHOLD ESTATES NOT OF INHERITANCE. 87 In most of the States the statutes provide that the assign- ment of the tenant shall not be binding upon the widow, unless it be accepted by her. This assignment need not be in writing; for the widow's estate is not created by the act of assignment, but arises out of the marriage relation. If the person upon whom the duty of making the assign- ment neglects to do so the widow may enforce her rights by legal proceedings. The statutes of the different States pro- vide different legal proceedings. At common law the widow's remedy was by writ of dower, unde nihil habet, or by writ of right of dower, or, she might have her dower assigned by courts of equity. In addition to these, or equivalent methods of assigning dower, the statutes usually provide that if the tenant neglects to assign dower for a certain period, the widow may commence summary proceed- ings in probate or surrogate courts. In some States the widow must make a demand before com- mencing legal proceedings; in other States a demand is not necessary. The widow's right to dower extends to each piece of real property of which her husband was seised during cover- ture. When dower is assigned to her in each piece by metes and bounds, it is in accordance with her right and is said to be an assignment by common right. It sometimes happens that it is not practicable or desirable to set apart a portion of each piece of property to the widow, and she is given some other property in lieu of her share in any particular piece or pieces; such an assignment has been said to be contrary to or against the common right.'^ It was a rule of the common law that in all cases when it was pos- sible dower should be assigned to the widow by metes and bounds. "Hogg vs. Hensley (Ky.), 39 S. W., 247. 88 FREEHOLD ESTATES NOT OP INHERITANCE. In computing what portion the widow shall take in lieu of her dower in the property, the quality as well as the quantity of the property in which she is entitled to dower, should be taken into consideration, and such part should be assigned as will yield one-third of the entire revenue of the whole.'^ Where the property is incorporeal or is of such a nature that it can- not be fairly divided by metes and bounds, the widow is en- titled to dower out of the rents and profits. Thus, where the property consists of a hotel or mill, the widow is entitled to a portion of the rents or profits. It is competent for the parties to agree that a certain simi shall be assigned to the widow in lieu of dower, and such an agreement will be enforced by the courts.*'. As a general rule dower is to be computed on the value of the property at the time of the assignment. To this rule there is an exception. Where the husband conveyed the land and the wife did not join in the conveyance and his grantee has made improvements, dower is to be fixed by the value of the land at the time of its alienation, and not at the time of the assignment.** , In some States the widow's dower as against her husband's grantee is fixed on the value of the land at the time of the assignment, less the value of the improvements made by the grantee. Under this rule the widow participates in any in- crease of the value of the land from any other cause than im- provements made by the grantee.*' HOW BARRED OR DEFEATED. Dower may be barred or defeated in the following ways: (1) BY ACT OP THE WIFE. ==Kiiig vs. Merritt, 67 Mich., 194. "Butier vs. Fitzgerald, 43 Nelb., 192, 27 L. R. A., 352. ''McClanahan vs. Porter, 10 Mo., 746. See also Sanders vs. McMillan, 98 .Ala., 144. "Hart vs. Bnrch, 130 111., 426, 6 L. R. A., 371. FREEHOLD ESTATES NOT OF INHEKITANCB. 89 (a) BY RELEASE. The most common method of defeating dower is by the wife joining in the deed, mortgage or contract of her husband. Most of the statutes provide that the wife may release her dower by joining in a deed with her husband. In some States she may release it by a sole deed.*° As a general rule the wife cannot release her dower to a stranger.*^ ; it must be released to someone having title or in privity with the title. The re- lease of the wife is really not a conveyance of her interest, which, as we have seen, cannot be transferred ; but her release operates as an estoppel and prevents a subsequent claim for dower, and being an estoppel it can be taken advantage of only by those holding title to the property.^* Thus, where a wife joins with her husband in the execu- tion of a mortgage upon land in which she has an inchoate right of dower and in such mortgage released her dower therein, it was held that such release was not absolute but conditional, and that she could not be divested of her dower by reason of such release, except by a sale under a decree of foreclosure.*^ '"Martin vs. Martin, 32 Ala., 66. "Harriman vs. Gray, 49 Me., 537. "Harrlman vs. Gray, 49 He., 537. Plaintiff was wife of Jacob Harriman, and claimed dower in prop- erty conveyed by him, in whicb conveyance she did not join. Jacob Harriman, on the 23rd day of October, 1823, auit-claimed the property to one James Harriman by a deed containing no covenants, and from said Harriman the title passed through a number of con- veyances to the defendant. The defendant claimed to bar plaintiff's right of dower by reason of her release to said Jacob Harriman, dated April 2nd, 1838. At the time of this release Jacob Harriman was not the owner of the property, the title having long since passed to those under whom diefendant claimed. The court held that Jacob having no interest in the property at The time of the attempted release, the release of dower was to a stranger, and of no effect. It "svas held that while defendant would be estopped as be- tween herself and Jacoto Harriman, the release did not inure to his grantees. "Roan vs. Holmes, 32 Pla., 295, 21 L. R. A., 180. 90 FREEHOLD ESTATES NOT OF INHERITANCE. If the deed of the husband in which the wife joins be set aside as fraudulent, or becomes inoperative, the wife's right of dower reyives.*" At the common law the wife could not release her dower to her husband, and this is still the general rule. In some States a release by the wife to the husband for a fair consid- eration will be enforced." The form of the release by the wife must comply with the requisites required by the statute, for at the common law the wife could not, during her husband's life, release her dower except by levying a fine or suffering a com- mon recovery. As a general rule the deed must contain apt words of release of the dower interest; a joinder of the wife with the husband in signing a deed which does not contain words of release, will not bar her dower .®^ A contrary rule "Hlncllfie -vs. Sbea, 103 N. Y., 153. In 1874, Martin Shea was the owner of certain property, and in that year a judgment was obtained against him and it became a valid lien against the property. In 1878, Shea and his wife gave a mortgage on the property. At the time of making the mortgage, Mrs. Shea had no interest in the property, except an inchoate right of dower. In 1880, the premises were sold under the judgment of 1874 to a third person, who thereby acquired! a title paramount to and which subverted and destroyed the mortgage. Subsequently, the purchaser at the execution sale conveyed the property to Margaret Shea, and complainant then filed this biU to foreclose the mortgage. The court held that the judgment of the lower court subjecting the widow's dower to the mortgage must be reversed. It was held that the effect of the signing of the mortgage was not a conveyance of the right of Inchoate dower, but was a release to the mortgagee in aid of the title acquired from the husband, and precluded her from afterwards claiming dower in the premises as against the grantee of the mortgagee, so long as there remained a subsisting title or interest created by the mortgage, but, that when the title created by the husband was avoided or ceased to operate by the sale under the execution, the wife was restored to her original situation and was entitled to dower as though she had never signed the mortg.age, and that therefore her dower interest in the property was not subject to the mortgage. See Malloney vs. Horan, 49 N. Y., 111. Bohanon vs. Combs, 97 Mo., 446. "Wright vs. Wright, 79 Mich., 527. ■"Greenough vs. Twiner, 77 Mass., 334. Call vs. Wells, 7 Blackf. (Ind.), 410. Lathrop vs. Froster, 51 Mo., 367. FREEHOLD ESTATES NOT OF INHERITANCE. 91 prevails in a few States, and in such States a mere joining in a deed is sufficient to bar dower. In some states the statutes require that the wife shall acknowledge her signature before an officer, and that she shall be examined apart from her husband. The wife's dower right being an inrteEest in real property cannot be released by parol. (b) BY ESTOPPEL IN PIAIS. The widow may by her acts, alter the death of the husband, be estopped from claiming dower. The estoppel must consist of some act or acts on the part of the widow which would be inconsistent with her claim of dower. Thus, where the widow was present at a sale of her husband's property and stated that she would not claim dower, it was held that she was estopped from claiming dower in the property sold.'^ In some States it has been held that the widow by attendance at the sale of her husband's property and by remaining silent, was estopped to claim dower.®' The weight of authority seems to be against this ruling, and the better rule is that the wife wUl not be estopped by mere si- lence, but only by some affirmative act or declaration,®* It has generally been held that during the life of the husband the acts of the wife will not estop her from claiming dower except by a properly executed release.®^ Thus it was held that, where a married man sold land but his wife did not join in the deed, she was not estopped to assert after his death, a claim for dower by the mere fact that she knew of the sale and made no objection thereto during coverture.®' So, where a wife knew "Sweany vs. Mallory, 62 Mo., 485. "Smiley vs. Wright, 2 Ohio, 511. "Owen vs. Slatter, 26 Ala., 547. Motley vs. Motley, 73 N. W., 738. "Martin vs. Martin, 22 Ala., 86. "Madson vs. Madson (Minn.), 71 N. W., 824. 92 FREEHOLD ESTATES NOT OF INHERITANCE. that her husband was living with another woman and knew that such woman believed herself to be lawfully married, it was held that the wife was not estopped to claim dower by her failure to notify the alleged wife that she was the lawful wife of her supposed husband." And the same ruling was made in a case in which the wife consented to her husband living with another woman as his wife.*^ (c) BY ABANDONMENT AND ADULTERY. At the common law the abandonment of her husband and adultery on the part of the wife was not a bar to dower.^" By the statute of Westminster the voluntary abandonment or elopement followed by adultery on the part of the wife was enacted to be a bar to dower. This statute has been followed by the statutes of many States;"" in some States it has been recognized as a part of the common law.^°^ As a general rule, the abandonment of the husband without adultery will not bar dower. In some States the adulterous elopement must be fol- lowed by a divorce, in order to bar dower.^^^ In order that the acts of the wife should bar her dower, they must be such as to bring her within the provisions of the particular statute in operation where the property is situated. Thus, it was held that the adultery on the part of the wife without elopement did not bring her within the statute.^"' It has also been held that where the husband and wife separated and she subse- quently committed adultery her dower was not barred.^"* "Dunn vs. Portsmouth Savings Bank, 72 N. W., 687. ™Cazier vs. Hinchey, 44 S. W., 1052. "McClanclian vs. Porter, 10 Mo., 746. See also Sanders vs. McMillan, 98 Ala., 144. ^"Goss vs. Froman, 89 Ky., 218, 8 L. R. A., 102. "Trice vs. Hobbs, 47 Md., 359. "'Lakin vs. Lakin, 84 Mass., 45. Reynolds vs. Reynolds, 24 Wend (N. Y.), 193. '"Cogswell vs. Tibbetts, 3 N. H., 41. «»Goss vs. Froman, 89 Ky., 318. FREEHOLD ESTATES NOT OF INHERITANCE. 93 2. BY ACT OF THE HUSBAND. In some States the wife has dower only in the land of which the husband was seised at the time of his death. In these States the husband's conveyance of the land will bar his wife's dower. In order to have this effect, the husband's conveyance must be made in good faith and not for the purpose of defeat- ing his wife's dower.^"" In those States where the wife has dower in the property of which the husband was seised during coverture, the husband can not in any way bar the wife's claim of dower. This is true, even though the husband acted fraud- ulently, if his acts do not determine his estate. So it was held, where a husband represented himself to be unmarried and thereby induced a third person to purchase the property, the wife was still entitled to dower.^°° The wife's dower is superior to claims against her husband's estates by his acts during cov- erture in which she did not join.^"'' If the husband conveys the property, the possession by his grantee for the period required by the statute of limitations, will not defeat the wife's dower, since the statute does not commence to run against the wife until her right of action accrues.^"' So a sale of the husband's interest on an execution which became a charge on the land subsequent to the marriage will not bar dower j^"* neither will the foreclosure of a mortgage given by the husband during coverture in which the wife did ""Jiggitts vs. Jiggitts, 40 Miss., 718. Brandon vs. Damson, 51 Mo. App., 237. ™McLanahan vs. Griffin, 168 111., 31. ""Miller vs. Farmers' Bank (S. C), 27 S. E., 514. ""Winters vs. Deturk, 133 Pa., 359, 7 L. R. A., 658. Williams vs. Williams, 89 Ky., 381, 6 L. R. A., 637. ""Roan vs. Holmes, 32 Fla., 295, 21 L. R. A., 180. Butler vs. Fitzgerald, 43 Neb., 192, 27 L. R. A., 252. Ridgway vs. Masting, 23 Ohio St., 294. 94 FREEHOLD ESTATES NOT OF INHERITANCE. not join."" If the husband sold land during the coverture on contract which his wife did not sign, she cannot be compelled to release her dower.^^^ 3. BY THE ACT OF THE LEaiSLATURE. During the lifetime of the husband, the wife's right in his property, is inchoate and not vested; and it is competent for the legislature to modify, limit, or abolish it.^^^ 4. BY DIVOKIOE. We have seen that dower arises out of the relationship of husband and wife, and that, at the common law, in order that a woman may be entitled to dower this relationship must exist at the time of the husband's death. It follows, therefore, that at the common law, an annulment of the marriage or a divorce a vinculo matrimonii operated to bar dower.^^^ A divorce a mensa et thoro since it does not dissolve the marriage, is not a bar to dower.^^* In many of the States the statutes provide that where the divorce is granted on the petition of the wife for the fault of the husband, the wife's dower shall not be barred ;^^^ and in some States the wife is entitled to her dower on the granting of a decree of divorce on her petition, the same as if her hus- band were dead.^^° A foreign decree of divorce will only bar dower, if a decree of divorce rendered for the same cause by a court of the State in which the land is situated would "'Gold vs. Ryan, 14 111., 53. ">Sloan vs. Williams, 138 111., 43, 12 L. R. A., 496. "^Hatcher vs. Buford, 60 Ark., 169, 27 L. R. A., 507. Boyd vs. Harrison, 36 Ala., 533. Moore vs. Kent, 37 la., 20. ""Jordan vs. Clark, 81, 111., 465. Wood vs. Wood, 59 Ark., 441, 28 L. R. A., 157. "•Hokamp vs. Hagaman, 36 Md., 511. '"Scales vs. Scales, 65 Mo. App., 292. "•Harding vs. Alden, 9 Me., 140. FREEHOLD ESTATES NOT OF INHERITANCE. 95 have the same effect. Thus, it was held by the New York Court of Appeals in the case of Van Cleaf ts. Boems, that where a divorce was obtained in Illinois by the husband for the wife's desertion, that the wife was not barred by such decree of dower in land situated in New York State, since in the latter State her dower could only be barred by a decree on the charge of adultery.^^' In the same cause the court intimates that the decree of the Illinois court, in order to bar her dower in New York, must bar dower in the State in which it was rendered; for a judgment of a sister State can have no greater effect in another State than in the State in which it was rendered. A void decree of divorce granted to a wife in another State than the one in which the land is situated, will not bar her claim of dower.^^' 6. BY EMINENT DOMAIN. The wife's interest in her husband's property may be de- feated by the exercise of the right of eminent domain. If the widow's right is consummate at the time the property is taken, compensation will be made for her interest. It has been held, however, that while the condemnation of the land by notice to the husband alone will extinguish the inchoate right of dower of the wife, yet that equity will secure to the wife that part of the award which represents her inchoate dower.^^' 6. BY DEDICATION. The dedication of property for public purposes will also defeat the wife's dower, since the public use is not consistent with private rights. Thus, the wife is not entitled to dower in ""Van Cleaf vs. Boems, 133 N. Y., 540. '"McCreery vs. Davis, 44 S. C, 195, 28 L. R. A., 195. , "•Wheeler vs. Kultland, 27 N. J. Eq., 534, but see Flynn vs. Flynn, 50 N. E., 650. 96 FREEHOLD ESTATES NOT OF INHERITANCE. streets which have been dedicated to the public by her hus- band."" 7. BY THE DETERMINATION OF THE HUSBAND'S TITLE. The termination of the husband's estate or his eviction by a paramount title will bar dower.^" Thus, it was held that the inchoate right of dower of the wife attached in subordination to a lien accompanying the seisin of the husband, and that there- fore, the foreclosure of a purchase money mortgage during coverture cut off the wife's right of dower, even though she did not sign such mortgage.^^^ So, if the husband is the owner of a determinable fee, the determination of the husband's estate will bar dower. The defeat of the husband's title by adverse possession will not bar the widow's dower; since the statute does not run against her until her cause of action accrues upon the death of the husband.^^' THE WIFE'S DOWER WILL BE DEFEATED BY AUY CLAIM, EITHEB, IN LAW OB, EQUITY, WHICH EXISTED BEPOBE THE MABBIAGE, AKTD WHICH DEFEATS THE HUSBAND'S SEI- SIN."* 8. BY PARTITION SALE. The wife's dower is subject not only to claims on the prop- erty existing at the time of the marriage and to the express ""Geynne vs. Cincinnati, 3 onio, 24. Venerable vs. Wabash & W. R. Co., 112 Mo., 103, 18 L. B. A., 68. ""Toomey vs. McLean, 105 Mass., 122. ""Seibert vs. Todd, 31 S. 0., 206, 4 L. R. A., 606. ""Hart vs. McCallum, 28 Ga., 478. Williams vs. Williams, 89 Ky., 381, 6 L. R. A., 637, but see Winters vs. Deturk, 133 Pa. St., 359, 7 L. R. A., 658. "•Trustees of Poor vs. Pratt, 10 Md., 5. This was an action at law to recover dower. The husband was seised of an estate of inheritance during cover- ture, but it was subject at the time of his marriage to a claim of a valid judgment. After the marriage the property was sold on an execution on this judgment to defendant. The court held that the wife's estate of dower was but a part of the husband's estate, and, since it was derived from him, it was subject to all incumbrances existing against his estate at the time of the marriage, and that the husband's estate having been terminated by a claim which existed at the inception of the right of dower, the wife's dower was defeated. FREEHOLD ESTATES NOT OF INHBEITANGB. 97 conditions attached to the husband's estate, but is also sub- ject to all the incidents which the law attaches to the particu- lar estate of which the husband is seised. Where the husband is seised as a tenant in common, the liability to be diyested of the dower right by a partition. sale is an incident of his estate, and on such sale the purchaser will tafee the property free from the claim of dower of the wives of the co-tenants, if they have been made parties to the suit.'^° 9. BY THE STATUTE OF LIMITATION AND LACHES. The statute of Limitations wUl not commence to run against the wife's claim of dower until her right of action accrues.^'" Generally the statutes provide that the wife shall bring her action to recover dower within a certain time.^^' In some States it has been held that the general statutes of limitations apply to action for the recovery of dower, even though no men- tion is made of it in the statute.^^* A contrary rule prevails in other States.^^' In courts of equity the wife may be pre- cluded from asserting her dower by laches, even though the time prescribed by the Statute of Limitations has not expired.^^" 10. BY ELECTION. If the husband by his will makes provision for his widow, and declares that this provision is in lieu of dower, she must elect whether she will take dower or under the provisions ™Haggerty vs. Wagner, 148 Ind., 625, 39 L. R. A., 384. Holley vs. Glover, 36 S. C, 404, 16 L. R. A., 776. Grenier vs. Klein, 28 Mich., 12. ^Durham vs Augier, 20 Me., 242. Williams vs. Williams, 89 Ky., 381, 6 L. R. A., 637. See dictum Winters vs. De Turk, 133 Pa., 359, 7 L. R. A., 658. ""King vs. Merritt, 67 Mich., 194. ™Proctor vs. Bigelow, 38 Mich., 282. "'Chapman vs. Schroeder, 10 Ga., 321. "°TuttIe vs. Wilson, 10 Ohio, 24. 98 FEBEHOLD ESTATES NOT OF INHERITANCE. of the will; and if she elects to take under the will, her dower will be barred.^^'^ TTie intent that the proTisions of the will are to be taken in lieu of dower must be expressed or implied from the terms of the will, otherwise the wife will take under the provisions of the will and dower in addition to the inter- est devised or bequeathed in the will.^^^ The rule is a result of the general favor with which the courts regard dower. The intent of the testator that the provisions in the will, is to be in lieu of dower cannot be inferred by the courts from the extent of the provision, or, because she is devisee under the will of an estate for life, or in fee, or because it seems to the court that to permit the widow to claim under the will, and take dower in addition, would be unjust or an inequitable di- vision; but "there must be a clear incompatibility, arising on the face of the will, between a claim of dower and a claim to the benefit given by the will."^^^ In some States, however, the statutes provide that the pro- vision in the will shall be presumed to be in lieu of dower, unless a contrary intent appears from the contents of the will."* If the husband has exchanged land without the wife's re- lease, the latter cannot have dower in both pieces of land, but must elect in which piece she will take dower, and her election to take dower in one piece will release all claim in the other. 11. BY NON-RESIDENCE OR ALIENAGE. At the common law the wife of an alien was not entitled to dower."= In most States statutes provide that an alien shall ""Bubier vs. Roberts, 49 Me., 463. '"^Wilson vs. Cox, 49 Miss., 538. ""Konvalinka vs. Schlegel, 104 N. Y., 125. '"Cook vs. Couch, 100 Mo., 29. ""Small vs. Small, 56 Kan., 1, 30 L. R. A., 243. FEBBHOLD ESTATES NOT OF INHERITANCE. 99 be entitled to dower. In some States the statutes provide tliat a non-resident wife shall have dower only in the land of which the husband was seised at the time of his death.^" 12. BY JOINTURE. The Statute of Uses provided that the wife's dower might be barred by her acceptance before marriage of a settlement upon her of a freehold estate, to conmience on the death of the husband and to continue for her life. This settlement was known as jointure. The statutes of the different States, as a rule, have provisions somewhat similar to that of the statute of uses. As a rule, to constitute a jointure, the provision for the wife must have the following essentials: (1) It must take effect immediately on the death of the husband and must continue for the life of the wife. (2) It must consist of an interest in real estate. (3) It must be made before marriage, and must be limited to the wife herself, and not to trustees for her. (4) It must be in satisfaction of the wife's entire claim of dower, and this intent must be expressed in the instrument creating the jointure. (5) It must be a reasonable provision for the wife's liveli- hood. If all these essentials exist, the provision for the wife is known as a legal jointure, and will bar dower. It is not essen- tial that this provision for the wife should be made by the hus- band; it may be made by other persons. The statutes in the different States vary and modify these essentials. An equitable jointure is an executory agreement to make a provision for the wife in lieu of dower, and which puts ""Pratt vs. Tefft, 14 Mich., 191. Small vs. Small, 56 Kans., 1. Thorburn vs. Doscher, 32 Fed., 810. 100 FREEHOLD ESTATES NOT OF INHERITANCE. the wife to an election to take such provision or dower. As a general rule, if a legal jointure is made after marriage, or if an equitable jointure is made before or after marriage, the wife on the death may elect whether she will take dower or under the provision of the jointure. The requirement that the estate should be a freehold was for the security of the wife. But at the present time, as we shall see, it is possible to protect the wife by an income out of personal property, and the com- mon law has been changed by statute so as to permit a valid settlement on the vnfe of personal property in lieu of dower. 13. BY ANTE-NUPTIAL SETTLEMENT. At the common law an agreement or settlement on the future wife in lieu of dower was not binding on the wife; for her prospective estate being a freehold, could not be barred by a collateral agreement."^ And it was only by virtue of the Statute of Uses that a jointure had the effect of barring dower; but this statute did not provide for the barring of dower by the settlement of anything less than a freehold estate. In the absence, then, of statutory provision, an agreement made prior to the marriage for money or property consideration other than a freehold estate, is not at law binding on the wife and does not bar her dower. As a general rule, the statutes now permit ante-nuptial agreements for a valuable consideration, and the courts will enforce such agreements when no advantage has been taken of the future wife.^'* ■"Hastings vs. Dickinson, 7 Mass., 153. >" Vincent vs. Spooner, 2 Cn sb (DIass.), 467. This was a suit by the widow of Isaac Vincent to recover dower in certain property. It was admitted that demandant was the larwful wife of said Vincent, and that the latter was during coverture seised of the property; but it was contended that demandant, previous to her marriage with said Vincent, had entered into an ante-nuptial contract with him and a trustee, by the terms of which she accepted certain pecuniary pro- visions, viz: $1,000 in cash within ten months after decease, and $550 FEEEHOLD ESTATES NOT OF INHBRITANOB. 101 In order that an ante-nuptial agreement may bar dower, it must appear that it was understood by the wife, ajid that no advantage has been taken of the confidential relation existing between the parties.^^® 14. BY POST-NUPTIAL SETTLEMENT. At the common law, a husband and wife could not contract with each other, and any agreement made between them in reference to the barring of the wife's dower would not prevent the wife from obtaining dower on the death of her husband. If the husband during coverture makes a settlement on the wife in lieu of dower, the wife on his death might elect whether to be paid annually. After decease of said Vincent his executor and said trustee offered to carry out the terms of the agreement and ten- dered demandant the amount due under it, ■which was refused. The court held, that the provision, not being a freehold estate, was not a common law jointure, and did not, at common law, bar demandant's dower. But it. was held that, under the statute, a pecun- iary provision made for the benefit of the intended wife and in bar of her dower, if assented by her, would bar her dower in all the lands of her husband, and that the provision of the statute was complied with in this case, and it appearing that no advantage had been taken of the wife, it was held that demandant's dower was barred. See also Gaugmere's Estate, 14 Pa. St., 417. "•Taylor vs. Taylor. 144 111., 118. This was a bill by complainant to recover dower in her husband's estate. The heirs of the husband denied that complainant was entitled to dower, because, before her marriage, she entered into an agreement with deceased to relinquish her dower. The agreement provided that if complainant survived her husband, she was to receive from his estate the sum of $2,000 in full for all claims of dower in the real estate of deceased, and in full of all interest in his personal estate. At the time of his death, deceased was possessed of realty of the value of $28,000, and personalty of the value of $13,000. The court held that the provision for the wife was inadequate, inequitable and unreason- able, and that the same was not an equitable bar to her dower. It was held, that while the parties may lawfully contract with each other, where there is full knowledge of all the facts, yet, where the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises the presumption of a designed concealment or an advantage taken of the confidential relation exist- ing between the parties, and that, under such circumstances, the burden was upon the defendants to overcome such presumption by proof that the wife had knowledge of the extent of her husband's estate and the effect of her agreement. It was held, that the proof offered by defendants in this case was not sufficient to overcome this presumi>tion. 102 PBBBHOLD ESTATES NOT OF INHERITANCE. to take dower or under tke provision of the settlement, but slie could not take both. If the wife, after the husband's death, elects to take under the settlement, her dower in the hus- band's other realty will be barred.^*" This is the common law rule, and prevails in all States in which it is not changed by statute. In some States the statutes permit the wife to release her dower during coverture to her husband, and, in these States, an agreement whereby the wife, for an adequate compensation and without fraud or coercion releases her dower to her hus- band, will be enforced.^*^ HOMESTEAD. At the common law, land could not be taken on an execu- tion. The creditor could only have the satisfaction of goods and chattels and the present profits of land, but not the pos- session of land. This rule, says Blackstone, "was a natural consequence of the feudal principles which prohibited alien- ation." Subsequently this omission in the common law was supplied by statute, both in England and in this country, and the cred- itor was permitted to have satisfaction both of the goods and chattels and the lands and tenements of his debtor. In process of time other statutes gave to the creditors the writ of capias ad satisfaciendum, under which the body of the debtor could be taken and held until payment of the debt. These statutes were much abused by the creditor classes, and after the exhaustion of all the debtor's property, it became "Lee vs. Timken, 41 N. Y., Sup., 979. Swaine vs. Ferine, 5 Johns Chy. (N. Y.), 482. "McKelvey vs. McKelvey (Mich.), 70 N. W., 582. FEBEHOLD ESTATES NOT OF INHERITANCE. 103 a common practice -to imprison his body. The evil effect of these extended remedies was soon felt, and led to the passage of laws preventing or limiting imprisonment for debt, the ex- emption of certain personal property from claims of creditor, and the homestead laws.^*^ It is not our province to discuss any of these exemptions, except those relating to land and commonly known as "Home- stead Exemptions." In all the States which have adopted homestead laws, the purpose of the statute is to provide for the family a home in which they may be sheltered and protected against improvi- dence or financial misfortune, and to encourage the head of the family in industry, virtue and independence by preserving to him a permanent home "around which to gather the affec- tions of the family and to which the members fondly turn, however widely they may become dispersed."^** '"The circumstances wliich prompted and the purpose of the adop- tion of the Homestead la-w are stated by Judge Dick, as follows: "Until within a recent period the statute law of this State subjected to execution ths lands, the person and chattels of the debtor. This legislation and the natural greed of creditors necessarily had the effect of filling the country -with the families of paupers, who were a burden instead of a benefit to the State. "The Constitution of this State, adopted in 1868, was the com- mencement of a more humane and enlightened policy on this subject. The result of the rebellion had rendered a large number of our people bankrupt in fortune, and the convention of 1868 determined to insert a provision In our organic law to preserve the liberty of an honest and unfortunate debtor, and to secure a home for his family, and thus induce him to remain in our midst and encourage and enable him by honest industry to assist in restoring wealth and prosperity to the States. "Our feudal ancestors regarded the house and person of the citizen as belonging to the State, and necessary to its security, prosperity and power. In allowing the homestead and abolishing imprisonment for debt, except for fraud, the convention adopted the same wise policy, but for a higher object — not for the purpose of making the citizen a ready and efficient soldier of war, but to encourage and enable him to direct his intellect and energies in the arts of peace and the pursuits of industry, and thus contribute to the national wealth, prosperity and advancement." Re Volger, 8 N. B. R., 132. '**Campbell vs. Adair, 45 Miss., 182. Franklin vs. Coffee, 18 Texas, 415. Wassell vs. Tumah, 25 Ark., 103. 104 FREEHOLD ESTATES NOT OF INHERITANCE. LEGISLATION. Homestead exemptions, then, exist only by virtue of some constitutional or statutory provision. The statutes of the various States, although enacted to carry out the same general purpose, yet differ in many import- ant details. It is Impossible, therefore, in treating this sub- ject, to lay down general principles which are applicable in all the States. The most we can do is to call the student's atten- tion to a faw of the statutory provisions which have been gen- erally adopted, and briefly consider the decisions growing out of the more common provisions. In some States the statutes in substance provide that a "homestead" consisting of a certain number of acres, when not within a town or village plat, and the dwelling house thereon and its appurtenances, or a quantity of land not ex- ceeding a lot or a certain number of lots within a city, town, or village plat, and the dwelling house thereon, when same does not exceed a certain value, shall be exempt from execu- tion or any other process, while occupied by the owner, his widow, or minor child. In other States, the statutes grant exemptions to certain persons named. The statutes do not use the same phraseology, but the exemption is extended to substantially the same persons. The following are some of the persons named in the various statutes as being entitled to a homestead exemption, viz. : "a householder," "a householder having a family," "head of a family," "one having a wife or family," "every debtor who is the head of a family," etc. The statutes usually provide that on the death of the owner, leaving a widow or minor children, the homestead shall be ex- empt during the life of the widow, or minority of the youngest child, and while it is occupied as a homestead. In some States FREEHOLD ESTATES NOT OF INHERITANCE. 105 the homestead right of the widow is limited to her life, or as long as she "shall remain unmarried.'"*^ Many of the statutes require, in order that the homestead may exist, certain formal- ities in the making and recording the claim or declaration of homestead. In other States the deed of conveyance by which the home- stead is acquired must set forth that it is designed to be used as a homestead. In many of the States no formalities are required, and in such States the occupancy and use of the property as a home is sufficient to constitute a homestead, and such occupancy is notice to all parties dealing with the property of the homestead rights of the occupants. Most of the statutes provide that the homestead property shall not be alienated, except by the joint act of the husband and the wife. CONSTRUCTION. As has been stated, homestead acts are founded upon public policy to carry out humane and benevolent purposes, and for this reason the courts will give them a liberal construction in order that the intent of the legislation may be given full ef- fect."' The statutes are not regarded as being in derogation of the common law. "°The statute in MassacJiusetts in this respect is as follows: "The estate or right of homestead of any householder existing at his death shall continue for the benefit of his widow and minor children and be held and enjoyed by them, if some one of them occupies the premises until the youngest child is twenty-one years of age and until the death or marriage of the widow." The same provision is found in a number of other States. ^"Riggs vs. Sterling, 60 Mich., 643. In Louisiana and Minnesota a, different rule prevails and the home- stead statutes are strictly construed. 106 FKEEHOLD ESTATES NOT OF INHERITANCE. NATURE OF ESTATE OR RIGHT CREATED. There is a difference of opinion as to whether the home- stead statutes create an estate or a mere persoaal privilege to enjoy the property free from the claims of one's creditors. In many of the States, the interest of the claimant is re- garded as a mere privilege or right. "It seems absurd to say that a debtor can have a vested right to keep property a,gainst a debt contracted for its purchase or a vested right in any ex- emption. As to him, the law grants the exemption as a boon and because the State does not care to lend its aid to push an unfortunate to the wall. Its own policy requires it, and that alone is the object. The exemption is not the right of the debtor.''"^ So, a homestead has been defined as a mere right to enjoy the interest of the possessor, or of a deceased husband or ancestor as against creditors who would take it away, or as against the grantee or mortgagee of a married owner whose wife was not in due form consenting to the deed.^** In the States adopting this view, in the absence of a consti- tutional restriction, it would be competent for the legislature to abolish or diminish the extent of the homestead right with- out the consent of persons enjoying homestead exemptions under previous statutes.^*^ The right being personal can not be assigned or transferred to another. In other States, the homestead right is regarded as a vested right or estate. Thus, in Iowa, it was held that the right of homestead having once attached, it could not be taken away by the legislature, without the consent of the owner.*^" "'Sparger vs. Cumpton, 54 Ga., 359. '"Rotlnson vs. Baker, 47 Mich., 619. * ^"Sparger vs. Cumpton, 54 Ga., 359. Parker vs. King, 16 Wis., 233. '^'Finely vs. Dietrich, 12 Iowa, 516. FREEHOLD ESTATES NOT OF INHEEITANOE. 107 In North. Carolina it was held that the homestead is an estate or quality. This decision is against the weight of au- thority and an able dissenting opinion by J. Clark expresses the better opinion.^^^ The question as to the exact nature of the homestead right has not often arisen; for ordinarily it makes little or no difference to the debtor or the creditor whether the debtor's right be regarded as a vested right or a mere "privilege" or "grace" or "favor." Probably in all States when property has been set off under the statute to the widow and children, they would be regarded as the owners of vested rights..^" We may now attempt the definition of the term "home- stead:" A HOMESTEAD IS A RIGHT ATTACHED TO THE OWNEK- SHIP OF LAND, THE PtTRPOSE OE WHICH IS TO PROTECT THE POSSESSION AND ENJOYMENT OP THE OWNER, OR THE WIPE OR MINOR CHILDREN OP AN OWNER, AGAINST THE CLAIMS OP CREDITORS WHILE THE SAME IS OCCUPIED AS A HOME.'»= WHO MAY CLAIM THE BENEFIT OF HOMESTEAD EXEMPTIONS ? It has been pointed out that the homestead acts differ somewhat in terms, but that the general purpose of these acts is to protect . the "family." It remains to briefly consider what constitutes a "family" and who may be regarded as a "head of a family" or a "householder" within the intent of the statutes. In a few States it is not necessary to make this inquiry, for the statutes give a homestead exemption to any "resident" of the State, occuping a home, irrespective of his relationship to the family.^^* But in most States the question is material. •"Stern vs. Lee, 115 N. C, 426. "''See dictum Sparger vs. Cumpton, 54 Ga., 359. "•Buckingham vs. Buckingham, 81 Mich., 89. •"This is the law in Wisconsin, Minnesota, Arkansas and North Carolina. 108 FREEHOLD ESTATIS NOT OP INHBEITANCB. It is difficult to state any general criterion by which it may be determined in all cases whether certain aggregations of persons constitute a family, and whether any given person may be regarded as the head of a family. The following statement, although subject to some excep- tions, will be useful to the student: TO CONSTITUTE A FAMILY, TKEEE MUST BE A COLLEC- TIVE BODY OE PEKSONS LXVING TOGETHER AND SUBSIST- ING IN COMMON, AND THEEE MUST BE EITHER A LEGAL OR MORAL OBLIGATION ON THE PART OP THE HEAD OF THE BODY ARISING OUT OF HIS RELATIONSHIP, AND NOT OUT OF CONTRACT, TO SUPPORT ONE OR MORE OF ITS MEMBERS. The family is an aggregation of individuals. A mere aggregation of individuals living together in the same house is not of itself sufficient to constitute a family within the meaning of the homestead acts; but there must be a legal or a moral obligation on the part of the head of the house to support some of the other members of the aggrega- tion, and on the part of such members a corresponding depend- ence on the head of the family.^'* The application of this principle is found in the following decisions: An unmarried man who kept house but had no family except servants, was held not to be "the head of a family" so as to entitle him to homestead exemptions.^^* A husband supporting a wife,^^' a father supporting his children; an unmarried woman supporting an illegitimate child; a widow supporting minor children ;^^* a guardian or ""Greenwood vs. Madox, 27 Ark., 684. ""Calhoun vs. Williams, 32 Gratt., 18. Wilson vs. Cockran, 31 Tex., 680. "'Miller vs. Finnegan, 26 Fla., 29; 6 L. R. A, 813. HoUoway vs. Holloway, 86 Ga., 576; 11 L. R. A., 518. FREEHOLD ESTATES NOT OP INHERITANCE. 109 trustee supporting minor childrenji^" have all been held to be the, head of a family and entitled to the exemption. So, a husband after divorce, living v?ith his minor children, was held to be entitled to the homestead exemption. The above are instances in which one having a legal duty to support another has been held to be a head of a family. In most States the protection of the statute is also ex- tended to those owing a moral obligation to support one or more persons while they continue to live together as a family. This test is not so certain and of as easy application as in the case of one owing a legal duty, and the decisions are not always uniform. In the States adopting this rule, the follow- ing persons have been held to be entitled to a homestead ex- emption: An unmarried man supporting his brothers and sisters ;^*^ an unmarried woman supporting the children of a deceased sister ;^^^ an unmarried man supporting his sister and her children.^*^ The following persons have been held to be under no obli- gation, moral or legal, to support a member of the family, and therefore not entitled to the homestead exemption: A step- son residing with his stepmother;^'* a tenant boarding his landlord;^*^ a widower without dependents; a man who has living with him several persons to whom he is not related and who are not dependent upon him;^°° a single man living with Kitchen vs. Burgwen, 21 111., 40. '"Estate of Wlxon, 35 CaJ., 320. ""Routree vs. Denard, 59 Ga., 629. ^"Cannaughton vs. Sands, 32 Wis., 391. '"Arnold vs. Waltz, 53 Iowa, 706. '"Wade vs. Jones, 20 Mo., 75. Moyer vs. Drummond, 32 S. C, 165; 7 L. R. A., 747. '"IBrown vs. Wilt, 19 Wend., 475. '"Brown vs. Brown, 68 Mo., 388. "•Boaqaett vs. HaU, 90 Ky., 566, 9 I.. R. A., 747. Plaintiffs recovered a judgment against defendant, and under an execution sold a house and lot belonging to him. 110 FREEHOLD ESTATES NOT OF INHEKITANCB. a child he has taken to raise, but which he is under no legal nor moral obligation to support.^°^ In a few States, a moral obligation to support another member of the household is not sufficient to constitute one the head of a family, but there must be a legal obligation to sup- port some member of the family. Thus, it was held in Georgia that a brother maintaining an indigent sister was not the head of a family; since he was under no legal obligation to support her.* In a number of cases it has been held that if the home- stead is once legally acquired, the death of all the family ex- cept the owner will not deprive him of the homestead ex- emption.^'* It is not essential that one, in order to be the head of a family, as intended in homestead acts, should be a man.^^' A married woman may be the head of a family, and may have an exemption in property owned by her on which she actually resides, against her own debtors. And in some States it has been held that a wife who continues to reside in the homestead after the desertion of her husband, was entitled to Plaintiffs brought this action to recover possession, and defendant claimed that the property fwas exempt as a homestead. Defendant was unmarried and had no family of his own or blood relatives living with him. He had living with him in the property sold an old woman who acted as his housekeeper and some little girls left in his care by their mother, but who were not related to and were not adopted by him. The court held that the persons living with defendant had no nat- ural or legal claim upon him; that he might at any time separate from them without violating any legal or natural obligation, and that, therefore, he was not the head of a family so as to entitle him to the homestead exemption. '"'Mullens vs. Looke, 27 S. W., 926. See also Holnbeck vs. Wilson, 159 111., 148. a Dendy vs. Gamble, 64 Ga'., 528. "Wilkinson vs. Merrill, 87 Va., 513; 11 L. R. A., 632. ■Stults vs. Sale, 92 Ky., 5; 13 L. R. A, 743. "»Orr vs. Shraft, 22 Mich., 260. FREEHOLD ESTATES NOT OF INHERITANCE. Ill a homestead exemption.^"' After the husband's death, as has been stated, the wife, as against the husband's creditors, is entitled to enjoy the homestead for life or, in some States until she remarries. Ordinarily the right of homestead arises only as between the person entitled to claim the exemption by law and cred- itors, and not between the heirs and the widow. When there are no creditors a homestead does not, in most States, arise, but the property passes at once to the heirs subject to the widow's right of dower.^'^ IN WHAT PROPERTY AND HOW ACQUIRED. A homestead exemption may not be claimed in any prop- erty, but only in property having certain characteristics. The following propositions will give the student an ac- curate idea as to the nature of the property in which a home- stead may be claimed: 1. THE PROPERTY MXTST BE OCCXTPIED AS A HOME, OR IF NOT ACTUALLY OCCUPIED AS A HOME, THERE MUST BE A BONA EIDE INTENT AND PREPARATION TO OCCUPY IT AS A HOME. In determining whether any given property is a homestead, the first inquiry is as to its use, or its intended use. The property must be the actual or intended home of the owner. A man cannot in fact reside in two places, although he may have two places of residence, and it is therefore impos- sible for him to have two homesteads.i'^ ""Alexander vs. Alexander, 52 111. App., 195. Byers vs. Johnston (la.), 56 N. W., 449. '"Zoellner vs. Zoellner, 53 Mich., 620. ™Goodell vs. Boardman, 53 Vt., 92. 113 FREEHOLD ESTATES NOT OF INHERITANCE. Thus it was held that where the head of a family resides in a town and owned land several miles from the town, the latter property was not exempt from execution as a homestead; since it was not actually occupied by the owner as a residence.^''' And for the same reason, it was held that land on which there were no buildings except a barn, could not, in the ab- sence of an intention to occupy it as a homestead, be consid- ered as a homestead."* So, property in the possession of a tenant and to which the owner has no present or bona fide intention to occupy again as a home, will not be exempt as a homestead.^'° A bona fide intent to' occupy land in which one has only an estate in remainder as a homestead when he comes into pos- session does not make it exempt under the homestead laws.^^° 2. THE PROPERTY NEED NOT BE EXCLUSIVELY OCCU- PIED AS A HOME. While it is essential that the property should be actually occupied as a home, it need not be exclusively occupied as a home.^" The property may be occupied for other purposes, and will be still exempt, providing that it still retains the characteristics of a home. Thus, it has been held that where the property was actually occupied as a home, the fact that a portion of it was used for business pur- poses, will not prevent a claim of homestead.^'* So it was held, where the second story was occupied by the "'Oliver vs. Snowden, 18 Fla., 823. ■^"Rice vs. Rudd, 57 Vt., 6. ""Holtt vs. "Webb, 36 N. H., 158. i"Stem vs. Lee, 115 N. C, 426; 26 L. R. A., 814. "'King vs. Helborn, 83 Mich., 195; 9 L. R. A., 803. "»Cass County Bank vs. Weber, 83 Iowa, 62; 12 L. R. A., 477. FKEBHOLD ESTATES NOT OP INHERITANCE. 113 family as a home, and the first floor was leased for mercantile purposes, that the property was exempt as a homestead from sale on exeeution.i'''* But a separate building used for busi- ness purposes and a stable used for hotel purposes, on the same lot as a hotel which was exempt as a family homestead, were held not to be a part of the homestead. 3. IT IS NOT NECESSARY THAT THE PBOPEBTY SHOULD BE CONTINUOUSLY OCCUPIED AS A HOME, PROVIDING THERE IS, WHILE ABSENT, AN INTENTION TO RETURN AND OCCUPY IT AS A HOME. A temporary absence of the owner with an intention to return and occupy the property as a home, will not affect the homestead exemption.^^". In a number of States, after the death of the husband, the rule requiring an actual occupancy is not enforced so strictly against the wife and minor children. In some cases, the wife has been allowed homestead exemptions in property of which she was not in actual possession, but which she controlled through an agent or tenant. ""Deford vs. Painter, 3 Okla., 80; 30 L. R. A., 722. Corey vs. Schuster, 62 N. W., 470. Pendergast vs. Heekin, 94 Ky., 384. Hogan vs. Manners, 23 Kan., 551. Orr vs. Shraft, 22 Mich., 260. See contra, Rhodes vs. McCormick, 4 loiwa, 368. ""Herrick vs. Graves, 16 Wis., 157. Chitty TB. Chltty, 118 N. C, 847; 32 L. R. A., 394. This was an action brought to recover property sold under an attachment, which plaintiff claims was exempt from execution. The plaintiff, in November, 1887, owned and occupied as a home the land in controversy, and in that month left the State to avoid ar- rest on a criminal warrant, with the intention of returning as soon as the the case against him should be dropped. Plaintiff's wife and family con- tinued to reside on the property until plaintiff returned in 1889. Plaintiff, during his absence, spent his time in visiting relatives in various States, intending to return to his home when he believed the charge against him to be buried. During plaintiff's absence an attachment was issued against the property and the land was sold. The defendant being the purchaser 9 114 FEEEHOLD ESTATES NOT OF INHERITANCE. The chief exception to the rule that there must be an actual occupancy of the property as a home, is found in those cases in which the owner, while not in actual occupation, yet intends in good faith to make the property his home, and has made some preparation to carry such intent into effect. Thus it was held that the purchase of an unimproved lot by a single man in contemplation of marriage, and with the intent to make it a homestead, followed by the enclosure and improve- ment of the lot, entitled the owner to the benefit of the home- stead exemption.^*^ As a general rule, the intent to occupy the property will not of itself be sufficient to make a homestead; but the intent must be evidenced by some act of preparation, and must be followed by an actual occupancy within a reasonable time.^** The intent to occupy the property as a home must exist in good faith prior to the time of the levy under the execution. If at such sale. The lower court held that the plalntifE, during his ab- sence, was not a "resident" of the State, and therefore not entitled to a homestead. The Supreme Court held that the term "resident" should be con- strued to accomplish the purpose of the homestead laws, and that an absence from the State did not necessarily mean a change of residence if there was an intention to return. In determining whether or not there was an intent to return the court held that it was proper to consider the length of time of absence, the fact whether or not a residence was acquired In another State, and whether or not the home was still maintained in the State in which the exemption was claimed, and whether or not the absent person en- gaged while away in some permanent business. In this case the court held that plaintiff intended to return, and that he was entitled to the homestead exemption, and the judgment of the lower court was reversed. ■See also Phlpps vs. Acton, 12 Bush, 375. Franklin vs. Coffee, 18 Tex., 416. '«=Reske vs. Reske, 51 Mich., 541. Gallagher vs. Keller, 30 S. W., 248. Contra Stuart First Nat. Bk. vs. Hollingsworth, 78 Iowa, 575; 6 L. R. A., 575. ™Deville vs. Widoe, 64 Mich., 593. Tromans vs. Mahlman,' 111 Cal., 599. Shaw vs. Kirby, 93 Wis., 379. FKEEHOLD ESTATES NOT OF INHBEITANCE. 115 the intent is formed after the levy and for the pui-pose of de- feating it, the homestead exemption will not arise..^'* As a general rule, a mere intention to occupy property as a home, without any preparation to carry into effect such intent, will not entitle the owner to the homestead exemption.^*'* In conclusion on the subject of occupancy, it may be said that in all cases in which the question as to whether the occu- pancy is sufficient to constitute a homestead arises the courts endeavor to carry out the spirit of the statutes and protect the home; but, at the same time, they exercise care that the debtor shall not, by falsely claiming homestead in property which he does not occupy in good faith as a home, and thereby defeat the payment of his just debts.^*' As already pointed out, in some States, in order that a homestead may arise, there must be not only an actual occu- pancy, but in addition, there are certain statutory requirements as to recording a claim of homestead. In the States having these statutory requirements, the statutes must be complied with in order that the exemption may arise. The statutes re- quiring such formalities do not do away with the necessity of occupancy. The student is referred to the statutes of his own State, as to such requirements. EXTENT OF HOMESTEAD. We come now to inquire what property is included within the homestead. As we have seen, the right of homestead centers around the home, but the homestead exemption is not limited to the home '"Bowles vs. Hoard, 71 Mich., 150. "»Bente vs. Lange (Tex.), 29 S. W., 813 "'Herrick vs. Graves, 16 Wis., 157. 116 I'EEBHOLD ESTATES NOl OF INHERITANCE. itself, but includes other property in proximity and bearing a certain relation to the home. nr THE ABSENCE OF A STATUTORY LIMITATION THE HOMESTEAD INCLUDES NOT ONLY THE DWELLING HOUSE, BUT ALSO THE PROPERTY CONTIGUOUS AND APPURTEN- ANT TO IT, WHEN NECESSARY EOR THE MAINTENANCE AND ENJOYMENT OP THE HOME. There are a number of cases illustrating the application oi this statement. It has been frequently held that the home- stead included not only the home and buildings connected therewith, such as barns, sheds, etc., but contiguous buildings, such as a mill, etc., used by the head of the family in his usual employment.^*^ The reasoning of this class of cases seems to be that it is necessary for the protection of the family to preserve to its head the usual means by which the family is supported. If the property is not contiguous to the home, it will not be con- sidered as a part of the homestead, even though it be neces- sary for the maintenance and enjoyment of the home.^'* But a contrary rule prevails in some States.^'* In most of the States, the homestead has been limited in quantity or in value, and the term "homestead" is now fre- quently used in a more contracted sense to indicate the prop- erty which is exempt under the statute. THE HOMESTEAD IS LIMITED TO THE QUANTITY OR VALUE PROVIDED POR BY STATUTE. Homesteads under the statutes limiting their extent are of two classes; rural and urban. As a general rule, rural homesteads are limited to the dwelling house and a certain number of acres contiguous to it. "'Greeley vs. Scott, 2 Woods, 657. "•Walters vs. People, 18 111., 194. '"©uxton vs. Dearborn, 46 N. H., FEBEHOLD ESTATES NOT OF INHERITANCE. 117 It is the intention of the statutes relating to rural homesteads, to exempt sufficient property to enable the family to ma,intaiD a farm. The statutes vary as to the extent of this exemption. In some States, the exemption is limited to forty acres, and in others to as high as one hundred and sixty acres. In some States there is also a limit as to the value of rural homesteads. Urban homesteads are usually restricted to one or a certain number of lots and to a certain value. That is, the homestead owner may have one or more lots exempt from execution &a,le, providing they do not exceed a certain value; and if the prop- erty exceeds the value limited, the excess vyill be subject to the claims of creditors. The statutes also vary as to the extent of this limitation. In one State, the exemption is placed at five hundred dollars, while in another state the amount is fixed at five thousand dollars. The statutes provide the method by which the surplus value may be reached, and also the method by which the homestead exemption may be protected. This is accomplished usually in one of two ways : First, property to the amount fixed by stat- ute or of the value limited is set off to the debtor, and the bal- ance subjected to execution sale ; or, second, in case of urban property where a partition is not possible, the entire property is sold, in which event, the amount of exemption is paid tbe owner of the homestead, and the surplus is applied to satisfy the execution indebtedness. In determining the value of homestead, the value of im- provements is added to the value of the land.i" ""In Texas the exemption as to value is on the lot alone, and Im- provements to any extent are exempt. Swayne vs. Chase (Tex.), 30 S. W., 1049. 118 PEEEHOLD ESTATES NOT OF INHERITANCE. IN WHAT ESTATES? The purpose of the statute being to preserve a home to the debtor, it makes but little difference what title to the property he has, providing he has the right to maintain a home on it."^ The statutes usually do not provide what estate shall be necessary to support a homestead, but usually refers to prop- erty "owned" by a debtor. m THE ABSENCE OF A STATUTOBT PBOVISION EEQTJIR- ING A CEKTAIN ESTATE TO SUPPORT A HOMESTEAD, IT IS NOT NECESSARY THAT ONE CLAIMINa A HOMESTEAD SHOULD OWN THE PROPERTY IN PEE SIMPLE; IT IS SUFPICIENT THAT THE DEBTOR'S INTEREST IN THE PROP- ERTY IS SUCH THAT IT MAY BE SUBJECTED TO THE PAY- MENT OP HIS DEBTS.'™ Thus, it was held, in the absence of a statutory provision, that one having the naked possession was, as against every one not having a superior title, entitled to a homestead exemiv tion.^9* An estate for life, an estate for years, an equitable estate, and the interest of one in possession under a contract of pur- chase, have each been held sufficient to support a claim of homestead.^^' The exemption, however, cannot be claimed by one owning an estate in the property which does not entitle him to posses- sion.^®" A remainderman not in possession, for instance, is not entitled to a homestead exemption.^'' '"Deere vs. ChEupman, 25 111., 610. Conklin vs. Foster, 57 111., 107. ""Bartholomew vs. West, 2 Dill., 293. '"Spencer vs. Geissman, 37 Cal., 99. '"McKee vs. Wilcox, 11 Mich., 358. "•Stern vs. Lee, 115 N. C, 426. '"Meigs vs. Dibhle, 73 Mich., 101. Stern vs. Lee, 115 N. C, 426; 26 L. R. A., 814. FREEHOLD ESTATES NOT OF INHERITANCE. 119 It has been generally held that a homestead may be had in property owned in common;"* but in some States the contrary has been held on the ground that it would be inconvenient to divide the interests of the tenants and fasten the homestead on one of such interests.^'^ It is generally held that a home- stead will not arise in partnership property; since it is prim- arily liable for partnership debts and is not immediately avail- able for the support of the family and cannot be said to be owned by the head of the family within the intent of homestead laws.^"" In some States the exemption is allowable in partner ship property .^"^ AGAINST WHAT DEBTS IS THE HOMESTEAD PROTECTED? As a general rule, the homestead is exempt from all debts of the owner. There are a number of exceptions to this statement. The following are some of the privileged debts which, in many States, are prior to the homestead exemption: 1. The statutes usually provide that the homestead shall be liable for public debts. Thus, the homestead may be sold to enforce the payment of taxes legally assessed against it.^°^ 2. It has been held that the statutes do not affect debts incurred prior to the passage of the homestead statute, and that a provision attempting to extend the exemption debts incurred prior to the passage of the act was unconstitu- tional as an impairment of the obligation of contracts.^"' But '"Lozo vs. Sutherland, 38 Mich., 168. Tarrant vs. Swain, 15 Kan., 149. Allowable in property held by entireties. Shelton vs. Orr, 89 Tenn., 82; 12 L. R. A., 514. '"Thurston vs. Maddocks, 6 Allen, 430. Joyce vs. J. I. Chase Threshing Machine Co., 89 Tenn., 337; 12 L. R. A., 519. ™Pond vs. Kimball, 101 Mass., 105. ™Moyer vs. Drummond, 32 S. C, 165; 7 L. R. A., 747. ^'"Shell vs. Duncan, 31 S. C, 547; 5 L,. R. A., 821. '"Morrison vs. Watson, 101 N. C, 332; 1 L. R. A., 833. 120 FREEHOLD ESTATES NOT OP INHEKITANCE. the authority of this case is doubtful. The same argument was urged as to the effect of statutes abolishing imprisomnent for debt, but in the cases involving this question the clear weight of authority is that the statutes abolishing imprisonment for debt affected only the remedy and did not impair the obligation of a contract. And this we think is the better doctrine. 3. Valid liens on the property before it acquires the char- acter of a homestead may be enforced against it. That is, the debtor cannot by moving and establishing his home on prop- erty defeat the existing liens or any vested right in the prop- erty. Thus, if prior to the time the homestead was estab- lished, the property had been levied upon under a valid judg- ment, it may be sold, free from homestead claims. A contrary rule prevails in a few States, and in such States, if the debtor occupies the property as a homestead at any time before a sale on the execution, he may claim the exemption.^" Thus, in Mississippi a single man occupied certain premises as a home. Under the statute of that State, not being the head of a family, he was not entitled to the homestead exemption. The property was levied upon, but one hour before the sale took place, defendant married. The court held that he thereby be- came entitled to a homestead exemption.^"^ 4. In some States, the homestead is subject to sale under an execution upon "causes of action existing at the time" the homestead is acquired. Thus, in Vermont it was held that the homestead was not exempt from a note given in renewal of notes outstanding when the homestead was acquired, the parties to the notes be- ing the same.^°° ="Stone vs. ]>arnell, 20 Tex., 11. "Trotter vs. Dobbs, 38 Miss., 198. ""Robinson vs. Leach, 67 Vt., 128; 27 L. R. A., 303. FEEEHOIiD ESTATES NOT OF INHERITANCE. ' 121 5. In most of the States the homestead is subject to the claim of the vendor of the homestead property. The justice of this proTision is at once apparent; for, until the payment of the purchase money, the superior right and equities are in favor of the vendor.^"'? 6. In some States the privileged debts are described as the "debt contracted" or "any debt or liability contracted" or "any debt growing out of or founded upon a contract, express or implied." In some States under a construction of these and similar statutory provisions, it has been held that the exemption does not extend to claims not arising out of contract, and the home- stead may be sold on judgments arising out of an action ex delicto.^"* But in Michigan, under a statute which exempts the homestead from liability "for any debts contracted," it was held that a homestead was exempt on a judgment on a tort.^" 7. In many of the States claims for labor or material in erecting buildings on or improving the homestead may be en- forced against it. 8. The homestead is ordinarily subject to the liens created against it by the joint act of husband and wife. Thus, a mortgage made by the husband and the wife on the homestead in the manner required by statute may be enforced against it. In other States various debts are privileged; but it is un- necessary to go any further into details as to statutory pro- vision of each State.^io ^"Stone vs. Darnell, 20 Tex., 14. ""See cases cited In Mertz vs. Berry, 101 Mich., 32. ""Mertz vs. Berry, Ifll Mich., 32; 24 L. R. A., 789. Conroy vs. SuUlyan, 14 111., 451. "°In one state the homestead is subject to a claim for necessaries furnished the family. 122 FREEHOLD ESTATES NOT OF INHERITANCE. HOW LOST. 1. By ABANDONMENT. The homestead being acquired by actual occupancy, it fol- lows that it may be lost by the removal of the owner and his family without any intention to return, or if after removal with intent to return, an intent is formed not to return."" On a removal without animo revertandi the property loses its character as a home and is no longer within the protection of the statute. If the removal by the owner is temporary and with bona fide intention of returning and re-establishing his home on the property, he is not considered to have abandoned the home- stead.2" While the force and equity of these principles are at once apparent, they are oftentimes extremely difficult to apply. The intent of the owner to return or not to return is of course a mental process which cannot always be traced. The nature of this mental process can only be discovered in the acts or declarations of the owner, and the question of intent must be determined by the facts existing in each case. No general rule can be stated by which it may be determined what facts will warrant an inference that there was or was not an inten- tion to abandon the homestead. In arriving at the actual intent, it is proper to consider the length of time the owner has been absent, the circumstances under which he left, any declarations he may have made as to an intention to abandon the property, the disposition or arrangement respecting the property during his absence, his "•Mallard vs. Bank, 40 Neb., 784. ""Rasholt vs. Mehus, 3 N. D., 513; 23 L. R. A., 239. Lee vs. Mosley, 101 N. C, 311; 2 L. R. A., 106. FREEHOLD ESTATES NOT OF INHERITANCE. 123 actions while away as to the establishment of another home, and kindred facts.^" At the common law, the husband has the right to fix the place of the home, so that as a general rule, the husband by compelling the wife to remove to a new home, may thereby bar and release her exemption in the former homestead. This is the rule supported by the weight of authority, and it makes no difference whether the wife accompanies the husband volun- tarily or involuntarily. In some States it has been held that if the wife accom- panies the husband as a result of his coercion, she may still claim the homestead in the home involuntarily abandoned. 2. ALIENATION. As a general rule, a husband may convey his property as he pleases, and his grantee will acquire all his title subject to the wife's dower, if she does not join in the deed. In the absence of a statutory restriction, the husband may convey his right in the homestead, subject to the wife's dower and right of homestead. In most of the States, however, the >^'Kaeaiiis -VB. Jaachlmstbal, 88 Micli. 78. This was a suit by complainants, John and Augusta Kaeding, to restrain defendants from carrying on proceedings to obtain possession of property plaintiffs claimed as a homestead, and which defendant claimed title to under an execution sale. It appeared on the hearing that Mrs. Kaeding in 1883 carried on a millinery business, and in that year the property in question was pur- chased. In 1884 the complainants occupied this property and it became a homestead under the Michigan statutes. In 1885 the husband not being able to find work, the wife resumed the millinery business, and the family moved to another part of the city of Detroit and continued away from the homestead for a period of six years. After filing this bill, complainants returned and occupied the home. On the hearing complainants testified that they had a continuing intent to return and occupy the home; that their absence was only temporary and until such time as the husband might recover from his sickness and find work with sufiicient remuneration to support the family in the home. The Supreme Court held that the evidence was suflScient to warrant a find- ing that the homestead was not abandoned. 124 FBBKHOLD ESTATES NOT OF INHERITANCE. statutes provide that the homestead shall not be aliened, ex- cept by the joint act of the husband and the wife.^^* IN OKSEB THAT A CONVEYANCE OE THE HOMESTEAD MAY BE VALID, IT MUST COMPLY WITH THE STATUTE."' If the statute requires the joint act of the husband and wife, a deed by the husband alone is void, not only as to the wife, but also as to the husband. ^^® "When the statute prescribes the manner in which the con- reyance shall be made, it must be carefully followed; for any defect in acknowledgment or other requirement will inval- idate the instrument.^^'' A conveyance by the husband alone, or a conveyance by the husband and wife, but not in manner required by statute, will be valid if made to secure a debt privileged against the homestead exemption.^^' It has been held that a subsequent abandonment of the homestead by the husband and wife will make valid a prior conveyance in which the wife did not join.^^' This is not the general rule, for in most States the deed is invalid for all pur- poses, and will not become valid by any subsequent acts of the parties, less than a conveyance in the manner required by the statute.220 In some States it is held that a deed by the husband alone of proi)erty including the homestead and additional property ''"Law vs. Butler, 44 Minn., 482. ""King vs. Welborn, 83 Mich., 195. ""Amphlett vs. Hibbard, 29 Mich., 297. '"Kitterlin vs. Milwaukee Mechanics' Mut. Ins. Co., 134 111., 637; 10 L. R. A., 220. Am. Sav. & Loan Assn. vs. Burghardt (Mont.), 48 P., 391. '"Investors Mtg. Co. vs. Lloyd (Tex.), 33 S. W., 750. Cook vs. Higley, 10 Utah, 228. ""Brown vs. Coon, 36 111., 243. '"Phillips vs. Stanch, 20 Mich., 369. The subsequent death of the wife will not make valid the grantee's title. FREEHOLD ESTATES NOT OP INHEHIITANOE. 125 is valid to convey, subject to the wife's dower, so much, as is without the homestead right. Thus, in Michigan, where the statute gives an exemption of forty acres, it was held that a conveyance of eighty acres, in which there was a homestead, was invalid as to so much of the property as the homestead right covered, and valid as to the residue.^^^ But in some States it has been held that the deed is void as to the entire tract if the portion exempt as a homestead on account of its location can not be severed from the balance.^^^ ^Jid in other cases it has been held that where the homestead property ex- ceeds the value allowed by the statute, a transfer or mort- gage is valid as to the excess.''^' ""Wallace vs. Harris, 32 Mich., 379. "^Sammon vs. Wood, 65 N. W., 529. '"Bank vs. Lyon, 52 Miss., 181. Desipain vs. Wagner, 163 111., 598. CHAPTER IV. RIGHTS AND LIABILITIES OF LIFE TENANTS. Before taking up the consideration of estates less than a freehold, it is perhaps the most opportune place to discuss the relation of the life tenant and the remainderman to each other, and briefly consider their respective rights and liabili- ties. The principles hereinafter discussed are applicable to all life tenants, and the same principles are generally applicable to all tenants for years, or at wUl. The tenant for life is entitled to the possession and use of the land during the continuance of his estate. This right to the possession and use does not confer an absolute dominion over the property for the life of the tenant; his rights are lim- ited by the rights of the remainderman or reversioner, who, while he has no present right of possession or to the use of the land, nevertheless is the owner of an estate in it and is entitled to have the property preserved to him. As to the relationship of the respective owners, -it may be said that: THE ESTATES OF THE LIEE TENANT AND THAT Or THE BEMAINDEEMAN OB, KEVERSIONEB ABE INDEPENDENT, DISTINCT AND CONSISTENT. The proposition that the estates of the life tenant and that of the remainderman are distinct and independent is evidenced in many different rulings of the courts. For instance, the life tenant may maintain an action for dam^age to his life estate, without joining the remainderman RIGHTS AND LIABILITIES OF LIFE TENANTS. 127 as one of tiie plaintiffs. So, a levy and sale of the remainder- man's estate does not in any way affect the life tenant's right to control and possess the property during the life on which the estate is limited.^ Neither will an adverse possession of the pr(^erty start the statute of limitations against the re- mainderman until the termination of the life estate.^ That the estates are consistent is evidenced by the fact that the life tenant cannot by virtue of his possession set up a claim of adverse title against the remainderman or reversioner." Should the life tenant purchase a claim of title ffom a third person, he may not set it up against the remainderman; for such a purchase will be regarded by the law as being made partly for the benefit of the remainderman, who may have the benefit of it on contributing his proper share of the cost of the title.* The rights of the life tenant in the estate may be stated as follows: 1. THE LIFE TENABTT IS ENTITLED TO THE REUTS, PROFITS AND THE ANNUAL PKODTJCT OF THE PROPERTY DURING THE CONTINUANCE OF HIS LIFE ESTATE, BUT MUST NOT WASTE OR ENCROACH UPON THE CORPUS OF THE ESTATE. The rights of the tenant in the product of the property and his rights in the property itself or corpus, are quite distinct and different; of the former, he is absolute owner, of the latter, he is merely a tenant, and, like other tenants, must resi)ect the rights of those who are entitled to enjoy the property after the termination of his estate. The law endeavors to protect the 'Gindratus vs. Western R., 19 L. R. A., 839. ^Storrs vs. Storrs, 58 Mich., 55. "Whitney vs. Salter, 36 Minn., 103. 'Haskett vs. Maxey (Ind.). 19 L. R. A., 379. 128 EIGHTS AND LIABILITIES OF LIFE TENANTS. rights of both the tenant and of the remainderman ; it endeav- ors to allow the tenant a reasonable and full use of the prop- erty during his term and, at the same time, to preserve the property for the remainderman, so that he may have the full benefit of it on the termination of the life estate. 2. THE LIFE TEBTAITT MAY CONVEY HIS ESTATE AND HIS GRANTEE WILL ACQTTIBE ALL HIS EIGHTS IN THE PROPERTY. The life tenant's estate is also subject to his debts and may be taken on an execution. 3. THE LIFE TENANT IS ENTITLED TO REASONABLE ESTOVERS. The life tenant may cut timber to be used on premises for fuel and for repairing buUdings and fences.^ 4. THE LIPE TENANT IS ENTITLED TO EMBLEMENTS.' The duration of the life estate, depending on the life of the tenant or of some third person, is uncertain, and the person who would own the emblements at the termination of the es- tate will be entitled to remove them at their maturity, al- °SmltIi T«. Jewett, 40 W. H., 417. 1 1.. R. A., 42T. The defendant, Nancy Jewett, was the owner of a life estate in a farm, and leased it, with privilege of cutting firewood, to one Bean. Defendant Jewett continued to occupy the house on the premises, but sublet a portion of it to Bean. The defendant and Bean in winter months maintained separate fires and used wood from the premises. Complainant then filed this bill to restrain defendant from committing waste and for an accounting for the proceeds of the estate. The court refused to issue an injunction and held that the defendant Jewett, as a life tenant, was entitled to a reasonable quantity of wood for her- self, family and necessary servants, and that this right could be as- signed to her tenant. The court also held that the defendant, as life tenant, was entitled absolutely to the income of the property and that she could not be compelled to account for the same. 'Bradley vs. Bradley, 56 Conn., 374; 1 L. R. A., 427. BIGHTS AND LIAlBILITIES OF UIFE TBOSTANTS. 129 though the estate for life was determined "by the death of the person, on whose life the estate was limited.^ Under such circumstances the person entitled may enter, cultivate and harvest the crop after the termination of the life estate. This rule does not apply if the life estate is terminated by the act of the life tenant. Thus, where the estate was granted to a widow for life or until she married again, on her marriage she would not be er.titled to emblements.' The doctrine as to emblements is applicable to all tenancies of uncertain duration. The life tenant being entitled to all the rents and profits, has certain reciprocal duties which he owes to the remainder- man or reversioner. 1. THE LITE TENANT MUST PAY AIiL ORDINABY TAXES ASSESSED UPON" THE PROPERTY DURING THE CON- TINUANCE OF HIS ESTATE. TBradley tb. Bailey, 56 Conn., 374; This was an action of trespass brought by plaintiff against defen- dant for entering upon land in possession of plaintiff and destroying a crop of rye growing thereon. John R. Bradley was life tenant of the land in question, and defendant was the owner of an estate in remainder and was entitled to possession on the death of said John R. Bradley. In April, 1885, said John B. Bradley gave plaintifE a lease for three years, which was terminated on September 20th, same year, by the death of Bradley. On the 18th of September, two days previous to the death of the said Bradley, plaintiff sowed the crop of rye in question. On June 20th, 1886, defendant entered and plowed up and destroyed said rye crop then maturing. Plaintiff then commenced this action for the loss of the crop and recovered a judgment in the lower court. Defend- ant appealed. Defendant insisted that plaintiff at the time he sowed the crop knew that his landlord was in a dying condition, and sowed it for the purpose of defrauding the remainderman of the use of the land in which the crop was sowed. The court in affirming the judgment of the lower court, held that the tenant's estate being determined by the act of God, he was entitled to reap the crap at maturity, and that the fact that he had reason to believe that the estate would be determined before the crop matured would not defeat his right to emblements. •Debow vs. Colfax, 10 N. J. L... 128. See ante, page 21. 10 130 RIGHTS AND LIABILITIES OF LIFE TENANTS. This obligation does not extend to assessments for permar nent improvements to the property.' Permanent improTements (sometimes called betterments), are deemed to increase the value of the land, and for that rea- son equity will apportion the tax between the life tenant and the remainderman.^" 2. THE TEUANT FOE LIFE MUST PAY THE IWTEIIEST ON ENCtrmBRANCES WHICH ACCRUES DURING THE CON- TINUANCE OF HIS ESTATE. There is no obligation on the part of the life tenant to pay anything on the principal, but if he does so, the remainderman may be compelled to contribute the amount paid, less the present value of the interest, for the life of the person upon whom the estate is limited.^^ 3. THE LIFE TENANT MUST ALSO KEEP THE PROP- ERTY IN REPAIR AND IN AS GOOD CONDITION, REASON- ABLE WEAR AND TEAR AND DAMAGE BY THE ELEMENTS EXCEPTED, AS WHEN HE ENTERED INTO POSSESSION. If the life tenant makes permanent and valuable improve- ments, they are deemed to be made for his own benefit and no claim can be made for them against the owner of the inherit- ance.^^ 4. THE LIFE TENANT MUST NOT COMMIT WASTE." Waste is either voluntary or permissible, being voluntary when the waste complained of is the result of a deliberate or positive act, and permissible when the injury complained of is •Roche vs. Waters, 72 Md., 264; 7 L. R. A., 533. Plympton vs. Boston Dispensary, 106 Mass., 544. Thomas vs. Evans, 105 N. Y., 651. "Peck vs. Sherwood. 56 N. Y.. 615. "Mosely vs. Marshall, 27 Barb. (N. T.), 42. Whitney vs. Salter, 36 Minn., 103. "Schier vs. Eldridge, 103 Mass., 345. "For a further discussion as to waste, see post Landlord & Tenant RIGHTS AND lilAIBILITIES OIF L.IFE TENANTS. 131 the result of an omission to do what is necessary to prevent an injury to the property.^* It is impossible to point out to the student what specific acts constitute voluntary waste. The same act under some circumstances might be waste, which under other circumstances might be a positive benefit to the inheritance. Thus, in England, where trees are scarce, the cutting of timber by the life tenant might inflict an injury to the estate; in America, in some localities the clearing away of the timber might be a benefit. TO CONSTITXTTE VOLTTNTARY WASTE, THE ACTS COM- PLAINED OF MUST, TTITDER THE CIRCTTMSTANCES OE EACH PARTICULAR, CASE, INFLICT A LASTING DAMAGE TO THE INHERITANCE, OR THEY MUST TEND TO DESTROY OB LESSEN THE VALUE OF THE INHERITANCE." The life tenant is not responsible for injuries which are the result of the act of God or of a public enemy, but is responsible for aU acts caused by his own carelessness or negligence, or the negligence or carelessness of those for whom he is re- sponsible. We will briefly call the student's attention to a few specific acts of the life tenant which may amount to voluntary waste. TREES. It has already been stated that trees are a part of the inher- itance. While they are the product of the soil, yet they are produced so slowly that they are regarded as part of the inher- itance itself, and, under most circumstances, impart value to it. We have seen that the life tenant is entitled to cut trees neces- sary for the temporary enjoyment of his estate, that is for reasonable estovers. Ordinarily, if the tenant makes a more "Stevens vs. Rose, 69 Mich., 259. "Dawson vs. Coffman, 24 Ind., 220. 132 RIGHTS AND LIABILITIES OiP LIFE TENANTS. extended use of the trees than that allowed for his reasonable enjoyment of the property, — ^that is, for repairs and for fuel to be used on the property, — ^he encroaches on the inheritance, and is guilty of voluntary waste. It is well settled that it is voluntary waste for the tenant to cut trees for sale, or for any purpose not connected with the land.^° If the tenant cuts the timber for a purpose not con- nected with the land, the title to it is in the remainderman or reversioner, and an action of replevin may be maintained by him for its recovery. In many districts in this country, either by custom or by reason of the uncultivated condition of the land, the above rule is not in force. Where the removal of the trees is necessary for the proper cultivation of the soil, and where such removal would not damage but be a benefit to the inheritance, waste is not committed if it is done in conformity with good hus- bandry.*' In determining the question whether or not a given act of cutting timber is waste, it is proper to take into consideration the relative amount of cleared and wooded land, the customs of the community and the requirements of good husbandry.^' It is a question for the court or jury to determine whether, under the particular circumstances, the acts of the life tenant amount to waste. The life tenant may be permitted by the terms of the grant to commit what under the usual conditions would be considered waste, and under such circumstances, he is said to hold his life estate "without impeachment for waste." But a tenant "without impeachment for waste" may not commit wanton and deliberate waste.*' "Hubbard vs. Shaw, 94 Mass., 120. Webster vs. Peet, 97 Mich., 326. "Davis vs. Clark, 40 Mo., 515. Sayers vs. Hoskinson, 110 Pa. St., 473. "Crawley vs. TImberlake, 2 Ird. Bq. (N. C), 460. "Clement vs. Wheeler, 25 N. H., 361. RIGHTS AND LMIBILITIES OIF lilFB TENANTS. 133 SOIL. The life tenant may make any reasonable use of the soil; but he must not exhaust it by improper tillage. He may cul- tivate the land in any manner consistent with good husbandry. A use of the land which is contrary to the rules of good husbandry and which works any injury to the soil is waste. Thus, the working of a field contrary to the established rotation of crops was held to be waste."" MINES. The life tenant may not open new mines; but he may con- tinue to work mines open at the commencement of his estate."^ It has been held that while a life tenant may not open new mines, yet he may sink a new shaft to penetrate into a seam or vein already opened."" It has been held that the life tenant has no right to work mines which were completely abandoned prior to the com- mencement of his estate, where the abandonment was for the benefit of the estate; but where the abandonment was occa- sioned for the want of a market, it was intimated that the life tenant might work the mine without committing waste."^ The rule as to mines also applies to gravel pits, quarries and clay pits. The product of mines, quarries and pits already opened are regarded, not as a part of the corpus, but, as a part of the profits of the estate, and, as such, belong to the life tenant. Thus it was held that a life tenant might work an open salt or oil well or mine even to exhaustion without an account- ing, but might not open new wells or mines."* "Darden vs. Cowper, 7 Jones (N. C), 210. Chapel vs. Hull, 60 Mich., 167. "Marshall vs. Mellon, 179 Pa., 371; 35 L. R. A., 816. "Crouch vs. Puryear, I. Rand. (Va.), 25S. Billing vs. Taylor, 27 Mass., 460. "Gaines vs. Green Pond Iron Mining Co., 32 N. J. H., 68. "WiUiamson vs. Janes, 43 W. Va., 562; 38 L. R. A., 694. 134 iBIGHTS AND MAIBILITIES OiF L.IPB TENANTS. BUILDINGS. The life tenant must keep the buildings and fences on the estate in good repair, and for this purpose he may cut and use the timber on the land. If the tenant permits the buildings to get out of repair, he is guilty of permissive waste, or if he tears them down or does other injurious acts, he commits voluntary waste. The tenant may make slight alterations, but he must not thereby change the character of the building."'* At the old common law, the tenant was guilty of waste if he committed certain alterations. A broader rule has now been adopted, and a life tenant may make alterations and changes in the building, providing he does not damage the inheritance. Under the old common law rule, a life tenant could not erect a new building on the estate without commit- ting waste; under the rule as now adopted, such erection is not waste, unless an injury to the inheritance."* REMEDY FOR WASTE. At the common law, a tenant for life whose estate arose from a grant, was not prohibited from committing waste, since the law extended only to acts of tenants by dower or courtesy. It was presumed at the common law that if it was intended to prohibit waste, the grant creating the estate would expressly contain such a provision. The estates of courtesy and dower being created by law, of course no expression or provision as to waste could be e;x;- pected, and the common law protected the remainderman by prohibiting waste. The defects in the common law in this "Hasty vs. Wheeler, 12 Me., 434. "Wlnship vs. Pitts, 3 Paige (N. Y.), 259. Pjmcbon vs. Steams, 52 Mass., 304. RIGHTS AND LIABILITIES OF LIFE TiBNANTS. 135 respect were supplied by the statutes of Marlbridge and Glou- cester, which made all tenants for life or years liable for waste. Statutes haye been passed in all the States based on the statutes named, and the student must consult the statutes of Ms own State in order to determine the exact remedy for waste. As a general rule, it may be said that where waste has been committed, the remainderman or reyersioner may sue and recoTer the damage to the inheritance. K the waste has not been committed, but is merely threat- ened, the tenant may be enjoined from its commission by an injunction from a court of competent jurisdiction. Under some of the statutes, the tenant committing waste is liable for treble damages. CHAPTER V. ESTATES LESS THAN A FKEEHOLD. We come now to the consideration of interests connected with and growing out of real property, which, by the law, are regarded as inferior to freehold estates. These interests are known as chattels real, or as personal interests in real property. CHATTELS EEAL ARE ESTATES IN LAND LESS THAN A FREEHOLD.' The principal example of this class of property is an estate for years. "These interests are called chattels real," says Blackstone, "as being interests issuing out of or annexed to real estate; of which they have one quality, viz., immobility, which de- nominates them real; but want the other, viz., a sufficient inde- terminable duration, and this is what constitutes them chattels. The utmost period for which they can last is fixed and deter- minable, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another life; their tenants were considered upon feudal principles as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest till the reign of Henry 'Knapp vs. Jones, 143 111., 375. =Blackstone Com., Book II, p. 386. ESTATES LESS THAN A iPREHHOiDD. 137 This classification which, regards an estate of nine hun- dred and ninety-nine years as inferior to an estate for the life of another, as indicated by the quotation arises out of condi- tions which existed under the feudal system." While these conditions no longer exist, the distinction and classification of property resulting therefrom still continues except where changed by statute. In a few States, by statute an estate for ninety-nine years is now given the attributes of a freehold estate.* ^"But tlie most remarkable exception to the original rule occurs in the case of a lease of lands or houses for a term of years. The interest which the lessee, or person who has taken the lease, possesses, is not his real, but his personal property; it Is but a chattel, though .the rent may be only nominal, and the term ninety or even a thousand years. This seeming anomaly is thus explained. In the early times, to which we have referred, towns and cities were not of any very great and general importance; their influence was local and partial, and their laws and customs were frequently peculiar to themselves. Agriculture was then, though sufficiently neglected, yet still of far more importance than commerce, and from the necessities of agriculture arose many of our ancient rules of law. That the most ancient leases must have been principally farming leases is evident from the sx)ecimens of which copies still remain, and also from the circumstance that the word farm applies as well to anything let on lease, or let to farm, as to a farm house and the lands belonging to it. Thus we hear of farmers of tolls and taxes, as well as of farmers engaged in agriculture. Farming in those days required but little capital, and farmers were regarded more as bailiffs or servants, accountable for the profits of the land at an annual sum, than as having any property of their own. If the farmer was ejected from his land by any person other than his landlord, he could not, by any legal process, again obtain possession of it. His only remedy was an action for damages against his landlord, who waa bound to warrant him quiet possession. The farmer could, therefore, be scarcely said to be the owner of the land, even for the term of the lease; for his Interest wanted the essential incident of real property, the capability of being restored to its owner. Such an interest In land had, moreover, nothing military or feudal in its nature, and was, con- sequently, exempt from the feudal rule of descent to the eldest son as heirs at law. Being thus neither real property, nor feudal tenement. It could be no more than a chattel; and when leases became longer, more valuable and more frequent, no change was made; but to this day the owner of an estate for a term of years possesses in law merely a chat- tel. His household estate is only his personal property, however long may be the term of years, or however great the value of the premises comprised In his lease." Williams on Keal Property, 9 Eng. Ed., page a. •McLean vs. Rockey, 3 McLean, U. S., 235. 138 ESTATES ILESS THAN A iPBEEiHOIiD. Out of this classification of real property grow some im- portant results. At the common law, livery of seisin was necessary to be made upon every grant of a freehold estate. Livery of seisin was a public ceremony on the land, by which the corporeal possession of the land was invested in the feoffee. It was impossible to deliver this possession to the grantee of an estate of freehold, to commence in the future, and it follows that at the common law it was impossible to create a freehold estate to commence in the future. In the case of an estate for years, it not being a freehold, livery of seisin was not necessary, and the estate might be granted to commence in future. A tenant for years is therefore said not to be seised of lands, but on his entry upon the leased premises he is said to be possessed not of the land but of a term of years. This result growing out of the old method of transferring property is still of some importance. The seisin of the property not being in the tenant for years, it still continues in the owner of the freehold or reversioner. This being so, it follows that the owner of the reversion being still seised of the property, his wife, as already stated, will be entitled to dower, even though his right to possession did not accrue during the coverture." But if the reversioner's estate is preceded by an estate for life (freehold) and his right to possession does not accrue during his lifetime, his wife is not entitled to dower. So chattels real being personal interests in real property, pass, on the death of the owner, to tlie personal representa- tive, and not to the heir, and when sold on execution must •See Ante dower, page 74. LANDLORD AND TENANT. 139 be sold in accordance with the statutes regulating the sale of personal property.' With this introduction as to the character of an estate for years, we may now proceed to a discussion of the estate. AN ESTATE FOB YEAKS IS ONE GBANTED FOB, A GEE- TAIN DETERMINATE PEBIOD. It is not necessary that the determinate period should be a year or morej for, as Blackstone says: "If the lease be but for half a year or a quarter or any less time, the lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term the law takes notice of".^ The person granting an estate for years is usually called the lessor or landlord, and his grantee is called the lessee or tenant. LAOTDLOED AJSTD TENAJSTT. THE RELATION OF LANDLORD AND TENANT. It is important to a clear understanding of this subject, to define at the outset what the relation of landlord and ten- ant consists of, and to ascertain what are its essential charac- teristics. Various rights, duties and responsibilities spring out of the relation itself, not only as between the parties to it, but also as between the parties and those who are strangers to the contract. Many rights, duties and responsibilities are inherent in the relation, irrespective of the particular pro- visions of the lease contract. In our system of law, the word tenant, in its broadest sense, is applied to any person who has lawful possession of any land, •Buhl vs. Kenyon, 11 Mich., 249. "a bue., 130. 140 LANDLORD AND TENANT. or legal estate therein, or right issuing from, or appurtenant to, land. Thus, we have tenants in fee, tenants for life, tenants in dower, tenants by the curtesy, tenants for years, tenants at will, and by sufferance, etc. In the broad signification of the word, a tenant is one who holds a rightful possession, but, in the limited sense in which the word is used, as the correlative of landlord, it means one who has acquired by a contract; tech- nically called a lease, a right to possession from the one who is called landlord, to whom the possession of the property will revert at the expiration of the tenant's term. Landlord is the correlative of the word tenant, and there can be no landlord without a tenant. By granting his right of possession, not his title, to another upon terms and for a time mutually agreed upon by a contract called the lease, he becomes the landlord and the other the tenant, and the relation is estab- lished. Prom this statement, the following propositions fol- low: THE BELATION OP LANDLOBD AND TENANT ALWAYS ARISES OUT OF A CONTRACT. THE SUBJECT MATTER OP THE CONTBACT IS THE BIGHTPUL POSSESSION OP LAND OR OP SOME INTEREST THEREIN OB OP SOME BIGHT SPBINGING OUT OP OB APPUBTENANT TO LAND, AND THE ESSENCE OP THIS CONTBACT CONSISTS IN THE TRANSPER OP THE LAND- LORD'S BIGHT OP POSSESSION TO THE TENANT. As this relation arises in contract, so also it subsists in a continuing contract, and is liable to be destroyed by a breach of those parts of the contract, the fulfillment of which either the law has made, or the parties have expressly agreed shall be, essential to its continuance in force, and hence are called conditions. A breach of one of these conditions by one party absolves the other from his obligations under the contract, and at his option terminates the relation. From the proposd- IiANDLOED AND TENANT. 141 tion that the relation of landlord and tenant must subsist in a continuing contract, it results that there must remain in the landlord a right to resume possession, under certain con- ditions. This is called the landlord's reversion, or right of re- entry. It may arise at a certain time which is fixed by the lease, or it may be a mere contingent right growing out of a possible forfeiture of the lease by the tenant on account of the breach of one of its essential conditions. For a lease may be perpetual,* or for the whole term to which the landlord is entitled, in which case the landlord would never regain pos- session of the thing leased, unless the tenant should forfeit his lease by a breach of an essential condition, but there will still be a tenancy so long as a possible reversion remains in the landlord, but without this possible reversion, the relation cannot exist. THE ESSENTIAL OBLIGATION OF THE LANDLORD'S CON- TRACT IS THAT HE IS THE LEGAL OWNER OE THE POSSES- SION WHICH HE ASSUMES TO CONVEY, AND THAT HE WILL DEFEND THE LEGALITY OF THIS POSSESSION DURING TEE EXISTENCE OF THE LEASE. In every carefully drawn lease there is contained an under- taking on the part of the landlord that the tenant, so long as he performs the contract on his part, shall peaceably and quietly enjoy the possession which the lease assumes to convey during his term. This is called the covenant for quiet en- joyment. But this undertaking on the part of the landlord is more than a mere personal covenant; it is a condition, the breach of which absolves the tenant from all obligations under the lease. And inasmuch as it is an essential part of the lease, it is an implied covenant in every lease, to the fulfillment of which the landlord is bound, whether it is expressed in the lease or not. •White vs. Fuller, 38 Verm., 193. 142 LANDLORD AND TENANT. The covenant for quiet enjoyment is not to be construed literally, but in its legal sense. It is not an undertaking that the tenant's possession will not be disturbed by trespassers or wrongdoers, nor does it offer any indemnity against the acts of such persons. THE COVENANT FOB, QUIET ENJOYMENT MEANS THAT THE LANDLORD GUARANTEES OR WARRANTS THAT THE RIGHT TO POSSESSION WHICH HE ASSUMED TO CONVEY BY THE LEASE IS A LEGAL ONE, AND THAT HE WILL DEPEND IT IN THE COURTS IP IT IS ASSAILED THERE, WHETHER BY ONE CLAIMING UNDER HIM, OR BY ONE CLAIMING SUPERIOR TITLE TO HIS, OR, AS IT IS COMMONLY SAID, BY PARAMOUNT TITLE. Therefore, if an action is brought to dispossess or deprive the tenant of the whole or a part of that which is assured to him by his lease, either by one who claims under his landlord, or by one who claims by title paramount to his landlord's title, the tenant is not bound to assume the defense of the action.' He may, by giving the landlord seasonable notice of the action, cast upon him the burden of defending the title. If the landlord fails in this defense, the relation of landlord and tenant is at an end, and the tenant is absolved fi'om his obligations under the lease, and the landlord, having been properly notified by the tenant to defend, a judgment against the title is conclusive in favor of the tenant and against the landlord in any proceedings which may be had thereafter between them. THE ESSENTIAL OBLIGATION OF THE TENANT'S CON- TRACT IS THAT HE WILL ON HIS PART BE LOYAL TO HIS LANDLORD AND TO THE TITLE AND POSSESSION WHICH HE RECEIVED AT HIS HANDS. •Cohn vs. Norton, 57 Conn., 480; 5 L. R. A., 572. LANDLOED AND TENANT. 143 The word "loyal" used in this proposition is not a legal term, nor has it any technical signification, but it is compre- hensively expressive of the general nature of those obligations of the tenant which arise out of the relation itself, a breach of which subjects him to a forfeiture of his rights under the lease.^" Among these obligations is the one not to dispute his landlord's title, or, as it is commonly stated, a tenant is estopped to deny his landlord's title. By this is meant, that, having received his possession from his landlord, he will not, so long as he keeps and remains undisturbed in that posses- sion, be heard in court to maintain that his landlord had no legal possession to convey, and, that, therefore, he is under no obligation to him on account of the possession which he received. He may, it is true, be heard to maintain that the landlord's title has failed since the making of the lease, but not, that the possession which he originally received under it was not a lawful one. The obligation of loyalty goes further than this. The tenant is not permitted to attorn to a stranger, — that is, he may not acknowledge a third party as his land- lord. WHEN THE TENANT'S RIGHT TO POSSESSION IS AS- SAILED, HE IS BOUND TO GIVE HIS liANDLORD DTTE AND TIMELY NOTICE IN ORDEB THAT THE LANDLORD MAY TAKE NECESSARY MEASURES TO PROTECT HIS RIGHTS. The tenant may not lawfully surrender voluntarily his pos- session to one who claims by title adverse to his landlord. The general duty of loyalty is recognized by an eminent writer who says: "The tenant must also regard the interest of his landlord, with respect to possession, and not only maintain fealty himself, but give due notice of any attempt to disposses him." "Taylor Land. & Ten., See. 180. 144 LANDMED AND TENANT. Nor, is the tenant allowed to buy up a title adverse to his landlord's and set this up against his landlord. THE OBLIGATION OF LOYALTY IMTTOLVES ALSO A DUTY 01" PBOTECTIOIT OF THE PROPERTY ITSELF. He must protect the landmarks which show the boundaries of the property, and, while it is said that there is no implied covenant on the i)art of a tenant to repair, yet, some repairs which are necessary to protect the property from waste and prevent its destruction, the tenant is bound to make, on ac- count of the duty which devolves upon him of protecting the property which has been entrusted to him. These obligations on the part of the tenant are conditions, on the fulfillment of which, rest his right to the continued enjoyment of the prop- erty and for breach of which his lease may be forfeited. It is thus seen that the relation of landlord and tenant involves mutual duties of defense and protection which are essential to and spring out of the relation, whether expressed in the lease or not. In this mutual duty of defense and protection there rest certain rights besides the right to be absolved from the obligations of the lease for a breach of the duty. These rights may be stated broadly in this way: IT IS A GEBTEEAL PRINCIPLE THAT WHEN EITHER LANDLORD OR TENANT FAILS IN THE PERFORMANCE OF AN ACT WHICH THESE DUTIES REQUIRE, THE OTHER MAY, FOR HIS OWN PROTECTION, PERFORM THE ACT AT THE EXPENSE OF THE ONE WHO FAILED IN THE PERFORMANCE OF THE DUTY. For instance, if a tenant fails to make repairs which it ia his duty to make to protect the premises against waste and destruction, this confers upon the landlord an implied license to enter upon the tenant's possession and make the repairs himself. On the other hand, if the landlorid faUs to pay a mort- gage, the foreclosure of which threatens the tenant with evic- LANDLORD AND TENANT. 145 tjon, the tenant may pay it himself and hold back the amount paid out of his rent. And, if the landlord be himself a tenant and fails to pay his rent, by reason of which a sub-tenant is threatened with eviction, the sub-tenant may pay his land- lord's rent and hold it back out of the amount due from him- self. These rights which each has to supplement the failure of the other for the purpose of protecting his rights under the contract, are in strict accordance with the general principles and analogies of the law. These rights will be defined in detail hereafter, it not being intended in this opening discussion to do more than to point out the great underlying principles on which the whole structure of the law of landlord and tenant rests. MODERN TENANCY AN EVOLUTION OF FEUDAL TENURES. The aspect of the relation of landlord and tenant which we have had under consideration, as well as some others to be noticed hereafter, forcibly suggest the feudal and military tenures under which most of the land in England was once held. The lord of the manor was the war lord, as well as the landlord, of the tenant, and the tenant had to fight under his banner when called upon. In the absence of the lord, he had to defend his lord's title and possession, and, in return, his lord was bound to furnish him protection when he was assailed. The clause which is found in most leases forbidding an assign- ment, or sub-letting without the consent of the landlord, is a relic of feudal times, originally designed to prevent the in- troduction of persons unable or unwilling to follow the lord to war. The denial of the tenant's right to introduce to an- other in his place was matched by a corresponding inability on the part of the landlord. At the common law, the landlord could not, as he may now, by transferring his interest, put another landlord in his place to whom the tenant should 146 LAiNDLORD AND TENANT. thereafter be liable on the covenants of his lease. The rela- tion of landlord and tenant was originally a personal relation, the tenant or occupier of the land acquiring no interest in the land, and having no stability of tenure, being liable to be dis- possessed at the pleasure of the lord. It is interesting to note that this instability of tenure still inheres in that occupation of land which is granted to the occupier of the land, in order that he may the more conveniently render personal services to the owner of land. Such occupants are not considered as tenants, and may be summarily ejected at any time. But, in the progress of time, when war gave way to peace and swords were beaten into ploughshares and spears into pruning hooks, it was found that land could not be suc- cessfully cultivated, nor business established and carried on, except by those who had a stable tenure of their holdings. Agricultural tenants took no interest in enriching or re- claiming land which another might cultivate, and commercial tenants would not make necessary improvements which might at any time be confiscated. The necessities of an advancing civilization led to the introduction of fixed tenures and the protection of tenants in their rights to fixtures. The history of the progressive development of our law of landlord and tenant is interwoven with and part of the history of the progress of our civilization. This evolution is still in progress, and many changes and reforms may still be con- fidently anticipated. It would be interesting to trace the steps of this development, but space in a volume intended for the use of students and working lawyers forbids. It is important, however, to note the tendency as it may be of assistance in leading to a correct conclusion in cases where there is an apparent conflict of authority, or where the law does not seem to have been finally settled. In such cases the sagacious judge LANDLORD AJfD TENANT. 147 will look forward and not backward. The fields in which this tendency to pi ogress can be most frequently observed are those concerned with the fixity of the tenant's tenure, and his ownership of and right to remove fixtures, and the changed obligations growing out of an accidental total or partial de- struction of the leased premises. Upon these questions, among others, there is a constant progress in favor of the tenant. It may be stated broadly that upon these questions the present state of the law leaves much to be desired, but the tendency is constant toward a larger measure of justice and equity. POSSESSION, NOT OCCUPANCY, IS THE CHABACTEBISTIC OF TENANCY. It will not have escaped attention that in defining the re- lation of landlord and tenant, the authors have used the term "possession" and "right to possession," and not "occupation" or "right to occupation," as the thing which by the lease is transferred from the landlord to the tenant. It is important to keep this in mind, for there is much permissive occupancy of land which does not amount to possession, and consequently does not create the relation of landlord and tenant.^^ Such are the cases before referred to, in which the land is occupied by one for the reason that he can thereby more con- veniently render certain personal services to the owner of the land. Other cases of occupants who have no possession, are those who have a mere license, and still others, where the oc- cupiers are lodgers or roomers or boarders. In none of these cases is there any transfer of possession, and a tenancy does not arise, and, consequently, there is nothing out of which can spring those rights, duties and obligations which are in- "Alplne Twp. School District vs. Batsche, 106 Mich., 330; 29 h. B. A., 576. 148 LANDLORD AND TENANT. herent in a tenancy.^^ These only spring from possession, a term which has a well defined legal meaning. POSSESSION MEANS THE PBESENT ACTXTAL LEGAL EN- JOYMENT OF AND DOMINION OVEB THE LAND. EIGHT TO POSSESSION, AS WELL AS ACTUAL POSSES- SION, IS A SUEEICIENT BASIS FOB TENANCY. When premises which are already in the possession of a tenant are leased to another for a term to commence at a future day, upon the expiration of the existing tenant's term, it is the right of possession which will devolve upon the land- lord at that time, which is transferred by the lease, and this right of possession vests in the incoming tenant when that time arrives, by virtue of his lease. Most leases are made under these conditions. It is said that a tenant's estate does not vest in him until he actually enters into possession, and that, up to that time, he has no estate in the land, but only what is called an interesse termini. From this distinction flows a variety of consequences as to the actions and forms of actions which he is entitled to bring for an injury to the rights which he acquired by his lease. The chief distinction now between a tenant who has only an interesse termini and one whose title has become consummate by having entered into possession, is that the former is not liable on the obligations which grow out of the relation, but only on the covenants of the lease. The obli- gations which are inherent in the relation, rest only upon ten- ants who have come into actual possession under the lease. But the lease confers upon the tenant a right to possession and makes him liable on its covenants. "Bowman vs. Bradley, 151 Pa, St., 351; 17 L. R. A., 213. LANDLORD AND TENANT. 149 It is now the prevailing doctrine that the lease fully vests in the tenant all the possessory rights of the landlord from the time at which it is limited to take effect contrary to the ancient doctrine, which, however, is still maintained in England, an action to gain possession of the land after the term has begun to run, must be brought by the tenant, and not by the landlord. When the term begins to run, the relation of landlord and tenant is established, and the liability of the tenant for rent and on the other covenants in his lease, is fixed. POSSESSION OF LAND." In legal contemplation, he who owns the ground owns from the center of the earth to the sky and is within their limits entitled to exclusive occupation and dominion. Any intrusion upon this exclusive possession is a legal injury and, therefore, a man has a legal right of action against one who erects a building so that any part of it projects over his line;*' and he may even maintain an action against one who allows his trees to grow so that the boughs overhang his land.** This possession and dominion is as exclusive below the surface as above, so that it is as much a trespass to cross a man's line beneath the surface of the earth, as in laying a sewer or in mining as it is to dig in his land on the surface. And so it is as much a trespass to cut ice in private waters as to cut sod on another's land. The term "land" also includes houses and buildings and other artificial structures, as well as trees, grass, crops and other things which grow upon the land.*^ "As to what constitutes land see ante page 4. "Fay vs. Prentice, 1 0. B., 828. "Brook vs. Jenney, 2 Q. B., 265. 150 LANDLORD AND TENANT. IN THE ABSENCE OF ANY EXPRESS lilMITATION IN A LEASE, IT IS A GENEEAL PEINCIPLE THAT A LEASE TRANS- FEES TO A TENANT THE SAME EXCLUSIVE LEGAL ENJOY- MENT OE, AND DOMINION OVEE, THE LAND AND THE BUILDINGS AND THE EIGHTS APPTJETENANT TO THE LAND, WHICH THE LANDLOED HIMSELF ENJOYS. This proposition will hare been anticipated by the logical reader, since it necessarily follows from the premises which have been already stated. The deduction is so obvious as to render it unnecessary to recapitulate the process of reasoning by which it is reached. It is a general principle of the law, that in every lease or conveyance, whatever is appurtenant or belongs to the land leased or conveyed, goes with it. This is true, whether the lease is verbal or written, and whether in the writing, appur- tenances and easements are mentioned or not. The practical meaning of this rule can best be illustrated by a statement of cases which have been decided in accordance with it. Thus it has been decided that a necessary (not merely convenient) right of way passed with a mill;^' so with a house, pass fences, out- buildings, trees, shrubbery, and the right of control to the middle of the street; with a water-mill, the right to a sufladent head of water in the dam by which it is fed; if the premises are drained across other land of the landlord, the right to have the drain remain; in a tenement or apartment house, the right to use the front door and the door-bell, the ordinary place for drying clothes, the water closets, etc. ; in a business block, the right to a reasonable and customary use of the hallways and outer walls for signs. In such things, the tenant has, in gen- eral terms, a right to the enjoyment of all that belongs to, or goes with the leased premises. Where the tenant's possession "See ante, page 4. "See post eaBements. LANDLORD AKD TENANT. 151 is exclusive, the landlord has no more right to remove or plant a tree, to pull down or alter buildings or fences, to put up a sign, or even to come upon the land to make repairs, or for any other purpose, than a stranger. Every right that would pass by a deed, passes by a lease for the term mentioned in the lease. The general principle being as above announced, it re- mains only to state its limitations and consequences to get a correct idea of this portion of the law. THE POSSESSION OF A TENANT IS AS EXCLUSIVE AS THE POSSESSION OF AN OWNER, AND EVERY UNAUTHORIZED INTRUSION UPON THAT POSSESSION IS A LEGAL WRONG WHICH IS CALLED A TRESPASS." Tlie legal possession of land must always rest somewhere, and there can be but one legal possession at a time. There is always someone who is entitled to bring an action of trespass for an intrusion of land. As it is a maxim in the science of physics that two bodies cannot occupy the same space at the same time, so it is the settled doctrine of the law that there cannot be two legal possessions of the same land at the same time; for the gist of possession is its exclusive character. There may, of course, be a joint possession by joint tenants, or tenants in common, but, in these cases, there is, after all, but one possession in which the rights of each joint party rest upon the same basis. The right of possession involves the right or, it is better to say, is the right to exclude all the world from the land, and this right is one which unlike some other rights, the person in "The kind of trespass referred to in this treatise is that which gives rise to the action "trespass quare clausum fregit," the action which lay at the common law for an unlawful intrusion upon another's legal possession of land. 152 LANDLORD AND TENANT. possession has a right to enforce himself, without resorting to the courts, or calling for the assistance of the officers of the law. This right to use force to protect a legal possession which has been peaceably acquired, is of the very gist of possession and distinguishes an actual possession from an asserted right of possession. For, since the time of the Statute of Forcible Entry and Detainer (a subject treated in a subsequent portion of this work), no man, however clear and undoubted his right to possession, has been allowed to use force in getting pos- session from one who is already in quiet and peaceable pos- session, however wrongfully. If the one entitled to possession cannot secure it peaceably, he must resort to the courts. The right to maintain possession, that is, to exclude intruders by force, is therefore of the very essence of legal possession. This right belongs to a tenant in possession, and he may exercise it against his landlord, as well as against the rest of the world.^^ A breach of this right of possession, entitles the ten- ant to maintain an action of trespass, and this action lies, in a proper case, against the landlord as well as against strangers.^^ "The right to use force in maintaining a peaceable possession is a limited one. No more force can lawfully be used than is reasonably necessary, and homicide can never be justified in repelling a mere tres- pass. For the precise limits of the right to use force, the reader should consult works on criminal law to which a complete discussion of this topic is more appropriate. "The right to maintain possession by force here spoken of Is, it must be understood, a right accorded by the criminal law, but it Is not one which is recognized by the courts when disposing of civil contro- versies. Thus, one who has an actual possession may prosecute crim- inally, as for an assault or a forcible entry, one who enters and at- tempts to remove him by force. And, in such a case, the court ad- ministering the criminal law will not inquire nor permit an inquiry into where the actual right of possession resides. But in a civil action for damages for a trespass upon an existing possession, the question will be as to the actual right of possession. In the criminal case, the public peace and the right of the public to tranquility is the paramount con- sideration. In the civil controversy the right of the individual to which he Is justly entitled is the subject of inquiry. In some cases the courts have fallen into error by not attending to this distinction. LANDLORD AND TENANT. igS The general subject of licenses will be hereafter discussed. It is only necessary at this time to note the application of the general principles to the conditions growing out of the rela- tion of landlord and tenant.^' OF THE LANDLORD'S LICENSE TO ENTER UPON THE TEN- ANT'S POSSESSION. A LAKDLORD HAS AN IMPLIED LICENSE TO ENTER UPON THE LAND EOR THE PUSPOSE OP MAKING SUCH REPAIRS AS ARE NECESSARY POR THE PRESERVATION OP THE PROP- ERTY, OR TO SAVE HIMSELF PROM A LIABILITY ON AC- COUNT OP THE PREMISES BEING OUT OP REPAIR, OR TO DO SUCH OTHER ACTS AS ARE NECESSARY POR SELP-PROTEC- TION. The landlord has also an implied license to come upon the land for the purpose of demanding his rent, an act which he must, at the common law, do upon the land itself, in order to lay the foundation for a forfeiture of the lease for non-pay- ment of the rent. But, aside from the license which the law confers upon the landlord, for the protection of his rights and the preservation of his property, he has no more right upon the land during the tenant's term, than a stranger. While the authority is scanty, there is, however, enough to sustain the principle that the landlord, notwithstanding the lease, retains such an interest in and rights over the prop- erty, as are necessary for his protection. Thus, in an action of trespass against a landlord for removing an obstruction in a private way, then in possession of a tenant, it was held that while a tenement is occupied by a tenant, the landlord has a license to use a way appurtenant to the tenement to view "For a general discuselon of subject of Licenses see post, page 416. 154 LANDLORD AND TENANT. waste, or demand rent, or to remove an obstruction.^* And so in an action against a landlord for an injury by reason of premises being out of repair at the time they were let, it was held that he was liable because he had a right to enter upon the tenant's possession to make repairs that must be made in order to save him from liability;^' and, in that case, it was said that he had also a right to enter to prevent waste. And in another case, the court said that a landlord has the right, "during the tenancy, to enter and make snch permanent repairs as are es- sential to prevent waste, and indispensable to the due protec- tion and preservation of his reversionary interest."^' ASIDE FROM THE RIGHTS INVOLVED IN THE RIGHT OE SELF-PROTECTION AND THE RIGHTS WHICH ARE SPE- CIALLY RESERVED IN THE LEASE, THE LANDLORD HAS NO GREATER AUTHORITY OVER THE PREMISES DURING THE TENANT'S TERM, THAN A STRANGER. Therefore, a landlord has no right to remove a fence while the tenant is in possession,^' or to enter and cut off a pump," nor, where a right to make repairs during certain months is reserved, to make them at any other time,^° nor to make any alterations,^" nor to make repairs at all when unnecessary to prevent waste,^^ nor to license the construction of a road," or a railroad across the premises. "Examine on this subject, before proceeding, 1 Taylor, Sec. 174. 12 Encyc, 682, etc. 1 Pound vs. Hollis, 1 B. & C, 9. "■^Anderson vs. Dickie, 26 How. Pr. (N. Y.), 105. "Sulzbacher vs. Dickie, 51 How. Pv. (N. Y.), 500. "Abrams vs. Watson, 59 Ala., 524. "Dickinson vs. Goodspeed, 8 Gush., 119. "Goebel vs. Hough, 26 Minn., 252. '"Kaiser vs. New Orleans, 17 La. Ann., 178. "Barker vs. Barker, 3 G. & P., 557. "Brown vs. Powell, 25 Pa. St., 229; Crowell vs. B. B. Co., 61 Miss., 631. LA)N DISORD AND TEiNANT. 155 WHEBE ONE OCCTIPIES THE LAND OP ANOTHER XTNDEB, A CONTRACT, THE PURPOSE OP WHICH IS TO FORWARD THE BUSINESS OF THE LAND OWNER, HE WILL USUALLY BE RE- GARDED AS A LICENSEE, AND NOT AS A TENANT. A great number of decisions have turned upon the ques- tion whether an occupant of land was a licensee or a tenant. The importance of the distinction is great. A tenant has legal possession; a licensee has a mere personal contract, while the legal possession remains with the land owner. A tenant is subject to the implied obligations which inhere in a tenancy; a licensee is not subject to them, for the reason that he has no legal dominion or control over the land. The tenant is not subject to be ejected without due process of law, while a licensee may be excluded at any time without notice and with- out process. His occupation is, as it were, that of a servant, and not that of an independent proprietor.^' The following cases illustrate the principle: A miner in the employ of a mining company occupying a cottage which is owned by the company; an agricultural laborer occupying a house on a farm on which he is employed, and having the house so that he can more efiQciently do his work on the farm; an employed manager who has rooms in a hotel in which he is employed ; the keeper of a stall in a public market owned by a municipal corporation, are simply licensees. LEASES. Various definitions of the lease contract are given by the text writers, but none has been found which is entirely sat- isfactory. Blackstone's definition is as follows: "A lease is properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense), made for "Hodgklns vs. Farrington, 150 Mass., 19; 5 L. R. A., 209. See Pierce vs. Cleland, 131 Pa. St., 189. 156 LANDDORD AND TENANT. life, for years, or at will, but always for a less time than the lessor hath in the premises; for, if it be for the whole interest, it is more properly an assignment than a lease.'"* This state- ment is inaccurate in several particulars. A lease may be perpetual, or for the whole term of the lessor. It is true that there must be a reversionary interest in the lessor, or he is not a landlord. But this need not be a vested reversion. It may be a contingent reversion, which will only vest upon the defeas- ance of the tenant's estate by a breach of the conditions under which he holds. There is also a lack of precision in designating a lease as a conveyance of lands for a certain time, since it is only the possession and profits of the land which are conveyed. But the most striking defect in this definition is that it fails to express the thought that a lessee always holds upon certain continuing conditions for a breach of which his estate is sub- ject to be defeated at any time. Kent says, "a lease for years is a contract for the possession and profits of land for a de- termined period, with the recompense of rent."^° This defini- tion is insuflficient, because it does not suggest the idea of the landlord's reversionary interest, and also because it makes the payment of rent a necessary part of the contract; for, while, as Blackstone says, it is usual, it is not a necessary part of the contract. Other definitions which might be quoted would be found equally imperfect. None of these definitions draws at- tention to that feature of the lease contract which distin- guishes it from other contracts relating to land. The lease contract is a contract which, when consummate, establishes a relation between the parties to it. Other familiar examples of contracts which establish relations are, the con- "Blackstone Com., 317. "4 Kent Com., 85. LAjNDLORD and tenant. 157 tract of hiring which gives rise to the relation of master and servant; the contract of agency which gives rise to the rela- tion of principal and agent; the contract of partnership; the contract of marriage, which gives rise to the relation of hus- band and wife. The distinguishing characteristic of this class of contracts is, that they give rise to a relation; that to these relations the law attaches certain obligations, outside of the particular terms of the contracts creating the relationship; that these obligations, whether called duties or implied covenants, are obligations of fidelity and mutual protection, and finally, that these obligations which the law attaches to these relations, are conditions upon the fulfillment of which the right to the continuance of the relation and of the contract out of which it grows, depends. A LEASE IS A CONTRACT TBAITSEERRING THE RIGHT TO THE POSSESSION AND ENJOYMENT OE LAND TTPON CON- DITION THAT, WHILE HOLDING THIS POSSESSION, THE PARTY TO WHOM POSSESSION IS TRANSFERRED SHALL CON- TINUE TO FULFILL CERTAIN OBLIGATIONS IMPOSED BY THE CONTRACT, AND ALSO OF LOYALTY TO THE REVER- SIONARY INTERESTS OF THE PARTY WHO IS ENTITLED TO POSSESSION UPON THE DETERMINATION OF THE LEASE- HOLD ESTATE, IMPOSED BY THE LAW. This definition includes all that is essential to a lease. Every contract which answers to its terms is a lease, and, on the other hand, no contract which is not included within these terms can be classed as a lease. The proper technical legal term for "lease" is "demise." This word of its own force al- ways imports a lease with all of its implied covenants. So also does the word "lease." But there is no particular word or phrase which must be used in making the lease contract. A lease is like any other contract. It is formed by the agree- ment of the parties, and this agreement may be expressed by 158 LAiNDLOBD lANOD TENAlNT. any language which makes the intention of the parties clear. And it is not even necessary that the contract should be ex- pressed in words. It may be implied from the situation of the parties and their conduct towards each other with regard to the subject matter of the lease. "We shall proceed first with the discussion of the subject of express leases, after which the subject of implied leases will be considered. EXPRESS LEASES. Express leases are of three kinds — leases in writing under seal, leases in writing not under seal, and unwritten or verbal leases. LEASES IN WRITING UNDER SEAL. Those of the first class, like all writings under seal, are called deeds or specialties. A sealed instrument is regarded by the English common law as having a specially solemn and authentic character and, although much of the peculiar importance and solemnity form- erly ascribed to sealed instruments is no longer attached to them, enough still remains to make the distinction between sealed and unsealed instruments important. Says Chancellor Kent: "The common law intended by a seal, an impression upon wax or wafer, or some other tenacious substance capable of being impressed." According to Lord Coke, a seal is wax, with an impression; sigillum est cera impressa, quia cera sine impressione non est sigillum. The common law definition of a seal and the use of rings and signets for that purpose and by way of signature and authenticity, is corroborated by the usages and records of all antiquity, sacred and profane. In the eastern States, sealing, in the common law sense, is requisite; but, in the southern and western States, from New Jersey inclusive, the impression on wax has been disused to such an extent as to LANDLORD AND TBNAJ^T. 159 induce the courts to allow (but with certain qualifications in some of the States) a flourish with the pen, at the end of the name, or a circle of ink, or scroll, to be a valid substitute for a seal."^* As the law as to when a seal is required and what is a sufficient sealing is different in the different States, it will be necessary to state the law on this subject particularly, for each State. And this seems to be an appropriate place to caU the attention of the reader to a general principle, with regard to leases, which seems to have escaped the observation of some of the text writers. Contracts are often made in one State or country to be performed in another, and a remedy for this breach may be sought in the courts of a third. In such cases, the inquiry often arises by which law the questions involved are to be determined. The rule is simple and may be stated as follows: THE VALIDITY AND CONSTRTJCaJlON OF LEASES, AS OE ALL CONTRACTS RELATING TO LAND, MXTST BE DETER- MINED BY THE LAW OE THE PLACE WHERE THE LAND IS SITUATED." This principle is applied to leases in its fullest extent. The validity of a lease is tested by its conformity to the law of the place where the land is situated, known as the lex loci rei sitae, and its construction is governed by the same law."' But it is pointed out by Kent that this doctrine may be subject to some qualification. He says^ "not only real but mixed actions, such as trespasses upon real property, are properly referable to the forum rei sitae. But the Court of Chancery having authority to act in personam, will act indi- rectly, and under qualifications, upon real estate situated in "4 Kent Com., 452. "Story Confl. of Laws, 364 et seq. "12 Am. & Eng. Encycl. of Law, 563 et seq. 160 LANDLORD AND TENANT. a foreign country by reason of this authority over the person, and it will compel him to give effect to its decrees, by a con- veyance, release or otherwise, respecting such property.'"' In this connection, it is proper to note that the law of landlord and tenant being of an essentially local character, the courts of the United States in cases involving such law, are governed by the statutes and decisions of the state courts of the State in which the property is situated. WHEN A SEAL IS ESSENTIAL TO THE VALIDITY OF A LEASE. At the common law, no freehold estate could be created except by livery of seisin or by deed, — that is, as has been ex- plained, an instrument under seal. The statute of frauds abol- ished the former method. Since the enactment of the statute of frauds, freehold estates could only be created in England by deed, and it has been held that this rule still prevails in this country, except where it has been abolished by statute.*" A freehold is an estate for life or of inheritance. Any estate less than an estate for life is not a freehold. And by the common law any estate for years, though it be for nine hundred and ninety-nine years, is less in dignity than an estate for life, and does not amount to a freehold. Therefore, under this rule, a lease for life or a perpetual lease, must al- ways be sealed, except in those States whose statutes expressly dispense with the necessity of a seal.*^ ••2 Kent Com., 463. "Dew vs. Johnson, 3 Green (N. J.), 116; Allen vs. Jaquish, 21 Wend., 628. "In Alabama, Arizona, Arkansas, California, Colorado, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, North Dakota, Ohio, South Dakota, Texas, Utah and Washington seals are unnecessary. In Dela- ware it is enacted that "No demise, except it be by deed, shall be effec- tual for a longer term than one year." In Florida, "no estate * * * tor a term of years of more than two years ♦ ♦ * shall be created, made, granted, conveyed, transferred or released in any other manner than by deed in writing, sealed and delivered in the presence of at least two witnesses." In Rhode Island, "no estate * • * for a term ex- LANDLOED AND TENANT. 161 IP A LEASE WHICH THE LAW BEQUIRES TO BE TIITDEB SEAL, IS SEALED IN THE MANNER BEQTJIBED BY THE COM- MON LAW, IT IS NOT NECESSAEY THAT IT SHOULD ALSO BE SIGNED. The question has been discussed whether, when by law a lease under seal is required, a lease which is sealed in the ceeding one year, In lands or tenements, shall be conveyed from one to another by deed unless the same be in writing, signed, sealed and de- livered by the party making the same and acknowledged." WHAT IS A SUFFICIENT SEAL. In Alabama, no seal Is required; in Arizona no seal is required to be used except by corporations; in Arkansas, private seals are abol- ished; in California, a seal is unnecessary; in Colorado, no seal is re- quired; In Connecticut, the word (seal) or the letters (L. S.) are equiva- lent to a seal; in Delaware, a scroll answers for a seal; in the District of Columbia, a scroll is a sufficient seal; in Florida, a scroll seal with the word "seal" written in (seal) is sufBcient; in Georgia, a scroll seal is sufficient; in Idaho, a scroll is sufficient; in Illinois, a scroll is sufficient; in Indiana, no seal is necessary; in Iowa, no seal is necessary; in Kan- sas, seals are unnecessary; in Kentucky, it would appear that common law seals are necessary, and so In Louisiana; in Maine, the common law seal is required; in Maryland, a scroll seal is sufficient; in Massa- chusetts, a wafer or wax seal is required; in Michigan, any scroll or device used as a seal is sufficient; in Minnesota, scroll seals are used; in Mississippi, no seal is needed to the name of the party; in Missouri, a scroll is sufficient; in Montana, a scroll seal is sufficient; in Nebraska, a scroll seal is customary, but is not required; in Nevada, a scroll seal is sufficient; In New Hampshire, a wafer or wax seal is required; in New Jersey, a wafer is generally used, but a scroll seal is sufficient; in New Mexico, a scroll seal is usual; in New York, a wafer or wax seal is necessary; in North Carolina, a scroll seal is sufficient; in North Dakota, seals are unnecessary; in Ohio, private seals are abolished; in Oregon, a scroll seal is sufficient; in Pennsylvania, a scroll seal is sufficient; in Rhode Island, a seal is necessary and must be impressed upon the paper, with or without v/afer or wax; in South Carolina, a scroll seal Is sufficient; in South Dakota, seals are unnecessary; In Tennessee, a scroll seal is sufficient; in Texas, no seal is necessary; in Utah, no seal is required; in Vermont, a scroll seal will not suffice — a paper or wafer seal is usual; in Virginia and West Virginia, a scroll is sufficient; in Washington, a seal is unnecessary; in Wisconsin, (seal) or (L. S.) la sufficient; in Wyoming, a scroll seal Is sufficient. The reader will bear in mind that the foregoing does not apply to official nor to corporate seals, but only to what are strictly called pri- vate seals. The deeds of corporations must almost, if not quite, uni- versally be authenticated by corporate seals', and official seals must have a distinct and Individual character. 'But courts will, when possible, presume that a seal attached to a corporate deed is the seal of the corporation. Coal Co. vs. Peers, 37 N. E. Rep. (111.), 937, and cases there re- ferred to. 162 LANDLORD AND TENANT. maimer required by the common law need also be signed. And it seems to be settled that under the English Statute of Frauds and under those American statutes which use substantially the same language sealing is sufficient, and a signature is un- necessary.*- And where the seal is affixed by a third party in the presence and at the request of the party this is an execu- tion by the party in person and not by an agent.*' AUTHORITY TO AIT AGENT TO EXECUTE A DEED CAN ONLY BE CONFEEEED BY A DEED, THAT IS, AS HAS BEEN EXPLAINED, BY A SEALED INSTEUMENT." Where a lease under seal is to be executed by an agent, it is unusual and unnecessary to make any allusion to this in the body of the lease. The lease should be drawn in all re- spects as though it were to be executed by the principal in person. The agent's authority to execute the lease, or a veri- fled copy should be attached to the lease, in which case, it is proper and usual that the attestation clause should read as fol- lows, "in witness whereof the said A. B. (principal) hath here- unto set his hand (and seal) by 0. D., his agent, thereunto law- fully authorized by the writing (or, a copy of which), which is hereunto attached, A. B. (principal) (seal) ; by C. D. (agent)." If the lease is one which must be acknowledged, the ac- knowledgment is in the following form : On this day of , A. D. 189 . . , before me, , personally appeared C. D., agent of A. B., and acknowledged the foregoing instru- ment to be the free act and deed of A. E. (principal), and that "Browne on Frauds, Sec. 9 et seq. Parks vs. Hazelrlgg, 7 Blackf. (Ind.), 53G; 1 Pars, on Contr., 96 note. "Gardner vs. Gardner, 5 Gush., 483. "Blood vs. Goodrlcn, 9 Wend., 68. Cooper vs. Rankin, 5 Binnay, 613. Phimmer vs. Russell, 2 Bibb., 174. Banorgee vs. Hovey, 5 Mass., 40. Haiiford vs. McMaio, 9 Wend., 54. Riedler vs. Fish, 14 111. App., 29. LANDLORD AND TENANT. 163 he, 0. D. (agent), had thereunto set the hand (and seal) of said A. B. (principal) for the uses and purposes therein mentioned, A lease should be executed in this way because, if purport- ing to be executed by 0. D., agent for A. B., a court may con- strue it to be the personal lease of 0. D., holding the words agent for A. B. to be words of description merely. This has actually occurred in a number of cases, and appears to be still the settled law. The principle is that where the law requires a lease to be sealed the body of the lease must show that it is the act of the principal, and his seal must be attached to it, and this means his seal as his seal, and not as a mere addition to the name of the party for whom the agent claims to act. An agent may be authorized to attach the seal and signature of his principal, but he cannot substitute his own seal or signature for the seal or signature of his principal, although in doing so he says he does it for his principal.*" In an ancient and leading case the doctrine is stated in this way : ''When anyone has authority as attorney to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place, and to represent his person; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gave the authority." A strik- ing illustration of the rule is afforded by the case of Elwell vs. Shaw, 16 Mass., 42. In that case it appeared that Jonathan Elwell had executed to Joshua Elwell a power of attorney in the following terms: "Know all men by these presents, that I, Jonathan Elwell, of etc., do make, ordain, constitute and appoint Joshua Elwell, of "The strictness of the ancient rules has been much relaxed in some courts, and a lease by a corporation, which was signed by E. J. Crandall (seal), President, was held to be the deed of the corporation. Coal Co. vs. Peers, 37 N. E. Eep. (111.), 937. 164 LANDLORD AND TENANT. etc., my true and lawful attorney, for me and in my name, to sell any real estate, which I am now, or may be seised or pos- sessed of, to such person or persons and for such sum or sums as he may think proper; and in my name to make, execute and deliver such deeds and instruments," etc. Joshua, under this power of attorney, executed a deed of the premises in dispute. The deed, after reciting the power of attorney, proceeded as fol- lows: "Now, know ye, that I, the said Joshua, by virtue of the power aforesaid, in consideration, etc., do hereby bargain, grant, seU and convey to J. S. and T. P. S. a certain tract of land" (describing the premises in dispute). The testimonium clause was as follows: "In testimony whereof I have here- unto set the name and seal of the said Jonathan, this," etc. Signed, Joshua Elwell, and a seal. It was held that this instru- ment did not convey Jonathan Elwell's title. Other cases illustrating the rale are cited in the note.** Where a sealed instrument is executed by an agent, it is unnec- essary that the agent's seal should be attached to his signa- ture. LEASES IN WRITING NOT UNDER SEAL. The statutes of the various States modeled upon the English Statute of Frauds require certain leases to be in writing and "Townsend vs. Hubbard, 4 Hill, 351; Stinfield vs. Little, 1 Green (Me.), 231; Brinley vs. Mann, 2 Gush., 337; McClure vs. Herring, 70 Mo., 18; Mechem on Agency, Book 3, Chap. 2; Fowler vs. Shearer, 7 Mass., 14; Tippets vs. Walker, 4 Mass., 595; Tucker vs. Bass, 5 Mass., 164; Taft vs. Brewster, 9 Johns (N. Y.), 334; Lutz vs. Sinthlcum, 8 Pet. (U. S.), 165; Fullam vs. West Brookfield, 9 Allen (Mass.), 1; Duval vs. Craig, 2 Wheat. (U. S.), 45; Deming vs. Bullitt, 1 Blackf. (Ind.), 241; White vs. Skinner, 13 Johns (N. Y.), 307; Quigley vs. DeHaas, 82 Penn. St., 267; Brlggs vs. Partridge, 64 N. Y., 357; Klersted vs. Orange, etc., R. R. Co., 69 N. Y., 343; Sargent vs. Webster, 13 Mete. (Mass.), 497; Endsley vs. Strock, 50 Mo., 508; Jones vs. Morris, 61 Ala., 518; Banks vs. Sharp, 6 J. J. Marsh (Ky.), 180; Locke vs. Alexander, 2 Hawk. (N. C), 155; Scott vs. McAlpin, N. C. Term Rep., 155; Bellas vs. Hays, 5 Serg. & R. (Penn.), 427; Fisher vs. Salmon, 1 Cal., 413; Walsh vs. Usher, 2 Hill Oh. (S. 0.), 167; Buffalo CathoUc Institute vs. Bitter, 87 N. Y., 250; Willis vs. Bellamy, 52 N. Y., Super Ct., 373. LANDLORD AND TENANT. 165 signed by the parties to the lease or by their agents authorized in writing. As the law varies in the different States, it will be necessary to state the law on this subject separately for each State." "In Alabama, all leases "except leases for a term not longer than one year" are void unless the "agreement or some note or memorandum thereof expressing the consideration Is in writing and subscribed by the party to be charged therewith, or some person by him lawfully there- unto authorized In writing." In Arlsansas all leases "not put in writing and signed by the parties so making or creating the same, or their agents lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any greater effect or force than as leases not exceeding the term of one year." In California "every contract for the leasing for, a longer period than one year • * • of any lands shall be void, unless the contract or some note or memorandum thereof expressing the consideration be in writing and be subscribed by the party by whom the lease * * * is to be made." In Connecticut no lease of any houses or lands * • * for any term ©f years exceeding one year shall be counted good and effectual in law, to hold such houses and lands against any other person or persons whatsoever but the lessor or lessors and their heirs, unless such lease shall be in writing, subscribed by the lessor, attested by two subscribing witnesses, ac- knowledged before some authority empowered to take the acknowledg- ment of deeds of land, and recorded at length in the records of the town where such estate lies." In Delaware "no demise, except it be by deed, shall be effectual for a longer term than one year." In I'lorida "no estate * * • for a term of years of more than two years shall be created * • • transferred * * ♦ or released in any other manner than by deed in writing, sealed and delivered in the presence of at least two witnesses by the party or parties creating, • * * transferring * * * or releasing such * * • term of years or by his, her or their agent thereunto lawfully authorized." In Georgia the English Statute of Frauds is held to be in force. It« provisions with regard to leases are as follows: "All leases * • • not put in writing and signed by the parties so making and creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other greater force or effect; • * * except, nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount to two thirds part at the least of the full Improved value of the thing de- mised." In Illinois "no action shall be brought • * • to charge any per- son » • • upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer terra than one year, • • • unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." In Indiana 166 LANDIiOED AND TENANT. OF THE SIGNING OF WRITTEN LEASES BY THE PARTIES. Various questions have arisen about the signing of written leases. Among others it has been suggested by a writer on "no action shall be brought * * * upon any agreement that is not to be performed within one year from the making thereof, unless the promise, contract, or agreement upon which such action shall be brought or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; excepting, however, leases not exceeding the term of three years." In Iowa "no evidence of contracts • * * for the creation or transfer of any interest in lands, except leases for a term not exceeding one year * * * is competent, unless it be in writing and signed by the party to be charged or by his lawfully authorized agent." In Kentucky "no action shall be brought to charge any person • • • upon any contract for the sale of real estate, or any lease thereof for a longer term than one year, * * • unless the contract • * * or some memorandum or note thereof be in writing and signed at the clos« thereof by the party to be charged therewith, or by his authorized agent But the consideration need not be expressed in the writing; it may be proved, when necessary, or disproved by parol or other evidence." In Maine "no estate or interest in lands, unless created by some writing and signed by the grantor or his attorney, shall have any greater force or effect than an estate or lease at will." In Maryland, as In Georgia, under which Its provisions have been stated, the English Statute of Frauds Is held to be in force. In Massachusetts "all estates or inter- ests in lands created or conveyed without any instrument in writing, signed by the grantor or by his attorney, shall have the force and effect of estates at will only." In Michigan "Every contract for the leasing for a longer period than one year * * * of any lands, or any interest in lands, shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing. The consideration of any contract or agreement re- quired by the provisions of this chapter to be in writing, need not be set forth in the contract or agreement, or in the note or memorandum thereof, but may be proved by any other legal evidence." In Missis- sippi "no action shall be brought whereby * • * to charge any person upon the sale of any lands, tenements or hereditaments, or the making of any lease thereof, for a longer term than one year, * • • unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in vrriting and signed by the party to be charged therewith, or some other person by him or her thereunto lawfully authorized." In Missouri "all leases, estates, interests of freehold, or terms of years, or any uncertain inter- est of, in, to or out of any messuages, lands, tenements or hereditaments • • * not put in writing and signed by the parties so making or creating the same, or their agents lawfully authorized by writing, shall have the force and effect of leases and estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force." In New Hampshire "Every estate or Interest in lands created or conveyed without an instrument in writing, signed by the grantor or his attorney, shall be deemed an estate at will only." In New Jersey "all leases, estates, Interests of freehold, or any uncertain LANDLOHD AND TENANT. 167 this subject that a written lease should "be signed by both par- ties, or it may be void for want of mutuality."*' 13ut it is clear, interests of, in, to, or out of any messuages, lands, tenements or hered- itaments made or created, or hereafter to be made or created, * * * not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, he deemed or taken to have any other or greater force or effect, any consideration for making such parol leases or estates, or any former law or usage to the contrary notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount to two-thirds part, at the least, of the full improved value of the thing demised." In Ohio "no leases, estates, or interests, either of freeholds or terms for years, or any uncertain interest of, in or out of lands, tenements or hereditaments, shall at any time hereafter be assigned or granted unless it be by deed or note in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized by writing, or by act and opera- tion of law." In Pennsylvania "all leases, estates or interests of free- hold, of term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments * * * not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making such parol leases or es- tates, or any former law or usage to the contrary notwithstanding; ex- cept, nevertheless, all leases not exceeding the term of three years from the making thereof." In Rhode Island, as before stated, all leases for a term exceeding one year must be in writing, sealed and signed by the lessor. In South Carolina the English Statute of Frauds is held to be in force. In Tennessee "no action shall be brought whereby to charge • • * any person * * * upon the sale of any lands, tenements or hereditaments, or the making of any lease thereof for a longer term than one year, * • * unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized." In Texas the statute is Identical with that of Tennessee with regard to leases. In Vermont the statute is the same as in Massachusetts. In Virginia "no action shall be brought * * * to charge any person * * * upon any contract for the sale of real estate or the lease thereof for more than one year, ♦ * » unless the promise, contract * * * or some memorandum or note thereof be in writing and signed by the party to be charged thereby, or his agent. But the consideration need not be set forth or expressed In the writing; it may be proved (where a considera- tion is necessary) by other evidence." In Wisconsin "Every contract for the leasing for a longer period than one year • * ♦ of any lands, or any Interests in lands, shall be void unless the contract or some note or memorandum thereof expressing the consideration be in writing and be subscribed by the party by whom the lease • • • is to be made." 168 LANDIiORD AND TENANT. from an examinatiou of the cases cited in support of this state- ment, that in this the learned authority has fallen into error. The cases cited by him go no further than that if the lease is signed by the lessee only it is void for want of mutuality. And this is undoubtedly the correct doctrine." But there is no authority for extending this principle to cases where the writ- ten lease is signed by the lessor and not by the lessee. The language of the original statute, and of all the statutes, clearly imports that a lease is valid if it is signed by the party creating a leasehold estate — i. e., the lessor. IT IS GBWEKALLY HELD THAT A LEASE, WHICH THE LAW BEQTJIBES TO BE IN WBITIHG, IS VALID IE SIGNED BY THE LESSOR ONLY. If it is signed by him it is a valid lease, and if it is delivered to and accepted by the lessee is binding upon both parties."'" Yet it is now generally customary to have leases executed in duplicate, signed by both parties, each retaining a copy, and this is the better practice. It was said in Michigan that where one copy signed by the lessor is delivered to the lessee, and the other signed by the lessee is delivered to the lessor, this is suf- flcient.^^ But as the language of the court was with regard to a lease for a single year, which might have been made by parol, it cannot be accorded any particular weight. The lease may be signed with a pen and ink, or with a lead pencil, or by affixing a stamp with the parties name on it if this is intended as a signature.^^ "Taylor Landl. & T., Sec. 35. •■■McWliooter & Baldwin vs. McMahon, 10 Paige (N. Y.), 386. Cliesebrough vs. Pingree, 72 Mich., 438. Jennings vs. McComb, 112 Pa. St., 518. "McFarlane vs. Williams, 107 111., 33. Traylor vs. Cabanne, 8 Mo. App., 131. "'Campau vs. Laflerty, 43 Mich., 432. LANDLORD AND TENANT. 169 Although it has been doubted," the clear weight of author- ity supports the doctrine that ONE MAY HAVE ANOTHEB WHITE HIS NAME FOR HIM AND WHEKE THIS IS DONE BY HIS AUTHORITY, AND IN HIS PRESENCE, IT IS HIS PERSONAL SIGNATURE AND NOT HIS SIGNATURE BY AN AGENT. And so, also, the party may sign by making a mark for that purpose, which is usually done in this form: His John X Doe. Mark. Attest: Kichard Koe. AS A GENERAL RULE, IT IS IMMATERIAL TO WHAT PART OE A DOCUMENT A PARTY PUTS HIS NAME PROVIDED HE INTENDS IT AS HIS SIGNATURE." In New York the statute requires the party to subscribe his name, which language, it is held, requires a signature at the bottom in the usual place.'"' THE EXECUTION OF WRITTEN LEASES NOT UNDER SEAL BY AGENTS. What has been said as to the proper manner of the execu- tion by agents of leases under seal applies, with equal force, to the execution by agents of leases not under seal. In leases not under seal, as well as in leases under seal, the agent makes himself personally liable by executing a lease in his own name, even though in so doing he describes himself as agent. And evidence will not be admitted to show that it was not intended or understood that he should be personally bound, for this "Schneider vs. Norris, 2 M. & S., 286; Clason vs. Bailey, 14 Johns. (N. Y.), 484. "Wallace vs. McCollcugh, 1 Rich. Bq. (S. C), 426. "Penniman vs. Hartshorn, 13 Mass., 87. Knight vs. Orockford, 1 Esp., 190. "Davis vs. Shields, 26 Wend., 341. 170 LANDLORD AND TENANT. would be contradicting a written instrument by parol; but there is this striking difference between leases under seal and leases not under seal which are executed by agents : If a lease under seal executed by an agent does not upon its face purport to be the act of the principal, as has been explained, parol evi- dence is not admissible to show that it was in fact intended that the principal should be bound, and he cannot be charged by it. But as to leases not under seal, as in the case of all other written contracts not under seal which have been exe- cuted by agents, the law is well settled that parol evidence may be adduced to charge the real principal, even though he is not named in the instrument, and even though the agent does not sign as agent, but as though he were the principal. And this doctrine applies as well to those leases which the law requires to be in writing as to those which might have been made by parol.°° Agencies to conclude leases are governed by the same prin- ciple as all other agencies, and for a complete discussion of that branch of the law the authors can not do better than refer the student to the admirable work of Mr. Mechem upon that topic.'" THE RECORDING OF LEASES. By statute in many of the States leases, in order to be valid against third parties, who are bona fide purchasers or incum- brancers for value, must be recorded."' To entitle a "Higglns vs. Senior, 8 M. & W., 834. Byington vs. Simpson, 134 Mass., 169. Briggs vs. Partridge, 64 N. Y., 357. Texas Land, etc., Co. vs. Carroll, 63 Tex., 48. Huntington vs. Knox, 7 Cush., 371. "Mechem on Agency. "The non-recording of a lease cannot be taken advantage of by strangers to the title. Anthony vs. R. R. Co., 37 N. E. Rep. (Mass.), 780. LANDLORD AND TENANT. 171 lease to record it must be witnessed and acknowledged in the manner required by the statutes of the several States for any other paper or deed which is offered for record. It would oc- cupy too much space to give the requirements of each State as to the manner of execution which entitles a deed to record. Leases for more than one year must be recorded in Arizona, California, Connecticut, Dakota, Idaho, Mississippi, Ehode Isl- and, South Carolina, Vermont and Texas; leases for more than two years must be recorded in New Jersey; leases for more than three years must be recorded in Indiana, Michigan, Min- nesota, North Carolina, New York, Ohio and Tennessee; for more than five years in Kentucky, Virginia and West Virginia; for more than seven years in Maine, Maryland, Massachusetts and New Hampshire; and all leases unaccompanied by pos- session or occupation by the lessee, or for more than twenty- one years, in Delaware and Pennsylvania. In New Jersey and Vermont all assignments and mortgages of leases are re- quired by law to be recorded. Although it has been held other- wise,°° it is now considered settled that no lease need be re- corded unless it is expressly required to be recorded by statute. If a lease is not recorded which the statute requires to be re- corded, it is nevertheless valid and binding upon the parties,'" and is also valid and effectual as against all parties who have actual knowledge or notice of its existence."' "Splelman vs. Kliest, 36 N. J. Eq., 199. "Icard vs. Davis, 6 Pet., 124. Center vs. Planter, etc., Bank, 22 Fla., 743. Hunter vs. Watson, 12 Cal., 363. For a full list of cases on this proposition see 20 Am. & Eng. En- cyclopedia of Law, p. 56S. "Id p. 585. 172 LANDLORD AND TENANT. THE ACTUAL VISIBLE POSSESSION OP A TENAITT IS AL- WAYS CONSTETJCTIVE NOTICE TO THE WORLD OF HIS IN- TEEEST IN THE LAND.'' VERBAL LEASES. At the commoii law verbal leases for any term of years were valid, and this is still the law, except in so far as the stat- ute of frauds has imposed certain restrictions. What these restrictions are in the different States we have already seen. In all of the States, except some to be noted later, verbal leases for a year at least are valid. For just how long a verbal lease is valid in any particular State the reader can determine by consulting foot note 47, page 165. The important question which has arisen with regard to verbal leases not made invalid by statute is whether they are valid if made to commence at a future day. Upon this point there is a direct and irreconcil- able conflict of authority. In some States it is held that a verbal lease if not prohibited by the Statute of Frauds is valid, although it is to begin in the future. In the judgment of the authors, the language used by Church, C. J., expresses the bet- ter doctrine: "A parol lease for a year, to commence in future, is valid and obligatory. Such a lease vests a present interest in the term. It is assignable before entry, and the lessee can bring ejectment if possession is withheld. * * • The lease, although verbal, is as binding as if it granted in praesenti a term of one year in the premises, which the testator agreed to pay for. It is like the sale of specific personal property to "DIsbrow vs. Jones, Harr. (Mich.), 48. Hommel vs. Devinney, 39 Mich., 523. Russell's Ex. vs. Moose's Heirs, 3 Mete. (Ky.), 436. Mekes vs. Lake, 25 Mis., 71. Coari vs. Olsea, 91 111., 273. LANDLORD AND TENANT. 173 be delivered.'"' But a contrary doctrine is held in other States.'" IMPLIED LEASES. Lease contracts, like all other contracts, may be implied from the situation and acts of the parties. By implied con- tracts, a term which is used in contradistinction to express contracts, are meant those contracts which the parties have not formulated in express terms, but in which the law afSxes a meaning to the acts of the parties. It is not intended that the law ever makes a contract for parties. The law imposes duties and obligations, but the essence of a contract is mutual con- sent to the same thing, and it can never be said that one con- sents to that which has no basis but legal compulsion. There- fore, it can never be said that one has entered into a contract unless he has consented to its terms. But this does not mean that all which he consents to must be in words, nor always that he has an exact and correct understanding of what the contract really means. A party is not allowed to put his own interpretation on his acts or his language, and to say that by them he really intended this or that. He is bound by the con- struction which the law puts upon his language or his con- duct, and he is conclusively presumed to have intended this and nothing else. This is one of the consequences which flow from the legal maxim "ignorantia juris, quod quisque scire tenetur, neminem excusat''^^ (ignorance of the law, which every one is bound to know, excuses no man). With this understand- ing of what is meant by an implied contract, it remains to be "Becar vs. Flues. 64 N. Y.. 518. This case overrules some earlier cases In New York. See also Whiting vs. Ohlert, 52 Mich., 462. •"Whltting vs. Pittsburg Opera House Co., 88 Pa. St., 100; "Waif vs. Dozer, 22 Kas., 436; Delane vs. Montague, 4 Cush., 42; Larkln vs. Avery, 25 Conn., 304. "Broom Leg. Max., 249. 174 LANDLORD AND TENANT. seen from what acts and circumstances a lease contract will be implied and the relation of landlord and tenant established. Various important questions are involved, as, whether the per- son occupying is liable for rent; whether he is a tenant in pos- session and entitled to notice to quit, and whether he is a ten- ant so as to be subject to the implied obligations which grow out of the relation. WHERE ONE HAS THE BEITEFICIAL USE OF PREMISES BELONGING TO ANOTHER, WITH THE OWNER'S CONSENT, THE LAW WILL tTSTJALLY, IN THE ABSENCE OF ANT SPE- CIAL AGREEMENT, IMPLY A CONTRACT TO PAY FOR THE USE OF THE PREMISES WHAT THEY ARE REASONABLY WORTH." This is in accordance with the general rule that, where one requests and receives a benefit from another's land, in the ab- sence of a special contract, an implied promise arises to pay what it is reasonably worth. This general rule has, however, many exceptions, the question in all cases being what was the real understanding and intent of the parties as to whether or not compensation was to be made for the beneficial use of land. In the case of other implied contracts, this must be gathered from the situations and relation of the parties. The implied contract to pay rent may be found even where the tenant is a son of the owner. So, when a tenant whose lease has expired remains in possession with the consent of his landlord, there is an implied promise that he will continue to pay rent at the rate which he was paying when his term expired. And when one is told that he may occupy the premises at a named rent, and, without expressly agreeing to pay this rent, occupies the premises, his occupation is held to imply a promise to pay the rent fixed by the landlord. And where one makes an agree- "Fak vs. Oats, 16 III., 106. Chambers vs. Ross, 25 N. J. L., 293; Dwight vs. Cutler, 3 Mich., 566; Dell Gardner, 25 Ai-k., 134; Harlan vs. Emery, 46 Iowa, 538. LANDLORD AND TENANT. 175 ment to take a lease and enters under that agreement, lie is held for the stipulated rent on an implied contract, although, after taking possession, he repudiates the agreement and re- fuses to execute the lease."' And the mere taking of the key of the house is sufficient under some circumstances to consti- ture an acceptance of possession to sustain an action for rent.**'' And when one enters into possession under a lease that is void as to its duration under the Statute of Frauds, he is never- theless held during his occupation for rent at the rate fixed by the lease.'" And when one enters into possession under a lease that is void because made on a Sunday, he still enters as a tenant, and is subject to a tenant's obligations to pay what the premises are reasonably worth.** With regard to persons who enter into possession in pursuance of an executory contract to purchase which is never carried out, it may be said generally that if they remain in possession after the treaty is broken off they are liable for rent.°^ And whether they are liable for rent before the treaty is broken off depends upon who is to blame for the non-fulfillment of the contract. If the owner of the land is at fault he is not entitled to rent for the time during which the contract was pending. If the vendee is at fault he is liable for rent during the whole time of his occupancy.** It would be a manifest wrong to permit one who had in- duced another to enter into possession of property under an agreement that he would sell it to him, and on his breaking this contract to take advantage of his wrong and charge the party in possession on a contract to which he never agreed. "Riggs vs. Bell, 5 T. R., 471. ~ "Smith vs. Wooding, 20 Ala., 324; Goned vs. Thompson. 4 Meto., 224. "Dwight vs. Cutler, 3 Mich., 566. "Little vs. Martin, 3 Wen., 219. "Vinz vs. Beatty, 65 Wis., 645. "Hammerton vs. Stead, 2 B. & C, 278. 176 LANDLOBD AND TENANT. And, on the other hand, it would be equally unjust to permit a party who had obtained possession under an agreement that he would purchase, to repudiate his contract and enjoy the use of the propert)^ without compensation."' The next important question involxed in the present dis- cussion is how far the mere delivery of possession by an owner to another raises an implied tenancy so as to impose upon the party receiving the possession the implied obligations of a tenant. Upon this point it may be said that, whether the party to whom possession is entrusted is to be regardad strictly as a tenant or not, he is at least subject to tho^e obligations of a tenant which require loyalty to the title under which he received possession. For not only is a tenant estopped from disputing his landlord's title, but so also is every one who receives possession of land from an- other, so long as he holds quietly under that possession, estop- ped from disputing its legality. As to the third important question involved in the inquiry whether, in a given case, there is an implied tenancy, viz., whether the party occupying is to be considered as a tenant so that he is entitled to notice to quit, and not to be dispossessed except by legal process, the general rule is this: THE LAW FAVORS THAT CONSTBUCTION OF AN OCCTT- PANCY WHICH PUTS IT ON THE BASIS OF A TENANCY, AND WHICH KEGAEDS AN OCCUPANCY AS POSSESSION; AND WHERE IT IS POSSIBLE AN OCCITPANCY WILL BE CON- STRUED AS POSSESSION.To °°For a satisfactory discussion of this question, see Dwight vs. Cut- ler, 3 Mich,, 566. > "Butler vs. Bertrand, 56 N. W. Rep., 342. Hogsett vs. Ellis, 17 Mich., 351. LANDLORD AND TENANT. 177 &.N AGREBMEUSIT FOR A LEASE. An agreement for a lease is an executory contract by which one party agrees to execute and the other to accept a lease, but which of itself conveys no legal interest in the land. It does, however, create an equitable interest, and a court of chancery will, in a proper case, decree specific performance of the contract and put a party to the contract in possession of the premises bargained for. This is to be taken with this qualification — that specific performance is never a matter of absolute right, but always rests in the sound discretion of the court. It is often difflcult to determine whether a particular agreement is an actual lease or simply a contract for a lease.'^ This must be determined by considering what was the real understanding and intent of the parties. The form of words used by them is not decisive of the question, for, while the words "agree to lease" import a contract for a lease, yet, where possession is taken and there is no indication that any further or more formal instrument is contemplated, they may be con- strued to amount to a present demise. On the other hand, while the words "doth let," "lease" or "demise" import an executed lease, yet if, from a consideration of the whole case, it appears that another and formal contract is to be executed before it be- comes operative, they may be construed as amounting only to a contract for a lease.''^ Again, even where it appears clear that "Tillman vs. Fuller, 13 Mich., 113; Hallett vs. Wylie, 3 Johns., 44; Cheney vs. Newberry, 67 Cal., 125; Kabley vs. Worcester Gas Co., 102 Mass., 392; Curling vs. Mills, 7 Scott N. R., 709; where a building con- tract provides that the builder shall occupy until the rent pays for the building, Billings vs. Canney, 57 Mich., 425; but see People vs. Gillis, 24 Wend., 201; Jenkins vs. Bldredge, 3 Story (U. S.), 325; and usually an agreement with a tenant in possession for a further term will be construed to be a present demise. Shaw vs. Farnsworth, 108 Mass., 358; Kimball vs. Cross., 136 Mass., 300; Weld vs. Tralp, 14 Gray, 330; an agreement to give a further term for five years to begin thirty days after lessor's death and to provide for it in his will was held to be only a contract for a lease. Delashman vs. Berry, 20 Mich., 292; agree- ment for a lease with privilege of buying held to be a lease. Haven vs. Wakefield, 39 111., 509. 18 178 LANDLORD AND TENANT. another and more formal lease was to be executed by the par- ties, yet if possession has actually been delivered and taken, the agreement under which possession was taken will usually be construed to be a present demise and the provision for a formal lease to be executed thereafter as a covenant in the nature of a covenant for further assurance.'" But there is so much apparent conflict in the authorities that little can be said but that every case depends upon its own facts, and the guiding principle is, as in the interpretation of all contracts, that the real intent and understanding of the parties must govern.'* Usually, where the precise terms of the tenancy are not fixed, the contract will be construed as an agreement for a lease, and not as a present demise.^^ Where there is an agreement to lease, and the teim is to begin upon the performance of a con- dition or the happening of an event, it will be construed to be a contract for a lease before the performance of the condition or the happening of the event," but afterwards to be a demise." "Harrison vs. Parmer, 76 Ala., 157. Jackson vs. Moncrief, 5 Wend., 26. Jackson vs. Delacroix, 2 Wend., 433. McGrath vs. Boston, 103 Mass., 369. Griffin vs. Knlsely, 75 111.. 411. Morgan vs. Powell, 8 Jur., 1123. "Doe vs. Rles, 8 Bing., 178. Jackson vs. Kisselbrack, 10 Johns., 336. "Where a demise was executed for a term to begin in futuro "but in the same instrument the tenant was permitted to occupy, before the term began, rent free, he was held to be in by virtue of a present demise. Bacon vs. Bowdoin, 22 Pick., 401; S. P. Wood vs. Crocker, 13 Gray, 213; an agreement in a land contract that the vendor might remain in possession until the purchaser paid a certain mortgage, held to be a lease. Hunt vs. Comstock, 15 Wend., 665. "Brown vs. N. Y. O. R. R., 44 N. Y., 79. Haughery vs. Lee. 17 La. Am., 22. Wright vs. Trevlsant, 3 C. & P., 441. "Buell vs. Cook, 4 Conn., 238. McGaunt vs. Wilbur, 1 Cow., 257. Wood vs. Clarke, 9 Jur., 426. "4 Shaw vs. Farnsworth, supra; even though there is an agreement for the execution of a formal lease. Poole vs. Bently, 12 E>ast., 168. LANDLORD AND TENANT. 179 SUB-LEASES, OR UNDER-LEASES. As the word itself suggests, a sub or under lease is a lease made by one who is himself a tenant of the premises which he leases. As will be seen more fully hereafter, when we come to treat of the covenant against sub-letting and assigmnents, every tenant has the same right to lease or otherwise dispose of his interest in the property that his landlord has, unless this right is restrained or abridged by the provisions of the lease under which he holds. He may lease the whole or any part of his holding for the whole or any part of the term during which he is entitled to possession. But, as it is evident that no man can lease or sell or otherwise convey lawful title to more than he himself possesses, the possession and rights of the sub-tenant must always be subject to the terms and lim- itations of the original lease. The under-lease may contain as many additional terms and restrictions as the parties see fit to agree upon, but it cannot confer upon the under-tenant any greater rights in the premises than the original tenant has under his lease. AN TIITDER-IEASE DOES NOT MAKE THE UNBER-TENANT LIABLE ON THE COVENANTS OF THE ORIGINAL LEASE, BUT HIS POSSESSION IS SUBJECT TO ITS CONDITIONS. For instance, if the original lease reserves a rental of one hundred dollars per month, and provides for the forfeiture of the term if the rent is not paid, the original landlord has no claim for his rent against the sub-tenant if the original tenant fails to pay. He cannot sue him for the rent reserved in the original lease, nor can he sue him for the use and occupation of the premises, whether the under-tenant has or has not paid rent to his own landlord, the original tenant. But the landlord in chief may forfeit the original lease for non-payment of rent, 180 LANDLORD AND TENANT. and when this has been done the original tenant's estate is destroyed, and so also is the under-tenant's estate, as it is but a part of it Let the reader but grasp this idea clearly, that the sub-lease is simply a transfer of a part of the estate created by the original lease. As it is an axiom in mathematics that the whole is greater than any of its parts, so, in that part of the law now under consideration, it is self-evident that what- ever destroys the whole must destroy all of its parts; and, also, that the part cannot be greater In any respect than the whole. Whatever restrictions, limitations and conditions are attached to the whole must inhere in every part. Therefore, it is said that every sub-lease is subject to the conditions and limita- tions of the original lease. But it is not intended by this that the landlord has any claim against an under tenant upon the covenants of the orig- inal lease. THERE IS ITO PRIVITY OF CONTRACT BETWEEN THE ORIGUTAI, LANDLORD AND A SUB-LESSEE. The landlord, for any breach of the covenants or conditions of the original lease, must seek his remedy against the one who contracted with him — i. e., the tenant in chief; the under-tenant being only responsible upon his own covenants to the party with whom he covenanted. And herein is found the essential difference between the obligations of an under-lessee and those of an assignee. AN ASSIGNMENT MAKES THE ASSIGNEE LIABLE UPON ALL THOSE COVENANTS OE THE LEASE WHICH RUN WITH THE LAND. It establishes a privity of estate between the landlord and the assignee. It puts the assignee into the shoes of the orig- inal tenant and makes him directly liable to the landlord. LANDLORD AND TENANT. 181 HOW AN UNDER-LEASE IS TO BE DISTINGUISHED FROM AN ASSIGNMENT. There has been some confusion in the books, and some con- flict in the cases, as to what should be held to be an under- lease and what an assignment. Inasmuch as the rights and remedies of a lessor are much more extensive against an as- signee than against an under-lessee, it is important that the rule of demarliation should be clearly pointed out. It is said that AN ASSIGNMENT IS A TRANSFER OF THE WHOLE IN- TEREST OF THE ASSIGNOR IN THE LEASE TO THE ASSIGNEE. It is the putting of the assignee into the shoes of the as- signor as to the lease contract. It is, in fact, an agreement between the assignor and the assignee by virtue of which the assignee is substituted in place of the assignor in the contract, so as to entitle the assignee to all the rights which the assignor has, and subject him to all the obligations which run with the land, which rested upon the assignor, as to the leasehold prop- erty.'^ Anything less than, or different from, this cannot be considered an assignment. The confusion spoken of arose from the idea that where a lessee agreed with another that the latter should take the leasehold premises for the whole of the assignor's unexpired term, this in itself amounted to an assignment, without regard to the intention of the parties or the terms of the contract. And so it was laid down by the old text writers and established by decisions that "when the whole term is made over by the lessee, although in the deed by which that is done the rent and a power of re-entry for non-payment are reserved to himself, and not to the original lessor, yet the instrument amounts to an assignment, and not to an under-lease."^* "Craig vs. Summers, 47 Minn., 189; 15 L. R. A., 236. "Wood Landl. T. S., 330; Pluck vs. Digges, 5 Bllgh. N. S., 31. Hicks vs. Downing, 1 Ld, Raym., 99. Palmer vs. Edwards, l Doug., 187. 182 LANDIX)RD AND TENANT. But it is clear that this notion is not sound. Such a con- struction is not in accordance with the intention of the parties. It is making a contract for them which they did not make and did not intend to make, and this, it cannot too often be repeat- ed, is beyond the province of the law. For these reasons the ancient doctrine has been overthrown, and the modern decis- ions as to what shall be held to be an under-lease and what an assignment fully establish the principle which has been stated in the text.^° AN ASSIGNEE IS BOtIND BY COVENANTS WHICH BtTN WITH THE LAND.81 We have seen that a principal distinction between an un- der-lessee and an assignee is that the latter is bound by cove- nants which run with the land, while the former is not. The rule is a technical one, as indeed are many other rules of the law of real property. It does not seem in harmony with the rule of law which prevails with regard to assignees of merely personal contracts, as a very simple example wUl illustrate. If the owner of land contracts with B. that B. shall build a house upon it, and B. assigns this contract to C, who agrees with B. to fulfil the contract in B.'s place, or, in other words, to be substituted in B.'s place in the contract, this does not make 0. liable to the owner of the land to buUd the house. There is, as between the owner of the land and C, no privity of contract, and the transfer of B.'s rights in the contract to "An instrument transferring a lessee's whole term but at an in- creased rent and with a covenant for delivery of possession, is an under-lease and not an assignment. Collamer vs. Kelley, 12 Iowa, 319. The \a,w In Massachusetts is the same: McNeil vs. Kendall, 128 Mass., 245. Dunlap vs. Bullard, 131 Mass., 161. See also Martin vs. O'Conner, 43 Barb. (N. Y.), 514; Post va. Kearney, 2 N. Y., 394. "St. Joseph & St. L. R. Co. vs. St. Louis, I. M. & S. R. Co., 135 Mo., 173; 33 L. R. A., 607. LANDLORD AND TENANT. 183 C. does not create any privity of contract; or, in simpler lan- guage, does not establish any contract relation between the owner of the land and C.*'' But if the owner of land makes a lease to B. reserving rent, and B. assigns his lease to C, the latter, on taking possession of the land, becomes liable to the owner of the land for the rent which falls due while he is in possession under his assignment. This would appear to be an anomaly in the law. The general rule of the law is that no one is entitled to sue upon a contract except one who is a party to it — ^that is, one to whom the contract promise was made. Ordinarily a person caimot sue upon a promise, even though the promise was made for his benefit, unless the promise was made to himself. Yet the owner of land may sue an assignee of a lease upon those covenants of the lease which, as it said, run with the land, although the assignee has made no contract with the owner of the land. The explanation of this apparent anomaly is found in the doctrine that, between landlord and tenant, there subsists not only a privity of contract, but also what is called a privity of estate. Privity of contract means only the contract relation which exists between the parties to a contract. PEIVITY or ESTATE MEANS MTTTTJAL OE SUCCESSIVE BE- LATIONSEIP TO THE SAME ESTATE IN LANDS. It must be admitted that this is not very definite, but it is as clear as the nature of the case admits. Now, the rule of law as to the rights and obligations which grow out of privity of estate, broadly stated, is this: PEOPLE WHO SUCCEED ONE ANOTHEB IN THE SAME ES- TATE IN LANDS, ABE INVESTED WITH ALL THE BIGHTS, AND ABE SUBJECT TO ALL THE OBLIGATIONS, WHICH IN- HEBE IN THAT ESTATE. "For a case Illustrating this principle, see King vs. Southern P. Co., 109 Cal., 96; 29 L. E. A., 755. 184 LANDLORD AND TENANT. Or, to state the rule in another form of words, by virtue of his privity of estate one who succeeds another in a given estate in lands is entitled to the benefit and is subject to the obliga- tions of those covenants which run with the land. A familiar example of such a covenant is the covenant of warranty in a deed of land. This covenant enures not only to the benefit of the grantee in the deed, but also to the benefit of everybody who succeeds to the same title, no matter how remote in the line of succession, and also regardless of the manner in which he acquired the title. But this privity of estate does not involve privity of con- tract, and it is to be distinguished from it. From the differ- ence between the two privities flow two consequences — one substantial, and the other technical. The substantial conse- quence is that, there being no privity of contract between an assignee of a lease and the landlord, the assignee is not bound by all the covenants of his assignor, but only by those which run with the land.'^ The technical consequence is that, as the law does not regard the assignee as being the covenanting party, an action of covenant will not lie against him, but the proper form of action against him is an action of debt; be- cause, although he did not enter into the covenant, yet, by virtue of the assignment, he succeeds to the obligations of the covenant. And this rule illustrates in a striking manner the essential difference between the action of covenant and the action of debt at the common law. WHAT COVENANTS RUN WITH THE LAND. The general nature of covenants which run with the land is such that they must touch or concern the land itself; they must be entered into by those who are creating or accepting "Consolidated Coal Co. vs. Peers, 166 111., 361; 38 L. R. A., 624. liANDMRD AND TENANT. 185 a legal estate in the land; they are a part of the consideration for the creation or acceptance of the estate, and they run with the land only so long as the particular estate in the land to which they are attached endures. When the particular estate expires, whether by lapse of time, a merger having taken place, or otherwise, the covenants attendant upon the estate perish with it. As between a land- lord and the assignee of the lease, the following covenants have been held to run with the land, and to bind, or enure to the ben- efit of, the assignee personally: The covenant for quiet enjoy- ment;'* the covenant for further assurance;'" to renew the lease;** to repair;*'^ to build a wall on the land;** for a right of way;'* to cultivate the land in a particular manner;"" to reside on the premises;®^ not to carry on a particular trade;"'' to keep the premises insured;"' to grind at the lessor's mill;"* to erect a building on the demised land;"" to pay rent;°° lessor's covenant not to let a site for the establishment of a rival busi- "Noke vs. Awder, I. Cro. Eliz., 436. Campbell vs. Lewis, 3 B. & A., 392. Shelton vs. Codman, 3 Gush., 318. "Middlemore vs. Goodale, Cro. Car., 503. •°Roe vs. Hayley, 12 East., 464. Blackmore vs. Boardman, 28 Mo., 420. Plggot vs. Mason, 1 Paige, Ch. 412. "Gordon vs. George, 12 Ind., 408. "Spencer's Case, 3 Coke, 16; 1 Smith's Lead. Cas., 22. "Bush vs. Calis, 1 Show., 389. "Cockson vs. Cock, Cro. Jac, 123. Gordon vs. George, 12 Ind., 408. ( "Mayor of Congleton vs. Pattison, 10 East., 136. "Tatem vs. Chaplin, 2 H. BL, 133. "Vernon vs. Smith, 5 B. & A., 1. "Vyvyan vs. Arthur, 1 B. & C, 415. "Sampson vs. Easterby, 9 B. & C, 505. "Hurst vs. Rodney, 1 Wash. C. C, 373. Howland vs. Coffin, 12 Pick., 125. Main vs. Feathers, 21 Barb., 646. Demarest vs. Willard, 8 Cow., 206. 186 LANDLORD AND TENANT. nessf not to sell any timber off the demised premises;'' to pay for buildings erected by lessee.** THE PARTS OF A LEASE. We have seen that the relation of landlord and tenant is one which subsists in a contract called a lease, and have con- sidered the general nature and qualities of this contract and of the obligations and duties devolving upon those who are parties to it. We are now to make a more particular examination of this contract, of its usual form, of its necessary parts, of the rights which it confers and the obligations which it imposes. In order that the reader may have a clearer understanding of the discussion which is to follow, a form of lease in general use is here presented: DATE OF LEASE— PARTIES TO LEASE. This Indenture, made this seventh day of December, in the year one thousand, eight hundred and ninety-three, between A. B., party of the first part, and C. D., party of the second part, witnesseth: OPERATIVE WORDS OP LEASE— DESCRIPTION OF LEASED PROPERTY— THE TERM. The said party of the first part, in consideration of the cove- nants and agreements herein to be kept and performed by the said party of the second part, doth hereby demise and let to the said party of the second part that certain building, mes- suage and tenement, with its appurtenances and heredita- ment, known as number 155 West Congress Street, in the City of Detroit, Michigan, for the term of five years, beginning on the first day of January, in the year one thousand eight hun- "Norman vs. Wells, 17 Wend., 136. "Hunt vs. Danforth, 2 Curt. C. C, 592. •n'^erplanck vs. \Vright, 23 Wend., 506. LANDLORD AND TENANT. 187 RENT EESERVED— EESTBICTION ON USB. dred and ninety-four, the said party of the first part reserving unto himself and the said party of the second part yielding and paying therefor an annual rent of four hundred dollars, payable monthly in advance, the said premises to be used for a dwelling house, and for no other purpose. COVENANT FOR QUIET ENJOYMENT— RE-ENTRY CLAUSE. And the said party of the first part doth hereby covenant and agree to and with the said party of the second part that the said party of the second part, on keeping and performing the covenants and agreements by him herein stipulated to be kept and performed, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term afore- said; provided, however, that if default shall be made in the payment of any installment of the rent herein reserved, or in the keeping or performance of any of the covenants or agree- ments herein stipulated to be kept and performed by the said party of the second part, then it shall be lawful for the said party of the first part to re-enter into and re-possess the said demised premises, and the said party of the second part and each and every other occupant to remove and put out. COVENANT TO PAY RENT. And the said party of the second part does hereby hire and rent the said demised premises for the term aforesaid, and does covenant and promise to pay to the said party of the first part the rent herein reserved as the same becomes due. COVENANT TO REPAIR. The said party of the second part further covenants and agrees that he will at his own expense, during the continuance of this lease, keep the said demised premises and every part 188 I/ANDLOED AND TENANT. thereof in as good repair, and at the expiration of the term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damage by the elements excepted. COVENANT NOT TO SUB-LET OR ASSIGN. And the said party of the second part further covenants and agrees that he will not assign or transfer this lease, or sub- let the said demised premises, or any part thereof, without the consent in writing of said party of the first part, ATTESTATION CLAUSE. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written. A. B (L. S.) CD (L. S.) THE DATE OF A LEASE. While it is usual to state in a lease or written instrument the date upon which it is executed, the statement is only use- ful in so far as it is a correct memorandum of the time when the paper was in fact executed, i. e., signed, sealed (where sealing is necessary) and delivered. No written instrument can take effect or become operative as such until delivery. The date stated, therefore, considered as a date merely, is a mere memorandum which may be shown to be incorrect, a rule which probably grows out of a common experience in business that many papers prepared for execu- tion are not in fact executed for a considerable time after the period set for their execution. But while the statement in a lease that it was executed on a given date is not important and if incorrect may be shown by other evidence to be so, yet the date stated in the lease may be important for other pur- LANDLORD AND TENANT. 189 poses. Usually it may be said that where in any part of the instrument a reference is made to the date as a point of time from which anything is to be reckoned the date stated in the lease is the day from which the reckoning is to be made and not the day on which the lease is actually executed. On the other hand, where the language imports that the parties have in mind the time when the lease is actually executed the lease will be construed accordingly and without reference to the date given in the lease. EVERY LEASE WHICH THE LAW REQtriRES TO BE IN WRITING MUST CONTAIN THE NAME OF THE LESSOR ANB If it lacks their names or the name of either it is said to be void. But it is of no consequence that a middle name or initial is omitted or that a party is mentioned by his initials. It is sufficient that the name given will designate the individual intended. And if one of the parties uses a fictitious name he is as much bound as though he had used his own proper name. And it is not always necessary that each party should always be fully or correctly named or referred to in each clause of the lease. It is sufficient if it can be gathered from the whole instrument who is lessor and who is lessee and what covenants are intended to be binding upon each.^"' The question of whether a lease which the law requires to be in writing is valid if at the time of execution by the lessor the name of the lessee is left blank and is afterwards filled in is not free from difficulty. But the prevailing doctrine is that a deed in which the name of the grantee is left blank is void."^ ^'"Newton vs. McKay, 29 Mich., 1. < '"Vlser vs. Rice, 33 Tex.. 139. Jackson vs. Titus, 2 Jolins., 430. Bdelin vs. Sanders, 8 Md., 118. i Ingram vs. Little, 14 Ga., 173. Burns vs. Lynde, 6 Allen, 305. Slmms vs. Hervey, 19 Iowa, 273. 103 190 LANDLORD AND TENANT. But there is some authority in favor of a contrary doctrine,' and the weight of authority is perhaps that such an in- strument is valid in the hands of one who took it without knowledge of its original defect.'"* THE OPERATIVE WORDS OF A LEASE. In defining a lease it has already been explained what form of words should or may be used in making a lease. THE DESCRIPTION OF THE PREMISES. A sufflcient description of the leased premises is essential to the validity of every lease which the law requires to be in writing. Being an essential part of the contract it cannot be supplied by parol evidence and without it a lease is void. That is to say, the lease is void so long as it remains purely execu- tory, or in other words, so long as parties have not joined in an act or part performance, of the lease. As we have seen elsewhere, leases which are void on their surface may become effectual for some purposes, when pos- session is taken under them or other acts of part performance are done with the concurrence of both parties. For as will be more fully explained hereafter, nothing is an act of part per- formance in a legal sense unless it is an act in which both parties participate or in which both parties concur. An act to be an act of part performance must be of such a character as would work an estoppel. With this understanding of what is meant by the saying that a lease which the law requires to be in writing which ""Clark vs. Allen, 34 Iowa, 190. Pence vs. Arbuckle, 22 Minn., 417. ""Field vs. Stagg, 52 Mo., 534. Drury vs. Foster, 2 Wall., 24. LiANDIiORD AND TENANT. 191 does not contain a sufficient description of the premises is void, it remains to be seen wliat is a sufficient description and what is included within the description used. - The reader will observe that the phrase "lease which the law requires to be in writing" is used instead of "written lease," for in case of a written lease which the law does not require to be in writing it is competent to supply deficiencies by parol evidence. In the latter case, as in the former, the writing cannot be con- tradicted or varied by parol, but in the latter case that which is lacking may be supplied, but in the other it cannot.^"" Eecurring now to the question of what is a sufficient de- scription of the leased premises, it can safely be laid down that any language is sufficient which will identify the premises which are the subject of the lease. There is no set form of words necessary to be used in any case. Anything from which a court can find the intent of the parties will be sufficient, and, in order to get at that intent, extrinsic evidence of facts is freely admitted. There is nothing in which the rules of law are more liberal, less technical, and more elastic, than in con- struing descriptions in deeds, leases and other writings. With this, there are two things to be borne in mind. There must be some description; for extrinsic evidence cannot be admitted to supply that which is wholly wanting. And, secondly, it must be a description which, upon its face, appears capable of being made certain and definite by a reference to extrinsic facts."' For, if, upon its face, a description is ambiguous, extrinsic evidence cannot be resorted to, for the purpose of showing ""Greenl. Ev., Sec. 297, et seq. •"It was held In Bulkley vs. Devlne, 127 111., 406; 3 L. R. A., 330, that one who had executed a contract for the leasing of a house and who took possession under It and paid rent, could not repudiate It on the ground that the contract did not give the aumber of the house. 192 LANDLORD AND TENANT. what was intended. Or, in other words, a description which upon its face describes several things equally well describes nothing. It would be a case of patent ambiguity which, as Bacon says, "cannot be holpen by averment." In written and printed leases it is usual, as in the form given, to add to the description of the property the words, "its hereditaments and appurtenances." Hereditaments is a word of very extensive signification, and includes every species of real property; since it means those things which pass by in- heritance, that is, those things of which the title, on the death of a person, passes to his heirs; in contradistinction to those things the title to which passes to his personal representatives, that is, his executors or administrators. Keal property goes to the heirs and personal property to the personal representatives. But some articles which, disso- ciated from their surroundings, woiild be personal property, as, for instance, family pictures, are sometimes hereditaments, be- cause, by a particular custom, they are heir-looms and pass to the heir. Appurtenances mean a right which passes as an inci- dent of the grant of something else as the principal subject of the grant. In deeds and leases it is restricted to rights and privileges incident to real property, as, for instance, a right of way. The use of those words in a lease is unnecessary verbiage since, as we have already seen,^" when land or a building or a part of a building is leased everything which belongs to, and every right or privilege necessarily incident to the use and beneficial enjoyment of the thing leased, passes by the lease, without being mentioned specifically. The explanation and limits of this doctrine can best be learned by a consideration of the adjudicated cases.^"' ""Edmison vs. Lowry (S. D.), 17 L. R. A., 275. LANDLORD AND TENANT. 193 THE TERM. The period of time fixed by the lease contract for the dura- tion of the tenancy is called the term. It is essential to the validity of every lease that the term should be certain, as it is an essential part of the contract. The certainty required by the law demands, not only that the length of time for which the lease is to continue should be fixed, but also, the day on which it begins, and, by consequence, the day on which it term- inates. As the legal day begins at midnight, the tenant's term begins at midnight on the first day, and ends at midnight on the last day, of the term. Under a properly drawn lease no difflculty as to the limits of the term can arise. But, even in the case of carefully drawn leases, disputes as to the term arise which must be settled by the courts. The reader will notice that in the form of lease given it is stated that the term shall "begin" on the first day of May. If the language em- ployed had been "five years from the first day of May," a question would have arisen whether the first day of May was included in the term, or, in other words, whether the term be- gan on the first, or on the second, day of May. Special attention is directed to this point here in order that the student may observe what minute consideration of the phraseology to be employed in drawing contracts is always necessary in order to avoid ambiguity and uncertainty. If it does not appear to be clear, from the language used in making the lease contract, what length of time the parties have agreed upon, the courts will attempt to construe the lan- guage used in such a way as to give effect to the agreement and carry out the intention of the parties. This is in accord with what a very learned writer gives as the first great rule of the law in construing all contracts.'"" A liberal construction should be put upon written instruments, so as to uphold them, 194 LANDLOED AND TENANT. if possible, and carry into effect the intention of tlie parties. In doing this the first attempt is always to be made by apply- ing settled rules of construction to the language used, and without at first resorting to extrinsic evidence. Extrinsic evidence is resorted to, not to alter the meaning of a written instrument, but, in case of uncertainty, to shed light upon the subject matter and the circumstances under which it was drawn. Where the meaning of the language used is clear and certain, no resort to extrinsic evidence can be had. If by ap- plying settled rules of construction to the language used, cer- tainty can be reached, the inquiry goes no further. If this effort proves ineffectual, resort will then be had to evidence of extrinsic facts, from which the court may be able to gather the real intent. The language used must, however, be such as is capable of such an interpretation as to bind the parties to some definite term. If it is not, the courts will not attempt to make a con- tract where the parties have made none themselves. It is on this principle that it is held that a lease for such a time as the parties may agree upon, or to continue so long as both parties are satisfied, is void since by such language neither party is bound for any period whatever. RENT. IN THE LAW OE LANDLORD AND TENANT RENT IS THE RECOMPENSE WHICH THE TENANT MAKES TO THE LAND- LORD FOR THE USE OE THE LAND AND IT MAY BE IN MONEY, PROPERTY, OR SERVICES. Eent is not essential to a lease, and the obligation to pay rent can only arise out of an express or implied promise. A "•It Is better to say contracts, for the rule Is the same whether the contract Is written or verbal. LANDLORD AND TENANT. 195 promise to pay rent will be implied where it fairly appears from all the circumstances of the particular case that it was understood by the parties that rent was to be paid. The amount of the rent to be paid, when it has not been fixed by agreement, must be a reasonable compensation for the use of the property. In such a case the manner and time of payment will be in accordance with the local usage and cus- tom in paying rent for the kind of property which is the subject of the lease. It is often a matter of extreme difficulty to determine whether or not in a particular case there is an implied promise to pay rent. This, however, is al- ways a question of fact and never a question of law. The law does not impose an obligation to pay rent upon one merely because he occupies the property of another with his consent. But a promise to pay may be implied, and whether there was such a promise in any given case is a matter of fact, to be de- termined by all the facts and circumstances of each case. In the usual form of lease rent is mentioned twice. It is first mentioned as being reserved by the lessor. After this it is usual to insert an express covenant on the part of the lessee to pay the rent reserved. The object of having an ex- press covenant to pay rent is this: Rent which is reserved merely, must be paid by whosoever occupies the premises so long as the occupation continues, and a lease reserving rent, it is said, creates an implied covenant on the part of the lessee to pay the rent reserved. But this implied covenant is not a personal covenant, but one which runs with the land, and may therefore be avoided by the lessee by assigning the lease to a third party, who may be irresponsible. This is in accordance with the general rule that implied covenants in the lease con- tract run with the land, and are binding only upon the land- lord, that is, so long only as he remains owner of the land, or 196 LANDLORD AND TENANT. as it is generally said of the reversion, and are binding only upon the tenant so long as he actually remains tenant in pos- session. The landlord is discharged of an implied covenant whenever he parts with his reversion, and the burden there- after rests upon the purchaser of the reversion ; the tenant is discharged of his implied covenants by assigning his lease. But express covenants in leases are personal obligations which must be fulfilled by a party according to their terms, whether he continues to own or hold the leased premises or not. Thus, it was held that an assignment of the lease and the acceptance by the landlord of the assignee as tenant did not release the original tenant from his covenant to pay rent.*^^ WHEN RENT IS PAYABLE. Where the dates of payment are not specifically prescribed in a lease the rule is that the rent is payable at the end of each rent term fi[xed by the lease. For instance, if the leased premises are rented for five years for the gross sum of fifteen hundred dollars no rent is payable until the end of the term. If the premises are rented for five years at three hundred dol- lars per year, the rent is payable at the end of each year. If the premises are rented for five years at the rate of seventy- five dollars per quarter, the rent is payable quarterly; if at the rate of twenty-five dollars per month, the rent is payable monthly. If the premises are rented in the middle of a rent period, the usual rule is that a proportional part of the rent for that period is payable on the first usual and regular rent day, but as to this the cases are not entirely agreed. Rent is never payable in advance, or before the end of a rent period, except by virtue of an express contract. "'Bonettl vs. Treat, 91 Cal., 223; 14 L. R. A., 151. LANDLOED AND TENANT. 197 WHERE RENT IS TO BE PAID. In most leases rent has a double aspect. Viewed In one light it is when due an ordinary debt, and is payable like other debts without any previous demand. If it is not paid when due it may be sued for without a prior demand. The common law requires the debtor to seek the creditor and tender payment if he would avoid suit. Viewed in another light, the payment of rent may be a condition on the fulfill- ment of which depends the right to remain in possession of the property. In this aspect payment need only be made on the leased premises. To avoid a forfeiture of the lease for non- payment of rent, it was only necessary, at the common law, that the tenant should be ready to make payment on the land when a lawful demand was made upon him there. And the requisites of a lawful demand were as follows: The landlord could not make his demand before the very day on which the rent was due. The demand was ineffectual if it was for more than the exact sum due. The demand had to be made at the most suitable place on the leased premises; at a convenient time before sunset, so as to afford daylight enough for count- ing the money. The landlord must wait until sunset, and if the money had not then been paid, the forfeiture might still be saved by a tender of the money at any time before midnight The subject is now regulated by statute in most, if not all, of the States. It must not be assumed from what has been said that non- payment of rent is always ground for forfeiture of the lease. The payment of rent was not regarded as a condition at the common law unless it was expressly made a condition by the terms of the lease. In every well drawn lease it is now made a condition by the re-entry clause, the nature and effect of which wUl be examined hereafter. In addition to express 198 LANDIXJED AND TENANT. provisions in the lease, the payment of rent is now generally made a condition by statutory provisions. But, unless by an express provision of the lease, or, by virtue of a statute, non- payment of rent is no more a ground for forfeiting a lease than non-payment of the purchase price is for rescinding a sale, and revesting title in the vendor. TO WHOM RENT IS PAYABLE. Under this head no difficulty arises where the rent is made payable to the lessor, and the lessor lives and holds his title during the continuance of the term. But where the rent is re- served in favor of a person other than the landlord, it is doubt- ful what, if any, remedy the person to whom the rent is made payable has."^ The covenant to pay rent being one which runs with the land, the right to the rent follows the reversion, and this without regard to the technical language used in the lease.^^^ Whenever the landlord's title is extinguished, whether by death or sale, the right to collect the rent passes to the new proprietor, that is, if the new proprietor acquires the title which the landlord had at the time of making the lease. If the new proprietor comes in by virtue of a different and para- mount title, he acquires no rights under the lease. The differ- ence may be illustrated in this way: If, at the time of the leasing, the land is subject to a mortgage, and during the term this mortgage is foreclosed, the purchaser under the fore- closure acquires no rights under the lease. The covenants of the lease do not run with the estate which is the subject of the mortgage. But if the mortgage is made after the lease, then the purchaser under the foreclosure succeeds to the rights of the landlord under the lease, for the leasehold is a part of ""Brewer vs. Dyer, 7 Gush., 337. Bank vs. Hlce, 107 Mass., 41. I "Tennell vs. Gufley, 139 Pa., 341. LANDLOED AND TENANT. 199 the estate which was mortgaged. It will thus be seen that the phrase "covenants which run with the land" may be mis- leading unless the student keeps in mind that in this phrase "land" really means "estate in land," and that the thought in- tended to be conveyed would be more accurately expressed by the language "covenants which run with an estate in the land in which they arise." And, as it is said, "rent is not apportionable in respect of time," the new proprietor takes the rent not only from the day on which the title devolves upon him, but from the last pre- ceding rent day. Thus, if the landlord dies in the middle of the year, where rent is payable annually or even on the very last day of the term before the rent is due, the heir takes the whole year's rent. Whereas, if the landlord had died the day after the year's rent was due, the right to collect the rent would pass to his executor or administrator. The same rule obtains when the title passes by gift or grant, whether voluntary or involuntary. Eent which is past due is personal property, and does not pass with the land. Rent which is not yet due belongs to the land, and passes with the land to whosoever acquires the title. Kent which is overdue is like ripe fruit which has fallen to the ground or a tree which has been cut down. It has become a chattel and is no longer part of the land. Eent which is not yet due is like fruit on the tree or a growing tree. It is part of the soil and passes with it. Whether in view of this quality of rent, rent to accrue in the future is subject to attachment or garnishment, is a question which does not seem to have arisen, but in the opinion of the authors it is not unless specifically named in the statute. ITiere is one exception to the rule that rent is not appor- tionable in respect of time. Where a tenant for life makes a lease for years and dies in the middle of a year, his personal 200 LANDLORD AND TENANT. representatives are entitled to the rent computed up to the day of his death. The reversioner or remainderman is entitled to the rent thereafter. Although rent is not apportionable in point of time, there are many cases in which it is apportioned between separate owners on account of a change in the ownership after the making of the lease. When, after the making of a lease, the title to different parcels of the land devolves upon different persons, the rent must be apportioned according to the rental value of each parcel and be paid to the respective owners. To make this apportionment, a bill of interpleader would lie at the suit of the tenant. So where a portion of the leased premises is condemned for public uses, the rent is abated in proportion to the damage to the rental value of the property.^^^ If the whole of the leased premises is condemned this puts an end to the lease and no "'The decision of the Supreme Court of Illinois in Stubbings vs. Evanston, 136 III., 37, is not in accordance with the weight of author- ity, nor is it reasonable. It cannot be commended as a precedent ■when it Is tested by Blackstone's famous aphorism, that "what is not reason is not law," a saying too often forgotten by courts and lawyers. In that case it is held that when only a portion of leased premises Is condemned, the liability of the tenant to pay the full rent reserved In the lease during the whole term remains unimpaired, and therefore compensation for the damage to the rental value of the premises during the. term must be made to the tenant and not to the landlord. Suppose a case where the rental value of the entire premises is a thousand dollars a year and the lease has twenty years to run, and through the condemnation proceedings the rental value of what is left is reduced to one hundred dollars a year. Under the decision in the case under consideration, the tenant must pay nine hundred dollars a year for twenty years for nothing, because what he was to get for it is ap- propriated by the public. He must be compensated for this liability and a sufficient sum must be awarded to him (in addition to his other damages) to pay this nine hundred dollars a year for twenty years to his landlord. As this money is awarded to him solely for the pur- pose of having him pay it over to the landlord, why not award and pay it over to the landlord In the first place and relieve the tenant from liability and the landlord from anxiety? Why make the tenant prac- tically a trustee for the landlord, without bonds, In what Is purely a naked trust? "Why pursue this circuitous method of getting money to LANDLOED AND TENANT. 201 rent is payable thereafter. Tke landlord must look to the public for a just compensation for his loss in either case. INSTEAD OF PAYING RENT, A TENANT MAY ALWAYS PAY ANY CHARGE AGAINST THE LAND, AGAINST WHICH IT IS HIS LANDLORD'S DUTY TO PROTECT HIM, AND THE NON-PAYMENT OP WHICH EXPOSES HIM TO SUIT, EVIC- TION, OR DISTRESS. This rule, as we have already seen, grows out of that doc- trine of the law of landlord and tenant that where either party to the lease fails in the performance of a duty of protection, the other is authorized to perform it, for his own protection, at the expense of the one in default. And the tenant need not wait to discharge the burden until he is actually threatened with distress, or eviction. He may act so soon as the de- fault of the landlord has exposed him to a liability. And, in relieving himself from such a liability, he is not limited to paying simply the amount of rent which he owes. He may, if he chooses, pay whatever amount is necessary, and, if the the landlord which by a curious method of reasoning is awarded to the tenant because It belongs to the landlord and because the tenant must pay it to him? But there is another view which illustrates more clearly the glar- ing Injustice of the proceeding. The landlord's right to the rent is, It is true, a contractual right against the tenant, but It must be remem- bered that so long as the property is uncondemned he has security for his money. If the tenant does not pay he forfeits his lease and the property reverts to the landlord. Thus the actual rental value of the property is security to the landlord that the rent will be paid, for the tenant cannot continue to hold the possession unless he pays the rent. But the moment the rental value of the premises is destroyed, that moment the landlord's security is gone. In this aspect the landlord's situation is analogous to that of a mortgagee. In condemnation pro- ceedings mortgagees always are made parties and the rule is to award to the mortgagee as damages that part of his money for which the property left is not ample security, and this Is done whether the mort- gage loan is due or not. What the mortgagee receives in this way is treated as a payment on account by the mortgagor. There Is no sound reason why the same principle should not be applied in the case of landlord and tenant. To compel a creditor to accept a merely personal liability for a secured claim Is confiscation. 202 LANDLORD AND TENANT. amount exceeds the rent which he owes, he can recover the excess in an action for money paid to the landlord's use. THE GROUNDS ON WHICH PAYMENT OF RENT MAT BE REFUSED. We have before adverted to the dual aspect in which rent is to be regarded. Where rent is reserved, payable in install- ments, at stated intervals, the payment of the rent is now almost universally a condition, on the performance of which the lessee continues to hold, and for the non-performance of which his estate is liable to forfeiture. There is but one case in which a tenant, whose estate is liable to forfeiture for non- payment of rent, can resist forfeiture and dispossession for non-payment. When there has been a willful and actual (as distinguished from constructive) eviction by the personal act of the landlord, from the whole, or a part, of the leased prem- ises, rent ceases. The obligation to pay rent is suspended so long as the eviction continues. The tenant may, if he chooses, treat it as putting a final termination to the lease contract. He may, if he chooses, stand upon his rights under the lease and refuse to pay rent whUe the eviction continues, and in such case, if the eviction is but from a part of the leased premises, the tenant is not obliged to surrender possession of the remaining portion in order to avoid liability for rent. Upon eviction from a part, that is, if the eviction is of the character above defined, the whole rent is suspended, although the ten- ant remains in possession of a portion of the leased premises. The suspension of the rent, in a case of this kind, is in the nature of a penalty, for the wrongful act of the landlord, in violating that duty of loyalty and protection which he owes to the tenant's possession. But, as the suspension of the whole rent in case of a willful partial eviction is a penalty for wrong- ful conduct, rent is not wholly suspended on account of a par- LANDLORD AND TENANT. 203 tial eviction due to other causes. Where there is a partial eviction by virtue of a title paramount to the landlord's, rent is abated in proportion to the rental value of that portion from which the tenant has been evicted, just, indeed, as in the case of the condemnation of a portion of the leased premises for public purposes. In the case of a partial eviction, not the result of the personal wrongful act of the landlord, the tenant cannot remain in possession of the remainder and refuse to pay rent. He must pay rent or move out,"* but, he may, if the eviction is of a substantial portion of the leased premises, throw up his lease and seek his remedy against the landlord on the covenant for quiet enjoyment. In case of a constructive eviction, the tenant must choose between paying rent and abandoning the premises. He cannot remain in possession without paying rent.^^^ This is also the case where the tenant grounds his refusal to payment upon the breach of any other of the landlord's covenants, as, for in- stance, a covenant to repair. Except in the single case, which has been explained, the tenant cannot resist dispossession and the payment of any money which should have been paid by the landlord and the non-payment of which exposes the tenant to suit, distress or forfeiture, will be regarded as a payment on the rent. What constitutes an eviction is explained under the sec- tion devoted to the covenant for quiet enjoyment, which is neither more nor less than a covenant against eviction. In another aspect rent is simply so much money due by virtue of a contract. When it is sued for like money due upon any other contract, it is subject to set-off, and recoupment, and payment may be resisted on grounds which would defeat a re- "•Lelferman vs. Osten, 167 III., 93; 39 L. R. A., 156. "'Keating vs. Springer, 146 111., 481; 22 L. B. A., 544. 204 lANDLOED AND TENANT. corery upon other contracts. These defenses are ranged under four heads; set-off where the tenant has a liquidated de- mand against the landlord growing out of some other matter; recoupment where the tenant has a counter-claim against the landlord for the landlord's breach of some obligation growing out of the lease; repudiation of the lease by the tenant upon the ground of fraud; and lastly, where there is a total fail- ure of the consideration for the promise to pay rent. LEASES, LIKE ALL OTHER CONTRACTS, MAY BE AVOIDED FOR FRAUD. It is an ancient doctrine of the law that fraud vitiates all contracts, by which is intended, not that it renders them void, but, that it renders them voidable, at the option of the defrauded party. The right to avoid a contract for fraud must be exercised promptly, if at all; that is, as soon as it can reasonably be done after the discovery of the fraud. It must also be avoided in whole, or not at all. The law does not per- mit the defrauded party to avoid a contract in part, and affirm it in part; and finally, a party avoiding a contract for fraud must return what he has received under it, and otherwise, so far as possible, place the other party in the situation he was before the contract was entered into. When this has been done the defrauded party, if he has been injured, has no longer any claim under the contract, but he may still have his action for the fraud by which he was induced to enter into the contract. By founding a claim for damages upon the contract itself the injured party elects to afflrm, instead of avoiding, it. These are familiar and elementary principles, and we are now to see in what manner they are applied to leases. ANT MATEELAL MISBEPRESENTATION ON THE PART OF THE LANDLORD, WHETHER MADE BY HIMSELF OR HIS AGENT, IS A FRAUD FOR WHICH THE LEASE IS VOIDABLE AT THE OPTION OF THE TENANT. LANDLORD AND TENANT. 205 The misrepresentation must be as to a fact, for a mere ex- pression of opinion is not regarded as a statement of fact. Tlie common law maxim, "simplex commendatio non obligat," ap- plies to leases as to other contracts. The misrepresentation must also be material, by which is intended, it must be as to some matter which would be an inducement to enter into the contract, and the falsity of which materially alters the situa- tion, to the injury of the defrauded party. In cases of active fraud, that is, where there are positive misrepresentations which deceive, there is usually little difficulty in determining whether they do, or do not, amount to legal fraud. The chief difficulties with which the courts have had to contend have arisen out of cases where there has been a concealment of material defects which, upon the part of the tenant, it has been contended, it was the duty of the landlord to disclose. CONCEALMENT OF A HIDDEN DEFECT WHICH BENDERS THE LEASED PREMISES DANGEROUS TO HEALTH OR TOTALLY UNFIT FOR THE PURPOSES FOR WHICH THEY ARE LEASED, IS A FRAUD FOR WHICH THE LEASE MAY BE AVOIDED AT THE OPTION OF THE TENANT. The English common law has always been considered by students of other systems of jurisprudence peculiarly harsh in its doctrines as to contracts. Its rules seem to have been formed upon the theory that when two persons, competent to contract, come together to make a bargain each must look out for himself and either might overreach the other to almost any extent. The favorite maxim of the common lawyers with regard to contracts was "caveat emptor." This harshness of the common law gave rise to one of the heads of equity juris- prudence, that of relief against unconscionable contracts, which the common law would have enforced. There is a growing tendency on the part of courts and legislatures to modify this harshness and to introduce the 206 LANDLORD AND TENANT. more equitable principles of the civil law. This tendency has been greatly stimulated by those modern codes which have broken down the middle wall of partition between law and equity, and required them to be administered as one, instead of two systems. It is worthy of note that the greatest of American law writers many years ago, in advance of his age, and, it may truly be said, in advance of the then state of the law, stated what may now be accepted as a correct statement of the law, so far at least as the duty of the landlord is con- cerned in disclosing hidden defects in the property which he is about to lease. "If there be an intentional concealment or suppression of material facts in the making of a contract, in cases in which both parties have not equal access to the means of information, it will be deemed unfair dealing and will vitiate and avoid the contract. There may be some difference in the facility with which the rule applies between the facts and circumstances that are intrinsic, and form material ingre- dients of the contract, and those that are extrinsic, and form no component part of it, though they create inducements to enter into the contract, or affect the price of the article. As a general rule each party is bound to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation."^^' What is legally a fraudulent concealment, it is difficult to say, or, perhaps, it would be more exact, to say, it is ditTicult to say, what, by any given tribunal, would be held to be a fraudulent concealment. There is this, however, to be said. The harsh doctrines of the common law upon this subject are gradually giving way to the more just and equitable doctrines of the civil law. The leading maxim of the common law was •"2 Kent Com., 482. LANDLORD AND TENANT. 207 and largely still is, "caveat emptor," which, in the light of the cases decided upon its authority, may be interpreted to mean, "the buyer must look out for himself. The seller owes him no duty." The maxim of the civil law is, "suppressio veri, expressio falsi," "the suppression of the truth is equivalent to the statement of what is false." Although this maxim has been cited in some cases it cannot as yet be considered a prin- ciple of our law. The civil law has too long been neglected by common law lawyers and judges, but there are evidences on every hand that it is being resorted to now, and that the com- mon law will be more and more modified and enriched, by that code, which was, and is the ripest product of that elder civili- zation which preceded the period which is known in our history as the Dark Ages. In those ages the learning of the pre-exist- ing civilization, so far as jurisprudence is concerned, was in England largely lost to view and a new system grew up there which we call the common law. Like all systems of law, it was greatly affected by the inherent character and particular cir- cumstances, surroundings, and history of the people among whom it developed. This system is stiU dominant among all English-speaking peoples. But as we approach the dawn of the twentieth century, and especially in America, in a civilization where all the Indo-Germanic races are represented, it is time that our jurists extended their studies and sought for sound legal truth beyond the narrow confines of the English common law. This digression may be pardoned because a suppression of the truth which, by the principles of the civil law, would be classed as legal fraud, is still sanctioned by the common law. But, as said, upon this point the principles of the civil law are constantly advancing, and, therefore, it behooves the thoughtful student to be prepared for and to assist in this improvement of our existing code. It is partly because of this 208 LANDLORD AND TENANT. growing tendency that it is difficult to say what, by any given tribunal, would now be held to be a fraudulent concealment As it is, the authors can only illustrate by the latest decisions the existing state of the law upon this subject, indicating at the same time their opinion as to the direction in which the law is tending. In the existing state of the law, a landlord is not required to point out defects, although they are Imown to him and not known to, or perceived by, the tenant, if they are defects which are discoverable. "The tenant is a purchaser of an estate in the land or building hired,"^" and as a purchaser must examine for himself. But the case from which the lan- guage is quoted was one in which there was no evidence, that the landlord had any reason to believe that the defect com- plained of was material or serious, or, that he concealed the defect intentionally. And the case in which it is cited by the Supreme Court of the United States,^^" is also a case, where there was no evidence of an intentional concealment of a de- fect, with any fraudulent purpose. So it was held that the duty to disclose to a tenant hidden defects that tend to make the property unsafe is not imposed on a landlord who is ignorant thereof without fault or negligence on his part.^''^ These decisions must be considered as limited by the facts upon which, they are based. Therefore, these cases are entirely consistent with this proposition. AN INTENTIONAL CONCEALMENT OF AN TrNDISCOVEB- ABLE MATEBIAL DEFECT IN THE LEASED PEEMISES IS A LEGAL FBATTD, FOB "WHICH THE LEASE MAY BE AVOIDED; IF THE DEFECT IS ONE WHICH CAUSES INJTTBY OB DISEASE. "•Bowe vs. Hunking, 135 Mass., 380. ™Doyle vs. Union Pacific R'wy Co., 147 U. S., 413. "'Schmalzried vs. Wiiite, 97 Tenn., 3C; 32 L. R. A., 782. LANDLORD AND TENANT. 209 TO TEE TENANT, OB HIS FAMILY, THE LANDLORD IS LIA- BLE IN DAMAGES FOR SUCH CONCEALMENT.'^ A TENANT IS JUSTIFIED IN ABANDONING THE PREM- ISES AND REFUSING TO PAY RENT, WHEN HE WAS INDUCED TO TAKE THE LEASE BY FRAUD. If the landlord or his agent deceives the tenant as to the condition or sil nation of the premises, the tenant is not bound by his contract. The lease may be in writing, and the false statements verbal, but this makes no difference. The false statements may have been made knowingly, or innocently, be- lieving them to be true, but the result is the same. Mere con- cealment does not amount to fraud, except when there is some concealed defect which renders the occupation of the premises dangerous to life and health. Thus, it was held that a landlord was liable to his tenant for damages which resulted from the dangerous condition of the premises leased when he knew of the condition of the premises at the time of the lease, and when the tenant did not have knowledge of such dangerous condi- tion."* But any false statements respecting any matters which are important to the value of the use of the premises, which were made before the lease was accepted, for the purpose of secur- ing a tenant, if fraudulent, will justify a tenant in throw- ing up his lease. But if the tenant desires to avoid his lease on the ground of fraud, he must act promptly after he discovers the fraud. He ought to abandon the premises within a reasonable time. This statement of the law is to be taken with the qualification that it applies to the state of facts existing at the time the lease is made. After a tenancy has begun the landlord owes no greater duty to a tenant to dis- '"Cutter vs. Hamlen, 147 Mass., 471; 1 L. R. A., 429; Ingalls vs. Hobbs, 156 Mass., 348; 16 L. R. A., 51. Kern vs. MtII, 80 Mich.. 525; 8 L. R. A., 682. "*HInes vs. Willcox, 96 Tenn., 148, 328; 34 L. H. A., 824. 210 LANDLORD AND TENANT. close defects which are afterwards discovered than a third person, at least this is so if it is an ordinary defect and not one arising out of an extraordinary state of facts.^^' PAYMENT OF BENT MAY BE KEPTISED WHEN THEBE IS A TOTAL FAXLTIEE OP CONSIDEEATION."* Under this principle it is held that, where a portion of a building is leased and the building is destroyed, by fire, acci- dent, or tempest, rent ceases and the lease is at an end. The subject matter of the contract being destroyed, the contract perishes with it. The rule is the same, when the whole of the leased premises are condemned for public purposes."' So, also, if the tenant is evicted from the whole of the premises by title paramount. So, also, if for any reason the lease be- tween the parties is void, if the tenant has not taken possession under it. And there is much authority for the proposition that where, by reason of the landlord's failure to make stipu- lated repairs, the premises are entirely useless for the purpose for which they were rented, the tenant may abandon the prem ises and refuse to pay rent."' In such a case there is, the courts say, a total failure of consideration. But this right to abandon, even where the neglect to make stipulated repairs has rendered the premises totally useless, has not been uni- versally upheld, and it never exists except when there is a "•Ward vs. Fagin, 101 Mo., 660; 10 L. R. A., 147. Kline vs. McLain, 33 W. Va., 32; 5 L. R. A., 400. Bertie vs. Flagg, 37 N. E. Kep. (Mass.), 572. And It has been held that where, from inherent defects in the con- struction, undiscoverable at the time of the making of the lease, the iiwelling was uninhabitable in winter, the tenant was justified in re- scinding the lease. Leonard vs. Armstrong, 73 Mich., 577. "'Walt vs. O'Neil, 76 Fed. Rep., 40S; 34 L. R. A., 550. •"Corrigan vs. Chicago, 144 111., 537; 21 L. R. A., 212. ""It was held that a tenant, on the total destruction of the leased building, might recover back rent paid in advance. Porter vs. Tull, G Wash., 408; 22 L. R. A.. 613. But the reader will observe that this rule applies when the tenant rents only a portion of a building. Where the land itself Is rented, the rules hereafter to be stated are In force. LANDLORD AND TENANT. 211 total failure of consideration. By what has been said, the reader will be prepared for the doctrine that a partial failure of the consideration is no ground for abandoning the premises and refusing to pay rent.^*' BENT DTIE ITNDEB AN EXPRESS COVENANT IS PAYABLE NOTWITHSTANDING THE BUILDINGS ON THE LEASED PBEII- ISES ABE DESTBOYED BY EIBE, OB THE ACT OP THE PUBLIC ENEMY. If a building on the leased land is destroyed, or rendered untenantable, by fire, tempest, or flood, the tenant must still continue to pay rent for the stipulated period. The landlord is under no obligation to rebuild, nor does the rent cease, even though the landlord has received insurance. This is the rule of the common law, which still prevails in most of the States. In New York, Missouri, and Minnesota,^^' statutes have changed the law on this subject, and in Louisiana and Cali- fornia the more equitable principles of the civil law have al- ways prevailed. In States where the common law on this point is admitted to prevail, courts have struggled against it, by looking for grounds on which its operation might be evaded. Such cases are sometimes accounted for by a common saying among lawyers that "hard cases make bad law." But in con- sidering such cases it is to be remembered that there were maxims of the conmion law which commended the judge who sought out "ingenious reasons for maintaining the right and subverting the wrong." Lord Hobart's saying, which has been often quoted with approval, was: "I do exceedingly commend the judges, that are curious and almost subtle to in- vent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury which by "'Stubbings vs. Evanston, 136 III., 37; 11 L. R. A., 839. •'T?aylor vs. Hart, 73 Miss., 22; 30 L. R. A.. 716. 212 LAiNDLOBD AND TENANa. rigid rules might be brought out of the act.'"'* Au example of the cases referred to may be found in Chesebrough vs. Pin- gree, 72 Mich., 438; 1 L. E. A., 529. A critical study of that case is interesting to the student as a practical illustration of the tendencies which have been adverted to. The case cannot be commended as an authority. A BBEACH OF A LANBLOBD'S COVEDiTANT TO BEFAIB, OB BBEACH OF OTHEE COVENANT, NOT WOEKING A TOTAL FATLXTBE OE CONSIDT^EATION, WILL NOT ENTITLE THE TEN- ANT TO ABANDON THE PBEMISES AND EEETJSE TO PAY EENT."» This is the ordinary rule. The only covenant on the part of the landlord, which, except by express agreement, is re- garded as a condition, for a breach of which a tenant may declare the lease forfeited and refuse to pay rent, is the cove- nant for quiet enjoyment. When and how important a breach of that covenant will justify a rescission of the contract, will be seen when we come to examine that covenant. The rule under consideration is in accordance with the general analogies of the law. While a contract remains exe- cutory either side may refuse to go on if the other tenders something inferior to, or difEerent from, what the contract calls for. But after the contract is executed, that is, after the parties have entered upon its performance, and a party has taken possession and accepted of that, or a part of that, which he was to receive under the contract, he cannot, in general, rescind the contract for a breach of its covenants. His remedy for such breaches is an action for damages on the con- tract Applying this general principle to the matter now nnder consideration it follows, that where the contract calls for the landlord to make certain repairs before the tenant "•Squire vs. Pord, 9 Hare, 67. "■See Hanaw vs. Bailey, 83 Mich., 24; L. R. A., 801. LAINDDORiD AND TENANT. 213 takes possession, if they are not made the tenant may decline to take possession. But if he takes possession without their having been made, relying upon a promise that they will be made, and this promise is not fulfilled, he cannot then rescind the contract and abandon the premises on account of the de- fault. If there were in every lease a clause for the benefit of the tenant, corresponding to the forfeiture and re-entry clause, which is inserted in leases for the benefit of landlords, the result would be otherwise. Such a clause should be inserted in every equitably drawn lease. It might properly be called the surrender clause, and follow the covenant to pay rent, as the re-entry clause follows the covenant for quiet en- joyment, and might read as follows: "Provided, however, that if default shall be made in the keeping or perform- ance of any of the covenants or agreements herein stipulated to be kept and performed by said party of the first part, then it shall be lawful for said party of the second part, his heirs or assigns, to abandon said premises and to refuse to pay rent or further to keep or observe the covenants herein stipulated by him to be kept and observed." The remedy of a tenant for a breach of covenant which does not amount to an eviction is an action for damages for breach of the covenant.^" From what has been said these two propositions are de- duced : IN AN ACTION TO KECOVEB, BENT THE TENANT MAY PLEAD SET-OEE, EECOUPMENT, NON-FULEILLMENT OF THE CONTRACT ON THE PABT OF THE LANDLORD OR ANT OTHER DEFENSE WHICH WOULD BE AVAILABLE IN AN ACTION TO RECOVER THE PRICE OF GOODS.-" IN A PROCEEDING TO RE- COVER POSSESSION FOR NON-PAYMENT SUCH DEFENSES ARE NOT ADMISSIBLE. "Keating vs. Springer (ante); McSloy vs. Ryan, 27 Mich., 110. "'Keating vs. Springer, 146 111., 481; 22 L. R. A., 544. 214 L.i^'DLORO AND TENANT. Tke tenant's defense can only rest upon the proposition that he has paid the rent, or that no rent was payable. As we have seen if the tenant has paid a charge against the land, which it was the duty of the landlord to pay, and the non- payment of which exposed the tenant to suit, distress or evic- tion, that is payment of rent. RESTRICTIONS ON THE USE OP THE LEASED PREMISES. As a general rule any clause in a lease restricting the uses which may be made of leased property is legal and binding, and will be enforced by the courts. An injunction may be sued out to prevent such a use as is forbidden by the lease, or if the lease is effectually drawn for that purpose it may be treated as a ground of forfeiture. An action for damages will also lie. There is, however, one qualification to the rule. The restriction must be such that a breach of it will work some injury to the landlord. The courts would not concern them- selves with restrictions which were merely whimsical or ca- pricious. But a restraint on carrying on certain trades or businesses which might be considered undesirable, is a lawful restrain, although the landlord may not live in or own any other property in the locality. As landlord, he has an interest in the general welfare and character of the neighborhood, for this affects the value of his own property. But such restrictions as affect only the character of the neighborhood are no longer binding after the landlord has himself done or consented to something which destroys the value of the restriction. For instance, if a landlord rents a part of a building with a re- striction against carrying on a liquor traffic in it, and after- wards rents another part of the same building for a liquor business, the restriction in the first lease becomes inoperative. The liquor traffic being once admitted, it can be of no conse- LANDLORD AND TENANT. 2J5 quence to the neighborhood whether in a given building there is one liquor store or two. What is here said is said by way of illustration and as to a case where the ground of the restriction is the undesirable character of the forbidden business. Notwithstanding what has been said, such a restriction might be lawful where its purpose was to prevent competition in a certain business within certain limits. And this illustrates the general prin- ciples which have been already stated; that is, that restric- tions are in themselves lawful, but they will not be enforced by the courts unless it appears that the landlord has some sub- stantial interest in having them enforced, — or, in other words, that he will suffer some damage if they are disregarded. The courts are not agreed as to how far a mere provision in a lease tbat premises are to be used for a certain purpose is a restric- tion upon their being used for any other purpose. No very clear principle can be discovered running through the cases except that under this head it may be said that every case will generally be determined upon its own facts. A tenant may never use the leased premises for an unlawful business, or, for any business which amounts to a nuisance, but if he does so he will be liable for an injury sustained by the land- lord arising out of such improper use.^^' But as the restric- tions which the law imposes in this regard are only such as it imposes on the use of real property by the owner, or who- ever may be in possession, they require no special attention here in a discussion of the legal relations of landlord and tenant. It is only necessary to call attention to the fact that by statute in many of the States using the premises for ""Thus it was held that a tenant who stored cotton In a building hired for the storage of vehicles was liable for injuries resulting to the building by fire which by reason of the dangerous character of the cotton consumed the building. Anderson vs. Miller, 96 Tenn., 35; 31 L. R. A., 604. 216 LANDLORD AND TENANT. an unlawful business is a ground of forfeiture of the lease, and in some cases works a forfeiture so that ipso facto the occupant ceases to be a tenant and becomes a mere trespasser. THE COVENANT FOR QUIET ENJOYMENT. The covenant for quiet enjoyment is the formal expression in a lease, of the essential obligation which always devolves upon a landlord as soon as the relation of landlord and tenant is established. The general nature of the obligation, and that it is implied in every lease, has already been explained. Upon a careful consideration of the subject, it will be seen that the obligation is to be examined from two points of view, the obligation which rests upon the landlord as to the acts of third persons, and the obligation which rests upon him as to his own acts or the acts of those claiming under him. By third persons, is meant those who are strangers to the landlord's title, as it was when the lease was made, or, in other words, persons who have not obtained from the landlord any rights in, or affecting the leased premises since the making of the lease. There is but one act of such persons which the landlord is bound to fight for the benefit of the tenant. If any such person begins or defends a suit or proceeding in court against the tenant, and the suit or defense is based upon a claim that the adversary had, at the time the lease was made, a title which was better than the landlord's, and that it is su- perior to the title acquired by the lease, the landlord, on proper notice from the tenant, must defend the title under which he made the lease. If he refuses, or neglects, or fails to do so, and judgment passes against the tenant, he is thereby absolved from the obligations of the lease. It is of no consequence whether the tenant is plaintiff or defendant, or what is the form of the action. For instance, if the tenant brings an ac- tion of trespass and the trespasser pleads title, the landlord LANDLORD AND TENANT. £17 is as much bound to defend the title as though an action of ejectment were brought against the tenant. But this is the full extent of the obligation of the landlord as to the acts of third persons. The landlord is under no obligation to defend the tenant against trespasses or other injurious acts, at the hands of those who do not claim title. When, however, the act complained of is done by the land- lord or by one who has received the right to do it from the landlord, since the making of the lease, different principles apply. The landlord having covenanted that the tenant should peaceably and quietly enjoy the demised premises during the stipulated term is bound to do no act which interferes with that peaceable and quiet enjoyment, or, in other words, with the tenant's possession. If he does, he is liable upon the cove- nant for quiet enjoyment. If he grants a right or authority to another to do an act which interferes with the tenant's quiet and peaceable possession, and the act is done pursuant to this authority, the landlord is liable on this covenant. If the act done is of a serious and permanent character, the tenant may treat it as an eviction. But whether the act complained of is done by the landlord himself, or by one who has derived his authority to do it from the landlord since the making of the lease, in either case the result is the same.^^" It is a breach of the covenant for quiet enjoyment for which the landlord is liable. For such an injury, however, the remedy by an action for a breach of the covenant for quiet enjoyment is not exclus- ive. The tenant may, if he prefers, have an action of trespass. The covenant for quiet enjoyment, as is apparent from its terms, is only broken by acts which interfere with the tenant's possession. ""Collins vs. Lewis, 53 Minn., 78; 19 L. R. A., 822. 218 LANDLORD AND TBNAJS'T. The injury to the possession must be actual, and not merely threatened or constructive. And the disturbance must be of so important and permanent a character as to amount in law to an eviction.^^" THEREFOKE THE COVENANT EOB QXTIET ENJOYMENT MAY PROPERLY BE DEEINED AS A COVENANT AGAINST EVICTION, and a merely casual trespass not calculated to work a serious or continuous injury to the tenant's possession of the leased premises is not a breach of this covenant, even though com- mitted by the landlord himself^^^ THE RIGHT OF RE-ENTRY OR FORFEITURE. What is called the re-entry clause in a lease is inserted for the purpose of making the non-fulfillment by the lessee of bis covenants or agreements grounds for forfeiture. Without this clause, a mere covenant is not a condition, and a breach of it is no ground for forfeiture, but only exposes the delinquent party to an action for damages for the breach. This was true even of the covenant to pay rent, and formerly a tenant could not be dispossessed for the non-payment of rent unless the "'Ellis vs. Welch, 6 Mass., 246. Dexter vs. Manley, 4 Gush., 14. George vs. Putney, 4 Cush., 351. Gardner vs. Keteltas, 3 Hill, 330. Mayor vs. Mabie, 13 N. Y., 151. Frost vs. Ernest, 4 Whart., 86. R. E. Co. vs. Sehmoele, 57 Pa. St., 271. Moore vs. Weber, 71 Pa. St., 429. Gazzolo vs. Chambers, 73 111., 75. Hayner vs. Smith, 63 HI, 430. King vs. Reynolds, 67 Ala., 229. '"So held when the landlord entered and assaulted the tenant. Foster vs. Mapes, Cro. Eliz., 212; and of a formal entry by the landlord on which to found a suit to dispossess the tenant. International Trust Co. vs. Schumann, 33 N. E. Rep., 509. LANDIXJRD AND TENANT. 210 lease contained a clause making non-payment of rent a ground of forfeiture."' Of re-entry clauses it is to be observed generally that they are not favored by the law. It is said that equity abhors a forfeiture and the law is not much more favorable to a for- feiture. The difference between law and equity in regard to inequitable or unreasonably harsh or unjust contracts is this: Equity not only refuses to enforce them, but also undertakes to relieve a party from their consequences, or, in other words, will over-ride their provisions. Law, while professing to en- force contracts as the parties have made them, will construe contracts with great strictness as against parties to whom they give an undue advantage, and will be astute to discover legal grounds, or, it might justly be said, excuses, to defeat inequitable stipulations. Therefore, it may be said as to re- entry clauses that, as they provide for forfeitures, the law will always construe them strictly as against the landlord,!*^ and, in many cases, equity will give relief against their provisions. The reason for this is evident. The damage which the tenant would suffer by forfeiting his lease would in many cases be altogether disproportionate to the injury caused to the land- lord by the breach of some comparatively unimportant condi- tion, for a breach of which, a forfeiture is sought to be en- forced. The form of the re-entry clause indicates that in order to get the benefit of its provisions the landlord must actually re- enter upon the demised premises and there assert his right to ''re-possess the said demised premises." But the language of this clause has, with the lapse of time, become a mere form ""Covenant not to assign may be made a condition, and when it is a breacli of it is ground of forfeiture under a proper re-entry clause. Kew vs. Trainor, 37 N. E. Rep. (111.), 223. ""Thompson vs. Christie, 138 Pa., 230; 11 L. R. A., 236. 220 LANDLORD AXD TENANT. of words. It is no longer necessary or customary to make an actual re-entry upon the land. Any act or declaration on the part of the landlord which unequivocally expresses his inten- tion to claim a forefeiture, is suflicient for that purpose; but there must be some act on the part of the landlord. A for- feiture is not self-operative.^*" Nor does the law now permit a party to forcibly remove and put out the occupants of premises whose possession he is en- titled to. This is forbidden by the statutes of forcible entry and detainer, a particular discussion of which will be found in another portion of this treatise.^*^ But attention is called to the subject here in order to direct the mind of the student to the general legal principle that no man can ever assert aggressively a civil right by an assault, or, as it is otherwise said, by a breach of the peace. He may use force defensively, within certain limits, to maintain his property rights, includ- ing the possession of real estate. THE TENANT'S COVENANT TO REPAIR. In discussing the relation of landlord and tenant, and the mutual duty of defense and protection devolving upon the parties to the lease contract, attention has already been called to the tenant's duty to make some repairs which may be neces- sary to save the leased premises from waste and destruction. That duty is one which is inherent in the relation itself and is to be carefully distinguished from an obligation to make re- pairs which rests upon express contract. There are many different forms of the tenant's cove- nant to repair. The one given in the form of lease se- '"Westmoreland Natural Gas Co. vs. Dewitt, 130 Pa., 235; 5 L. R. A., 731. '"As to the landlord's right to enter peaceably and his right to maintain such possession by force, see Smith vs. Det B. & L. Ass. (Mich.); 39 L. R. A., 410. LAiNDLOED AND TENANT. 221 lected for examination is a usual form. There is one cardinal principle which the student must constantly keep in mind while examining this subject. Every word in a covenant to "epair must be carefully weighed in determining the true meaning of the covenant. No covenants have been so minutely exam- ined and so harshly construed as against the tenant as cove- nants to repair. Covenants to repair have been construed as covenants to rebuild in case of destruction by fire or tempest, an obligation which it is safe to say that in the great majority of cases the tenant did not dream he was taking upon himself when he signed the lease. To construe a covenant to repair or keep in repair as a covenant to rebuild is certainly doing violence to the plain meaning of the words. There is no more reason why a covenant to repair a building should be con- strued as requiring one to build a new one than that a contract to repair a pair of shoes should require the furnishing of a new pair. Yet this construction has been so firmly attached to the word repair that it will require legislation to get rid of it, al- though it clearly violates that fundamental rule of interpreta- tion which requires that all contracts be construed so as to carry out the real intent and meaning of the parties.''*^ AN UNQUALIFIED COVENANT TO REPAIR AND KEEP IN REPAIR BINDS THE TENANT TO REBITIIiD IN CASE OF DE- STRUCTION FROM WHATEVER CAUSE, EXCEPT THE ACT OF TEE LANDLORD. The rule as stated applies to the injury or destruction of buildings by fire, or by tempest, or by the act of a stranger, or of mobs, or of public enemies, or even on account of an in- herent defect in construction. In short, the tenant who has ""This view of the law has recently been adopted In Wyoming. Marshall vs. Rugg, 33 L. R. A., 679. See also Wattles vs. South Omaha Ice Co., 50 Neb,, 251; 36 L. R. A., 424. 222 LANDLORD AND TENANT. entered into this covenant is bound to make good any injury which human power can remedy, but, as he is not required to perform the impossible, he is not liable in damages for not doing so. On this principle it is held that he is not liable for trees blown down in a tempest, for it is not within the power of man to restore theuL Most leases now contain a provision which expressly removes the harshness of this construction. This provision is usually as follows: "The said party of the second part will, at his own expense, during the continuance of this lease, keep the said premises and every part thereof in good repair, reasonable use and wear thereof and damage by the elements excepted." The covenant to repair and beep in repair extends not only to the premises in the condition in which they were when the lease took effect, but also to all improvements made during the term. Therefore, if the tenant erects new buildings on the de- mised premises, which become a part of the realty, he is bound under this covenant to keep them in repair, and in case of de- struction to restore them. The particular form of words used in the covenant to keep in repair is not usually important, this covenant in whatever form it appears being construed as a covenant to keep the premises in substantially the same state of repair as tbey were when the lease took effect.^*' But the covenant to repair requires the tenant to put the premises in repair, although they should be out of repair when he takes possession.^** But as to this, tlie doctrine of the law is that in making repairs regard is to be had to the general condition of the premises when the lease is made, and such repairs only are to be made as are fitting and suitable. If the premises are old and dilapidated repairs would suffice which would be held '"St. Joseph & St. L. R. Co. vs. St. Louis I. M. & S. R. Co., 135 Mo., 173; 33 L. R. A., 607. '"Miller vs. McOardell, 19 R. I., 304; 30 L. R. A., 682. LANDLORD AND TENANT. 223 inadequate in the case of a new house in good condition except as to the part requiring repair. In other words, the obligation to repair will be construed according to the general condition of the leased premises. THE COVENANT NOT TO SUB-LET OR ASSIGN. The right to sell or otherwise dispose of property is of the very essence of the right of property, and therefore a tenant has a right to make any disposition that he chooses of the rights which he acquires by his lease. But as the right to sell or otherwise dispose of property is of the essence of the right of property, it follows that the right to dispose of the whole involves the right to dispose of any part; the right to convey an unrestricted power of alienation involves the right to con- vey property with a limited power of alienation. A grantor or lessor has, therefore, the right to attach such limitations and conditions to his grant or lease as he chooses, except in BO far as he is restrained by the positive provisions of law. Some limitations and conditions are void because either they are contrary to public policy or irreconcilably inconsistent with, or, as it is commonly said, repugnant to the right or estate to which they are attached. The covenant not to sub- let or assign is, generally speaking, a valid limitation or re- striction upon the right which the tenant acquires by his lease, and will be upheld by the courts. A BKEACH OP THE COVENANT NOT TO SUB-LET OB AS- SIGN IS NOT A GROUND POR rOBEEITUEE UNLESS EX- PRESSLY MADE SO BY THE PROVISIONS OE THE LEASE. THE COVENANT NOT TO SUB-LET OR ASSIGN IS ONE WHICH IS NOT EAVORED BY THE LAW. This is in accord with the general legal doctrine that "re- strictions upon alienation are not favored by the law." As a consequence, covenants not to sub-let or assign are construed 224 LA^^DLOR.D AND TENANT. strictly and are not allowed to have any force beyond the strict and literal meaning of the words in which they are expressed. A covenant against sub-letting is not broken by an assignment, nor is a covenant against assignment broken by sub-letting. Nor is either of these covenants broken by a permitted occupa- tion of the demised premises under a license. We have already seen the essential difference which exists between the occupa- tion of a licensee and the possession of a tenant. THE COVENANT AGAINST ASSIGNMENT IS NOT BEOSEN BY AN INVOLUNTABY ASSIGNMENT BY OPERATION OF LAW. If an execution is levied upon a leasehold, the purchaser at the execution sale succeeds to the tenant's rights as assignee, yet this is held not to be a breach of the covenant nor a ground of forfeiture. The same thing is true if by order of a court a bankrupt makes an assignment for the benefit of creditors. It is a suflflcient reason for this doctrine that if the law were not so a man might, under cover of a lease, put valuable prop- erty beyond the reach of his creditors. So a man may lawfully devise a leasehold, or, upon his death, the leasehold will de- volve upon his executors or administrator. And in all the cases cited the execution purchaser, the receiver in bankruptcy, the devisee, or the personal representative will take the prop- erty freed from the covenant against assigning or sub-letting, and the reason for this is sufficiently obvious when the nature of the covenant and the reasons for demanding it are consid- ered. The purpose of the covenant is to secure a certain per- son as tenant whose personal character and whose financial responsibility are such as to make him acceptable as tenant. When this is no longer possible the whole purpose sought to be attained by the covenant has become unattainable and there is no longer any reason for its existence. The reasoning LANDLORD AND TENANT, 225 is analogous to that which supports the well-known legal maxim, "Cessante ratione, legis cessat ipsa lex." And this leads us naturally to the succeeding proposition. WHEN THE TENANT IS ONCE RELEASED EROM THE COV- ENANT AGAINST ASSIGITMENT, HE IS RELEASED ABSO- LTJTELY, AND IT DOES NOT BIND ANY PERSON WHO SUC- CEEDS TO HIS RIGHTS. Although judges have sometimes said things which would seem to conflict with the foregoing proposition, the clear weight of authority is in favor of the doctrine as stated. The cove- nant against assignment is an entire one, and when once it ceases to operate, whether by operation of law in the case of an involuntary assignment, or by express consent of the land- lord, or by waiver of a breach, it is extinguished forever. It is also indivisible, and when it ceases to operate as to a part of the demised premises it has no effect as to the remaining part. It must, however, be borne in mind that the rules which have been stated are simply rules which the law applies to ordinary covenants against assignment. It is not intended that it is made impossible by the law for parties to enter into covenants against assignment which will prevent even an in- voluntary alienation. They may also consent to or waive a breach of the covenant in a single instance or to a certain ex- tent, and provide that it shall not be construed as a general waiver of the covenant, and that the covenant shall be oper- ative thereafter. This necessarily follows from the proposi- tion that parties may attach to their leases such conditions as they choose, so long as they do not contravene the positive provisions of law. But, in order to prevent the rules which have been stated having effect, the language used must be clear and unmistakable in its meaning. 16 226 LANDLORD AND TENANT. THE SURRENDER OF POSSESSION BY THE TENANT AT THE END OF HIS TERM. In pursuance of the general plan of this work, we now pro- ceed to examine the position, rights and obligations of a ten- ant who quietly surrenders possession of the leased premises at the expiration of his term. The common law day begins at midnight, and so the tenant's term expires at midnight on the last day of the term. Before the expiration of his term the' tenant should remove all of his goods and all the fixtures which he is entitled to and desires to take with him. He should also have the premises in that state of repair which his contract requires. How far he may be required to remove all rubbish which has accumulated upon the premises during his tenancy is not very clearly settled. Leaving rubbish on the premises has been held not to be a breach of the covenant to leave the premises in good repair. But, as it is clear that no man has a right to deposit rubbish on another man's land, it would seem to be equally clear that he has no right to let his rubbish remain on another man's land after his right to the possession has expired, and that a common law action would lie against one who does it. If the tenant surrenders possession prior to the end of his term, and his surrender is accepted by the landlord, the lease is terminated.^*' COAENANT FOR RENEWAL. A PRO VISION HI A LEASE FOB AN EXTENSIOIT OB. BE- ITEWAL IS FOB THE BENEFIT OF THE TENANT. A provision for an extension or renewal, without stating who may have the extension or renewal, is regarded by the law "'Kneeland vs. Scbmldt, 78 Wis., 345; 11 L. R. A., 498. The taking of possession by landlord does not necessarily amount to an acceptance of the surrender, for on notice to the tenant the land- lord may re-let the premises and apply the rent received on the original lease. Alsup vs. Banks, 68 Miss., 664; 13 L. R. A., 59S. LANDLORD AND TENANT. 227 as a provision for. the benefit of the tenant, and he, and not the landlord, is entitled to exercise the option. If there is simply an agreement that at the end of the term the landlord will give a renewal, this means a new lease for the same length of time at the same rent, and in all respects on the same terms as the original lease, except that the new lease need not stipu- late for any further renewal. As explained before, the new lease should reserve the right to the tenant to remove fixtures at the end of the second term. Tf the agreement is for a renewal on the tenant's giving a certain notice, he must strictly comply with the condition, or he will lose his right. And as a pro- vision for a renewal means that a new lease is to be signed, he should have it prepared, signed by himself, and present it to the landlord for his signature. An agreement for an ex- tension of the term does not require the making of a new lease. If the lease simply says, for instance, "with the privilege of three years more," the tenant cannot be required to decide whether or not he will take the extension until the end of his first term. And he is not required, unless it is expressly stip- ulated in the lease, to give any notice of his decision. By remaining in possession, he signifies his election to hold for the additional time.^*° But when he ha-s held over, the tenant as well as the landlord is held for the full additional term. The right to a renewal or an extension passes with the lease to any person to whom the lessee's interest may lawfully be transferred. In the language of the courts, "it is not a mere personal covenant, but it is a covenant which runs with the land." Anybody who purchases the land after the making of such a lease is as much bound by the agreement for a renewal or extension as the original lessor. •"Hughes vs. Wlndpfennlg, 37 N. B. Rep. (Ind.), 432. N. B. In Indiana a verbal lease for three years is valid. 228 TENANTS AT SUFFERANCE. TENANCIES FOR INDEFINITE TERMS. Tenancies under this general head are classified as ten- ancies at sufferance, tenancies at will, and tenancies from year to year. Under this latter head will be included ten- ancies from day to day, week to week, month to month, quarter to quarter, etc. ; for they are all essentially of the same nature, and are governed by the same rules. TENANCIES AT SUFFERANCE. A TEITAUT AT STJFFERANCE IS OITE WHO HAS COME LAWFULLY INTO POSSESSION AND CONTINUES TO HOLS OVER AFTER HIS RI&ET TO THE POSSESSION HAS ENDED. He is tenant at sufferance to that person who has succeeded to the right of possession, and he remains a tenant at sufferance until by an exercise of the will or option of the person who has succeeded to the right of possession he becomes either a trespasser, or a tenant at will, or a tenant from year to year. By remaining in possession after his right has terminated he puts it into the power of the person who has the right to pos- session to put him in either attitude. The word landlord is not used here because this relation may grow out, and does frequently grow out of other relations than those of landlord and tenant."' A vendor who has parted with his title, but remains in possession as a tenant at sufferance, is an in- "'Elchengreen vs. Appel, 44 111. App., 19. School District Ho. 11 -vs. Batsclie. 106 Mlcli., 330. This was a proceeding to obtain possession of a lower floor of a school building. For some years prior to the commencement of this action defend- ant tools possession of premises as teacher. After termination of his employment in June, 1892, defendant continued in possession. In Au- gust, 1892, demand was made upon defendant for possession, which was refused, and this suit was commenced. Under this hiring, the relation of landlord and tenant did not exist between the parties, and the question arose as to nature of defendant's holding, and his counsel contended that he was not a tenant at sufferance, because his tenancy TENANTS AT SUFFERANCE. M^ stance of tMs kind. In fact, any one who was lawfully in pos- session up to a certain ^me, or up to the happening of a cer- tain event, but whose right to possession has expired by the lapse of time, or the happening of the event, by remaining in possession thereafter becomes a tenant at sufferance.^*' A tenant at sufferance differs from a disseisor, therefore, in that the latter acquires and retains his possession by wrong, whereas, the formen only retains possession by wrong.^*' It is to be noted, however, that those only become tenants at sufferance who: were in possession in their own right, and not those who were in possession by operation of law on ac- count of their relation to some other person, as a guardian, trustee, etc. Those who come in by act of law never become tenants at sufferance, but, upon the termination of their right, immediately become wrongdoers or trespassers. The situation of a tenant at sufferance is anomalous. He cannot maintain trespass against the owner. He is not liable for rent, as rent, for he is not in by virtue of any contract; but he is liable in an action for use and occupation. He is not entitled to notice to quit; but in some States this common law rule is changed by statute, requiring a notice to quit. He is subject to all the obligations of loyalty to the rightful owner's title and possession that inure in any other tenancy, yet he has no estate which he can transmit, nor any rights as against the true owner, and the owner may, by demand or entry, make him a trespasser. did not grow out of an agreement which created the relation of land- lord and tenant. The court held that the contract for services having been terminated and an end put to it, in this way the right of occu- pancy was ended, and that defendant was in possession as one holding over after his right had expired; that he became a tenant at sufferance; and that it is not necessary that such an estate should grow out of the -elation of landlord and tenant. "'Harvey vs. Briggs, 68 Miss., 60; 10 L, R. A., 62. '"RiWRell vs. Fabyan, 34 N. H., 218. 230 TENANTS AT WILL. The tenant at sufferance, being a wrongdoer, his rights in the property are limited. He has no interest which can be assigned to another, for his interest is a mere naked posses- sion, which he holds by the laches of his landlord. At the common law the landlord could enter at any time and dispossess the tenant at sufferance, without any notice to quit or demand for possession; neither was the tenant entitled to emblements. The tenant was entitled to the crops sown and harvested before the termination of his tenancy. At the common law a tenant, being a wrongdoer, is liable for damages resulting from his wrongful act in holding over after the termination of his lease.^^" TENANCIES AT WILL. AN ESTATE AT WILL IS AN ESTATE IN POSSESSION SOB. AN XTNCEKTAIN PERIOD, WHICH MAY BE DETERMINED AT THE WILL OF THE LESSOR OR THE LESSEE. HOW A TENANCY AT WILL ORIGINATES. By consenting to a tenant at sufferance remaining in pos- session, the person entitled to the possession converts him uoRnasell vs. Fabyan, 84 N. H., 218. Defendant entered into possession of premises under a five years' lease from March 20tli, 1847. He remained in possession until April 29th, 1853, when the buildings burned down. On March 22d, 1852, the plaintiff demanded a surrender of premises, which demand defendant refused, and defendant by holding over aud there being no assent by the landlord to the continuance of the tenancy, became a tenant at sufferance. Over a year after termination of the five years' lease, de- fendant built a fire on the premises, which extended and burned down the buildings, and this action was brought to recover the value of the buildings. In holding the defendant responsible for such loss, the court said: "The mere disseisor or trespasser who enters without right upon the land of another, is responsible for any damages which may result from any of his wrongful acts. Such a disseisor is liable for any damages occasioned by him, whether willful or negligent. He had no right to build fires upon the premises, and if misfortune resulted from It, he must bear the loss. For this purpose the defendant Fabyan stands in the position of a disseisor." TENANTS AT WILL. 231 into a tenant at will, and clothes him with all the rights and imposes upon him all the obligations incident to that character. It is as though the remaining in possession of the tenant at sufferance amounted to an offer to assume the position of a tenant at will, which is accepted by a consent to that posses- sion, and this offer and acceptance make the contract which is the basis of the tenancy at will. The offer is withdrawn by moving out while it remains unaccepted, and thereafter no subsequent assent can have the effect of establishing a ten- ancy at will. The consent on the part of the owner which changes a ten- ancy at sufferance into a tenancy at will may be express or im- plied. Any act which recognizes the existing possession as satisfactory and lawful is sufHcient. It has been held that the needful consent or acquiescence may be implied from mere si- lence, or failure to object when a sufficient length of time elapses without objection. A tenancy at will may also originate in an express agree- ment between the parties. ANY AGREEMENT THAT ONE MAY GO INTO POSSESSION OF THE LAND OF ANOTHEB TO OCCUPY AND HOLD IT SO LONG AS BOTH CONSENT, CONSTITUTES A TENANCY AT WILL WHEN POSSESSION IS TAKEN UNDER IT. Until possession is taken under it it is a mere nudum pac- tum% and confers no rights upon either party, for it lacks these elements of certainty and mutual obligation which are necessary to make a valid executory contract. At the common law, an eslate at will could be determined immediately on demand of the landlord. By reason of this a"Nudum pactum" literally translated is "naked agreement" Where there Is no legal consideration for a promise it is nudum pac- tum. S32 TENANTS AT WILL. sudden determination of the estate and its consequent hard- ship upon the tenant, and for other reasons, the courts have never favored the estate; and it is only where no other con- struction can be put upon any particular grant that it is held to be an estate at will. At an early period this disfavor was manifested in the decisions of the courts that where a rent was reserved to the lessor, and it was paid at fixed periods, the tenant was entitled to notice to quit, even though his lease did not provide for any definite holding. And, by a series of judicial decisions, there arose an estate somewhat similar to an estate at will, but which differed from it in that it continued for certain fixed periods, as for a month or for a quarter, or half a year, or yearly, depending upon the periods fixed for payments of rent. Such estates resembled an estate at will, in tbat, while they continued for certain fixed periods, yet the number or continuance of such fixed periods was uncertain. A tenancy at will also arises where a tenant goes into pos- session under an invalid lease contract, as, for instance, a lease by parol for twenty years, or a lease by which it is agreed that the tenant may remain in possession as long as he chooses upon the terms agreed upon, a stipulation which is void for want of mutuality. Ho, where an entry is made under a lease which is void under the statute of frauds, no term is vested in a lessee, and he is a mere tenant at wilP'^ Of course if from a lease for years, void under statute of frauds, an in- tent is inferable, either from an annual rent or other circum- stances that the hiring is for a year, a contrary rule will pre- vail, and the lessee would hold for a definite term.^" '"Talamo vs. Spitzmiller, 120 N. Y., 37; 8 L. R. A., 221. Huyser vs. Chase, 13 Mich., 98. ""Laughran vs. Smith, 75 N. Y., 209. Brant vs. Vincent, 100 Mich., 426. TENANTS AT WILL. 233 If one enters into possession by permission under any kind of invalid contract, as, for instance, a parol gift of lands, he becomes a tenant at will.^°' Thus it was held that one in pos- session under a contract to purchase became a tenant at will when he forfeited his right to possession under the contract by a failure to comply with its terms.^" So, if a tenant let into possession under an agreement that a lease shall be executed, and this agreement is not carried out, the tenant's status is that of a tenant at will."^ T'HE CHARACTERISTICS OF A TENANCY AT WILL. In the case of a strict general tenancy at will, the relation is a personal one, and the tenant has no estate which he can assign or transfer to anotlier. But he is liable for rent, and he uiuarrls -ra. Frlnk, 49 N. Y., 24. The plaintiff entered upon defendant's farm under a verbal agree- ment to puixliase, and with permission to work it until defendant was ready to convey. Plaintiff sowed the land with oats, but shortly after- wards he was expelled by the defendant. The plaintiff afterwards com- menced harvesting crops, but was again expelled by the defendant, who harvested the oats. Plaintiff then commenced this action to recover the oats. In the lower court plaintiff was non-suited, on the ground that the crop was part of the realty and that plaintiff having no legal title to the land could have none to the oats. The hLaiher court, in reversing this decision, held that the crops, under the circumstances, were not part of the realty, and that the defendant was a tenant at will, and therefore entitled to emblements. The court says: "Where one enters by permission of the owner for an indefinite period and without the reservation of any rent, he is, by implication of law, a tenant at will. • • • "The permission to occupy unaccompanied by any contract of sale, would clearly create a tenancy at will. The effect of the invalidity of the contract of sale is to reduce the right of the vendee to a mere licensee, and enable the vendor to revolie the license at his pleasure. When he exercises that right, there Is no injustice in placing him In the same position as if the contract of sale which he repudiates had not been made. The holding, from the beginning, was in fact, at his will, and the principle upon which emblements are allowed to a tenant at will would seem applicable to such a case." '"Hall vs. Wallace, 88 Cal., 434. Towne vs. Butterfield, 97 Mass., 105. But see Tucker vs. Adams, 62 Ala., 254. ""Huntington vs. Parkhurst, 87 Mich., 38. Weed vs. Lindsay, 88 Ga., 686. 234 TENANTS AT WILL. is subject to those general obligations of loyalty which devolve upon tenants generally. Where no rent has been agreed upon the amount of rent to be paid is what the use of the premises is reasonably worth. The other conditions of the tenancy are fixed by the general law, having reference always to what is customary and usual in the locality and at the time when the relation subsists. A tenant at will has a "mere scintilla of interest" in the land possessed under such a tenancy. He is entitled to crops raised during his tenancy, and also to reasonable estovers. If the estate be determined by the act of the lessor or of God, after crops have been sown, the tenant is entitled to emble- ments ; and the tenant may enter, harvest and carry away such crops after the determination of his estate. The reason of this rule is that the tenant, in sowing the land, had a reasonable presumption that his estate would continue until the crops ma- tured, and the law will not permit that he should be prejudiced by the imforeseen sudden determination of his estate, against which no provisions could be made.*"' If the tenancy be deter- mined by the tenant, he will not be entitled to emblements."^ At the common law, a tenancy at will could be determined without notice, at the will of either party .^" The estate was also determined by any conduct on the part of either landlord or tenant contrary to the relationship of landlord and tenant, and from which an intent to terminate that relationship could be inferred. Thus, the abandonment or surrender of possession by the tenant terminated the tenancy. "'Harris vs. Frink, 49 N. Y., 24. "'Carpenter vs. Jones, 63 111., 517. Klplinger vs. Green, 61 Mich., 340. '"Hilsendegen vs. Schelch, 55 Mich., 468. TENANTS FROM YEAR TO YEAR, 235 So, the conveyance of the property by the landlord will, at common law, terminate the estate. In most of the States statutes have been passed requiring a notice to quit to be served, before an estate at will can be terminated. The length of notice varies under different statutes.^ °° TENANCIES FROM YEAR TO YEAR. A TENANCY FROM YEAR TO YEAR IS AN ESTATE FOR AN INDEFINITE NUMBER OF DEFINITE PERIODS. Under this head are classed all tenancies which run on from tepm to term of definite duration, whether from day to day, week to week, month to month or year to year. These tenancies are tenancies at will, subject to be determined at the will of either party, but can only be determined at the termination of one of the rental periods, by a notice of such a length as may be required in the particular case. They arise either in an express agreement of the parties that the tenant shall hold from month to month or from year to year, etc., or in the holding over, with the consent of the landlord, of a ten- ant whose lease has expired; or the possession by consent under an invalid lease and a periodical rent is paid.^°° Where they arise by the assent to holding over of a tenant whose lease has expired, they are governed in all respects by the terms of the lease which has expired, except as to the duration of the tenancy. That is, the provisions which the expired lease made, as to rent, payment of taxes, repairs, assignment, sub-letting, etc., attach themselves to the continued tenancy, and control it.^°^ ""In Michigan, for example, a three months' notice is required. Howells' Statutes, Sec. 5774. ""Bateman vs. Maddox, 86 Tex., 546. "•Kleesples vs. McKenzle, 40 N. B., 648. Brant vs. Vincent, 100 Mich., 426. 236 TENANTS PKOM IBAB TO YBAB. Thus, if a tenant for a year holds over, with the consent of his landlord, he becomes a tenant for another year and for an indefinite number of yearly periods, until the tenancy is termi- nated by the required notice. So, if a tenant for a month, a quarter or a half year holds over, with the consent of his landlord, he becomes a tenant for an indefinite number of terms of the same length as his original term. As to a tenant at will who has gone into possession under an invalid lease, as, for instance, a verbal lease for five years, the rule is that the provisions of the invalid lease govern as to everything except the duration of the tenancy.^'^ There is this difference to be noted between the situation of one holding over under a lease which has expired and one who has gone into possession under an invalid lease: In the former case the term goes on indefinitely, from term to term, until the tenancy is put to an end by a proper notice for that purpose. In the latter case the tenancy continues from term to term, as in the former, but if it has not been terminated sooner it comes to an end anyway at the expiration of the term fixed by the invalid lease, without any notice from either party. A tenancy from year to year has all the incidents of an estate at will, such as right to emblements and estovers. In addition, the tenant from year to year may assign his lease to another, and is entitled to notice to quit. At the common law, when the letting was for a year, and the tenant, by holding over, becomes a tenant for an indefinite number of yearly periods, the tenancy could be terminated by either party giving a six months' notice before the end of any year. '"Laughian vs. Smith, 73 N. Y., 205. Huntington va. Parkhurst, 87 Mich., 38. TENANTS FBOM YEAR TO YEAR. 237 If the tenant holds for an indefinite number of periods which are shorter than a year, as a general rule the tenancy can be terminated on a notice by either party, equal in length to the period of the particular tenancy. Thus, a tenancy from month to month can be terminated on a month's notice. In most of the States the statutes regulate the length and kind of notice and manner of service necessary to terminate the estate. In absence of a statute to the contrary, the notice to quit need not be in writing. Of course, where a tenancy is for a definite period, and not for an indefinite number of definite periods, the rule as to notice to quit does not apply; for, in such a case, the estate will end at the expiration of the period limited in the lease. Thus, a lease for a year would terminate at the expiration of the year; but if tenant held over, with the consent of his landlord, he became a tenant from year to year, and is entitled to and must give a notice, at common law, of six months be- fore the expiration of the second year, in order to terminate the tenancy. CHAPTER VI. MANNER OF ENJOYMENT OP ESTATES. ABSOLUTE ESTATES. In our discussion of the preceding estates, except that of estates tail, we have regarded each as being unfettered and unlimited by conditions of any kind. AH ABSOLUTE ESTATE IS ONE WHICH IS EKEE FEOM CONDITIONS OE LIMITATIONS. ESTATES UPON CONDITION. On the creation of an estate, conditions are sometimes at- tached by which its enjoyment may be limited or defeated by the happening or non-happening of some contingent event, or the vesting of the estate may be made dependent upon the fulfillment of certain conditions. For instance, land may be granted to one in fee simple on condition that it be used for certain purposes. The condition limits and qualifies the grant, yet the estate is still one in fee simple, and the only effect of the condition is to qualify the estate granted. Conditions attached to an estate, therefore, do not create a distinct estate, but are merely qualifications of an estate.^ Conditions may be annexed to any estate in lands, whether it is in fee, for life or for years. AN ESTATE ON CONDITION IS ONE WHICH MAT BE CRE- ATED, ENLARGED OE DEFEATED BY THE HAPPENING OR NOT HAPPENING OF SOME CONTINGENT EVENT.' Conditions may be precedent or subsequent. 'Blackstone Com., 153. 'Michigan State Bank vs. Hast'ngs, 1 Douglas (Mich.), 225. 238 MANNER OF ENJOYMENT OF ESTATES. 239 If a condition must be performed or fulfilled before an es- tate shall vest or become enlarged, the condition is said to be precedent.^ If the estate is vested and its continuance is de- pendent on the performance or happening of certain condi- tions, the condition is subsequent.* No particular words are necessary to create an estate upon condition. Any language, from which the intention to impose conditions clearly appears, is sufficient." The terms "on condi- •Knrcliner ▼■. Hay, IBl Pa. St., 383. Andrew Karchner and wife conveyed unto Charles Shell and Cath- erine Shell, his wife, their heirs and assigns, a certain tract of land. After the description and recital of title follows this clause: "It Is expressly understood by all the parties hereto that if the said Charles Shell and Catherine, his wife, should have a child or children of their two bodies begotten and born, then the land herein conveyed shall vest In the said Charles and Catherine and their heirs forever. But should this event not happen, then the said Charles or Catherine, or the sur- vivor of either of them, shall have and enjoy a life estate in said land." The habendum clause of the deed provided that grantees should hold the land for themselves, their heirs and assigns forever. The wife died without bearing children, and a creditor of the husband's con- tended that under the deed the latter and his wife became joint owners in fee, and that on the death of the wife the husban(| became the sole owner. The court overruled this contention, and said: "The manifest pur- pose of the special clause was to qualify and limit the preceding words of inheritance. • * • The event upon which the joint estate would have been enlarged into a fee simple did not happen. Indeed, It be- came impossible by the death of Mrs. Shell. That left nothing in the surviving husband save his life estate, without any possibility of en- largement thereof. •'Warner vm. Bennett, 31 Conn., 408. A deed to grantees, their heirs and assigns forever, for cer- tain uses, contained the following provision: "The conditions of the within deed are such that whenever the within named prem- ises shall be converted to any other use than those within named, and the within grantee shall knowingly persist in the use thereof for any other purpose whatever, except such as are described in the within deed, the said grantees forfeit the right herein conveyed to the within described premises. • * • " The court says: "In case of a condition the estate or thing is given absolutely without limitation, but the title is subject to be divested by the happening or not happening of an uncertain event. * • • We thinlj it clear that the estate of grantee was an estate on condition In deed, and that it was an estate upon condition subsequent." ■Campau vs. Chene, 1 Mich., 400. 240 MANNER OF ENJOYMENT OF ESTATES. tion," "providing always," "if it shall happen," "if," are most fre- quently used to create the estate. The conditions must be attached to the estate at the time of its creation; but the con- dition may be contained in a separate instrument executed at the same time." It is sometimes difiScult to tell from the lan- guage of some instruments whether it was intended that the condition should be precedent or subsequent. In construing such an instrument, the coiirts favor the vest- ing of the estate, and if "the act or condition required does not necessarily precede the vesting of estate, but may accom- pany or follow it, and if the act may be done as well after the vesting of the estate as before, the condition will be held to be subsequent."^ WHEW THE CONDITION IS PRECEDENT THE GRANTEE MtrST STRICTLY PEREORM ALL THE CONDITIONS; IF HE FAILS TO DO SO, THE ESTATE WILL NOT VEST. WHEN THE CONDITION IS SITBSEQXIENT AND THE ES- TATE HAS VESTED, THE NON-PERFORMANCE OF THE CON- DITION WORKS A FORFEITURE OF THE ESTATE, AT THE ELECTION OF THE PERSON ENTITLED TO ENTER FOR THE BREACH OF CONDITION." Forfeitures are not favored by the law, and conditions sub- sequent are strictly construed, and will not be enforced unless clearly established. The rule is clearly stated in Hbgeboom vs. Hall, as follows: "Conditions which destroy an estate are taken strictly; and, although a forfeiture must be enforced when clearly established, it should not prevail on a doubtful con- structiom of evidence. If anything is to be done as a condition •Ritchie vs. Kansas N. & D. Ry. Co., 39 P., 718. Adnir. vs. Perkins (Vt.), 31 A., 148. A subsequent deed containing conditions has no effect. Alemany rs. Daly, 36 Cal., 90. ' 'Underhill vs. Saratoga R. R. Co., 20 Barb., 459. Pennington vs. Pennington, 70 Md., 418; 3 L. R. A., 816. 'Hayward vs. Kinney, 84 Mich., 591. MANNER OF ENJOYMENT OF ESTATES, 241 precedent by the party who asserts the forfeiture, he must show a strict performance on his part; and this is so whether the obligation upon him is created by express stipulation or is implied by the law, from the nature of the act to be per- formed, by the other party. He who may lose, by a breach of a condition, must be plainly put in the wrong.'" The disfavor with which the courts regard forfeitures ia often evidenced in their inclination to construe the undertaking of the parties to be a covenant or trust, the breach of which does not involve a forfeiture.^" A CONDITION PBECEDENT MUST BE STRICTLY PEE.- EORMED; A CONDITION SUBSEQUENT MUST BE SUBSTAN- TIALLY PERFORMED. IF THE PERFORMANCE OF A CONDITION PRECEDENT BE- COMES IMPOSSIBLE BY ACT OF GOD OR OF LAW, NO ESTATE WILL VEST. IF THE PERFORMANCE OF A CONDITION SUBSEQUENT BECOMES IMPOSSIBLE THROUGH THE ACT OF THE GRANTOR, ■Hoeeboom vs. Hall, 84 Wend, 14S. Waldron vs. Toledo & Ann Arbor R. R. Co., 55 Mich., 420. ••Smith vs. Barrle, 56 Mich., 314. Sumner vs. Darnell, 128 Ind., 38; 13 L. R. A., 173. Neely vs. Hoskins, 84 Me., 8S6. Elyton Land Co. vs. South Ala. R. Co., 14 So. Rep., 207. ThorntoB vs. Trammell, 39 Ga., 202. A conveyance In fee simple contained the clause: "It being ex- pressly understood by the parties that the said tract or parcel of land Is not to be put to any other use than that of a depot square, and that no business or improvements are to be put on said tract." The ques- tion arose as to whether this clause was a condition subsequent in- volving a forfeiture of the grant, or a covenant for the breach of which the remedy must be an action for damages. The court interpreted the clause to be a covenant, and said: "The conveyance Itself is an unqualified grant of land to the grantee. The words of the grantor in conveying the land Impose no conditions upon the latter, which would be compulsory to do any act whatever. • * * There being no con- dition expressed in the grant of the land, of course there can be no forfeiture of the grantee's estate therein for condition broken. If the covenant of the grantee has been broken, the plaintiff has an adequate remedy by an action thereon to recover damages." See also Granger vs. Granger, 147 Ind., 95; 36 L. R. A., 186, 190. 17 242 MANNER OF ENJOYMENT OF ESTATES. OB, BY ACT or GOD OR BY LAW, OR THROUGH ANY OTHER CAUSE EXCEPT THE ACT OF THE GRANTEE, THE GRANTEE'S ESTATE BECOMES ABSOLUTE. Thus, where land was devised upon condition subsequent that the devisee should support a third person named in the devise, and such third person died during the life of the testa- tor, it was held that the condition became impossible by act of God, and that the devisee took an absolute estate.^^ A case in which the performance of the condition became impossible by act of law will be found in the note." The favor which the law shows to the owner of an estate on condition subsequent, in order that his estate may not be forfeited, is evidenced in one other class of cases. As has been stated, tlie failure to perform a condition pre- cedent prevents the vesting of an estate; but the failure to perform a condition subsequent does not necessarily determine the estate to wliich it is attached. "Parker vs. Parker, 123 Mass., 584. •^ScoTlU vs. McMalion, 62 Conn., 378; 21 ly. R. A., 5S. This was an action to recover $12,500 received by defendants In a proceeding for the condemnation of a cemetery, the right to which plaintiffs alleged reverted to them upon failure of defendants to use and occupy the land for cemetery purposes. The plaintiff's ancestor, In 1847, granted the property on the express condition "that the above described premises are to be used and occupied for the purpose of a burying ground, and no other purpose." In 1882 the Legislature of Connecticut passed a statute providing that it should be unlawful to make any further Interments in said cemetery, and that the bodies and monuments in said cemetery might be removed, and, on compensation to the persons Interested, the prop- erty might be condemned for the purpose of establishing a public park. The property was condemned, and in January, 1891, a decree for $12,- 500 was entered In favor of the defendant Bishop McMahon for his interest. In May, 1891, one of the plaintiffs made an entry for condition broken, and subsequently this action was commenced. The court held that the condition subsequent that the land should be used only for cemetery purposes was destroyed when the further use of the property for such a purpose was prohibited by law, and that, the condition being defeated, the plaintiff had no right to re-enter or to any part of the proceeds of the property, which vested In the defendant free from con- ditions prior to the condemnation proceedings. MANNER OF ENJOYMENT OF ESTATES. 243 IE A CONDITION STrBSEQTJENT IS NOT PEBFORMED, THE ESTATE GKANTEB DOES NOT TERMINATE UNLESS THE GBANTOE OB THE tEKSON ENTITLED TO ENTER, DOES AC- TUALLY ENTER OR DOES SOME EQUIVALENT ACT." K the persons entitled to enter on the breach of the condi- tion and enforce a forfeiture do not do so, the grantee's estate continues and is good against every one except those entitled to take advantage of the forfeiture." The persons entitled to enter for breach of condition may waive their right. This may be done by an express agree- ment, or by acts consenting to or accepting a subsequent per- formance. A CONDITION PRECEDENT MUST BE PEREORMED AT THE TIME LIMITED IN THE GRANT. A CONDITION SUBSEQUENT MAY FREQUENTLY BE PER- EORMED WITHIN A REASONABLE TIME AFTER THE TIME LIMITED IN THE GRANT. In case of a grant on a condition subsequent, if by the terms of the grant time is of the essence of the grant, the condition must be performed at the time limited. THE CONDITIONS ATTACHED TO AN ESTATE MUST BE VAXID AND CAPABLE OE PERFORMANCE. Conditions which require the performance of acta which are forbidden by law, or which inhibit the performance of a duty to the public or individuals," or which are contrary to public policy, or which are repugnant to the nature of the estate granted, are invalid." Thus, a condition that the grantee '^Ruch vs. Rock Island, 97 U. S., 693. At the common law an entry was necessary; but now an action of ejectment is equivalent to an entry. No entry is necessary where grantor Is In possession. See Royal vs. Aultman-Taylor Co., 116 Ind., 424; 2 L. R. A., 526. "Schulenberg vs. Harrlman, 21 Wall., 44. Boone vs. Clark, 129 I!l., 466; 5 L. B. A., 276. "Smith vs. Barrle, 56 Mich., 314 "Haeussler vs. Missouri Iron Co., 110 Mo., 188; 16 L. E. A., 220. 244 MANNEIE OF ENJOYMENT OF ESTATES. ' should commit a crime would be invalid; and a condition to a grant of an estate in fee simple restraining all right of alien- ation would be contrary to the nature of the estate, and there- fore invalid.^^ It is unnecessary at this time to discuss the effect of partial restrictions of alienation. Another instance of a condition repugnant to an estate granted arises where a freehold estate in land is granted or do- vised on condition that it shall not be subject to the claim of the grantee's or devisee's creditors;^" for it is one of the inci- dents of such an estate that it shall be subject to the debts of its owner.^" Frequently the conditions imposed are invalid, as opposed to public policy.''^ It has always been the policy of the law to encourage mar- riage, and, as a general rule, a contract in restraint of mar- riage is invalid. A condition in a grant of land to a single man or woman that he or she does not marry is void. Conditions, however, which are not total restrictions on marriage, and which do not amount to a general restriction, are valid. Thus, a devise to testator's son, on condition that he should not marry a particular woman, was held to be valid.** So, a restriction on marriage for a reasonable time, for instance, during minority, is valid. As a general rule, a grant or devise of an estate by a husband to his wife, on con- dition that she does not re-marry, is valid." A contrary rule prevails in Indiana. "Prey vs. Stanley, 110 Cal., 423. "Wellington vs. Janveln, 60 N. H., 174. "But see Nichols vs. Baton, 91 U. S., 716. "It has been frequently held that a condition that the grantee shall not sell liquor on premises Is not contrary to public policy and is a valid condition. Chippewa Lumber Co. vs. Tremper, 75 Mich., 36. Cowell vs. Springs Co., 100 U. S., 55. "Graydon vs. Graydon, 23 N. J. Eq., 229. "Knlgbt vs. Mahoney, 152 Mass., 523. Nash vs. Simpson, 78 Me., 142. MANNER OF ENJOYMENT OF ESTATES. 245 The effect of an invalid condition, or a condition incapable of perfonnance, depends upon -whether the condition is prece- dent or subsequent. IP THE COITDITION IS FBECEBENT AND IS INVALID, THE ESTATE WILL NOT VEST." IE THE CONDITION IS STTBSEQUENT AND IS INVALID, THE GRANTEE'S ESTATE IS ABSOLUTE AND EHEE EBOM SUCH CONDITION. WHO MAY PERFORM CONDITIONS. The condition may be performed by any one who has an interest in the estate to which the condition is attached; and any one accepting the estate is bound to perform the condi- tions attached to it."" As a general rule, courts of equity will not interfere to en- join a forfeiture; neither will they enforce a forfeiture; in both cases the parties will be left to their legal action. If the for- feiture is one of peculiar hardship, and if the party claiming the forfeiture cannot be fully indemnified by damages, courts of equity will sometimes interfere. CONDITIONAL LIMITATIONS. In the case of an estate upon condition subsequent, the grantor conyeys to his grantee an estate of the kind desired, for instance, in fee or for life, and then attaches conditions which may determine it before the expiration of the time con- templated in the granting clause. It frequently happens that the grantor, instead of granting the full estate and then providing for the forfeiture of part of it, merely grants an estate in land to be held up to the happen- 'Taylor vs. Mason, 9 Wheat, 350. "Osgood vs. Abbott, 58 Me., 73. 246 MANNER OF ENJOYMENT OF ESTATES. ing of some erent or act; such an estate is luiown as an estate upon conditional limitation. The distinction between a condition and a conditional lim- itation is pointed out by Chancellor Kent as follows: 'Words of limitation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condi- tion arises before the determination of the estate or comple- tion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate." If a man devises a life estate to his wife on condition that she shall not marry again, the wife owns a life estate which may be defeated by her marriage, and her estate is on condition. If the devise is to the wife "during her widowhood" or "as long as she shall remain single," the time during which her estate shall continue is limited, and the words "during her widowhood" or "as long as she may remain single," are words of limitation and not of condition.''" "■First ITnl^eTsallat Society of .4.dams tb. Boland, 155 Mass., 171: 15 li. R. A.. 231. Land was granted to plaintiff to have and to hold "so long as said real estate shall by said society or its assigns be devoted to the uses, Interests and support of those doctrines of the Christian religion * • ♦ and when said real estate shall by said society or its assigns be diverted from the uses, interests and support aforesaid to any other interests * * • then the title of said society or its assigns in same shall forever cease and be forever vested in the following persons," etc. In an action to enforce specific performance of a contract to pur- chase said land by defendant, the court passed upon the nature of the above grant. The court says: "The woras do not grant an absolute fee, nor an estate upon condition, but an estate which is to continue till the happening of a certain event, and then cease. That event may happen at any time, or it may never happen. Because the estate may last forever, it is a fee. Because It may end on the happening of the event, it is what is usually called a determinable or qualified fee. The grant was not upon a condition subsequent, and no re-entry would be necessary; but by the terms of the grant the estate was to continue MANNER OF ENJOYMENT OF ESTATES. 247 AN ESTATE UPON A CONDITIONAL LIMITATION IS ONE WHICH IS GBANTED TO CONTINUE UNTIL THE HAPPENING OF SOME CONTINGENT EVENT. The estate is frequently created by the use of some of the following terms: "Until," "during," "as long as," "while." The difference in the effect of a conditional limitation from that of a condition subsequent seems to lie in this: in the former the happening of the future event ipso facto de- termines the estate without any entry by the person who has the next expectant estate, while in case of an estate upon condition subsequent, there must be a re-entry in order to revest the estate. A conditional limitation does not involve a forfeiture and is regarded with more favor by the courts than conditions subsequent. Thus, a devise to an unmarried woman, as long as she remains single, has been enforced in a number of in- stances as a conditional limitation by courts which have re- fused to enforce a condition subsequent of the same nature.^' On the determination of an estate on conditional limitation the property passes to the person to whom it is limited.^* 80 long as the real estate should be devoted to the specific uses, and when it should no longer be so devoted, then the estate would cease and determine by its own limitation." In this case the defendant refused to accept the title, claiming that the plaintiff's title was defective. The plaintiff contended that it was the absolute owner of the premises, because the limitation was void. The court held that the estate of plaintia did not depend upon the validity or invalidity of the limitation, and that plaintiff's estate expired at time fixed by the limitation, whether or not the same would have been void for other purposes; that plaintiff's estate did not become absolute, and its title was therefore defective. "Summit vs. Yount, 109 Ind., 50fi. Cowell vs. Springs Co., 100 U. S.. 55. "First Univ. Society of North Adams vs. Boland, 155 Mass., 171. CHAPTER VII. MORTGAGES. From the earliest times, the title to land has been given as a security for the payment of money. The earliest form of such security seems to have been in the nature of a pledge, under which the person loaning the money toolt possession of the land and retained it until pay- ment; and the product of the land belonged to the lender as a compensation for the use of the money, and did not apply on the principal. In the process of time, and at an early date, the form of the security on land developed into two distinct pledges, known as vivum vadium and mortuum vadium. A vivum vadium, or living pledge, was a conveyance of an estate to be held until the rents and profits should repay the eum borrowed. "In this case," says Blackstone, "the land or pledge is said to be living; it subsists and survives the debt; and immediately on the discharge of that, results back to the borrower."^ A mortuum vadimn, or dead pledge, was a conveyance of an estate in land, on condition that it should be void if the borrower repaid the amount borrowed at the time limited in the grant. Such a grant was called a mortuum vadium (or dead pledge), because, in case of non-payment at the stipulated time, the interest of the borrower became forever dead, and the conditional estate became absolute in the grantee.^ '2 Blackstone, 156. ■2 Blackstone, 158. MOETGAGBS. 249 The term mortgage superseded that of mortuum vadium; and the borrower was called the mortgagor, and the lender, the mortgagee. AT THE COMMON LAW, THEN, A MORTGAGE IS A CON- VEYANCE OF AN ESTATE IN LAND, AS A SECURITY, ON CON- DITION THAT IF THE MORTGAGOR PERFORMS THE CONDI- TION OF THE MORTGAGE AT THE TIME LIMITED, THE ESTATE IS DEFEATED; AND ON THE FAILURE OF THE MORT- GAGOR TO PERFORM THE CONDITION AT THE TIME STIPU- LATED, THE ESTATE BECOMES ABSOLUTE IN THE MORT- GAGEE. This common law definition must not be accepted by the student as a complete definition of a mortgage at the present time; for, as we shall afterwards see, the term "mortgage" is now applied to instruments in many different forms which do not convey any estate at all, and which create mere liens on real property. At the common law the mortgagee became the owner of the fee, and the condition on which his estate was liable to be de- termined, i. e., repayment of the loan, was in the nature of a condition subsequent. We have seen that conditions subse- quent, since they involve the forfeiture of an estate, are not favored and are strictly construed. The common law courts applied these legal rules to mort- gages, and, on the failure of the mortgagor to make the pay- ment on the day limited in the mortgage, the estate became absolute in the mortgagee, and the mortgagor had no legal remedy to recover any surplus value of land over the amount borrowed; neither could the mortgagor after the time fixed for payment, at law, compel the mortgagee to accept the amount due and discharge the mortgage. Against the severity of the law, courts of equity inter- posed; they looked upon the intention of the parties, and re- 250 MOEa?QAGES. garded a mortgage as a mere security for the debt or obliga- tion of the mortgagor. Forfeiture, as a result of a breach of condition, was re- garded in equity as a penalty; and the rule was established that the mortgagor, after default, should have a reasonable time to recall or redeem his estate by payment of the prin- cipal and interest of the debt and costs. This right to redeem was not an estate in the land, but was a mere equity and was called an equity of redemption. The effect of this equitable rule was not to alter the estate of the mortgagee; for he was still seised of an estate on con- dition; nor did the equitable rule prevent the vesting of an absolute estate after breach of condition. Equity simply pro- vided a remedy by which the mortgagor after default might redeem his estate. This doctrine of equity of redemption be- came firmly established in the reign of James I. The common law theory of a mortgage, viz., that it is a conveyance of a conditional estate, together with the general equitable doctrine, that after default the mortgagee shall have an equity of redemption, has been substantially adopted by a number of States.* It is not meant by this statement that the common law rule and its harsh consequences have been adopted in toto; but simply that the general common law theory as to the nature of a mortgage has been adopted. We shall afterwards see that many of the States, while adopting that theory, do not adopt all of its logical consequences; and, while they regard the mortgagee as the owner of an estate, he has now few of the incidents pertaining to ownership. 'This rule prevails in Alabama, Conaectieut, Indiana, Massachu- setts, Minnesota, Missouri, New Hampshire, North Carolina, Rhode Island and Vermont. MOETGAGES. 251 Many States have repudiated the common law theory and have adopted the more equitable rule. In the latter States, a mortgage may be defined as follows : A MORTGAGE IS A LIEN ON LAND FOR THE PURPOSE OF SECtTKINQ THE PAYMENT OP A DEBT OR OTHER OBLIGA- TION. Under this theory, a mortgage does not convey any title to the property; the legal title remains in the mortgagor, even after default, and passes from him only on foreclosure." FORM OF MORTGAGES. At the common law, a mortgage was in the form of a con- veyance of land with a defeasance clause, that, on performance of the condition as to payment, the estate granted should be void, or, with a provision that on payment at the time limited in the mortgage, the mortgagee should re-convey the premises.* A mortgage in this form is said to be a common law mortgage. This common law form is in use in many of the States, in- cluding some States in which a mortgage is not a conveyance, but a lien. It was quite a common practice to convey an abso- lute estate by one instrument, and execute a defeasance clause in a separate writing.' In some States, statutes have been passed providing that a certain form may be used, and indicating the method of exe- cution, etc. 'The lien theory as to mortgages prevails in substance in the fol- lowing States: Michigan, New Yorlc, Georgia, California, Indiana, Iowa, Kansas, Louisiana, Texas, South Carolina, Wisconsin, Dalcota, Utah and Washington. Delaware, Mississippi and Missouri adopt the Hen theory, but after default of mortgagor, possession by mortgagee vests an estate In the latter. 'The defeasance is usually as follows: "Provided always, and these presents are upon the express condition that If the party of the first part shall and do well and truly pay unto party of second part the sum of dollars, with interest at the rate of per cent, per annum, according to the tenor of a certain promissory note bearing even date herewith, and to which these presents are collateral, then these presents and said promissory note shall be null and void." 'Ferris vs. Wilcox, 51 Mich., 105. 252 MOETGAGES. In most states a mortgage is not required to be in any particular form. Any instrument from which, it appears that the parties intended to convey an estate in or create a lien on definite real estate for the purpose of securing the payment of a debt or the performance of an obligation, is sufficient, if properly executed, to constitute a mortgage. A mortgage in any of the forms mentioned is a legal mort- gage. A LEGAL MOBTGAGE KAY BE THEBEFOBE DEFINED AS AN INSTBTJMENT OB INSTBTJMENTS IN WHICH THE PAR- TIES HAVE EXPRESSED THEIB INTENTION EITHER TO CONVEY AN ESTATE IN LAND OR CREATE A LIEN ON LAND AS A SECURITY, AND WHICH INSTRUMENT HAS ALL THE ESSENTIALS AND IS EXECUTED WITH ALL FORMALITIES REQUIRED BY LAW. It frequently happens, however, that the parties, wliile they intend to create a mortgage, yet fail to express such in- tention, or, if it is expressed, fail to execute the instrument in the manner required by law. In reference to such instruments or agreements, equity in its desire to carry out the intention of the parties, gives them the effect of mortgages. AN EQUITABLE MOBTGAGE, THEN, IS AN AGBEBMENT IN- TENDED TO OPEBATE AS A SECUBITY ON LAND, BUT WHICH FAILS TO EXPBESS SUCH INTENTION, OB WHICH LACKS, EITHEB IN FOBM OB EXECUTION, THE ESSENTIALS OF A LEGAL MOBTGAGE, AND WHICH AGEEEMENT IS, IN EQUITY, GIVEN THE EFFECT OF A MOBTGAGE.' The intention to create a security may be inferred from many different agreements; and there are, therefore, many different kinds of equitable mortgages. We will briefly call attention to a few of the most common equitable mortgages. 'Atkinson vs. Miller, 34 W. Va., 115, 9 L. R. A., 544. MORTGAGES. 253 1. AN ABSOLUTE DEED INTENDED TO OPERATE AS A SECUR- ITY, WILL IN EQUITY BE HELD TO BE A MORTGAGE. It early became a practice on the part of borrowers, for the purpose of securing the repayment of a loan, to make an abso- lute conveyance of the estate, without any defeasance clause, either in the instrument containing the grant, or in a separate instrument. Without discussing the development of the doc- trine, it may be said that an absolute conveyance, intended as a security, is given the effect of a mortgage in equity.' PAROL EVIDENCE IS ADMISSIBLE, IN EQUITY, TO SHOW THAT A DEED ABSOLUTE ON ITS FACE WAS INTENDED TO OPERATE AS A MORTGAGE. While this is the rule, the courts differ as to the reason of the rule. The admission of parol evidence to show the inten- tion of the parties in this class of cases is not regarded as a violation of the rule that parol evidence is inadmissible to vary the terms of a written instrument. The attempt of a grantee to set up his deed as absolute when it was intended only as security, is a fraud on the rights of the grantor, and equity in its jurisdiction over frauds is not precluded from making an inquiry as to whether or not a fraud has been conomitted by the legal rule as to admission of parol evidence. In some states parol evidence will be admitted only in those cases in which the defeasance clause was omitted by mistake or fraud at the time of the execution of the grant.^" In most States, however, parol evidence will be admitted in cases in which there was no fraud at the time of the execution of the deed, and where the only fraud consists in the attempt to use the deed contrary to the intention of the parties. •Sun Fire Office vs. Clark, 53 Ohio St. 414; 38 L. R. A., 562. "Bralnerd vs. Bralnerd, 15 Conn., 575. Price vs. Gover, 40 Md., 102. 254 MORTGAGES, WHEN THE DEED IS ABSOLUTE ON ITS FACE, THE PBE- STJMPTION IS THAT AN ABSOLUTE CONVEYANCE WAS IN- TENDED; AND, IN ORDER TO REBUT THIS PRESUMPTION, CLEAR, UNEQUIVOCAL AND CONVINCING PROOF WILL BE REQUIRED, THAT, AT THE TIME THE DEED WAS GIVEN, IT WAS THE INTENTION OF THE PARTIES THAT IT SHOULD OPERATE AS A SECURITY." The burden of proof is on the party who alleges that the deed is a mortgage.^^ If the deed at the time it was delivered was intended to be absolute, it must always remain so, and it cannot be affected by any subsequent parol agreement.^' While the law on this subject is well settled, it is often dif- ficult to determine what was the actual intention of the parties. In arriving at the actual agreement and intention of the parties, the courts take into consideration the following cir- cumstances: IF THE DEED IS TO BE HELD TO BE A MORTGAGE IT MUST APPEAR THAT AT THE TIME IT WAS EXECUTED, THE RE- LATION OF DEBTOR AND CREDITOR EXISTED BETWEEN THE PARTIES. If there is no indebtedness, the deed cannot be given as a security for its payment.^* So, if money is paid to the grantor, not as a loan, but as a part of the purchase price, or if a prev- ious debt between the parties is extinguished by the convey- ance, the transaction will not be held to be a mortgage.!^ THE FACT THAT THE AMOUNT PAID THE GRANTOR IS CONSIDERABLY LESS THAN THE VALUE OF THE PROP- ERTY, IS EVIDENCE TENDING TO ESTABLISH THE CLAIM THAT THE TRANSACTION WAS INTENDED AS A MORTGAGE. "Cadman vs. Peter, 118 U. S., 73. "Tilden vs. Streeter, 45 Mich., 333. "Swetland vs. Swetland, 3 Mich., 482. "Riley vs. Starr (Neb.), 67 N. W., 187. McMillan vs. Bissell, 63 Mich., 66. "Swetland vs. Swetland, 3 Mich., 482. MORTGAGES. 255 If the grantor receives the full value, or nearly the full value, of his property, this fact will tend to support the claim that thu transaction was an absolute transfer, and not a se- curity. THE BETENTIOHr OF THE POSSESSION BY THE GRANT- OR, IF UNEXPLAINED, IS A CIRCUMSTANCE TENDING TO SHOW THAT THE INTENTION WAS TO MORTGAGE, AND NOT TO SELL. The rule as to admission of parol evidence, applies only to the parties making the deed, and to third parties having notice of the real nature of the transaction. If a third person in good faith purchases the property from the grantee in possession without notice of the parol agreement, parol evi- dence will not be admitted to defeat or qualify his title.^' 2. ABSOLUTE DEED AND CONTRACT FOR RECONVEYANCE. Frequently the payment of money is secured by an absolute conveyance and a contract or bond executed at the same time, or at different times when a part of the same transaction, whereby the grantee agrees to reconvey the property on the payment of amount borrowed. For instance. A, the owner of certain land, desires to raise $1,000, and, instead of executing a mortgage on it for that amount to B, the person advancing the money, he executes an absolute deed of the property to B, and B at the same time enters into an agreement to resell and reconvey the property to A, on the payment of $1,000, with interest. Such a transaction is an equitable mortgage, and entitles the grantor to an equity of redemption.^' The giving of a deed and a contract of re-purchase, if not for the purpose of securing a loan or payment of an indebted- "Mooney vs. Byrne, 37 N. T. S.. 388. Crane vs. Buchanan, 29 Ind., 570. "Jeffery vs. Hursh, 68 Mich., 246. 256 MORTGAGES. ness, will vest an absolute estate in the grantee, subject to the agreement to resell, and the vendee in such a contract is not entitled to an equity of redemption, but only to his remedy for a breach of the agreement to re-sell. It is sometimes dii3acult to determine whether an absolute conveyance and an agreement to repurchase is a mortgage or a conditional sale. As a general rule, in doubtful cases, the court will lean to the conclusion that a security, rather than a conditional sale, was intended.^* But, if it satisfactorily ap- pears that a conditional sale was intended, the transaction must retain the stamp which the parties themselves have given it.^° As in the case of an absolute deed with a parol defeasance, the surrounding circumstances may be of great assistance in determining what was the real intention of the parties. It is as necessary in the case of a contract to re-purchase, as in the case of an absolute deed, that the relationship of debtor and creditor should exist between the parties if the transac- tion is to be held a mortgage.'" 3. TRUST DEEDS. Sometimes the party borrowing the money, instead of giv- ing a deed directly to the lender, conveys the property to a trustee, to be held in trust, to secure the person advancing the money and to re-convey the property to the borrower on the payment of the debt. "When a deed of trust is made for the purpose of securing a continuing debt, it will be treated in equity as a mortgage.'^ "Gassert vs. Bogk, 7 Mont., 585; 1 L. R. A., 240. "Cornell vs. Hall, 22 Mich., 377. Cowell vs. Craig, 79 Fed., 685. "Doylng vs. Chesebrough (N. J. Ch.), 36 A., 893. Saxton vs. Hitchcock, 47 Barb. (N. Y.), 220. "Brantley vs. Wood, 97 Ga., 755. Marshall vs. Thompson, 39 Minn., 137. MORTGAGES. 257 The rules as to necessity of an indebtedness and the method of arriving at intention of parties in case of an absolute deed, are applicable to the case of a trust deed. 4. AGREEMENTS TO GIVE A MORTGAGE, AND MORTGAGES LACKING SOME LEGAL ESSENTIAL OR FORMALITY. It is a maxim that equity will regard as performed, that which ought to be performed. This maxim is frequently ap- plied in those cases in which, for a consideration, there has been an agreement to give a mortgage on definite property, and a failure for some reason to carry out the agreement. Equity will, in such a case, give effect to the agreement and establish a lien on the property." For the same reason, when the parties have attempted to execute a mortgage, but failed to have it properly executed, or omitted some of the legal es- sentials, it will be given the effect of a mortgage in equity.'" ^'Ossood Tra. OssootI, 78 Micli., 290. In this case a bill was filed to secure a lien on certain real estate for money advanced by Hiram C. Osgood to his father, Isaac Osgood. Shortly after money was advanced, Hiram 0. Osgood died, and on the refusal of defendants to account for the money received, this action was commenced by the wife and children of Hiram C. Osgood. The court in holding that a decree should be entered In favor of com- plainant said: "The testimony in the case convinces us that the deceased, when he let his father have the money to aid him in building the store, did not Intend to give It to his father, but it was furnished by the son with the understanding that It was in some manner to be secured for him in the store and lot, or for his children, and that it was his intention, when he left his home at L'Anse, to visit his father at Jaclison, to have a settlement with him. and conclude the matter, and he tools all his papers with him relating to that business. The correspondence between the father and son all tends to show these facts. * * ♦ We all think there should be a reversal of the decree at the circuit, and a new decree entered in favor of complainants, giving to them a Hen upon said store and lot, thereby securing to them the payment of the sum of $2,700, with annual interest thereon at the rate of 6 per cent." See also case of Bridgeport Electric & Ice Co. vs. Meader, 72 Fed., 115. "Atkinson vs. Miller, 34 W. Va., 115; 9 L. R. A., 544. Marstarum vs. Christie Orange Co. (Pla.), 19 So., 637. Daggett vs. Rankin, 31 Cal., 321. 258 MORTGAGES. Thus, mortgages which omit the name of the mortgagee, or which are improperly sealed or witnessed, have been given effect in equity.^* 5. OTHER AGREEMENTS. Equity will give effect to any written agreement, whatever its form from which the intent to pledge land as a security can be gathered, and this is true, even though the agreement does not purport to convey a title or create a lien.^' 6. DEPOSIT OF TITIjE DEEDS. Another form of equitable mortgage in England, and a few of the States, is that created by the deposit of title deeds as a security. In England, such a deposit will operate as a security on the land described in the deeds. In this country, by reason of the system of registering titles, the deposit of title deeds does not usually create an equitable mortgage. In a few States the English rule prevails.^' 7. VENDOR'S LIEN. One of the most important equitable liens is that of a ven- dor for the unpaid portion of the purchase price. This lien differs from other equitable liens discussed, in that it is not the result of an actual agreement, but arises from inference or implication.^^ It was early settled in the English Chancery courts that a vendor should have a lien on the land conveyed, for the amount of the purchase price unpaid.^' In many, if not most of the "Atkinson vs. Miller, 34 W. Va., 115; 9 L. R. A., 544. Gardner, Dexter & Co. vs. Moore, 51 Ga., 268. "New Vienna Banli vs. Johnson, 47 Olilo St., 306; 8 L. R. A., 614. "Mounce vs. Byars, 31 Cal., 321. Hall vs. McDuff, 24 Me., 311. Hacliett vs. Watts, 40 S. W. (Mo.), 113. "White vs. Downs, 40 Tex., 225. "Gessner vs. Palmateer, 89 Cal., 89; 13 L. R. A., 187. This rule is not adopted in all states. See Frame vs. Sliter, 29 Or., 121; 34 L. R. A., 690. McQuie vs. Peay, 58 Mo., 56. MORTGAGES. 259 States, a lien exists in favor of the yendor; but the courts differ not only as to the reason of the lien, but also as to its opera- tion and effect." It is unnecessary in a book of this character to enter into the discussion of many of the questions relating to this lien. The early judges seem to have treated the lien as an implied agreement between the parties, unless it appeared that the vendor should not have a lien. This reasoning has been criticised as being contrary to the actual intention of the parties. Other courts reason that an estate acquired without full payment is unconscionable and contrary to natural equity, and that a lien ought to be given the vendor.^" This reasoning is criticised by other courts, in that the principle, on the same reasoning, ought to extend to the sales of personal property, which it does not. Most of the courts base their ruling giving the vendor a lien, on the fact that it would be unconscionable on the part of the purchaser to hold the land without paying for it, and, if he does hold it, a trust ought to arise in favor of the vendor. The lien is then regarded as a holding in trust by the vendee for the benefit of the vendor. The trust, however, is a secret one, and will not be en- forced, to the injury of an innocent bona fide purchaser for value, without notice that the purchase price, or any portion of it, is unpaid."^ But it may be enforced against all subse- quent purchasers with notice that the purchase money is not paid, and against all transferees or grantees who, while they "The lien exists In the following States: Arkansas, California, Colorado, Florida, Indiana, Illinois, Iowa, Kentucky, Maryland, Michi- gan, Minnesota, Missouri, Mississippi, New Jersey, Nevada, New York, Orejron. Rhode Island. Tennessee, Texas and Wisconsin. "Hiscock vs. Norton, 42 Mich., 320. "Cowan vs. Murch, 97 Tenn., 590. A purchaser without consideration takes the property subject to the lien. Higigins vs. Kendall, 73 Ind., 522. 260 M0BT6A6ES. have no notice of such fact, have not parted with any consid- eration. The courts differ as to whether a vendor's lien will prevail as against an execution creditor without notice; the weight of authority is that it will not.''' As has been stated, it is not necessary to prove an actual agreement that the vendor shall have a lien; for it will be pre- sumed, from the sale of the property, and the fact that a por- tion of the purchase price is unpaid, that a lien in favor of the vendor was intended.*^ This presumption may be rebutted or waived by the actions of the vendor. The vendor, by accept- ing other security, as a mortgage, and, in most States, the ac- ceptance of an endorsed note or guaranty of a third person, wUl waive the lien.'* The reasoning of the cases holding that such an acceptance is a waiver of the vendor's liens, seems to be that the vendor by taking the security of a third person agrees not to rely upon his lien. The taking of a note, not endorsed or guaranteed by a third person, will not amount to a waiver of the lien.'" There is a difference of opinion as to whether the vendor can assign the right to the lien to the transferee of his claim. Most courts hold that the lien is personal and that an as- signment cannot be made.'" If, however, an express lien is re- served to the grantor, it may be assigned, and will pass by a transfer of the purchase money obligation.'' "Allen TS. Loring, 34 Iowa, 499. "Cowan vs. Murch, 97 Tenn., 590. "Robbins vs. Masteller (Ind.), 46 N. B., 330. "Knight vs. Knight, Ala., 21 So., 407. "Law vs. Butler, 44 Minn., 482; 9 L. R. A., 856. Bell vs. Pelt, 51 Ark., 433; 4 L. R. A., 247. Martin vs. Martin. 164 111., 640. Contra., Dickason vs. Fisher (Mo.), 37 S. W., 1114. "Nashville Trust Co. vs. Smythe, 94 Tenn., 513; 27 L. R. A., 663. MORTGAOES. 261 8. VENDEE'S LIEN. A vendee, under some circumstanceB, has a lien on the land purchased. If the vendee makes payments on the purchase price and the vendor subsequently refuses to carry out the provisions of the contract, the vendee, as against his vendor, is entitled to a lien on the land for the amount paid, together with the value of improvements he has made. RELATION OF MORTGAGOR AND MORTGAGEE, It is impossible to make an exact statement of the status or rights of mortgagors or mortgagees which is applicable in all States. We cannot do more than state the common law and point out a few instances in which it has been generally repealed or modified. MORTGAGEE'S INTEREST AT COMMON LAW. At the common law, as has been already stated, a mortgage was the conveyance of an estate upon condition subsequent. The rights of the parties grew out of and were consistent with the theory that the mortgage was a conveyance. The mort- gagee was the owner of an estate in the mortgaged property, his interest was considered as realty, and descended on his death, to his heirs, and not to his personal representative; on the execution of the mortgage, he became the owner of a con- ditional estate, and after default, he became the owner of an estate upon condition. The mortgagee being the owner of the mortgaged property was, in the absence of an agreement to the contrary, entitled to its possession. MORTGAGOR'S INTEREST AT COMMON LAW. It is difficult to define the mortgagor's interest at the com- mon law before default and while in possession. 262 MOETGAGES. The mortgage being a conveyance, after its execution tke fee passed to the mortgagee, and the only interest remaining in the mortgagor was an expectancy or possibility that on the payment of the mortgage debt when due, the title would revert to him. At the common law the possibility of the property re- verting to the mortgagor on the performance of the condition, was not regarded as an estate. In different cases a mortgagor has been called a "tenant at wUl," "a tenant by sufferance," "receiver's agent," and "agent of the mortgagee." All of these terms have been criticised as not indicating the exact status of the mortgagor. WhUe the right of the mortgagor to perform the conditions of the mort gage and have the property reconveyed to him, was well recognized, it is doubtful whether at the common law, 'before default, any tenancy existed between mortgagor and mort- gagee. After default, the mortgagor had under the equitable doctrine, the right to redeem the property. This equity of re- demption was not an estate and could not be levied upon by his creditors. MODIFICATION OF COMMON LAW DOCTRINES. While many of the States still regard a mortgage as a con- veyance, none of them accept the logical consequence of that theory, so far as the rights of the parties are concerned. IN STATES ADOPTING THE COMMON LAW THEORY OF A MOBTGAGE, A MOBTGAGOB IS NOW BEGABDED, AS AGAINST EVEBYONE, EXCEPT THE MOBTGAGEE, AS THE OWNEE OB THE MOBTGAGED PBEMISES." ■*Tiimer Coal Co. -rs. Glo-rer. 101 Ala., 2S0. Plaintiff sued defendant for cutting down, destroying and taking away certain timber from land owned by plaintiff, and recovered a judgment of $2,000. Defendant filed a petition for a new trial, and set up as a reason for a new trial, that, previous to the tri.al, plaintiff and his wife had mortgaged the property from which the trees were cut, and that such mortgage was undischarged at the time of the trial. The lower court denied the petition for new trial, and this decision was affirmed by the Supreme Court, on the ground that the mortgagor, MORTGAGES, 263 He may sell the property, subject, of course, to the mort- gage, and his interest in the mortgage premises is subject to be taken on execution for the satisfaction of his debts. His interest in the premises is regarded as realty, and descends to his heirs. In the States adopting the common law theory, while the title still vests in the mortgagee, and on his death descends to his heirs, yet it is held by the latter in trust for the benefit of the personal representative. Under statutes in a number of these States, the rights of the mortgagee on his death pass to his administrator, and not to his heirs. IN THE STATES WHICH ADOPT THE MEN THEOBY, THE MORTGAGOR IS THE OWNER OP THE FEE, SUBJECT TO THE LIEN, AND MAY EXERCISE ANY OE THE RIGHTS OE OWNER- SHIP WHICH ARE CONSISTENT WITH THE RIGHTS OE THE MORTGAGEE. The common law right of the mortgagee to possession on the execution of the mortgage has been changed by statute or by judicial legislation in most, if not all the States. In most of the States adopting the common law theory, the mortgagor is entitled to possession until default; after default, in some States the mortgagee is entitled to possession; but in most States the mortgagor is entitled to possession until the mort- gage is foreclosed. In the States adopting the lien theory, the mortgagor is entitled to possession after default, and up to time of foreclosure.'* whether before or after default, is regarded as the owner of the mortgaged property, against all persons except the mortgagee, and that defendant could not, therefore, avail himself of such a defense. •nvasrar vu. Stone, 30 Mich., 304. BUI In chancery to foreclose a mortgage given by defendants to complainant. After cause was at Issue complainant filed a petition to have a receiver appointed to take charge of harvest and thresh a crop of wheat growing on mortgaged property. On a hearing on this petition a receiver was appointed. Subsequently the receiver paid Into court 264 MORTGAGES. In some of tiie States, if the mortgagee after default ob- tains the possession of the premises peaceably, with the con- sent of the mortgagor, he may retain them until the mortgagor performs the condition of the mortgage.*" Other States do not adopt this rule, and the mortgagor may recover possession up to the time of foreclosure.*^ TENANCY BETWEEN THE MORTGAGOR AND MORTGAGEE. The possession of the mortgagor or the mortgagee under the mortgage is in the nature of a tenancy to this extent, that for many purposes the possession of one is regarded as the possession of the other. Thus, a disseisin of the mortgagor will be a disseisin of the mortgagee, and a disseisin of the mortgagee amounts to a disseisin of the mortgagor.''^ So, ad- verse possession will not commence to run against a mortgagor or a mortgagee as long as one of them is in possession. This $106.91, the net proceeds of tbe wheat. The premises were subse- quently sold for a sum considerably less than the Indebtedness. Com- plainant then filed a petition for an order directing the register to pay him the amount paid into court by the receiver. The court refused to make the order, and directed the money to be paid to one holding under the mortgagor. This decision was based on the reasoniag that the mortgage conveyed no title to the property, and that the mort- gagee, until the foreclosure of the mortgage, acquired no legal interest In the mortgage property, and that under the statute and the terms of the mortgage, the mortgagee was not entitled to possession. "It would be a novel doctrine to hold that the mortgagee had a right to the profits Incident to ownership, and yet that he had neither a legal title or right to possession." "Coolie vs. Cooper, 18 Dr., 142; 7 L. R. A., 273. Bryan vs. Brasius, 1()2 U. S., 415. "Newton vs. McKay, 30 Mich., 380. "Polt^naiid vs. Smith, 8 Pick., £72. Stephen Gaster, in 1837, executed a mortgage to the Real Estate Bank, for $30,000. The debt did not mature until 1861, and the mort- gage provided that the land should remain In possession of Gaster until sold to satisfy the mortgage. Gaster died in 1859, and his heirs eontinued In possession until 1866, and in 186S the land was sold by master's administrator, under order of Probate Court, to the grantor of defendants. In 1876 the State, under a special act, commenced the proceeding to foreclose the mortgage to the Real Estate Bank. The defendants contended that Gaster had cultivated the land, without Interruption, for over fifteen years before his death, and that his heirs and the grantee of his administrator had always claimed to own the MORTGAGES. 265 same principle is sometimes applied between the parties to the mortgage, and until a default in the conditions of mortgage has been made, the possession of either party is regarded as that of the other, and neither can claim adverse possession against the other.*3 After default the mortgagor's possession may become ad- verse by some act of hostility against the mortgagee which amounts to a disavowal of the latter's rights under the mort- gage. Even after default, the mortgagor's possession is pre- sumed to be subordinate to the rights of the mortgagee, and his possession will be regarded as adverse only, when this presumption is rebutted by proof of some hostile act sufficient to make him an adverse holder.** In those States in which the mortgage is not a conveyance, the mortgagee is not the owner of an estate, and it cannot, therefore, be lost by adverse possession on the part of the mortgagor. In these States the statutes usually provide that no suit or proceeding may be had to foreclose a mortgage, unless commenced within a cer- tain number of years after the time the mortgage became due, or within a certain number of years after the last payment made on the mortgage. The relationship of the mortgagor and the mortgagee is also in the nature of a tenancy, in that the mortgagee is land in fee simple; but there was no evidence that Gaster or his heirs had ever repudiated the mortgaRe. The court held that the possession ot the mortgagor (Gaster) and his grantees was not adverse to the mortgagee, and that there had been no explicit disavowal of mortgagee's title and no overt act of hostility to it, of which the mortgagee had notice, and that no title was acquired by adverse possession. «Duke vs. State, 20 S. W., 600. ''To constitute a disseisin of the mortgagee by the mortgagor or those claiming under him, it must be made known to the mortgagee that the mortgagor or his grantees claim adversely to his right. Holmes vs. Turner Falls Co., 150 Mass., 535. Gafford vs. Strouse, 7 So., 248. Benton County vs. Czarllnsky (Mo.), 14 S. W., 114. 266 MORTGAGES. estopped from denying the mortgagor's title; and the mort- gagor may not attempt to defeat the mortgagee's interest by setting up a superior title acquired subsequent to the making of the mortgage.*^ So, if the mortgagee acquires an outstanding title from a third person, it will enure to the mortgagor's benefit on his paying his just proportion of the cost.*" RIGHTS AND LIABILITIES OF MORTGAGOR. The mortgagor being the owner as against all persons, ex- cept the mortgagee, may, as long as he retains possession, ex- ercise as against third persons, all the rights of an owner. He may recover for a trespass on the property;*^ he may maintain an action to recover possession; he may convey or lease the "Farmers' and Mechanics' Bank vs. Bronson, 14 Mich., 361. Teflt -VK. Mnnson, 67 N. Y., 70. This was an action to restrain defendants from foreclosing a mortgage. Martin B. Perkins was in possession of property owned by hia father, Gamaiiel Perkins. Martin forged a deed from his father to himseif and placed it on record and, subsequently, on October 1st, 1850, gave a mortgage on the property for $1,000. On the same date tUs mortsage was recorded. The mortgage contained covenants that Mar- tin B. and his wife were lawfully seised of a lawful, true and perfect title to the property. On the 16th of December, 1859, Gamaliel Perkins conveyed the property to his son, Martin B., and, until this conveyance Martin B. had no title to the land. On January 31st, 1867, Martin B., being still in possession, conveyed the property to plaintiff, who paid full value for it, without any notice of the mortgage. The court held that the principle of law, that where one who has no title to lands makes a conveyance with warranty, and afterwards purchases and receives the title, the same will vest immediately in his grantee as against the grantor by estoppel, was applicable to this case, and that Martin B. Perkins was estopped from denying that he had no title at the time of the mortgage. It was held that this doctrine of estoppel applied not only to Martin B. Perkins, but all privies in estate with him. A judgment dismissing bill of complaint was affirmed. "Thus a mortgagee cannot set up as against the mortgagor or other mortgagees a tax title to the mortgaged estate purchased by him at a tax sale. Hall vs. Westcott, 15 R. I., 373. Conn. Mut. Life vs. Stinson, 62 111. App., 324. "Talcott vs. Peterson, 63 111. App., 421. Bird vs. Decker, 64 Me., 650. MOETGAGES. 267 premises, and, in short, may perform all acts incidental to ownership. As against the mortgagee, the mortgagor, so long as he has a right to possession or retains possession, is entitled to the rents of the property in the absence of an agreement that they belong to the mortgagee; and this right to the rents con- tinues until foreclosure or possession by the mortgagee.** The mortgagor as long as he retains possession is entitled to the crops raised on the property and to reasonable estov- ers." The mortgagor, if in possession, must pay all taxes assessed upon the property.""* It is his duty to treat the premises in such a manner as not to impair the mortgagee's security. He must not commit waste; and he or other persons may be re- strained by an injunction from doing acts which tend to im- pair the mortgage security."^ It is, of course, the duty of the "GaskeU vs. Vlqaesney, 122 Ind., 244. Plaintiff was owner of a third mortgage in land owned by Viquea- ney. Previous to the commencement of this suit the second mortgage had been regularly foreclosed and the property was bid in by one Shirley who received a sheriff deed therefor and entered into possession. Plaintiff was not made a party to the foreclosure and commenced this proceeding as a junior incumbrancer to redeem from the foreclosure sale and for an accounting for rents and protits received by Shirley. The court held that the plaintiff not being a party to the fore- closure was not bound by it and was entitled to redeem on paying the amount of second mortgage. But the court held that plaintiff was not entitled to an accounting for rents, and that the rents received should not apply on the mortgage. The general doctrine that a mort- gagor was entitled to the rents and profits until his legal estate was divested, and that a junior incumbrancer might stand in place of mortgagor and compel an accounting in same way as a mortgagor, was adopted by the court; but in this case the mortgagor's title having been cut off by the foreclosure, the right of the junior Incumbrancer to an accounting, being through the mortgagor was held to cease when the latter's title was cut off. Tn other words, the junior incumbrancer was not entitled to an accounting when that right did not belong to the mortgagor. "Simpson vs. Ferguson, 44 P., 484. "Drew vi. Morrill, 62 N. H., 565. 268 MOETGAGES. mortgagor to pay the interest and the principal on mortgage when due. The mortgagor is not personally liable to pay the mortgage unless there is an express covenant in the mortgage to pay, or unless the mortgage is collateral to a note or bond or other personal obligation. In the absence of a personal undertaking on the part of the mortgagor, the mortg=»Schmldt vs. Zahrndt (Ind.), 47 N. E., 335. Ladd vs. Anderson, 133 Mo., G25. •"Sioux City vs. Singer, 49 Minn., 301; 15 L. R. A., 751. ™Ahem vs. White, 39 Md.. 409. Roane vs. Baker, 120 111., 308. M0ET6AGKS. 291 1. If the mortgage is not recorded, but the parties dealing with the property have knowledge of the mortgage, or snffl- cient knowledge to put them on inquiry, their rights or inter- ests in the property will be subject to the mortgage. Since the purpose of the statute is to protect against un- known and secret conveyances, it follows that if the purchaser had actual knowledge of an unrecorded conveyance or mort- gage, there is no necessity of a registration so far as he is con- cerned. One taking the property with actual knowledge of an unrecorded instrument, is not a bona fide purchaser or incum- brancer.^^' There is an exception to this rule. If one having knowledge of the existence of an unrecorded instrument, acquires title from one without notice of such unrecorded instrument, he takes all the title and rights of his grantor, tree from the claims arising out of the unrecorded conveyance.^^^ If the mortgagee is in open, notorious and exclusive posses- sion of the property, his possession will be notice sufficient to put all persons dealing with the property on inquiry as to the nature and extent of his rights.^^' 2. As a general rule, the statutes only protect subsequent purchasers or incumbrancers. In some of the States, subsequent incumbrancers are specifically protected against unrecorded instruments. In most States, the statutes provide that subsequent "purchasers" shall be protected; but in such States the word "purchaser" is so construed as to include a subsequent incumbrancer or as- signee of a mortgage lease or any estate. "'Case vs. Erwin, 18 Mich., 434. Lamb vs. Pierce, 113 Mass., 72. "'Trull vs. Bigelow, 16 Mass., 406. ""Van Baalen vs. Cotney 113 Mich., 202, New vs. Wheaton, 24 Minn., 406. 292 MORTGAGES. The term "purchaser" or "incumbrancer" does not include a creditor. The rights of a subsequent creditor, therefore, in his debtor's property, are subsequent to those created by the unrecorded instrument. Thus, as a general rule, if a creditor without notice of a prior mortgage or other conveyance pro- cures an attachment or levies an execution on his debtor's property, or if he obtains a subsequent lien or judgment, he does not thereby become a subsequent "purchaser," and the mortgage is prior to his rights, either as a general or as a judgment creditor.^''* If the judgment creditor, however, sells the property on an execution sale, it is generally held that a purchaser at such sale, without notice of an unrecorded mortgage or other in- strument, will be protected by the registration laws and will take the property as a bona fide purchaser.^'* It has been pointed out that in some States the registration laws expressly protect subsequent creditors. In these States a creditor, who by judgment or by attachment or by an execution obtains a lien on his debtor's property, without knowledge of an unrecorded mortgage or other instrument, will be protected, and his lien will be prior to that created by the unrecorded mortgage or other instrument.^'^ 3. The statutes only protect bona fide purchasers or in- cumbrancers, for a valuable consideration. It is essential that the subsequent purchaser or incum- brancer, in order that he may have priority over the unrecorded instrument, should have parted with something of value. Thus, a voluntary conveyance or mortgage without consideration, while valid between the parties, is yet subsequent to the rights ""Herman vs. Clark (Tenn. Chy.). 39 S. W., 873. Holden vs. Garrett, 23 Kans., 98. Columbia Bank vs. Jacobs, 10 Mich., 349. '"Atwood vs. Bearss, 45 Mich., 469. Contra., Kelly vs. Mills, 41 Miss., 267. "'Maseey vs. Westcott, 40 111., 160. MOKTGAGES. 2&3 of the grantee or mortgagee of the unrecorded instrument. As a general rule, the giving of a mortgage for a pre-existing debt is not such a parting with value as would make the mortgagee a bona fide incimibrancer for value.^'^ Thus it was held that a mortgage given for an antecedent debt acquired no priority by earlier recording over a mortgage previously given on the same property.^'* FORECLOSURE}. If the mortgagor fails to perform the conditions of the mortgage, the mortgagee may proceed, in States adopting the common law theory to cut off the equity of redemption, and, in the States adopting the lien theory to enforce his lien. In all States the result of a foreclosure is to apply the land itself, or the proceeds of it on a sale, toward the satisfaction of the mortgage debt, and to cut off all rights of the mortgagor in the property. Thus, in the States adopting the common law theory of a mortgage, the result of a foreclosure is to transfer to the ™Jewett vs. Tucker, 139 Mass., 566. ^B.e Rochester, 136 N. Y., 83; 19 L. R. A., 161. Brooke vs. Struthers, 110 Mich., 562; 35 L. R. A., 536. This Is the rule adopted In most States. In a few States the dis- charge of an Indebtedness is considered to be a sufficient consideration to make the creditor a bona fide purchaser. stone -rm. TVelllns, 14 Micb., 613. This was a bill to foreclose a mortgage made to the complainant by one Hart. After the making of the mortgage, Hart conveyed the property to the defendant Welling, in consideration of the latter agreeing to sur- render and discharge, within twelve months, certain claims and judg- ments held against Hart. At the time of this transfer, complainant's mortgage was not recorded and was not recorded until after Welling's deed was put on record. Defendant Welling contended that he was a bona fide purchaser for value, without notice, and that he hrtld the land free from com- plainant's mortgage. The court held that. In order that the defendant Welllnig might be a bona fide holder, he must have parted with something of value, and that the mere giving of a contract to do something In the future, did not amount to an actual payment of value for the land, and that therefore the defendant Welling was not a bona fide purchaser under the recording laws. 294 MORTGAGES. mortgagee, oi- a purchaser, an estate free from the conditions of the mortgage, and from the equity of redemption. In the States adopting the lien theory, the result of the foreclosure is to cut off all the title of mortgagor in the prop- erty. The process by which the equity of redemption is cut off, or the lien enforced, and the land subjected to the payment of the mortgage debt, is known as a foreclosure. In absence of special provisions, the right to foreclose accrues on the default of the mortgagor. Usually the fore- closure is had by default of mortgagor, in payment of principal at its maturity; but the mortgagee may also foreclose the mortgage for the breach of condition as to the payment of interest and taxes,"* for the amount due at time of foreclosure. It is usual, in such cases, where the mortgage is foreclosed for an installment of interest, to sell only suflflcient of the prop- erty to pay the amount due, or, if the entire property is sold, it is made subject to the future installments of principal and interest coming due; and a foreclosure may be afterwards had for the principal or subsequent installments when due;^^'' or the property is sold and the amount due at the date of decree is paid the complainant, and an amount sufBcient to pay the unpaid portion of the principal is paid to the register of the court to hold or invest until such time as it becomes due and payable to the complainant under the terms of the mortgage. It is now a common provision in mortgages that, on default of payment of interest at the time stipulated, the mortgagee may elect to declare the entire amount of the principal to be due and payable at once. Under such provision, if the mort- gagee elects to declare the entire amount due, a foreclosure may be had for principal and interest on default of payment "•Mercantile Trust Cto.vs. Missouri, K. & T. R. Co., 36 Fed ReD., 221; 1 L. R. A., 397. "»Boyer vs. Chandler, 160 111., 384; 32 L. R. A., 113. MOKTGAGBS. 295 of one installment of interest, even though principal would not be otherwise due for a long period."' At the common law there was no fixed time within which the mortgagee must foreclose. The English Statute of Limita- tions limited the right of entry upon land to twenty years, and this limitation was, by analogy, applied by the courts of equity to the foreclosure of mortgages. In most of the States, this period has been reduced, and in England the limitation is now fixed at twelve years. The possession of the mortgagor after default for a period fixed by the statute, raises the presumption that the mortgage has been paid; but this presumption may be rebutted by show- ing positive acts which amount to an acknowledgment of the debt, such as the payment of interest, or promise to pay."^ The payment of the interest, or a part of the principal, will start the statute running afresh, and foreclosure may be had within time fixed by statute after the last payment. The fact that an action at law on the note or obligation accompanying the mortgage is barred by the Statute of Limita- tions, will not, in most States, bar the right to foreclose the mortgage. In a few States the mortgage lien is discharged when the debt is barred.^^' In some States, there may be a per- sonal decree for deficiency, when an action at law on the note would be barred by Statute of Limitations.^^' In other States, however, the court will not grant a personal decree when an action on the note or obligation is outlawed."" "'Harper vs. Ely, 56 111., 179. Bringing suit is a sufficient notice of election to declare the whole amount due under this clause. Swearingen vs. Lahner, 93 Iowa, 147; 26 L. R. A., 765. ""Cook vs. Parham, 63 Ala., 456. Clawson vs. McCune, 20 Kans., 337. "•Lord vs. Morris, 18 Cal., 482. Pollock vs. Maison, 41 111.. 516. "•Blrnle vs. Main. 29 Ark., 591. »»Hulhert vs. Clark, 57 Hun., 558. SliDgerland vs. Sherer, 46 Minn., 422. 296 MORTGAGES. If tke mortgagee is in possession of the mortgaged prem- ises, lie need not commence foreclosure proceedings within any limited time, but may keep possession until the profits pay the mortgage debt. The practice and methods of foreclosure differ somewhat in the various States, but, generally speaking, there are three kinds of foreclosure. 1. STRICT FORECLOSURE. Strict foreclosure is one of the oldest methods. It is a pro- ceeding in equity, whereby the complainant obtains a decree that the mortgagor pay the mortgage debt within a time lim- ited in the decree, and that, in default of payment, the mort- gagor should be barred of all rights in the mortgaged prem- ises. Under this method, no sale is required, and the mort- gagee's estate becomes absolute and free from any equity of redemption, on default of payment at time fixed by the de- cree, and without any further proceedings.^*^ This method of foreclosure is a harsh one; for it cuts off all of the mortgagor's interest, irrespective of the extent or value of property. Strict foreclosure is not permitted in most States, and is not adapted to those States in which the lien theory prevails. In those States in which strict foreclosure is still permitted, the right to such remedy is limited to those cases in which the value of the premises does not equal the mortgage debt, or where, in the discretion of the judge, the interest of the mort- gagor will not be prejudiced.^*^ "'Ellis vs. Leek, 127 111., 60; 3 L. R. A., 259. '' '"Moulton vs. Cornish, 138 N. Y., 133; 20 L. R. A., 370. Strict foreclosure is permitted in some instances in the following States: Alabama, Connecticut, Illinois, Maryland, Massachusetts, Min- nesota, New Jersey, New York and Vermont MORTGAGES. 297 2. BI ENTRY AND POSSESSION. In a few States, after default, tlie mortgagee may enter and take possession of the mortgage premises and apply all pro- ceeds on the mortgage debt; and, if the mortgagor does not redeem within a time fixed by statute, after such entry and possession, the equity of redemption is barred and the mort- gagee becomes the absolute owner of the property. In a few States judicial proceedings may be had, whereby the mortgagee obtains a judgment for the amount of the mortgage-debt, to be paid within a limited time, and, on failure of the mortgagor to pay the judgment at the time limited, the mortgagee has the right to enter and hold property free from the equity of redemption.^*^ 3. FORECLOSURE BY SALE. The most common method of foreclosing mortgages is by sale under a decree of the equitable courts, or by a sale under a power contained in the mortgage. (a) SALE UNDER A DECREE. Courts of equity have, ever since the doctrine of equity redemption was adopted, assumed jurisdiction over the fore- closure of mortgages. In some States, the jurisdiction of courts over mortgage foreclosures is fixed by statute, and jurisdiction is sometimes given to the law courts. The usual equitable proceedings are applicable to foreclosure of mortgages. The mortgagee, or his assignee, files a bill of complaint setting forth the giving of the mortgage, the default of the mortgagor, and praying that the mortgage may be forecloEed and the equity of redemption cut off, or that the lien be foreclosed. Upon the hearing, and on "'Foreclosure by entry and possession Is permitted only In a few States. 298 MOKTGAGBS. proof of the allegations of the bill, the court will decree that the mortgagor paj the amount due under the mortgage, within a certain time, and, that on default of such payment, the mort- gaged premises shall be sold and the proceeds applied on the mortgage debt. It is unnecessary, in a book of this character, to enter into any discussion of the pleadings, the parties, defenses, or method of conducting sale in foreclosure proceedings. In many of the States, if the sale of the premises does not produce enough to satisfy the mortgage debt, a personal decree may be entered against the persons responsible for the amount of the defi- ciency if they are made parties to the foreclosure suit.^" If the premises realize an amount more than sufficient to satisfy the mortgage and costs, the surplus is brought into court and given to the mortgagor or other persons entitled thereto."^ (b) SALE UNDER POWER OF SALE. Most mortgages provide that if default be made in the con- ditions of the mortgage, the mortgagee is authorized to sell the premises at public auction and to execute and deliver to the purchaser at such sale a conveyance of all the mortgagor's interest in the premises.^*® In a number of States, statutes have been passed regarding the manner, the notice and place of sale, under such power of sale. It is the purpose of such provisions in mortgages and ^"A personal decree cannot be entered against one who is not a defendant in tlie foreclosure proceeding; neither can a personal decree be entered against a deceased person or his representative, but the claim must be proved up against the estate in the same way as other debts. •«Soderberg vs. King County, 15 Wash., 194; 33 L. R. A., 670. ''^If no default is made a sale under the power does not pass a good title. Rogers vs. Barnes, 169 Mass., 179; 38 L. R. A., 145. MORTGAGES. 299 statutes to provide a more expeditious method of foreclosing mortgages thau that afforded by equity and not to abridge or cut off the mortgagor's equity of redemption. The effect of such a clause is to give the mortgagee an additional method of foreclosure; but he still has the same right to foreclose in equity, or any other way. The power of sale is frequently given in trust deeds, and in deeds collateral to some under- taking of the grantors. In some States, the statutes provide that after such sale the mortgagor shall have a certain time within which to redeem;"' in the absence of such a provision, the sale cuts off all equity of redemption. In those States in which the power of sale is regulated by statute, there must be a compliance with the essential requirements of the statute. The failure to comply with the statute will avoid the sale, even as against a purchaser without notice of the defect.^** EFFECT OF FORECLOSURE. The effect of a foreclosure is to cut off all rights of the mortgagor in the property. The foreclosure will not confer any greater rights upon the purchaser than belonged to the mort- gagor, and the purchaser takes the property subject to all the infirmities in the title of mortgagor. Thus, a foreclosure will not affect a grant made and recorded prior to the execution of the mortgage; neither will the foreclosure affect the rights of subsequent grantees or incumbrancers, unless they are made parties to the foreclosure proceeding. The purchaser at such sale will, if the mortgage has been properly foreclosed, take the property free of all "'In Michigan, for Instance, the mortgagor Is given one year after the foreclosure sale in which to redeem and may retain possession of the mortgage premises until the time of redemption has expired. ^"Finlayson vs. Peterson, 5 N. D., 587; 33 L. R. A., 532. 300 MORTGAGES. liens and charges acquired subsequent to the making of the mortgage by persons who have actual or constructive notice of the making of the mortgage.^*" The foreclosure proceeding does not, as a rule, affect the mortgagee's legal remedy on the note or obligation accom- panying the mortgage. Thus, the mortgagee may maintain an action on the note and a foreclosure at same time, or after foreclosure the mortgagee may recover on the note any de- iiciency remaining after the sale of the property. In a few States, actions on the note and mortgage may not be had simultaneously.^'" MARSHALLING ASSETS. It is impossible, in a book of this character, to discuss the manner of conducting, and the law relating to foreclosure sales; but the student's attention ought to be called to the doctrine of marshalling assets which sometimes affects the order in which mortgaged property shall be sold. It often happens that a first or prior mortgage covers several pieces of property, and that a subsequent mortgage is a lien on only one of the pieces. In such a case, the doctrine of marshalling is that the first mortgagee must resort, in the first instance, for the satisfaction of his mortgage, to the property not covered by the subsequent mortgage. This is an equitable doctrine and finds its root in the obliga- tion of one debtor to so exercise his rights, when it can be done without loss, that loss or injustice may not be inflicted upon another.^'^ "•Stewart vs. Wheeling, & L. E. R. Co., 53 Ohio St.. 151; 29 L. R. A., 438. ""This Is rule In New York, Michigan, Iowa, Indiana. '"Story Equity Jurisprudence, Sec. 633. Ball vs. Setzer, 33 W. Va., 444. MOETGAGES. 301 The doctrine also finds application in those cases in which property is mortgaged and is afterwards sold in separate par- cels, at different times. In such case the parcels must be applied to the satisfaction of the mortgage in the inverse order of alienation."'' "'The reason of the application of the rule to this class of cases Is stated as by Chancellor Kent In Clowes vs. Dickinson, as follows: * * • "If there be several purchasers in succession at different times, I apprehend that In that case there is no equality, and no con- tribution as between purchasers. Thus, for Instance, If there be a Judgment against a person owning, at the time, three acres of land, and he sells one acre to A, the remaining two acres are first chargeable In equity with the payment of the judgment debt; * * * and that, too, whether the land be In the hands of the debtor himself or of his heirs. If he sells another acre to B. the remaining acre is then charge- able, In the first Instance, with the debt as against B, as well as against A. and if it should prove insufficient, then the acre sold to B ought to supply the deficiency, in preference to the acre sold to A; because when B purchased he took his land charged with the debt In the hands of the debtor, in preference to the land already sold to A. In this respect we may say of him as is said of the heirs, he sits In the seat of his grantor, and must take the land with all Its equitable burdens; it cannot be In the power of the debtor", by the act of assigning or sell- ing his remaining land, to throw the burden of the judgment, or rata- ble part of it, back upon A." * • • CHAPTER VIII. TIME OF ENJOYMENT OF ESTATES. It has already been pointed out tliat different individuals may have different interests in real property at the same time; that real property being permanent, it is possible to provide that certain person or persons shall enjoy and possess it imme- diately and for a limited time, and that after the tennination of their interest, the right to possess the property shall pass to certain other persons or classes of persons. The fact that it is possible to carve out of a greater estate, lesser estates, and to provide for the order of time in which the lesser estates shall be enjoyed, gives rise to another sub- division of estates. Estates as to the time of possession are of two kinds, viz: Estates in possession and estates in expectancy. AUr ESTATE IN POSSESSION IS ONE WHICH ENTT-^LES THE OWNEE TO THE IMMEDIATE ENJOYMENT OF THE PEOPEBTY. This definition is subject to some limitation; for, as has been stated, the owner of a freehold estate who is not entitled to immediate actual possession by reason of the non-termina- tion of a chattel interest in the property, as an estate for years, is still regarded as the owner of an estate in possession; so as to subject it to a claim of dower and curtesy." AN ESTATE IN EXPECTANCY IS ONE WHICH DOES NOT ENTITLE THE OWNEE TO IMMEDIATE POSSESSION, BUT THE 'See Dower and Curtesy, page 74. 301 TIME OF ENJOYMENT OF ESTATES. 303 RIGHT TO POSSESSION IS POSTPONED TO SOME FUTTJIIE PERIOD.' Estates in expectancy are divided into three classes, viz: Reversions, remainders and executory or future interests. REVERSIONS. The right of alienation is an incident of estates in fee sim- ple; it is also a right pertaining to all other estates, unless legally restricted. The owner of an estate may transfer his entire interest in the property, in which event, he of course, has no further in- terest in it. But, estates being devisable, it frequently happens that the owner instead of conveying his entire interest in the property, conveys only a portion of it. Thus, the owner of the fee may transfer to A an estate for his life, and he may provide that after A's life estate the property shall go to B for twenty years. Now, the grantor had an estate in the property which en- titled him and his heirs to the enjoyment of the property for- ever, and out of this interest he has only provided for the en- joyment of the property for A's life and twenty years there- after. It follows that after subtracting from the grantor's interest the estate granted there remains a residue or remnant. In other words, the estate in fee is now split into a life estate, an estate for years, and the remnant or residue not granted. If the grantor in the instrument containing the grant makes no conveyance of this remnant or residue or remainder, it is still vested in him; and on the termination of the life estate and the estate for years, the possession reverts to him, or hia heirs, by operation of law, without any provision to that effect in the grant. This vested interest of the grantor in the prop- erty granted is known in the law as a reversion. •Campau vs. Campau, 19 Mich., 115-123. 304 TIME OF ENJOYMENT OF ESTATES. It frequently happens, however, that the grantor, in the same instrument creating the lesser estate, conveys the residue or remainder to some third person or persons. Thus, using the same example, the owner in fee may grant an estate to A for life, and after the termination of the life estate to B for twenty years, and after the termination of B's estate to C, in fee. In this instance the grantor has conveyed his entire in- terest in the property. The fee is now split into three parts, viz., a life interest in A, an estate for years in B, and the resi- due or remainder in C. On the termination of the life estate and estate for years, nothing reverts to the grantor, but the estate goes to C. Be- fore the termination of the prior estates C's interest in the property is known as a remainder. Blackstone's definition of a reversion is as follows: A EEVEBSION IS THE BESIDtTE, OR BEMNANT OE AN ESTAIE, LEET IN THE GRANTOR, OR HIS HEIRS, TO COM- MENCE IN POSSESSION AFTER THE TERMINATION OE THE ESTATE OR ESTATES GRANTED.* It is not essential that the grantor should be seised of an estate in fee simple; a reversion arises wherever one having an estate conveys a less estate. Thus, one owning an estate for twenty years if he conveys an estate for ten years would be- come the owner of a reversion. It is essential, however, that the grantor has the right to alienate or create the estate granted. A reversion sometimes arises in cases in which no actual grant has been made. For instance, in the States in which the husband after birth of issue is entitled to an estate in his wife's property for his life, the right of the wife after birth of issue in her own property, during the life of her husband, is «2 Bl. Com., 175. TIME OF ENJOYMENT OP ESTATES. 305 merely a reversion, and on his death the property reverts to her or her heirs." So, where property has been set apart to a widow as dower, the interest of the persons entitled to it after the term- ination of her estate is a reversion. It would seem that the definition of Blackstone would not cover this kind of a reversion, unless the act of the law in creating the estate of husband or dower could be considered as a grant of the owner. We suggest the following definition: A REVEESION IS THE RESIDUE OR REMNANT OF AN ES- TATE LEFT IN THE OWNER, AFTER AN ESTATE OR ESTATES LESS THAN THE WHOLE HAVE BEEN CARVED OUT OF IT EITHER BY GRANT OR BY OPERATION OF LAW. The interest of the reversioner is vested and he may alien- ate or devise it, the same as any other interest in real property. On the death of the owner of a reversion intestate, his interest descends to his heirs. At the common law this interest descended to the heirs of the owner, existing at the time of the termination of the prior estate. That is, if the grantor died before the termination of the estate granted, the reversion descended finally to the per- sons who were his heirs at the time of termination of the granted estate, and not to his heirs at the time of his death. This common law rule has been changed by statute in many States, so that the reversion descends to those who are the heirs of the owner at the time of his death.' If the reversion and the estate conveyed meet in the same person, the lesser estate merges in the greater. •Bates vs. Shraeder, 13 Johns. (N. Y.), 260. "Cook vs. Hammond, 4 Mason, 467. Kellett vs. Shepard, 139 III., 433. 2t 306 TIME OF ENJOYMENT OF ESTATES, RIGHTS OF REVERSIONER. The rights of a reversioner are the same as those of a re- mainderman, with this exception, that in case of a reversion, the owner of the estate granted, is, to a certain extent, regarded as holding under the reversioner; but, in case of a remainder, the remainderman and owner of the particular estate derive their title from the same grantor, and one has no greater right to be lord than the other.' Rent is sometimes an incident of an estate by reversion; and where rent is reserved the right to receive rent from the owner of the estate granted passes with the grant of the rever- sion, unless expressly excepted.* If the owner of the estate granted conveys his interest to the reversioner, the particular estate granted would become extinct by merging in the fee.® It sometimes happens that while a fee is granted, yet there is attached a condition subsequent, or a conditional limitation by which it may be defeated and revert to the grantor. In case of a grant of this kind, there is always a possibility that the property by breach of condition may return to the grantor, but such a possibility is not a reversion; it is a mere possibility of reversion or reverter. A POSSIBILITY or REVEKTER IS THAT SPECIES OF A RE- VERSIONARY INTEREST REMAINING IN A GRANTOR, AFTER A GRANT OF HIS ENTIRE INTEREST, WHEN THE 3RANT IS SO LIMITED THAT IT MAY POSSIBLY TERMIN- ATE. It can hardly be said that a possibility of reverter is an interest in real property; it is usually regarded as a mere naked possibility.^" 'Williams on Real Property, 250. •Burden vs. Thayer. 3 Met., 76. •1 Wash. Real Property, fiS. "Vail vs. L. I. R. R. Co., 106 N. Y., 283; Bass vs. Roanoke Nav. Co.. Ill N. C, 43S; 19 L. R. A., 247. TIME OF ENJOYMENT OF ESTATES. 307 Thus, it has been held that it is not a possibility connected with an interest in real property, and that it therefore cannot be conveyed or assigned to another." So, it has been held that a possibility of reverter is not sufficient to support an action for injury to the property.^^ In other States, however, it has been held that a possibility of reverter may be assigned or transferred.^* REMAINDERS. A REMAINDER IS A BEBINANT OF AN ESTATE IN LAND, DEPENDENT tTPON A PARTICULAR PRIOR ESTATE, CREATED AT THE SAME TIME, AND BY THE SAME INSTRUMENT, AND LIMITED TO ARISE IMMEDIATELY ON THE DETERMINATION OE THAT ESTATE, AND NOT IN ABRIDGMENT OE IT. An analysis of this definition gives us the following propo- sitions. 1. A REMAINDER IS THE REMNANT OE AN ESTATE. As indicated by the term, a remainder is what remains of a greater estate after subtracting the prior estate or estates. In this regard it is similar to a reversion. 2. A REMAINDER IS DEPENDENT T7F0N A PRIOR PAR- TICCTLAR ESTATE. A remainder is an expectant estate. It does not entitle the owner to the present enjoyment or possession of property. It is only when there is a prior estate that a remainder may exist; for, on the termination of the prior estate, the remainder merges into an estate in possession. The prior estate is usually called the "particular estate" or "the prior particular estate." There may be a number of prior "Nlcoll vs. N. T. & Erie K. R. Co., 12 N. Y., 121. Cook vs. Bisbee, 27 N. J. L., 20. "Hopper vs, Barnes, 113 Cal., 636. "Slegel vs. Lauer, 148 Pa. St, 236. 308 TIME OF ENJOYMENT OF ESTATES. particular estates. In the instance given of a grant to A for life and to B for twenty years and afterward to C in fee, as to C the estate of A and B are particular estates, as to B, A's estate is a particular estate, and C's own estate is a remainder. Bul^ if the grant be made to A to commence some time in the future, a remainder would not arise; for it would not be supported by a prior estate. A's interest, imder such circumstances, is known as a future interest. When the remainder is vested, the prior particular estate may be an estate for years; but if the remainder is a contingent freehold, it must be supported by a freehold estate. The reason of the rule requiring a particular estate to sup- port a remainder grows out of the common law doctrine, that a freehold estate cannot be created to commence in the future.^' By statute in some States, a freehold may now be created without any prior estate.^' '"The rule is stated by Blackstone as follows: * » * "For It is an ancient rule of the common law, that an estate of freehold cannot be created to commence In future; but it ought to take effect presently, either in possession or remainder; because at common law no freehold In lands could pass without livery of seisin; which must operate either Immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence until hereafter, could be granted by a conveyance which imparts an immediate possession. • • • "So that, when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred until a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate posses- sion of the land to the tenant of this particular estate, which is con- strued to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. * * • The whole estate passes at once from the grantor to the grantees, and the remainderman is seised of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in praesenti, though to be occupied and enjoyed in future." "A freehold may now, by statute. In the following States, be created to commence in futuro without any preceding estate, viz.: Arizona, Arkansas, California, Dakota. Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Minnesota, Nebraska, New York, Texas, West Virginia, Virginia, Vermont, Wisconsin. TIME OF ENJOYMENT OP ESTATES. 309 3. A EEMADTDEE IS CHEATED BY A GKANT AND AT THE SAME TIME AS THE PBIOB FABTICULAB ESTATE. A reversion may arise by operation of law; but a remainder arises only from a grant or purchase, and not by operation of law or descent. If the grantor at time of granting the lesser estate makes no conveyance of the residue, he is still seised, and it is only when the residue is expressly conveyed to another that a remainder can arise. The conveyance of the residue to another must be at the same time as the creation of the prior estate; for, as stated, if not conveyed, a reversion arises and a conveyance of the re- version at a subsequent time vests in the grantee a reversion, and not a remainder. So, where a grantor conveys a fee to another, reserving to himself a life interest, the life estate re- served which might be a prior particular estate, is not created at the same time as the estate granted, and therefore a re- mainder does not arise.^' 4. THE REMAINDEB MUST VEST IN THE OBANTEE, EITHEE DimiNG THE CONTINUANCE OF THE PBIOB PAB- TICULAB ESTATE, OB, IMMEDIATELY ON ITS DETEBMINA- TION. Under the feudal system, it was necessary that there should be at all times a tenant, in order that the services due the lord might be performed. Out of that system grew the rule that the freehold should vest in some one, or, as often expressed, the freehold must not be in abeyance. If the re- mainder does not vest on the termination of the particular estate, there would be a lapse, and the title would be in abey- ence.^' « "The Interest of grantee under circumstances stated In the text was held in Michigan to be a vested remainder. Hltchcocls vs. Simi^- kins, 99 Mich., 198. "See post. Contingent Remainders, page 319. 310 TIME OF EJNJOYMENT OF ESTATES. 5- THE BEMArWDER MUST NOT BE IN ABBIDGBEENT OF THE PARTICULAB ESTATE. The remainder must not cut short the particular estate. It is only when the future interest is to commence on the natural determination of a prior estate that a remainder arises. Thus, if the prior estate is one for the life of A, it will naturally, by the limitation contained in the grant creating it, expire on the death of A; but, if an estate be granted to A for life, on condition that if he marry again his interest shall de- termine and the land pass to B, here the interest of B is limited to commence, independent of the extent of the particular estate and to take effect in possession, if at all, before the regular de- termination of the life estate, and, to that extent, abridge it. This rule is changed by statute in some States, so that a re- mainder may be limited on a contingency which, if it hap- pens, will operate to abridge or determine the precedent estate." KINDS OF REMAINDERS. Bemainders are of two kinds; vested and contingent. Before defining these terms, it may be well to inquire into the meaning of the terms "vested" and "contingent," as used in connection with interests in real property. If the owner of an estate is entitled by virtue of his owner- ship to the immediate enjoyment of the property, he is said to be vested in possession. In such an instance, the title and pos- session are in the owner. If the owner of the estate has a fixed and certain right to enjoy the property at some future time, but not at present, he has what is known as a vested interest in the property; bnt he is not vested in possession. In this instance the title, but not the possession, is in the owner of the future estate. "See Michigan, Wisconsin and Indiana statutes. TIME OF ENJOYMENT OF ESTATES. 311 In both the instances it will be noticed that the estate is vested in interest, bnt in the former case there is a right of pos- session, while in the latter there is not. When the vested estate entitles the owner to possession, it is said to be executed; when the possession of the owner of the vested estate is deferred to a future time, the estate is said to be executory. There are other instances in which, while there is no present interest in the property, there is a possibility that, under cer- tain contingencies, a person in being, or to come into being, may become vested with an interest. This possibility of owner- ship, while it may be called a right, is not a vested interest in property, although it may some day develop into a vested in- terest. "We may now attempt a definition of vested and con- tingent estates. A VESTED ESTATE TS A p-RTlREISTT ETXED IWTEREST IN BEAL PBOPERTT WHICH ENTITLES THE OWNER TO ITS PBESENT OB FUTITBE POSSESSION. A CONTINGENT ESTATE IS ONE WHICH CONEEBS NO PBESENT INTEBEST IN PBOPEBTT, BUT IS A MEBE BIGHT WHICH MAT DEVELOP INTO A VESTED INTEBEST UPON THE HAPPENING OF THE CONTINGENCY UPON WHICH IT IS LIMITED. A remainder being an expectant estate, is never vested in possession, but it may or may not be vested in interest. A BEMAINDEB IS VESTED WHEN THE PABTICULAB ES- TATE IS LIMITED TO TERMINATE ON THE HAPPENING OP AN EVENT WHICH MUST HAPPEN AT SOME TIME, AND WHICH MIGHT HAPPEN BEFOBE THE EXPIBATION OF THE BEMAINDEB, AND WHEN BEFOBE THE EXPIBATION OF THE PABTICULAB ESTATE THEBE IS A PEBSON IN BEING AND 312 TIME OF ENJOYMENT OF ESTATBS. ASCEETAINED WHO WOTTLD BE ENTITLED TO POSSESSION ON ITS PKESENT DETEBMINATION."' Thus, if an estate be granted to A for life and remainder to B in fee, here A's life estate must certainly terminate, and during the continuance of A's estate there is a fixed person to whom the property will go on his death. In order that the remainder may be vested, there must be certain essential characteristics as to remaindermen and as to the particular estate. As to remainderman, we may state the following proposi- tions: 1. IN OBDEB THAT THE KEMAINDEB MAY BE VESTED, A REMAINDERMAN CAPABLE OP TAKING MUST BE LIVING, OB, IN CASE IT IS LIMITED TO A CLASS OF PERSONS, ONE OF THE CLASS ANSWERING THE DESCRIPTION IN THE GRANT MUST BE IN EXISTENCE. 2. THE PERSON OR PERSONS ENTITLED TO THE RE- MAINDER IF LIVING MUST, AT THE COMMON LAW, BE AS- CERTAINED DURING THE CONTINUANCE OF THE PARTICU- LAR ESTATE. The application of these principles is found in the follow- ing decisions: If an estate in remainder be limited to the un- born children of A, it is contingent until A has a child ; for he may never have any children. If an estate be limited in remainder to the children of A living at his death, until the death of A, it is impossible to say which of his children shall survive him, and the remainder is eontingenf* In such case the surviving children of A are not "^"A vested remainder In land Is a fixed Interest in one person to take effect in possession after a preceding estate of another person ^herein Is determined." I'aul vs. Frierson, 21 Fla.. 529. See McArtliur vs. Scott, 113 U. S., 340. "Chlleott vs. Hart, 2.S Colo.. 40; 35 L. R. A., 41. Smith vs. West, 103 111., 338. Corey vs. Springer, 138 Ind., 506. TIME OF ENJOYMENT OF ESTATES. 313 ascertained until his death, and during A's life the children do not answer the description required in the grant or devise.^* In the case of a grant to a class, some one of the class must be in existence before the estate may vest. Thus, in a grant to A for life and remainder to his children, on the birth of A's first ckild, the remainder would vest in the child.'"' In this case the remainder is vested, but it is not an absolute estate; for it is liable to open and let in the children subsequently born.^* But if the limitation be to A for his life and remainder to his heirs, in this instance A's heirs would not be ascertained until his death, and, by the weight of authority, the remainder would be contingent, unless the word "heirs" could be con- strued as meaning children.^'' "Emison vs. Whittlesey, 55 Mo., 258. Darnell vs. Barton, 75 Ga., 377. OIney ts. Hull, 21 Pick., 311. Simeon Jones died, leaving a wife and six sons. His will contained the following clause: "I give to my wife, as long as she remains my widow, the improvement of all my lands and buildings. • * • Should my wife marry or die, the land shall be equally divided among my surviving sons." Before death of the wife, five of the sons died, and the surviving son claimed the entire property. The plaintiff claimed to own a share in the property as a widow of one of the deceased sons who died before his mother. The case turned on whether the deceased son was the owner of a vested or contingent remainder. If he were the owner of a vested remainder, his interest would descend to demandant, and this action could be maintained. The court held that the term "surviving sons" meant the sons sur- viving the mother; that until her death it was uncertain who would be alive to take, and therefore no estate vested until that event happened; and that, as only one son survived her, the whole estate on her death vested In him. Demandant non-suited. "Mercantile Bank vs. Ballard, 83 Ky., 481. Watson vs. Conrad, 38 W. Va., 536. Amos vs. Amos, 117 Ind., 19. "Byrnes vs. Stllwell, 103 N. Y., 453. Dole vs. Keyes, 143 Mass., 237. 314 TIME OF ENJOYMENT OF ESTATES. The remainderman must be ascertained and his right must be fixed before the expiration of the particular estate; for, at the common law, if the right became fixed and the remainder- man ascertained only at the time of the expiration of the par- ticular estate, the remainder was contingent.^* Thus, if an estate be granted to A for her life, and at the time of her death, to her children who surrive her, the re- mainderman would not be ascertained until the time of A's death, and not during the existence of the particular estate, and the remainder, by weight of authority, would be oontin- gent''' "Campbell ts. Mason, 151 111., 500. Preston vs. Brant, 96 Mo., 552. Larmour vs. Rich, 18 A., 702. See Clarkson vs. Clarkson, 28 S. W., 446. "Colby vs. Duncan, 139 Mass., 398. Williams on Real Property, 257. "Chapin vs. Crew, 147 111., 219. Clillcott vs. Hart, 23 Gal., 40. Ebey vs. Adams, 135 111., 80; 10 L. R. A., 162. But see Kansas City Land Co. vs. Hill, 87 Teun., 589; 6 L.R.A.,45. 'Wtaiteslde vs. Cooper, 115 It. C, 570. A testator left property to his wife for life, and his will provided as follows: "At the death of my wife, the said plantation, with all its rights and interest, I bequeath and devise to our seven sons, • • * or such of them as may be living at their mother's death, and to their heirs, share and share alilje." The court held that the remainder in the sons was contingent, and stated the reason for such ruling as follows: "Fully appreciating, as we do, the public policy which induces the court to favor the early vesting of estates, we are, nevertheless of the opinion that it would be doing violence to the most liberal rules of construction were we to say that it was the intention of the devisor that the estates limited to his said sons should vest before the death of his widow, the life tenant. On the contrary, it was his evident purpose that the entire remainder should be disposed of absolutely at a definite time, and that he did not intend that the remainder, as to any part of the property, should become vested while the remainder in the residue was dependent upon a contingency. • • • Under the construction we have put upon the will, there can be no question that the limitations to the sons were contingent remainders, the contingency being that they should survive their mother." Decision of lower court in favor of plaintiff. Affirmed. TIME OF ENJOYMENT OF ESTATES. 315 In many of the States the common law rule has been changed by statute to this extent, that a remainder will be regarded as vested when there is a person in being who takes, the instant the particular estate expires. Thus, in Michigan, the statute provides as follows: "Future estates are either vested or contingent; they are vested when there is a person in being who would have an im- mediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate; they are contingent whilst the person to whom, or the event upon which, they are limited to take effect, remains uncertain.'"" There are similar provisions in New York, Wisconsin, Min- nesota, California, Dakota, Georgia and Idaho. Under these statutes it has been held that when the re- maindermen are not determined during the continuance of the particular estate, but are determined the instant it expires, tbeir estate would be vested. That is, in case of a grant to A for life, and, at her death, a remainder in fee to her children who shall then survive would not be contingent but vested in her children during the life of A, subject to be defeated if they did not survive her.*^ As to the characteristics of the particular estate support- ing a vested remainder, we state the following essentials: 1. THE PAETICTTLAIl ESTATE MUST BE LIMITED TO DE- TEBMINE ON THE HAPPENING OP AN EVENT SITBE TO HAP- PEN." "Howell's Statutes, See. 5529. »H>oxall vs. Shererd, 5 Wall. (U. S.), 288. Wilson vs. White, 109 N. Y., 59. L'Etourneau vs. Henqnenet, 89 Micb., 428. Hovey vs. Nellis, 98 Mich., 374. McArthur vs. Scott, 113 U. S., 340. Kumpe vs. Coons, 63 Ala., 448. "Farnam vs. Famam, 53 Conn., 261. 316 TIME OF ENJOYMENT OF ESTATES. 3. THIS EVENT, STTEE TO HAPPEN, MTTST BE ONE WHICH MAY HAPPEN BEPORB THE EXPIRATION OE THE REMAIN- DEB. These essentials are illustrated in the following statements: If an estate be granted A until a certain village be incor- porated, remainder to B, in fee, here the village may never be incorporated and B has but a contingent interest.'^ It is the uncertainty as to the termination of the particular estate that is the test. If that estate is certain to determine, the fact that the enjoyment or possession of the remainderman is uncertain will not make his estate contingent. In other words, it is the uncertainty of the right to the estate that ren- ders it contingent, and not the uncertainty of enjoyment by a designated remainderman.'* TTius, if an estate be granted to A for life, with a remainder to B for life, B will take a vested remainder, and the fact that B may die before A and never have possession, will not make his estate contingent. The fact that the remainderman may die before the expiration of a life estate, on which his estate is limited, will not defeat his remainder.'^ If the essentials stated as to the persons and the particu- lar estate exist, that is, if the persons are living and are ascer- tained, and if the estate is limited on an event which is sure to happen and which may happen before the termination of the remainder, then in the person so ascertained there is a present right to the future enjoyment of the estate." "In this Instance, the remainder to B might be held void a^ being too remote. Leonard vs. Barr, 18 N. Y., 96. "Wiggln vs. Perkins, 64 N. H., 36. Wood vs. Robertson, 113 Ind., 323. Corey vs. Springer, 138 Ind., 506. "Saxton vs. Webber, 83 Wis., 617; 20 L. R. A., 509. "Green vs. Hewitt, 97 111., 113. A testator devises to his wife land to be held by her "as long as she remains my widow; at the expiration of that time the whole, or TIME OF ENJOYMENT OF ESTATES. 317 By the application of the rules stated, the student, it is be- lieved, may determine whether or not there is in any given case a present right to enjoy the future estate; and he may be able to apply the test so often found in the books, viz.: THE PRESENT CAPACITY OF TAKING EEEECT IN POSSES- SION, IP TEE POSSESSION WERE TO BECOME VACANT, OR, AS SOMETIMES STATED, THE PRESENT RIGHT OP FTJTTJRB POSSESSION WHENEVER THE POSSESSION BECOMES VA- CANT, DISTINGUISHES A VESTED PROM A CONTINGENT RE- MAaNDER." The student will remember that in a few States this test is not applicable; for under statutory provisions, a remainder will be regarded as vested, even though there is no present fixed right to enjoy the property, provided that there is a possi- bility of a right which will become fixed the instant the pre- ceding estate determines. In conclusion on the question as to whether a remainder is vested or contingent, it may be said that the entire subject is extremely technical and arbitrary. whatever remains, to descend to my daughter Mary Thompson." The daughter married and had one child and died before her mother. The mother afterwards died, and this suit was brought by one of her sisters as an heir, to procure a partition of the property, claiming that the Interest of Mary Thompson was contingent, and that it did not vest, inasmuch as she died before her mother. The court held that the remainder was vested and that it descended to the daughter's heirs. "The estate of the daughter had not a siogle element in it that distinguishes a contingent from a vested remainder. There was certainly no uncertainty as to the person who was to take; it was Mary Thompson, the daughter, clearly. And the time of her taking In possession was equally certain, namely, when Elizabeth Thompson ceased to be the widow of the testator, whether It was effected by death or a second marriage." "Schuyler vs. Hanna, 28 Neb., 601; 11 L. R. A., 321. Scofield vs. Olcott, 120 111., .362. Mercantile Bank of N. T. vs. Ballard, 83 N. Y., 481. Scofield vs. Olcott, 120 111.. 362. Kennard vs. Kennard. 63 N. H., 303. See Smith vs. West, 103 111., 332. For a discussion of the common law and statutory Tule, see Gray on Perpetuities, Sec. 107. 318 TIME OP ENJOYMENT OF ESTATES. The common law rules grow out of the feudal system, and out of a condition of affairs which does not exist in this coun- try. Yet the common law doctrines are applicable to convey- ances of the present day, except in those States in which they have been modified or abrogated by statute. Not only are the rules arbitrary and technical, but their application is often very difficult. This is true, particularly in cases of devises, for it is often diflBcult to determine whether the testator intended the remainder to vest immediately on his death or at some future time.*' The intent of the testator mast be gathered from the terms of his will,*" and sometimes differ- ent courts have interpreted very similar devises in different ways. But in those instances in which it is doubtful whether the testator intended to vest a present interest at the time of his death, or whether he intended that the interest should not vest waHnnlns vs. Batdorff, 5 Pa. St., 503. A testator devised land to his wife for life, with a remainder to his daughter, Elizabeth, for life, and "When my said daughter depai-t this her Natural life, the children which are come or born of her body shall hold and possess my said land. I do give and bequeath my land (at the time of my said daughter's decease) to the children which .-ire come and bom of and from her body." Jacob Ditzler, a son of said Elizabeth, conveyed his interest in the property to plaintiffs ancestor. Jacob died in 1836, and his mother died in 1841, leaving five children. Plaintiff commenced this suit to recover Jacob's Interest in the property, and obtained a judgment In the lower court for one-sixth of the land. The right of Jacob to convey depended on whether his interest under the will was vested or con- tingent. The court held that it was the intent of the testator that all the children of said Elizabeth, or their heirs, should have an interest In the property, and not only those who were living at her death; that the remainder was intended to vest on the death of the testator, and not on the death of Elizabeth; that Jacob Ditzler, eldest son of Elizabeth, took a vested remainder in fee immediately on the death of the testa- tor, which opening to let in his brothers and sisters, subsequently born, left in him ultimately one-sixth part of the land in fee, expectant on the death of his mother, which passed to plaintiff's ancestor by his conveyance. Judgment of the lower court affirmed. "Bailey vs. Sanger, 108 Ind., 264. Palms vs. Palms, 68 Mich., 355- TIME OP ENJOYMENT OF ESTATES. 319 until the happening of some event, or at some future time, the doubt will be resolved in favor of the former; for the reason that the law favors the vesting of estates at the earliest prac- ticable moment.*^ As expressed by some courts, a remainder will never be held contingent where it can be held vested in harmony with the intention of the testator.*^ A VESTED BEMAINDEB BEING A FBESENT INTEREST IN PROPERTY, MAY BE TRANSEERRED, OR IT MAY BE CARVED INTO LESSER ESTATES, AND, ON DEATH OF THE OWNER, IN- TESTATE, IT DESCENDS TO HIS HEIRS. CONTINGENT REMAINDERS. A CONTINGENT REMAINDER IS ONE WHICH IS LIMITED EITHER TO A DUBIOUS AND UNCERTAIN PERSON, OR UPON A DUBIOUS AND UNCERTAIN EVENT." «Blgley vs. Watson, 98 Tenn., 353; 38 L, R. A., 679. Neilson vs. Bishop, 45 N. J. Eq., 473. The law favors the vesting of estates, and when there is a doubt as to the time when the estate should vest, the earliest will be tal^en. Scott vs. West. 63 Wis., 529. "Sager vs. Galloway, 113 Pa. St., 500. "Davidson vs. Bates, 111 Ind., 391. Bunting vs. Speek, 41 Kane., 424; 3 L. R. A., 690. "2 Blaclsstone, 168. Feame divides contingent- remainders into four classes, viz.: 1. Where the remainder depends entirely upon a contingent de- termination of the preceding estate itself; as if A makes a feoffment to the use of B till O returns from Rome, and after such return of C, then to D and his heirs. 2. Where the contingency on which the remainder is to take effect, is Independent of the determination of the preceding estate; as If a lease be made to A for life, remainder fx> B for life, but if B dies before A, remainder to C, for life. 3. Where the remainder is limited to take effect on an event which, though sure to happen some time or other, yet may not hap- pen till after the determlnaflon of the particular estate; as if a lease be made to J. S. for life, and after the death of J. D. the lands to remain over to another in fee. 4. Where a remainder is limited to a person not in being, or not ascertained at the time when such limitation is made; as if a lease be made to one for life, remainder to the right heirs of J. S. who is living, or to the first son of B, who has no son then born; or If an estate be limited to two for life, remainder to the survivor in fee. Feame on Ciontingent Remainders, 5. 320 TIME OP ENJOYMENT OF ESTATES. Whether a remainder is vested or contingent depends upon the characteristics of the particular estate, and the persons to whom the estate is limited. The essentials of a contiujjenl remainder are the converse of those of a vested remainder. As to the persons to whom a contingent remainder is lim- ited, we may state the following proposition: WHEN THE PEBSON OB PEBSONS TO WHOM THE BEMAIN- DEE IS LIMITED ABB NOT IN ESSE, OB, IF IN ESSE, UNAS- CEBTAINED, IT IS CONTINGENT." The essentials as to the particular estate may be stated as follows : IP THE BEMAINDERMAN IS IN ESSE AND ASCERTAINED, BTTT THE EVENT UPON WHICH THE ESTATE IS LIMITED, MAY NEVEB HAPPEN, OR, MAY NOT HAPPEN UNTIL AFTER THE DETEBMINATION OP THE PABTICULAE ESTATE, THE REMAINDEB IS CONTINGENT." The following is an illustration of a contingency which must happen, but which may not happen before the determina- tion of the particular estate. If an estate be granted to A for life, and, after the death of B, to C in fee, here C, on the death of A, would not be entitled to possession, unless B were dead at the death of A. In other words, at the death of A, unless B were dead, the remainder "Sager vs. Gallowav, 113 Pa., 500. "It is the uncertainty of the right of enjoyment which renders a remainder contingent, and not the uncertainty of its actual enjoyment Lehndorf vs. Cope, 122 111., 317. Stnrnes vs. Hill. 112 N. C. t; 32 L. R. A., 598. Land was granted to a trustee to hold for the use and benefit of a married woman during her natural life, and the grant provided that if the woman's husband outlived her, the trustee should hold the land for his benefit during the term of his natural life. The question arose as to the nature of the husband's interest It was contended by plaintiff that inasmuch as the husband's estate was limited on the death of his wife, an event which must happen, and the husband being in esse, he took a vested remainder. The court points out the fallacy of this reasoning, in that it fails to take into consideration the fact that the remainder was contingent upon a dubious event, viz., the uncertainty of the husband surviving the wife. The remainder was held to be contingent. TIME OF ENJOYMENT OF ESTATES. 321 would not vest as required by the rule that the remainder must vest either during the continuance of the particular estate, or the instant it terminates.*' AT THE COMMOM" LAW A COWTIITGENT REMAINDER OF FREEHOLD MUST BE SUPPORTED BY A FREEHOLD ESTATE. This rule grows out of the doctrine that the freehold shall not be in abeyance. A freehold remainder could not exist, unless the freehold passed out of the grantor at the time of the grant creating the particular estate and the remainder. It was necessary that the freehold should vest in someone. A freehold estate could not vest in the owner of an estate for years, or in the owner of any estate less than a freehold; for such owner had only a chattel interest; neither could it vest in the remainderman until the happening of the contingency, and it could vest only in the owner of a freehold estate. In the case of a vested remainder it could be supported by an estate for years; for an estate for years being only a chattel interest, the remaindennan was deemed to be seised of his estate. But where the estate for years, determinable on death of tenant, was for so long a term that in the ordinary course of nature the tenant would die before its termination, it was held to be such an interest as was capable of supporting a contingent remainder. This rule as to contingent remainders has been changed by -tatute in a number of States, so that a contingent remainder may be limited on an estate for years.*' If the remainder is one for years it may in some instances be supported by an estate for years; but estates at will, or at "For further illustration cf the application of these rules, see Eraison vs. Whittlesey. 55 Mo., 258. Farnam vs. Farnara, 53 Conn., 201. "This Is the rule in New York, Michigan, Minnesota and Wiscon- sin. 322 TIME OF ENJOYMENT OF ESTATES. sufferance, are not sufficient by reason of tkeir uncertain dura- tion to support a remainder. AT THE COMMON LAW A CONTIITGEITT REMAINDER WAS DEFEATED BY THE DESTRUCTION OB EXPIRATION OE THE PARTICtJLAR ESTATE BEEORE THE REMAINDER VELIED. If, for any reason, the remainder does not vest the instant the particular estate terminates, the title is in abeyance, and the remainder is defeated. Thus, where the estate supporting the remainder was upon a condition which was broken before the remainder became rested, and the particular estate was thereby defeated, the con- tingent estate was also thereby defeated. At the common law, if the tenant of the particular estate terminated it by his own act, as by forfeiture, surrender or merger, it would defeat the remainder. Thus, it was possible for the particular tenant to convey his estate to the owner of the inheritance, and by merger thereby defeat the intervening remainders. In many of the States the statutes provide that no expect- ant 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 disseisin, for- feiture, surrender, merger or otherwise.'" In some States the statutes provide that no remainder, valid at its creation, shall be defeated by the determination of the precedent estate before the happening of the contingency upon which the estate is limited; but should such a contingency afterwards happen, the remainder shall take effect in the same "See California, Dakota, Massachusetts. New York, Michigan, Wisconsin, Minnesota, Virginia, West Virginia, South Carolina and Mississippi statutes. TIME OF ENJOYMENT OF ESTATES. 323 manner and to the same extent as if the precedent estate had continued to the same period."" AT THE COMMON LAW A CONTITIGEBrT REMAHTDER COULD NOT BE LIMITED TO TAKE EFFECT ON THE BREACH OF THE CONDITION OF A FEE ON CONDITION SUBSEQUENT. In other words, the contingency on which the estate is lim- ited must not operate to abridge or defeat the particular estate. This is merely a re-statement of the rule that the re- mainder must take effect in possession only on the natural expiration or the determination of the particular estate.'^ The condition attached to the fee could only be taken ad- vantage of by the grantor or his heirs, its breach could be of no benefit to the remainderman, and once the grantor entered for the breach, the property reverted to him, and all remainders were defeated. When the grant is made of a fee on condition, after deduct- ing the particular estate, nothing remains in the grantor ex- cept a possibility of reverter, and there is nothing which the grantor can limit over to another in the way of a remainder. "See New York, Michigan, Wisconsin, Minnesota, California, Da- kota, Idatio, Virginia, West Virginia, ICentucky and Georgia. "Outland vs. Bowen, 115 Ind., 150. Joseph Bowen, Sr., granted to his daughter certain land. After an absolute grant the deed contained this clause: "The condition of the above deed is such that if the said Rebecca Bowen should die, leav- ing no child or children, the above described land or its proceeds Is to fall back to the lawful heirs of Joseph Bowen, Sr. After the making of this deed, Rebecca married, and died without leaving a surviving child. This action was brought by the heirs of Joseph Bowen, Sr., against the heirs of Rebecca Bowen to determine the ownership of the land. The heirs of Joseph Bowen claimed that during the life of Rebecca Bowen they had a valid remainder, and that on her death they be- came entitled to the possession of the property. The court held that the entire estate was granted to Rebecca In fee, determinable in the event of her death without children; that the estate in the grantee being in fee, there was no estate in the grantor out of which he could create a remainder, since a remainder can only be created out of the estate loft in the grantor after the creation of the particular estate; and that the rule that a remainder cannot be limited after a fee, was applicable to the facts in this case. 324 TIME OF ENJOYMENT OP ESTATES. But if the grant is not in fee and is on a conditional limita- tion, and the estate is to endure until the happening of a cer- tain and fixed event, on the happening of the event the estate expires by its natural limitation, without any entry. In case of a grant of a fee upon condition subsequent, the breach cuts short a greater estate. It is possible, therefore, to limit a re- mainder upon a conditional limitation of an estate less than a fee. Thus, a grant to a woman "as long as she remains my widow" will support a remainder.^^ In some States, the stat- utes provide that a remainder may be limited on a contingency which, in case it should happen, will operate to abridge or de- termine the precedent estate; and that such a remainder shall be construed a conditional limitation, and shall have the same effect as a limitation at law."' AT THE COMMON LAW, THE CONTIITGENCY TTPON WHICH THE ESTATE WAS LIMITED, MUST HAVE BEEN LEGAL AND NOT TOO REMOTE. This principle is illustrated by Blackstone as follows: "A remainder to a man's eldest son who hath none is good, for by common possibility he may have one; but if it be limited in particular to his son John or Richard, it is bad, if he have no son of that name; for it is too remote a possibility that he should not only have a son, but a son of a particular name. A limitation of a remainder to a bastard before it is born is not good.""* "This principle is Illustrated as follows in the case of Brattle Sq. Church vs. Grant, 3 Gray, 142: "So a gift to A until O returns from Rome, and then to B in fee, constitutes a valid remainder, because the particular estate not being in fee, is made to determine upon a fixed and definite event, upon the happening of which it comes to its natural termination. But if a gift to A and his heirs till C return from Rome, then to B In fee, the limitation over is not good as a re- mainder, because the precedent estate, being an estate in fee, is abridged and brought to an abrupt termination by the gift over on the prescribed contingency. "See Michigan, Wisconsin and Indiana Statutes. "2 Blackstone Com., 170. TIME OF ENJOYMENT OF ESTATES. 325 It is difficult to state any rule by which it may be determ- ined in all cases and in all States when the possibility on which a remainder is limited is too remote. The rule as sug- gested by the example given in Blackstone, that there cannot be a possibility limited upon a possibility, has been practically discarded by all the courts^ except that an estate cannot be limited to the unborn child of an unborn person, when the latter is to take the preceding estate.'" We shall afterwards see that a limitation has been placed on the right of a grantor or a devisor to suspend the right of his grantees or devisees to alienate the land, and that the limita- tions attached to the grant or devise are void, unless they take effect (in most States) within lives in being at time of the cre- ation, and twenty-one years thereafter. This limitation is known as the Rule against Perpetuities. Many of the courts have made this rule applicable to contingent remainders, and if the remainder is limited in such a way that it may not vest within the limit stated, or within the statutory limit, it will be void for remoteness."' In some States gifts to charities are exempted from rule as to perpetuities. In some States the statutes provide that no remainder shall be created on a life estate of any other person or persons than the grantee or devisee of such estate, unless such remainder be in fee; nor shall any remainder be created upon an estate for years, unless it be for the whole residue of the term. In some States the statutes provide that no future estate otherwise valid, will be void on the ground of the probability "Jackson vs. Brown, 13 Wend,, 442. Chilcott vs. Hart, 23 Col., 40; 35 L. R. A., 41. Gray on Perpetuities, Sec. 205. "Defreese vs. Lake, 109 Mich., 415; 32 L. R. A., 744. First Unlversalist Sec. vs. Boland, 155 Mass., 171, 16 U R. A,. 231. 326 TIME OF ENJOYMENT OF ESTATES. or improbability of the contingency on which it is limited to take effect." In a few States the statutes provide that successive estates for life shall not be limited, except to persons in being at the creation thereof, and that when a remainder shall be limited on more than two successive life estates, all life estates subse- quent to the first two 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 limited.^* ALTERNATE REMAINDERS. It sometimes happens that after limiting a remainder on a contingency to certain persons, the grantor or devisor provides that if the contingency does not happen, the remainder shall go to some other person or persons.'^^ Thus, an estate may be given to A for life, and if he have any issue living at his death then to such issue in fee; but if he die without issue, tten to B in fee.'" In this instance it wUl be noticed that both remainders are contingent, and that one only can take effect. The moment the first remainder vests, the second is de- feated. Such a remainder is known as a fee with a double aspect, or as an alternate remainder. ' AT THE COMMON LAW A CONTIBTGENT REMAINDER WAS NOT REGARDED AS AN ESTATE, AND WAS INALIENABLE. At the common law a contingent remainder was not re- garded as an interest in real property; but merely as a possi- bility of an interest at some future time. While this possi- "See Michigan, Minnesota, Wisconsin, New Yorli and Indiana statutes. "See Michigan, New Yorli, Wisconsin, Minnesota, California, Da- kota and Idaho. "Pennington vs. Pennington, 70 Md., 418; 3 I*. R. A., 816. "Wlllard on Real Estate, 169. TIME OF ENJOYMENT OF ESTATES. 327 bility was inalienable, yet it might be released to the owner in possession of an interest in the property."^ Neither at common law could a contingent remainder be devised. In many of the States the statutes provide that a contingent remainder is alienable, descendible and devisable in the same manner as estates in possession.'^ In some States, in the absence of a statute, the conveyance of a contingent remainder is held to be effectual and enforce- able in equity.'* And where the person is ascertained who is to take the remainder, if it becomes vested, it has been held that he may devise it, and, in absence of a devise, it descends to his heirs.'* RULE IN SHELLEY'S CASE. "IT IS A BULE OF LAW WHEN THE ANCESTOB, BY AliTY GUT OK CONVEYANCE, TAKES AN ESTATE OF EREEHOLD, AND IN THE SAME GIFT OB CONVEYANCE AN ESTATE IS LIMITED MEDIATELY OB IMMEDIATELY TO HIS HEIBS IN FEE OB IN TAIL, THAT ALWAYS IN SUCH CASE 'HIS HEIBS' ABE WOBDS OF LIMITATION AND NOT OF FUBCHASE."" To understand this rule, the student must have a clear understanding of the meaning of the terms "words of limita- tion" and "words of purchase." Whenever property is con- veyed either by deed or by will, or the title is acquired in any manner except by inheritance, the grantee or devisee is said to be a purchaser and to acquire the property by purchase. The term "purchase" includes every lawful method of coming to an estate by act of the parties." The words in a deed or will "Williams on Real Property, 266. "L'Btourneau vs. Henquenet, 89 Mich., 428. Williinson vs. Sherman, 45 N. J. Eq., 413. "Grayson vs. Tyler, 80 Ky., 358. "Wash on Real Property. Henness vs. Patterson, 85 N. Y., 91. "Shelley's case, 1 Rep., 104a. "Bnrt TB. 'Merchants Ins. Co., 106 Mass., 364. 328 TIME OF ENJOYMENT OF ESTATES. which describe the purchasor, i. e., the person who takes under the grant or devise, are words of purchase. Words of limitation are those which limit or define the estate which the purchaser acquires. Thus, if land is granted to A and his heirs forever, the term "heirs" indicates the ex- tent of A's estate, viz., tliat he is the owner of a fee simple estate. This is the common use of the term. But if an estate be granted to the heirs of A, here the term is used to indicate the persons to whom the estate shall go, and is therefore a word of purchase. With this explanation we may now exam- ine the rule as stated. If an estate be granted to A for life, and on his decease to his heirs forever, here it will be noticed is a case which comes clearly within the rule; for there is i grant of a freehold estate, and in the same grant an estate is limited to the ancestors' heirs. Now, if the term ''heirs" is a word of purchase, it indicates the persons who take the prop- erty, viz., a life estate in A and a contingent remainder over to his heirs. But if the term "heirs" is a word of limitation, then A is the only person who is designated as a purchaser, and the word "heirs" simply defines and limits his estates, and he takes an estate in fee simple."' The rule in Shelley's case adopted the latter construction. Under this ruling, the heirs of A, if he does not dispose of the property during his life, may eventually Inherit it, but they would then take by descent, and not by purchase."* There is a difference of opinion as to the reasons which originally led to the adoption of this rule. While the different theories as to its origin are interesting, it is sufficient in a book of this character to state that it grew out of the system of feudal tenures in existence at the time of its adoption. "Fowler vs. Black, 136 111.. 3^; 11 L. R. A., OTo! Conger vs. Lowe, 124 Ind., 308; 9 L. R. A., 105. "Browning's Petitions, 16 R. I., 441; 3 L. R. A., 209. TIME OF ENJOYMENT OF ESTATES. 329 The rule is noW recognized as the commoD law rule, and is in force in all States, in which it has not been changed by statute,** THE RULE IN SHELLEY'S CASE IS ARBITRART AND IM- PERATIVE, AND IS NOT A MEANS TO DISCOVER THE INTENT OF THE GRANTOR OR TESTATOR. As often expressed, the rule in Shelley's case is a rule of property, and not of construction. Whenever the term "heirs" is used as a word of limitation, it is treated as conclusively expressing the intention of the testator; "where it appears that the word was so used, the law inexorably fixes the force and meaning of the instrument. If once it is granted that the word was used in a strict legal sense, nothing can avert the opera- tion of the rule in Shelley's case. So the inquiry is, was the word used as one of limitation?"^" If the word is used as one of limitation, the rule will apply, even though it be contrary to the expressed intention of the testator or grantor that the ancestor should have a life estate only.'^ In some States, however, the rule is regarded as one of construction, and will yield to the clear intention of the grantor or testator.'^ REQUISITES. To bring any given case within the rule, the following es- sentials must exist: First. The estate granted the ancestor must be a free- hold." "Starnes vs. Hill, 112 N. C, 1; 22 L. R. A., 598. "Allen vs. Craft, 109 Ind., 476. "Ilafreman vs. Haseman, 12 111., Ifi4. Trnmbull vs. Trumbull, 149 Mass,, 200. "Belslay eouliar seisin grew as a necessity the doctrine of survivorship and the inseverable character of the estate. In discussing the nature and incidents of this estate, we will briefly consider the methods by which it may be created, in what estates, the rights of the parties, the methods by which the estate may be determined, and some of the statutory amendments of the common law estate. HOW CREATED. At the common law a tenancy by the entirety was created by the conveyance of an estate to persons who were in fact 'Oorlntb vs. Emery, 63 Vt, 605. 344 JOINT ESTATES. husband and wife. It is not necessary at the common law to express an intent that the grantees shall take by the entireties. It is presumed that the grantor or devisor intended that the husband and wife should take by entireties, unless it ex- pressly appears that he intended to create some other ten- ancy.'" This common law rule is in force in many States, if not most of the States in which the estate may be created.'* In some States there are statutory provisions that the estate shall not arise unless the grant expressly provides that the grantees shall take by the entireties ; and that, in the absence of such a provision, the husband and wife shall take as ten- ants in common.'^ It is not necessary that the grantees be described as hus- band and wife. Parol evidence of their relationship may be given." But the grantees must be in fact husband and wife. If the conveyance is made to them before marriage, or after a void marriage, they will not take by the entireties." Thus, where a conveyance was made to parties who be- lieved themselves to be husband and wife, and by a grantor who had the same belief, and with a provision in the grant that they should take by the entireties, and the marriage of the grantees was void by reason of the fact that the wife had a former husband living, it was held that the estate by the entireties did not arise.'" "Knapp vs. Windsor, 6 Gush., 157. "Baker vs. Stewart, 40 Eans., 442 (2 L.. R. A., 434). An estate In the entirety is created by a deed to a husband and wife and their heirs. McLeod vs: Tarrant. 39 S. C, 271; 2u L. R. A., 846. Dowllng vs. Salllotte, 83 Mich., 181. "Wycltoff vs. Gardner, 20 N. J. L., 556. Shaw vs. Hearsay, 5 Mass., 521. Hemingway vs. Scales, 42 Miss., 17. ' Hall vs. Stephens, 65 Mo., 6T6. "Dowllng vs. Salllotte, 83 Mich., 131. Hulett vs. Inlow, 57 Ind.. 412. "Holt vs. Wilson, 76 Ala., 66. "Morris vs. McCarty, 158 Mbas.. 11. JOINT ESTATES. 345 In Michigan, under similar circumstances, where the par- ties were described as husband and wife, and the survivor conveyed the property to a third person, without notice that the marriage was void, it was held that the grantee took a good title, on the ground that the record could not be shown to be untrue." If the marriage is voidable only and is not dis- solved, the grantees take by the entireties. In order that the estate may arise, it must be created by the same deed.^^ There must be the unity of time. If the husband and wife acquire their interest by separate instruments, or if the husband conveys a half interest in his property to his wife the estate wiU not arise.^* If the husband desires to hold his property in entireties with his wife, he must convey it to a third person, and on such third person conveying it back to the husband and wife, they will take by the entireties. The estate will arise only out of the acts of the parties, as by grant or devise. It will not arise from descent; for in such case the intent to create an estate by entireties cannot be presumed." It is possible at the common law to create an estate in com- mon in the husband and wife, but to have this effect the grant must expressly provide that they shall take in common.^* "Jacobs vs. Miller, 50 Mich., 119. "Brown vs. Baraboo, 90 Wis., 151; 30 L. H. A., 320. "Tindell vs. Tindell (Tenn.), 37 S. W., 1105. "Brown vs. Baraboo, 90 Wis., 151; 30 L. R. A., 320. "A deed to a husband and wife "as tenants in common" creates a tenancy in common and not by the entireties. Fulper vs. Fulper, 54 N. J. Bq., 431; 32 L. R. A., 701. So it was held that a husband and wife do not take as tenants by entireties, but as joint tenants under a conveyance to them in joint tenancy. Thomburg vs. Wiggins, 135 Ind., 178; 22 L. B. A., 42. 346 JOINT ESTATES. IN WHAT ESTATES. An estate by the entirety may be created in any estate taken by purchase. It may be created in an estate in fee simple, for life or for years, or in a conditional or limited fee. RIGHTS OF PARTIES— RIGHT OF SURVIVORSHIP. Each of the parties being seised of the whole, it follows that if one dies the estate continues in the survivor. This right of survivorship exists by virtue of the grant which vests the entire estate in the legal unit, and is not a species of inheritance. The right of siirvivorship is the same as in the case of a joint tenancy. AN ESTATE BY THE ENTIRETIES IS INSEVERABLE. The property being vested in the legal unit and not in the individuals composing that unit, it follows that neither the husband nor the wife can convey any portion of it by his or her sole and separate act. As neither tenant can convey the property so as to bind the other, it follows that the tenancy cannot be severed by deed.^^ There is some difference of opinion as to the exact rights of tenants by the entireties, but the courts have all agreed on the proposition that NEITHER THE HtTSBAND NOR THE WIEE CAN, BY HIS OR HER SOLE ACT, AEEECT THE OTHER'S RIGHT OF SUR- VIVORSHIP, AND THE SURVIVING SPOUSE ACQUIRES THE ENTIRE ESTATE FREE PROM ALL CHARGES CREATED BY THE DECEASED SPOUSE. "Corinth vs. Emery, 63 Vt, 505. "The grand characteristic which distinguishes a tenancy by the entireties from a joint tenancy is its in- severability, whereby neither the husband nor the wife, without the assent of the other, can dispose of any part of the estate so as to affect the right of the survivorship of the other." HUes vs. Fisher, 144 N. Y., 306; 30 L. R. A., 305. JOINT ESTATES. 347 Thus, on the death of the husband, the wife takes the prop- erty free from the claims of any grantee of the husband, or from any of his creditors, or from any charge upon it, how- ever created, to which she did not assent.^* Neither can one of the tenants at the common law compel a partition of property held by the entireties."* RIGHTS DURING COVERTURE. The courts do not agree in all respects as to the rights of tenants by entireties during their joint lives. The common law during the continuance of the coverture ignored the peculiar seisin and equality of the husband and wife, and the husband was held to be entitled to the full con- trol and to take the rents and profits, to the exclusion of the wife.'" This usufructuary right the husband might sell, mort- gage and lease at common law, and his act in so doing would be given effect during coverture. This interest of the husband, it has been held, is subject to be taken and sold on an execu- tion.** But no act of the husband, as has been stated, could affect his wife's rights of survivorship. The usufructuary right of the husband during the cover- ture, it is believed, was not an incident of an estate by the entirety, but was a part of his common law marital right. He took the rents and profits of land held in the entirety upon the ^me right that he took the rents and profits of other land owned by the wife solely. This being so, an interesting ques- tion has arisen as to the effect of the married woman's acts on "A purchaser upon an execution sale of the husband's Interest has no claim which can be asserted against the wife after his death. Simpson vs. Pearson, 31 Ind., 1. "Miller vs. Miller, 9 Abb., Pr. N. S., 444. "Hlles vs Fisher, 144 N. ?., 306; 30 L. R. A., 305. "Hlles vs. Fisher, 144 N. Y., 306; 30 L. R. A., 305. Pray vs. Stebblns, 141 Mass., 219. 348 JOINT ESTATES. the husband's common law rights in estates by entireties dur- ing coverture. Married woman's acts, since they give the wife control of her own property, impliedly abolish the husband's common law marital rights to the rents and profits of his wife's land. The courts differ as to the effect of these acts upon estates by the entireties. In some States it is held that the rents and profits during covertxire no longer belong to the husband solely, but to the husband and wife jointly, and that they can only be disposed of and charged by the joint act of husband and wife.''^ In other States it has been held that so far as the rents and profits during coverture are concerned, the husband and wife have now equal rights, and that either one may dispose of or charge his or her moiety during coverture.^* This niling does not in any way affect the right of survivorship. In other States the husband seems to have the same usufructuary rights during coverture as at common law.''* HOW DETERMINED. The husband and wife, by their joint act, may terminate the estate or make a valid charge against it. Thus, they may convey or mortgage by instrmnents in which they both join. While it is well settled that neither spouse can affect the other's right of survivorship, the question has arisen as to the right of one spouse to convey the property in such a way that in case of the grantor's survival his right of survivorship shall "McCurdy vs. Canning, 64 Pa., 39. Chandler vs. Cheney, 37 Ind., 891. See Naylor vs. Minock, 96 Mich., 182. "Hiles vs. Fisher, 144 N. Y., 306; 30 L. R. A., 305. Buttlar vs. Rosenblath, 42 N. J. Bq., 651. "Bolles vs. State Trust Co., 27 N. J. Eq., 308. Morrill vs. Morrill, 138 Mich., 112. Pray vs. Stebbins, 141 Mass., 219. JOINT ESTATES. 349 belong to his grantee. On this question the courts are not agreed. In some States it is held that a conveyance by one spouse during the coverture will be given effect if such spouse sur- vives. That is^ one spouse may convey the property subject to the rights of the other during coverture, and subject to right of survivorship. Thus it has been held that a convey- ance by the husband of property held in the entirety passes the right to possession of an undivided half, during the joint lives of the husband and wife, and to the fee, in case the husband survived his wife.'" And it has been held that the purchaser at an execution or mortgage sale of the interest of one spouse, would be entitled to the estate if such spouse survives the other.'^ Whether or not the conveyance of the husband would be given effect during their joint lifetime, will depend on which of the rules already discussed under rights of parties during coverture, the courts adopt or are bound by. In other States an interest in the property cannot be con- veyed, except by the joint act of the husband and wife. In these States the grant of one spouse is void and will not be effectual, even if such spouse survives;. And in these States the sale of the husband's interest on an execution will not convey any interest to the purchaser.'' In Michigan it was held that the mortgage of the wife was void and could not be enforced against the wife, even after the death of the husband.'* "Hiles vs. Fisher. 144 N. T., 306; 30 L. K. A., 305. "Hiles vs. Fteher (Ibid). McCurdy vs. Canning, 64 Pa., 41. "Vinton vs. Beamer, 55 Mich., 559. Chandler vs. Cheney, 37 Ind., 391. "Naylor vs. Minock, 96 Mich., 182. 350 JOINT ESTATES. DIVORCE. In many of the States the effect of a divorce is to change the estate into a joint tenancy, or a tenancy in conunon.^^ "One legal person has been resolved by judgment of law into two distinct, individual persons, having in future no rela- tions to each other; and with this change in their relations must necessarily follow a corresponding change of tenancy, dependent upon the previous relation, as they no longer hold in joint seisin, they must hold by moieties." In Michigan it has been held that a divorce does not affect the estate.^^ STATUTES. In many of the States the common law estate exists, with most of the common law incidents.^' In otter States the estate does not exist In some States the husband and wife now take as tenants in common, and in Connecticut they take as joint tenants. In some States it has been held that the married woman's acts, since they destroy the common law fiction of unity, de- stroy estates by the entirety, and that the husband and wife now being separate individuals, take as tenants in common.'* The weight of authority is that the married woman's acts do not affect estates by the entireties.*' "Stelz vs. Shreck, 128 N. Y., 263; 13 li. B, A., 325. Harrer vs. Wallner, 80 111., 197. Barber vs. Root, 10 Mass., 260. Lash vs. Lash, 58 Ind., 526. "Lewis' Appeal, 85 Mich., 340. *^his Is the case in Arkansas, Indiana, Kansas, Maine, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Pennsyl- vania, Tennessee, Vermont and Wisconsin. "Robinson's Appeal, 88 Me., 17; 30 L. R. A., 331. "Fisher vs. Provin, 25 Mich., 347. Baker vs. Stewart, 40 Kans., 442; 2 L. R. A., 434. Bramberry Estate, 156 Pa. St., 628; 22 L. R. A., 594. JOINT ESTATES. 351 ESTATES IN COPAECENAKY. AN ESTATE IN COPARCENARY IS WHERE LAND OF IN- HERITANCE DESCENDS EROII THE ANCESTOR TO TWO OR KOBE PERSONS."' Tke tenants in this estate were called coparceners or simply parceners, because they could be compelled to make partition. Each of the parceners was entitled to the whole of a distinct moiety, and there was no right of survivorship. The estate has never existed in this country, except in Maryland. Co-heirs in the United States take as tenants in common. PARTNEKSHIP ESTATES. AN ESTATE IN PARTNERSHIP IS ONE WHICH IS PUR- CHASED BY PARTNERSHIP PUNDS AND HELD BY PARTNERS POR PARTNERSHIP PURPOSES. If property is conveyed to a number of oo-partners, the same estate is created at law as in the conveyance to other persons, and ordinarily at law the partners hold as tenants in common. But if the property is purchased by partnership assets^ and for partnership purposes, it comes under the opera- tion of the general principles relating to partnership property. That is, the general principles relating to partnership rights and obligations are applicable, not only to the personal prop- erty, but also to the real property of the partnership.*^ In order that real property may come within the general principles relating to partnership property, it is not sufficient that it is owned by the individual members of the partnership; nor is it sufficient that it is used in the partnership businesa. Both of these characteristics may exist, and the property may not be partnership property. *2 Elk., 187. "Trowbridge vs. Cross, 117 III., 109. 352 JOINT ESTATES. In addition, it must appear that the partners intended that the property should be held as partnership property.** The intention of the partners may be gathered from the articles of partnership, the fund with which it was purchased, the uses to which it has been put and the manner in which it has been entered in the books of the firm. There is no difficulty in determining the nature of the real property when the intention of the parties is expressed in the articles of partnership, or in the deed conveying the property. In the absence of an express agreement or circumstances indicating an intent that the property shall be held by the part- ners as individuals, the property will be held to be partnership property, if it is purchased with partnership funds. WHERE EEAL PBOPERTY IS BOUGHT WITH PARTNEB- SHIP FUNDS, FOR PARTNERSHIP PURPOSES, AND IS AP- PLIED TO PARTNERSHIP USES OR CARRIED IN THE AC- COUNTS OP THE PIRM AS A PARTNERSHIP ASSET, IT IS DEEMED TO BE PARTNERSHIP PROPERTY." Once the character of the property as partnership property is determined, the rights of the partners and their creditors is well settled. At law they are tenants in common, or joint tenants, de- pending on the nature of the conveyance under which they acquire title. IN EQUITY, THE PARTNERSHIP REAX ESTATE IS CONSID- ERED AS FERSONAIi PROPERTY, FOR AIiL PURPOSES AS TO THE PARTNERS, INTER SB, AND AS TO THE CREDITORS OP THE PARTNERSHIP, AND IN SOME INSTANCES, FOR THE PURPOSE OF DISTRIBUTION ON THE DEATH OF ONE OF THE PARTNERS." "Pepper vs. Pepper, 24 111. App., 316. Goldthwaite vs. Janney, 102 Ala., 431; 28 L. R. A., 161. "Robinson Bank vs. Miller, 153 111., 244; 27 L. E. A., 449. "Galbraith vs. Tracy, 153 111., 54; 28 L. R. A., 129. JOINT ESTATES. 353 Thus, as has been stated, the property may be conveyed for partnership purposes, free from any claim of dower. So the partnership real estate is primarily liable for the partnership debts, and in case of insolvency, the proceeds of partnership real estate will be applied, first to the satisfaction of partnership creditors, and afterwards to payments of the creditors of the several partners.** On the dissolution of the partnership, the equitable title to partnership realty vests in the surviving partners for the purpose of the settlement of the affairs of the partnership;" and for such purpose they are entitled to its possession and exclusive control.** The surviving partners may sell and dispose of the part- nership realty for the purpose of settling partnership indebted- ness, either to third persons or to any of the partners. "Whatever surplus of money or of land remains after the partnership debts have been discharged, resumes the character of real estate and goes to the heirs and not to the personal representative of a deceased jrartner.*" The partners may agree that the partnership realty shall be treated as personalty for all purposes, in which event it is absolutely converted into personalty, and passes as personal estate to the representative of the deceased partner."" In Eng- land, partnership realty is regarded as personal property for all purposes. "Ross vs. Henderson, 77 N. Car., 170. "Clay TS. Field, 34 Red. Rep., 375. Heath vs. Waters, 40 Mich., 457. Russell vs. McCall, 141 N. Y., 437. "Ofifutt vs. Scott, 47 Ala., 104. Sternberg vs. Larkin, 58 Kans., 201; 37 L. R. A., 195. "Galbralth vs. Tracy, 153 111., 54; 28 L. R. A., 129. "Hughes vs. Allen, 66 Vt., 95. Ware vs. Owens, 42 Ala., 212. 24 354 JOINT ESTATES. If the property is purchased by partnership funds, for part- nership purposes, and the legal title is taken in the name of one partner, it will be treated in equity as partnership prop- erty, and the partner in whom the title is, will hold it in trust for the partnership."^ This ruling does not violate the Statute of Frauds, If the property is purchased by a third person, without notice of the trust in favor of the partnership, he will take a good title.°^ ESTATES IN COMMON. A TEN-AWCT IN COMMON IS AN ESTATE HELD BY SEV- ERAL TENANTS, NOT JOINTLY BUT BY SEPARATE AND DIS- TINCT TITLES. An estate in common arose°^ at the common law, when the grant or devise indicated that the grantees or devisees should take separate and independent shares. It also arose in those cases where two or more persons held title to the property, but in which the four unities were not present. The only unity required in case of a tenancy in com- mon, is the unity of possession. Thus, if the tenants hold by several titles arising at different times, the tenancy is in common. In the United States the general rule is that even in those instances in which the four unities are present, the grantees or devisees will take as tenants in common, unless a contrary intention appears from the terms of the grant. When a conveyance is silent as to the interest which each takes, the presumption is that their interests are equal."* "Robertson vs. Baker, 11 Fla., 192. •'Priest vs. Chouteau, 85 Mo., 398. "Godfrey vs. White, 43 Mich., 171. "Campau vs. Campau, 44 Mich., 31. Mai'koe vs. Wakeman, 107 111., 251. JOINT ESTATES. 355 If the conveyance is to several persons, but not in undivided portions, and in such a way that each grantee takes a particular portion which can be identified, the grantees take in severalty, and not in common.'"' Tenants in common are not entitled to the right of survivorship. On the death of a tenant in com- mon, his interest passes to his heirs or devisees. The unity of possession being the same as in the case of a joint tenancy, the principles applicable to possession, adverse possession and purchasing of an outstanding title, hereinafter discussed, are applicable to tenancies in common. INCIDENTS OF ALL JOINT ESTATES. The one element common to all joint estates is the unity of possession, and the principles growing out of this unity are applicable to all joint tenants. THE POSSESSION OF ONE JOINT TENANT iS THE POSSES- SION or HIS CO-TENANTS. A joint tenant, not in possession, has a right to assume that the possession of a co-tenant is his possession. And in the absence of an actual ouster or a notice by act or declaration, the possession of one tenant will not be considered as adverse to his co-tenants.°^ But if one joint tenant actually ousts the others, his pos- session may become adverse. If there is not an actual ouster, but the tenant in possession gives actual notice, or commits notorious acts of adverse possession, his possession may become ad\'erse.''' "Fleming vs. Kerr, 10 Watts (Pa.), 444. "Aguirre vs. Alexander, 58 Cal., 21. "Morris vs. Davis, 75 Ga., 169. Dryden vs. Newman, 116 111., 186. Coogler vs. Rogers, 25 Fla., 853. 356 JOINT ESTATES. A JOIITT TENANT CANNOT FUBCHASE AN OUTSTANDING TITLE AND SET IT UP AGAINST HIS CO-TElfANTS. A joint tenant is under an obligation to do nothing which will prejudice the rights of his co-tenants. The payment of taxes by one joint tenant will operate for the benefit of all."* If one tenant purchases an outstanding title, the other ten- ants will be entitled to the benefit of such purchase, on con- tributing their proper proportion of the expense.'" JOINT TENANTS, EXCEPT TENANTS BY THE ENTIRETIES, HAVE A KIGHT TO ALIENATE THEIR RESPECTIVE INTER- ESTS BY A SOLE CONVEYANCE. THE INTEREST OP ALL JOINT TENANTS, EXCEPT TEN- ANTS BY THE ENTIRETIES, IS SUBJECT TO BE TAKEN ON AN EXECUTION." JOINT TENANTS, EXCEPT TENANTS BY THE ENTIRETIES, MAY COMPEL PARTITION. Joint tenants at the common law might agree to a partition of the property, and, if such an agreement were carried out by conveyances or releases, the tenants took their respective por- tions in severalty. Such a partition is known as a voluntary partition. At the common law a parol partition, i. e., a division of the land itself, would be given effect in the case of tenants in com- mon and co-parceners. This is still the rule in many States, providing such partition is followed by the exclusive posses- sion by each tenant of the portion allotted to him. '^ It is contended, in the States adopting this rule, that it does not violate the Statute of Frauds. "McConnel vs. Konepel, 46 111., 519. "Tltsworth vs. Stout, 49 111., 78. Barnes vs. Boardman, 152 Mass., 391; 9 L. R. A., 571. Williams vs. Morris, 95 U. S., 455. "Thomburg vs. Wiggins, 135 Ind., 178; 22 L. R. A., 42. "Taylor vs. Millard, 118 N. T., 244; 6 L. R. A,, 667. JOINT ESTATES. 357 The theory of the courts is, that in a tenancy in common, the seisin being per my and not per tout, each tenant owns an undivided fraction, and that the effect of the partition is not to convey a title to such fraction, but simply to ascertain and define the limits of the respective possessions."' This rule is not applicable to joint tenants; since they are seised of the whole, and, in order to effect a partition, it is necessary to have a conveyance in accordance with the re- quirements of the Statute of Frauds. The rule that the Statute of Frauds does not apply to ex- ecuted parol partitions, has been adopted in many States." In other States it is held that such a partition can be ac- complished only by proper conveyances.** In these States a parol partition, followed by possession, passes the equitable title to the allotted portion; and if the possession continues for a period sufficient to give title under the Statute of Limitations, it will ripen into a legal title.*" At the common law, if all the co-tenants did not consent to a partition, none could be forced. In the reign of Henry Vni. a statute was passed permitting joint tenants and ten- ants in common, in fee, for life, or for years, by a judicial pro- ceeding, to compel partition. Statutes have been passed in all the States, providing the method by which tenants in common and joint tenants may compel partition. In those cases in which the property, by reason of its small- ness or situation, is incapable of division to advantage, the statutes usually provide that it may be sold and the proceeds divided among the owners. "Taylor vs. Millard, ibid. "Byers vs. Byers, 183 Pa. St., 509. "Porter vs. Perkins, 5 Mass., 235. "Gates vs. Salmon, 46 Cal., 361. Hazen vs. Barnett, 50 Mo., 506. 358 JOINT ESTATES. Courts of equity have generally jurisdiction over partition proceedings. In many States the probate or surrogate courts have jurisdiction for the purpose of partitioning the real prop- erty of deceased persons. For the practice in reference to par- tition proceedings, the student must consult the statutes and decisions in his own State. AT THE COMMON LAW, IN THE ABSENCE OE AN AGREE- MENT, A TENANT IN COMMON OR IN JOINT TENANCY, IN POSSESSION, IS NOT ACCOUNTABLE TO HIS CO-TENANTS FOE THE USE AND PROFITS OP THE LAND, UNLESS HE EXCLUDES THEM FROM POSSESSION. The reason of this rule seems to be that each tenant, by virtue of his interest, is entitled to occupy the entire land in conjunction with his co-tenants, if they enter, or alone if they did not. "The occupancy of one tenant was warranted by his own right and in itself gives rise to no cause of action, in favor of his co-tenants.'"^ If the possession of one tenant is under an agreement to pay rent, or if he excludes his co-tenants from possession, he is accountable to the tenants not in possession, for their share of the profits or rent of the land.*' In those cases in which the tenant does not occupy the property, but receives rent from a third person, he will be held accountable to his co-tenants for their share of th.e rent.'" By statute, in a number of States, the common law rule has been changed, so that if one tenant in common enters and occupies more than his share, he will be held liable to his co- "Bverts vs. Beach, 31 Mich., 135. Cutler vs. Currier, 54 Me., 81. "Ward vs. Ward, 40 W. Va., 611; 29 L,. R. A., 449. Izard vs. Badlne, 11 N. J. Eq., 403. Howard vs. Throckmorton, 59 Cal., 79. "Tyler vs. Cartwrlght, 40 Mo. App., 378. JOINT ESTATES. 359 tenants for the rente and profits of the property in excess of his share.''* In those instances in which one tenant is liable to his co- tenants for the use or the rents of the property, he may on an accounting deduct amounts paid for keeping the premises in necessary or proper repair, and for taxes and any other proper expenditure.'^ If the tenant in possession of the property makes improvements without the consent of his co-tenants, he cannot compel a contribution from his co-tenants.'^ "Pearson vs. Carlton, 18 S. Car., 76. Gage vs. Gage, 66 N. H., 282; 28 D. R. A„ 829. "Scantlin vs. Allison, 32 Kan., 376. Mahoney vs. Mahone.v, 65 III., 406. Gayle vs. Johnston, 80 Ala., 395. Ward vs. Ward, 40 W. Va., 611; 29 L. R. A., 449. "Bazemore vs. Davis, 55 Va., 504. CHAPTER X. USES AND TRUSTS. The law of real property, in most of the States of the Union, is the English law of real property, as it was at the time of the Revolution, and as it has been modified by subsequent legisla- tion in the different States. The two great systems of law to which all of our law can be traced, except modern and special legislation, are the English Common Law, and the Civil Law which prevailed in the Roman Empire. In those States which were English colonies at the time of the Revolution the com- mon law prevails. In some States which at the date of the Revolution were colonies of nations where the civil law pre- vailed then, it still prevails, notably in Louisiana and Califor- nia, the first being a former colony of France, and the latter, a colony of Spanish origin. Speaking generally, it may be said that the Latin nations, which does not mean much more than that they have inherited their language from the Romans, in- herited also their system of laws. Among them may be men- tioned France, Spain, Portugal and Roimiania. The civil law was also the chief foundation of the Code Napoleon, which is the principal basis of the systems of law which now prevail in Europe. While it is not intended to go into the history of our law further than is necessary to a clear understanding of it, as it exists to-day, it is necessary to outline this history in some cases for that purpose. The English Common Law, like the rude and warlike people among whom it grew up, was sim- ple and rude. There was little refinement in it, while on the USES AND TRUSTS. 361 other hand, the cItH law having had its development among the most refined and cultured people of the ancient civilization, abounded in refinements and subtleties, as well as in rules, which were calculated to meet the necessities of a thousand situations arising in a state of advanced civilization, which did not arise in a primitive and, before the Norman conquest, pat- riarchal state of society. English civilization advanced more rapidly than its system of law developed, and, therefore, the English law has, from time to time, made large drafts on the system of law which developed under that elder civilization. Some of these drafts greatly enriched it. Others, made for the purpose of evading some of the salutary provisions of the common law, had soon to be rejected. The law of bailments, which Sir William Jones brought almost bodily into our la\V from the civil law, is an example of the first class. Uses and trusts which were introduced into our law by the clergy are a conspicuous illustration of the latter. When uses and trusts were introduced, the clergy had a practical monopoly of learn- ing and of legal knowledge. The theory of the ancient common law was that a tenant must be able to follow his lord to war. In those times the church exercised great power, but because members of the clergy would not follow the Lord Paramount to war they were disqualified from being holders or tenants of land under the then existing feudal system. In order to over- come this difficulty they introduced from the civil law the practice of having land transferred to one who was competent to take it, but as the phrase went, "to the use of" an ecclesias- tical body which, under the feudal system, could not lawfully take the land. In this way, in the course of time, the eccles- iastical corporations in England finally became possessed of a very large proportion of the most valuable agricultural lands in the kingdom. The land being transferred to one who was 362 USES AND TRUSTS. competent to take it, the transfer, or conveyance, was not in violation of the principles of the common law. But, the intro- duction of the words "to the use of" under the doctrines of the civil law made the conveyance operate entirely for the benefit of the ecclesiastical corporation and this effect was given to such conveyances^ by the chancellors, who were always ecclesiastics. There was no lay chancellor in England until the year after Henry vm. had revolted against the Soman Catholic Church and established himself as the spiritual as well as the temporal head of the English Church. The practice of conveying land to one person "to the use of" another, having been thus introduced into our law by the clergy for their benefit, soon began to be taken advantage of by others. Many were anxious to enjoy all the substantial benefits of the ownership of land without being subject to the burdens of such ownership, which could only fall upon the legal owner. And in this way, was first introduced into the English law the two kinds of ownership of land, legal ownership, and equitable ownership. These two kinds of ownership still sub- sist, and probably always will. But the abuses which fol- lowed quickly upon the introduction of uses and trusts soon led to the enactment of statutes to correct some of the most glaring of the abuses, the most important of which is the famous Statute of Uses now to be considered. Refined dis- tinctions have been drawn between uses and trusts, but they are of little practical importance at the present day.* A TJSE OR TRtrST EXISTS WHEN ONE PERSON HOLDS THE IiEGAL TITLE TO PROPERTY, IN WHICH ANOTHER HAS A BENEPICIAL TITLE OR INTEREST WHICH IS RECOG- NIZED AND PROTECTED BY A COURT OF CHANCERY, OR, •Called "fldel commlssa" in the civil law. 'At the present day the word use Is applied to naked trnsts as these are explained In the text, and the word trust to active trusts. USES AND TKUSTS, 363 AS IT IS SOMETIMES CALLED, A COURT OE EQUITY, WHICH BENEFICIAL INTEREST IS NOT RECOGNIZED BY COURTS OF LAW. Therefore it is seen that there are two kinds of estates or rights known to our law, legal estates and equitable estates. And the difference is this: While a court of equity must recog- nize legal estates and rights, equitable estates and interests are not recognized at all by courts of law. The following brief statements may serve to make clearer the part of the law now under consideration: 1. THERE CAN BE NO EQUITABLE ESTATE OR INTEREST IN ANY PROPERTY, UNLESS THERE IS A LEGAL ESTATE IN THE SAME PROPERTY. 2. IT IS THE SPECIAL FUNCTION OF COURTS OF EQUITY TO PROTECT THE RIGHT OF THE OWNER OF THE EQUITABLE ESTATE OR INTEREST, AGAINST WRONG OR INJUSTICE, AT THE HANDS OF THE PERSON HOLDING THE LEGAL TITLE. Remembering what has been said, that the chief object of introducing uses and trusts into the common law was to en- able an equitable owner to escape the burdens of legal owner- ship, it might be expected that a legislative remedy would be sought. Among the burdens which inhered in legal owner- ship, that were evaded by equitable ownership may be men- tioned dower, tenancy by the curtesy, the disability to dispose of real property by will, forfeitures to the king and others. The object of the Statute of Uses, 27 Henry Vm., Chap. 10 (A. D. 1536), was to frustrate fraudulent results and the subversion of the rules affecting real property as established by the com- mon law, and this was accomplished by transmuting equitable estates into legal estates.^ Either as a part of the common •The Statute of Uses In substance provided that whenever any per- son should be seised of any lands to the use, confidence or trust of an- other, the latter should become seised of a legal estate of the same quality and duration as his beneficial Interest 364 USES AND TRUSTS. law, or, by legislative enactment on the subject, the Statute of Uses, as amended by the courts, or, to put it in another form, what was left of it by the courts, prevails in the United States. uses" AND TRUSTS, EXCEPT AS ATITHOEIZED AND MODI- riED BY STATUTE, ARE ABOLISHED, AND EVERY ESTATE AND INTEREST IN LANDS IS DEEMED A LEGAL RIGHT, COG- NIZABLE AS SUCH IN THE COURTS OF LAW, EXCEPT WHEN OTHERWISE PROVIDED BY STATUTE. EVERY ESTATE HELD AS A USE, AND EXECUTED UN- DER THE LAW, IS REGARDED AS A LEGAL ESTATE. EVERY PERSON WHO, BY VIRTUE OE ANY GRANT, AS- SIGNMENT OR DEVISE, IS ENTITLED TO THE ACTUAL POS- SESSION OE LANDS, AND THE RECEIPT OF THE RENTS AND PROFITS THEREOF, IN LAW OR IN EQUITY, IS DEEMED TO HAVE A LEGAL ESTATE THEREIN, OP THE SAME QUALITY AND DURATION, AND SUBJECT TO THE SAME CONDITIONS AS HIS BENEFICIAL INTEREST. It would be an idle task to recapitulate here the various decisions by which the Statute of Uses has been denuded of many of its provisions. The authors conceive it to be their function to expound the law as it is administered in the courts at the present writing, and much of the learning on this sub- ject contained in comparatively modern law books is, and has been for many years, obsolete. Following our train of thought on the subject under dis- cussion, the next important matter to be called to the attention of the reader is this. Under the provisions of the Statute of Uses, when in a particular case, it does transmute an equit- able estate into a legal estate, it is a saying among lawyers that the statute "executes the use," i. e., it is not necessary for the person holding the legal title to execute a conveyance to the person holding the equitable title to confer upon the latter the complete legal title. USES AND TRUSTS. 365 THE STATUTE OE USES ONLY EXECUTES NAKED USES. A NAKED USE IS ONE IN WHICH THE PEBSON IN WHOM THE LEGAL ESTATE IS VESTED HAS NO BENEEICIAL IN- TEREST IN, OR DUTY CONNECTED WITH, THE TRUST TO WHICH HIS LEGAL TITLE IS SUBJECT. If the trustee has a beneficial interest in the trust, as for instance, a right to a salary or other compensation for being a trustee, the statute will not execute the use, nor will it execute the use when the trustee is charged with an active duty or is vested with a personal discretion as to the manage- ment of the trust estate, whether with or without compensa- tion. Thus from this point of view: TRUSTS ARE DIVIDED INTO ACTIVE TRUSTS AND PAS- SIVE OR NAKED TRUSTS. From the next point of view: ACTIVE TRUSTS ARE DIVIDED INTO EXECUTED AND EXECUTORY TRUSTS. The distinction between executed and executory trusts is this: THE INSTRUMENT WHICH CREATES AN EXECUTED TRUST DETERMINES THE EXACT LIMITS OF THE TRUST AND LEAVES NOTHING TO BE DETERMINED BY CONTINGENCIES WHICH MAY ARISE, OR TO THE DISCRETION OE THE TRUS- TEE. THE INSTRUMENT WHICH CREATES AN EXECUTORY TRUST LEAVES SOMETHING TO BE DETERMINED BY CON- TINGENCIES WHICH MAY ARISE, OR BY THE DISCRETION OF THE TRUSTEE. The meanings attached to the words executed and execu- tory in connection with the law of trusts is quite different from the meanings attached to these words in the law of con- tracts. In the law of contracts, an executed contract is a contract which has been fully performed by the party seeking legal relief for the non-performance of the contract by the other party to it. 366 USES AND TRUSTS. An executory contract is one in which neither party has performed all of the duties devolved upon him by the stipula- tions of the contract. In the law of contracts the distinction is only important where a suit is brought upon the contract, by one of the parties to the contract against the other for non-fulfillment of his part of the contract. It is greatly to be regretted that there should be so much jargon in the phraseology of the law, but it is necessary to explain the different senses in which certain words are used in the decisions and by text writers, so that the reader, in his effort to attain a knowledge of the law, may not be led astray by his conception of the sense in which words are used. The next sense in which the word trust is used by lawyers will be best apprehended by a study of the definitions which are com monly given of: 1. Express Trusts. 2. Implied Trusts. AN EXPRESS TRUST IS A TRUST CREATED BY THE OWNER OF THE LAND IN THE INSTRUMENT BY WHICH HE CONVEYS THE TITLE TO AN ESTATE, TO HIS TRUSTEE. Express trusts are the trusts of which we have been writ- ing, and, properly speaking, there are no other kinds of trusts, because the essential idea of a trust is that it springs from a personal confidence reposed by the creator of the trust in the person to whom the execution of the trust is confided. Implied trusts have no such basis, and, therefore, philosophically con- sidered, they should be classed simply as duties imposed and enforced by courts of equity on persons who, having acquired the legal title to real estate, owe certain duties to persons who have just claims which should be satisfied out of that real estate, and which claims are only cognizable in courts of equity. But a phrase having once been introduced into the law, and USES AND TRUSTS. 367 generally adopted, must be explained in the sense in which, it is used by courts. Therefore we say: AN IMPLIEB TRUST IN LAND ABISES WHEN THE HOLD- EB OE THE LEGAL TITLE TO THE LAND OWES SUCH A DUTY TO ANOTHER TO USE THAT PARTICULAR LAND EOR THE BENEFIT OE THE OTHER AS A COURT OE EQUITY WILL EN- FORCE. Implied trusts are divided in the nomenclature of the law into: 1. Resulting Trusts. 2. Constructire Trusts. As these words are used, the distinction between them is shown by the following definitions: A RESULTING TRUST IS RAISED BY EQUITY TO CABBY OUT THE PBESUMED INTENTION OE THE PAETY AS A BE- SULT OF WHOSE ACT THE TRUST ARISES. A CONSTRUCTIVE TRUST IS RAISED BY EQUITY TO EF- FECT THE ENDS OF JUSTICE AND TO FRUSTRATE A POS- SIBLY FRAUDULENT INTENTION OF THE PARTIES WHOM EQUITY MAKES TRUSTEES AGAINST THEIR WILL. From a careful consideration of these definitions, it will be readily perceived wherein lies the essential distinction between resulting and constructive trusts. In resulting trusts the court looks to what it considers must have been the real intent of the party in case an emergency, not provided for by an ex- press trust, should arise. In constructive trusts the court does not consider at all the question of real intent, but by a legal fic- tion ascribes to the party whom it constitutes a trustee a pre- sumptive intent to do that which justice requires, under the drcumstances of the particular case. This presumptive intent is in many, but not in all cases, exactly contrary to the real intent of the constructive trustee. Eesulting trusts might well have been denominated rever- sionary trusts, for those are the only kind which are truly 368 USES AND TRUSTS. resulting trusts. Suppose that A conveys land to B, by deed taking immediate effect, in trust to use the rents and profits derived from said land after C (now 10 years of age) becomes 21 years of age to the support of C during his life time. There are two situations for which such an instrument does not provide. We are speaking now of a deed which takes imme- diate effect after delivery. After the deed is delivered, A is divested of his legal title and it becomes vested in B. These questions arise: 1. Who is to enjoy the rents and profits until C becomes 21 years of age? 2. Who is to enjoy the rents and profits after the death of C; or, what becomes of the title to the land? In the first case there is a resulting trust to A and his heirs to enjoy the rents and profits until C becomes of age, because the language leads irresistibly to the conclusion that this was what was intended. In the second case the purpose of the trust having failed, or having been accomplished, there is a resulting trust to A and his heirs, and the trust having become a naked trust the statute "executes the trust" and revests the legal estate in A or his heirs. And this because in such case there is a pre- siunption that this was A's intent in making the deed, there being nothing in the deed which indicates an intention that B shall take any personal interest or benefit under it. There is a trust which arises when land is bought with A's money and the title is taken in the name of B, which is usually called a resulting trust by the courts and text writers, but as win be seen, it is impossible to range all of the decided cases in which an implied trust is raised under that head. For, as we have seen, the essential difference betwen a resulting and a constructive trust, is that in what is properly denominated USES AND TRUSTS. 369 a resulting trtist, the courts seek for the real intent of the person for whose benefit an implied trust is raised, while in constructive trusts no such inquiry is made. There are some cases where an implied trust is claimed, while land is pur- chased with the money of one and the title is taJven in the name of another, in which the decision is controlled by what the court finds was the real intent of the person who paid for the land. Such may be properly classed as resulting trusts. There are other cases in which the court pays no attention to this question and such latter trusts are properly classed as constructive trusts. There will be no better opportunity than now to say what should always be said to a student of the law. Books are written, partly with the idea, that a student having mastered their contents, can "pass his examination," and partly with the idea that the new book will more clearly than any older book set forth the fundamental principles of the law. It is to be regretted that so much space in new text books is talten up in discussing questions which are now of no practical im- portance. And whether a particular trust is to be classed as a resulting or constructive trust is of no possible consequence. But it is of consequence that a lawyer should have clear no- tions of the principles on which equity raises an implied trust, whether it is called a resulting or a constructive trust, be- cause they are the underlying and fundamental principles by which the result of any particular litigation is finally deter- mined. It is a too frequent error to suppose that our law is a correctly articulated skeleton, rather than a living, breathing, growing body. As is luminously explained by Blackstone, decided cases are evidence of what the law is, but the evidence of any particular case is not conclusive. The law itself is a current flowing with the stream of human life, and the de- 370 USES AND TRUSTS. cisions can only be considered as straws and driftwood tending to show in which direction the current is flowing. But some- times a decision is like some trunks of trees which in the mighty Mississippi become snags, and until they are removed turn the stream into false channels. It would only be natural that the reader should be curious to know what is the underlying reason for constructive trusts. Except in actions of replevin and ejectment, a court of law affords no redress for a civil wrong, except by awarding a personal judgment for damages against the wrongdoer. Where he is irresponsible this remedy is inadequate. Pending the action the wrongdoer may transfer the property or fund which justice requires should be appropriated to the satisfaction of the claim of the party wronged, to an innocent purchaser, that is, one without knowledge or notice that justice requires that it should be specifically preserved to satisfy a just claim against this specific property. In such cases equity can reach out and not only summon the offender into court, but also pre- serve the specific property to satisfy the claim of the complain- ant if it shall be established. This is accomplished as to per- sonal property by injunctions and receivers. When real prop- erty is involved it is accomplished by injunctions and notices of "lis pendens," filed with registers of deeds, and in some cases, by putting the real property into the hands of a receiver, pending the litigation. While, as has been said, the doctrine of constructive trusts is of recent origin it is now so firmly established that the following general principle may be an- nounced: WHENEVEB JUSTICE REQUIKES THAT SPECIFIC PROP- EETT SHOULD BE DEVOTED TO SATISFY A PARTICUXAK CLAIM, EQUITY WILL BAISE A CONSTRUCTIVE TRUST AS TO THAT PROPERTY AND PRESERVE IT TO SATISFY THAT CLAIM. This principle requires no elaboration and will be appre- hended most clearly by a consideration of the cases in the USES AND TRUSTS. 371 note.* Many, but not all, constructive trusts arise out of fraud- ulent or wrongful conduct by the holder of the legal title, as, for instance, when one steals or embezzles the money of another and invests it in land, and the money can be traced into the land, equity will follow it into the land, and lay hold of the land for the benefit of the person whose money paid for it, as against everybody but a purchaser for value without knowl- edge or notice of the origin of the fund with which his vendor bought the property, or, as the legal phrase is, a bona flde pur- chaser. Such trusts are denominated trusts "ex maliflcio." But the underlying principle as to all constructive trusts is that equity will intervene to prevent one from robbing Peter to pay Paul. Paul may be a general creditor, or he may be a purchaser with notice of Peter's equitable right to the fund or *A transaction that is in fraud of one's rights may be construed in equity so as to be a means of saving and protecting them. Where a conveyance is obtained for fraudulent ends or under op- pressive circumstances, the party deriving title is converted into a trustee, If necessary for administering relief. One who has sold mortgaged land with warranty and has cov- enanted to pay off the mortgage, cannot make title in himself as against his grantee by allowing foreclosme and redeeming the land. Huxley vs. Rice, 40 Mich., 73. So where a son acting as agent for his mother Invested her estate in grain and other commodities. Clapp vs. Emory, 98 111., 523, 531. So when the confidential agent of an aged and illiterate man, hav- ing his principal's money to invest, made a loan of a portion of it, tak- ing a note and mortgage to himself, and when the debt became due foreclosed the mortgage and bid in the property, he was held to hold the title to the land in favor of the principal. Cookson vs. Richardson, 69 111., 137. Certain parties who, by fraudulently representing that the entire assets and stock of a corporation belonged to them, obtained a decree dissolving the corporation, and took possession of its assets, held lia- ble in equity to be decreed trustees ex maleflcio as respects bona-flde stockholders. Bailey's Appeal, 96 Pa. St., 253. And equity will charge land paid for in part with money known to have been stolen from a bank, with a trust in favor of the bank, for the amount so used. Bank vs. Barry, 125 Mass., 20. 372 USES AND TRUSTS. property, or he may, in good faitii, receive tlie property as a gift. In these and all similar cases equity will raise a con- structiye trust in favor of the person or persons who, in justice, may be entitled to the real or personal property or its pro- ceeds, and will follow it, as to such persons, so long as it can be clearly traced back to its originally wrongful origin. On the other hand, it must always be kept in mind that : NO CONSTRUCTIVE TRUST CAN BE FASTENED UPON A FUND OB PROPERTY IN TBCE HANDS OF A BONA FIDE TAEEB FOR VALUE. Constructive trusts are of comparatively recent origin. In an admirable treatise on equity, by Mr. Adams, an English lawyer, the author treats of resulting trusts, but makes no men- tion of constructive trusts. Constructive trusts are introduced into the treatise in a note to the fifth American edition, by Henry Wharton. We reproduce in the note the original text of Mr. Adams, and the note of Mr. Wharton, which contains a very clear exposition of the general doctrine as to constructive trusts." "Resulting trusts occur where an estate has been purchased in the name of one person, and the purchase money or consideration has pro- ceeded from another. In many States the statutes have abolished such resulting trusts, except where the person who pays the consideration for the land has the title taken in the name for fraudulent purposes. In this case the presumption is, that the party paying for the estate in- tended it for his own benefit, and that the nominal purchaser is a mere trustee. This presumption exists in all eases where the conveyance of a legal estate is made to one who has not really advanced the price. And it is equally applicable whether such conveyance be in the name of a stranger only, without mention of the actual purchaser, or in the joint names of a stranger and the purchaser himself; whether the estate be originally conveyed to one purchaser out of many, or become ultimately vested in one as the survivor, under an assurance which has created a legal joint tenancy; or whether in the case of several nom- inal purchasers, an immediate joint estate be given to all, or the grant be to take successively one after another. Whatever be the peculiar form in which the conveyance is made, it does not affect the presump- tion that an estate or share of an estate, vested in a man who did not pay Its price, was not Intended by way of beneficial ownership; and therefore, In all those cases alike. If there be no evidence of an opposite USES AND TRUSTS. 373 There are necessarily three persons involved in every use or trust. The person who creates the trust by will is called the devisor. If he creates it by deed he is the grantor. If a use is spoken of, the person who receives the legal title is called the feoffee to use, and the owner of the beneficial use is called the cestui que use. If a trust is spoken of, the one who has received the legal title is a trustee, and the owner of the equitable interest is the cestui que trust. Where an express trust is created, the trustee is held to the strictest rules of loyalty and good faith toward his cestui que trust, and equity will scrutinize his administration of the trust, and all of his dealings with his cestui que trust with a jealous eye. Equity regards the trustee in an express trust as one ap- pointed to take special care of the interests of his cestui que intention, tlie trust of such legal estate will result to tbe parties who have advanced the purchase-money, in proportion to the amount of their respective advances. And as trusts of this kind are expressly exempted from the Statute of Frauds and it is competent for the real purchaser to prove his payment of the purchase-money toy parol evidence, even though it be otherwise expressed In the deed. The doctrine, however. Is merely one of presumptive evidence. It Is not a rule of law that a trust must be intended on such a purchase, but it is a reasonable presumption, as a matter of evidence. In the ab- sence of proof to the contrary. It is therefore open to tJie nominal purchaser to rebut that presumption by direct or circumstantial evi- dence to the contrary. He may, for instance, show that it was in- tended to give him the beneficial interest, either altogether or in part; that the purchase-money was advanced by way of loan to himself, and the party advancing it intended to become his creditor, and not the equitable owner of the estate; or that the purchase-money, on a conveyance in joint tenancy, was advanced by the several purchasers in equal shares, so that there is no improbability of an estate in joint tenancy having been really contemplated, with equal chance of sur- vivorship to all. In this manner a counter presumption may be raised in opposition to the original one ; and this again in its turn may be made by other evidence of an opposite intention. Lastly, the evidence which Is thus brought forward on either side may be derived either from con- temporaneous declarations or other direct proof of intention, or from the circumstances under which the transaction took place, or from the subsequent mode of treating the estate, and the length of time during 374 USES AND TRUSTS. trust, and in all matters pertaining to the trust will hold him to a strict account and will not permit him to use his position as trustee to obtain any advantage of the cestui que trust, or any benefit out of the trust estate, except such as is allowed him in the instrument creating the trust, or what may be al- lowed him by a court of equity as a reasonable compensation for his services and expenses in the execution of the trust. The relation existing between a trustee and his cestui que trust is analogous to the relation existing between guardian and ward, or between husband and wife. Charitable trusts are trusts created for what the law recog- nizes as charitable uses. They differ chiefly from other trusts in that the language of the instrument creating them is con- whlch a particular mode of dealing with it has been adopted on all sides. The most important class of cases In which, as an ordinary rule, this counter presumption arises, are those where a purchase has been made in the name of a child, or of one towards whom the party paying the money has placed himself in loco parentis. The general principle on which this counter presumption proceeds is that, Inasmuch as It is a father's duty to provide for his child, it is not improbable that he may make the provision by giving the child an estate, or by purchasing one for him in his name. And, therefore, if he does make a purchase in the child's name, the prima facie probability is that he intended it as a provision or advancement. The doctrine on this point will be hereafter separately considered under the head of Meritorious Con- sideration. In accordance with the same principle It is held that if land is ac- quired as the substratum of a partnership, or is brought Into and used by the partnership for partnership purposes, there will be a trust by operation of law for the partnership, as tenants in common, although a trust may not have been declared in writing, and the ownership may not be apparently in all the members of the firm, or if in all, may apparently be in them, not as partners but as joint tenants. Another class of ca^es, in which the circumstances give rise to the presumption of a resulting trust, is where a man, whose duty it was to create a trust, has done an ambiguous act, and the Court construes Buch aet as having been done in accordance with that duty. If, therefore, a man is a trustee of certain funds for investment in land, or has bound himself by covenant to lay out money In land, and he purchases an estate at a corresponding price. It will be pre- sumed. Independently of positive evidence that his object in the In- vestment was to effectuate the trust; and a trust may be implied ac- cordingly. But it will be observed that this is not as a hostile or com- USES AND TRUSTS. 375 strued more liberally for the purpose of effectuating the pur- pose of the one creating the trust. And in case it becomes im- possible to apply the fund to the exact charitable use specified, equity will sometimes permit the fund to be devoted to some other charitable use of a similar character. This is what is known as the doctrine of cypres. But the courts of some States refuse to acknowledge any distinction between charit- able trusts and others. There is, however, one distinction between charitable cor- porations and business corporations which is generally if not universally recognized. A charitable corporation is not liable in damages for injuries caused by the negligence of its ser- vants. POWERS. A POWER IS AN AUTHORITT TO DO SOME ACT IN RELA- TION TO LANDS, OR THE CREATION OE ESTATES THEREIN, pulsory decree, but on the supposition that such a result was really con- templated; and, therefore, if the contrary be proved, as by showing that the purchase was made under a mistaken opinion of the trust, the presumption cannot be raised. It Is otherwise If the covenant be to settle such land as the covenantor may have on a specified day, or to purchase a specific estate, which he afterwards acquires; for in these cases the trust attaches by virtue of the covenant, independently of any Intention in the party bound. Adams' Equity, 5th Am. ed., 109. Besides that described In the text, there Is another class of trusts "created by operation or Implication of law," which are usually de- nominated constructive trusts, and are of much Importance and fre- quency. This class comprehends those cases where the holder of the legal estate in property cannot also enjoy the beneficial interest, with- out some established principle of equity. The chief instance of this occurs when the property has been acquired by fraud, actual or con- structive. ' As the leading doctrine on this subject will be found dis- cussed in other parts of this volume, particularly under the head of Rescission and Cancellation (post. 174), it Is sufficient to state here that where a party, actively or passively guilty of fraud, has thereby obtained the legal title, he Is treated by equity, in general, as a mere trustee for the parties injured, and subjected to the con- sequent liabilities. The agency of constructive trusts Is also em- ployed in cases where no fraud has been committed in the acquisi- tion of the title, for the vindication or enforcement of other equitable principles. Thus, on an agreement for the sale of land, the vendor is 376 USES AND TRUSTS. OR OF CHARGES THEREON, WHICH THE OWNER GRANTING OR RESERVING SXTCH POWER, MIGHT HIMSELF LAWFULLY PERFORM. Tlie person creating a power is called the donor; the one to whom a power is given is called the donee; the one for whose benefit the power is created is called the appointee. Powers may be conferred upon one who has already some estate in the land to be affected, and whose own interest in the land may be affected by the exercise of the power. In such a case the power is called appendant or appurtenant. A power may be conferred upon one who has no estate in the land which can be affected by the exercise of the power. In such cases powers are called collateral or in gross. Powers are general, or special and beneficial, or in trust. before actual conveyance treated as trustee for the vendee. (And In cases of part performance of parol agreements for the sale of land by payment of purchase-money, the vendee acquires an equitable interest to the extent of the purchase-money paid. Rose vs. Watson, 10 H. L. Gas., 672; Barnes' Appeal, 46 Penna. St., 350). So of an encumbrancer, such as a mortgagee, who has obtained a conveyance as security for the payment of money, and the money has been repaid. So, one to whom property, is conveyed by a trustee, without notice of the trust, but on no valuable consideration, or with actual or constructive notice, talses it subject to the original trusts. Many other aimllar In- stances might be put, but they all reduce themselves to the general principle, that wherever a man cannot hold property beneficially and for himself, except by fraud or In contravention of equity, he holds it as trustee for those, who in contemplation of equity are entitled thereto. Constructive, lilie resulting, trusts, are excepted out of the Statute of Frauds, and may, therefore, be proved by parol. The rules which are applied to them, when established, are in general the same with those which govern direct trusts, but they are not in every re- spect identical. For instance, it Is a fixed principle with regard to the latter, that lapse of time, ty itself, will not bar their enforcement, but in respect to the former the question of laches Is a most material one, both with reference to their establishment, and to the consequent relief which is given; Indeed, in some cases the Statute of Limitations is directly followed. There are other distinctions, also, as to the privileges which trustees may claim, as to the fiduciary relationship of the parties, as to costs, and other matters, which cannot be dwelt upon here, but which are fully considered in the text books on tie subject. Adams' Equity, 5th Am. ed., 117. USES AND TRUSTS. 377 A GENERAL POWEB AUTHORIZES THE ALIENATIOIT IN PEE, BY DEED, WILL, OR CHARGE OF THE LANDS EMBRACED IN THE POWER, TO ANY ALIENEE WHATEVER. THE POWER IS SPECIAL WHEN THE PERSON OR CLASS OE PERSONS TO TAKE AS APPOINTEE IS DESIGNATED, OR A LESSER INTER- EST THAN A PEE IS AUTHORIZED TO BE CONVEYED. IT IS BENEFICIAL WHEN NO PERSON OTHER THAN THE DONEE HAS, BY THE TERMS OF ITS CREATION, ANY INTEREST IN ITS EXECUTION. A general power is in trust, when any person other than the grantee of the power is designated as entitled to the whole, or part of the proceeds, or other benefit to result from the execu- tion of the power. A special power is in trust, when the dis- positions it authorizes are limited to be made to any person or class of persons other than the grantee of the power; or 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. A POWER DIPPERS PROM AN ESTATE, IN THAT NO TITLE OR INTEREST IN THE PROPERTY IS VESTED IN THE DONEE BY REASON OP THE CREATION OP THE POWER. It is true that the donee, by reason of Ihe power, has au- thority to exercise a right to alienate or charge the property, but this right does not, as in the case of ihe owner of an estate, spring from an interest in the proparty, but from a delegation by an owner of a naked right. In this respect a power differs from a trust: for in the latter the title passes from the grantor to the trustee. A power may be created by a deed or by will. No particular words are necessary to create a power; any lan- guage showing a clear intent to create a power is suflQcient. The instrument ought to indicate the person to whom the power is granted, the persons or objects to be benefited, and the circumstances or contingencies upon which the power is to be executed. 378 USES AND TRUSTS. HO PBKSON IS CAPABLE IN LAW OF GRANTING A POWER, WHO IS NOT AT THE SAME TIME CAPABLE OE ALIENATING SOME INTEREST IN THE LAND TO WHICH THE POWER RE- LATES. A POWER MAY BE VESTED IN ANY PERSON CAPABLE IN LAW OP HOLDING LANDS, BUT CANNOT BE EXECUTED BY ANY PERSON NOT CAPABLE OP ALIENATING LAND. To this statement there is this exception. An infant may execute a naked power which is not accompanied hy any in- terest, and which does not require the exercise of any discre- tion. As a general rule, by statute a married woman may now execute a power without the consent of her husband. THE POWER, AS A GENERAL RULE, MUST BE EXECUTED BY THE DONEE OR DONEES NAMED IN THE INSTRUMENT CREATING THE POWER. If there are several donees, they must all join in execut- ing the power. It was held in Michigan, however, that where several persons were empowered to exercise a public power, an execution of the same by a majority was valid when all the donees were present to deliberate," If the instrument creating the power describes the donee by name, without any ofQcial description, such as executor, and afterwards one of the donees dies, the power does not pass to the survivors. If the donees are described, not by name, but officially, as executors, or generally as "my children," on the death of one of such donees, the power passes to and may be exercised by the survivors. This rule grows out of the following principle: WHERE A PERSONAL CONPIDBNCE OR TRUST IS PLACED IN A DONEE, THE POWER CANNOT BE EXERCISED BY, OR BE DELEGATED TO, ANOTHER. Where the grant describes the donees by name, it is held that a personal trust is reposed in them; but where the power "Scott vs. Young Men's Ass'n, 1 Douglass, 119. USES AND TRUSTS. 379 is Tested in a class, or in certain officials, the power is not, in the absence of an express provision, regarded as personal. If the power attaches to the office, and not to the individual, it may be exercised by the survivor; when the trust in the donee is personal, he may not delegate or assign it to another. Neither can the court in such a. case, substitute its own discretion or the discretion of a donee appointed by it, for the discretion of the donee in whom the personal confidence was placed by the donor. In some States these rules have been changed by statute, and when a power is vested in several persons it may be exercised by the survivor or survivors. Other statutes provide that in the event of the donee dying without execut- ing the power, it may be executed by the courts.'^ AS A &ENEBAL RUXB, A POWER MUST BE EXECUTED IN THE MANNER AND AT THE TIME PROVIDED IN THE GRANT AND IN GOOD EAITH TO CARRY OUT THE INTENTION OE THE DONOR. Thus, a power to sell, uncoupled with any interest, does not confer a power to mortgage, or to exchange, or barter, or, in many States, to sell on credit.' If the grant creating the power provides for conditions precedent to the exercising of the power, such conditions must be performed. Thus, if the consent of some third party is required before the execution of the power, such consent must be obtained, and if the third person dies before the execution of the power, the power will be extinguished. WHEN THE EXECUTION OE THE POWER IS DEFECTIVE, ITS PROPER EXECUTION MAY BE DECREED IN FAVOR OP THE PERSONS DESIGNATED BY A COURT HAVING JURISDIC- TION. 1 'See New York and Michigan Statutes. •Campbell vs. Foster Home Ass'n, 163 Pa. St., 609; 26 L. R. A., 117. 380 USES AND TRUSTS. EVERY TRUST POWER, UNLESS ITS EXECUTION OR NON- EXECUTION IS MADE TO DEPEND ON THE "WTIiIi OP THE DONEE, IS IN MOST STATES REGARDED AS IMPERATIVE AND IMPOSES A DUTY ON THE DONEE, THE PERFORMANCE OF WHICH MAY BE COMPELLED BY THE COURTS OP EQUITY FOR THE BENEFIT OF THE PARTIES INTERESTED. At law, a power requiring in its exercise the discretion of the donee is not imperatire, and cannot be enforced. The rule stated is the equitable rule, and will be applied only when the power is coupled with a trust. In a number of States, by stat- ute the execution of a trust power may be decreed by the courts of equity for the benefit of creditors, or persons entitled to the execution of the trust.^ EVERY POWER, BENEFICIAL OR IN TRUST, IS IRREVOC- ABLE UNLESS AN AUTHORITY TO REVOKE IT IS RESERVED OR GRANTED IN THE INSTRUMENT CREATING THE POWER. A power is extinguished by its complete execution, and when appendant is destroyed by the alienation of the estate to which it is attached. Thus, it was held that a power not coupled with an interest in land of the donor, could not be ex- ercised after the donor had parted with his title to the land.^" This extinguishment will not result from the conreyance of the property, if the power is in gross. •This is the rule In Michigan, New York, Wisconsin, Minnesota, Dakota and Alabama. ■"Fisher vs. Fair, 34 S. C, 203; 14 L. R. A., 333. CHAPTER Xi. EASEMENTS AND LICENSES. INOORPORBAl. HEREDITAMENTS. Up to this point we have been discussing the nature of real property, meaning by that term the thing itself or res. Out gf this "thing itself" or "res" sometime grow certain collateral rights which are classed as real property, and which pass with the land on its conveyance without any special mention. These collateral rights are intangible and are designated as incorpor- eal hereditaments. AN INCOBFOBEAL HEBESITAJVLEITT IS A BIOHT ISSUING OUT OE A THING COBFOBEAI., OB CONCEBNING OB ANNEXED TO, OB EXEBCISABLE WITH THE SAIEE. Blackstone mentions twelve different incorporeal heredita- ments; most of these do not exist in the United States, and only two require discussion, viz.: Easements and Licenses.^ EASEMENTS. AN EASEMENT IS A BIGHT TO USE THE LAND OF AN- OTHEB, NOT INCONSISTENT WITH THE EIGHT OE GENEBAXi OWNEBSHIP, AND WHICH BIGHT EXISTS FOB THE BENEFIT OF ONE IN POSSESSION OF A NEIGHBOBING TENEMENT.' The nature of an easement will be understood from the following statements: First. Easements are incorporeal. '2 Blk. Com., 19. "'An easement is an interest in land created by grant or agree- ment, express or implied, which confers a right on the owner thereof to some profit, benefit, dominion or lawful use of or over the estate of another." Huyck vs. Andrews, 113 N. Y., 81; 3 L. R. A., 789. 881 382 EASEMENTS AND LICENSES. Second. Easements are imposed on corporeal property, which in this connection means land. Third. An easement conveys no right to a participation in the profits arising from such property. Fourth. There must be two distinct tenements, the dom- inant to which the right belongs, and the servient upon which the obligations rest. First. Easements are incorporeal. They are rights to use the land of another in a certain way, by one who has no pro- prietary right in the proi)erty. A right to use land without any right to the land or its product, is a mere privilege without corporeal attributes. For instance, if I have the right to drive over the land of my neighbor, that is an easement which confers no right to the soil under the roadway, and what I own is merely a privilege of using my neighbor's land. If I use fhe soil in any way not justified by the easement, I am guilty of trespass,^ and if anyone commits an act on the land which does not interfere with my easement, I have no cause of action, even though he be a stranger without claim of title. This privilege of using the land of my neighbor, while it is not a right to the land or its product, is yet regarded by the law as an interest in the land; but such interest from its very nature is incapable of an actual delivery, and therefore of liv- ery of seisin, and is an incorporeal hereditament. Second. Easements are imposed on corporeal property. A contemplation of the particular easements hereinafter dis- cussed, such as rights of way, right of light and air, right of lateral support, will at once disclose that they are rights in corporeal property. 'Read vs. Leads, 19 Conn., 182. EASEMENTS AND WCENSES. 383 Easements are not imposed on persons. It is true that the owner of one estate may by agreement be entitled to the per- sonal services of the owner of the neighboring tenement, but such a right is not an easement. The most, in the case of an easement, that can be required from the owner of the servient tenement, is that he shall remain passive and permit a certain use to be made of his land, or that he shall refrain from doing certain acts on his premises, as building so as to shut out his neighbor's light. Where the easement consists in benefits resulting from the servient owner refraining from doing certain acts, it is called a negative easement, since no act is required by the dominant owner to enjoy it, as the right of light and air.* Where there must be an affirmative act on the part of the dominant owner in order to enjoy the easement, it is called an affirmative easement, as a right of way. Easements, then, are imposed on land and the owner of the easement has an interest in the land. In this respect an ease- ment differs from a licen'se. A license is a permission to do some acts or a series of acts upon the land of the licensor without any permanent interest in it.° It is founded upon a personal confidence and cannot be assigned.* Under it a temporary use of the land is contem- plated, and the licensor as a general rule may revoke the license ♦Cadwalader vs. Bailey, 17 R. I., 495; 14 L. R. A., 300. •Morrill vs. Mackman, 24 Mich., 279. •Flsber ts. Fair, 34 S. €., 203. This was an action to recover damages against defendant for the pollution of a stream running past plaintiff's land. The defendants claimed that they had an easement to discharge the matter complained of, by virtue of a writing whereby plaintiff bound himself to allow the Warner Iron Co., from whom defendant purchased its property, to pass muddy waters from its washers and to accept $500 per year in full for all damages, as long as the Iron Company "may wish to run." It was held that the writing created a license and not an ease- ment, and that such a license could not be transferred to the defend- 384 BASEMENTS AND LICENSES. at any time. Not being an interest in land, a license may be granted by parol.'' An easement on the contrary does not exist by virtue of any personal confidence; but is a permanent and fixed interest in the land, which may be conveyed with the dominant estate by its owner to whomsoever he pleases. The owner of the servient estate cannot at his pleasure revoke the right to enjoy the easement any more than he can prevent the enjoyment of the dominant estate itself. Third. Easements do not create any right to the product of the property on which they are imposed. It has already been pointed out that an easement is a privilege to make use of or to get a benefit from another's property. This right or privi- lege to use and enjoy is different in its nature from the right to have the material product of another's land." For instance, when I exercise my right to drive over an- other's land, I do not thereby acquire any material property, ant by its grantor, and was not a defense to plaintiff's claim. This conclusion was based on a construction of the writing that it was not the Intention of the parties to create a permanent interest in the land. 'Hitchens vs. Shaller, 32 Mich., 496. Hill vs. Cutting, 113 Mass., 107. NunneUy vs. Southern Iron Co., 94 Tenn., 397; 28 L. B. A., 421. •Pierce vs. Keator, TO Jf. T., 419. One Pierce deeded to the N. Y. & O. M. Railroad Company a cer- tain portion of his farm. The deed contained the following reserva- tion: "Said parties of first part also to have the privilege of mowing and cultivating the surplus ground not required for railroad purposes." Complainant contended that the right of mowing and cultivating the strip was an easement which would pass to Pierce's grantee without designation. The court did not accept this conclusion. It pointed out that an easement was an incorporeal right which attached to an estate to be exercised over another estate. "The right reserved in the Pierce deed was a right to profit of lands and was not, therefore, in strict- ness, an easement. From the nature of the right, we can see no con- nection hetween it and ownership of farm. The right to mow and cultivate this strip was in no way necessary to or even useful to the remainder of the farm." The court held that the right reserved was a right to profits a prendre and was a personal privilege that belonged to Pierce as an indlvidTial and not as an owner of the farm, and that such privilege was not an easement and would not pass to Pierce's grantee. BASEMENTS AND LICENSES. 385 but if I exercise a right I may have to go on another's land and take a portion of his crop, I thereby come into the pos- session of a material property. The right of way enhances the value of my land, the right to the product while it enriches me, does not affect or appertain to my land. The former is an easement, the latter a profit a prendre. A FBOFIT A FKENDKE MAY BE DEEINED AS A BIGHT TO THE LAND OF ANOTHER OR ITS PRODUCT. When this right to a profit a prendre belongs to the owner of a neighboring tenement, it is sometimes called a quasi ease- ment.* Fourth. There must be two distinct tenements, the domi- nant to which the right belongs, and the servient upon which the obligation rests. The right of the dominant estate is called an easement; the obligation of the servient estate is called a seiTdtude. We have already seen that easements are imposed not on persons, but on land, and it only remains to be noticed that this imposition on the land is made not for the benefit of another person, but for the benefit of other land. It is true that the owner of the property for whose benefit the easement exists has the right to enjoy it, but it is only by virtue of his ownership of what is termed the dominant tene- ment, that the right exists.^^ •Grubb vs. Grubb, 74 Pa. St.. 25. Ritger vs. Parker, 8 Cush. (Mass.), 145. Owen vs. Field, 102 Mass., 103. "Flalier vs. Fair, 84 S. C, 203; 14 I.. R. A., 333. This was an action to enjoin defendant from closing up an alley. The plaintiff was formerly the owner of a lot Number three appurten- ant to the alley in question. In this grant he acquired the right to an easement in said alley. Afterwards he conveyed all his interests In lot 3 to another person, saving and reserving to himself said right of 26 386 EASEMENTS AND LICENSES. For instance, where A's land does not abut on any high- way, and he has the right of ingress and egress over B's land, here the easement, while it is used by A, is plainly for the benefit of the land. When A conveys his land he conveys his right to the enjoyment of the easement, and the purchaser acquires the right to use it by virtue of his ownership of the land purchased.^' THE OWUEB OF LAND TO WHICH AN EASEMENT IS AP- PUKTENANT CANNOT CONVEY THE EASEMENT APART FROM THE LAND, NOR IN A CONVEYANCE OP SUCH LAND CAN HE RESERVE THE EASEMENT TO HIMSELF." We may sum up the essentials of a true easement in the fol- lowing statement: EASEMENTS ARE NOT PERSONAL, BUT ARE FIXED PER- MANENT INTERESTS IN LAND; THEY ARE IMPOSED NOT ON PERSONS BUT ON CORPOREAL PROPERTY; THEY ARE IM- POSED NOT FOR THE BENEFIT OF PERSONS BUT FOR THE BENEFIT OF CORPOREAL PROPERTY. There are certain other rights in land in'the nature of ease- ments which, while they receive that name, are not true ease- ments. They differ from the easements which we have been considering in that they are not appurtenant to an estate. For instance, if one not an owner of a neighboring tenement or of any tenement, has the right to drive over my land, his right to do so is personal and not attached to a dominant tene- ment. This personal right is called an easement in gross; the way. Subsequently plaintiff acquired lot two, which was not appurten- ant to the alley. The court held that the plaintiff had no right to the use of the alley except as the owner of lot 3, and could not, by virtue of a reser- vation, retain the right of way to he used in connection with lot two or any other lot, for the riglit of way was appurtenant only to lot three. '^'Reise vs. Enos, 76 Wis., 634; 8 L. R. A., 617. Stuyvesant vs. Woodruff, 21 N. J. L., 133. "Cadwalader vs. Bailey, 17 R. I., 495; 14 L. R. A., 300. BASEMENTS AND LICENSES. 387 true easement whose essentials we have been discussing is called an easement appendant or appurtenant.^* The difference in the rights of the owners of these differ- ent easements may be stated as follows: An easement in gross being personal cannot be transferred to another. Thus it was held that the grant of a right of way in gross is a mere personal privilege and expires with the grantee, notwithstanding the fact that the instrument creating it conveys it to the grantee and his heirs and assignees for- ever.^* An appurtenant easement may be transferred with the prop- erty to which it is appurtenant, and will pass as part of it with- out the use of the word "appurtenances."^" In some States, however, it has been held that an easement in gross is assign- able and is inheritable.^^ HOW CREATED. EASEMENTS AKE INTERESTS IN LAND AND CANNOT BE CREATED BY PAROL." Hiey must be created by a grant or by prescription which presupposes a grant. When created by grant, they may arise from an express grant or an express reservation, which may be in the same deed or by a separate deed.^" For instance, where one grants a portion of his land to a railroad company to be used as roadbed and reserves a right of way across the "An easement will not be construed to be personal where It can fairly be construed to be appurtenant to land. Reise vs. Enos, 76 Wis., 634; 8 L. R. A., 617. "Fisher vs. Fair, 34 S. C, 203; 14 L. R. A., 333. "Stuyvesant vs. Woodruff, 21 N. J. L., 133. Manderbach vs. Bethany Orphan Home, 109 Ga., 231. "Goodrich vs. Burbank, 12 Allen (Mass.), 459. Poull vs. Mockley, 33 Wis., 482. New York vs. Law, 125 N. Y., 380. "Taylor vs. Millard^ 118 N. Y., 244; 6 L. R. A., GC7. "Ashcroft vs. E. R." Co., 126 Mans., 196. 388 EASEMENTS AND LICENSES. portion granted, a permanent easement is created by reserva- tion.^" So an easement, by express grant, arises where the owner of one parcel of land expressly grants to an adjoining owner the right to a permanent driveway over it. The above are instances of an express reservation and of an express grant, but in some instances an easement may arise although not expressly mentioned in a deed. It may be im- pliedly included in the property conveyed or impliedly reserved from it. IMPLIED GRANT. If the owner of a close entirely surrounded by his own land, conveys it to another, he also conveys a right of way over his land to the close by implication. So, if the owner of the close conveys the land surrounding the close, he impliedly reserves to himself the right of way across the portion sold, for the benefit of the close. WHEBE LAND IS GBANTED THESE WILL PASS WITH IT, WITHOUT SPECIAL DESIGNATION, ALL EASEMENTS WHICH AEE BEASONABLY NECESSABY TO THE FAIB ENJOYMENT or THE LAND GBANTED; AND WHEBE, BEFOBE THE SEVEB- ANCE OF THE TITLE, A SEBVITTJDE HAD BEEN IMPOSED ON ONE PABT OF THE LAND FOB THE BENEFIT OF ANOTHEB PABT, AND SUCH BENEFIT IS OF A PEBMANENT CHABAC- TEB, OPEN AND APPABENT AT THE TIME OF THE TBANS- FEB, A GBANT OF THE POBTION BENEFITED WILL CONVEY WITH IT THE BIGHT TO SUCH BENEFIT." "Chappell vs. New York R. Co., 62 Conn., 195; 17 L. R. A., 420. Claflln vs. Boston & A. R. Co., 157 Mass., 489; 20 L. B. A., 638. "Bowling vs. Burton, 101 N. C, 176; 2 L. R. A., 285. Cannon vs. Boyd, 73 Pa. St, 179. Mere convenience is not sufficient to convey an easement by im- plication, but the right must be of value to the estate granted. Paine vs. Chandler, 134 N. Y., 305; 19 L. R. A., 99. In a few States only those easements which are absolutely neces- sary to the enjoyment of the property granted will pass by implied grant Robinson vs. Clapp, 65 Conn., 365; 29 L. R. A., 582, and cases cited. BASEMENTS AND LICENSES. 389 It will be seen from this statement that not only those ease- ments which are absolutely necessary to the enjoyment of the premises granted, but other easements which are reasonably beneficial to it and which are apparent and open at the time of the sale, impliedly pass on a conveyance of the property.^* IMPLIED RESERVATIONS. As to implied reservations the courts do not agree in all respects. ALL THE COURTS AGREE THAT WHERE FART OE A PIECE or LANB IS GRANTED, AND IT IS ACTUALLY NECESSARY TO THE ENJOYMENT OE THE PIECE RETAINED THAT THERE SHOULD BE AN EASEMENT IN THE PIECE GRANTED, AN EASEMENT WILL ARISE BY IMPLICATION.^ That is, where the necessity for the existence of the ease- ment is of such a strict nature that it is reasonable to suppose that it was the intention of the parties that the easement should exist in the portion sold, the courts hold that an ease- ment arises by implied reservation.^* The easement of light and air seems to be excepted from the above principle and It will not pass by implication. xpalne -vm. Cbandler, 134 N. T.. 386; 19 L.. R. A., 99. Plaintiff owned two contiguous farms, which he operated as one farm. He conveyed both farms to defendant, and subsequently re- purchased one from him. At the time of re-purchase and for a long time prior thereto, a pipe conveyed water from defendant's farm to plaintiff's farm, suflacient to supply plaintiff with water for domestic and agricultural purposes. The deed to plaintiff made no mention of the spring, and defendant diverted the water, cutting off plaintiff's sup- ply from the pipe. It was held that while the supply of water from the pipe was not absolutely necessary to plaintiff's use of the farm, yet it was essential to its full enjoyment, and the right to the enjoyment of the spring passed by implication under the deed of the farm. "'Logan vs. Stogdale, 123 Ind., 372; 8 L. R. A., 58. "Burns vs. Gallagher, 62 Md., 462. Buss vs. Dyer, 125 Mass., 287. Mitchell vs. Selpel, 53 Ind., 251. Cihak vs. Klekr, 117 111., 642. Paine vs. Chandler, 134 N. Y., 385. 390 EASEMENTS AND LICENSES. Most of the courts refuse to extend the doctrine of implied reservations beyond this actual necessity."' These decisions are based on the reasoning that a grant is most strongly construed against the grantor, and that any- thing in derogation of a full grant should be in express terms and not by an implied reservation."" In other words most of the courts make a distinction between implied grants and implied reservation of an easement, and no easement wiU be held to be reserved by implication unless it is necessary to the enjoyment of the property not granted. Other courts have extended this doctrine of implied reser- vations of easements, holding that the purchaser takes the property with all the burdens which appear at the time of the sale, and that the grantor has a right by an implied reserva- tion to those uses of the estate conveyed which were perma- nent and apparent at the time of the sale. These cases are based upon this reasoning, that the parties are presumed to contract in reference to the property in the condition in which they find it at the time of the sale, and that if the burdens on it are open and visible, the purchaser takes the property subject to it, the same as he takes the open ■Klnssley vs. GonldsboronKli Land Improvement Co., 86 He., 279; 26 L. R. A., 602. This is an action for trespass. Defendant owned a neck of land surrounded on three sides by water, and plaintiff's land adjoined it on the other side. Plaintiff's and defendant's land were at one time owned by the same person, and defendant claimed that it had a right of way by necessity over plaintiff's premises. The court held that the defendant had the free use of the water in going to and from its land and that while it might be more convenient to pass over defendant's land than to be subjected to the inconvenience of using the water, yet this Inconvenience is not such as the law required to constitute a legal necessity for the way claimed. See also: Shoemaker vs. Shoemaker, 11 Abb. (N. C), 80. "Mitchell vs. Selpel, 53 Ind., 251. Preble vs. Reed, 17 Me., 169. EASEMENTS AND LICENSES. 391 benefits attaching to it, and that the parties have no right to alter the condition of the property opeuly existing at the time of the sale, and thereby change materially the value of the respective parts.-' The first ruling is supported by the weight of authority. What easements are reasonably necessary for the enjoyment of the grant must depend upon the circumstances of each par- ticular case. It may be stated that easements which are appa- rent and continuous, i. e., easements of which the use may be had without the intervention of man, as a drain or lateral support, pass by implication. Whether discontinuous ease- ments being such that they may be used only by the inter- vention of man, such as a highway, a right to draw water, are granted or reserved by implication, must depend upon the circumstances of each case and the application of the rules already stated. EASEMENT ARISING FROM COVENANTS. It is sometimes said that an easement is implied from the covenants in a grant which restrict the use of the land granted for the benefit of adjoining property. Thus, where a covenant in a deed provides that no buildings shall be erected within a certain distance from the street, it has been held that the right of an adjoining owner is in the nature of an easement, and that he may prevent the erection of a building violating the terms of the grant.'* BY PRESCRIPTION. At the common law, the possession and enjoyment of an easement from a time "whereof the memory of man runneth "rLampman vs. Milks, 21 N. Y., 505. Galloway vs. Bonestele, 65 Wis., 79. Sanderlln vs. Baxter, 76 Va., 299. "Bagnall vs. Daves, 140 Mass., 76. PiEgree vs. McDuffie, 56 N. H., 306. Rose vs. Hawley, 118 N. Y., 502. 392 EASEMENTS AND LICENSES. not to the contrary" gave rise to a conclusive presumption that the right was originally founded on a grant. This common law doctrine has been superseded by the statute of limitations. A title to an easement is now said to be by prescription where there has been an open, continued, exclusive and adverse enjoyment of the right for a period pre- scribed by the Statute of Limitations, necessary to constitute a title to land by adverse possession. There is a difference of opinion as to the effect of this adverse possession for the re- quired period. In some States the courts hold that at the expiration of the period required by the statute a presumption arises that the person possessing and enjoying the easement had a grant and title to it, but that this presumption might be rebutted.^' Other courts hold that at the expiration of the time fixed by the Statute of Limitations, the presumption of a grant is conclusive and may not be rebutted.*" To constitute a title by prescription there must be: 1. An open, uninten-upted, continuous, adverse and exclu- sive enjoyment of the easement for a period required by the Statute of Limitations.^^ In other words, the enjoyment must be so open and notorious that the owner of the servient tenement will have actual or presumed knowledge of it. ^^ The enjoyment must be continuous, for if the claimant aban- dons his right for a period he loses any prescriptive rights he may have up to that time. It is not necessary that the enjoyment of the easement should be continuous by the same person. It is sufficient if it be enjoyed continuously "Curtis vs. La Grande Hydr. Water Co., 20 Or., 34. "Tinkham vs. Jackson, 20 Pa. St., 331. Cornett vs. Puddy, 80 Va., 503. Hoag vs. Place, 93 Mich., 450. "Garrett vs. Jackson, 20 Pa. St., 331. EASEMENTS AND UOBNSES. 393 by persons in privity with each other, such as vendor and ven- dee.'* The enjoyment of the easement must be exclusive of others who have no title.'' If the easement is enjoyed by the public, no presumptive right arises for the benefit of a private person as such. 2. The enjoyment of the easement must be adverse to the owner of the land; in other words, it must be hostile and under a claun of right. The user, for instance, if under a license from the owner, can not, though continued for any period, ripen into a title by prescription.'* 3. The running of the statute must be for the required period after the time the owner can legally enforce his rights to the land. The statute does not commence to run against an infant or one under other legal disability until the disability is removed." In some States the courts hold that if the disability arises after the enjoyment of the easement has commenced and after the statute has once begun to run, it will not prevent the ac- quisition of a title by prescription." HOW LOST OR EXTINGUISHED. An easement may be lost or extinguished in any one of the following ways : 1. BY A MERGER OF THE TWO ESTATES. When the same person becomes the owner of the servient and dominant estates, the easement ceases, since the owner "^Melvin vs. Whiting, 13 Pick (Mass.), 184. "Pearsall vs. Post, 20 Wend. (N, Y.), 111. ='Curtis vs. La Grande Hydraulic Co., 20 Or., 34; 10 L. R. A., 484. Eckerson vs. Crippen, 38 Hun., 419. Morgan vs. Meuth, 60 Mich., 238. Burbank vB. Fay, €5 N. Y., 67. The essentials of adverse possession are stated hereafter. "Watkin vs. Peck. 13 N. H., 3t>0. "Ballard vs. Demmon, 156 Mass., 449. Tracy vs. Atherton, 36 Vt, 503. 394 EASEMENTS AND LICENSES. having the absolute control of all the property, it cannot be said that an easement exists in his favor in any part of it.'^ To have the effect of merging the estates, the owner's title in each portion must be co-extensive and co-equal. For in- stance, if the owner should own only a fractional part of one estate and all of the other, the easement would not be extin- guished.** And so if the dominant estate when conveyed to the owner of the servient estate is limited in its duration, the easement would only be extinguished during the time the ser- vient owner had the right to the two estates, and it would revive after the right ceased.*' 2. BY RELEASE. A release by the dominant owner in writing will extinguish the easement.*" A parol release ordinarily is not suflScient, but if the parol release becomes executed by the performance of acts in reli- ance on it by the servient owner, it is a valid release. 3. BY ADVERSE USER. An easement may be lost by an adverse user by the servient owner for the period required by the Statute of Limitations.*^ In some States a distinction is made between easements acquired by prescription and those acquired by grant. In such States it has been held that the former may be lost by mere non-user for the required period, without any adverse claim on the part of the servient owner, but that an "Morgan vs. Meuth, 60 Mich., 238. "Atlanta Mills vs. Mason, 120 Mass., 244. "Tyler vs. Hammond, 11 Pick (Mass.), 193. Grant vs. Chase, 17 Mass., 443. "Hamilton vb. Farrar, 128 Mass., 492. "Snell vs. Levitt, 110 N. Y., 595; 1 L. R. A.. 414. BASEMENTS AND LICENSES. 395 easement acquired by grant can only be lost by an actual ad- verse user.** This distinction has been questioned by many courts, and easements created by deed and those acquired by prescription are in some States placed on the same footing.*' While it is generally true that a non-user is not of itself suflQcient to extinguish the easement,** yet when such non-user is accompanied by acts on the part of the dominant owner which manifest an intention to abandon, and which de- stroy the object for which the easement was created or the means of its enjoyment, the easement will be regarded as abandoned.*" 4. BY ESTOPPEL. Where the owner of the dominant estate grants permission to the servient owner to perform acts which permanently de- stroy the easement, and the servient owner relying on such permission erects buildings or does other acts which so change his circumstances that a revival of the easement would work him an injury, the dominant owner will be estopped from re- viving the easement. "In the case of Day vs. Walden, 46 Mich., 575, Justice Oooley states the reason of the rule as to easements created by grant, as follows: "The grant was perpetual and without conditions, and therefore the privilege granted would continue indefinitely whether the grantee did or did not avail himself of it. An accepted grant cannot be waived or abandoned, and the neglect of the grantee to enjoy the easement would be no more significant in its bearing upon his right than the neglect to enjoy the freehold to which the easement was appurtenant." *^Veghte vs. Raritan Co., 19 N. J. Eq., 142. "Welsh vs. Taylor, 134 N. Y., 450; 18 L. R. A., 535. Dill vs. Camden Bd. of Education, 47 N. J. Eq., 421; 10 L. E. A., 276. "Jonea vs. Van Bochove, 103 Mich., 98. A cement company owned a right of way from a marl bed to its factory. After operating for a while the company failed and Its fac- tory was torn down and the fences enclosing the right of way were re- moved. The court held that the non-user of the easement with so clear an Intent to abandon amounted to an absolute abandonment of the easement. 396 EASEMENTS AND LICENSES. Thus, where one having an easement to the light and air over another's land permits and consents to the erection of a building which destroys his easement, he cannot afterwards maintain a claim to his easement. 5. BY MISUSER. Where the owner of the easement so increases his use of it that it loses its original character and cannot be restored, the easement is extinguished. K the original easement can be separated and restored it is not extinguished.*' 6. BY EMINENT DOMAIN. Where the easement is inconsistent with the use for which the servient estate is taken, it is condemned with the land. Compensation must, under such circumstances, be made to the owner of the easement.** 7. WHEN THE PURPOSE FOR WHICH THE EASEMENT WAS CREATED CEASES, THE EASEMENT CEASES. Thus, where an easement arose by necessity in a stairway for egress and ingress to a certain part of a building, it was held that on the destruction of the building the easement ceased.*' RIGHTS AND LIABILITIES OF THE OWNERS OF THE TENE- MENTS. THE DOMINANT OWNER IS CONFINED TO THAT USE OF THE SERVIENT TENEMENT WHICH IS SUFFICIENT AND NECESSARY TO CARRY OUT THE PURPOSE FOR WHICH THE EASEMENT WAS CREATED." ♦'Wilttler vs. Cocheco Mfg. Co., 9 N. H., 454. ♦^Webster vs. Lowell. 142 Mass.. 324. "Hahn vs. Baker Lodge, etc., 21 Or., 30; 13 L. R. A., 158. "Herman vs. Roberts, 119 N. Y., 37; 7 L. R. A., 226. Shaughnessey vs. Leary, 161 Mass., 108. Noyes vs. Hemphill, 58 N. H., 536. EASEMENTS AND LICENSES. 397 THE SERVIENT OWNER MAT MAKE ANY XJSE OT HIS LAND WHICH DOES NOT INTERFERE WITH THE REASON- ABLE ENJOYMENT OE THE EASEMENT." In the absence of an agreement, the dominant owner must make repairs, necessary to the enjoyment of the easement, and for that purpose he may go upon the servient estate to make reasonable repairs and to remove obstructions." The owner of the dominant estate has three remedies for the obstruction of the easement. 1. If a reasonable necessity exists, he may go upon the servient estate and abate the nuisance. 2. He may commence a proceeding in equity to restrain any further injury or encroachment on the easement. 3. He may have an action at law for the damage to the easement. The most important easements are, in reference to air and light, lateral and subjacent support, party walls and rights of way. LIGHT AND AIR. AN EASEMENT IN LIGHT AND AIR CONSISTS IN THE RIGHT TO ENJOY THE LIGHT AND AIR COMING EROM AN- OTHER'S LAND, EREE EROM ANY ARTIFICIAL OBSTRUCTION. "Olcott vs. Thompson, 59 N. H., 154. Hermann vs. Roberts, 119 N. Y., 37. Moffat vs. Lytle, 165 Pa. St., 173. HoUlns T8. Demorest, 129 N. T., 676; IS L. R. A., 487. Suit brought to enjoin encroachment on a private way granted in 1837. The defendant was the owner of property subject to a right of way fifteen feet wide to be used for certain purposes mentioned In the grant. Defendant's lessee erected fourteen feet over said way a building, supported on two iron posts, set on the easterly edge of the way, but leaving a clear space for the way exceeding fifteen feet in width. The court refused to issue an injunction and held that the defendant could use the property in any way not inconsistent with the easement, and that the building did not interfere with the nse of the way for the purposes mentioned in grant. '"Wheeler vs. Wilder, 61 N. H., 2. Joyce vs. Conlin, 72 Wis., 607. 398 EASEMENTS AND LICENSES. In England this right conld be acquired by prescription. At the common law, the uninterrupted enjoyment of the light and air coming over another's property to the windows of an adjoining owner, for a long continued period, raised the pre- sumption of a grant, and the right "ripened into the character of an ancient light which could not be interfered with." Subsequently, the time of enjoyment of the light and air, in order to give rise to the easement, was fixed at twenty years, after which time the right became absolute. As a general rule, this doctrine does not obtain in this country. Most of the courts regard it as inapplicable to the conditions existing in the United States, where the rapid growth of the country would be retarded by such a holding."* In most of the States, an easement in light and air can only be created by grant."' In some States the courts have held that there may be an implied grant or an implied reservation; and that where a grantor conveys a portion of his land to another, and it is absolutely necessary to the enjoyment of the piece granted that the air and light should be allowed to come freely over the piece retained, an easement wUl arise by implication.^* Other courts hold that easements in light and air cannot arise by implication."^ "Parker vs. Foote, 19 Wend (N. T.), 309. Keats vs. Hugo, 115 Mass., 204 Contra Gertier vs. Grabel, 16 111., 217. Taylor vs. Boulware, 35 La. Ann., 469. ■"■K eating vs. Springer, 146 111., 481; 22 L. E. A., 544. "Turner vs. Thompson, 58 Ga., 268. "See Hagerty vs. Lee, 54 N. J. (h), 580. Robinson vs. Clapp, 65 Conn., 365; 29 L. R. A., 582. Keiper vs. Klein, 51 Ind., 316. Mullen vs. Strieker, 19 Ohio St, 135. ICenneay vs. Bnrnap, 120 Cal., 488) 40 L. R. A., 476. This was an action to restrain defendant from cutting off the light and air from plaintiff's window. In 1881 one Hanhury owned certain lots in San Diego having a frontage of 145 feet; on the north 50 feet of the tract he built a lodging house. The windows of the upper stories opened out upon the vacant lots, admitting light and air. BASEMENTS AND LICENSES. 399 The cases in which an easement in light and air are created by grant are comparatively few. When there is any express grant of this easement the courts will enforce the agreement and will restrain any interference with the right granted."' In some States the courts hold that while an adjoining owner has a legal right to make erections on his own land, yet he has no legal right to make erections not for any benefit to himself, but for the malicious purpose of damaging his neighbor by shutting off his light and air. "The right to breathe air and enjoy sunshine is a natural one; and no man can pollute the atmosphere, or shut out the light of heaven for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice toward his neighbor.""^ Other courts hold that where the owner has a legal right to make the erection complained of, the courts will not inquire into his motives, so long as he does not violate the rights of others.'" Hanbury used the building In this condition for about nine years, when he conveyed it to the plaintiff. The vacant lots were subsequently conveyed to the defendant. Defendant in May, 1896, began the erection of a three-story building on his lots, close to and against plaintiff's building, so as to close up and darken said windows and shut off all light and air. Plaintiff then began this proceeding, alleging that the proposed building would de- stroy one-third of the value of her property and render the south part of her building uninhabitable. The court held that an easement would not arise by implication. "To imply the grant of such a right in either case without express words, would greatly embarrass the improve- ment of estates, and, by reason of the very indefinite character of the right inserted, promote litigation. The simplest rule and that best suited to a country like ours, in which changes are taking place in the ownership and use of land, is that no right of this character can be acquired without the grant of an interest in or covenant relating to the lands over which the right is claimed. Judment of lower court for defendant affirmed. ■"Low vs. Streeter, 66 N. H., 36; 9 L. R. A., 271. ='Burke vs. Smith, 69 Mich., 380-389. Flaherty vs. Moran, 81 Mich., 52. '"Mahan vs. Brown, 13 Wend. (N. Y.), 261. Guest vs. Reynolds, 68 111., 478. Phelps vs. Nowlen, 72 N. Y., 39. Walker vs. Cronin, 107 Mass., 555. 400 EASEMENTS AND LICENSES. LATERAL SUPPORT. THE RIGHT OF LATERAL SUPPORT IS THE RIGHT TO HAVE ONE'S LAND SUPPORTED BY ADJOINING LAND. The right of lateral support of land in its natural state is not an easement, but is a natural right incidental to the ownership of the land. The owner of the adjoining soil has no more right to remove the support to his neighbor's land, in its natural state, than he has to remove his neigh- bor's land; for if he commits either of these acts he invades his neighbor's rights of property. The removal of the support of land in its natural state is not and cannot be justi- fied by a claim by the adjoining owner that in excavating his property he acted in a careful and prudent manner; for such claims cannot justify the violation of rights of property." If the lateral pressure on the adjoining land is increased by the erection of buildings, a different question is presented. Under such circumstances, it may be said: First, the right to the support of the natural weight of the land, i. e., without buildings, continues. Second, the right does not extend to the support of artificial burdens. In other words, the right to have extra and artificial burdens on the land supported by adjoining land, is not a natural right.'^ Third, the right to have the extra burden supported may be acquired; and when acquired is an easement appurtenant to the property on which the building is situated."^ These propositions require no explanation. The first propo- sition is not supported in all cases by all courts,'* but the "Foley vs. Wyeth, 2 Allen (Mass.), 131. Farrand vs. Marshall, 35 N. Y., 520. ■"Moellerlng vs. Evans, 121 Ind., 195. "Barry vs. Bdlavitch, 84 Md., 95; 33 L. R. A., 294. Stevenson vs. Wallace, 27 Gratt (Va.), 77. »»Gllmore vs. DriscoU, 122 Mass., 199. EASEMENTS AND LICENSES. 401 weight of authority and better reasoning support it.'" It was formerly held in England and in a few States in this country, that the easement requiring the support of buildings might be acquired by prescription; but it is now the general, if not the uniyersal rule, that it cannot be acquired by prescription." It is difScuIt to see how this easement could arise by pre- scription, for there can be no possession of anything belonging to another, "no encroachment on another's right, no adverse user, in fact, nothing done whatever against which another could complain or for which an action could be brought; and no remedy existing whereby to prevent such a presumption from arising.'"^ A further reason is given that such a doctrine could not be applied to the conditions of a country which is growing so rapidly as the United States without working injurious results. The easement of lateral support in this country can only arise from an express or implied grant. The following is an instance of an implied grant: Where the owner of a building conveys it and retains land adjoining it which is necessary to the support of the building sold, it was held that there was an implied grant of a lateral support of the building.'* If the easement exists, the owner of the adjoining soil has no more right to remove the lateral support sufficient to main- tain the increased burden, than he has to remove the support to the land in its natural state. If no right to the support of the extra burdens exists, there are yet some obligations resting on the owner of the adjoining land. If he is about to «= Aurora vs. Fox, 78 Ind., 1. "Gllmore vs. DriscoU, 122 Mass., 199. "Mitcbell vs. The Mayor, etc., 49 Ga., 19. "Montgomery vs. Masonic Hall, 70 Ga., 38. 27 402 EASEMENTS AND LICENSES. excavate Ms land, so that the support to the adjoining land may be endangered, he must perform certain duties. First, he must notify the adjoining owner of the extent and nature of the excavations, and after such notice give him a reasonable opportunity to prop up his building, for which purpose a rea- sonable use may be made of the premises adjoining the build- ing.'"' Second, he must, in carrying on his work of excavating, exercise reasonable skill and care.'^ Thus, it was held that, under certain circumstances, an excavation should be made in sections, so that the entire wall should not be exposed at one time.'^^ SUBJACENT SUPPORT. THE KIGHT OF SUBJACEBTT SUPPORT IS THE RIGHT TO HAVE ONE'S LAND SUPPORTED BY THE SOIL BENEATH IT. We have seen that one man may own the surface and an- other the soil or a portion of the soil beneath the surface! The owner of the portion beneath the surface, while he has a right to work or mine it, must not take away a support sufficient to maintain the surface in its natural condition; neither is he entitled to remove the support of artificial bur- dens which were on the surface at the time of his grant." If this support is removed, the owner of the lower portion is liable for damages to the owner of the surface; and he is liable for injuries to buildings erected after his grant, which are occasioned by negligent excavation.''* Where portions of a house are owned by different persons, the same general principles as to support apply. Thus, the "Sclmltz vs. Byers, 53 N. J. L., 442. Lawson vs. Railroad Co., 110 Mo., 234. "United States vs. Peachy, 36 Fed. Rep., 160. "La Sala vs. Holbrook, 4 Paige Ohy., 169. "Jones vs. Wagner, 66 Pa. St., 429. "Marvin vs. Mining Co., 55 N. Y., 538. BASEMENTS AND LICENSES. 403 owner of the upper story has a right to have it supported by the lower stories; and he has an easement in the halls for ingress and egress to his portion of the building J' The owner of the lower floor has an easement in the upper half for pro- tection from rain, etc. In such a case some courts hold that each owner must keep his respective portion in good repair, while other courts have indicated that the expense shall be a common charge on all the owners.'* PARTY WALLS. PARTY WALLS ARE WALLS BETWEEU TWO BXTILDINaS, WHI CH ARE USED FOR THE MTTTITAL BENEFIT OF THE BtJILDINGS." The essential requisite of a party wall is that it may not be enjoyed exclusively by one owner to the exclusion of an adjoining owner, but may be enjoyed by each of the adjoin- ing owners as a matter of right.'* It is a substitute to each owner for a separate wall.'' This mutual right to enjoy the wall may exist under va- rious circumstances. 1. The wall may be owned by the adjoining owners as tenants in common. 2. The wall may be divided into two strips, one belonging to each of the neighboring owners. 3. The wall may be owned entirely by one of the adjoin- ing owners, and be subject to an easement or right in the other to have it maintained as a dividing wall between the two tene- ments. "Mayo vs. Newhoff, 47 N. J. Cheeseborough vs. Green, 10 Ck)nn., 318. '•Campbell vs. Mesler, 4 Johns Chy., 334. "Harber vs. ESvans, 101 Mo., 661; 10 L. R. A., 41. "Harber vs. Evans, 101 Mo., 661. "Bverett vb. Edwards, 149 Mass.. 588. 404 EASEMENTS AND LICENSES. 4. The wall may be divided into moieties, each, moiety being subject to a cross easement in favor of the owner of the other moiety.*" A study of these statements will disclose to the student that the right to enjoy a party wall is not always an easement Party walls may be created by prescription, by agreement, or by statute. The uninterrupted use of another's wall by the adjoining owner for a period required by ihe Statute of Limita- tions raises a presumption of a grant*^ The most common method of creating a party wall is by agreement. Usually the parties agree to build a wall partly on the land of each of them, to be used as a common wall and to be paid for by both parties. It frequently happens that only one of the proprietors desires to build and the other does not, in which case the parties usually agree that the proprietor desir- ing to buUd the wall may erect it partly on the land of each owner, at his own expense, and that when the ad- joining owner desires to make use of the wall, he must pay his proportion of the expense of building the wall.'* An action at law can be maintained on a promise to contribute a portion of the expense of a party waU.*^ If, under the terms of the agreement, the wall does not belong to the owner not erecting it until he pays his share, and such owner conveys his prop- erty to another who has notice of the agreement, the latter, if he makes use of the wall, must pay a proper proportion of the cost of the wall.'* "This statement of the circumstances tinder which a party wall may exist is made in 18 Am. & Eng. Eney., 4. "Schlle vs .Brokhahus, 80 N. Y., 614. Dowling vs. Hennlngs, 20 Md., 179. "Matthews vs. Dixey, 149 Mass., 595; 5 L. R. A., 102. "Swift vs. Oalnan, 102 Iowa, 206; 37 L. R. A., 462. "Maine vs. Cumston, 98 Mass., 317. EASEMENTS AND LICENSES. 405 A contrary rule prevails if the agreement to pay is merely a personal obligation on the part of the first owner.*" Under some circmnstances the agreement under which the right to use the wall arises, need not expressly confer the right; but it may arise from an implication. Thus, where a person owning two adjoining lots, erects a building on each of them, having a common wall, and afterwards conveys the lots to dif- ferent owners, each of the latter has an easement in the wall for the support of his building.** In some States party walls are regulated by statute. Under some of the statutes an adjoining owner can build partly on the adjoining property and compel the adjoining owner to pay a portion of the expense if he makes use of the wall.*' Once the party wall is created, there arise certain obliga- tions and privileges on the part of the adjoining owners. The portion of the wall on the property of one owner is his own property, but it is burdened with an easement to support his neighbor's building. He is therefore under obligation to do nothing which wiU impair the use of the easement by his neighbor. For instance, he may not tear down the wall; neither can he weaken it by putting in windows or by other means.** A PABTT WAIL IS A SUBSTITXTTE FOB SEPARATE WALLS, AND AN ADJOINING OWNER IflAY MAKE ANY USE OF IT THAT HE COULD OF A SEPARATE WALL, PROVIDINa HE DOES NOT IMPAIR THE RIGHTS OF HIS NEIGHBOR." "List vs. Hombrook, 2 W. Va., 340. "Rogers vs. Slnshelmer, 50 N. Y., 646. "Everett vs. Edwards, 140 Mass., 588; 5 L, R. A., 110. "Bertram vs. Curtis. 31 la., 46. A similar statute was lield to b* unconstitutional in Massachusetts, since It deprived the owner of his property without his consent or due process of law. Wllkins vs. Jewett, 139 Mass., 29. "Harber vs. Evans, 101 Mo., 861; 10 L, B. A.. 41. Graves vs. Smith, 87 Ala., 450; 5 L. B. A., 298. '"Everett vs. Edwards, 149 Mass., 588; 5 L. R. A., 110. Heartt tb. Kruger, 121 N. Y., 386; 9 L. R. A., 186. 406 EASEMENTS AND LICENSES. Thus, he may build the wall higher or alter it by deepening the foundation, providing he does not injure the other owner's right in the wall.°° The rights and obligation of the parties do not continue for any definite period. The rule is that neither of the parties can impair the other's easement, so long as the party wall fulfills the purpose for which it was erected. When the purpose for which it was created ceases, the easement ceases. Thus, the courts have held that the easement in the wall ceases when the house of which it was a part is destroyed, even though the wall remains."^ The easement continues for the natural life of the walls or for its actual life if it be destroyed. Of course, there may be inserted in the agreement provisions as to re- building in case of destruction. As a general rule, either of the parties may make necessary repairs to the wall and enforce a contribution from the other owner.'* In the absence of an agreement, express or implied, one using a party wall erected by another is not under a legal obli- gation to pay for it." WATER. The rights which riparian owners and others have in water, vary under different circumstances. We will consider these rights in reference, first, to natural watercourses, second, to artificial watercourses, and, third, to percolating and surface water. "Field vs. Leiter, 118 111., 17. Neffus vs. Becker, 143 N. T., 303; 25 L. R. A., 667. Mattiews vs. Diiey, 149 Mass., 595; 6 L. R. A., 102. "Hoffman vs. Kuhn, 57 Mass., 746. "List vs. Hombrook, 2 W. Va., 340. "'Abrahams vs. Krautler, 24 Mo., 69. EASEMENTS AND LICENSES. 407 NATURAL WATBROOURSES. A watercourse has been defined as "a living stream with defined banks and channels, not necessarily running all the time, but fed from other and more permanent sources than mere surface water.""* There is no right of property in natural watercourses. The riparian owners have a natural right, as an incident to their ownership, to make use of a natural watercourse. This right is not absolute, but is limited and qualified by a similar right in others. The riparian owner may make a reasonable use of the water for domestic, agricultural and manufacturing purposes, but in doing so he must have regard to similar rights of others below and above him on the same stream."^ It is impossible to state any general rule by which it may be determined what is a reasonable use, since each case must rest upon its own par- ticular circumstances. The size of the stream, the velocity of the current, the nature of the bank, the character of the soil, the necessity for the use, and the general custom as to usage, must all be taken into consideration."" If a reasonable use is made of the stream, the lower owner has no cause of action."^ In the case of a small spring, which was accustomed to run through another's land, it was held that a riparian owner might appropriate the entire flow if it were necessary to supply his natural wants, that is, wants necessary to be supplied for the existence of man and beast. "JeHers vs. Jeffers, 107 N. Y., 650. "Merrifield vs. Worcester, 110 Mass., 219. Ulbricht vs. Bufaula Water Co., 86 Ala., 587; 4 L. R. A., 572. Fulmar vs. Williams, 122 Pa., 191; 1 L. R. A., 603. «Tlmm vs. Bear, 29 Wis., 265. Baltimore vs. Appold, 42 Ind., 457. "Merritt vs. Brinkerhoff, 17 Jobns. (N. Y.), 306. Dumont vs. Kellogg, 29 Mich., 420. Merrifleld vs. Worcester, 110 Mass., 219. 408 BASEMENTS AND LICENSES. THE GEITEIIAL RtTLE IS THAT ANY USE OF THE STBEAM WHICH MATERIAXLY AFFECTS ITS QUANTEITY OB QUALITY, AND PREVENTS IT FROM FLOWING TO THE LOWER OWNER IN ITS NATURAL STATE, IS AN UNREASONABLE USE. By this is not meant that under some circumstances the flow of the stream may not be lessened, but rather .that a use which materially impairs another's natural right to enjoy the stream, is unreasonable. Thus the diversion of the natural course of the stream, so as to deprive the lower owner of its use, is an unreasonable use, and the lower owner may have redress for the same."' Neither may the water be polluted, for the lower owner's rights extend to the quality as well as to the quantity of the water.^"" The lower owner is also entitled to the natural flow of the stream, so that an upper owner will be responsible for any damage from overflow resulting from his removal of a natural barrier.^"^ It is a question for the jury to determine under all the cir- cumstances, whether or not a particular use of the stream is reasonable.^"^ The natural rights in the stream as stated are incidental to a riparian ownership only, and do not extend to the owners of property not bordering on the stream.^"' "Hogg vs. Water Co., 168 Pa. St., 456. West Point Iron Co. vs. Reymert, 45 N. Y., 705. "•Rumsey vs. N. Y. & N. B. R. Co., 133 N. Y., 79; 15 L. R. A, 618. Drake vs. Lady Bnsley Coal Co., 102 Ala., 501; 24 L. R. A, 64. Holsoman vs. Boiling Springs Bleaching Co., 14 N. J. Eq., 335. Greene vs. NunnemacEer, 36 Wis., 50. "■Grant vs. Kuglar, 81 Ga., 637; 3 L. R. A, 606. ""Pool vs. Lewis, 41 Ga., 162. Holden vs. Lake Co., 53 N. H., 552. ""Henry vs. Newburyport, 149 Mass., 582; 5 L. R. A., 179. Hayden vs. Long, 8 Oregon, 244. Aetna Mills vs. Waltham, 126 Mass., 422. Huston vs. Bybee, 17 Oregon, 140; 2 L. R. A., 568. Prentice vs. Geiger, 74 N. Y., 342. Huston vs. Bybee, 17 Oregon, 140; 2 L. R. A, 568. EASEMENTS AND LICENSES. 409 These natural rights may be extended and increased, and the acquired rights in a stream, over and above the natural rights, are easements. Easements in a stream may be acquired by prescription or by grant. The adverse and continuous user of a right in a stream, greater than a natural right, for a period required by the Statute of Limitations in reference to adverse user of lands, give rise to a presimiption of a grant of the increased right. After the right by prescription is acquired the rights thereby acquired become a substitute for the natural conditions pre- viously existing, and the parties interested may compel the maintenance of the new conditions."^ Thus, the right to main- tain a dam which infringes upon the natural rights of a lower owner, may be acquired by an adverse -user for twenty years."' In some of the western States the courts hold that one who first appropriates a stream has a special right in it;^" but as a general rule, a riparian owner has no greater right in a stream than his natural right, unless his appropriation be adverse and continued for a period required by the Statute of Limitations."' Eiparian rights will not be lost by a mere non-user."" So, also, the rights of the riparian owner may be increased by an agreement or grant from the persons affected by the in- creased user.^^" In navigable rivers, the rights of the riparian owner must be enjoyed in a manner consistent with the right of the public "■Smith vs. Youmans, 96 Wis., 103; 37 L. R. A., 285. "'Campbell vs. Talbot, 132 Mass., 174. Mathewson vs. Hoffman, 77 Mich., 420; 6 L. R. A., 349. '"Irwin vs. Phillips, 5 Oal., 146. Schilling vs. Eominger, 4 Colo., 100. Reno Smelting Co. vs. Stevenson, 20 Nev., 269; 4 L. R. A,, 60. •"Dumont vs. Kellogg, 29 Mich., 420. Bearse vs. Perry, 117 Mass., 211. Huston vs. Bybee, 17 Or., 140; 2 L. E. A., 568. '"Whitney vs. Wheeler Cotton Mills, 151 Mass., 396. •"Stowell vs. Lincoln, 77 Mass., 434. 410 EASEMENTS AND LICENSES. to use tlie stream for navigation ;^^^ and no prescriptive rights can arise therein as against the public.^^^ AKTIFIOIAL WATERCOURSES. The lower owners have no natural rights in an artificial watercourse. They have no right to its continual flow or en- joyment, unless they acquire such a right either by grant or by prescription.^^* Canals are the most familiar examples of artificial water- courses. PERCOLATING AND SURFACE WATER. Percolating and surface waters, not running in a defined channel, are considered as part of the land, and may be the subject of absolute ownership.^^* The owner may entirely appropriate the surface water on his land or divert it in any proper way.^^' So, he may sink shafts and make any lawful and exclusive use of subterranean waters^ and this is true, even though his neighbor's well be injured thereby.^^' But the diversion or pollution of a subterranean stream flowing in a well defined channel is governed by the same rules as a running stream on the surface of the earth.^'^ An adjoining owner may not cut off the supply \o his neigh* bor's well simply for the purpose of injuring him.^*** There is a difference of opinion as to the rights of drainage of surface water. In many States the upper owner has a right "'Hubbard vs. Bell, 54 HI., 110. ""Concord Mfg. Co. vs. Robertson, 66 N. H., 1; 18 L. R. A., 679. "•Murchie vs. Gates, 78 Me., 300. Taylor vs. Flckas, 64 Ind., 167. "•Chase vs. Silverstone, 62 Me., 175. "'Johnson vs. Ch., St. P. & O. R. Co., 80 Wis., 641; 14 L. R. A., 495. "'Ocean Grove Ass'n vs. Asbury Park, 40 N. J. Eq., 447. Klnnaird vs. Standard Oil Co., 89 Ky., 468; 7 L. R. A., 451. "'Tampa Water Works Co. vs. CUne, 37 Fla., 586; 33 L. R. A., 376. "•Chase vs. Silverstone, 62 Me., 175. BASEMENTS AND LICENSES. 411 to the natural drainage of surface water over his neighbor's land. In these States the courts hold that the lower owner has no right to obstruct the natural flow of the water from the higher land."* This servitude extends only to the natural flow and does not entitle the higher owner to increase the flow by diverting water which would naturally flow in another direc- tion."" The courts holding this view base it on the reasoning that nature intended such a drainage, and that it is just that property should be held subject to the pre-existing laws and arrangements of nature.^''^ In other States the courts hold that the lower owner may, under some circumstances, obstruct the flow of surface water on his land, which naturally flows from his neighbor's land. This ruling is based upon the holding that a man may use his land for any lawful purpose he pleases, and that an improve- ment of it, which changes the surface and prevents or changes the natural flow is a legal right.122 The right to drain surface water over another's land may be acquired by prescription-^^s So, also, the right to have the rain dripping from one's roof on another's land, may be acquired by prescription. HIGHWAYS. A BIGHT OP WAY IS A RIGHT TO PASS OVER ANOTHER'S LAND. There is nothing unusual in the law of rights of ways; they are the most common easements and are subject to the princi- "•Vannest vs. Fleming, 79 Iowa, 638; 8 L. R. A., 277. ""Anderson vs. Henderson, 124 111., 170. Wharton vs. Stevens, 84 Iowa, 107; 15 L. R. A., 630. "'Gillham vs. Madison Co. R. Co., 49 111., 484. Hughes vs. Anderson, 68 Ala., 280. Boynton vs. Langley, 19 Nev., 72. ""Taylor vs. Fickas, 64 Ind., 167. Morrison vs. Bucksport, 67 Me., 356. "•Gregory vs. Bush, 64 Mich., 37. 412 EASEMENTS AND MCENSES. pies already stated. In this connection we cannot do more than call the attention of the student to the application of some of those principles to rights of persons in private and public ways. PRIVATE WAYS. The place from which the right of way starts on the dom- inant estate is called the terminus a quo, and the place where it ends on the servient estate is called the terminus ad quem. A private right of way may be created In any of the ways already mentioned. When the way is created by a grant for a particular purpose, the grantee is limited to the use of the way to the purpose and in the manner mentioned in the grant, "He cannot go out of the limits of the way, nor use it to go to any other place for any other purpose than that specified, if the use in this respect is restricted."^^* Thus, where the owner conveyed a portion of his land reserving a right of way across it, "for the purpose of carting wood," it was held that the right of way was limited to the purpose of carting wood, and could not be enlarged.^'"' Where the grant is in general terms or for all purposes, or the way arises from necessity, the use of it is not restricted to any particular purpose, but the grantee may use it for all pur- poses reasonably necessary to the enjoyment of the dominant estate. If the right of way be particularly described in the grant, as, for instance, by the words "as it is now established," the servient owner cannot abridge the use of the way without the consent of the dominant owner.^^* Where a grant is made of land surrounded or nearly sur- rounded by land of the same owner, or partly by land of the "•French vs. Marstin, 24 N. H., 440. ""Myers vs. Dunn, 49 Conn., 71. "■Williams vs. Clark, 140 Mass., 238. Kingsley vs. Gouldsboro Land Imp. Co.. 86 Me., 279; 25 L. R. A., 502 EASEMENTS AND IJCENSES. 413 same owner and partly by land of a stranger, in order that the right to a private way may arise, there must be a reasonable necessity, and a mere inconvenience will not entitle a person to such right."' The necessity for a way varies with the particular circum- stances, and it is impossible to give any exact principle by which it may be determined what are ways of necessity and what are not. An inconveniencr is not sufficient to create a way by implication, but there must, under all circumstances, be a reasonable necessity for it.^^' A private way by necessity is not a permanent right if the necessity is not permanent; when the necessity ceases, the right of way ceases.^^' When a right of way by necessity exists it is the right of the owner of the land to fix the line in which it shall run; and on his failure to do so, the dominant owner may locate it."" PUBLIC WATS AND HIGHWAYS. A highway is a public road which every citizen has a right to use.^'^ Public ways are not easements, in the proper use of the term, since they are not appurtenant to a dominant estate. They belong to the public and to each member of the public, and if they are obstructed a right of action is usually brought in the name of some corporate body representing the public. "'Lawton vs. Rivers, 2 Mc. S. (S. 0.), 445. See Hollenbeck vs. McDonald, 112 Mass., 249. ™Root vs. Wadhams, 107 N. Y., 384. Hollenbeck vs. McDonald, 112 Mass., 249. "•Pierce vs. Selleck, 18 Conn., 322. "IPowers vs. Harlow, 53 MIcH., 507. "Stackpole vs. Healy, 16 Mass., 33. "To constitute a highway the way must be one over which all the people of the State have a common and an equal right to travel, or at least a general interest to keep unobstructed." People vs. Jackson, 7 Mich., 432. 414 BASEMENTS AND LICENSES. In many cases the title to the highway is in the public, in which case it cannot be said an easement exists. In many States the ownership of the soil is in the adjoining owners, subject to the right of the public to drive over it, and they may sell or make any use of the land not inconsistent with the public easement.^^^ The right to a highway is acquired either by prescription, dedication or grant, and by eminent domain."^ PKESOEIPTION. In some States the right of the public to a right of way may be acquired by prescription, that is, by an adverse, contin- uous and uninterrupted user of a way by the public for the period required by the statute of limitations.^^* At the ex- piration of this period it is presumed that the owner of the land dedicated it to the public.^^" DEDICATION. Dedication has been aptly defined as "an appropriation of land to some public use by the owner of the fee and an accept- ance for such use by or on behalf of the public.""* The doc- trine of dedication has grown out of the common law. In many States statutes have been passed which provide that dedica- tions may be made in certain ways, so that dedications have sometimes been divided into two classes, viz., common law dedi- cations and statutory dedications. COMMON LAW DEMOATION. To constitute a common law dedication, there must be: First. An intention on the part of the owner of the fee to dedicate the right of way to the public. This intention need "•Deerfieia vs. Railroad Co., 144 Mass., 325. "^hitbeck vs. Cook, 15 Johns. (N. X.), 483. "•Ross vs. Thompson, 78 Ind., 90. i«»Kruger vs. Le Blanc, 70 Mich., 76. "'Angell on Highways, Sec. 132. BASEMENTS AND LICENSES. 415 not be expressed in writing, but it may be shown by any of his actions which tend to indicate an intention to dedicate the right of way to the public. For instance, it may be indicated by a parol or implied assent to the user of the public,^ °^ by plat- ting property bounded by streets shown in a plat,^"' and by any act manifesting an intention to dedicate. "The vital principle of a dedication is the intention to dedicate, and whenever this is irrevocably manifested, the dedi- cation, so far as the owner of the soil is concerned, has been made.""" Second. The dedication must be accepted by the public. A formal acceptance on the part of the public is not required. It has been held by some courts that it is sufficient if the public travel on the way dedicated and make continuous use of it in the manner intended.^*" Other courts hold that the accept- ance must be by the proper public authorities.^*^ Statutes have been passed in many States prescribing what shall be necessary to constitute an acceptance by the public. In the absence of statute, as a general rule, user by the public is an evidence of the assent of the public or of the public au- thorities. Whether or not there has been a common law dedi- cation is a question for the jury to decide, from all the circum- stances of the case.^*^ "'Hall vs. McLeod, 2 Met. (Ky.), 98. '"Livingston vs. Mayor, 8 Wend. (N. Y.), 85. Beyer vs. State, IS Ind., 451. Huff vs. Winona and St. P. R. Co., 11 Minn., 180. ""Harding vs. Jasper, 14 Cal., 643. '"Harding vs. Jasper, supra. People vs. Davidson, 79 Cal., 166. Green vs. Canaan, 29 Conn., 157. Curtlss vs. Hoyt, 19 Conn., 154. '"Kelley case, 8 Gratt (Va.), 632. As to rule in Michigan, see Detroit vs. D. & M. Railroad, 23 Mich., 172-209. 416 EASEMENTS AND LICENSES, After there has been an acceptance, the owner cannot re- voke his dedication, but he may revoke it at any time prior to an acceptance.^*^ A common lav? dedication does not give to the public any title to the soil, but only an easement in it. STATUTORY DEDICATIONS. Statutes have been passed in many States setting forth the method by which an owner may dedicate a highway to the pub- lic, and by what acts and persons an acceptance may be made. As a general rule these statutes provide that when an owner desires to plat his property and to dedicate streets to the pub- lic, he must properly prepare and acknowledge a plat, submit it to certain public authorities, and if accepted by them, record it, with the proper registering officer. Usually the statutory provisions do not abrogate the right to make a common law dedication, and it has been held, where there has been an ineffectual attempt to make a statutory dedication by reason of failure to comply with the statute, that the dedication might become effective as a common law dedication, if there has been an acceptance by the public. As a general rule, statutory dedications vest the title to the highway in a public body for the benefit of the public. A LICENSE MAY BE DEFINED TO BE AN AtTTHORITY CON- FERRED UPON ONE TO DO AH ACT, OR A SERIES OP ACTS, UPON LAND, OR TO OCCtTPY THE LAND FOR A CERTAIN PUR- POSE, BY ONE WHO DOES NOT THEREBY ACQUIRE THE RIGHT TO POSSESSION, OR, AS IT IS OTHERWISE EXPRESSED, BY ONE WHO DOES NOT ACQUIRE ANY ESTATE IN THE LAND. '"Harding vs. Jasper, supra. '"Fulton vs. Mehrenfeld, 8 Ohio St., 440. Smitli vs. Lock, 18 Mich., 56. Sinclair vs. Comstock, Hr. Ch. (Mich.), 404. BASEMENTS AND LICENSES. 417 licenses are of two kinds; implied licenses and express li- censes; those which are created by the law, and those which are granted by the party. There is an implied license to enter upon the land of another for any lawful purpose, consistent with the manners and customs of the locality. People have an implied license to seek others in their houses or places of busi- ness to transact business with them, to pay social visits, or for any other lawful purpose consistent with the manners and cus- toms of the locality. This doctrine is illustrated by a case in which it appeared that one had intruded upon another's land to fish in a private pond. It was held that the owner of land enclosing a small lake had the exclusive right of fishing in the lake; but, it always having been customary in that locality to permit the public to take fish in such lakes and ponds, one may be presumed to have a license to do so, and passing over another's land to fish in the lake does not make him a trespasser, unless he knows that there is an objection to his doing so.^** This sort of license being based upon the presumed consent of the person in pos- session ceases to exist as soon as it is known that there is in fact no such consent, and, therefore, when one enters upon the possession of another in reliance upon a presumed consent, he must withdraw so soon as he knows that his presence is ob- jected to.^*^ And this sort of license is subject to another quali- fication, namely, that it must not be abused. For, as it was held in the famous Six Carpenters' Case,^*^ he who enters upon the premises of another by virtue of a license implied by law and then abuses this license, is a trespasser, not only from the time of his wrongdoing, but is to be regarded as a trespasser ab '"Marsh vs. Colby, 39 Mich., 626. •"Bredtenbach vs. Trowbridge, 64 Mich., 393. •«Smith Lead. Cas., 62. 28 418 BASEMENTS AND LICENSES. initio."^ But one who abuses an express license granted Mm by the party, is not a trespasser ab initio, and his original en- try being lawful, remains lawful. There is another kind of license implied by law which does not rest upon the presumed consent of the party, but upon the necessity of the case. Such licenses rest upon the legal maxim "necessitas inducit privilegium quoad jura privata,"^** Such a license is analogous to the rights which the public or the State has in all property by virtue of what is called the law of eminent domain. An instance of such a license is found in the doctrine that if a highway be out of repair and im- passable, a traveler may lawfully go over the adjoining land. "To hold a party guilty of trespass for passing over another's land, under the pressure of such a necessity, would be pushing individual rights of property to an unreasonable extent, and "'Sterling -rs. Jackson, 69 Mich., 488. This was an action for trespass upon land covered by water. The declaration alleges that the defendant broke and entered plaintiff's close, and with his boat, oars and paddle, in punting and rowing, de- stroyed the wild rice and grass there growing, and with his gun shot and liilled ducks and game there feeding. It was conceded that the place where the trespass took place was a navigable bay off Lake Erie, and that plaintiff was the owner of the soil under the ijay. The plain- tiff contended that as owner of the soil he had the exclusive right of hunting within the boundaries of his property, and, that while the public had a right of navigation over the property, such right was a mere easement and extended simply to a right of passage over his land. The defendant contended that the bay being navigable, he had a right to go upon it, and that in doing so he did not commit a trespass; that having the right to be where he was, he had also the right to shoot wild dncks flying by, since there was no property in wild fowl until captured. The court held that the defendant had no right to be where he was, except for the purpose of pursuing the implied license held out by the owner of the land to the public of navigating the waters over his land, and that every other beneficial use and enjoyment belonged to the owner of the soil. The acts of defendant were held to be a vio- lation of the license to navigate, and the exclusive right of the owner of land, whether it be upland or covered with water, to hunt thereon was maintained. Judgment in favor of plaintiff affirmed. •*I Bacon, Max. reg., 5. BASEMENTS AND LICENSES. 419 giving them a protection beyond that which finds a sanction in the rules of law. The temporary and unavoidable use of private property under the circumstances supposed must be regarded as one of those incidental burdens to which all property in a civilized community is subject.""" Besides the licenses implied by law, are licenses expreaslj granted by the party. K one employs another to build a house upon his land, the builder has an implied license to enter upon the land and generally to occupy it so far as may be necessary to carry out his contract. But this, like all licenses granted by the party which are not coupled with an interest, is a revo- cable license and may be revoked at any time at the mere will of the party granting it, although granted to continue for a cer- tain time.^" It is also true that revocable licenses confer only a personal right and are not assignable."^ But licenses coupled with an interest, as it is expressed, are not revocable."* Therefore, if one sells and transfers by an instrument in writing to another the standing timber on a tract of land and the right to remove it at any time within six months, this license is not revocable.^" In general terms, it may be said that any license for which a party has given a valuable consideration will be considered a license coupled with an interest, and, therefore, irrevocable.*'" In some States it has been held that the expenditures of money on the faith of the continuance of the license renders the license irrevocable.*''^ "KJampbell vs. Race, 7 Gush., 408. "'Fluker vs. Georgia R. & Banking CkJ., 81 Ga., 461; 2 L. R. A., 843. '"Curtis vs. La Grande Hydraulic Co., 20 Or., 34; 10 L. R. A., 484. "'Chicago and I. R. Co. vs. Hall, 135 Ind., 91; 23 L. R. A., 281. "*In such a case the grantee is not a mere licensee, but is an owner. Mee vs. Benedict, 98 Mich., 260; 22 L. R. A., 641. •"Nowlin vs. Whipple, 120 Ind., 596; 6 L. R. A., 159. ""Pierce vs. Cleland, 131 iPa. St., 189; 7 L. R. A., 762. Curtis vs. La Grande Hydraulic Water Co., 20 Or., 34; 10 L. R. A.. 484. 420 EASEMENTS AND LICENSES. It is sometimes difficult to determine whether a given instru- ment is a license or a lease. But the tendency of the courts is to construe aU grants of exclusive rights in land for a given term as leases, and not as Ucenses.^^^ A query may suggest itself to the mind of the reader whether one who has an irrevocable license has a right to assert it forcibly against one in possession who resists its execu- tion. He has not. If the party in possession bars the licensee's entry by force, the licensee must resort to the courts. For if a party entitled to possession has no right to take pos- session by force, neither has one with any less right than the right to possession, a right to use force to secure that lesser right."* This is in accordance with the general principle of the law, that the public peace and tranquility are of more importance than anyone's private right. Therefore, the enforce- ment of private rights must be sought in the courts. No one may take the law into his own hands, and if he attempts to do so and a breach of the peace results, he is considered a wrong- doer. The one in peaceable possession, whether of land or goods, has a right to use force to maintain it, and a claimant must resort to the courts. The doctrine is carried so far that a private citizen who attempts to recover his own stolen property by force, is guilty of assault and battery.^"* The general doctrine is stated by Blackstone in these words: "The public peace is a superior consideration to any one man's private property; and if individuals were allowed to use pri- vate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature."^*" •"1 Coal Co. vs. Peers, 37 N. B. Rep. (111.), 937. "■Fluker vs. Georgia R. & Banking Co.. 81 Ga., 461; 2 L. R. A., 843. "•Hendrlx vs. State, 50 Ala., 148. "•3 Blackstone, 4. EASEMENTS AND LICENSES. 421 If a license is revocable, it will be revoked by any conduct on the part of the licensor inconsistent with the exercise of the license. Thus, a deed by the licensor of the property upon which the license is given, the death of the licensor, or any act on his part which would prevent the licensee doing the act in ques- tion, amounts to a revocation of the license.^"^ •"Bckerson vs. Crlppen, 110 N. T., 585; 1 L. B. A., 487. Hodgkins vs. FarrlBgton, 150 Mass., 19; 5 L. B. A., 200. Part III. CHAPTER I. TITLE TO REAIi PROPERTY. TITLE TO BEAIi PROPERTY IS THE LEGAI. AITTHOBITT FOR ITS POSSESSION AND ENJOYMENT, RESTING ON ZiAW AND FACT. We have seen that the lawful possession of land is essen- tially the right to exclude others from that land. Now, the title to that land, on which the right of exclusion depends, con- sists in a conformity of the facts in a particular case to the rules of law which assign the ownership of land to a certain person. There has been some confusion upon this subject in books whose authors did not distinguish between facts and evidence by which facts are established. As this is a distinc- tion which the lawyer must always bear in mind when he comes to the practical work of his profession, it is deemed proper to emphasize it here. Some of the writers say that title deeds are necessary to a perfect title, whereas, in truth, title deeds are only evidence of the existence of a certain state of facts, and, as we shall see hereafter, there may be an irrefrag- ible title to real estate in an individual, without a scratch of a pen recorded, or unrecorded, to prove it. The word law used in the definition means the code of law which prevails m the jurisdiction where the land is situated. Attention has been drawn to this principle in the first section of this book, but it is now appropriate to formulate this prin- 4M TITLE TO REAL PROPERTY. 423 ciple in one of those maxims in which the authors have en- deavored to state the law in brief, emphatic paragraphs. THE TITLE TO LAND, OR ANY BIGHT IN LAND, MUST AL- WAYS BE DETEHMINED BY THE LAW OF THE STATE OR COUNTRY WHERE THE LAND IS SITUATED. In our law there is a head entitled "Conflict of Laws," and considerable difficulty has been encountered in many cases in determining by which, of one, or more conflicting codes a par- ticular legal dispute is to be adjudicated. This is particularly true with regard to contracts, to which there are various par- ties, residing in different states or countries, where the con- tracts are made by correspondence, and are partly to be performed in one lurisdiction and partly in another. No such difficulty is found in the law of real property. Contracts with regard to real property, and inheritance of real property, and, in fact, every possible dispute which can arise with regard to real property, must be settled by the law of the state, or country where the land is situated, without regard to the resi- dence of the parties interested, or where any bargain or nego- tiation with regard to it was entered into, or conducted. Thus we see that, given the facts, we have only to apply the "lex rei sitae," and the correct result will be attained. As, at the time of the publication of this volume, the terri- torial jurisdiction of the United States has been extended to "islands beyond the sea," it becomes necessary to state some general principles of law, which will apply in all the territory now subject to our national jurisdiction. Two general rules will be stated on this point. WHERE TITLE TO A FOREIGN TERRITORY IS ACQUIRED BY THE NATIONAL GOVERNMENT, WHETHER BY CONQUEST OR BURCHASE, PRIVATE OWNERSHIP OF LAND, THEN EX- ISTING, CONTINUES. THE GOVERNMENT ONLY ACQUIRES THE RIGHT OF EMINENT DOMAIN, AND TITLE TO THE LAND NOT THEN SUBJECT TO PRIVATE OWNERSHIP. 424 TITLE TO REAL PEOPEETY. THE TITLE TO ALL LANDS WITHIN THE TERBITOMAL JUKISDICTION OE A NATION, NOT HAVING BEEN LAWETJLLY ACQUIBED B7 FKIVATE FEKSONS, BEEOBE THE TIIXE THE NATION ACQT7IRES TITLE, VESTS IN THE NATIONAL GOV- ERNHENT, AND CAN ONLY BE ACQUIRED PROM IT. Applying these principles to the existing conditions within the United States we note that the national government ac- quired the title to the original thirteen colonies by a successful rebellion, or as we call it, "The Eevolution" of 1776. This is equivalent to title by conquest, and the rules above stated apply as to all the territory in the United States then domi- nated by Great Britain. Afterwards, the national government acquired the Louisiana territory from France by purchase, and the Florida territories from Spain in the same manner. After- wards Texas, having been a free State for ten years, was, on her own application, admitted as a State of the Union. Next Alaska was acquired from Eussia by purchase. The Hawaiian Islands became subject to our jurisdiction much after the fash- ion of Texas. In the late war with Spain, Puerto Eico was added to the national territory by conquest, although in the final treaty $20,000,000 were allowed to the Spanish govern- ment in the nature of a compensation, or, perhaps, consolation, for the losses which she had sustained through the war. The Philippine Islands, over which Spain has claimed territorial sovereignty, were also ceded to the United States by the treaty of peace between Spain and the United States; but whether our title to the islands shall finally rest upon purchase or conquest remains to be decided at the time this book goes to press. But, in any event, the rules above stated apply. Bearing in mind, therefore, the principles stated, it will be readily seen that all the titles to land subject to the jurisdiction of the United States originate in conquest or grant from Great TITLE TO REAL PROPERTY. 425 Britain, France, Spain, Eussia, the independent State of Texas, or the government of the Hawaiian Islands. From this discussion it will be seen that a government may acquire title to property by conquest, discovery and purchase. A government may also acquire title by eminent domain and escheat. It remains now to consider how the title to real property may be acquired or lost by private persons. HOW ACQUIRED BY PRIVATE PERSONS. Title to real property may be acquired either by operation of law, or by the acts of the parties. Title by operation of law includes only those cases in which property passes from an an- cestor to his heirs by virtue of the laws of descent. Title by act of parties includes every other method by which title is ac- quired, except descent. The former method is known as title by descent, and the latter as title by purchase. TITLE BY DESCENT IS THE TITLE WHEREBY A PERSON, ON THE DEATH OE HIS ANCESTOR, ACQUIRES HIS ANCES- TOR'S ESTATE, AS AN HEIR AT LAW. TITLE BY PURCHASE, IS WHERE TITLE IS ACQITIRED BY THE ACTS OE THE PARTIES, AND INCLUDES EVERY DVEODE OE ACQUISITION KNOWN TO THE LAW, EXCEPT THAT BY WHICH AN HEIR ON THE DEATH OF AN ANCESTOR BECOMES SUBSTITUTED IN HIS PLACE AS OWNER, BY ACT OE THE LAW.' The term "purchase" in its usual commercial sense, means "to buy;" but it will be noticed from the above definition that, in law, the term has a much broader meaning. In some cases, however, of statutory construction, the term will be construed in its commercial and restricted meaning when necessary to carry out the intent of the legislators.^ Title by purchase, •Stamm vs. Bostwick, 122 N. Y., 48; 9 L. R. A, 597. •Wash Real Prop., 316. 426 TITLE TO REAL PEOPERTY. therefore, includes the following methods of acquiring prop- erty: adverse possession, estoppel, alienation and devise. DESCENT. The necessity for some regulation as to the disposition of property, either real or personal, on the death of its owner, who has not disposed of it, is at once apparent. The absence of such regulation would iuvolve endless strife and violence in the struggle for the possession of the property, and great in- justice would be done those persons who are naturally the ob- jects of the deceased's bounty. Statutes have been passed in all the States, providing what disposition shall be made of a deceased person's property when undisposed of by a valid will. The provisions of these statutes are arbitrary and unbending; if the deceased did not make a valid will, there arises an abso- lute presumption that he intended that his property should be distributed or descend, according to the provisions of the stat- ute; that is, the statute which is in force at the time of the death of the intestate, for the rights of heirs then become vested. This is true, even though the circumstances were such that they indicated an intent that the property should pass in some other way. The only way that the intent of deceased may affect the disposition of his property is when it is expressed in a will executed in the manner prescribed by law. While the statutes differ in many important details, it is the purpose of all of them to supply the want of a will, and to pass the prop- erty to those persons to whom the ancestor, if unprejudiced, would naturally have willed it if he had made a will. The statutes regulating the disposition of property are of two kinds, viz.: statutes affecting the distribution of personal property, and statutes affecting the descent of real property. TITLE TO REAL PBOPERTY. 427 The former are known as "'Statutes of Distribution;" and the latter as "Statutes of Descent." Before discussing some of the general principles of descent, it may be well to call the student's attention to the use and meaning of some of the legal terms employed in connection with this subject: By "heir" is meant the person upon whom the law casts the estate, immediately on the death of the an- cestor. The term is sometimes applied not only to those per- sons who take the property by law in the absence of a will, but to the persons who take under the will.' But in the absence of a context indicating a different intent, the term "heir" will be construed in its technical sense to designate the persons who would by statute succeed to the real estate in case of in- testacy.* In the case of a will the person taking realty under it is called a devisee; one taking personalty is called a legatee. The term "ancestor" means the person from whom the es- tate passes, and not a progenitor, as in popular acceptation.' The estate which descends from the ancestor to the heir is called an inheritance. The distribution of an estate has refer- ence to the division by the administrator, after the payment of debts and legacies, amongst the heirs. Land is not "dis- tributed," but in the absence of a will it is said to descend to the heirs without the intervention of an administrator.' When the property descends to all heirs of the same degree of rela- tionship to the ancestor equally and in their own right, they are said to take per capita. When the heirs are not of the same degree of relationship to the ancestor, and do not take equally, they are said to take by representation, or per stirpes. •In many cases the term "heir" in wills has been construed to mean children or widow. 'Clarke vs. Cordis, 4 AUSn, 466. •Bailey vs. Bailey, 25 Mich., 185-188. •Beard vs. Lofton, 102 Ind., 408. 428 TITLE TO HEAL PROPERTY. That is, in those instances in which the heirs of a deceased person, who would have inherited property if he had lived, stand in his place and take his share, they are said to take by representation, or per stirpes. Thus, if the ancestor had two sons, one of whom was dead at the time of his decease, the chil- dren of the deceased son take by representation the share which he would have taken had he survived his father. In determining who are the heirs under the statutes, it is often necessary to determine the nature and degree of the relationship of the parties to the ancestor. The heirs may be related to the ances- tor either by consanguinity, affinity or by adoption. Consanguinity is the connection or relation by blood of per- sons descended from the same common ancestor; it is the having the blood of the same common ancestor. Consanguinity may be of two kinds — lineal and collateral. Lineal consanguin- ity exists between persons, when one is descended from the other, as father and son, or grandfather and grandson. Col- lateral consanguinity or relationship exists between persons who are descended from the same common ancestor, but not one from the other, as a brother and sister, uncle and nephew.'' Affinity is a relationship arising out of marriage, and not out of blood, and exists between a husband and his wife,~ and between the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. Adoption is the act by which the relations of paternity and aflSliation are recognized as legally existing between persons not so related by nature.* It sometimes becomes necessary under the statute of descent and other statutes, to determine the nearness of the collateral blood relationship of one daim- •2 Blk. Com., 203. 'MorriBOn vs. Sessions Kstate, 70 Mich.. 297. TITLE TO REAL PROPERTY. 429 ing as next of kin to the ancestor. The line of descent from the ancestor is marked by degrees, and each generation consti- tutes one degree. The degree indicates the distance between those who are allied by blood.' In the United States the method adopted to determine the degree of relationship, is that of the civil law, as distinguished from the common or canon law method. By the civil rule the degrees are computed by adding together the number of de- grees there are between each of the two persons whose rela- tionship is to be ascertained, and the common ancestor.^" That is, the computation commences with the deceased, and ascends to the common ancestor, and descends to the person desired, and each person in this ascent and descent marks a degree. Thus, in computing the relationship of brothers, their father being their common ancestor, marks the first degree, and the descent to the other brother marks the second degree which is the degree of relationship. So, an uncle and nephew are related in the third degree. In the direct line, a father stands related in the first degree, and a grandfather in the second degree. By the canon or common law rule, the computation commences with the common ances- tor and reckons downward, and the degree in which the two persons, or the most remote of them, is remote from the an- cestor, marks the degree of relationship." In comput- ing the relationship of an ancestor to one directly descended from him, the two rules work the same result; but in case of collateral relationship the result is different. Thus, under the common law or canon rule, a brother stands in the first degree, and is in the same degree as the father him- •Bouvior's Law Dictionary. "2 Wash, on ReaJ Prop., 406. ""Blk. Com., 206. 430 TITLE TO REAL PROPERTY. self; first cousins are related in the second degree, instead of the fourth, as by the civil rule. In many of the States, the stat- utes of descent have classified heirs by a designation of rela- tionship, instead of computation by degrees of kinship. In these States it is only vphen no persons are found answering to the designated relationship that resort is had to the computa- tion by degrees.^^ With this introduction we may now briefly discuss a few of the general principles of descent, the person who takes by descent, and what property descends. PEINCIPLES OF DESCENT. The common law regulated the descent of real property. Originally, the common law rules provided that real property should only descend to the lineal descendants of the ancestor. Subsequently these rules were extended to collateral relatives, and, in process of time, they covered every condition which could possibly exist. These rules of descent continued in force for many years, and were reduced to a series of canons by Lord Holt. While these canons are not in force to-day, yet they have had a distinct effect upon the present laws of descent, and a knowledge of the common law in this respect wiU undoubt- edly assist the student in understanding and interpreting the statutes of descent. It sometimes happens that the statutes omit to regulate de- scent in cases of remote relationships, and in such instances in many States the common law is still applicalile, and will be resorted to in order to determine who takes the property.'^ The canons are stated by Blackstone as follows: 1. "Inheritance shall lineally descend to the issue of the person who last died actually seised, in infinitum, but shall never lineally ascend." "Rowley vs. Stray, 32 Mich., 70. "Hunt vs. Kingston, 23 N .Y. Supp., 352. TITLE TO REAL PROPERTY. 431 This rule prevented the parents from inheriting from their children. In all of the States a parent or parents, under cer- tain circumstances, inherit from their children. In many of the States, on the failure of lineal descendants, a portion of the deceased's real estate goes to the parents, and the balance to his brothers and sisters; and, in some States, the parents take, to the exclusion of the brothers and sisters. 2. "The male issue shaU be admitted before the female." The reason for this rule grew out of the feudal system; since by that system the females, not being able to render military eeryice, could not succeed to a feud.^* In the United States this canon has not been adopted, and the male and female heirs inherit equally. The only sem- blance to this rule is that In some States the father is pre- ferred to the mother. And it was held in New York that in absence of a statutory provision, the common law rule prevailed and that a great uncle would take, to the exclusion of a grand aunt.^' 3. "Where there are two or more males, in equal degree, the eldest only shall inherit; but the females aU together." This rule, commonly known as the law of primogeniture, also grew out of the feudal system, and its object was to pre- serve the feud so that its owner might be competent to render effective military service. The condition under which the rule arose having ceased, it has been abolished in all the States, and aU the children inherit equally. In England the rule is still in force and is said to be pre- served to prevent too great subdivision of real property; but the true reason of the preservation of this rule, after the de- "WilUams Real Property, 102. "Htint vs. Kingston, 23 N. Y. Supp., 352. 432 TITLE TO SEAL PROPERTY. cline of the conditions out of which, it grew, is that it is con- ducive to the maintenance of an aristocracy.^' 4. "The lineal descendants of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would Lave done had he been living." Under this rule and the preceding one, the children of a deceased eldest son, at common law would have priority over the other children of the ancestor. At the common law, all lineal descendants took by right of representation. It is im- possible to state any general rule on this subject in the United States. In most of the States the descendants will take per capita when they are related to the ancestor in the same degree, and per stirpes or by representation, when related in different de- grees.^^ At Ihe common law this canon was applied to col- lateral relatives; but in most States the rule so far as collateral inheritance is concerned,^" is limited to the children of brother and sister.^" 5. "On failure of lineal descendants or issue of the person ""The dominant principles in the British Constitution have always been monarchical and aristocratic. These canons tend to prevent the diffusion of landed property, and to promote its accumulation in the hands of the few. They thus conserve the splendor of the nobility and the influence of the leading families, and ranli and wealth are the line- marls of the throne. • * Power is ever anxious to perpetuate itself. and the privileged classes cling to these rules of descent." Bates vs. Brown, B Wall., U. S., 710. "In Michigan, for instance, the statute of descent provides that the estate of the intestate shall descend as follows: "In equal shares to his children and to the issue of any deceased child hy right of represen- tation; and if there he no child of the intestate living at his death, his estate shall descend to all his other lineal descendants; and If all of the said descendants are in the same degree of kindred, they shall share the estate equally, otherwise they shall talie according to the right of rep- resentation." "Howell's Statutes, 5772a. "See Statute in Alabama, California, Connecticut, Georgia, Maine, Massachusetts, Mississippi, Michigan, Minnesota, Maryland, New Jer- sey, New Hampshire, Oregon, South Carolina, Tennessee, Vermont and Wisconsin. TITLE TO REAL PROPEETY. 433 last seised, tlie inheritance shall descend to his collateral rela- tions, being of the blood of the first purchaser, subject to the three preceding rules." For the purpose of collateral inheritance, the common law divided estates into two kinds, viz.: ancestral estates and ac- quired estates. The former included those estates which the intestate received by descent; and the latter, those estates ac- quired by the intestate by purchase. In case the intestate was seised of an ancestral estate, upon a failure of issue it descended to the blood of the first pur- chaser; that is, the land reverted back to the heirs of the body of that ancestor from whom the intestate derived his estate. Blackstone illustrates the application of this rule as follows: "K land comes to John Stiles by descent from his mother, Lucy Baker, no relation of his father as such shall ever be heir to these lands; and vice versa, if they descended from his father, Geoffrey Stiles, no relation of his mother as such shall ever be admitted thereto, for his father's kindred have none of his mother's blood, nor have his mother's relations any share of his father's blood."" In most of the States no distinction is made between an- cestral and acquired estates. In some States the statutes pro- vide that property shall descend to those who are of the blood of the ancestor, through whom the property came.''^ The wife not being of the same blood as her husband, could not at the common law inherit from him; for the relation- ship by affinity did not give her inheritable blood. In many of the States the wife may not inherit a portion of the hus- band's estate. Thus, in some States, on failure of lineal de- "2 Blk. Com., 223. "McWllliams vs. Ross, 46 Pa. St., 369. See Indiana, Maryland, North Carolina, Ohio, Pennsylvania, Rhode Island, New York statutes. 434 TITLE TO REAL PROPERTY. scendants, the real property of a husband dying intestate will be divided between the wife and his parents. From these considerations we may summarize the following statements of the law of descent in the United States; 1. Eealty descends to the lineal descendants of the intes- tate. 2. Lineal descendants, as a general rule, share per capita when they are in equal degrees of relationship to ancestor, and per stirpes, if they are related in different degrees. 3. On failure of lineal descendants, if the deceased leaves a widow, she is now generally entitled to a share of the estate. 4. On failure of lineal descendants the estate of an intes- tate in most States lineally ascends to the father or the mother, or to both the father and mother, subject to the claims of the widow. In some States the brothers and sisters share with the father and mother. 5. On failure of lineal descendants, father and mother and widow, the intestate's estate, as a general rule, passes to the brothers and sisters, and to the children of deceased brothers and sisters, by right of representation. 6. On failure of lineal descendants, father, mother, widow, brothers and sisters, or children, an intestate's estate descends to his next of kin in equal degrees. 7 On failure of kindred, the estate escheats to the State. These statements merely indicate the general course of descent in the United States. We have not attempted to state the law of any particular State, but only those rules of descent which are adopted by many of the statutes, and for the pur- pose of indicating in what way the statutes of the various States generally differ from the common law rules. For further details the student must consult the statutes of his own State. TITLE TO EBAL PROPERTY. 435 WHO MAY INHERIT? RELATIONS OF THE HALF BLOOD. At the common law, property descended only to relatives of the whole blood. This rule is an auxiliary to the rule that the esitate shall descend to the blood of the first purchaser. A rel- ative of the whole blood is one who is descended not only from the same ancestor, but from the same couple of ancestors. A relative of the half blood is one who has but one ancestor in common with the intestate. Thus, at common law, if A married B and had a son C, and if after B's death A married D and had a son E, then in the event of C dying intestate, and vsnithout lineal descendants, his estate would not descend to E ; and this was true even though had no other heirs. The common law rule does not prevail in any of the United States. There is a considerable variance in the statutes on this subject. In some States the half blood relatives take equally with those of the whole blood ;^' in other States the whole blood is given a preference; and in most States by statute the half-blood may not inherit property when they are not of the same blood as the ancestral purchaser;^* and in some States they may inherit from each other only the prop- erty received from a common ancestor. POSTHUMOUS CHILDREN. At the conxmon law, children not in being at the time of the ancestor's death, could not inherit from him. A child in ventre sa mere, was not regarded as in being and if subse- quently bom alive, was not permitted to inherit. This rule has been changed by statute in all States, and any child born within the period of gestation after the husband's death, will inherit in the same way as if in being at his death. In some "Anderson vs. Bell, 140 Ind., 3T5; 29 L. R. A., 541. "Ryan vs. Andrews, 21 Mich., 220. 436 TITLE TO REAL PROPERTY. States the statutes provide that the child must be born within ten months after the intestate's death. ILLEGITIMATE CHILDREN. An illegitimate child, or bastard, is one born out of lawful wedlock. At the common law a bastard was nobody's son, and did not have any inheritable blood. A bastard, therefore, could not inherit from anyone, and was incapable of having heirs, except the direct descendants of his or her own body. This rule has been changed by statutes in all States. In most States the statutes permit an illegitimate child to inherit from the mother.''^ But in most of the States, while the child may inherit from the mother, he or she caimot, as a representatiTse of the mother, claim any part of the estate of her kindred, either lineal or col- lateral. In other States, bastards may inherit from the mother's kindred.^" If the child is born during lawful wedlock, the presumption is that it is legitimate; and this is true, even though the child is born within the period of gestation after the marriage. In other words, it is not necessary that issue, in order to be legitimate, should be begotten and born during wedlock; it is sufficient if the birth takes place during wed- lock." Thus, it was held that this presumption of legitimacy existed in a case where the child was born three months after the marriage.^' This presumption of legitimacy may some- times be rebutted by showing that the husband did not have access to his wife at the period of its conception; such a show- ing from reasons of public policy or morality cannot be made "Wallace vs. Kimball, 35 Fla. 49, 26 L. R. A., 746. Watson vs. Lion Brewing Co., 61 Mich., 595. "Gregley vs. Jackson. 38 Ark., 487. "Tioga County vs. South Creek Tp., 75 Pa. St., 436. "Montgomery vs. Montgomery, 3 Bab. Chy. (N. T.), 132. TITLE TO REAL PROPERTY, 437 by the husband, except when he can establish that he was out of the realm at the time of conception, or, as it was ex- pressed, "beyond the four seas" — "extra quatuor maria." By statute in many States, if the child is bom out of wedlock, it will be legitimatized by the subsequent marriage of its parents.^" And in some States by statute, if without marriage the father acknowledges in the manner prescribed by the statute, the child as his, such child shall be considered legiti- mate. An illegitimate child is capable of taking property by devise, and if properly described, will take under any valid will. ADOPTED CHILDREN. In most of the States statutes have been passed permitting the adoption of children. These statutes provide in most instances, that on compliance with the terms of the act, the child adopted shall inherit in the same way as a natural child.3<* This right of adoption did not exist at the common law, and it is only by virtue of the statutes that an adoption may take place, and the rights of the adopted child are regulated and fixed by the statute under which the adoption is made. Thus, it was held under a statute permitting the adopted child to inherit as heir and next of kin of the adopted father, that the adopted child could not take as the heir or next of kin of the children of the adopting parent.'^ Adoption being contrary to the common law, it has been held in a number of States that the statute must be strictly construed, and that all its conditions must be substantially complied with in order that the adoption may be valid.^^ »Dayton vs. Adkisson, 45 N. J. Eq., 603; L. R. A., 488. "Furgeson vs. Jones, 17 Dr., 204; 3 L. R. A., 620. Gray vs. Holmes, 57 Kans., 217; 33 L. R. A., 207. "Helms vs. Elliott, 89 Tenn., 446; 10 L. R. A., 535. "Furguson vs. Jones, 17 Or., 204; 3 L. R. A., 620. 438 TITLE TO REAL PEOPEETY, If the esr^riitials required by the statute are complied with, the child will inherit from the adopting parent, in the State in which the adoption takes place. The right of the adopted child to inherit has been recognized in States other than the one in which the adoption took place. Thus, it was held in Kansas that a child adopted under the statutes of Missouri, inherited the lands of the deceased adopt- ing parent in Kansas on the same terms as a natural child, not- withstanding the fact that the method of adoption did not comply with the Kansas statutes.^' A contrary rule prevails in some States. ALIENS. An alien is a subject or citizen of a foreign State. At the common law an alien, as against all persons, could take real property by an act of purchase; but he could not take by descent. And at the common law the estate of an intestate ^lien did not descend to his heirs. In some States the common law disability has been completely removed, and resi- dent and non-resident aliens have the same property rights as citizens. In other States a resident alien may purchase and hold real property, and in the event of his death intestate, it will pass to his heirs, even though they are aliens.'* In other States, the alien, on declaring his intention to become a citizen, may hold real property in the same way as a citizen. MURDERERS. A murderer cannot take either as an heir, or devisee, from one whom he has murdered for the purpose of obtaining his "Gray vs. Holmes, 57 Kans., 21T; 33 L. R. A., 207. "Stamm vs. Bostwict, 122 N. Y., 48; 9 L. R. A., 597. TITLE TO REAL PKOPBETY. 439 estate.'^ In one case it was held that a bona fide purchaser from such a murderer did not acquire a good title."' GENERAL PRINCIPLES. There are a few general principles which ought to be called to the student's attention. THE TITLE TO REAL ESTATE ON THE DEATH OE THE LAST OWNER INTESTATE PASSES TO, AND VESTS IN, HIS HEIRS THE MOMENT OP HIS DECEASE. This rule has been already commented upon. The title to personal property passes to the administrator. That is, the administrator, on his appointment and qualification as admin- istrator, becomes the owner of the personalty, and although appointed some time after the death of the owner, his title relates back to that time. The ownership of the heirs of the realty is only subject to this limitation, that it is subject to the payment of the debts of the deceased, after the personalty has been exhausted. If the personalty of the estate is not sufiBcient to pay the debts, the realty may be sold for that purpose, in the method prescribed by statute. REAL PROPERTY DESCENDS ACCORDING TO THE LAW OP THE PLACE IN WHICH IT IS SITUATED, OR, AS OPTEN STAT- ED, THE DESCENT OP REALTY IS GOVERNED BY THE LEX REI SITAE. In this respect, the law of realty differs from that relating TO personalty; for the distribution of the latter is governed by the law of the domicile. It follows that no person can take by descent, except those who are recognized as legitimate heirs by the law of the country or state in which the property is situate. Thus, it was held in Florida that an illegitimate child which had been legitimatized in another State, could not inherit; since the statute of Georgia, under which it was legiti- "Riggs TS. Palmer, 115 N. Y., 506; 5 L. E. A., 340. "Shellenberger vs. Ransom 31 Neb., 61; 10 L. R. A., 810. 440 TITLE TO REAL PROPERTY. matized, did not preyail in Florida, and the right of the suc- cessor must be governed by lex loci rei sitae.^° So it was held in Kentucky that the children of a marriage void in Illinois might inherit land in Kentucky under the statute of that State, which made legitimate the children of an illegal or void marriage.*" REALTY DESCENDS ACCOEDING TO THE TEBMS OP THE STATUTE IN FOECE AT THE TIME OE THE INTESTATE'S DEATH. Amendments of the statute of descent subsequent to the death of the intestate cannot affect the rights of heirs at the time of his death. NO ONE IS HEIR TO THE LIVING. Those persons who would inherit under the laws of descent, if the owner were to die intestate, are sometimes described as heirs apparent. Such persons, however, during the life of the owner have no interest in the property. An amendment during the life of the owner in the statute of descent does not affect any vested interest in realty, but is effectual to change the course of descent. ADVANCEMENTS. AN ADVANCEMENT IS A GIFT BY A PARENT TO HIS PRESUMPTIVE HEIR, IN ANTICIPATION IN WHOLE, OR IN PART OP WHAT HE MIGHT INHERIT ON THE DEATH OP THE PARENT INTESTATE." In order that a gift may be an advancement, the following conditions must exist: 1. The property given must be "a part of the ancestor's estate which upon his death would descend to his heirs, but for the fact that it has, by the act of the ancestor, in making the "Williams vs. Kimball, 35 Fla., 49; 26 L. R. A., 746. "Leonard vs. Braswell, 99 Ky., 528; 36 L. B. A., 707. "Oawthon vs. Coppedge, 1 Swan, Tenn., 487. TITLE TO REAL PROPEETY. 441 gift, been separated from or taken out of his estate, or it must be something which is purchased with the funds of the father in the name of, and for the benefit of the child.'"'^ Thus it was held that a conveyance to minors, at the request of their father, who purchased the property, constituted an advancement.*^ 2. It must have been the intention of the donor, at the time of the transfer, that the property should be taken, not as a gift, but as an advancement. The intention of the donor may be gathered from the surrounding circumstances j from the declar- ations of the donor at time of transfer; and such intention may, in most States, be proved by parol. In some States the statutes provide that the intention that the gift shall consti- tute an advancement, must be evidenced in the writing trans- ferring the property, or in an acknowledgment in writing by the donee.** If the amount of the advancement exceeds the share the dcnee would be entitled to, if no advancement had been made, he will be excluded from any further portion in the division or distribution of the estate; but if the amount received is less than his share of the estate, he wUl be entitled to as much more as will give him his full share. Advancements may be made of either real or personal property, TITLE BY ADVEKSE POSSESSION. When land has once been the subject of private (as distin- guished from governmental) ownership, title may be acquired by one who is a stranger to the title derived from the govern- ment, by adverse possession. Title to lands to which the gov- "Rlckenbaeker vs. Zimmerman, 10 S. C, 110. "Khea vs. Bagley, 63 Ark., 374; 36 L. R. A., 86. "Tbls is the rule in Michigan, Massachusetts, Maine and Vermont. 442 , TITLE TO REAL PROPERTY. ernment has never parted with its title, cannot be thus acquired.*' TITLE BY ADVEBSE POSSESSION IS ACQTJIKED BY A POS- SESSION WHICH IS ACTUAL, CONTINTJOXTS, VISIBLE, NOTOEI- OTTS, DISTINCT, HOSTILE AND EXCLUSIVE THROUGHOUT THE PERIOD OE TIME PRESCRIBED BY THE STATUTE OF LIMITA- TIONS IN THE STATE OR TERRITORY IN WHICH THE LAND IS SITUATED." Title by adverse possession can only be acquired where adverse possession has been maintained for the period of time fixed by the Statute of limitations. Statutes of limitations do not include the government unless it is expressly so pro- vided in the statute. Where this is not the case, the ancient maxim of our law, "nullum tempus occurrit regi," still applies. This maxim is paraphrased by the learned author of Broom's Legal Maxims as follows : "Lapse of time does not bar the right of the crown." In this country the State, or the United States, as the case may be, is the "crown," and, therefore, title to land owned by the State or the National Government cannot be acquired by adverse possession, unless it is expressly so pro- vided by statute. STATUTES OF LIMITATIONS ARE STATUTES WHICH PRE- SCRIBE WITHIN WHAT TIME AN ACTION SHALL BE BROUGHT TO RECOVER REAL OR PERSONAL PROPERTY IN THE POSSESSION OF ANOTHER, OR DEBT OR DAMAGES, AF- TER THE CONDUCT OF THE PARTY AGAINST WHOM SUIT IS TO BE BROUGHT FIRST JUSTIFIES THE BRINGING OF THE ACTION. The logical basis for Statutes of Limitations is that in the lapse of time important evidence may be lost. Therefore, it is "But title to land as against the easement of the public In streets may be thus acquired. Flynn vs. Detroit, 93 Mich., 590. "Taylor vs. Horde, 2 Smith's Lead. Cas., Paidi vs. Paidl, 95 Mich., 410. TITLE TO REAL PROPERTY. 443 for the interest of the public, and in the interest of justice, that disputed questions of fact should be tried as nearly as possible to the time when the matters occurred, out of which the con- troversy grew. It is not an unreasonable proposition that one who sits by and sees his neighbor in the enjoyment of a valua- ble and profitable piece of land to which he claims title and, per- haps, sees him making improvements on it and takes no steps to assert his rights within the time which the law fixes as reason- able by a statute of limitations, should thereafter be forever bar- red from laying claim to that land. It may be that he is merely supine,^^ it may be that he is waiting until witnesses who can establish the truth as to the title are dead, and it may be that he is waiting to reap the benefits of the improvements which, in the meantime, his neighbor is making upon the land.*' Whatever the fact may be in any particular case, it is cer- tain that the statutes of limitation are deeply grounded in wisdom and a sound public policy, and there is little doubt that their scope will be extended, rather than restricted, in the future. In discussing, therefore, the acquisition of the title to land by adverse possession, the reader is prepared for the first formulated proposition involved in this branch of the law. NO TITLE CAN BE ACQUIRED BY ADVERSE POSSESSION UNLESS THE ADVERSE POSSESSION HAS CONTINUED" DUR- ING THE TIME PRESCRIBED BY THAT STATUTE OE LIMITA- TION WHICH OBTAINS IN THE TERRITORIAL JURISDIC- TION IN WHICH THE LAND IS SITUATED. In the statement of the above proposition, the word "con- tinued" is used "advisedly," as the legal phrase goes. "Vigilantibus, non dormlentibus, leges subvenlunt. (The laws as- sist those who are vigilant, not those Who sleep over their rights). Broom Leg. Max. 857. "Cousult the section on "Title by Estoppel." "It must always be borne in mind that every element of the adversu possession, as It has been defined, must be continuous as well as the possession itself. 444 TITLE TO REIAL PROPERTY. A lawyer ought always to use the technical words of his profession, for it shows his quality and that he has acquired his knowledge of the law from the correct sources. In the prop- osition, "continued" is the proper legal word, because it is set- tled that: 1. no TITLE CAN BE ACQTJIIIED BY ADVERSE POSSES- SION TJNLESS THE POSSESSION IS CONTINUOUS. This means that any break in the continuity of the posses- sion during the running of the Statute of Limitations will destroy any right of obtaining title to real property by adverse possession. Or, in other words, that successive, but inter- rupted, possessions cannot be tacked or hitched together to make up the time of the adverse possession required by the Statute of Limitations. But it does not mean that continuous possession during the time demanded by the Statute of Limita- tions must be maintained by the same person. It means simply that there must have been a continuous possession during the time demanded by the statute by one person and by those who succeed to whatever right he has acquired by his possession. For instance, if one holding land by adverse possession sells out his claim before the Statute of Limitations has run, and his vendee immediately succeeds him in the possession of the land, there is only one possession, which, being continued for the statutory period, will ripen into a title.^" If the possession is continuous for the period required by the Statute of limita- tions, but is by a number of persons not in privity of title, the several possessions cannot be tacked so as to give a title by adverse possession.^^ "Carter vs. Chevalier, 108 Ala., 563. •"Possession need not be constant to make It sufficiently continuous to be adverse when the property is used from time to time as needed. Swan vs. Munch, 65 Minn., 500; 35 L. R. A., 743. TITLE TO REAL PROPERTY. 445 2. NO TITLE CAN BE ACQtriRED BY ADVEBSE POSSES- SION UNLESS THE POSSESSION IS ACTUAL. In order to constitute an adverse possession, there must be an actual as distinguished from a constructive possession of the property, to which title is claimed. Before discussing the law on the subject, it is desirable to define some of the terms used in the law in this connection. In that part of the law of real property which deals with titles, the words "Seisin," "Seised" and "Disseisee" are of fre- quent occurrence. Like many other legal terms, these words are somewhat indefinite in their meaning, because the word "seisin" has been used in various meanings. The way to give a clear idea of the meaning of these words is to start with the original signification, and then to trace the secondary, or deri- vative, meanings. THE PEIliIAIlY MEANING OF THE WORD "SEISIN" IS THE UNION IN THE SAME PERSON OF ACTUAL POSSESSION WITH A FREEHOLD ESTATE. THE SECONDARY MEANING OF THE WORD "SEISIN" IS THE UNION IN THE SAME PERSON OF CONSTRUCTIVE POS- SESSION WITH A FREEHOLD ESTATE. THE THIRD MEANING OF THE WORD "SEISIN" IS THE UNION IN THE SAME PERSON OF ACTUAL POSSESSION BY ONE MAKING A CLAIM TO A FREEHOLD ESTATE, WITH COL- OR OF TITLE. THE FOURTH MEANING WHICH HAS BEEN GIVEN TO THIS WORD BY SOME COURTS IS THE UNION OF ACTUAL POSSESSION WITH A CLAIM OF, BUT WITHOUT COLOR OF, TITLE IN THE SAME PERSON. The meaning of the word "possession" is sufficiently ex- plained in another part of this work. The only thing that is necessary here is to explain what is meant by constructive pos- session, as distinguished from actual possession. All land is in the actual or constructive possession of somebody, using that word to include every entity, whether a person, or a corpora- 446 TITLE TO REAL PROPERTY. tion, or a State or the National Grovemment, which has the title to land. Actual possession is simply possession, as that has been explained. COITSTEUCTIVE POSSESSION IS A POSSESSION WHICH IS ASCRIBED BY THE LAW TO THE REAL OWNER, WHERE THERE IS NO ACTUAL POSSESSION."' WHERE THSBE IS NO ACTUAL POSSESSION, THE REAL OWNER HAS CONSTRUCTIVE POSSESSION. For instance, the real owner has constructive possession of a tract of wild land, although he has never seen it or done any act to assert his dominion over it. But, THERE CAN BE NO CONSTRUCTIVE POSSESSION WHERE THERE IS AN ACTUAL POSSESSION. AN ACTUAL POSSESSION, BY ONE WHO HOLDS UNDER, THAT IS, WHO ACKNOWLEDGES THE TITLE OP THE REAL OWNER, AS, POR INSTANCE, A TENANT POR YEARS, IS THE POSSESSION OP THE REAL OWNER. IN ACQUIRING TITLE TO REAL PROPERTY BY ADVERSE POSSESSION, THE STATUTE OP LIMITATIONS DOES NOT BE- GIN TO RUN UNTIL THERE HAS BEEN A DISSEISIN. BY DISSEISIN IS INTENDED THAT ONE CALLED THE DIS- SEISOR HAS SUCCEEDED IN OBTAINING POSSESSION OP THE LAND INVOLVED AND SUBSTITUTING HIS SEISIN IN PLACE OP THE SEISIN OP THE ONE CALLED THE DISSEISEE. There is one apparent exception to the rule requiring actual possession. In defining seisin, we have distinguished between seisin where there is color of title, and where there is no color of title. Although it has often been said that there is no color of title unless the disseisor has a deed or record title of some nature, we are not able to agree to that proposition."^ In our "Bliss vs. Johnson, 94 N. Y., 235. "Under this theory color of title has been defined as follows: "Color of title professing to pass title upon its face, but which, either from want of title in the person making it, or from defects in the Instru- ment, does not convey a perfect title, hut not so obviously imperfect as to be apparent to one not skilled in the law." See Cramer vs. Clow, 9 L. E. A., 772. TITLE TO REAL PROPERTY. 447 opinion, one bona fide claiming to be the heir of an intestate has as much color of title as one claiming to be the person who takes under the will of a testator, or to be the person named in a warranty deed." Therefore, we define color of title as follows : BY COLOB OP TITLE IS MEANT THAT WHICH HAS THE SEMBLANCE OR APPEARANCE OF TITLE, BUT WHICH IN REALITY IS NOT GOOD OR EEEECTUAL." THERE IS NO COLOR OP TITLE WHERE THE ONE IN POS- SESSION DOES NOT BASE HIS CLAIM TO OWNERSHIP UPON ANYTHING BUT HIS POSSESSION.™ The only importance in this discussion with regard to color of title is this: If there is color of title to a single definitely ascertainable piece or tract of land, the disseisor may have actual possession of a part and constructire possession of another part of the same piece or tract, to the extent that his constructive possession may amount to a disseisin; but where there is no color of title to anything but that part of the tract actually occupied, there can be no disseisin beyond the limits of the land of which the disseisor is in actual posses- sion."^ "Miller vs. Davis, 64 N. W. Rep., 338. "Baker vs. Swan, 32 Md, 355. ■'Deffeback vs. Hawke, 115 V. S., 392. "Stnll vs. Ricb Patch Iron Co., 92 Va., 263. This was an action of ejectment by the Iron Co. against Stull. The Iron Co. was the legal owner of the premises in controversy, his claim of title extending back to the commonwealth. The defendant claimed title by adverse possession and through one R. N. Weir, Sr., who conveyed the property in question, one hundred and nineteen acres, to John Deed.Sr., in 1834, and through whom defendant traced his title from the commonwealth. The grantee of Deed took possession and cleared a few acres, claiming title to the whole boundary embraced in his deed. Additional land was subsequently cleared, so that at time of trial there were twenty acres of the tract clear and under fence. The defendant and his grantors occasionally cut timber from the uncleared portion of the property, and it remained largely In a state of nature. The lower court held that the adverse possession of defendant ei- 448 TITLE TO REAL PROPERTY. In other words, when a person enters into possession under a conveyance or color of title, he will be deemed to have pos- session of the entire property described by his alleged title in the same parcel, and not in the adverse possession of another."' But where the person in possession does not rely on a color of title to support his claim of title, but relies solely on his naked possession, then he is seised in the law of only that portion of which he has actual possession.^" Applying then a principle heretofore stated to this class of possession, we have the follow- ing proposition: WHEKE THE PERSON IN POSSESSION CLAIMS TITLE SOLE- LY BY VIRTUE OF SUCH POSSESSION, THE LAW ADJITDOES THE POSSESSION OF ALL OF THE TRACT TO BE IN THE LEGAL OWNER, EXCEPT SUCH PORTION AS IS IN ACTUAL POSSES- SION OF THE DISSEISOR. As to what constitutes an actual possession must depend upon the uses to which the property may be put, its situation, and the circumstances of each particular case. AN ACTUAL POSSESSION IS THE OCCUPATION, USB OB ENJOYMENT OF THE SUBJECT MATTER OF THE CONTRO- VERSY, BY RESIDENCE, CULTIVATION, IMPROVEMENT, OR OWNERSHIP. There may be habitual acts of ownership sufficient to con- tended to only that portion which was under fence. The Supreme Court reversed this ruling and held that the defendant's grantors and the defendant, In building, clearing and enclosing a iwrtion of the property and in claiming title to the whole tract described In their re- spective grants, were in possession of the entire tract and not simply of the cleared twenty-three acres. "The aictual possession of one tract will not amount to a construc- tive possession of another distinct and separate tract, even though the latter is described in a grant creating a color of title In the claimant. McRoberts vs. McArthur, 62 Minn., 310. •'Taylor vs. Burnsides, 1. Grat., 165. TITLE TO REAL PROPERTY. 449 stitute an actual possession, other than a residence on and a cultivation of the property.®" 3. IN OBDEB TO CONSTITUTE ADVEBSE POSSESSION, THE POSSESSION OE THE DISSEISOR MUST BE HOSTILE TO THE LEGAL OWNER. The actual and peaceable possession of land by one other than the owner does not necessarily make the possession adverse to the owner. As already stated, the possession of a tenant for years is the possession of the landlord under whom he holds. Such a possession confers no title in the person hold- ing it, however long continued. POSSESSION HELD IN SUBORDINATION TO THE TITLE OE ANOTHER IS NOT HOSTILE. Thus the possession of a tenant, under his landlord, of a mortgagor or an agent for his principal, or of a life tenant as against the remainderman, will not as long as the relationship is recognized constitute an adverse holding. It is not essential ""Judge Baldwin, in the ca.se of Taylor vs. Burnsides, 1 Grat., 165, makes the following clear statement: "Occupation, use or enjoyment, residence, cultivation and im- provement respectively, while they continue, are usually the most ob- vious and decisive. But there may be other open, notorious and hab- itual acts of ownership, of quite equivalent import and effect. Take, for example, the case of a town resident who, claiming title to a lot or tract of woodland in the vicinity, openly, notoriously and habitually cuts and hauls from it his necessary supplies of fuel, or in like manner makes it a soui-ce of revenue, by sales of firewood or timber; or the case of an uiilnclosed or unimproved lot in or near a city, devoted by the professed owner to his use or profit as a coal or lumber yard, quarry or landing place. There cannot be stronger instances of actual possession than these, and other like cases which might be stated; but they can serve only for the purpose of illustration. When we leave the unquestionable tests of residence, cultivation and Improvement, every case must de- pend in a great measure upon its own circumstances, and requires a recurrence to the general principle, above stated, of open, notorious and habitual acts of ownership. That principle must, moreover, be guarded In its application by taking care not to confound an adverse claim with an actual possession, and by distinguishing between repeated tres- passes, under a pretense or even belief of title, and the dominion, con- trol and enjoyment of actual or apparent ownership. That an adverse possession requires actual occupancy, or what is equivalent to it, Lb sustainftd by an overwhelming current of American decisions." 450 TITLE TO REAL PROPEETY. that the possession of the disseisor should be hostile at the time of his original entry; for a lawful possession under another may by an act of disseisin become adverse. Thus, if one enter- ing under a lease, or a contract of purchase, or by consent of the legal owner, expressly repudiates the relationship under which he entered, or if such person acts in a manner incon- sistent with the title of the legal owner, and the owner has, or ought to have, notice of such acts, the possession becomes hostile and may ripen into a title adverse to the owner. So, the possession of one co-tenant may become adverse after he has actually ousted his co-tenant, or has committed acts which are constructively equivalent to an ouster.*^ It is impossible to indicate just what actions are regarded as hostile to the legal ov.ner; since it is a question for the jury under the circumstances of each particular case. AS A GENEBAIi KtrLE, ANY VISIBLE OPEN USE, WHICH AHOITNTS TO AN ACTUAIi APPBOPRIATION OF THE LAND TO THE PERMANENT AND EXCLUSIVE DOMINION AND BENEFIT OF THE DISSEISOB, IS A HOSTILE POSSESSION.62 The erection of buildings and other acts inconsistent with the legal title of the true owner have been held to amount to an adverse possession. To constitute adverse possession, the acts of the disseisor must indicate an intent to permanently appro- priate the property. Acts of trespass, or occasional acts of ownership, do not constitute a possession that will ripen into title." 4. THE POSSESSION OF THE DISSEISOR MUST BE OPEN, VISIBLE AND NOTORIOUS. In order to constitute an adverse possession, the occupation of tlie disseisor must be so open and visible that the legal "Fenton vs. Miller, 94 Mich., 204. "Costello vs. Edson, 44 Minn., 135. "Cox vs. Ward, 107 N. C, 507. TITLE TO REAL PROPERTY. 451 owner will have either actual or constructive notice, of the possession and claim of the disseisor. A secret possession, or a possession of such a character that the owner does not have an actual or constructive notice that an adverse and hostile claim is made to his property, is not sufficient to create any right in the disseisor. Under any dif- ferent rule the legal owner might lose the title to his property without an opportunity to protect his title. The possession of the disseisor must therefore be so visible and open, that in the event of the true owner visiting the prop- erty, the nature and circumstances of the disseisor's possession would notify him that such possession was contrary and hos- tile to his legal title.°* When the true owner has actual notice of an adverse possession, it is unnecessary to make any proof that the possession of the disseisor is notorious."* In the absence of such proof, the claimant must show that his possession has been so notorious that the owner by exer- cising reasonable diligence would have had notice of his adverse claim. Thus, for the purpose of proving the notoriety of his possession, a claimant may show that the land has been generally regarded as his in the neighborhood in which it is situated.®^ Once the claimant's possession becomes so open and notor- ious that the legal owner is presumed to have notice of its adverse character, the Statute of Limitations will begin to run "In Pike vs. Robertson, 79 Mo., 618, the court says: "If the owner visit his land, the indications of adverse possession and claim should be so patent that he could not be deceived. la this case, if the owner should have visited this land, he might have seen wood cut and rails split and hauled off, pretty good Indications of tres- pass; but he would have seen no habitation, no enclosures, no fields, nothing Indeed to advise him that an adverse claim was set up, that some one was disputing his title." "Clark vs. Gilbert, 39 Conn., 94. "Sparrow vs. Hovey, 44 Mich., 63. 452 TITLE TO REAL PROPERTY. against him. To this statement there is an exception which may be stated as follows: STATUTES OF LIMITATIOMTS DO HOT RTJN AGAINST THE OWNEB OF AN ESTATE IN EXPECTANCY, OB, AGAINST A PERSON WHO HAS NO IMMEDIATE BIGHT TO BRING AN ACTION TO PROTECT HIS TITLE. TITLE BY ADVEBSE POS- SESSION CAN ONLY BE ACQUIBED AS AGAINST THE PEBSON ENTITLED TO IMMEDIATE POSSESSION. That is, following the rules and principles already laid down, a title by adverse possession cannot be acquired as against one who has no present right to the possession, and therefore cannot bring an action to vindicate his title. For, under our system of law, neither equity nor law listens to a man who can only show to the court that he apprehends that at some future time somebody will dispute his right. He may, indeed, take testimony de bene esse to perpetuate testimony in case he apprehends that the testimony may be lost before he has an opportunity to bring a suit to establish his rights. But he cannot file a bill to quiet his title, or to establish his title, until he is actually in possession, and he cannot bring a suit to recover possession until he is entitled to it. "When either of these conditions exists, he may bring a suit in the appro- priate tribunal, either to establish his title to the land, or to recover possession of it. For these reasons, if for no other, the Statute of Limitations does not run against one who has no right to immediate possession. It is evident that it would be a gross injustice to permit a man to be deprived of property which the courts afford him no opportunity to protect.®^ One of the authors remembers when, in 1866, one who had been actively engaged on the Confederate side in the War of the Rebellion, was debarred from bringing a suit to recover any debt, damages or property, or in any way to claim the protec- •'Meacliam vs. Bunting, 156 111., 586; 28 U R. A., 618.. TITLE TO REAL PROPERTY. 453 tion of the government of the country in which he lived. The impression produced by that state of facts was very painful, but that temporary condition has long ceased to ejdst. But, at least, it made such an impression that we wish to impress upon the mind of the student that under the principles of our law, no man can be deprived of a substantial right until he has a right to be heard in the courts to vindicate his right. Therefore, we reiterate that the Statute of Limitations does not run against one who is not entitled to bring a suit to vindicate his right. And he is not required to pay any attention to the possession until he, himself, is entitled to the possession, INFAJSTS. For the same reason the statutes of limitations will not run against one under disability and therefore incapable of protect- ing his or her title. Thus the statutes will not commence to run against an in- fant or an insane person until the disability is removed. 5. THE POSSESSION OE THE DISSEISOR MUST BE EX- CXirSIVE. The possession of the claimant and the legal owner cannot be concurrent, for if the true owner is in possession at all, the possession of other persons will be deemed to be under his title.«« ''' wsmlth vs. Hitcbcock, 38 Neb.. 104. This was an action of ejectment by Mrs. Smith, for a part of a lot Her claim was based solely on an alleged possession. About 1870, by permission, of defendant's ancestor Mrs. Smith moved a cottage which she owned on the eastern portion of the lot and occupied the same as a home. Defendant's ancestor also lived on the same lot which was under one inclosure. The court directed a verdlict for the defendant, and this ruling was affirmed by the Supreme Court. The latter court stated the reason for its ruling as follows: "Her possession of the lot was con- current with that of the owner of the legal title. It was a mixed pos- session not an exclusive one. The defendant In error, the holder of the legal title, has never been out of possession of the property claimed by Mrs. Smith, and this negatives any legal presumption that her pos- session was adverse to his title or i>ossesslon." 454 TITLE TO EEAL PKOPEETY. The possession of the claimant must also be exclusive of all co-tenants and of third persons. 6. IN ORDER TO CONSTITUTE ADVERSE POSSESSION, THE POSSESSION OF THE DISSEISOR MUST BE UNDER COLOR OP TITLE OR WITH AN INTENT TO ASSERT TITLE IN HIH- SELP. In order to constitute a disseisin necessary to start the run- ning of the Statute of Limitations, it must have been the in- tention on the part of the disseisor to assert title in himself.'" In the absence of such an intent the holding wiU not be ad- verse.^" While some of the cases hold that there must be on the part of the disseisor a bona fide belief in the merit of his claim to title, this is not the general rule. THE POSSESSION OP THE DISSEISOR NEED NOT BE UNDER COLOR OP TITLE, OR UNDER WHAT HE BELIEVES TO BE A wSmebcrg vs. Cuxming^liam, 96 Micb., 378. Action of ejeetment. Plaintiff was owner of the legal title and defendant claimed by adverse possession. The piece occupied by de- fendant was a portion of a larger tract which was mainly unoccupied. The owner of the land did not pay much attention to it and defendant moved into a house built on the property ajid occupied it for over fifteen years. Defendant first occupied the house because no one looked after it, and with the Intent to occupy it as long as she could do so without paying rent. The Supreme Court held that the lower court ehould have in- structed the jury that the defendant had failed to establisn title by adverse possession. "She did not enter under any claim or color of riKht, nor in the belief tihat she had any right. • * • • • s^e did not intend to retain possession, according to her own evidence, any longer than she could do so without the payment of rent This was a recognition of a title in some one else and was conclusive evidence that her entry and possession were subject to that title. * • • An entry with intent to remain in possession until the real owner claims It or demands rent is not hostile." "Preble vs. Maine G. R. Co., 85 Me., 260; 21 L. R. A., 829. In this case it was held that the occupancy of land up to a certain fence, under the belief that the fence marked the true boundary line, would not constitute an adverse possession, if there was no Intention to claim title beyond the true line. See also. King vs. Brigham, 23 Dr., 262; 18 L. R. A., 361. Contra, Erck vs. Church, 87 Tenn., 575; 4 L. R. A., 641 TITLE TO REAL PROPERTY. 455 EIGHTFUL CLAIM; IT IS SUFFICIENT IF HE CLAIMS THE PROPEBTY AS HIS OWN." FTom this statement it follows that a bona fide belief in his own right to the property is not required of the disseisor. Under the early law it was held that only occupants in good faith, that is those who have a bona fide belief in their right to the property, could acquire title by adverse possession. Some of the courts still seem to adhere to the doctrine of these old decisions. As a general rule under the statutes and later decisions, it is now unnecessary to inquire "into the hidden motives of the entry or possession, and all questions of good faith respecting the same;'"^ it is sufficient that the possession of the disseisor is hostile to all the world and that he intends to hold the land as his own.'* There is this limitation on this doctrine: WHERE ONE HAVING ACTUAL POSSESSION OF A PORTION OF A TRACT OF LAND, CLAIMS ADVERSE TITLE BY CON- STRUCTIVE POSSESSION UNDER COLOR OF TITLE TO ANT PORTION OF THE TRACT BEYOND HIS ACTUAL POSSESSION, HE MUST, AS TO THE PORTION CONSTRUCTIVELY POS- SESSED, HAVE A BONA FIDE RELIANCE ON HIS ALLEGED TITLE, IN ORDER THAT HIS POSSESSION MAY BE ADVERSE." Thus, if the disseisor knew that his title was defective, and that he had no title, he cannot acquire title to that portion- of the tract of which he was only in constructive possession under "Illinois Central B. Co. vs. Hougliton, 126 111., 233; 1 L. R. A,, 213. "Lampman vs. Van Alstyne, 94 Wis., 417. "Railroad Co. vs. Groh. 85 Wis.. 641. Fouike vs. Bond. 41 N. J. L.. 541. Oliver vs. Pullam, 24 Fed. Rep., 127. "Kopp vs. Herrman, 82 Md., 339. 456 TITLE TO REAL PROPERTY. color of title/^ but he may acquire title to that portion of which he was in actual possession." EFFECT OF ADVERSE POSSESSION. ADVERSE POSSESSION OF LAND FOR A PERIOD SUFFI- CIENT TINDER THE STATUTE OF LIMITATIONS TO BAR AN ACTION FOR ITS RECOVERY, NOT ONLY CUTS OFF THE OWNER'S REMEDY, BUT DIVESTS THE ESTATE OF THE TRUE OWNER.77 Thus it is held that adrerse possession for the statutory period enables the adverse claimant not only to defend his own possession against the owner of the legal title, but also to re- cover possession from another who has subsequently taken if PROOF. T^Tien the facts in any case in which the question of adverse possession arises are undisputed, it is a question for the court to decide whether the facts are sufficient to constitute an ad- verse possession. When the facts are not conclusively estab- lished by the evidence, it is for the jury to determine under the charge of the court whether the essentials of an adverse pos- session exist in any given case.'" The burden of proof is on the party setting up the adverse possession. All reasonable presumptions are in favor of the owner of the legal title, and the evidence to divest him of his title ought to be clear and positive.'" •^FoiUke vs. Bond, 41 N. J. L., 527. Green vs. Kellnm, 23 Pa. St., 254. "Strange vs. Durham, 2 Bay (S. C), 429. The requirement of good faith of a claimant under color of title is not required in some states. Railroad Co. vs. Groh, 85 Wis., 641. "Bicknell vs. Comstock, 113 U. S., 149. Baker vs. Oakwood, 123 N. Y., 16; 10 L. R. A., 387. "Gage vs. Hampton, 127 111., 87; 2 L. R. A., 512. "Hlglistone vs. Burdette, 54 Mich., 329. «°Lampman vs. Van Alstyne, 94 Wis., 417. TITLE TO REAL PROPERTY. 457 TITLE BY ESTOPPEL. We have already liad occasion to discuss somewliat the doctrine of estoppel, as applied to the relation of landlord and tenant, and of a life tenant to a remainderman. We have seen that one in possession owing faith and allegiance to one under whom he holds, is estopped to deny the latter's title. From another standpoint we may define an estoppel as follows : WHERE ONE, BY RECORD OR DEED, OR BY HIS WORDS OR CONDUCT, ADMITS A FACT WHICH CAUSES ANOTHER TO BELIEVE THAT SUCH FACT EXISTS, AND INDUCES HIM TO ACT ON THAT BELIEE, SO AS TO ALTER HIS PREVIOUS CON- DITION, THE FORMER IS PRECLUDED FROM AVERRING AGAINST THE LATTER A DIFFERENT STATE OF FACTS AS EXISTING AT THE SAME TIME.» It remains to briefly consider the application of this doc- trine to the title of real property. An examination of the above definition will disclose that estoppels are of three kinds: (1) by matter of record, (2) by matter in writing, (3), by word or con- duct known as matter in pais. ESTOPPEL BY RECORD. The judicial ascertainment of facts by a court of competent jurisdiction, is a conclusive ascertainment of the same facts as between the same parties, and such parties are thereafter estopped from denying the facts so ascertained. ESTOPPEL BY WRITING. (a) By Will. It is one of the doctrines of the law that a person cannot accept and reject the same instrument. Therefore, one taking under a will may not accept those terms of it favorable to him- self and reject any unfavorable terms or conditions; for having accepted the former he is estopped to deny the latter. "Colorado L. & I. Co. vs. Grand Canal Co., 3 Col. App., 63. Fox TB. Wlndes, 127 Mo., 502. 458 TITLE TO REAIj PEOPEETY. (b) By Deed. The same rule applies to deeds as has just been stated in reference to wills. "The grantee in a deed poll by accepting it, becomes bound by its terms as completely and absolutely as the grantor, and it will operate as an estoppel against him by reason of its acceptance."^* The grantor is, of course, bound by the terms of his grant, and he will afterwards be estopped from disputing its terms. The most common application of this principle is found in the case of a grantor with warranty as to his title, attempting to set up as against his grantee an after acquired title. The grantor in a warranty deed and those in privity with him are estopped from availing themselves of an after acquired title.*" A quit-claim deed, since it contains no representations as to the title, and purports only to convey such title as the grantor has at the time of its execu- tion, does not, as a general rule, create an estoppel. A QUIT-CLAIM DEED DOES NOT ESTOP THE OBANTOB FROM ASSERTING AN AFTER-ACQUIRED TITLE." THE PARTIES TO A DEED AND THEIR PRIVIES WILL ALSO BE ESTOPPED PROM DISPUTING THOSE RECITALS IN THE DEED WHICH ARE DEFINITE AND MATERIAL TO THE TRANSACTION." Thus, where a grantee accepts a deed which recites a mort- gage in favor of a corporation, it was held that the grantee could not dispute the incorporation of the alleged company." "Lowber vs. Connlt, 36 Wis., 176. uFoote TS. Clark, 102 Mo.. 394; 11 I.. R. A., 861. A life tenant conveyed an estate In fee simple in real property with a covenant that the grantor was at the time of the execution of such conveyance seised of an Indefensible estate in fee simple. Sub- sequent to the making of this deed the grantor acquired an Interest from her children by inheritance. The Supreme Court held that any In- terest 'Which she Inherited passed to her grantee. "Haskett vs. Maxey, 19 L R. A., 379. "Dodge vs. Kennedy, 93 Mich., 547. "Hasenrltter vs. Klrchhofter, 79 Mo., 239. TITLE TO REAL PEOPBRTY. 459 So it was held that a plaintiff in ejectment who claimed under a sheriff's deed, on the foreclosure of a mortgage, is bound by the recital in the deed of the amount due on the mortgage, and from claiming that the mortgagor is not entitled to redeem on payment of that sum. The court says: "The plaintiff now seeks to deny this recital, and at the same time claim under it. He cannot be permitted to do this. If his deed conveys the title to him, he must take it as it is. He cannot adopt those provisions which establish his claim and repudiate the others."*^ AS A GENERAL BTJLE, THE RECITAL IN A DEED OF THE PAYMENT or THE PURCHASE PRICE DOES NOT ESTOP THE GRANTOR PROM SUING THEREPOR. A receipt is always open to explanation, and the recital of receipt in a deed is regarded the same as a separate receipt, and may be varied or explained by parol evidence."" ESTOPPEL IN PAIS. AN ESTOPPEL IN PAIS, IS ONE WHICH ARISES PROM WORD OR CONDUCT, AND NOT PROM A RECORD OR WRITING. The doctrine of estoppel in pais, while it is founded upon equitable principles to prevent fraud and oppression, must be applied with the greatest care to questions affecting the title to real property. Under the policy of the law, title deeds are the best protection of estates. "They prove themselves, and the record of them is notice upon which every one may rely in bargaining for and in acquiring lands." Under the Statute of Frauds, an interest in land can be created only by a writing, and such writing cannot be changed by parol agreements or understandings. Any doctrine, therefore, by which the instru- ments of title may be set aside or controlled by verbal state- "Dodge vs. Kennedy, 93 Mich., 547. "Smith vs. Arthur, 110 N. 0., 400. 460 TITLE TO REAL PROPERTY. ments, or admission, or by the conduct of the parties, must be applied only when the grounds upon which it rests are clearly and satisfactorily established, and not then "except in support of a clear equity ov to prevent fraud.""^ Some courts, in fact, while they apply the doctrine of estoppel in pais so as to affect the title of personal property, will not extend it to cases involv- ing title to real property, except in equitable proceedings. In other words, in the States adopting this view, at law the legal title will prevaO, unaffected by estoppel resting in parol. The reason for this ruling has already been indicated and is stated as follows by Judge Cooley: "* • * a conversation mis- understood or falsely reported controls the most perfect chain of conveyances, and any estate — ^the most valuable in the land equally with the most worthless — is liable to be taken from the owner on the impression which a jury receives of the pre- ponderance of evidence concerning words which witnesses may have imperfectly heard, or incorrectly understood, or the pur- port of which they may have unintentionally colored, or pur- posely wrenched from the real meaning in the mind of the speaker. The evils against which the statute of frauds was aimed, are all here in their most threatening form; and it seems to us a trifling with the statute to refuse to apply it to a case clearly within its spirit, when in order to exclude it from the letter it is necessary to put the title out of view and deny that it is involved, though the decision is to effectually dispose of it."°^ Many of the courts, however, will apply the principles of equitable estoppel in law as well as in equity, and will permit an estoppel on a proper showing to overcome the legal and written title. "Lyon vs. Morgan, 143 N. T., 505. "Hayes vs. lilvingstone, 34 Mich., 396. TITLE TO REAL PEOPERTY. 461 The doctrine of estoppel is often applied in the following instances: 1. ONE IS OI"TEN ESTOPPED PROM ASSERTING TITLE TO PROPERTY UPON WHICH HE HAS, BY CONDUCT OR SILENCE, MISLED ANOTHER, WHO SUPPOSED HIMSELF TO BE THE OWNER, TO MAKE EXPENDITURES." a. WHEN ONE STANDS BY AND PERMITS ANOTHER, WHO ASSUMES TO BE THE OWNER OF HIS PROPERTY, TO SELL IT TO A THIRD PERSON, WITHOUT DISCLOSING HIS CLAIM, HE WILL BE ESTOPPED PROM AFTERWARDS ASSERTING HIS TITLE AS AGAINST SUCH PURCHASER. Both of these statements grow out of the familiar equitable maxim that "when a man has been silent when in conscience he ought to have spoken, he will be debarred from speaking when conscience requires him to keep silent." Lord Cransworth in spealdng of the essentials of an estoppel arising from the expenditure of money on land, says: "It must have three fea- tures, first, the person expending the money must believe him- self to be the owner of the land; secondly, the real owner who encourages the expenditure by his silence must know that the land belongs to him, and thirdly, that the other is act- ing in an erroneous belief as to its ownership.""* In other words, in order to create an estoppel, the circimistances of the case must be such that the owner of the land has an opportunity and a duty to notify the person making the im- provements of his interest in the property.'" If the circum- stances are not such as to raise this duty, the mailing of the improvements will not of itself create an estoppel. Thus, if an owner maintains a silence without knowledge that improve- ments are being made, or that the expenditures were being "Scharman vs. Schannan, 38 Neb., 39. Lindsay vs. Cooper, 94 Ala., 170. "Ramsden vs. Dyson, L. R., 1 H. L., 129, 141. "Knoedler vs. Glaenzer, 55 Fed., 895; 20 L. R. A., 733. 462 TITLE TO EEAL PEOPEBTy. made under a mistake of title, he will not be estopped from asserting his title. So it was held that an owner was not estopped from asserting his title when it appeared that he hon- estly believed that his neighbor knew the correct location of the boundary line."® It must also appear that the person claim- ing an estoppel relied upon the act or silence of the true owner. If the party making the improTements had knowledge of the true facts, or if he did not rely on the silence or act of the legal owner, no estoppel will arise. In cases in which the person making the improTement can be fully indemnified by a money decree, the equitable courts will permit the legal owner to assert his title on making adequate compensation to the maker of the improvement. If the injury cannot be measured in dollars and cents, the courts will pass the equitable title to the one making the improvement and re- strain the assertion of the legal title.'' The above rules are held to be inapplicable by some courts, in cases in which the true facts might have been discovered by a consultation of the public records. In a recent case the Su- preme Court of Alabama said: "The law is well settled that one having a record title, so long as he may do no afllrmative act to mislead or deceive, is under no further duty to those who may acquire subsequent rights and will not be barred from the assertion of his title. * * « The presumption is" right and just that an intending purchaser examines the records touching the title of his vendor, and it is just and right to im- pute to him notice or knowledge of all the record may dis- close. If the examination is not made, whatever loss may re- sult is attributable to his negligence, and not to the fault of him who has on record a paramount claim of title.""' "Mulljaney vs. Duffy, 145 111., 559. "Sumner vs. Seaton, 47 N. J. Eq., 103. "Porter vs. Wheeler, 105 Ala., 451. TITLE TO REAL PROPERTY. 46B BOUNDARIES. Tke principles of the lav' of estoppel are frequently applied with reference to the fixing of boundary lines. WHEBE THE BOtrNDABY LINE BETWEEN ADJOINING PBOPERTIES IS TJNCEBTAIN AND DOUBTEUL, AND THE AD- JOINING OWNEBS HEET AND, BY PABOL AGEEEMENT, EIX A BOTJNDABY LINE, AND THEEEAETEB ACQXJIESCE IN THE LINE SO ESTABLISHED, SUCH LINE WILL BE CONSIDERED THE TRTJE LINE, ALTHOUGH THE PERIOD OF ACQUIESCENCE EALLS SHOBT OF THE TIME FIXED BY THE STATUTE OF LIM- ITATION FOB GAINING TITLE BY ADVEBSE POSSESSION." It is the policy of the law to permit parties to settle doubt- ful and disputed facts among themselves, and when such settle- ment does not violate some legal rule, the parties will not after- wards be permitted to deny it. If the boundary for any reason is uncertain and doubtful, the agreement of the parties fixing it is regarded by the courts as a practical construction of the deeds under which they claim, and the parties will hold title up to the line fixed, not by virtue of the parol agreement, but by the terms of their grant wHich they have by their agreement construed and defined. IF THE BOUNDABY LINE IS NOT DOUBTFUL, OB IF IT IS CLEARLY LOCATED BY THE DEEDS UNDER WHICH FAR- TIES CLAIM, ANY PAROL AGREEMENT WHICH VARIES THE TRUE LINE IS WITHIN THE STATUTE OF FRAUDS AND IS VOID.™ It will be at once apparent that any parol agreement which gives to an owner more property than his deed calls for, would operate as a transfer of interest in real property, which the Statute of Frauds requires to be in writing. It is only where there is an honest dispute as to the boundary line and where the terms of the grants can be extended to the property held by "Smith vs. Hamilton, 20 Mich., 433. Galbraith vs. Lunsford, 87 Tenn., 89; 1 L. R. A., 522. '"Belong vs. Baldwin, 111 Mich., 466. 464 TITLE TO REAL PEOPEETY. each owner, that the courts will regard the interpretation put on such grants by the adjoining owners. In many States, if the line is certain and fixed, a parol agreement changing such line, if acquiesced in for the period required by the Statute of Limitations, will establish the title of the adjoining owners up to the line iixed by such agreement.^"^ TITLE BY ACCRETIONS. It is a matter of common knowledge, that by reason of the tides of the ocean or by the currents of riyers, mud, sand, soil and other materials are often deposited upon the land washed by water. When the process by which this deposit is formed is gradual, it is known as accretion; and the deposit itself is known as alluvion. ACCBETION IS THE PROCESS, BY WHICH AN ADDITION IS MADE TO LAND BY THE WASHING TIP OP EABTH AND OTHER MATERIAL, BY CONTIGUOUS WATERS, WHEN THE FORMA- TION OP SUCH ADDITION IS GRADUAL AND IMPERCEPTIBLE. ALLUVION IS THE DEPOSIT OR PORMATION RESULTING PROM THE PROCESS OF ACCRETION. The material deposited in this imperceptible and gradual manner, is the result of a washing away of particles or atoms of soil from the land washed by the same water. The washing away of the soil in most instances, like the formation of the deposit, is gradual and imperceptible. By reason of this grad- ual process it is impossible for the person from whose land the soil is washed to identify it when deposited on the land of another. It sometimes happens, however, that by some sudden action of the waters, considerable portions of land are carried away '"Bunce vs. Bidwell, 43 Mich., 542. TITLE TO REAL PROPEETY. 465 and deposited upon the land of another, in such a way that it can be identified. This sudden change is known as an avul- sion. 102 KELICTION IS THE SLOW, GRADUAL AND IMPEBCEPTI- BLE RECESSION OE WATER FROM LAND WHICH IT EORM- ERLT COVERED. With these definitions we may now inquire as to the rights of owners of land adjacent to water, with respect to soil de- posited or carried away by the water, and first with respect to accretions. ALLUVION BECOMES A FART OF THE REALTY UPON WHICH IT IS CAST. Accretions being an imperceptible addition, it would be im- possible for any one to identify the additions as coming from his property, and the law will not permit him to claim that which he cannot show to belong to him; and the law permits the owner of the land upon which it is cast to keep it on the principle of compensation for the risk of loss that he runs of losing a portion of his property by the same means as it is added to. "The law is wise and just. If the action of the river had gradually worn away the defendant's land after the purchase from the United States, the loss would have been his. To com- pensate bim for risk of loss in this manner, as well as to pre- serve to him the benefits of his water front, the law gives him the advantage of any gains by accretion or alluvial deposits.'""* If the land is deposited not imperceptibly and gradually, but by some avulsion, and can be identified, the above rule does not apply. In the case of avulsions, the title to the deposit continues in the original owner, and he may enter and carry it away from the place where it is deposited; if he neglects to do ""Nebraska vs. Iowa, 143 U. S., 359. ""Kraut VB. Crawford. 18 Iowa, 549. 31 466 TITLE TO REAL PEOPBETT, this, and permits it to become a part of the soil of the second owner, his right to take is lost.^"* The same general rules are applicable in the case of relic- tions. The riparian owner is entitled to the new land made by the gradual recession of water, and may claim the land up to the new edge of the water.^"" If the recession is sudden and perceptible, the riparian owner's rights are not enlarged, and the ownership of the land is not changed. Thus it was held that the abandoned bed of the Missouri Eiver, caused by a sudden change of its course, did not belong to the riparian owner.^"^ All of tl e rules as to accretion or reliction heretofore stated are applicable in all cases in which property is bounded by water, and it makes no difference whether the water is nav- igable or not, or whether it consists of sea, river, lake or pond. It often becomes necessary to ascertain the character of the water in order to determine who is entitled to accretions formed or deposited, not on the banks, but in the water itself. The boundary land adjacent to a navigable stream in which the tide ebbs and flows, is at the low water mark, and the title to the bed of the stream is in the State. It follows that if an island is formed in a navigable river, it does not belong to the riparian owner. So the accretions to an island in a navigable river do not belong to the riparian owner, but to the owners of the island.^"'' "'Woodibury vs. Short, 17 Vt, 387. 3 Wash. Eeal Prop., 59. ""Warren vs. Chambers, 25 Ark., 120. Fuller vs. Shedd, 161 lU., 462; 33 L. R. A., 462. '"Oooley vs. Golden, 117 Mo., 33; 21 L. R. A., 300. '"Cooley vs. Golden, 117 Mo., 33; 21 L. R. A., 300. TITLE TO REAL PROPERTY. 467 If th.e stream is not navigable, the riparian owners own to the thread of the stream, or, as often called, the flium aquae; and if an island is formed within the boundaries of one of the riparian owners, the island belongs to him. In other words, the island belongs to the owner of the soil on which it is formed.^"' If the island is formed on one side of the thread of the stream, it belongs to the riparian owner on that side; but if the island is formed so that it is partly on one side and partly on the other, it will be divided according to the boundary line prior to such formation.^"* '"Oooley vs. Golden, 117 Mo., 33; 21 L. R. A., 800. '"•HopUns Academy vs. Dickinson, 9 Gusb. (IlaBS.), 548. CHAPTER II. TITLE OF ALIENATION. INVOLUNTARY AL.IBNATION. At the common law, the owner of a vested interest in real property could not be compelled to convey it; neither could his interest be conveyed without his consent by any judicial pro- ceeding. This is still the general rule; but it is subject to a number of exceptions. In a number of instances the law will compel a conveyance or provide a substitute for the act of the owner, by which the title of an owner may be passed to another without his con- sent INVOLXTNTARY ALIENATION INCLUDES ALL THOSE METHODS or TRANSFER WHICH ARE AGAINST THE WILL OF THE OWNER, AND ALL METHODS OF TRANSFER UNDER THE LAW WITHOUT THE ACT OF THE OWNER. The legislatures of the various States, on the ground of pub- lic policy, have provided that under certain circumstances the interest of one incapable of conveying, or of one capable of conveying but unwilling to do so, may be transferred to an- other by a judicial or other proceeding. We will briefly con- sider some of the circumstances under which involuntary alien- ation may take place. TITLE BY BXEJOUTION. AN EXECUTION IS THE PROCESS BY WHICH THE FINAL JUDGMENT OF A COURT OF LAW IS GIVEN EFFECT.' 'Eeld vs. N. W. R. Co., 32 Pa. St., 257. Pierson vs. Hammond, 22 Tex., 585. 468 TITLE BY ALIENATION. 469 At the conuaon law real property could not be sold on an execution. In all the States, statutes have been passed chang- ing the common law, and providing that personal and real property, if not exempt by law, may be sold under an execu- tion. The statutes of the different States vary somewhat. In order that a valid title pass to the purchaser at an execu tion sale the following facta must appear: 1. THEBE MUST BE A VALID JUDGMENT. The authority of the sheriff to sell arises out of a valid judg- ment against the person whose interest it is sought to reach by execution.^ If the judgment is null and void, the sheriff has no authority to sell, and any attempted sale is invalid. The sale of property under the judgment of a court which did not have jurisdiction of the subject matter of the litigation, is ineffectual to pass title.' It is not necessary to discuss, in a book of this character, the essentials of a valid judgment. 2. THE JUDGMENT MUST BE IN FOBCE AT THE TIME 07 THE SALE. The payment of a judgment to a person or offlcer authorized by law to accept it, discharges the judgment and extinguishes an execution issued under it.* 3. THE JUDGMENT MUST BE A LIEN ON THE PE.OPEBTT SOLD. After the entry of the judgment, the plaintiff or his attorney may within a certain time, limited by statute, cause an execu- tion or fieri facias to be issued. •Adams vs. Hubbard, 30 Mich., 103. ■Weldersum vs. Naumann 62 How. Pr., 369. Furgeson vs. Jones, 17 Or., 204; 3 L. R. A., 620. 'Knight vs. Morrison, 79 Ga., 55. Hendry vs. Benllsa, 37 Fla., 609; 34 L. R. A., 283. 470 TITLE BY ALIENATION. A fieri facias is a writ issued ia the name of the State and directed to the sheriff, commanding him that of the goods and chattels and of the lands and tenements of the defendant therein named in his bailiwick, he cause to be levied a certain debt which plaintiff recovered against defendant, and that he bring the money before the court by a certain day, to render to the plaintiff his debt and damages. In England, immediately on the delivery of this writ to the sheriff, the debt becomes a charge or lien upon the personal and real property, subject to the exemptions of the defendant. This rule prevails in a number of the States. In many of the States the lien does not attach until the sheriff has made a levy on the property, in the manner pre- scribed by law. After the lien once attaches to the property, it continues for the time fixed by law. The length of time varies in the different States. The lien is then foreclosed by the sale of the property, and after the expiration of the time of redemption, the property is deeded by the sheriff to the purchaser. 4. THE REQUIREMENTS OE THE STATUTE REGXTLATING THE issunsro or the exectitioit, the attachment of THE JAES AND THE SALE THEREUNDER, AND THE EXECU- TION AND DELIVERY OF THE SHERIFF'S DEEDS, MUST BE SUBSTANTIALLY COMPLIED WITH. For instance, it was held that an execution which failed to name the person whose property is to be taken was void under a statute which required that if the judgment be for money simply, it shall require the ofScer to satisfy the judgment out of the property of the debtor subject to execution.* TITLE BY ALIENATION. 471 So it was held under a statute requiring that all process must bear the seal of the court issuing it, that an execution not under seal was absolutely void." The provisions of statutes of the different States vary as to method and procedure by which liens may attach and be en- forced against property. In some States the execution creditor must exhaust the personalty of the debtor before subjecting his realty to the payment of the judgment debt. In a number of States the sheriff's deed must contain re- citals showing that all the requirements of the statutes have been complied with. TITLE BY EXECUTION DOES NOT PASS UNTIL THE TIME FOE REDEMPTION HAS EXPIRED. In most states the debtor is given a certain time after the sale in which he may, on the payment of the debt with costs, redeem the property. On the failure of the debtor to redeem, the title passes to the purchaser. Before the expiration of the time of redemption, the pur- chaser has a right or interest in the property which is capable of assignment JUDICIAL SALES. A JUDICIAL SALE IS ONE AUTHORIZED, CONDUCTED AND CONTROLLED BY A COURT OP COMPETENT JURISDICTION. A judicial sale is conducted by the court through some of its agents, and is controlled by the court. Thus, the court, as a rule, directs what person shall make the sale, the manner in which the sale shall be conducted, and the notice which shall be given. After the sale takes place the control of the court con- •Weaver vs. Peasly, 163 111., 251. 'Llndley vs. Crombie, 31 Minn., 232. 472 TITLE BY ALIENATION. tinues, and in the discretion of the court the sale may be con- firmed or set aside. The difference between sales under execution and judicial sales is stated by Mr. rreeman as follows: "The former are based on a general judgment for so much money, the latter on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the directions of a statute, the latter are made by the agent of the court in pursuance of the directions of the court; in the former, the sheriff is vendor, in the latter, the court: in the former the sale is complete when the property is struck off to the highest bidder, in the latter it must be reported to and ap- proved by the court "^ A judicial sale is had in cases in which there is a proceeding in rem affecting definite property. In the case of an execution, so far as the judgment of the court is concerned, no particular property is designated; the sheriff levies upon such property as he deems necessary to sat- isfy the judgment. Sales under a decree in Chancery for partition, or the fore- closure of a mortgage, or sales under creditors' bills, are famil- iar examples of judicial sales. JUDICIAL SALES DO NOT COME WITHIN THE STATUTE OF FRAUDS. The only contracts for the sale of real estate, which are exempt from the requirements that they must be in writing and signed by the parties, in order to be valid, are judicial sales. A purchaser at a judicial sale may be compelled by the court to take the property and pay the stipulated price, even though he has not signed a contract. In the case of sales under an exe- •Freeman on Void Judicial Sales, 14. TITLE BY ALIENATION. 473 cution, or a sale under the power of sale in a mortgage, or in an administrator's sale, a different rule applies. There must be in such cases a written memorandum; a de- posit of money will not bind the sale. Therefore, in all sales of real estate at auction, except in case of judicial sale, a person desirous that a valid sale shall be made, should take the pre- caution to have a memorandum of sale prepared, ready to be filled out, and signed as soon as the property is knocked down. IN THE CASE OF A VALID EXECUTION, OR JtTDICIAL SALE, THE PTJKCHASEB ACQUIRES SUCH INTEREST AS THE JUDGMENT DEBTOR OR THE PERSON AGAINST WHOM THE DECREE RAN, HAD IN THE PROPERTY. In the absence of an express repriesentation, there is no rep- resentation as to the title of the person whose property is sold, and the doctrine of caveat emptor applies. EMINENT DOMAIN. EMINENT DOMAIN IS THAT SOVEREIGN POWER VESTED IN THE PEOPLE, BY WHICH THEY MAY, FOR ANY PUBLIC PURPOSE, TAKE THE PROPERTY OF AN INDIVIDUAL UPON PAYING JUST COMPENSATION TO HIM.s The right of the State to take private property for public purposes is one which appertains to sovereignty, and is a ne- cessary incident to every government. Everything, including private property, must give way to state and political necessities, and to public benefits. THE POWER OF EMINENT DOMAIN MAY BE EXERCISED TO APPROPRIATE AND CONTROL PRIVATE PROPERTY, ONLY FOR PUBLIC BENEFIT OR USE.io It is impossible to lay down any rule by which it may be de- termined what is a public benefit or use. The wants and ne- 'e Am. & Eng. Ency., 511. Board of Health vs. Van Hoesen, 87 Mioh., 533. "Trombley vs. Auditor General, 23 Mich., 471. Board of Health vs. Van Hoesen, 87 Mich., 533. 474 TITLE BY AilENATION. cessities of different communities vary, and what may be a pub- lic necessity in one locality might be an injury in another. We can only state the rule, that there must be a public use or benefit, and the student in determining whether or not in any particular case there is a public use, must ascertain the prac- tice and rule of the courts of his own State. The proper rule used to be stated by the late Judge George S. Swift, of Detroit, to juries in street opening cases as fol- lows: "If the benefit to the public is greater than the expense and inconvenience to the public, this constitutes a public neces- sity, and if you find this to be the fact, you will find that there is a public necessity for taking the land necessary to open this street." There are many improvements which would benefit a num- ber of individuals, or classes of individuals, which do not war- rant the exercise of the power of eminent domain. There must be some reasonable demand by the public at large, and not by individuals, in order that the use may be pub- lic.^^ It is not necessary that each member of the community should have the same degree of interest in the use, or be person- "Board of Healtb tb. Van Hoesen, 87 Hlcb. 633; 14 li. R. A., 114. ■Certiorari to review tlie proceedings to test tlie validity of cer- tain proceedinge to comdemn land for cemetery purposes. A statute of Michigan provided that whenever the board of health of any township should deem it desirable and necessary to enlarge the limits of any cemetery, application might be made to a Circuit judge for a jury to ascertain and determine the compensation to be made for the land required, and that after the determination of the jury in favor of such condemnation and the .payment of compensa- tion, the title to such land shall forever be vested in the board of di- rectors, board of health, etc. Under this statute it was attempted to condemn land belonging to respondent Van Hoesen. The court held that the public had no Interest in the lands or tbeir use; that there was no right on the part of the public to buy lots or bury their dead In such cemetery; that the lands condemned were un- der the absolute control and dominion of a corporation which might sell to one and refuse to sell to another; and that the land which It was desired to take by such proceeding was not to be devoted to the public use. Petition filed In lower court dismissed. TITLE BY ALIENATION. 475 ally affected by it, to make it public; for the fact that some persons will be benefited aboTe others, does not deprive the im- proyement of its public character.^^ Neither is it necessary that the entire community or a larger portion of it should benefit by the improvement, providing the general public interest and convenience are subserved.^* A use which may be monopolized or absorbed by the few, and from which the general public must be excluded, is not a public use.^* "While the use or benefit must be in coromon, yet the fact that all who wish may avail themselves of the improvement, will not of itself determine its character as public.^" PRIVATE PROPERTY CANNOT BE TAKEN EOB A PRIVATE USE.!* The State has no right to take the property of one citizen and give it to another, with or without compensation. "Gilmer vs. Lime iPolnt, 18 Cal., 229. McQulUen vs. Hatton, 42 Ohio St., 202. "Talbot vs. Hudson, 16 Gray, 417. Hartwell vs. Armstrong, 19 Barb. (N. Y.), 166. "Board of Health vs. Van Hoesen, 87 Mich., 533. "Pittsburg, W. & Ky. Ry. Co. vs. Iron Works, 31 W. Va., 710; 2 L. R. A., 680 »T«reIton vs. Dickson, 38 Neb., 767; 22. li. R. A., 496. The legislature of Nebraska passed a statute providing that when the lands of any person shall be surrounded and shut off from a pub- lic highway by the lands of another, who refuses to allow such person a private road to and from his land, the county board, on petition of the owner of the enclosed land, should appoint three commisslonera to lay out a road and assess the damages. The defendants in this proceeding appointed a commission to lay out a road over complain- ant Welton's land, under the statute. Thereupon Welton commenced this proceeding to restrain defendants from laying out such a road, and obtained a decree in the lower court. The Supreme Court affirmed the decision of the lower court, and held that the constitutional provision "the property of no person shall be taken for public use without just compensation," probiblts by im- plication the taking of private property for any private use what- ever, without the consent of the owner; that the statute under which defendants proposed to act, contemplated the establishment of a way for the private use and benefit of an individual and not of the public; and that therefore the statute was void. 476 TITLE BY ALIENATION. No necessity, however great, will warrant the taking of pri- vate property for a public use, without just compensation to the owner. WHO MAY EXERiOISB THE POWER. The power of eminent domain may be exercised by any in- dependent government as an incident of its sovereignty." Thus, a State may exercise this right within its own territorial limits. But the State may not condemn land for other than a state purpose. Thus, it was held in Michigan that the State, by virtue of its eminent domain, had no authority to condemn pri- vate lands, within its boundaries, for the purpose of turning the same over to the United States, for the erection of light- houses thereon.^* Eminent domain may also be exercised by the United States government, within the several States, so far as it is necessary to the enjoyment of the powers conferred upon it by the con- stitution.^' Thus, the federal government may condemn land for the purpose of erecting and maintaining forts, arsenals, navy yards, lighthouses, custom-houses and other public uses.^" In the absence of constitutional limitations, the power of the government to invoke the exercise of the right of eminent domain may be delegated by the government to individuals, or to private or municipal corporations.^^ Familiar instances of the delegation of this power are found in the authorization of railroads to condemn rights of way, or of a municipal corporation to take land for purpose of opening highways.^^ '•U. S. vs. Jones, 109 TJ. S., 513. "T^omljley vs. HTimphrey, 23 Mich., 471. "Ableman vs. Booth, 21 How. (TJ. S.), 523. "Kohl vs. V. S., 91 U. S., 367. Trombley vs. Humphrey, 23 Mich., 471. "Old Colony R. Co. vs. Framingham Water Co., 153 Mass., 561; 13 L. R. A., 332. "Olcott vs. Fond du Lac Co., 16 Wall., '678. TITLE BY ALIENATION. 477 The state of course cannot delegate any power which it does not possess. It cannot, therefore, delegate the right to take property for any other purpose than public use or benefit.''^ WHAT PROPERTY MAY BH TAKEN. EVERY SPECIES OE PROPERTY, REAL OR PERSONAL, MAY BE TAKEJT BY EMINENT DOMAIN. The State may condemn realty, i)ersonalty and all interests growing out of them, such as easements, franchises, and con- tract interests. In a few cases the statute delegating the power contains provisions exempting certain property from the power granted. It is competent for the legislature to authorize the taking of the title in fee of real property condemned. This is sometimes done; but ordinarily the donee of the power is authorized only to acquire an easement.^* Thus, it was held under a certain act authorizing a railroad to acquire a right of way, "and enjoy the same as long as it is used for the purposes of the road and no longer," that the com- pany acquired only an easement, and that the owner of the fee might use the land in any way not inconsistent with its use by the company.^^ If an easement only is acquired, on the discon- tinuance or abandonment of the use, the property and right of enjoyment reverts to the owner of the fee.''" THE PROPERTY TAKEN MTJST BE WITHIN THE TERRI- TORIAL LIMITS or THE GOVERNMENT EXERCISING THE RIGHT OF EMINENT DOMAIN. "Welton vs. Dickson, 38 Neb., 767; 22 L. iR. A., 496. "Illinois C. K. Ck). vs. Chicago, 141 111., 586; U L. R. A., 530. "East Tennessee R. R. Co. vs. Telford's Executors, 89 Tenn., 293; V) L. R. A, 855 "Pittsburgh R. Co. vs. Bruce, 102 Pa. St., 23. Kansas Central R. R. Co. vs. Allen, 22 Kan., 285. Gumey vs. Minneapolis Elevator Co., 63 Minn., 70; 30 L. R. A., 534. 478 TITLE BY ALIENATION. COMPENSATION. The constitutions of the United States and of most of the States provide that private property shall not be taken for pub- lic uses v?ithout just and adequate compensation. In many instances the payment of compensation is a condi- tion precedent to the vesting of the title, and the right to pos- session does not arise until full payment has been made.^' Under other statutes payment is not a condition precedent, but in such States compensation must be made within a rea- sonable time after entry. TAX TITLES. The power to tax is one which is inherent in every govern- ment. It is the duty ol every person to bear his just propor- tion of the public burden. This obligation to pay differs from that of an ordinary debt, In that it does not arise out of a contract. The taxes are assessed against the land and made a lien on it. On the failure of the owner to pay the tax, the land is sold, and, if all the proceedings have been regular, a good title is acquired by the purchaser after the time for redemption has expired. A TAX TITLE IS ONE ACQUIBED AT A SALE OF PEOPEBTT POK THE NON-PATMEHT OP TAXES. In order that the title acquired may be valid, the require- ments of the statutes must, as a rule, be complied with in every respect. Any material variance from the requirement of the statute renders the sale invalid. If all the requisites of the statute have been complied with and the time for redemption has expired, the purchaser in most "Martin vs. Tyler, 4 N. D., 278; 25 L. R. A., 838. Turnpike Road vs. Railway Co., 177 Pa., 585. Searle vs. Lead, 10 S. D., 312; 39 L. R. A., 345. •Capps vs. Leachman (Tex.), 39 S. W., 917. TITLE BY ALIENATION. 479 States acquires a title in fee simple to tlie property, free from all claims or liens on the property."' His title differs from one acquired at an execution or judicial sale, in that a purchaser at the latter acquires only the title of the person whose interest is sold; but in a tax sale there is no privity between the pur- chaser and a prior owner."" In a few States a different rule prevails, and a purchaser at a tax sale acquires only the title of the delinquent owner.'" At the common law the deed of the proper officer is not prima facie evidence that the statutes have been complied with, and is not evidence of itself sufficient to prove title. Ad- ditional evidence must be offered to show that all the proceed- ings have been regular.'^ In some States this rule has been modified to this extent that the recitals in a tax deed will be presumed to be correct.'" In other States the common law rale has been changed by statute so that a tax deed is prima facie evidence that all proceedings upon which it is based are regular." In these States the burden of proof is on the one contesting the title to show some non-compliance with some statutory re- quirement. SALES BY AiDMINISTBATORS, EXECUTORS OR GUARDIANS. The statutes of most states provide that when the personal property of the deceased is insufficient to pay the debts of the estate, the realty of which the deceased died seised, or some "Robbins vs. Barron, 32 Micb., 36. "Htissman vs. Durham, 165 U. S., 144. "Anderson vs. Post, Tenn., 38 S. W., 283. "Lattlmer vs. Lovett, 2 Doug. (Mich.), 204. "Livingston vs. Hudson, 85 Ga., 835. "Cucullu vs. Brakenridge, 49 La. Ann., 1445. Richard vs. Carrie, 145 Ind., 49. Peebles vs. Taylor, 118 N. C, 165. 480 TITLE BY ALIENATION. portion of it, may be sold and the proceeds applied to the sat- isfaction of his debts. These statutes usually provide that the administrator may petition the probate or surrogate court having jurisdiction over such real estate, to obtain a license to sell the property. The acts of the administrator in making the sale under such a license, must substantially conform to the requirements of the statute of the State in which the sale takes place. GUARDIAN SALES. There are similar provisions in most States authorizing, for certain purposes, the sale of the interest in realty of infants, married vromen, and of insane persons. In some States it has been held that a court of ChaJicery, under its general jurisdiction over the estates of infants, where it is clearly for the interest of the infant, might order the con- version of an infant's real estate into personal property.** In other States it has been held that the guardian could only convey his ward's real estate in those cases provided for by statute.'" "Hale vs. Hale, 146 111., 227; 20 L. R. A., 247. =»Wilson vs. Hughes, 39 L. R. A., 292. CHAPTER III. TITLE BY VOLUNTARY ALIENATION. riTLE BY DEED. In order to transfer the title to real property by deed, the following essentials must exist: 1. THEBE MTIST BE PASTIES CAPABLE OP ENTERIITQ INTO A VALID CONTRACT. The requisites as to the capacity of holding and conveying property is discussed elsewhere. 2. THERE MTTST BE AN INTEREST IN THE REAL PROP- ERTY WHICH IS THE SUBJECT MATTER OP THE CONTRACT. In Other words, there must be a grantor, a grantee and a thing granted. 3. THERE MUST BE A WRITING EXECUTED BY THE PARTY TO BE CHARGED, OR HIS DULY AUTHORIZED AGENT, AND ATTESTED, AND, IN SOME STATES, ACKNOWLEDGED IN THE MANNER REQUIRED BY THE LAW OP THE STATE IN WHICH THE PROPERTY IS SITUATED. The statute of frauds requires that no conveyance of an in- terest in real property, except a leasehold interest for less than a year, shall be made, except by an instrument in writing. The instrument of conveyance is usually called a making of a deed. By statute, in many States, witnesses are now necessary. In some States no witnesses are required if the deed is properly acknowledged.'^ In other States two wit- "Thls is the rule in California, CJolorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Mississippi, Missouri, Mon- tana, Nevada, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Virginia, Washington and West Virginia. 82 481 482 TITLE BY VOLUNTAEY ALIENATION. nesses are required in addition to the acknowledgment;'' but in some States only one witness is necessary.* In some States the requirements as to witnesses are not necessary to the validity of the deed as between the parties, but only for the purpose of registration. The essentials of a valid deed will be discussed hereafter. 4. THE WRITING MUST CONTAIN APT WORDS OP CON- VEYANCE. As expressed by Blackstone, "The matter written must be legally or orderly set forth; that is, there must be words suflB- cient to specify the agreement and bind the parties; which sufficiency must be left to the courts of law to determine."* 5. THE WRITING MUST BE DELIVERED. A deed takes effect from the date of its delivery. In the absence of evidence to the contrary, a deed will be presumed to have been delivered at the date it bears. In order to con- stitute a good delivery, it is essential that the deed should be placed beyond the control of the grantor. It is not essential that the delivery should be made to the grantee in person; a delivery to a third person for him is sufficient, when the grantor has not power to recall the deed.' It is, however, es- sential that the delivery should be with the assent of the grantor. If the deed is stolen, or comes into the hands of the grantee without the consent of the grantor, there is not a legal delivery. So, the delivery of a deed, after the death of the grantor, when not expressly authorized, does not constitute a 'This is the rule In Connecticut, Florida, Georgia, Michigan. Min- nesota, New Hampshire, Ohio, Oregon, South Carolina, Utah, Vermont and Wisconsin. •This is the rule in Alabama, Arkansas, Delaware, Idaho, Mary- land, Nebraska and Wyoming. *2 Blk., 299. •Cook vs. Patrick, 135 111., 499; 11 L. R. A., 593. TITLE BY VOLUNTAEY ALIENATION. 483 valid delivery.' So a delivery by a grantor to his own agent, intended for one who has no knowledge of the grant, is not a valid delivery to the latter. A delivery of a deed for record, though not known by the grantee, is, if followed by his assent, a good delivery. A DELIVERY IN ESCROW IS THE DELIVERY OF A DEED TO A THIRD PERSON, TO BE HELD BY HIM UNTIL THE PER- FORMANCE OF SOME CONDITION, OR THE HAPPENING OF SOME EVENT, AND THEN TO BE DELIVERED TO THE GRANTEE AND TO TAKE EFFECT AS A DEED. A delivery of a deed in escrow has no effect until the con- dition has been performed or the event has happened. To con- stitute an escrow, there must be an actual delivery to a third person,' the control over the deed must not be in either the grantor or the grantee," and there must be no power to with- draw the deed by the grantor, except on the non-performance or non-happening of the conditions of the escrow. On the per- formance of the conditions the grantee is entitled to receive the deed and may compel its delivery. In some States it has been held that on the performance of the conditions, a con- structive delivery takes place, and that no actual delivery is necessary.^" As a general rule, on the performance of the con- •Porter vs. Woodlioiise, S9 Conn.,' S6S; 13 Ij. R. A.. 64. Mrs. Julia Hlnman In her lifetime and several years prior to her death made out a deed of a house to Mrs. Porter. The deed was properly signed and executed, but was kept by Mrs. Hinman in a box with other papers. The grantee never knew of the deed until after the death of Mrs. Hinman. The Supreme Court held that no estate passed. "The delivery of a deed is as essential to the passing of the title to the land described in it, as Is the signing of It or the acknowl- edgment. It is the final act without which all other formalities are ineffectual. To constitute a delivery, the grantor must part witlh the legal possession of the deed and of all right to retain it. The present and future dominion over the deed must pass from the grantor." •Peck vs. Rees, 7 Utah, 467; 13 L.. R. A., 714. Lee VB. Fletcher, 46 Minn., 49, 12 L. R. A., 171. •Darling vs. Butler, 45 Fed., 332; 10 L. R. A., 469. "Prutsman vs. Baker, 30 Wis., 644. 484 TITLE BY VOLUNTARY ALIENATION. dition, the grantee's title will relate back to the time of the delivery in escrow. 6. IN HOST STATES, BY STATUTE, TO BE EPPECTUAIi AS AGAINST FUBCHASEBS OK ENCUMBBANCERS FOB VALUE WITHOUT NOTICE, A DEED HUST BE BECOBDED AS BE- QUIRED BY LAW. At the common law, the registration of a deed was not necessary or possible. In the "United States, while a deed is yalid as between the parties without registration, an unre- corded deed is void as to subsequent bona fide purchasers or encumbrancers without notice. In some States an unrecorded deed is also void as to subsequent creditors of the grantors without notice. Once a deed entitled to record is properly recorded, any one dealing with the property has constructive notice of its contents. An instrument not entitled to record, is not notice to subsequent purchaser or encumbrancer unless there is actual knowledge of the existence of the deed. The student ought to consult the statutes of his own State in this regard. DEEDS. In our law, the word deed, in its broad signification is de- fined as follows: A DEED IS AN INSTBUMENT IN WBITING, WHICH, HAV- ING BEEN SEALED AND DELIVEBED BY THE FABTY SIGN- ING AND DELIVEEING, CONFESS OR SECUBES SOME VAL- UABLE BIGHT IN BEAL FROPEBTY, TO, OB IN, THE PABTY FOB WHOSE BENEFIT IT IS DELIVEBED. Under this definition it wiU be noticed that many instru- ments must be classified as deeds which do not come within the definition of a deed, as generally understood in the popular speech of the present day. Thus, in the sense in which we have defined a deed, a contract under seal to sell land is a deed, although the question is constantly asked in the courts, "Have you a deed or only a contract?" And, so, a lease under seal is as truly a deed, within the above definition, as an instrument TITLE BY VOLTJNTAEY ALIENATION. 485 under seal which conveys a fee in land. But, with the progress of time, words lose their old meanings and acquire new ones. In one of the oldest editions of the English Bible, St. Paul is made to describe himself as, "I, Paul, a knave of Jesus Christ." This was a perfectly correct translation at the time that Wy- cliffe made the translation, but in the course of time the word "knave" acquired a different meaning, and when King James' translators made the translation, which now generally obtains, they changed the language to, "I, Paul, a servant of Jesus Christ." For the purpose of this volume, we define a deed as follows: A DEED IS A WBITTEIT INSTBXJMENT SIGITED AND DE- LIVERED, WHICH CONVEYS AN INTEREST IN REAL PROP- ERTY GREATER THAN A LEASEHOLD OR A CONTRACT IN- TEREST. At the conmion law no written instrument was a deed, or specialty, unless it was sealed. But by statute in many States unsealed instruments have the same force and effect as sealed instruments. The subject of seals under the common law and in the dif- ferent States is fully treated in that part of this book which deals with leases under seal, and as the law on this subject is the same with regard to deeds, it is uimecessary to recapitu- late it here. The following is a common form of a warranty deed in use in this country: FOEM OF DEED. Indenture. THIS INDENTURE, Made this seventh Date Parties. ^^.y of December, in the year of Our Lord one thousand nine hundred and two. BETWEEN A. B., party of the first part, and C. D., party of the second part. 486 Consideration. Receipt TITLE BY VOLUNTARY ALIENATION. WITNESSETH, That the said party of the first part, for and in consideration of the sum of one thousand doUars, to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged. Operative words of conveyances. Words of Limitation. Description of Property. Further words of Limitation. Has granted, bargained, sold, remised, released, aliened and confirmed, and by these presents does hereby grant, bar- gain, sell, remise, release, alien and con- firm unto the said party of the second part, and to his heirs and assigns, FOB- EVEE. All that certaiu piece or parcel of land, known as Lot No. Four (4) of Block Thirty-three (33) of the Gass Farm (so called) in the City of Detroit, County of Wayne and State of Michigan. TOGETHEE with all and singular the hereditaments and appurtenances there- unto belonging or in any wise appertain- ing; and the reversion and reversions, re- mainder, remainders, rents, issues and profits thereof; and all the estate, right, title, interest and demand whatsoever, of the said party of the first part, either in Law or Equity, of, in and to the above bargained premises, with the heredita- ments and appurtenances; TITLE BY VOLUNTAEY ALIBNATION. 487 Habendum Clause. TO HA\TE Amy TO HOLD, the said premises as above described, with the appurtenances unto the said party of the second part, and to his heirs and assigns, FOEEVEK. Covenant of Warranty. Covenant against Encumbrances. Covenant for Quiet Possession. Attestation Clause. And the said party of the first part, for himself and his heirs, executors and administrators, does covenant, grant, bargain and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents he is well seised of the premises above described, as of good, sure, perfect, absolute and in- defeasible estate of inheritance in the law in Fee Simple. And that the said Lands are free from all encumbrances whatever: And the above bargained premises in the quiet and peaceable possession of the said party of the second part, his heira and assigns, against all and every person or persons, lawfully claiming, or to claim, the whole or any part thereof, he and his heirs will forever WAEEANT AND DE- FEND. IN ^'^TiTNESS WHEREOF, The said party of the first part, has hereunto set his hand and seal the day and the year first above written. (L. S.) 488 TITLE BY VOLUNTARY ALIENATION. Signed, Sealed and Delivered in Pres- ence of STATE OF MICHIGA:??, COUNTY OF WAYlSfE, Acknowledgment. On this Seventh, day of December, in the year one thousand nine hundred and two, before me, a , in and for said County, personally appeared to me known to be the same person de- scribed in and who executed the within instrument, who acknowledged the same to be free act and deed. This form contains all the essentials of a valid deed. All of the covenants mentioned are, however, not essential, but are simply those found in the usual warranty deed. A quit-claim deed differs from the above form in that it contaius only words of conveyance without any covenants. At the common law deeds were divided into two classes, deeds poll, that is, deeds executed only by the grantor, and in- dentures, that is, deeds executed by both grantor and grantee. The word indenture is traced to the Latin word for teeth. If a person bites into a substance lilce wax his teeth make an irregular line, which cannot be duplicated by an impression made by anybody else's teeth. An indenture was a written in- strument executed in separate parts on the same piece of paper or parchment, each part being executed by the party who was bound by its covenants, and these parts were cut apart by a jagged line. Usually there was something written across the line to be cut. When the two parts were brought into court. TITLE BY VOLUNTARY ALIENATION. 489 if they fitted together on this jagged line, it was readily seen that they were the corresponding parts of the same instrument But this has long been a thing of the past. While many deeds, called indentures, contain coTenants to he performed by the grantee, yet they are not executed by the grantee. But it is held that the acceptance of the deed by the grantee is equiv- alent to an express agreement by him to fulfil those obligations imposed upon him by the deed. A familiar example is a deed of land subject to a mortgage, in which it is recited that the amount due on the mortgage is a part of the consideration for the deed, and that the grantee agrees to pay the mortgage. In such a case the grantee by accepting the deed binds himself not only to his grantor, but also to the mortgagee to pay the mortgage. And if, on a foreclosure sale, the property does not bring enough to pay the mortgage the grantee is held person- ally liable for the deficiency, although he never agreed to pay the mortgage except by accepting a deed which recited that he had promised to pay it. At the present day what little dis- tinction remains between deeds poll and indentures is this: Deeds poll are instruments which impose no obligations upon the grantee; indentures impose obligations upon both parties. DATE AND PARTIES. The subject of a date is treated in discussing written leases. All that is said there applies to deeds. This is also true with regard to the subject of the parties to a deed. The parties must be identified by the instriunent itself, but where it is plain from the instrument itself who is grantor and who is grantee, the courts will give it effect, although neither of the parties to the instrument is expressly designated as grantor or grantee.^'^ "Newton vs. McKay, 29 Mich., 1. 490 TITLE BY VOLUNTARY ALIENATION. A deed to a fictitious grantee conveys no title." CONSIDERATION. It was a doctrine of the common law that in a deed of bargain and sale, a consideration must be expressed, and the same was true as to a covenant to stand seised to the use of another. But a simple grant did not require any consideration and therefore the statement of a consideration was unneces- sary. But the rule as to the necessity of expressing a consid- eration is now practically obsolete. It will be noticed, also, that in the modern form of deed above given there are found in the operative words of conveyance, words from all the differ- ent forms of common law conveyances so that using such a form there is now no necessity to recite a consideration and its receipt. The recital of the amount of the consideration and of its receipt is prima facie evidence of its truth, but is not con- clusive either as to its amount or as to the fact that it has been paid. In the operative words of conveyance the word grant is equivalent to convey; the words "bargain and sell" import a contract to convey for a legal consideration; the word remise strictly construed imports that the grantor having received his title from the grantee now restores it to him; the word rdeaae imports that the grantee has already some interest in the prop- erty, and the grantor now conveys or releases to him his inter- est in the same property; the word alien imports the dissever- ance of the title from the grantor, and the word confinn is simply a word of confirmation or acknowledgment that the title to the property is now in the grantee. In other words its use might raise an estoppel if there were no covenants in the deed suflflcient for that purpose. "Weihl vs. Robertson, 97 Tenn., 458; 39 L. R. A., 423. TITLE BY VOLUNTARY ALIENATION. 491 WORDS OF LIMITATION. If a grant is made to A. B. simply it is only a grant for life, for there are no words to show that any other person was to have any benefit from that grant. But when the words are to A. B. and his heirs forever, this distinctly shows that the grantor intends to part with his whole estate and conveys a fee simple if the grantor be seised in fee simple. But now by statute in some States a simple grant to A. B. conveys all of the estate which the grantor has. DESCRIPTION OF THE PROPERTY. What has already been said with regard to the description of real property which is the subject of a written lease applies with equal force to the description of real property in deeds. But this is hardly sufficient for the purpose and therefore we state these additional rules. The following description will serve as an illustration: Beginning at the northwest corner of the northwest quar- ter of section 1, in township No. 9 north, range 4 east, in the County of , in the State of Michigan; thence 40 rods east along the northerly line of said section to a rock elm tree; thence south 4^ degrees east 60 rods to a stone monu- ment at the edge of Blackwater Lake ; thence south 85 degrees west 44 rods to a white oak tree in the westerly line of said section; thence northerly on said westerly line 65 rods to the place of beginning, containing 19 acres of land. Analyzing this description it will be observed: 1. It describes land which has been surveyed by the gov- ernment. 2. It refers to natural monuments. 492 TITLE BY VOLUNTARY ALIENATION. 3. It gives courses and distances. 4. It states the quantity of land conveyed. In such a case the following rules control: The starting point must be the northwest corner of the sec- tion as established, whether correctly or incorrectly, by the government survey. The first line must follow the northerly line of the section as established to the rock elm tree, whether it be more or less than forty (40) rods. The second line must run in the direction indicated until it strikes Blackwater Lake, whether the distance be more or less than sixty (60) rods, and if Blackwater Lake should simply impinge on the land attempted to be described, the easterly line of the tract must be run to it even if a variation from the course mentioned is necessary. The same principles apply in running the southerly line of the tract to the white oak tree in the westerly line of the sec- tion. And the particulars enumerated control the statement in the deed as to the number of acres intended to be conveyed or, in other words in identifying lands described in a deed. 1. MONTJMEITTS CONTKOL COTJESES AND DISTANCES. 2. COTXBSES AND DISTANCES CONTBOI. A STATEIIENT AS TO THE AMOUNT OF LAND INTENDED TO BE COITVEYED. It will not surprise the reader who has followed us thus far when we say the words, "Together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining; and the reversion and reversions, remainder, remainders, rents, issues and profits thereof; and all the estate, right, title, interest and demand whatsoever, of the said party of the first part, either in Law or Equity, of, in TITLE BY VOLUNTARY ALIENATION. 493 and to the above bargained premises, with the hereditaments and appurtenances;" are entirely superfluous. A conreyance of the land itself conveys everything that is included in these words. Formerly there were no printed blanks for deeds and they were engrossed by scriveners and conveyancers and paid for at so much a folio. Whether this is the reason, or, out of "abundant caution," that these words were introduced into all ancient deeds, may be a matter of conjecture. It is certainly true that for hundreds of years they have been in "innocuous desuetude." HABENDUM CLAUSE. The habendimi clause which begins "to have and to hold," is not now taken by the courts very seriously. They look to the operative words of conveyance to see what estate is in- tended to be conveyed, and if there is any discrepancy the granting clause prevails. At the same time it is always to be remembered that in construing deeds and all written instru- ments every part of the instrument is to be taken into con- sideration, and it is the intent of the law always to construe and give effect to the instrument according to the real under- standing and intent of the parties. This intent, however, is to be gathered from the terms of the instnmient itself, but this rule is subject to this qualification: that extraneous (aliunde) evidence will be admitted to show the nature and extent of the subject matter of the contract and the situation of the parties with respect to it and to each other at the time of the making of the contract, if the instrument is not clear upon its face. If it is, no evidence aliunde can be admitted in a court of law to control or vary its plain stipulations. If fraud or mistake is claimed resort must be had to a court of equity. 494 TITLE BY VOLUNTAEY ALIENATION. COVENANTS FOR WARRANTY, AGAINST ENCUMBRANCES, AND FOR QUIET POSSESSION. The nature of these covenants can be best explained by considering them together. The covenant for warranty binds the seller to give a good title, and the liability which it creates is in force until there is an actual disseisin by virtue of a superior title, and can be taken advantage of by any subsequent owner who gets his title through that deed. There are in this country various forms of what is conmionly known as a "Warranty Deed." Almost all deeds are made out on printed blanks, which vary somewhat in form. These forms contain not only what is strictly known as "the cove- nant for warranty," but also other covenants, the purpose of which is to give the purchaser a remedy against the seller in case the title turns out to be in any wise defective. Thus, the warranty deed often used contains, besides the covenant for warranty, the covenant for seisin, the covenant of good right to convey, the covenant for quiet enjoyment, the covenant against encumbrances, and, sometimes, the covenant for further assurance. These are known collectively as the covenants for title. A deed which contains only the covenant of warranty is not sufficient to assure the purchaser of a good and unen- cumbered title. In a general way, it may be said that the covenant for quiet enjoyment performs practically the same office. They are a guaranty against being turned out of pos- session in a suit brought by the holder of a better title. If at any time after the making of a deed containing a covenant of warranty, a suit is brought to recover the land from one who claims title through this deed, he is entitled to give notice of this suit to the person who executed the warranty deed, and call upon him to defend the title which he warranted. If he TITLE BY VOLUNTAEY ALIENATION. 495 faUs to do this successfully the judgment will be conclusive against him, that the title which he warranted was not good, and that the person against whom the judgment is rendered is entitled to recover damages for the breach of the warranty. The courts generally hold that the amount of damages which can be recovered are limited to the price paid for the land, interest from the time of the dispossession, and the costs of defending the suit. Under the covenant for warranty there can be no recovery for improvements put on subsequent to the purchase. It will be seen, therefore, that where, between the time of the purchase and the dispossession, the land has greatly risen in value, or valuable improvements have been made upon it that the covenant for warranty is not an adequate protection to one who buys relying upon the pecuniary responsibility of the vendor. A covenant for warranty is one which inures to the benefit of any subsequent purchaser who takes the title through that deed, or, as it is expressed by the courts: "It is a covenant which runs with the land." Thus, if Jones gives Smith a warranty deed, and Smith sells to Brown, whether by quit-claim or by warranty deed. Brown can rely on the warranty which Jones gave to Smith, the same as though it were given to himself. Another quality of the covenant for warranty is this : If a man gives a warranty deed, not having a good title at the time, and he afterwards, by inheritance or purchase, or in any other way, gets a good title, this immediately inures to the benefit of the person to whom he had before warranted the title, and makes that title good. The covenants for seisin and of good right to convey are also guarantees that the seller has a good title, and if it turns out that he has not, the purchaser may recover damages in a suit for a breach of these covenants as in a suit for damages for a breach of warranty. The chief difference 49G TITLE BY VOLUNTARY ALIENATION. between the covenant for seisin and the covenant for war- ranty is that the covenant for warranty runs with the land, and no suit can be brought on it until after an actual dispos- session, no matter how bad the title may be. A suit may be brought on the covenants for seisin and of good right to con- vey as soon as it is discovered that the title is bad. The pur- chaser does not have to wait until he is dispossessed. And it is generally held that these covenants do not run with the land. No one can take advantage of them except the person to whom the deed runs in which they are contained. The amount of damages which can be recovered is the same in both cases. The covenant for further assurance is not much used. The covenant against encumbrances is a guaranty that there is no mortgage or other lien of any kind upon the property, that it is not subject to a claim for dower, that it is not sub- ject to an existing lease, and generally that nobody has any rights in the property except the seller. Every suflScient warranty deed ought to contain a covenant for seisin and a covenant against encumbrances, as well as the covenant for warranty. A quit-claim deed merely conveys whatever in- terest the seller has. It does not warrant that he has any title, nor does it afford any guaranty against mortgages or other encmnbrances. A person incurs no liability by giving a quit-claim deed unless some fraudulent purpose is involved. The seUer who gives a warranty deed with a covenant against encumbrances is bound to pay all taxes which are a lien upon the property at the time the deed is delivered, even though the taxes are not yet payable. In some of the States taxes become a lien as soon as they are assessed; in others not until the taxes are payable. The covenant for further assurance was used for the pur- pose of casting upon the grantor the burden of removing all TITLE BY VOLUNTARY ALIENATION. 497 clouds from the title, so as to give the grantee a perfect record title. The law as to the attestation clause, form of execution, wit- nesses, etc., is identical with the law as to leases under seal, and need not be repeated here. CHAPTER IV. TITLE BY DEVISE. A DEVISE IS A DISPOSITION OF BEAL PKOPERTY BY A LAST WILL AND TESTAMENT, TO TAKE EFFECT ON THE DEATH OF THE DEVISOR. A WILL IS THE LEGAL DECLARATION OF A TESTATOR'S INTENTION WITH REFERENCE TO THE DISPOSITION OF HIS PROPERTY, WHICH HE WILLS TO BE PERFORMED AFTER HIS DEATH. When a will is made by a man, lie is called a testator; when made by a woman she is called a testatrix. The terms will and testament are now practically synonymous. The term devise, as indicated by the definition, applies to a transfer by will of real property, and the person receiving such property is kaown as a devisee. A transfer of personal property by will is usually known as a legacy or bequest, and the person receiving it is known as a legatee. HISTORY. Wills are of ancient origin. Once the right of property be- came recognized, it became necessary to make some regulation as to its disposition on the death of the owner. It has already been pointed out that in the absence of such a regulation, the property would pass to the first occupant, and thereby strife would be engendered and the natural objects of the deceased's bounty would in all probability be left in want. At an early age it was, therefore, provided by law that an owner might by an ante-mortem statement provide for the disposition of his property after his death, and that on the failure of such dispo- TITLE BY DEVISE. 49© sition that the property should pass to his next of kin or heirs, as provided by law. This right to make a testamentary dispo- sition of one's property was recognized by the laws of Greece and Eome and was recognized and practiced in England, prior to the Norman Conquest. The right to make a devise of real property was inconsistent with the feudal system and was not permitted. Subsequently, this prohibition was circumvented by a devise to uses, and which uses were enforced by the courts of chancery. Afterwards when by the Statute of Uses, the use was transformed into a legal estate, the feudal prohibition was complete, except in those districts, where by custom, the testa- mentary disposition of a portion of a testator's property was permitted. By the Statute of Wills, 32, Henry VIII, a testator was permitted to dispose of all his property held in free and common socage and two-thirds of that held in knight service. By subsequent statutes all restrictions on testamentary dispo- sition were removed. AS A GENERAL RULE, IN THE UNITED STATES, ALL PROPERTY, WHETHER REAL OR PERSONAL, CORPOREAL 01, INCORPOREAL, VESTED OR CONTINGENT, LEGAL OR EQUI- TABLE, MAY BE DISPOSED OE BY A VALID WILL. IN MANY STATES AJFTEB ACQUIRED PROPERTY MAY ALSO BE DIS- POSED OF BY A VALID WILL.' To this rule there are some exceptions. In many States the statutes provide that a widow may elect to take under the will, or take the share of her husband's estate which she would have had if he had died intestate. In the States having such statutes a devisor cannot cut off this right of election, and on the wife's election to take under the statute, property to the ex- tent of her right will pass, not according to the terms of the will, but as provided by statute. Neither can the husband affect the wife's claim of dower and homestead. So a testator can- •Jacobs Appeal, 140 Pa., 268; 11 L. R. A., 76T. 500 TITLE BY DEVISE. not devise his property in such a way as to cut off the expense of his administration, the allowance for support for the widow and children during the settlement of the estate, and the pay- ment of his just debts. Since the law permits the owner of property to dispose oif it according to his wish or intention, we will now briefly consider how such intention may be legally declared and evidenced, and what persons are capable of making such legal declaration. It will be readily seen that if such wish or intention were expressed only by word of mouth, it would rest solely in memory and would be capable of distortion and nullification by persons of poor memory or wicked heart. In order that the wish or intent of the testator may be ac- curately determined, the law requires that it shall be formally declared in writing, and provides that certain safeguards shall attend the execution of such formal declaration. IT IS ONIiY WHEN THE UTTENTION 01" THE TESTATOE IS EXPBESSED HI A FORMAL DECIiABATION, AND IS EXE- CUTED IN" THE MANNER REQUIRED BY LAW, THAT THE LAW REGARDS IT AS THE INTENTION OF THE DECEASED. IN THE ABSENCE OF AN INTENT FORMALLY EXPRESS- ED AND EXECUTED IN THE MANNER REQUIRED BY LAW, THE LAW CONCLUSIVELY PRESUMES THAT THE DECEASED INTENDED THAT HIS OR HER PROPERTY SHOULD DESCEND ACCORDING TO THE STATUTES OF DESCENT OR DISTRIBU- TION. The essentials as to the expression of the testator's wish in a formal declaration and the requirements as to the execution of the same wUl be found in the following propositions: 1. IN ORDER TO BE THE VALID WILL OF THE TESTA- TOR, THE FORMAL DECLARATION MUST BE THE TESTA- TOR'S WISH. It is impossible to discuss at any length all the essentials of a valid will or the numerous decisions grovrtng out of the TITLE BY DEVISE. 501 Statutory regulations. The most that we can do is to briefly call attention to a few of the most important principles and refer the student to the treatises and digests on this subject. The only purpose of the law in providing for the formal execution of a will, is in order that the intention of the de- ceased may be ascertained with certainty. It follows that if the declaration does not contain the testator's wish, it is of no legal force or value. 2. THE TESTATOR MUST BE ONE WHOM THE LAW DEEMS CAPABLE or HAVING SOME DEEINITE AND INDEPENDENT WISH OR DETERMINATION, IN REGARD TO THE DISPOSI- TION OP HIS PROPERTY. As regards the capacity of a testator, we may enumerate the following propositions: IN A LEGAL SENSE THE FORMAL DECLARATION OP THE TESTATOR'S INTENT IS NOT REGARDED AS HIS WILL UN- LESS THE TESTATOR, OR TESTATRIX, WAS/ OP SOUND MIND AND NOT UNDER A LEGAL DISABILITY. It is not necessary that the testator should be capable of entering into a valid contract. The testator must have suflEi- cient mental capacity to understand the nature of his act, the extent of his property, his relation to others who might or ought to be subjects of his bounty, and must understand the scope and provisions of his will and have a sufficient memory to collect in his mind, without prompting, the elements of the business to be transacted, and to hold them in his mind a suf- ficient length of time to perceive at least their obvious relation to each other.^ In other words, a testator must be capable of exercising his judgment, his .reasoning faculties and a continu- ity of thought. The fact that a testator had a capacity to contract is not al- ways conclusive that he had a capacity to make a will. There 'McGinnis vs. Kempsey, 27 Mich., 367; Kerr vs. Lunsford, 31 W. Va., 659; 2 L. R. A., 668. 502 TITLE BY DEVISE. are a number of instances in which one having the capacity to contract has yet by reason of some insane aversion or suspicion as to the natural objects of his bounty, been held to be of un- sound mind in that one particular. INFANTS. It is necessary that the law should fix some age at which it is conclusively presumed that a testator is capable of exercis- ing an independent wish or intention as to the disposition of his property. The statutes of the different States vary in this respect. In most of the States the age of twenty-one years is required, as to wills of both real and personal property.^ In some States, while twenty-one years is required as to devises of realty, a valid will of personalty may be made at eighteen.* In other States, a will of both real and personal property may be made at eighteen ;° while in others, the age is twenty-one years for males and eighteen for females." MARRIED WOMEN. At common law, a married woman was incapable of making a valid will of real property; she might, however, make a valid will of her personalty with her husband's consent. In most of the States these common law disabilities are now removed by statute, and a married woman can make a valid will the same as a feme sole. For the same reason that the law requires •This is the rule in Arizona, Delaware, Florida, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nehraska, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, South Carolina, Texas, West Virginia, Wyom- ing. •This is the rule in Alabama, Arkansas, Missouri, Oregon, Rhode Island and Virginia. This is the rule in California, Connecticut, Idaho, Montana, Ne- vada, North Dakota, South Dakota and Utah. "This is the rule in Colorado, Illinois, Maryland, Missouri and Washington. TITLE BY DEVISE. 503 certain essential requisites as to the person, namely, that the formal declaration shall express the real wish or determina- tion of a competent testator, it requires that certain formali- ties shall attend the execution of such wish or determination. 3. AS A GENEBAL BTJLE, EVEBT WILL, TO PASS AN ES- TATE, BEAL OB FEBSONAL, MUST BE IIT WBITINO AND SIGNED OB SEALED BY THE TESTATOB, OB BY SOME ONE IN HIS PBESENCE, AND AT HIS EXPBESS DIEECTION, AND MUST BE ATTESTED AND SUBSCEIBED, IN HIS PBESENCE, BY TWO OB MOBE WITNESSES.' The requirements as to the formalities of a yvill are statu- tory, and, while the statutes vary somewhat, the above essen tials are required by the statutes of nearly all the States. A nun-cupative will is an oral will declared by a testator before witnesses, and afterwards reduced to writing. Under the early English law, one in extremis might make a valid nun- cupative will of personal property. This power was so abused that the Statute of Frauds provided that nun-cupative wills could only be made of property of less value than thirty pounds, and by sailors and soldiers. Under the statutes in most States, a nuncupative will can only be made by soldiers in active service or mariners on ship- board. In some States a nun-cupative will of personal property, not exceeding a limited value, is valid if properly declared. As a rule, the statutes do not prescribe the material on which a will shall be written, or that the writing shall be done in pen and ink. In the absence of a statute to the contrary, any substance capable of receiving and retaining a legible and reasonably permanent impression, and not too susceptible to erasure or change, would be regarded as a proper material on 'As a general rule, the subscribing witnesses must actually see the testator and each other sign, and they must sign in his presence, and at his request. And he must declare to them that the instrument is his will but they need not be made acquainted with its contents. 504 TITLE BY DEVISE. which to write a will.'' The will need not be in any particular form or langTiage. Any writing properly executed, manifesting the intention of the testator as to the disposition of his prop- erty after his death is sufflcient Thus, a paper reading "I wish my sister, Louisa Cook, of 104 York Boad, Lambeth, to have my Charing Cross bank-book for her own use" was admitted to probate.* IF THE INSTRtrmENT PASSES A PRESENT INTEREST XN THE PROPERTY, IT IS A DEED OR A CONTRACT; BUT, IE THE INSTRUMENT DOES NOT PASS AN INTEREST OR RIGHT UN- TIL THE DEATH OE THE MAKER, IT IS A WILL. Whether or not the instrument takes effect immediately, or at the death of the maker, depends upon the intent of the maker." This intent is to be gathered from the language of the instrimient, and is not necessarily controlled by the form of the writing. Thus, an instrument in the form of an assignment and reading as follows: "Know all men by these presents, that I, Joseph Bobinson, for the consideration of one dollar, to me in hand paid, as well as my affection, do hereby set over to my daughter, Eliza Jane Brewster, all my estate, both real and personal, to have the same after my death," was admitted to probate as a will. The testator may sign by making his own signature; or by his mark, or by using a stamp, or by holding a pen, guided by another, with the intention to adopt such mark, stamp or sig- nature, as his own. We may not go into detail as to the re- quirements of the various statutes as to the attestation and 'A will written on a slate has been refused probate on the gronnd that the writing was too susceptible to erasure, and the fraudulent sub- stltutlon of other provisions. Myers vs. Vanderbelt, 84 Pa. St., 510. Compare Ellis vs. Secor 31 Mich., 185. ■Cook vs. Cook, L. R. I. F. & D.. 241. Knox's Appeal, 131 Pa., 220; 6 L. R. A., 353. •Re Cawley's Appeal, 136 Pa., 628; 10 L. R. A, 93. Crocker vs. Smith, 94 Ala., 295; 16 L. R. A, 576. TITIiE BY DEVISE. 505 execution of the will. As to these, the student must consult the statute of his own State. It sometimes happens that notwithstanding the testator was of the required age and sound mind, and notwithstanding that the will was in writing, signed by the testator and properly witnessed, yet the written declaration is not the will or determ- ination of the testator; for the reason that there has been sub- stituted for such determination a declaration of intention con- trary to the real wish or determination of the testator. Such declaration is not the real will of the testator, however much it may purport to be, and no matter how sound the mind of the testator may have been, or how clearly the statutory formalities may have been followed. As has been stated, what the law seeks to enforce is the real and duly authenticated wish of the testator himself. Therefore, if it can be shown that the instru- ment propounded embodies not his wish, but that of somebody else, it cannot be enforced. IF THE SIGNATUBE OF THE TESTATOR BE OBTAINED BY FEAtTD, OB IF HE WAS UNDUIiY INFLUENCED IN MAKING A WILL WHICH DOES NOT REPRESENT HIS OWN PERSONAL WISHES, SUCH WILL IS INVALID. An instance of obtaining a signature by fraud is where one, after reading a will to a testator, surreptitiously sub- stituted another for him to sign. It is not every influence over a testator that is undue. Any influence which does not go beyond a reasonable argument or appeal to the affections, or suggestion or advice to the testator, regarding the claims of different persons upon him, is proper.^' The true test of undue influence is that it overpowers the will, without convincing the mind. It must be an influence "Advice, persuasion or argument cannot vitiate a will made freely from conviction, though such will might not have been made but for such advice or persuasion. 506 TITLE BY DEVISE. which OTercame the testator's free agency and prevented him from doing as he pleased.^^ An influence obtained by flattery, importunity, superiority of will, mind or character, or by what- soever art that htmian thought, ingenuity or cunning may em- ploy, which would give dominion over the will of the testator to such an extent as to destroy free agency, or constrain him to do, against his will, what he is unable to refuse, is such an in- fluence as the law condemns as undue.^^ From the foregoing discussion we may summarize the law relating to the essentials of a valid will as follows: THE TESTATOB MUST BE OF SOUND MIND AND OF BEQUI- SITE AGE; HE MUST HAVE A WISH OR INTENTION AS TO THE DISPOSITION OF HIS PEOPERTY AFTER HIS DEATH, AND SUCH WISH MUST BE EMBODIED IN WRITING AND SIGNED BY THE TESTATOR AND PROPERLY ATTESTED. FREE FROM FRAUD OR UNDUE INFLUENCE." If these essentials exist, the law says that the instrument is the testator's will. For the purpose of ascertaining whether all these elements exist, the law requires that a legal proceed- ing, known as the probate of the will, shall be had in a court having jurisdiction. The statutes requiring the probate of the will usually provide that no will shall be effectual to pass real or personal estate^ unless it shall be duly proved in a probate or surrogate court. The probate of a will under such a statute ascertains noth- ing but the validity of the will as such, and is not the foundar tion of the title in itself. "The act of the testator gave it life; his death consummated the title derivatively from himself; and "Maynard vs. Vinton, 59 Mich., 139. "Schofield vs. Walker, 58 Mich., 96. Elkinton vs. Brick, 44 N. J. Eq., 154; 1 L. R. A., 161, "If all these essentials exist the courts will uphold the will how- ever contrary it may be to the ideas of other people of justice or humanity. Middleditch vs. Williams, 45 N. J. Eq., 726; 4 L. R. A., 738. TITLE BY DEVISE. 507 the probate only ascertains that the instrument in fact is what it purports on its face to be."" Once the will is probated, it relates back to the time of de- ceased's death. A will, since it does not create a present in- terest in any one, may be revoked by the testator at any time before death. The law, in an effort to protect the wish of the testator, has thrown safeguards around the revocation of wills. AS A GEIIERAL ETTLE, THE STATUTES PROVIDE THAT NO WILL SHALL BE REVOKED, UNLESS BY BtTRNIlTG, TEARING, CANCELLING OR OBLITERATING THE SAME, WITH THE IN- TENTION OF REVOKING IT, BY THE TESTATOR OR BY SOME ONE IN HIS PRESENCE AND BY HIS DIRECTION; OR BY SOME OTHER CODICIL OR WILL IN WRITING, SIGNED AND ATTESTED BY TESTATOR IN THE MANNER PROVIDED POR THE EXECUTION OF WILLS. A WILL MAY ALSO BE RE- VOKED BY CHANGE IN THE CONDITION OR CIRCUMSTANCES OP THE TESTATOR, OF SUCH A CHARACTER THAT THE LAW WILL IMPLY A REVOCATION. 1. At the common law, the will of a woman was revoked by her subsequent marriage. In some States this rule has been abrogated by statute. In some States it has been held that the married woman's acts impliedly abrogate this rule.^° 2. The marriage of a man would not at common law re- voke his will; but if issue were born of the marriage, for which no provision was made in the will, an implied revocation would take place. The birth of a posthumous child has the same effect in re- voking a will, as the birth of a child during testator's life time, unless otherwise provided by statute. "Ex parte Fuller, 2 Story, U. S., 327. "Noyes vs. Southworth, 55 Mieh., 173. Roane vs. HoUlngshead. 76 Md., 369; 17 L. R. A., 592. Catholic Benefit Ass'n vs. Fimane, 50 Mich., 82. 508 TITLE BY DEVISE. 3. Any change in a man's circumstances which necessarily raised an inference of revocation would at conmion law amount to a revocation. Thus, if the testator after expressly devising certain property, conveyed it to another, his act would amount to a revocation. At the common law this revocation was not affected by a subsequent re-conveyance to the testator. So, at the common law, if the devisee or legatee died before the tes- tator, as a general rule the legacy or devise would lapse and pass to the testator's residuary estate. This common law rule has been abrogated by statute in many States, and under many statutes, if the devisee or legatee has issue which survive the testator's death, the devise or legacy does not lapse, but passes to such issue. In some States the statute applies only when the legatee or devisee is a child of the testator;^* while, in other States, the statute applies if the legatee or devisee is a child or other blood relative of the testator." There is only one other matter which requires any discus- sion and that relates to the construction of wills. THE GBEAT AIM IN CONSTETJING WTLLS IS TO ASCER- TAIU THE INTEITTION OE THE TESTATOR." The question always is, what meaning did the testator in fact express in the provision under consideration? In ascer- taining this meaning, courts take more liberty in construing wills, than writings that have followed formal and precise language, such as deeds and contracts. The mere gram- matical or ordinary sense of words will not be adhered to, if it would be repugnant to or inconsistent with the intention of the "This is the rule in Alabama, Arkansas, Colorado, Illinois, Indiana, Mississippi, New York, New Jersey, North Carolina, Pennsylvania and Texas. "This is the rule in California, Kansas, Michigan, Maine, Massa- chusetts, Minnesota, Missouri, Nebraska, Nevada, Oregon, Ohio, Ver- mont and Wisconsin. "Whitcomb vs. Rodman, 156 111., 116; 28 L. R. A, 149. TITLE BY DEVISE. 509 testator as gathered from the entire instrument.^" The mean- ing of words used in a will is usually determined by the law of the testator's domicile. IN KEGARD TO REAL PROPERTY, THE MODE OF EXECtl- TION, CAPACITY OP THE TESTATOR AND VALIDITY OE A WILL, MUST BE CHJVERNED BY THE LAW WHERE THE LAND IS SITUATED. THE VALIDITY OP A WILL OP PERSONAL PROPERTY DE- PENDS UPON THE LAW OP THE PLACE OP TESTATOR'S DOMICILE AT THE TIME OP HIS DEATH. In a number of States, statutes have been passed providing that a will of real property, valid according to the law of the place of testator's domicile^ shall be given effect in the place where the property is situated. "Boston Safe Deposit & T. Co. vs. OotBn, 152 Mass., 95; 8 L. R. A., 740. CHAPTER V. LAND CONTRACTS. A CONTRACT FOB THE PURCHASE OE KEAIi ESTATE IS NOT VALID UNLESS IT IS IN WHITING. THE PAYMENT OE MONEY DOWN WILL NOT BIND THE BARGAIN. Having discussed the essential principles of the law of con- veyancing, we deem it proper to sum up some of the rules which are important in the active business practice of the law at this time. A verbal contract for the purchase and sale of real estate is not binding on either partj.^ The payment of money down does not help the matter, if the agreement is verbal; nor does it make the contract any stronger if it is in writing. A verba) contract for the sale of personal property may be made binding by the payment of money on account, but a verbal contract for the sale of real estate cannot. And where money has been paid on a verbal contract for real estate, the person who paid it has a right to get it back by asking for it. It cannot be for- feited, either in whole or in part, although it was expressly agreed that it should be forfeited if the purchaser should not complete his purchase. The verbal contract being void, creates no obligation whatever, nor does anything done by either party in reliance upon it create any obligation. For instance, if the seller were to go to the expense of procurii^ an abstracl of title to the property in conformity with the verbal agreement, he cannot recover the cost from the pur- 'Lowe vs. Turpie, 147 Ind., 652; 37 L. R. A., 233. 510 LAND CONTRACTS. 511 chaser if the latter backs out, nor retain it out of any money which may have been paid on account. Nor can the purchaser recover any damages for any expense he may have gone to in having the title examined, or any other expense he may have incurred in reliance upon the bargain. No obligation of any nature whatever can grow out of the void contract. THE WRITTEN CONTRACT DOES NOT BIND A PARTY TO IT, UNLESS HE OR HIS LAWFTIL AGENT HAS SIGNED IT. At the common law, and in some States, a written con- tract for the sale of real estate can be enforced against a party who has signed it, whether the other party has signed it or not. If both parties have signed the contract, both are bound. But if only one has signed, whether seller or purchaser, he is bound and the other is not. This is the general rule throughout the United States, but, in some of the States, the law now requires the contract to be signed by the seller.^ This is a matter regulated by statute, and the statutes frequently change. In order, therefore, to be upon the safe side, a contract ought always to be signed by both parties. Many of the States now require the consideration to be expressed in the writing, and when the contract is signed by an agent the agent's authority to sign should be in writ- ing. These things should always be insisted upon, unless the party is sure that the statutes both of the State where the con- tract is made, and of the State where the property is situated, dispense with any one of these requisites. AXrCTION SALES OE LAND, WHETHER BY A PRIVATE PERSON, AN ADMINISTRATOR, A SHERIEE SELLING UNDER AN EXECUTION, OR UNDER THE POWER OE SALE IN A MORTGAGE, MUST BE REDUCED TO WRITING AND SIGNED LIKE OTHER CONTRACTS. 'In some States a contract to sell real estate, if not signed, by both parties, is void for want of mutuality. Warden vs. Williams, 62 Mich., 50. 512 LAND CONTRACTS. The only contracts for the sale of real estate which are exempt from the requirement that they must be in writing and signed by the parties in order to give them validity, are what are known in the law as judicial sales. Such are sales which are made by the express authority of a judgment or de- cree of a court, directing the sale of the particular piece of property sold, in which the officer making the sale is acting as an officer of the court, and not as an agent of the party and in which the sale must be confirmed by the court, and a deed in pursuance of the sale is directed to be made by the court. A purchaser at such a sale may be compelled by the court to take the property and pay the stipulated price without having signed a contract. Sales under a decree in C5hancery for par- tition or the foreclosure of a mortgage, are familiar examples of judicial sales. But sales by a sheriff, under an execution, and sales by an administrator, are not regarded as judicial sales. In such cases, and in sales by advertisement, under the power of sale in a mortgage, and at all ordinary auction sales, all that has been said already as to what is necessary to make the sale valid, applies. There must be a written memorandum, and the deposit of money will not bind the sale. Therefore, in sales of real estate by auction, either party who is desirous that any sale which may be made shall be binding, should take the precaution to have a memorandum of sale prepared, ready to be filled out, and signed as soon as the property is knocked down. THERE IS NO PRESCRIBED FORM OF CONTRACT. IT MAY EVEN CONSIST IN LETTERS AND TELEGRAMS. No special form of words is required to make a valid con- tract. The statutes simply require that the contract, "or a memorandum thereof" should be in writing and signed. In order, however, to make a contract which will be valid every- LAND OONTBACTS. 513 where, the writing should contain the names of the parties, such a description of the property as will clearly identify it, the price, and terms of sale. Valid contracts for the sale of real estate are sometimes made by offers and acceptances, by means of letters and telegrams. A contract in writing is not necessarily contained in a single piece of paper. Any number may be read together, and if from the whole a complete con- tract can be made out, it is a good contract. Where one writ- ing refers to another, the one referred to may always be read and considered as though it were embodied in the first, where it is necessary to malie its meaning clear. But in making a contract by letter or telegram, care must be taken that the acceptance of an offer which is relied upon to make a com- plete contract, is unqualified. Any modification or qualifica- tion in the intended acceptance, however slight, of the terms proposed, will destroy its effect, and it will not be considered an acceptance, but in effect as a proposal for a different con- tract. rp THE SELLEB OF REAL ESTATE REFUSES TO CARRY OTTT HIS CONTRACT, LEGALLY MADE, THE BUYER MAY EITHER SUE FOR DAMAGES, OR TAKE PROCEEDINGS TO COM- PEL HIM TO CARRY OUT HIS CONTRACT. Ordinarily, the only remedy which the law affords to a per- son who is injured by the breach of a contract, is a suit for damages. In case of a suit for damages either by buyer or seller, the amount which could be recovered, would ordinarily be the difference between the actual value of the land and the price which was agreed to be paid. But the law affords to the purchaser of real estate another remedy. He may, if he chooses, take proceedings to compel what is called "specific performance" of the contract. That is, he may apply to a court in a proper proceeding to require the seller to deed the land 514 LAND CONTRACTS. in accordance with the terms of the contract. If after a de- cree to that effect, the seller should still refuse to execute the deed, the court can make its own decree stand, and have all the effect of a deed, and he recorded as such. THERE ABE SOME CASES IN WHICH THE COUBTS WILI, COMPEL THE OWNER OF REAL ESTATE TO CARRY OUT A •^TEACT, ALTHOUGH IT IS NOT IN WRITING AND SIGNED AS REQUIRED BY LAW. ■Where a mere verbal contract for the sale of real estate has been partly carried into effect by the parties, the courts will sometimes decree a specific performance of it at the suit of the purchaser. In sueh a case, it is said that the application is addressed to the "discretion" of the court, and no absolute rules can be laid down as to when it will be granted, and when it will be refused. In a general way, it may be said that where the seller has put the purchaser into possession of the land which is the subject matter of the contract, and the purchaser has paid the whole or a part of the stipulated price, and has made improvements, or otherwise materially changed his situ- ation on the faith of the contract, the law will compel specific performance of the contract. Less than this will not suffice. The mere payment of the agreed price is never considered, standing alone, as a sufficient ground for decreeing specific performance of a verbal contract for the sale of land. A PURCHASER OP REAL ESTATE SHOULD EXAMINE THE TITLE BEPOEE MAKING A CONTBACT, OB SEE THAT THE CONTBACT CONTAINS PBOPEB STIPULATIONS AS TO THE TITLE. In a contract for the sale of real estate by a person selling in his own right where nothing is said as to the title, the law implies a condition that the seller shall give a "marketable" title. In official sales, as by a sheriff, administrator, trustee. LAND CONTRACTS. 515 or other person selling in an official capacity, there is no im- plied warranty as to the title. In no case, however, unless it is expressly stipulated otherwise, is the seller obliged to fur- nish an abstract of title, or to furnish other evidence that he has a good title. Nor is the purchaser entitled to delay for the purpose of examining it. He is presumed to have satisfied himself as to the title before entering into the contract, and if he wishes to withdraw from the treaty upon the ground that the seller's title is not good, he takes upon himself the burden of proving it. Generally a seller is obliged to give a warranty deed, unless it is otherwise stipulated. But upon this point the decisions are not uniform. Therefore, it is customary for careful real estate buyers to see that the contract provides that the seller shall furnish an abstract of title, shall give a war- ranty deed, that the title shall be clear and unencumbered, that a reasonable time shall be allowed for investigation, and in some cases that it shall be approved by a person who is named. It is frequently difficult to determine the validity of a given title, and courts and lawyers are not always agreed with regard to it. BEFORE SIGNING THE CONTRACT THE PURCHASER SHOTJLD SEE THE LAND AND INQUIRE OF ANY PERSON IN POSSESSION AS TO THE NATURE OF HIS INTEREST. There are many facts which it is important that a pur- chaser of real estate should know, as to which an abstract of title, and the advice of counsel based upon it, will afford him no information. It was a doctrine of the ancient common law, from which our system of law is derived, that whatever is affixed to the soil or grows upon it, becomes, or is a part of the land itself. Therefore, ordinarily a contract for the sale of real estate is a contract also for the sale of the buildings upon it, and the things which are growing upon it at the time. But 516 LAND CONTEAOTS. the old doctrine has gradually given way to the requirements of modern life, and now there are many things which may, or may not, be part of the land, according to circumstances. Or- dinarily, whatever is affixed or planted by the owner is a part of the land, whether buildings, machinery, or fixtures of any kind, or crops put in by him, and a contract by the owner to sell the land would include everything as a part of the land. But even fixtures put in by an owner, may be owned by, or subject to a lien, in favor of some other person. If the land is in possession of a tenant, the buildings, machinery, fixtures and crops may be the tenant's personal property. A tenant may also have a lease which has a considerable time to run. His possession is notice of his rights. Therefore, it is al- ways advisable to inspect the property, and learn by in- quiry exactly what belongs to it. Actual and visible posses^ sion of real estate is regarded as notice to the world that the person in possession has rights in the premises, and it is the duty of a person dealing with the title to inquire of the person in possession what his rights are.^ THE LAW WHili NOT PROTECT ONE WHO BUYS EEAL ES- TATE IN VIOLATION OF WHAT HE KNOWS, OK HAS NOTICE, ARE THE JUST RIGHTS OF A THIRD PERSON. The record title of real estate may be perfectly clear, and the responses to inquiries put to a person in possession may be satisfactory, and yet a would-be purchaser may know, or have reason to believe, that a third person has equitable rights in the property which . is offered for sale. For instance, a third person may have an unrecorded contract for the purchase of the land, or there may be an unrecorded mortgage, or there may be other equitable rights, of which there is no legal notice, such as is given by the record or by visible possession. Now, *Van Baalen vs. Cotney, 113 Mich., 202. LAND CONTRACTS. 517 if a person knowing of any such equitable right, or having any notice of it, buys the land, he takes subject to the right, and it can be enforced against the land in his hands. The law requires of everybody care, that in pursuing his own ends, he does not violate the rights of others. A PUaCHASEB WILL NOT TTSUALLT LOSE HIS RIGHTS nNSER A LAI7D CONTKACT BECAUSE HE DOES NOT HAE:E HIS PAYMENTS AT THE STIFXJLATED TIME. An application to a court to compel the performance of a land contract, is, as has been stated, addressed to the "discre- tion" of the court. That is, the court, in determining the question, will not necessarily be governed by harsh or unbend- ing rules, but will consider what, under the circumstances of the particular case, seems to be just and fair between the parties, and give judgment accordingly. This is what is meant by the "discretion" which is exercised by the court in administering the law of specific performance. If a person buys real estate upon contract, all that the seller has a right to expect is so much money at a certain time in accordance with the terms of the contract. If a purchaser makes pay- ments on the price, goes into possession and makes valuable improvements on the land, it would then be a manifest injus- tice if the seller could turn him out and keep the money which has been paid, and also the land greatly enhanced in value, on account of a delay or default in making further pay- ments. This would be a sort of legal confiscation, or, as it is called in the law, a forfeiture which Equity is said to abhor. On the other hand, it is plain that the seller is not to be kept indefinitely both out of his land and out of his money. In such case, if the purchaser is in defaiilt, the seller cannot therefore declare the contract forfeited, and refuse to give a deed, if the purchaser shall, at any time before the contract is 518 LAND CONTEACTS. finally put an end to, tender payment of all that is due, with interest. And if tke seUer refuses to give his deed under such circumstances, the purchaser may apply to the court to com- pel him. The seller is not without his remedy in case the purchaser makes default In the first place, if the purchaser has been put into possession, the seller may take proceedings at law to recover the possession. And he may apply to the court to compel tjie purchaser to pay for the land within the terms fixed by the contract, and in default of such payment, that the contract be declared at an end, and if necessary to do justice, that the land be sold. Out of the proceeds he will receive his money, interest, and costs, and the balance will be paid over to the purchaser. In this way justice is done to both parties. Ordinarily, the equitable rights of a purchaser who has made payments and improvements, or either, cannot be cut off without some proceeding of this nature. He may be turned out of possession for his default. But he will not lose his right to come into court, it may be years afterwards, and tender what he owes, with interest and costs, and demand a deed. And if the seller has been in possession in the mean- time, he may, in the settlement, be required to account upon equitable principles for the rents and profits which he has received from the land. The case which has been stated is one of the most common of those in which the principle is applied that "in Equity time is not of the essence of the con- tract." It is impossible to lay down rules which wiU enable the reader to decide with certainty precisely what cases fall within the rule, since every case must depend for its deter- mination on its own circumstances. Enough has been stated to show the general principles which govern a court of Equity in cases of this nature. It may be said, however, that the courts will never lend their assistance to one who wilfully, LAND OONTEAOTS. 519 or for wrong purposes, makes default. For instance, if a pur- chaser makes default intending to abandon his contract, he could not afterwards, when the land had greatly risen in value, tender performance and claim a deed. Most land contracts which are formally drawn, contain express stipulations that time shall be considered of the essence of the contract, and that on a default in payment at the stipulated time, the con- tract may be declared forfeited, and all payments previously made shall be forfeited. Such stipulations are of little effect. They will not be enforced by the courts where manifest injus- tice would be the result. But there are many cases in which justice . requires that time shall be considered of the essence of the contract, and where a default or a delay will be consid- ered by the courts a sufficient ground for the seller to refuse to be bound. For instance, if a contract has been made with regard to real estate of a speculative character, that is, real estate which is likely within a short time to rise or fall considerably in value, and little or nothing has been paid down, the would-be purchaser will be held to a strict com- pliance with the terms of his contract, or he will lose the benefit of it. He cannot, under such circumstances, whether wilfully or because he is tmable to pay, delay and thus de prive the seller of the advantage which the state of the market affords him.^ Nor is the seller in this way to be remitted to a law suit instead of getting the cash which was the induce- ment of the sale. There is another class of cases in which time is considered of the essence of the contract. Where it is clear from the language used by the parties and from all the circumstances of the case, that no equitable or legal right was intended to be conveyed until a large payment had been made, the courts will construe the contract in that way. This occurs •Hawley vs. JeUy, 25 Mich., 94, 520 LAND CONTRACTS. most frequently where options have been given, expiring at a certain time. In such cases, the courts will usually hold the purchaser to a strict compliance with the terms of his con- tract. They will not require the owner of valuable real estate to be fettered in disposing of it for a trifling consideration. In such cases, the courts will usually hold the purchaser to a strict compliance with the terms of his contract. The prin- ciples by which the courts are governed, in excusing a pur^ chaser's delay, are often extended to a delinquent seller. He may require time to perfect his title before he can convey in accordance with his contract. In some cases, he may require specific performance where he is not able to make title to the whole of the property which is the subject-matter of the con- tract. If the portion which he cannot convey is trifling or insignificant compared with the whole, and is not in itself an essential inducement to the contract, the courts will require the purchaser to take what he can convey with a proper abate- ment of the agreed price. IT IS NOT NECESSARY TO USE A FOBMAL LEGAL DE- SCRIPTION OE LAND IN OBDEB TO MAKE A VALID CON- TBACT. Usually, in deeds and in formal contracts, land is described as a definite part of land of which there is public record. Large tracts are described as a part of certain sections in a certain township; city and village property, as lots on a cer- tain plat which is recorded. But a perfectly valid contract may be made by using any description which identifies the property. As, for instance, "the premises now occupied by S. Jones, on the north side of Fort street, in the City of Lansing," or "my homestead in Boston," or "the property which I bought of Senator Hearst in California." The legal doctrine is that a thing is sufSciently certain and definite which can be made LAND CONTRACTS. 521 certain by a reference to extrinsic circumstances. The law will inquire into the facts so as to give effect, if possible, to the real intent and meaning of the parties. If there are two pieces of property, either of which will answer the description, usually it is permissible to proTe which was intended. But there is one exception. If language is used which shows on its tace that it could be applied equally well to different pieces of property, it is insufficient, and no evidence wQl be received to make it good. For instance, a contract calling for "a brick house in Brooklyn" could never be made good. A CONTBACT TO SELL DOES NOT GIVE A RIGHT OE POS- SESSION, UNLESS IT IS SO STIPULATES IN THE CONTBACT. The right to the possession and enjoyment of real estate is in the person who holds the- legal title. He does not part with this right by simply agreeing to sell. The purchaser has no right to possession before he gets his deed, unless it is ex- pressly agreed in the contract. If there is a provision in the contract giving the purchaser the right of possession be- fore he gets his deed, he must strictly comply with the terms of the contract, in order to retain his right to the possession, although, as has been explained, he may not forfeit his right to a deed by a default in his payments. HOW THE BECOBD TITLE OF REAL ESTATE IS EXAM- INED. With few exceptions, all titles to land in this country begin in a grant from the British Crown or in a patent from the United States. All of the States have provided for the record- ing of writings affecting the title to real estate. It is to these public records that recourse is had when it is necessary to examine a title. They afford what is called "constructive" notice of the state of the title. That is, everybody has a right to, and is presumed to examine these records. And he is 522 LAND CONTRACTS. treated in law just as though he had examined them, and knew what they contained. This, however, is true only of writings which the law authorizes to be recorded. If instruments are recorded whose record is not authorized by law, nobody is obliged to take notice of their contents, and their record is not constructive notice. The difference between actual and con- structive notice may be illustrated in this way: If A gives B a deed of land, it is not entitled to be recorded in most of the States unless it is witnessed and acknowledged. Neverthe- less, as between A. and B it is a good deed, and passes the title. If this instrument is actually recorded, its record is of no effect. If, after selling to B, A offers to sell the land to C, and C buys in good faith, having no actual knowledge or notice of this deed, whether it is recorded or not, his title will be superior to B's. If has actual knowledge or notice of the deed, B's title is superior, whether or not his deed is recorded, because, as we have seen, ''the law will not protect one who buys real estate in violation of what he knows, or has notice, are the just rights of a third person." But if B's deed is prop- erly witnessed and acknowledged, then its record is construct- ive notice to C, whether he has any actual knowledge of it or not. Indexes of the records are provided, in which the names of the parties are entered, and by means of which the chain of conveyances can be traced. If John Smith now owns the property, search is made for the deed by which the property is conveyed to him. In this deed will be found the name of the person from whom he purchased. A further search will reveal the person from whom that one purchased, and so on back through the chain until the government patent is reached. Each of these conveyances must be examined to see that it is perfect. Supposing that there is a plain succession of deeds, and that the examination is so far satisfactory, a new branch LAND CONTRACTS. 523 of inquiry must then be entered upon. The records must be searched to see whether any of these owners mortgaged the land, or whether any other valid lien attached to it while it was his property. In some of the States, all judgments be- come a lien on the real property as soon as they are entered. In other States it is necessary to sue out an execution and make a specific levy, which is recorded. Other liens are those resulting from attachments, mechanics' liens, recorded land contracts, recorded leases, rights of way, etc. The statutes also provide for recording notice of a suit which has been begun to enforce the specific performance of a contract for the sale of land, or to foreclose a mortgage or mechanic's lien. It is called notice of lis pendens, two Latin words, signifying pending law suit. If mortgages, attachments, execution levies, judgments, mechanics' liens, are found, then search must be made to see that the land has been properly and legally freed from these encumbrances, or that they are outlawed. Search must also be made to see that there is no existing lien for unpaid taxes. If any of the owners got title through a mort- gage foreclosure or an execution sale, the examiner must sat- isfy himself that the proceedings to sell were regular and valid. If any of the owners got title through a will or by in- heritance, the examiner must satisfy himself of the validity of the probate of the will, and in case of inheritance who were the legal heirs. In this latter case, he must also see that the lien to which the real estate of a deceased person is subject for his debts has been properly discharged. It will thus be seen that in many cases the examination of a title to land requires very extensive legal knowledge, and, as has been stated, even courts and judges are not always agreed with regard to its validity. 524 LAND CONTRACTS. An abstract of title is simply an index or memorandum showing what instrmnents have been recorded and where they are to be found. It is in itself no guaranty of a good title, as it is said some buyers ignorantly suppose. On the contrary, it frequently shows the weakness of the title to which it refers. THE PTTROHASER OF LAND WHICH LIES ALONG A STREET, BOAS OE WATER-COURSE GETS TITLE TO THE LAND TO THE CENTER OP THE STREET, ROAD OR WATER- COURSE, UNLESS IT DISTINCTLY APPEARS FROM THE DEED THAT THE SELLER INTENDED OTHERWISE. The private ownership of land extends to the center of the highway by which it is bounded. The public has certain rights in streets and highways, but it does not ordinarily own the soil. The title to this is in the adjacent proprietor. Neither the public nor an individual has any more right to dig and carry away gravel, to cut sod, to gather fruit, or to pasture stock along the road than it has inside of a man's fence. Tor doing these things a man has the same private right of redress that he would have if they were done inside of his enclosure. Pri- vate ownership also extends to land covered by water, except in the case of the sea, the great lakes and navigable rivers. Therefore the courts in this country generally, but not universally, hold that those who own land along the bank of a river, own the land under the water to the center of the main channel, or, as it is usually expressed, "to the thread of the stream."! r^Q owner, therefore, exclusively has the right of fishing, the right to cut ice, and to make such other private uses of the property as do not interfere with the public right of navigation. The land under small inland lakes is also owned in the same way by the adjacent proprietors. In con- tracts for, or deeds of, land lying along a highway or a water 'Lorman vb. Benson, 8 Mich., 18; Oliver vs. Olmstead, 112 Mich., 483. LAND CONTRACTS. 525 course, it matters little what fonn of description is used. The presumption of the law is in all cases that the seller intends to convey as far as he owns, unless it clearly appears from the contract or deed that the seller intended to reserve to him- self the land between the line of the lot and the center of the road, or between the bank and the middle of the stream. THE DEED CONTROLS ALL PEEVIOtIS AGBEEMENTS AND STrPtlLATIONS. Any condition or stipulation which the parties have agreed to in a contract for the sale of real estate, in order to be effect- ual, must be inserted in the deed itself. A verbal reservation of the right to take away crops or other things belonging to the land, will not avail against a deed which makes no mention of it. So of an agreement to build only in a certain way, or to use the land only for a specified purpose, or any other special contract tending to qualify or limit the rights which the pur- chaser gets under an absolute deed. LP A TRACT OP LAND SUBJECT TO A MORTGAGE IS SOLD OEF IN PARCELS, THE PARCELS FIRST SOLD ARE THE LAST TO BE SOLD ON A PORECLOSTTRE OP THE MORTGAGE. It frequently occurs that a large tract of land subject to a mortgage, is sold off in parcels. If afterwards the mortgage is foreclosed, only so much as is necessary to satisfy the amount due the mortgage can be sold. In such a case, if any of the tract has been retained by the mortgagor, that must first be sold. After this, the parcel that was last sold by him, after that the next last parcel that was sold, and so in the inverse order of alienation, until enough has been realized to satisfy the amount due. In buying land subject to a mortgage, if the deed recites that the purchaser assumes and agrees to pay the mortgage, he becomes personally liable to do so, and, in case 526 LAND CONTRACTS. of foreclosure, he may be held for any deficiency if the property does not bring enough to pay the mortgage. Although the pur- chaser does not sign the deed or any writing to pay the mort- gage, he is held to have contracted the obligation by accepting the deed which recites it. THE PTTKCHASER OP LAND SUBJECT TO A LEASE SUC- CEEDS TO ALL THE KIGHTS OF THE LESSOB AGAINST THE TENANT. , A lease is not put an end to by the sale of the property, unless it is stipulated in the lease that it shall be. In such a case the lease immediately terminates, and no notice to quit is required before taking proceedings to obtain possession. If no reservation in the sale is made, the purchaser is entitled to all the rent which falls due after he gets his deed, although a part of the term for which rent is payable has already expired. If the rent is payable monthly, the whole of the next month's rent is payable to the new owner. The rent is not to be divided, like the interest on a mortgage, according to the day on which the transfer occurs. As it is expressed in the books, "rent is not apportionable in respect to time." AN AGENT TO SELL REAL ESTATE CANNOT EXECUTE A DEED UNLESS HE HAS A POWER OE ATTORNEY UNDER SEAL. We have seen that generally an agent has no authority to make a written contract for the sale of real estate unless he has written authority. Real estate can only be conveyed by a deed, that is, by an instrument under seal, except in those States where the use of seals, except by corporations, is made unneces- sary by statute. Authority to execute a sealed conveyance can only be conferred by an instrument under seal. The courts are not agreed as to whether a general power of attorney to convey real estate will authorize an agent to bind his principal by LAND CONTRACTS. 527 executing a warranty deed. Without express dcisions by the courts, both of the State where the property is situated and where the deed is executed, it is not safe to take a warranty deed from one acting under a power of attorney, unless the power of attorney expressly authorizes the execution of the kind of deed which is to be given. There is also a conflict of decision as to whether a deed executed with the name of the purchaser left blank is a good deed, when the name of the purchaser is filled in by an agent. Such a deed ought not to be accepted except under the advice of a skilled conveyancer. A purchaser of real estate from one acting under a power of attorney should always see that the power of attorney is prop- erly recorded. HtrSBAND AMD WIFE SHOULD BOTH SIGN THE SAME COITTBACT OB SEED. Grenerally, in the United States, the wife's real estate can only be conveyed by the joint deed of husband and wife. In some of the States she can now convey her real estate without the husband's joining in the deed. It is also generally true that a wife can only bar her dower by joining in her husband's deed. Land owned by a husband and wife jointly can only be conveyed by their joint act. This is also true with regard to homesteads. In the case of joint property, the separate deed of either husband or wife is absolutely void. Consequently, a purchaser would acquire no title whatever by getting first a deed from one and then from the other. This is also generally the law in all of the cases enumerated. This is a matter largely regulated by statute. But in dealing with husband and wife, the purchaser should always have both join in the same deed, unless there is express authority for a differ- ent course in the State where the business is transacted and in the State where the property is situated. 528 LAND CONTRACTS. CONTRACT WITH A CORPORATION. One of the distinguishing characteristics of a corporation is the possession of a corporate seal, which may be considered, practically, as the signature of the corporation. In buying real estate from a corporation the most careful conveyancers require the following: First, that a proper resolution be adopted by the board of directors, trustees, or other goyerning body, authorizing the conveyance. Then, that a duly certified copy of the resolution be attached to the deed and be recorded with It. The corporate name and seal are to be attached by the proper officers. The ordinary form of execution is as follows: In testimony whereof. The DaJiota Land Company has caused its corporate seal to be hereto affixed, and these pres- ents to be executed by its president and secretary, this 30th day of November, A. D. 1889. THE DAKOTA LAND COMPANT, THOMAS JONES, Secretary. (Corporate) BY JOHN SMITH, President, and (Seal.) The form of acknowledgment is as follows: 'Tersonally appeared John Smith and Thomas Jones, known to me to be respectively president and secretary of the Dakota Land Com- pany, and severally acknowledged the foregoing instrument to be the free act and deed of the Dakota Land Company, and that they executed the same for the uses and purposes therein mentioned. CHAPTER VI. OAPAOITX TO HOIiD OR CONVEY TITL/E TO REAL PROPERTY. WHO MAT BE GRANTEE OF AN INTEREST IN ROEAL PROP- B3RTY? In order that one may hold or acquire title to real property, it is not essential that he should possess the power to contract It follows that a disability in a grantee, which prevents the making of a legal contract, does not prevent the vesting of a valid title to realty. Married women, infants, and persons non compos mentis may, therefore, take as grantees. The only requirement as to a grantee seems to be that in the case of a grant in praesenti, the grantee must be in esse. A grant which attempts to vest a present interest in one not yet born, is void. A grant to one not in existence in the way of a remainder, and which is supported by a particular estate vested in one who is living, is valid. While the title vests in one under disability on the making of the grant, yet such conveyance may be disaffirmed by such grantee after the removal of the disability. Thus, in the case of a grant to an infant, the latter may on coming of age, re- fuse to affirm the conveyance, or accept the property.^ As a general rule, the infant will be held to have affirmed the conveyance, if, after coming of age, he continues in the pos- session of the property, or in the exercise of the rights of own- ership over it. CORPORATIONS. A corporation which has a capacity to hold real property may also be a grantee. Whether or not a corporation has this •McCarty vs. Woodstock Iron Co., 92 Ala., 463; 12 L. R. A., 136. 35 529 530 CAPACITY TO HOLD OR CONVEY TITLE TO REAL PBOPEETY. capacity, depends upon the powers or capacities which, were given it, either expressly or by implication in its charter. As a general rule, any corporation may take and hold realty, if it is not inconsistent with the purposes for which it was created.^ And a corporation may take a title in fee, notwith- standing the fact that its franchise is limited to a certain number of years. In many States the statutes provide that a corporation may not hold over a certain amount of real property. ALIENS. At the common law, an alien while he could not convey an interest in realty, might take by grant, or devise,^ and his title could be asserted against everyone except the State; but he could not take by descent since he had no inheritable blood. In most States, by statute. Aliens may now hold and convey real property, in the same way as a native citizen.* WHO MAY CONVEY REAL PROP!ERTY? ANY PERSON CAPABLE OF HOLDING REAL PROPERTY, AND NOT UNDER A LEGAL DISABILITY MAY CONVEY IT. To constitute a valid conveyance the grantor must have an interest in real property, and he must be legally competent to convey it. 'In Thompson vs. Waters, 25 Mich., 214-227, the Court says: "Among the powers or capacities incident to a corporation at com- mon law, without any special mention in their charter, was that of taking, holding and conveying lands; and these incidents still rem^n, even in this country. * * * * The act of incorporation, in efCect, gives to the corporation substantially the powers and facilities of a natural person, except as they are in some way restrained by the act of incorporation, or some other law of the State creating it" "An alien could not at common law take by descent or operation of law. Crane vs. Reeder, 21 Mich., 24. 'In some States the disability has not been entirely removed. In a few States, only those aliens who have declared their intention to be- come citizens are accorded the same rights as native citizens. CAPACITY TO HOLD OR CONVKY TITLE TO EEAL PEOPERTT. 531 Whether or not a grantor is legally competent to make a deed, depends on his capacity to enter into a valid contract, (a) INFANTS. An infant not being capable of entering into a valid con- tract, cannot by grant vest in his grantee an absolute and in- defeasible title. While this is so, yet an infant's conveyance for a considera- tion is not absolutely void, but is merely voidable; and he may on reaching his majority aflBrm or disaffirm it. The purpose of the law in permitting infants to affirm or disaffirm a contract made during infancy, is that the infant, by reason of his youth and inexperience, is liable to be imposed upon and overreached. The law, therefore, permits him, after he has arrived at a period at which he is deemed to be able to judge for himself, to determine whether his previous acts have been beneficial or prejudicial." We may formulate the following propositions: AN INFANT'S DEED IS VALID UNTIL DISAEEIBMED. In some States it has been held that an infant's deed, with- out consideration, or which on its face is prejudicial to his in- terests, is void and not voidable.* In most States the rule is that the infant must disaffirm all conveyances, whether there is a consideration or nof AN INFANT'S DEED WILL BE DISAFFIRMED BY ANY POSITIVE ACT, ON HIS AKEIVING AT HIS mAJOKITY, WHICH CLEARLY INDICATES AN INTENTION TO CLAIM TITLE AGAINST THE CONVEYANCE MADE DURING INFANCY. This intention may be manifested in many different ways; by the giving and recording a deed of the same property to an- ■Goodnow vs. Empire Lumber Co., 31 Mtan., 468. •Swafford vs. Ferguson, 3 Lea., 292. 'Askey vs. WUliams, 74 Tex., 294; 5 L. R. A., 176. 532 CAPACITY TO HOLD OE CONVEY TITLE TO REAL PEOPEETY. other person; by a suit to cancel the deed;' by taking posses- sion and improving the property conveyed; by jayment of taxes; by a written notice of disaffirmance.* AN INFANT'S DEED WILI. BE AFFIBMED AFTEB HE AB- BIVES AT HIS MAJORITY BY ANT POSITIVE ACT OB ACTS WHICH INDICATE AN INTENT TO RATIFY IT. The foUovdng acts have been held to amount to an affirm- ance: a deed affirming the deed made during infancy; the re- tention and use of land taken in exchange;^" the taking of a lease of a portion of the property conveyed.^^ THE INFANT'S DEED MAY ALSO BE RATIFIED AFTEB HE ATTAINS HIS MAJORITY BY CONDUCT, WHICH, WHILE NOT AMOUNTING TO POSITIVE ACTS OF AFFIRMANCE, IS SUCH AS TO EQUITABLY ESTOP HIM FROM DISAFFIRMING HIS DEED. Thus, where the infant, after attaining his majority, stands by and pennits improvements to be made on the property; or permits a sale of it to be made in his presence without assert- ing any claim, he will not be permitted to disaffirm his deed. IF THE INFANT, AFTER ATTAINING HIS MAJORITY, BE- MAINS SILENT AND DOES NOT PERFORM ANY ACT INDI- CATING AN INTENT TO AFFIBM THE DEED, AND THE CIR- CUMSTANCES ABE NOT SUCH AS TO CBBATE AN EQUITABLE ESTOPPEL, HIS BIGHT TO DISAFFIBM THE DEED WILL CON- TINUE UNTIL THE TIME LIMITED BY THE STATUTE OF LIMITATIONS TO COMMENCE A SUIT TO BESCIND HAS ELAPSED." In some States this rule does not prevail and an infant is only allowed a reasonable time after majority to disaffirm his contract; and in such States, after the expiration of such rea- •Engleljert vs. Prltchett, 40 Neb., 195; 26 L. R. A., 177. Tunlson vs. Ohamblln, 88 111., 378. McCarty vs. Woodstock Iron Co., 92 Ala., 463; i2 L. R. A., 138. "BlUs vs. Alford, 64 Miss., 8. "Irvine vs. Irvine, 9 WaU. U. S., 619. "Front vs. Wiley, 28 Mich., 163. CAPACITY TO HOLD OE CONVEY TITLE TO REAL PEOPEETY, 533 sonable time, the infant's deed becomes absolute, notwith- standing the fact that the period fixed by the Statute of Limita- tions has not expired.*' In the States adopting this rule, the courts are of the opinion that the infant is adequately protected by allowing a reasonable time, and that any further extension of time in which to disaflSrm his deed would create "an engine of op- pression and wrong to others."'* THE INFANT, ON THE DISAFPIBMANCB OF HIS CON- TKACT OB, CONVEYANCE, IS REQUIRED TO RETURN SO MUCH OF THE CONSIDERATION RECEIVED BY HIM AS RE- MAINS IN HIS POSSESSION AT THE TIME HE ELECTS TO DIS- AFFIRM, BUT IS NOT REQUIRED TO RETURN AN EQUIVA- LENT FOR SUCH PART THEREOF AS MAY HAVE BEEN DIS- POSED OF DURING HIS MINORITY.(a) In a few States, however, it has been held that an infant in order to rescind his deed, must either return the actual consid- eration received or account for its value.(b) (b) OVIAEIRIEID WOMiBN. At the common law, a married woman was absolutely in- capacitated from making a valid deed. Her deed was void and not voidable, and was incapable of affirmance by any act. The disability of the common law has been largely removed by statute. These statutes are enabling acts, and must be strictly complied with; otherwise the com- mon law rule will prevail. In a number of States, by statute a married woman may convey her real property in the same way as a feme sole. * In many States the statutes provide that the husband must join with the wife in a deed of her property. "Bngelbert vs. Pritchett, 40 Neb., 19.5; 26 L. R. A., ITJ. Askey vs. Williams, 74 Tex., 294; 5 L. R. A., 176. '•Wallace vs. Lewis, 4 Harr. (Del.), 75. (ft) Bngelbert vs. Pritchett, 40 Neb., 195. (b) Locke vs. Smith, 41 N. H., 346. 534 CAPACITY TO HOLD OE CONVEY TITLE TO EEAL PEOPBETY. The student ought to consult the statutes of his own State in this regard. (e) PERSONS NON COMPOS MENTIS. The deed of an insane person is governed by the same riile as contracts by insane persons. THE DEED OF AN IITSANE PERSON IS VOIDABLE AND NOT VOID. To this statement there are some exceptions. 1. In many States, the deed of an insane person who has been found to be insane in a judicial proceeding, or an insane person who is under guardianship, is void and not voidable.^" 3. When real estate is purchased from an insane person in good faith, before a judicial finding of lunacy, for a fair and reasonable consideration, without knowledge of the insanity, the deed will not be set aside, unless the parties can be placed in statu quo.^' 3. In some States, the deed of an insane person is void and not voidable.^' THE DEED OF ANT PERSON WHO IS NOT INSANE, BUT WHO, AT THE TIME OF ITS EXECUTION, FROM PERMANENT OR TEMPORARY CAUSES, IS INCAPABLE OF UNDERSTAND- ING THE NATURE OF HIS ACT AND ITS CONSEQUENCES, IS VOIDABLE AND MAY BE SET ASIDE BY A PROPER LEGAL PROCEEDING. If a person has sufficient mental capacity to understand the nature of the deed and its consequences, the fact that there are mental delusions, weaknesses or infirmities, will not affect the validity of the deed. It is only when these mental delus- "Rennells vs. Gerner, 80 Mo., 474. "Grlbben vs. Maxwell, 34 Kans., 8. Odom vs. Rlddlck, 104 N. C, 515; 7 L. R. A., 118. •TOogera vs. Blackwell, 49 Mich., 192. Parley vs. Parker, 6 Oregon, 105. CAPACITY TO HOLD OR CONVEY TITLE TO REAL PROPERTY. 535 ions and infirmities operate in the act of making the deed, in such a way as to prevent an understanding and intelligent assent, that they render the deed voidable. Thus, if a monomaniac, or one having a mental weakness, makes a deed, and notwithstanding his delusion or mental weakness, he is still capable of understanding his act and ex- ercising an intelligent judgment as to whether or not he will make it, his deed will be valid.^* So, in the case of an intoxi- cated grantor, if at the time of making the deed such intoxi- cation affected his mental faculties to the extent of depriving him of an understanding of the nature and effect of his act, the deed may be set aside on proof of such fact. The con- trary of this proposition is true. The law on this subject may be summarized as follows: WEAKNESS OF TJUDEESTANDING, MENTAL DELTISIONS AND INFIRMITIES AND INTOXICATION DO NOT IN THEM- SELVES BENDEB A CONTEACT VOIDABLE, IE THE CAPACITY BEMAINS TO TTNDERSTAND AND SEE THINGS IN THEIB TEUE BELATIONS AND TO FOEM COERECT CONCLTTSIONS."* Thus, it was held that a belief in spiritual manifestations and in having had communication with deceased persons is not necessarily evidence of such a disordered mental condition as to make one incompetent to make a conveyance of real estate.*' While the legal principles on this subject are well settled, yet it is frequently difficult to tell within which principle any particular case ought to come. "The doubtful and uncertain point at which the disposing mind disappears and where incapacity begins, can only be ascertained by an examination of the particular circumstances "Dennett vs. Dennett, 44 N. H., 531. "Dennett vs. Dennett, 44 N. H., 531. ""Lewis vs. Arbuckle, 85 Iowa. 335; 16 L. R. A., 677. 536 CAPACITY TO HOLD OR CONVEY TITLE TO REAL PKOPEETY. of each case, to be duly weighed and considered by the court or jury; and, in determining the question, the common sense and good judgment of the tribunal must be mainly relied on." RATIFICATION. The maker of a voidable deed, by reason of insanity, mental weakness or intoxication, may, on recovering his reason, ratify his deed in the same way as in case of infancy. COBFORATTONS. A corporation capable of holding real property may transfer it to any third person by the act of its duly authorized officers in the way prescribed by law. ALIENS. At the common law an alien, since he did not have inherit- able blood, could not acquire the title to real property by de- scent or operation of law. At common law an alien could, however, take and hold real property by grant or devise subject to the right of the State to confiscate it. The process by which the State took an alien's property was known as an inquest of office. An alien, there- fore, could not convey property conveyed to him by grant, so as to vest an absolute title in his grantee, but he might trans- fer such right as he had to the property subject to the right of the State to escheat it. INDEX ABANDONMENT— Of iomestead 122 Destruction of easements by 395 Of title 'by adyerse possession 443 ABEYANCE— Of freehold not allo"vyed 308 Absolute estates 238 AOCEPTANOE— Of dedication of land by the public 415 ACCOUNTING— By mortgagee 268 Between co-tenants 358 ACCRETION— Title to, in whom 12, 464-467 Islands 466 ACKNOWLEDGMENT— Of deeds 488 ACTIVE TRUSTS— See Trusts. ACTIVE USES— See Uses. ACT OP GOD— Waste ensuing from, Is excusable 131 May excuse performance of condition 241 ADAPTATION FOR USE— See Fixtures. ADMINISTRATOR— Sales of real property by 479 ADOPTION— Defined and considered 4S7' B37 538 INDEX. ADULTERY— Of wife, effect of, in barring dower 92 ADVANCEMENTS— Wliat are 440 EssentJaJ elements of 440 Intention of donor controls 441 May be made in real or i)ersonal estate 441 ADVERSE POSSESSION— Nature of title acquired by 441 Statute of Limitations 441 Favored by law 442 Duration of adverse possession 443 Possession musit be continuous 444 Possession must be actual 445 Meaning of possession 445 Constmcttve possession 446 Color of title 447 Possession must be hostile 449 Possession must be open 450 Possession notorious 450 Against "wliom title may be obtained 453 As against infants 453 Possession must be exclusive 453 Must be an intent to assert title 454 Effect of adverse possession 456 Proof of adverse possession 45C AFFINITY- Defined 428 AFTER-ACQUIRED PROPERTY— May be mortgaged 273 AFTER-ACQUIRED TITLE— Grantor 'by warranty deed may nort set up 458 AGENT— Execution of deed by 1C2 and 528 Authority to execute deed, how conferred 162 Leases by 162-164 AGREEMENT TO MORTGAGE— Treated as a mortgage 257 INDEX. 539 ALIENATION— History of 44 Of homestead 123 Condition against, Is void 48 By husband and wife defeats dower 87 Involuntary 468-480 See title by execution, Judicial sales, eminent domain and infant and guardian sales. ALIENS— Capacity to take and hold land 530 Cannot take by descent 438, 530 Alien woman not dowable at common law 11 Capacity of, to convey realty 536 ALLODIAXr-t Land in United States 46 ALLUVION— Title by 465 ALTERNATE REMAINDERS 326 ANCESTOR— Defined 427 ANCESTRAL LANDS AND COLLATERAL HEIRS 433 ANNEXATION— As test of, see Fixtures. ANNUAL CROPS— Not real property 17-19 Sales of 17 Liable to execution as personal property 17 ANNULMENT OP MARRIAGE— Defeating dower 68 APPENDANT POWERS— See Powers. APPENDANT EASBMECNT— See Eaaements. APPOINTEES— Of power defined, see Powers. 540 INDEX. APPORTIONMENT— Of rent ^ 199-200 APPURTENANCES— Defined and considered 192 What incidents pass as, In grant 192 APPURTENANT EASEMENTS— See Element*. ARRANGEMENT— Of the orderly parte of a deea, see Deeds. ASSIGNMENT— Of lease 179-182 Of dower, see Dower. Of mortgagor's interest 273 Rights of assignee 274 Of mortgage debt 277 Equitable assignment of mortgage 277 Assignment of lease ISO ATTESTATION— Of deeds, see Deeds. Of wills, see Devise. ATTORNEY— Power of, to execute deed 162, 526 AT WILL— See "Tenancies at Will." AUCTION AND AUCTIOXKER— Auction, sales by 611 AUTRE VIE— Estate per, what arc, see Life Estates. AVULSION— Defined, nature and operation 465 BASTARDS— Cannot inherit at common law 436 Statutory provisdons relative to 437 May take by devise 437 INDEX, 541 BENBFICIAI, POWER— See Powers. BLOOD— See "Half Blood," BOUNDARIES— When courses and distances control 492 Description in deeds 491 Estoppel to deny location of 463 Of land on highway 523 BREACH— Of covenant of warranty, action for, see Warranty. BREACH OF CONDITIONS— i Termination of estates on condition, see Estates on Gondition. BUILDINGS— Repairs of 134 OAESARBAN OPERATION (53 CANCELLATION— See Deeds, Devise CANONS OF DESCENT, see Descent. CAPACITY- Personal, to hold and' convey realty 529-536 CESTUI QUE TRUST— See Trusts. CHARITABLE TRUSTS— Defined 374 CHATTEL FIXTURES— See Fixtures. CHATTELS REAL— What are 136 CHILDREN— Birth of, requisite to courtesy 63 Illegitimate, cannot Inherit at common law 436 Posthumous, may inherit 435 CHURCH PEWS— As subjects of proiperty, how regarded 23 CIVIL LAW— Computation of relationship by 429 542 INDEX. COLLATERAL HEIRS— Defined 428 COLLATEKAIj powers— See Powers. COLOR OF TITLE— Defined and distinguished 447 COMMON— Tenancies In 354 Bights of, defined 354 COMMON LAW— Future estates at 309, 321 Computation of relationship by 42» Theory of mortgage, see Mortgage. COMPENSATION- For land taken tinder right of eminent domain, see Eminent Domain. COMPULSORY PARTITION S57 CONCEALMENT— Of deflects toy landlord 205-208 CONDEMNATION OF LAND— Under power of eminent domain, see Eminent Domain. CONDITION— Estates on, see "Estates on Condition," see Deed, Lease. CONDITIONAL FEES— What are 62 CONDITIONAL LIMITATION— What is 345 Distinguished from condition ' 246 CONFIRMATION— Of judicial sales, effect of, see Judicial Sales. CONQUEST— Title by, described 423 INDEX. 543 CONSANGUINITY— See Descent CONSIDEEATION— See Deed, Mortgage. CONSTRTJOTION— Of wills 508 of leases 176 CONSTRUCTIVE NOTICE— By possession 172 By registration 484 CONSTRUCTIVE POSSESSION— In acquisition of title by adverse possession, see Adverse Possession. CONSTRUCTIVE TRUSTS— See "Trusts." CONTINGENT ESTATES 311 CONTINGENT REMAINDERS— See "Remainders." CONTINUOUS EASEMENTS— See BasemenitB. CONTINUOUS POSSESSION— In acquisition of title by adverse possession, see Adrverse Possession. CONTRACT— For purchase and sale of land, nature ot 510, 528 CONVENTIONAL LIFE ESTATES— See Estates. OONVEYANOE— Who may convey 530 Infants 531 CONVEYANCES— See Deeds, Leases. Registration, see "Registration." COPARCENARY— Estates in 351 CORPORATIONS— Capacity to hold and convey realty 529 Contracts with 527 Conveyances by 636 544 INDEX. CORPOREAL HERBDITAMENTS— Defined and classified 381 COURSES AND DISTANCES— Description of, see Deeds. CURTESY— Estates by, definition and origin 60 Requisites of estate by 60-61 A valid marriage 61 Seisin of wife 61 Birtli of issue 63 Death of "wife 65 Initlaite 64 Consummate 65 What estates subject to 62 Equitable estate subject to 62 How barred: Annulment of marriage 65 By agreement of husband 65 By conveyance of husband 65 By exclusion of curtesy 66 By settlement 66 Statutory changes 66 COVENANTS— In leases 187, 188 In deeds, see Deeds. Running with the land 183, 186 Covenant to pay rent 194, 204 Covenant to repair 187 Covenant not to assign 188 COVERTURE— Estate during 59 Power of husband over wife's chattels real 58, B9 Power of husband over wife's real estaite 59 Statutory changes 59 CREDITORS— Rights of, in powers, see Powers. CT-PRES— Application of doctrine of, to charitable trusts 375 INDEX. 545 DATE— Whether requisite in deeds 489 Of lease jgg DEATH OF HUSBAND— Requisite of dower, see Do-wer. DEATH OP WIFE— Essential to curtesy, see Curtesy. DECREE— I For deficiency in foreclosure 298 Of sale in foreclosure 297 DEDICATION- See Highways. DE DONIS CONDITIONALIBTJS— Statute of, creating estates tail 53 DEED— Defined 485 Requisites to validity of 481 1. Competent parties 481 2. An interest to be conveyed 481 3. A writing 481 4. Apt words 482 5. Delivery 482 In Escrow 483 6. Recording 484 Form of deed 485 Deeds pell 488 Indentures 488 Date and parties 489 Consideration 490 Words of limitation 491 Description 491 Monuments 492 Habendum clause 493 Covenant — For warranty 494 Against encumbrances 494 Quiet possession 494 DEFIOIENCT— Decree in foreclosure 298 546 INDEX, DEGREES OF RELATIONSHIP— How computed, see Descent, DELIVERY— Of deeds 482 In escrow 483 See Deeds.' DELUSIONS— Effect on capacity to convey 535 DEPOSIT OF TITLE DEEDS— May be a mortgage 258 DESCENDING LINES— ' In title by descent, see Descent DESCENT— Title by 426 Title by, defined 425 Governed by arbitrary rales 426 What descends to heirs 427 Heirs 428 What law controls 423 Title by- Through consanguinity 428 Through affinity 428 Through adoption 428 Degree of relationship 429 Canons of 430 Descending and ascending lines , 430 Preference of males 431 In collateral lines 432 Primogeniture 431 Ancestral estates 433 Who may inherit — Relations of half blood 435 Posthumous children 435 Illegitimate children 436 Adopted children 437 Aliens 438 Murderers 438 When title vests 439 By whart; law governed 439 INDEX. 547 DBSCENT--Continued. No one heir to the living 440 Advancements 440 DESCRIPTION- IB deeds, see Deeds. In land contracts 520 In leases, see Leases. DESTRTJOnON— Of vested remainders, see Remainders. Of contingent remainders, see Remainders. Of powers. See Powers. Of easements, see Easements. DETERMINABLE ESTATES— Curtesy In, see Ouitesy. Dower in, see Dower. DEVISE— Of lands, defined 498 Conveyance by, origin and history 498 What may be devised — 499 Intention governs 500 How Intention expressed 500 Essentials :. . . . 50O Who may make 502 Writing 503 Execution 503 How differs from a deed 505 Fraud effect of 505 Undlie influence 505 Revocation 507 Construction 508 By what law governed 509 DEVISES— I Executory, see "Executory Devise." Shifting, see "Shifting Devise." Title b.v, see Devise. DISABILITY OF PERSONS— Affecting title by adverse possession, see Adverse Possession. 548 INDEX. DISCHARGE— Of mortgage, see Mortgage. DISCOVERT— Title by, described by *24 DISSEISIN— Meaning of term, see Seisin. DISSEISOR— see Adverse Possession. DISTANCES— Description by courses and 491 DIVISION LINES— Estoppel in pais 463 DIVORCE— Effect of, on dower right 94 A mensa et thoro does not bar dower 94 DOMINANT ESTATE— See Easements. DOWER— Defined 67 Requisites 68 Marriage 6S Seisin of liusband 68-76 Transitory 72 In what estates 76 In what property — Mortgaged property 77 Partnership property 78 Improvements 79 Mineral lands 80 Lands sold on contract 80 Money 82 WUd lands S3 Determinable estates 81 Equitable estates 75 Estates in expectancy 73 Dower out of dower 73 Joint estates 71 Death of husband 83 Inchoate dower S3-8o INDEX. 549 DOWER— Continued. CSonsnmmate do'wier 85 Assigned dower 87 Quarantine 85 Assignment 8(5 Of common right 87 Against common right 87 "When value estimated 88 Incidents, see Rights and LiablUtleB of I/lfe Tenants. How defeated — i 1. By act of wife 88 Release 88-91 Estoppel 91 Abandonment and adultery 92 2. By act of husband 92 3. By act of legislature 04 4. Divorce 94 5. Eminent domain 95 6. Dedication 95 7. Determination of hnsihand's estate 96 8. Partition sale 96 9. Limitations 97 la Election 97 11. Alienage and non-residence 98 12. Jointure 99 13. Ante-nurptial settlement 100 14. Post-nuptial settlement 101 DRUNKARDS— Capacity to convey real property 535 EASEMENTS— Defined 381 Essential qualities 381 Distinguished from licenses 383 Are incorporeal 381-382 Imposed on corporeal property 382 Negative and aflBrmative 383 Licenses 383 A vested fixed Interest 384 Profits a prendre S84-5 Appendant or appurtenant and in gross 386-7 Dominant estate 885 Servient estate 386 550 INDEX. EASEMENTS— Continued. How created 387 By grant 387 Implied grant 388 Implied reservation 389 By covenants 391 By prescription 391 How Lost — 1. By merger 393 2. Release 394 3. Adverse user 394 4. By estoppel 395 St By misuser 396 6. Eminent domain 396 7. Ceasing of purpose 397 Rights and liabilities of owners of tenements 396 See Light and Air, Party Walls, Highways, Water, Lateral and Su'bjacent Support. ELECTION— Testamentary provision in lieu of dower. See Dower. Statutory provision in lieu of dower. See Dower. ELOPEMENT— Defeating dower. See Dower. EMBLEMENTS- What are 17 An Incident of life estates 128 EMINENT DOMAIN— Nature and exercise of the power 473 All real property subject to riglit of 473 Destruction of easement toy 396 When property may be taken 474 Property cannot be taken for a private use 473 Who may exercise power 477 What property may be taken 477 Compensation 478 ENCUMBRANCE S— Tenant for life not bound to pay off 130 Interest on, by whom paid 130 Covenants against in deed. See Deeds. INDEX. 551 ENTAIL— See "Estates Tail." ENTIRETY— Estates by, nature of 342 Origin of estates in 343 Survivorship incident to estate in 346 In whait estates 346 Inseverabillty 346 Rights during coverture 347 How determined 34i8 Statutory changes 350 ENTRY— Right of, to defeat estate on conditton. See Conditions. EQUITABLE ESTATES— See Usee and Trusts- Dower in 75 EQUITABLE THEORY— Of mortgage. See Mortgages. EQUITABLE MORTGAGES— See Mortgages. EJQUITY— Merger, dloctrine of, in. See Mortgages. Jurisdiction to decree specifle i>erformance 513 In case of waste 134 EQUITY OF REDEMPTION. See Mortgage. ESCHEAT- Acquisition of title by 434 ESCROW— See Deed. Delivery of deed in, effect of 483 Delivery in, how made 483 ESTATE— Defined 42 Classification of 42 Freehold 47 Of inheritance 47 In fee simple 47 Estates tall 51 552 INDEX. ESTATE)— Continued. Fee conditional 52 Life estates 55 Per autre vie 55 Conventional life estates 55 Legal life estate 58 During coverture 58-59 Curtesy 60 Dower 67 Less than freehold 136 Estates for year 139 As to quality — On condition 238 Mortgages 248 On limitation 245 As to time of enjoyment 302 In possession 302 In expectancy 302 As to number of owners 338 Joint estates 338 Powers distinguished from 377 For years. See Landlord and Tenant. At will. See Tenancies at Will. Trust estate. See Trusts. Equitable. See Uses and Trusts. ESTATE AT WILL. See Tenancies. ESTATES BY COVERTURE 59 ESTATE FOR LIFE. See Life Estates. ESTATE FROM YEAR TO YEAR. See Landlord and Tenant. ESTATES FOR YEARS. See Landlord and Tenant. ESTATES IN ENTIRETY. See Entirety. ESTATES IN EXPECTANCY— See "Future Estates" 302 ESTATES IN COPARiCBNARY 351 ESTATES ON CONDITION— Definition 238 Distinguished from estates on limitation 245 Conditions precedent and subsequent 239 INDEX. 553 ESTATES ON CONDITION— Continued. Performance of 240-243 Conditions must be valid 243 Who may perform 245 Effect of invalid conditions 245 ESTATES ON LIMITATION— Defined 245-247 Distinguished from estates on condition 246 ESTATES IN PARTNERSHIP 351 ESTATES IN POSSESSION 302 ESTATES TAIL— Defined SI Glasses of 51 ESTATE TAKEN BY PURCHASER- At tax sale. See Tax Titles. ESTOPPEL— Defined and classified 457 By record, -wtiat Is 457 By writing, what is 457 By will 457 By deed 458 By warranty 458 By recitals 458 In pais 459 Does not arise from deed of quit claim 458 To assert title 461 To deny title in a third person 461 Adjustment of boundaries 463 ESTOVERS— Tenant for life entitled to 128 EXECUTION— Title by 468-471 Definition ^^ Essentials 469-471 When title passes 4'^^ 554 INDEX. EXECUTOR— Deeds and conveyances by 479 EXECUTORS AND ADMINISTRATORS— As parties to conveyances. EXECUTORY DEVISES 333 EXECUTORY INTEREST 331 EXEMPTIONS— See "Homestead." EXPRESS COVENANTS— Rights of landlord and tenant under. See Leases. In deeds. See Deeds. EXPRESS TRUSTS— See "Trusts." EVIDENCE— Parol, admissibility of, to prove absolute deed a mortgage. . . . 253 Parol, admissibility of, to vary contract for sale of land 255 EXCLUSIVE POSSESSION— Necessary in acquisition of title by adverse i)ossesslon. See Adverse Possession. EXCLUSIVE POWERS. See Power. EXECUTED TRUSTS. See Trusts. EXECUTORY DEVISES— Defined 333 FEE. See Estate Tall. Meaning of 47 Words necessary to create 48 Incidents to estate in 48 FEB CONDITIONAL— At common law 62 FEE-SIMPLE— Defined 47 Creation 48 INDEX. 555 FEE SIMPLE— Coutlnued. By deed 48 Words of limitation 48 Alienation 48 What wordis create an estate In 48 Exceptions 49 Nature and qualities of — By win 49 FtoB TAIL— Estates in, defined 63 FEUDAL SYSTEM . . .■ 42 FICTITIOUS PERSON— Deed' to, void 489 FIRST PUROHASER— Inheritance of ancesitral lands by issue of. See Descent. FIXTURES— Defined and classified 26 Real and chattel 26 Intention the test of character 26, 31 Oharaoter determined by express contract 35 By annexation 28, 32 By adaptation for use of realty 33 By party making annexation. Time of removal 38 Gas fixtures 27 As between landlord and tenant 32 As between owner and vendee 35 Rights of purchaser withouit notice 27, 30 FORECLOSURE. See '^Mortgage." FRAUD— See '^Statute of Frauds." Effect on wills 605 FREEHOLDS— See Estates. FRUOTUS INDUSTRIAI/BS— Defined 16.17 556 INDEX. FRUOTUS NATURAL/BS 14 When considered real property 17 When considered perflonal property 17, 18 PtJRTHBR ASSURANCE— Covenant for. See Deeds. FUTURE AOOBSSIONS— Covered by mortgage. See Mortgage. FUTURE ADVANCES— Mortgages for. See Mortgage. FUTURE ESTATES— Defined 302 May be mortgaged. See Mortgage. Reversions. See Reversions 303 Possibility of reverter 306 Remainders. See Remainders 307 GRANT. Stee Deed, Public Grant, Conveyances. GENERAL POWERS. See Powers. GIFTS TO CHARITIES— Ajppllcatlon of rule against perpetuities. See PerpetuIUee. GROWING CROPS— Pass under a deed of land, when 17 When a part of tihe realty 17 When tenant entitled to. See Emblements. Subject to levy 18 GROWING TREES— Are real property 14 Right to fruit of 15 When i)ersonal property 20 Contracts for sale of 19 On dividing line 16 See Waste. GUARDIANS— Conveyances by 479-480 INDEX. 557 HABENDUM. In deed's, office of. See Deeds. HALF BLOOD— Descent to 435 HEAD OF A FAMILY— Who is. Sfee Homestead. HEIRS- Import of word 427 HEIR-LOOMS— What are 24 HIGHWAYS— Defined 413 Dedication of 414 As boundaries 523 HEREDITAMENTS— What are 192 HOMESTEAD— Origin 102-104 Legislation 104 Construction of statutes 105 Nature of rigit 106 Definition 107 Head of a family, who is 107 Who may claim 107 What constitutes a family 108-111 In what property and how acquired 111-115 Extent of exemption 115 Urban and rural 116 Occupancy, as a home 111-115 In wliat estates 118 Privileged debts — 1. Public debts 119 2. Debts contraoted before passage of homestead law 119 3. Debts contracted before acquisition 120 4. Claims of vendor 121 5. Liabilities for tort 121 7. Liens for creation. Improvement and preservation.... 121 8. Liens created! by husband and wife 121 558 INDBX. HOMESTEAD— Continued. How lost — By abandonment 122 By alienation 123 HOSTILE POSSESSION— Necessary in acquiring title by adverse possession. See Ad- verse Possession. HUSBAND AND WIFE— As tenants by entirety. See Entirety. Seisin of wife essential to curtesy. See Curtesy. Seisin of husband essential to dower. See Dower. lOB— May be considered as land, when 12 By whom ovmed 13-14 IDIOTS— Capacity to hold and convey real property 534 ILLEGITIMATE CHILDREN 436 IMBECILES— May be parties to deeds, when 534 IMPLIED NOTICE. See Notice. IMPLIED TRUSTS. See Trusts. IMPROVEMENTS- By life tenant 130 INCORPOREAL HEREDITAMENTS. See Hereddtaments. Defined 381 Kindis of 381 Easements. See Easements. ENCUMBRANCES— Covenant against 494 Life tenant must pay interest on 130 INDEX. 559 INFANTS— May be grantee In deed 502 Power of to hold and convey realty 531-533 When Statute of Limitations runs against 463 Disaffirmance toy 532 Return of consideration 533 INHBEiITANOB. See Descent. INSANE PERiSONS— Capacity to hold and convey realty 534 INSURANCE— On mortgaged premises. See Mortgages. INTEBBSSE TERMINI 148 INTOXICATED PERSONS— Deeds by 535 ISL/ANDS— When title to is in the State 466 When riparian owners entitled to 466 JOINT ESTATES— Estates In severalty 338 Curtesy in 328 Dower in. See Dower. Defined 338 Joint tenancies 339 Tenancies in common 354 Estates in coparcenary .■ 351 Estates in entirety 342 Estates in partnership 351 Incidents of 355 Possession and disseisin 355 Accounting between co-tenants 358 Repairs and waste 134 Transfer of 356 Interests liable to execution 356 560 INDEX. JOINT ESTATES— Continued. Partition 356 See Joint Tenancies, Tenants in Common, Estates in Co- parcenary and Partnership Tenancies by Entireties. JOINT TENANCIES— See Partition 339 Nature of 339 How created at common law 339 Survivorship 341 Dissolution of 341 Partition of 342 Statutory changes 342 JOINTURE. See Dower. JUDICIAL PROCESS. See Judicial Sales. JUDICIAL SALES— Definition 47] How differs from sale on execution 472 Nature of title acquired 473 LAND— What embraced In term 4, 6 Contracts for purchase and sale of 510-528 Lien on, for purdhasie-inoney. See Vendor's Lien. LANDLORD AND TENANT. See Lease- Nature of relation 139 Relation, how created 140 Obligation of landlord 141 Covenant for quiet possession 142 Obligations of tenant 142-144 Estoppel of tenant to deny title 143 Origin of modem tenancy 145-147 Characteristics of tenancy 147 Possession 148 Effect of lease 151 Possession of tenant exclusive 151-153 Landlord's license to enter 153 Trespass by landlord 154 When one Is licensee and not a tenant 155 Leases. See Leases. 1^.\PSED DEVISES. See Devise. INDEX. 561 LATERAL AND SUBJACENT SUPPORT 399-403 LEASE— Defined 157 Leases in writing under seal 158 CSonstniction of leases. . . . .- 159 When seal essential 160 Authority of agent to execute 162 Written leases not under seal 164 Signing 165 Lessor only need sign 168 Execution of lease 169-170 Recording lease 170 Possession is notl-ce 172 Verbal leases 172 Implied leases 173 From beneficial use 174 Construction of 176 Agreement for a lease 177-179 Sub leases 179 Assignment of lease 180 Liability of assignee 182 Covenants that run with the land : ■ • 183 Bights of purchaser of leased lands 525 Parts of a lease 186 Date 186, 188 Parties 186 Operative words 186, 190 Description of premises 186, 190, 192 The term 186, 190, 192 Restrictions on use 187 Covenant for quiet enjoyment 187 Covenant to pay rent-— See Rent 187, 194-204 Covenant to repair 187 Covenant not to sub-let 188 Lease may be avoided for fraud or misrepresentation 204 Concealment of defects 205-208 Abandonment by tenant when justified 20G Failure of consideration, effect on payment of rent 210 Destruction of building, effect of breach of landlord cov- enant to repair 212 Set off and recoupment, when may be set up 213 Restrictions on use of premises 214 Covenant for quiet possession 216-218 Forfeiture right of entry for 218 37 562 INDEX. LEASE — Continued. Tenants covenant to repair 220-223 Covenant not to sublet or assign 223-230 Surrender of possession 230 Covenant for renewal 230 LEGAL CAPACITY— To hold and convey realty 529-535 Infants 529-531 Persons of unsound mind 534 Drunliards S34 Married women 533 Aliens 530, 536 Corporations 529 LESSEE— See Leases. LESSOR— See Leases. LEX LOCI— Governs title by devise 503 LICENSES— Defined 416 Creation 417 Revocation of 419-421 Distinguished from easements 383 May be created by parol 384 Is personal to the grantor 384 License of landlord to enter leased premises 153 LIEN— Vendor's, an equitable mortgage — See Mortgages. Vendee's, an equitable mortgage. LIEN THEORY— Of mortgage — See Mortgages. LIFE ESTATES — See Estates. Defined and classified 55 Creation of 55 Kinds of 55 Per autre vie 55 Conventional 55 Legal 58 INDEX. 563 LIFE ESTATES— Continued. Bsrtate and that of remainderman ai-e consistent, Independ- ant and distinct 124 Life tenant entitled to rents and profits 127 Life tenant may alien his estate 128 Life tenant is entitled to reasonable estovers 128 Life tenant Is entitled to emblements 128 Liabilities of life tenant- Must pay taxes 129 Must pay interest 130 Must make repairs 130 Must not commit waste 130-135 LINEAL RELATIONS— See Descent. LUNATICS— Effects of deeds of 534 MALES— Preference of, in descent— See Descent. MANURE— When part of realty 22 When deemed personal property 23 MARRIAGE— A requisite of Dower — See Dower. A requisite of curtesy — See Curtesy. MARRIED WOMEN— Caipaclty to hold and convey real property 533 Wills of — See Devise. MARSHALING— Of mortgage securities 525 See Mortgages. MDRGER^ Deflnition 280 Of mortgage 280 Discharge of mortgage by 281 Destruction of easements by ;. . . 393 MEyrALS— When real property , 8 564 INDEX. MINERADS— When real property 8 MINES— When opening is waste 133 Included in term "land" 8 May be owned as separate estate 8 Of gold and silver Widow entitled to dower in 80 MINISTHBIAI. SALES— Tax titles by — See Tax Titles. MISUSER^ Of easements, destruction by — See Easements. MONUMENTS— See Deed- Description by, in deeds 402 Effect of, in fixing boundaries 492 MORTGAGE— History of 248 Definition and nature 249 Derivation of the term 248 Common law tOieory of 249-250 Equity of redemption 250 How regarded in equity 249 Lien theory 251 Form of mortgage 251 Legal mortgages 252 Equitable mortgages 252 Absolute deeds intended as mortgages 253 Parol evidfioce to vary absolute deed 253 When deed will be held to be a mortgage 254-255 Absolute deed and contract for reconveyance 255 Trust deeds 256 Agreements to give a mortgage 257 Deposit of title -dteeds 258 Veodior's lien 261 Relation of mortgagor and mortgagee 261 Mortgagee's interest at common law 261 Modification of common law doctrines 262 Tenancy between mortgagor and mortgagee 264-266 Rlg'hts and liaWlIties of mortgagor 266-268 INDEX. 565 MORTGAGE— Continued. Rights and liabilities of mortgagee 268 Consideration of mortgage 270-273 Who may mortgage 273 Assignment of mortgagor's Interest 273 Assignee not liable for mortgage debt 274 Assignment of mortgagee interest 276 Rights Off assignee 279 Merger 280 Subrogation 282 Discharge and release 285 Redemption 287 Registration 289 Foreclosure 293 Strict foreclosure 296 Entry and possession 297 Foreclosure by sale 297 Effect of foreclosure 299 Marshalling assets 300 MORTGAGEE— See Mortgage. MORTGAGOR— See Mortgage. MURDERERS— Cannot take from victim by descent 438 NAKED POWERS— See Powers. NATURAL GROWTHS 14 NATURALIZED CITIZENS— Inheritance by — See Aliens. notice- To terminate tenancy at -will 231 To terminate tenancy from year to year 237 To terminate tenancy at sufferance 230 Constructive 172 Possession — See Adverse Possession. NOTICE TO QUIT— See Notice. Registration 484 566 INDEX. NOTORIOUS POSSESSION— Necessity in acquiring title by adverse possession. See Adyerse Possession. NUMBER OF OWNERS— Estates as to — See Joint Estates. OILS AND GAS— Nature and legal characteristics of 10 Effect of severance. 25 OWNERS— Number of Estates, as to — See Joint Estates. ownership- No absolute ownership of land under feudal system. See Feudal System. PAIS— Estoppel in — See Estoppel. PAROL AGREEMENT— Merge in deed 524 PAROL DEFEASANCE— Mortgage may have — See Mortgage. PARTICULAR ESTATE— Preceding a remainder 307 Destruction of, may destroy contingent remainder 310 Expiration of, may destroy contingent remainder 316 PARTITION — See Tenancy in Common. Of Joint estates 356 Compulsory 356 PARTNERSHIP— Estates In, defined 351 Incidents of estates held in 353 PARTY WALLS— What are 403 Easements in, how acquired 404 Ownership of land covered by 40i Use of, how restricted 405 Destruction of easements in ; 406 INDEX. 567 PASSIVE TRUSTS— See Trusts. PER AUTRE VIE— Defined- See Life Estate. PER CAPITA— Taking, In title by descent— See Descent. PERFORMANCE— Of conditions, mode of— See Estates Upon Condition. Specific performance — See Specific Performance. PER MY ET PER TOUT— See Joint Estates. PERPETUITIES— Rule against > 336 To what estate the rule applies 337 Application to charitable trusts 337 PERSONAL OAPACITY- To hold and convey realty— See Legal Capacity. PERSONAL COVENANTS— In leases — See Leases. In deeds — See Deeds. PERSONAL INTERESTS IN LAND— See Chattels Real. PERSONAL REMEDIES— In foreclosure — See Mortgages. PERSONAL REPRESENTATIVES— Conveyances of land by — See Administrators. PERSONS OF UNSOUND MIND— Power to hold and convey realty 534 PER STIRPES— Taking, in title by descent— See Descent PEWS— Nature and property In 23 POSSESSION— See Adverse Possession. Lessee's exclusive right to 153 Of mortgaged premises — See Mortgages. 568 INDEX. POSSESSION— Continued. Is constructive notice 172, 515 Unity of, In joint tenancies— See Joint Tenancies. Of Joint estates— See Joint Estate. Constructive — See Adverse Possession. POSSIBILITY— Of reverter 306 POSTHUMOUS CHILDREN- Descent to 435 POWER OF ATTORNEY— To execute a deed 162, 526 POWERS— Defined and classified 375 Donor defined 376 Donee defined 376 Appointee defined 376 Distinguished from estates 377 Common-law poveer, creation ; 379 Classes of, as to donee — Appendant and In gross 376 Collateral or naked powers 376 Classes of, as to appointees — General Powers 377 Special 377 Execution — Form of 379 Time of 379 Compelling 380 Def ectf ve 379 Rights of creditors 380 When revocable 380 PRECEDENT— See Conditions Precedent and Subsequent. PREFERENCE OF MALES— In title by descent — See Descent. PRESCRIPTION— See Adverse Possession. PRESENT ESTATES- And future — See Estates in Possession. INDEX, 569 PRIMOGENITURE— See Descent PRIORITY— Of m&rtgages and other conveyances — See Mortgage. PRIVATE PERSONS-r Acquisition of title by— See Title. PROBATE— Of wills— See Devise. PROFITS A PRENDRE— Defined and illustrated 383 How distinguished from easements S85 PROOF OF wills- How made and effect of — See Devise. PROPERTY— Definition 1 Real and personal, importance of distinction 2 Essential qualities of real property 4 PUBLIC TRUSTS— See Charitable Trusts. PUBLIC WAYS— See Highways. PURCHASE— Words of, in deed — See Deeds. Title by 425 QUARRIES— When opening is waste — See Waste. QUIET ENJOYMENT— Covenant by 494 QUIT-CLAIM DEEDS— See Deeds. RAILROAD CARS— Whether real fixtures 25 REAL PROPERTY— Nature and characteristics of 4 Estates in, defined 40 570 INDEX. REAL AND PERSONAL PROPERTY- Importance of distinction RECITALS IN TITLE DEEDS— See Deeds. Estoppel by— See Estoppel. RECORDS— Of deeds and leases, afford notice, -wtien 170 REDEMPTION— See Equity of Redemption. From sale on execution 471 RE-ENTRY— For forfeiture — See Estates on Condition. » REGISTRATION— See Deed, Mortgage. RELATIONSHIP— By Consanguinity and affinity 428 Degree of 428-429 RELEASE— I Of dower by -wife — See Dower. RELICTION— Considered as a form of title 465 REMAINDERMAN— Adverse possession against — See Adverse Possession. REMAINDERS— Defined 307 How created 303 Is remnant of an estate 307 Dependant on prior estate 307 Created by grant 309 Must vest in grantee 309 Must not abridge particular estate 310 Vested 311 Essentials of vested remainder, test as to whether vested or contingent 312 Not subject to rule against perpetuities 317 May be transferred and devised 319 Contingent 319 Distinguished from vested 320 INDEX. 571 REMAINDERS— Continued. Estates which will support 321 New York Code definition, test of 320 Contingency on which remainder may depend 323 How defeated 322 Destruction of — By destruction of particular estate 322 By expiration of particular estate 322 Alternate remainders 326 At common-law contingent, remainder not an estate 326 Rule in Shelley's case 327 REMEDIES— For waste — See Waste; REMOTENESS— Rule against — See Perpetuities. RENT— See Landlord and Tenant- Definition 194 When payable IS** Where payable 19'? To whom payable 198-200 On wliat ground payment may be refused 202 Effect of fraud and concealment of rent 204-210 Defenses to actions for 201-204 Apportionment of 199-200 When descendible to heir, liability of co-tenant for 199 Tenant at sufferance not liable for 233 Extinguished by eyiction 217 Extinguished by failure of consideration 210 Destruction of building, effect on 211 Failure of Landlord to repair, effect on 212 When set-off and recoupment may be pleaded 213 REPAIRS— Tenant for life may take estovers for 128 Of party waUs — See Party WaUs. Of easements — See Easements. REQUISITES OF DEEDS— See Deeds. RESERVATIONS— See Deed. RESTRAINTS ON ALIENATION— See Alienation. 572 INDEX. RESULTING TRUSTS— See Trusts. REVERSION— Defined 303 Nature and incidents of 303 Is a present vested estate 305 May be conveyed and mortgaged 305 May be devised 305 Bights of reversioner 306 REVERTER— Possibility of 306 REVOCATION— Of wills, how effected — See Devise. Of license — See License. Powers of — See Power. RIGHT OF ENTRY— To defeat estate on condition — See Estates upon Condition. RIGHTS OF WAY— By necessity 411 Use of 412 Location 412 See Highways. RULE AGAINST PERPETUITIES 836 See Perpetuities. RULE IN SHELLEY'S CASE 327 RULES— Of descent as — See Descent RURAL— Homestead^See Homestead. SEAL— When necessary for deed, or lease 160 SEISIN— Defined 445 SELECTION OF HOMESTEAD— See Homestead. INDEX. 573 SERVIENT ESTATE— See Basements. SEVERALTY— Estates in 338 SBVBRANOBl— May make realty, personalty 24 SHIFTING USES— Distinguished from remainder 332 SOUND MIND— Wills 507 SPECIFIC PERFORMANCE— Of land contracts 513 Conveyance of title by 513 SPRINGING USES 332 STATUTE OF FRAUDS— Provisions of, as to purchase and sale of lands 18, 510 Sale of growing trees within 18, 21 Sale of trees to be severed not within 20 SUBJACENT SUPPORT— See Easements. SUBROGATION— Of insurer to rights of mortgagee. See Mortgages. SUBSEQUENT— See Condition Precedent and Subsequent SUBTERRANEAN WATERS— Easements in — See Water. SUFFERANCE— See Tenancy at Sufferance. SUPPORT— See Easement. Lateral and subjacent — See Basements. SURFACE WATERS— Basements in — See Water. 574 INDEX. SURVIVORSHIP— Doctrine of, In joint tenancies — See Joint Tenancy. In estates In entirety — See Entireties. TACKING— Of adverse possession. See Adverse Possession. TAX TITLES— Nature and characteristics of 478 Purcliase of by joint-tenant 356 TAXES— Duty of tenant for life to pay 129 TENANCIES- At wlU defined 230 How created 230-232 Incidents 233 Termination 234 From year to year 235 Incidents 236 At sufferance 238 Incidents 229 Termination 230 In common defined. By entireties 342 See Entirety. TENANCY IN COMMON— See Partition. When it arises 354 Nature and Incidents of 355 See Joint Estates 355 TENANT— See Landlord and Tenant. Under feudal system — See Feudal System. Tenant at will — See Tenancies. TENANTS IN COMMON— See Estates. TENURE— Feudal . . . ^. 42 Creation 228-229 INDEX. 575 TIMBER TREES 131 TITLE— Defined and classified 422 By what law determined 423 Sources and classes of, how acquired by national government 423 By descent — See Deceased 425 By purchase 425 Requisites of deeds— See Deede. By estoppel— See Estojypel. By adverse possession — See Adverse Possession. By accretion — See Accretion. By alluvion— See Alluvion. By devise — See Devise. By descent— See Descent. By judicial process— See Judicial Sales. Tax titles— See Tax Titles. By Eminent domain — See Eminent Domain. By descent — See Descent. By execution — See Executions. TREES AND HERBAGE— See Growing Trees. Annexed to the soil, are land 15 Overhanging rights as to 14, 15 When becomes personal property on dividing line 16 TRUSTS— Are uses not executed 362 Description of trust estate, where exist 362 Trustee and cestui que trust, who are, essentials of 363 Jurisdiction of, in equity 363 Modes of creating, statutes 365 Parties to a trust 873 Cestui que trust 373 Trustee 373 Incidents to estate of trustee 373 Actual and passive 365 Executed and executory 365 Express 366 Creation of. Implied 367 Charitable, defined 374 676 INDEX, TRUSTS— Resulting 367 Constructive 367 Fraud an essential element of 370 Raised by titles procured by fraud 371 Not as against bona fide holder 372 UNDUE INFLUENCE— EfEect on wills 505 UNITY— Of interest in joint tenancy — See Joint Estates. UNSOUND MIND— Persons of, power to hold and convey realty 534 URBAN HOMESTEAD— See Homestead. USE— See Trust VENDEE'S LIEN— An equitable mortgage 261 VENDOR'S LIEN— An equitable mortgage 258 For unpaid purchase-money, nature of 258-259 When it attaches 260 Bona fide purchaser protected against 259-260 How waived 260 VESTED ESTATES 31] VISIBLE POSSESSION— Necessary in acquiring title by adverse possession. See Adverse Possession. WARRANTY— Covenant of 494 Estoppel by — See Estoppel. WARRANTY DEED- Form and operation of — See Deed. INDEX. 577 WASTE— Definition 131 What constitutes. Voluntary or permissive 130 Cutting trees, etc 131 In buildings 134 In respect to mines, etc 133 Improper cultivation of land 133 Remedy in equity in cases of 135 WATER— Nature of property in 10 Natural water courses 406-407 Artificial water courses 410 Percolating and surface water 410 WAY- See "Easement." Rights of— See Rights of Way, Highways. WEAKNESS OF MIND— As affecting capacity to hold and convey realty 534 WHOLE BLOOD— Descent to — See Descent. WILLS— See Devise. WITNESSES— See Deeds. WOMEN— See Married Women. WORDS OF LIMITATION— See Limitation. WRITING— What requisite in deeds — See Deeds. Table of Cases Cited. Ableman vs. Booth 476 Abrahams vs. Krautler 406 Abrams vs. Watson 154 Adams vs. Hubbard 469 Adams vs. Briggs Iron Co 9 Admr. vs. Perkins 240 Aetna Mills vs. Waltham 408 Ahern vs. White 290 Alden vs. St. Peter's Parish S37 Alemany vs. Daly 240 Allen vs. Craft 329 Allen vs. Jaqulsh 160 Allen vs. Lorlng 260 Allen vs. Mooney 37 Alexander vs. Alexander 64 Alexander vs. Alexander 65 Alexander vs. Alexander Ill Alpine Twp. School District vs. Batsche 147 Alsup vs. Banks 226 Ambs vs. Hill 38 American Freehold Land Mtg. Co. vs. Sewell 2«9 Am. Sav. & Loan Assn. vs. Burg- hardt 124 Amos vs. Amos 313 Amphlett vs. Hibbard 124 Anderson vs. Bell 435 Anderson vs. Dickie 154 Anderson vs. Miller 215 Anderson vs. Henderson 411 Anderson vs. Post 479 Anthony vs. R. R. Co 170 Ann Arbor Sav. Bank vs. Webb. 282 Aguirre vs. Alexander 355 Armstrong vs. Douglass 334 Armstrong vs. Douglass 336 Arnold vs. Waltz 109 Arnold vs. Green 281 Arnold vs. Green 282 Ashcroft vs. B. R. Co 387 Atkinson vs. Miller 252 Atkinson vs. Miller 257 Atkinson vs. Miller 258 Atlanta Mills vs. Mason 394 Atwater vs. Manchester Savings Bank 289 Atwood vs. Bearnes 292 Aurora vs. Fox 401 Austen vs. Sawyer 3 Aylward vs. O'Brien 23 Babbitt vs. Babbitt 71 Bacon vs. Bowdoln 178 Babb vs. Perley 59 Bagnall vs. Davles 391 Bailey's Appeal 371 Bailey vs. Bailey 427 Bailey vs. Sanger 318 Baker vs. Stewart 350 Baker vs. Oakwood 62 Baker vs. Oakwood 456 Baker vs. Baker 74 Baker vs. Stewart 344 Baker vs. Swan 447 Ballard vs. Demmon 393 Ball vs. Setzer 300 Bateman vs. Maddox 235 Baldwin vs. Young 31 Baltimore vs. Appold 407 Bank vs. Barry 371 Bank vs. Lyon 125 Bank vs. Rice 198 Banks vs. Sharp 164 Banks vs. Sutton 67 Banorgee vs. Hovey 162 Barber vs. Root 350 Barker vs. Barker 154 Barnes vs. Boardman 287 Barnes vs. Boardman 356 Barnes' Appeal 376 Barnett vs. Powers 3 Bartholomew vs. West 118 Barry vs. Bdlavltch 400 Barry vs. Shelby S! Bass vs. Roanoke Nav. Co 306 Batterman vs. Albright 17 Bates vs. Shreader 305 Bates vs. Brown 432 Batty vs. Snock 288 Bazemore vs. Davis 359 511 TABLES OF CASES CITED. 579 Beard vs. Lofton 427 Bearse vs. Perry 409 Beoar vs. Flues 173 Bertram vs. Curtis 405 Bell vs. Pelt 260 Bellas vs. Hays 164 Belslay vs. Bngel 329 Bente vs. Lange 115 Benton County vs. Czarlinsky... 2^ Birnie vs. Main 295 Bertie vs. Flagg 210 Bethlehem vs. Annis 272 Bicknell vs. Comstook 456 Blgley vs. Watson 62 Bigley vs. Watson 319 Billing vs. Taylor 133 Billings vs. Canney 177 Binkley vs. Forkner 26 Bird vs. Decker 267 Blackmore vs. Boardman 186 Blancke vs. Rogers 28 Bliss vs. Johnson 446 Blood vs. Goodrich 162 Blum vs. Bush 272 Board of Health vs. Van Hoesen 473 Board of Health vs. Van Hoesen 474 Board of Health vs. Van Hoesen 473 Bohannon vs. Combs 80 Bonetti vs. Treat 196 Boone vs. Clark 243 Boone vs. Clark 268 Bolles vs. State Trust Co 348 Bopp vs. Fox 78 Borland vs. Marshall 62 Borland vs. Marshall 62 Bosauett vs. Hall 110 Boston Safe Deposit & I. Co. vs. Coffin 509 Boswell vs. Goodwin 271 Bowe vs. Hunklng 208 Bowers vs. Johnson 277 Bowles vs. Hoard 115 Bowling vs. Burton 388 Bowman vs. Bradley 148 Boyd vs. Harrison 94 Boyer vs. Chandler 294 Boyer vs. State 415 Boynton vs. Langley 411 Boynton vs. Sawyer 78 Braokett vs. Goddard 25 Bradley vs. Baily 129 Bradley vs. Bradley 128 Bralnerd vs. Brainerd 253 Bramberry Estate 350 Brandon vs. Damson 93 Brantley vs. Wood 258 Brattle Sq. Church vs. Grant 324 Brattle Sq. Church vs. Grant.... 336 Brattle Sq. Church vs. Grant 336 Breeding vs. Davis 67 Breitenbach vs. Trowbridge 417 Brewer vs. Dyer 198 Briggs vs. Partridge 164 Brinley vs. Mann 164 Brown vs. Baldwin 36 Brown vs. Brown 110 Brown vs. Wilt 110 Brown vs. Coon 124 Brown vs. N. T. C. R. R 178 Brown vs. Baraboo 345 Brown vs. Baraboo 345 Brown vs. Powell 154 Browning's Petitions 328 Brownson vs. Chapman 23 Brook vs. Jenney 149 Brooke vs. Struthers 280 Brooke vs. Struthers 292 Brookville & M. Hydraulic Co. vs. Butler .' 13 Brumfield vs. Carson 23 Bryan vs. Brasins 264 Brant vs. Vincent 232 Bubier vs. Roberts 98 Buckingham vs. Buckingham — 107 Buckley vs. Devine 191 Buckworth vs. Thirkell 52 Buell vs. Cook 178 Buffalo Catholic Institute vs. Bitter 104 Buhl vs. Kenyon 139 Bunce vs. Bidwell 464 Bunting vs. Speek 319 Burbank vs. Fay 393 Burdens vs. Thayer 306 Burgess vs. Muldoon 65 Burke vs. Smith 399 Burns vs. Gallagher 389 Burns vs. X.ynde 189 Burris vs. Page 69 Burt vs. Merchants' Ins. Co 327 Buss vs. Dyer 389 Bush vs. Calls 185 Bush vs. Bradley 62 Buttar vs. Rosenblath 348 Butler vs. Bertrand 176 Butler vs. Fitzgerald 88 Butler vs. BMtzgerald 93 Buxton vs. Dearborn 116 Byers vs. Johnston Ill Byers vs. Byers 357 Byington vs. Simpson 170 580 TABLES OF OASES CITED. Byrnes vs. Stillwell 513 Cadman vs. Peter 254 Cadwalader vs. Bailey 383 Call vs. Wells SO Caldwell vs. Aslop 17 Cadwalader vs. Bailey 38fi Calhonn vs. Williams 109 Campau vs. Ciiene 239 Campau vs. Campau 303 Campau vs. Campau 334 Campbell vs. O'Neill 38 Campbell vs. Foster Home Assn. 379 Campbell vs. Lewis 186 Campbell vs. Lafferty 168 Campbell vs. Race 419 Campbell vs. Carson 49 Campbell vs. Talbot 409 Campbell vs. Mesier 403 Campbell vs. Adair 104 Campbell vs. Mason 314 Cannaughton vs. Sands 109 Cannon vs. Boyd 388 Capps vs. Lieachman 470 Caraufle vs. Cooley 17 Carpenter vs. Jones 234 Carpenter vs. Providence Wash. Ins Co 270 Carter vs. Chevallier 444 Caruthers vs. Humphrey 286 Cass County Bank vs. Weber... 112 Case vs. Brwin 291 Catholic Benefit Ass'n vs. Fir- nane 507 Re Cawley's Appeal 504 Cawthon vs. Coppedge 440 Cazler vs. Hinchey 92 Center vs. Planter, &c., Bank... 171 Chapel vs. Hull 133 Chappell vs. New York R. Co... 388 Chapin vs. Crew 314 Chapman vs. Sohroeder 97 Chambers vs. Ross 174 Chamberiin vs. Meeder 285 Chandler vs. Cheney 348 Chandler vs. Cheney 349 Charles vs. Charles 65 Chase vs. Silverstone 410 Chase vs. Silverstone 410 Chase vs. Tacoma Box Co 33 Cheney vs. Newberry & Co 177 Cheeseborough vs. Green 403 Cheeseborough vs. Pingree 168 Chicago & I. R. Co. vs. Hall.... 419 Chilcott vs. Hart 312 Chilcott vs. Hart 314 Chilcott vs. Hart 326 Chippewa Dumber Co. vs. Trem- per 244 Chitty vs. Chitty 113 Cihak vs. Klekr 389 Claflin vs. Boston & B. R. Co... 388 Clapp vs. Emory 371 Clarke vs. Cordis 427 Clark vs. Gilbert 451 Clark vs. Clough 287 Clark vs. Allen 190 Clarkson vs. Clarkson 314 Classen vs. Classen 61 Clason vs. Baily 169 Clawson vs. McCune 295 Clay vs. Field 353 Clement vs. Wheeler 132 Clift vs. Cllft 80 Clowes vs. Dickinson 301 Coogler vs. Rogers 355 Coal Co. vs. Peers 161 Coal Co. vs. Peers 163 Coal Co. vs. Peers 420 Coari vs. Olsen 172 Cockson vs. Cook 185 Cogswell vs. Tlbbetts 92 Cohn vs. Norton 142 CoIIamer vs. Kelley 182 Colby vs. Duncan 314 Collins vs. Lewis 217 Coll vs. Lake Co 50 Colorado L. & I. Co. vs. Grand Canal Co 457 Columbia Bank vs. Jacobs 292 Commonwealth vs. Munson 61 Conard vs. Saginaw Mining Co.. 32 Concord Mfg. Co. vs. Robertson. 410 Conger vs. Lowe 328 Conklin vs. Foster 118 Conner vs. Shepherd 83 Conn. Mut. Life vs. Stinson 266 Conroy vs. Sullivan 121 Consolidated Coal Co. vs. Peers.. 184 Cooley vs. Golden 466 Cooley vs. Golden 466 Cooley vs. Golden 467 Cook vs. Bartholomew 272 Cook vs. Hammond ZXS Cooke vs. Cooper 264 Cook vs. Couch 98 Cook vs. Parham 296 Cook vs. Cook B04 Cook vs. Patrick 482 Cook vs. Whiting 24 Cook vs. Higley 124 TABLES OF OASES CITED. 581 Cook vs. Blsbee 307 Cookson vs. Richardson 371 Coombs vs. Anderson 54 Cooper vs. nankin 162 Corey vs. Schuster 113 Corinth vs. Emery 341 Corinth vs. Emery 343 Cornell vs. Hall 256 Comett vs. Puddy 392 Corrigan vs. Chicago 210 Costello vs. Bdson 450 Cowan vs. Murch 269 Cowan vs. Murch 260 Cowell vs. Craig 256 Cowell vs. Springs 244 Cowell vs. Springs Co 247 Cox vs. Ward 450 Corey vs. Springer 312 Corey vs. Springer 316 Craig vs. Summers 181 Crane vs. Buchanan 255 Cramer vs. Clow 446 Crane vs. Reeder 530 Crawley vs. Tlmberlake 132 Crippen vs. Morrison 31 Crocker vs. Smith 504 Crouch vs. Puryear 133 Crowell vs. R. R. Co 154 Croxall vs. Shererd 315 Crule vs. Tifts 18 CucuUu vs. Brakenrldge 479 Curling vs. Mills 177 Curtis vs. Cutler 277 Curtlss vs. Hoyt 416 Curtis vs. La Grande Hydraulic Water Co 392 Curtis vs. La Grande Hydraulic Company : 393 Curtis vs. La Grande Hydraulic Company 419 Cushing vs. Thompson 269 Cutler vs. Currier 368 Cutler vs. Hamlen 209 Daggett vs. Rankin 257 Dole vs. Keyes 313 Darden vs. Cowper 133 Darling vs. Butler 483 Darnell vs. Barton 313 Davenport vs. Shauts 30 Davidson vs. Bates 319 Davis vs. Clark 132 Davis vs. Shields 169 Dawson vs. Coffman 131 Day vs. Walden 385 Doylng vs. Chesebrough 256 Debow vs. Colfax 128 Deerfleld vs. Railroad Co 414 Deere vs. Chapman US Deffeback vs. Hawke 447 Defreese vs. Lake 325 Defreese vs. Lake 330 Deford vs. Painter 113 Delane vs. Montague 173 Delashman vs. Berry 177 Dell vs. Gardner 174 DeLong vs. Baldwin 463 Demarest vs. WlUard 185 Demlng vs. Bullitt 164 Dendy vs. Gamble 110 Despain vs. Wagner 125 Desot vs. Ross 283 Detroit vs. D. & M. Railroad.... 415 DeviUe vs. Widoe 114 Dew vs. Johnson ISO Dexter vs. Manley 218 Contra. Dickason vs. Fisher 260 Dickinson vs. Goodspeed 154 Dill vs. Camden Board of Edu- cation 395 Disbrow vs. Johe's Harr 172 Dodge vs. Kennedy 468 Dodge vs. Kennedy 459 Doe vs. Rles 178 Doebler's Appeal 329 Doss vs. Ditmars 277 Dowling vs. Sallotte 344 DowUng vs. Sallotte 344 Dowling vs. Hennlng 404 Doyle vs. Union Pacific Ry. Co.. 208 Drake vs. Wells 21 Drake vs. Wells 21 Drake vs. Lady Bnsley Coal Co.. 408 Drew vs. Morrill 267 Drlght vs, Lutler 174 Drury vs. Foster 190 Dryden vs. Newman 355 Dudley vs. Dudley 84 Duke vs. State 265 Dudley vs. Dufley 84 Dumont vs. Kellogg 497 Dumont vs. Kellogg 409 Dunn vs. Portsmouth Sav. Bank 92 Duncan vs. Miller 271 Duncan vs. Terre Haute 65 Dunlap vs. Bullard... 182 Durando vs. Durando 74 Durando vs. Durando T4 Durham vs. Augler 97 Dutton vs. Ives 282 Duval vs Craig 184 582 TABLES OF CASES CITED. Dwight vs. Cutler 175 Dwlght vs. Cutler 176 East Tennessee R. R. Co. vs. Telford's Exrs 477 Eaton vs. Boston, C. & M. R. R. 1 Eaton vs. Boston, C. & M. R. R. 6 Eaves vs. Ester 26 Ebey vs. Adams 314 Eckerson vs. Crlppen 393 Eckerson vs. Crippen 421 Edeliu vs. Sanders 189 Edmison vs. Lowry 192 EdwardsvlUe R. R. Co. vs. Saw- yer 48 Elchengreen vs. Appel 228 Ellis vs. Leek 296 Ellis vs. Welch 218 Elklnton vs. Brick r06 Elyton Land Co. vs. South Ala- bama R. Co 241 Emerson vs. Mooney 49 Emison vs. "Whittlesey 313 Emison vs. Whittlesey 321 Endsley vs. Strock 164 Engelbert vs. Pritchett 533 English vs. Carney 277 Enos vs. Sanger 275 Eowell vs. Doyle 14 Contra. Erck vs. Church 454 Equitable Life Ass. Co. vs. Bost- wick 275 Espy vs. Comer 79 Estate of Wlxon 109 Everett vs. Edwards 403 Everett vs. Edwards 403 Everett vs. Edwards 405 Everts vs. Beach 358 Everltt vs. Everitt 75 Ewing vs. Shannahan 49 Excelsior Fire Ins. Co. vs. Royal Ins. Co 269 Farrand vs. Marshall 400 Farmers' & Mechanics' Bank vs. Bronson 266 Parnam vs. Farnam 315 Farnam vs. Farnam 321 Fay vs. Muzzey 22 Pay vs. Prentice 149 Pak vs. Oats 179 Fennell vs. Guffey 198 E^rgeson vs. Jones 437 Furgeson vs. Jones 437 Furgeson vs. Jones 469 Ferris vs. Wilcox 251 Penton vs. Miller 450 Field vs. Leiter , 406 Field vs. Stagg 190 Finlayson vs. Peterson 299 Finely vs. Dietrich 107 First Universallst Society vs. Adams 246 First Unlversalist Society of North Adams vs. Boland 247 First Universallst Society vs. Bo- land 325 First Universallst Society vs. Bo- land 336 Fisher vs. Fair 380 Fisher vs. Fair 383 Fisher vs. Fair 385 Fisher vs. Fair 387 Fisher vs. Provin 850 Fisher vs. Salmons 164 Flaherty vs. Moran 399 Flanders vs. Lamphear 273 Fleming vs. Kerr 355 Fletcher vs. Herring 23 Fletcher vs. Carpenter 277 Fluker vs. Georgia R. & Bank- ing Co 419 nuker vs. Georgia R. & Bank- ing Co 420 Flynn vs. Detroit 442 Flynn vs. Flynn 95 Foley vs. Wyeth 400 Fontaine vs. Boatmen's Savings Institution 72 Fontaine vs. Boatman 72 Poote vs. Clark 458 Forest Oil Co.'s Appeal 285 Poster vs. Marshall 69 Foster va. Mapes 218 Foulke vs. Bond 455 Foulke vs. Bond 456 Fowler vs. Black 328 Fowler vs. Shearer 164 Fox vs. Windes 458 Franklin vs. Coffee 104 Franklin vs. Coffee 114 Freer vs. Stotenbur 80 Frame vs. Sliter 268 Free vs. Beatley 79 French vs. Marstin 412 Proud vs. Merritt 268 B^ost vs. Earnest 218 Puller vs. Brownell S8 Ex Parte Fuller 607 Pullman vs. West Brookfleld 164 Fuller vs Shedd 466 Pulmer vs. Williams 407 B^ilper vs. Fulper 345 Pulton vs. Mehrenfeia 41C TABLES OF CASES CITED. 583 Funk vs. Brlgaldi 28 Funk vs. Brlgraldi 28 GafCord vs. Strouse 265 Gage vs. Hampton 456 Gage vs. Gage 359 Gaines vs. Green Pond Iron Mining Co 133 Gallagher vs. Keller 114 Galbralth vs. Tracy 352 Galbralth vs. Tracy 353 Galbralth vs. Lunsford 463 Galloway vs. Bonestel.... 391 Gardner, Decker & Co. vs. Moore 258 Gardner vs. Gardner 162 Gardner vs. Keteltas 218 Garrett vs. Jackson 392 Gassert vs. Bogk 256 Gaskell vs. Vlquesney 267 Gates vs. Salmon 357 Gaugmere's Ustate 101 Gayle vs. Johnston 359 Gazzolo vs. Chambers 218 George vs. Putney 218 Contra. Gerber vs. Grabel 398 Gessner vs. Palmateer 258 Geynne vs. Cincinnati 96 Gillespie vs. Wortord 66 GlUham vs. Madison Co. R. Co.. 411 Gilmer vs. Lime Point 475 Gllmore vs. Drlscoll 401 Gilmore vs. Drlscoll 401 Godfrey vs. Humphrey 49 Godfrey vs. White 354 Goebel vs. Hough 154 Goff vs. Anderson 63 Gold vs. Ryan 94 Goldthwalte vs. Janney 352 Gonel vs. Thompson 175 Goodard vs. Wlnchell 12 Gooding vs. Riley 28 Goodell vs. Boardman 112 Goodrich vs. Burbank 387 Goodwin vs. Goodwin 69 Gordon vs. George 185 Gore vs. Townsend 84 Goss vs. Froman 92 Goss vs. Froman 92 Granger vs. Granger 241 Granger vs. Granger 330 Grant vs. Kliglar 408 Grant vs. Chase 394 Grant vs. Duane 288 Graves vs. Smith 405 Gray vs. Holmes 437 Graydon vs. Graydon 244 Grayson vs. Tyler 327 Greeley vs. Scott 11« Green vs. Canaan 416 Green vs. Kellum 466 Green vs. Hewitt 816 Greene vs. Nunnemaoher 408 Greene vs. Greene 70 Greene vs. Reynolds 70 Greenough vs. Twiner 90 Greenwell vs. Heritage 283 Greenwood vs. Madox 108 Gregley vs. Jackson 436 Gregory vs. Bush 411 Grlffln vs. Knlsely 178 Griffin vs. Bixley 16 Grlffln vs. Bixley 1 Grenier vs. Klein 96 Grubb vs. Grubb 385 Gurney vs. Minneapolis Eleva- tor Co 477 Guest vs. Reynolds 399 Haeussler vs. Missouri Iron Co. 243 Hafer vs. Hafer 74 Hogeboom vs. Hall 241 Hageman vs. Hageman 329 Hagerty vs. Lee 398 Haggerty vs. Wagner 96 Hahn vs. Baker Lodge, etc 396 Hale vs. Hale 48O Hall vs. Stephens 344 Hall vs. McDuff 258 Hall vs. MoLeod 415 Hall vs. Wallace 233 Hall vs. Westcott 266 Hallett vs. Wylie I7v Hallet vs. Parker 73 Hamel vs. Corbln 270 Hamilton vs. Farrar 394 Hammerton vs. Stead 175 Hancock vs. Fleming 282 Hardage vs. Stroope 330 Handforth vs. Jackson 36 Hanford vs. McMaio 162 Haughery vs. Lee 178 Hanlon vs. Doherty 282 Hanaw vs. Bailey 212 Harber vs. Evans 403 Harber vs. Evans 403 Harber vs. Evans 406 Harbester's Estate 329 Harding vs. Jasper 415 Harding vs. Jasper 416 Harding vs. Alden 04 Hare vs. Murphy 275 Harrlman vs. Gray n Harriman vs. Gray 88 Harris vs. Frlnk 233 584 TABLES OF CASES CITED. Harris vs. Prink 234 Harrison vs. Parmer 178 Harlan vs. Emery 174 Harriot vs. Harriot 69 Harper vs. Ely 292 Harrer vs. Wallner 350 Hart vs. McCallum 96 Hart vs. Chalker 270 Hart vs. Burch 84 Hart vs. Burch 85 Hart vs. Burch 88 Hartwell vs. Armstrong 475 Harvey vs. Brlggs 229 Hasenritter vs. KirchhofEer 458 Haskett vs. Maxey 458 Haslem vs. Lockwood 23 Hastings vs. Dickinson 100 Hasty vs. Wheeler 134 Hatcher vs. Buford 84 Hatcher vs. Buford 94 Hatfield vs. Sueden 67 Haven vs. Wakefield 177 Hawkins vs. Hersey 31 Hayard vs. Kinney 240 Hayes vs. Livingston. 460 Hayden vs. Long 408 Hayner vs. Smith 218 Huyser vs. Chase 232 Hazen vs. Barnett 357 Heard vs. Fairbanks 19 Heartt \s. Kruger 405 Heath vs. Waters 353 Heflin vs. Bingham 21 Helms vs. Elliott 437 Hemingway vs. Scales 344 Hemitt vs. Cox 78 Hendrlx vs. State 420 Hendry vs. Benlisa 469 Hennessy vs. Patterson 327 Henry vs. Newburyport 408 Herrick vs. Graves IIJ Herrlck vs. Graves 115 Herman vs. Roberts 396 Herman vs. Clark 289 Herman vs. Clark 292 Herman vs. Roberts 397 Herron vs. Herron 17 Hettinger vs. Ames 13 Hlckey vs. M. C. R. R IB Hlckey vs. M. C. R. R 15 Hicks vs. Downing 181 Hight vs. Hall 66 Hlghstone vs. Burdette 456 Higglns vs. Kendall 259 Higglns vs. Senior 170 HUl vs. Cutting 384 Hlles vs. Fisher S46 Hlles vs. Fisher 347 Hlles vs. Fisher 347 Hiies vs. Fisher S4S Hiles vs. Fisher 34B Hlles vs. Fisher 349 Hllsendegen vs. Schelch 234 Hlnclifee vs. Shea 90 Hlnes vs. WlUcox ■. 209 Hlrth vs. Graham S Hlrth vs. Graham 21 Hlrth vs. Graham 19 Hiscock vs. Norton 259 Hitchens vs. Shaller 384 Hltz vs. Metropolitan Bank 65 Hoag vs. Place 392 Hockamp vs. Hagaman 94 Hackett vs. Watts 258 Hodgklns vs. Farrlngton 155 Hodgklns vs. Farrlngton 421 Hoffman vs. Kuhn 406 Hoffman vs. Armstrong IB Hogg vs. Heusley 87 Hogg vs. Water Co 408 Hogan vs. Manners 113 Hogsett vs. Ellis 176 Hoitt vs. Webb 112 Hollaway vs. HoUaway 109 Holden vs. Dunn 77 Holden vs. Dunn 78 Holden vs. Dunn 82 Holden vs. Lake Co 403 Holden vs. Garrett 292 HoUenbeck vs. McDonald 413 HoUenbeck vs. McDonald 413 Holley vs. Glover 96 HoUins vs. Demorest 397 Holdridge vs. Gillespie 288 Holmes vs. Turner Falls Co 265 Holnbeck vs. Wilson 110 Holsoman vs. Boiling Springs Bleaching Co 408 Holt vs. Wilson 344 Honzik vs. DelagUse 29 Hope vs. Brewer 336 Hopper vs. Barnes 307 Hopkins Academy vs. Dickinson. 467 Hornmel vs. Devlnney 172 Hovey vs. Nellls 315 Howard vs. Throckmorton 358 Howland vs. Coffin 185 Hubbard vs. Bell 410 Huffard vs. Gottberg 277 Hubbard vs. Shaw IS! Huebschman vs. MoHenry 30 Hughes vs. Anderson tU tabijES of cases cited. 585 Hughes vs. Allen 353 Hughes vs. Windpfennlg 227 Hulbert vs. Clark 295 HufC vs. Winona 415 Hulett vs. Inlow 344 Hunt vs. Comatock 178 Hunt vs. Kingston 430 Hunt vs. Kingston 431 Hunt vs. Danforth 186 Huntington vs. Parkhurst 233 Huntington vs. Knox....- 170 Huntington vs. Parkhurst 236 Hunklns vs. Hunkins SI Hurd vs. Cushlng 61 Hurst vs. Rodney 185 Hussman vs. Durham 479 Huston vs. Bybee 408 Huston vs. Bybee 408 Huston vs. Bybee 409 Hutohlns vs. Kimball 61 Huxley vs. Rice 371 Icard vs. Davis 171 Illinois Central R. Co. vs. Houghton 455 Illinois C. R. Co. vs. Chicago.... 477 Ingalls vs. Hobbs 209 Ingram vs. Little 189 International Trust Co. vs. Schu- man 218 Investors' Mtg. Co. vs. Loyd... 124 Irwin vs. Phillips 409 Izard vs. Badlne 358 Jackson vs. Moncrief 178 Jackson vs. Delacroix 178 Jackson vs. Klsselbrack 178 Jackson vs. Titus 189 Jackson vs. RounesviUe 23 Jackson vs. Housell 50 Jackson vs. Brown 325 Jacobs' Appeal 499 Jacobs vs. Miller 345 Jeffers vs. Jeffers 407 Jeffiery vs. Hursh 254 Jennings vs. McComb 168 Jennlson vs. Hapgood 78 Jewett vs. Tucker 293 Jiggltts vs. Jlggltts 93 Jenkins vs. Eldredge 177 Johnson vs. Plume 72 Johnson vs. Ch., P. & O. R. Co.. 410 Johnson vs. Zink 284 Jones vs. Wagner 402 Jones vs. Van Bochove 395 Jones vs. Smith 278 Jones vs. Morris 184 Jordan vs. Clark 94 Jourdan vs. Haran 84 Joyce vs. Conlln 397 Joyce vs. J. I. Case Threshing Machine Co 119 Kabley vs. Worcester Gas Co 177 Kaedlng vs. Joachlmstal 123 Kaiser vs. New Orleans 154 Kansas City Land Co. vs. Hill... 314 Kansas Central R. R. Co. vs. Al- len 477 Karchner vs. Hay 239 Keating vs. Springer 203 Keating vs. Springer 213 Keating vs. Springer 213 Keating vs. Springer 398 Keats vs. Hugo 398 Keiper vs. Klein 398 Keller vs. Ashford 275 Kellett vs. Sheppard 305 Kelley vs. Ohio Oil Co 10 Kelley vs. Ohio Oil Co 25 Kelley Case 415 Contra. Kelly vs. Mills 292 Kelly vs. Kelly 284 Kennard vs. Kennard 317 Kennedy vs. Burnap 400 Kerr vs. Lunsford 501 Kew vs. Trainer 219 Kler vs. Peterson i Kiersted vs. Orange, etc., R. B. Co 164 KilUmore vs. Hewlett 20 Kimball vs. Cross 177 Kinnalrd vs. Standard Oil Co... 410 King vs. Welborn 124 King vs. Reynolds 218 King vs. Merritt 97 King vs. Merritt 88 King vs. Welborn 112 King vs. Brigham 454 King vs. Bushnell 72 King vs. Southern P. Co 183 Kingsley vs. Gouldsborough Land Imp. Co 390 Kingsley vs. Gouldsborough Land Imp. Co 412 Kingsley vs. MoFarland 34 Kiplinger vs. Green 238 Kitchen vs. Burgwen 109 Kltterlln vs. Milwaukee Mechan- ics' Mut. Ins. Co 124 Kittle vs. Van Dyke 7! Klesples vs. McKenzie 235 Kern vs. Myll 209 586 TABLES OF CASES CITED. Kline vs. McLaln 210 Knapp vs. Jones 136 Knapp vs. Windsor 344 Knapp vs. Connecticut Mutual Ldfe Ins. Co 275 Kneeland vs. Schmidt 226 Knight vs. Mahoney 245 Knight vs. Morrison 469 Knight vs. Knight 260 Knight vs. Crockford 169 Knighton vs. Curry 282 Knoedler vs. Glaenzer 461 Knox's Appeal 504 Kohl vs. U. S 476 KonvaJinka vs. Schlegel 98 Kopp vs. Herman 455 Kraut vs. Crawford 465 Kruger vs. Le Blanc 414 Kumpe vs. Coons S15 Lahoree vs. Laboree 70 I>add vs. Anderson 290 Ladue vs. D. & M. R. R 271 Lakin vs. Dakin 92 Lamb vs. Pierce 291 Lambert vs. Weber 286 Lampman vs. Milks 391 Langhran vs. Smith 232 Langhran vs. Smith.. 236 Lampman vs. Van Alstjrae 455 Lampman vs. Van Alstyne 456 Larkin vs. Avery 173 Larmour vs. Rich 314 Larrowe vs. Beam 80 La Sala vs. Holbrook 402 Lash vs. Lash 350 Lattimer vs. Lovett 479 Lathrop vs. Froster 90 Law vs. Butler 124 Law vs. Butler 260 Lawrence Estate 337 Lawrence vs. Fox 275 Larson vs. Railroad Co 402 Lawton vs. Rivers 412 Lee vs. Timken 102 Lee vs. Fletcher 268 Lee vs. Fletcher 483 Lee vs. Mosley 122 Lehndorf vs. Cope 320 Lehndorf vs. Cape 64 Leiferman vs. Osten 203 Lemon vs. Graham 50 Leonard vs. Armstrong 210 Leonard vs. Claugh 28 Leonard vs. Braswell 440 Leonard vs. Barr a6 Leonard vs. Meaford 21 L'Btourneau vs. Henquenet SIS L'Etourneau vs. Henquenet 327 Lewis' Appeal 3aO Life Ins. Co. vs. Cronk U Llllibridge vs. Lackawana Coal Company 6 Ltndley vs. Cromble 471 List vs. Hornbrook 406 List vs. Hornbrook 406 Little vs. Martin 175 Livingston vs. Hudson 479 Livingston vs. Mayor 415 Lindsay vs. Cooper 461 Locke vs. Alexander 164 Logan vs. Stogdale 389 Lord vs. Morris 295 Ixjrman vs. Benson 13 Low vs. Pew 273 Low vs. Streeter 399 Lowber vs. Connit 458 Low vs. Turpie 510 Lozo vs. Sutherland 119 Lutz vs. Sinthicum 164 Luntz vs. Greve 67 Lyon vs. Morgan 460 Macdonough vs. Starbird 36 Madson vs. Madson 91 Mahan vs. Brown 399 Mahoney vs. Mahoney %9 Main vs. Feathers 185 Maine vs. Cumston 404 Mallard vs. Bank 122 Malloney vs. Horan SO Mandel vs. McClane 78 Mandel vs. MeClave 84 Mandelbaum vs. McDonell 48 Mandelbaum vs. McDonell 336 Manderbach vs. Bethany Orphan Home 387 Mannerbeck's Estate 330 Margarum vs. Christie Orange Company 257 Markoe vs. Wakeman 354 Marshall vs. Ferguson 19 Marshall vs. Mellon 133 Marshall vs. Rugg 221 Marshall vs. Thompson £6 Marsh vs. Colby 417 Martin vs. Martin 260 Martin vs. O'Connor 182 Martin vs. Tyler 478 Martin vs. Martin 89 Martin vs. Martin M. Marvin vs. Mining Co 402 Massey vs. Westcott 292 Mason vs. Ammon 330 TABLES OF OASES CITED. 587 Matthews vs. Dixey 404 Matthews vs. Dixey 406 Mathewson vs. Hoffman 409 Mattlson vs. Marks 283 Maxwell vs. Wilmington Dental Company 278 Maynard vs. Vinton 506 Mayof vs. Newhoff 402 Mayor vs. Mable 218 Mayor of Congleton vs. Pattlson 185 Magrara vs. Little 189 Mekes vs. Lake 172 Meacham vs. Bunting 65 Meacham vs. Bunting 452 Mee vs. Benedict 419 Meigs vs. Dibble 118 Meister vs. Moore 61 Melvln vs. Whiting 393 Mercantile Trust Co. vs. Mis- souri, K. & T. R. Co 294 Mercantile Bank vs. Ballard 313 Mercantile Bank of N. Y. vs. Bal- lard 317 Merrifield vs. Worcester 11 Merrlfleld vs. Worcester 407 Merrifield vs. City of Worcester. 407 Merritt vs. Brinkerhoff 407 Merrltt vs. Bartholiok 277 Mertz vs. Berry 121 Mertz vs. Berry 121 Mich. State Bank vs. Hastings.. 238 Mlddleditch vs. Williams 606 Middlebrook vs. Corwin 22 Middlemore vs. Goodale 185 Mifflin's Appeal 337 Miller vs. McCardell 222 Miller vs. Waddingham 34 Miller vs. Farmers 93 Miller vs. Miller 347 Miller vs. Davis 447 Miller vs. Zufall 10 Miller vs. Zufall 19 Miller vs. Zufall 21 Mills vs. Davison 337 Milton vs. Colby 34 Mlnning vs. Batdorff 318 Mitchell vs. The Mayor, etc 401 Mitchell vs. Selpel 38£ Mitchell vs. Seipel 390 Mitchell vs. Winslow 273 Moellerlng vs. EJvans 400 Moffltt vs. Lytle 397 Montgomery vs. Montgomery — 436 Montgomery vs. Masonic Hall... 401 Mooney vs. Byrne 266 Moore vs. Kent 94 Moore vs. Weber 218 Moreley vs. Hoyt 26 Morgan vs. Meuth 393 Morgan vs. Meuth 394 Morgan vs. Powell 178 Morrill vs. Maokman 383 Morris vs. McCarty 344 Morris vs. Davis 355 Morrison vs. Watson 119 Morrison vs. Bucksport 411 Morrison vs. Sessions Estate 428 Mosely vs. Marshall 130 Motley vs. Motley 85 Motley vs. Motley 91 Moulton vs. Cornish 296 Mounce vs. Byars 258 Moyer vs. Drummond 109 Moyer vs. Drummond 119 Mullaney vs. Duffy 462 Mullen vs. Strieker 398 Mullens vs. Looke 110 Murray vs. Murray 84 Murchie vs. Gates 410 Musch vs. Burkhart 16 Musch vs. Burkhart 16 Myers vs. Vanderbelt 504 Myers vs. Dunn 412 McArthur vs. Scott S12 McArthur vs. Scott 315 McCarty vs. Woodstock Iron Co. 532 McClanahan vs. Porter 88 McClanahan vs. Porter 92 McClintock's Appeal 10 MoClintock's Appeal , 20 McClure vs. Herring 164 McClure vs. Fairfield 81 McConnell vs. Blood 33 MteConnel vs. Konepel 366 McCreery vs. Davis 95 McCurdy vs. Canning 348 McCurdy vs. Canning 349 McDonald vs. Black 269 MoFarlane vs. Williams 168 MoGinnis vs. Kempsey 501 McGonigle vs. Atchison 4 McGaunt vs. Wilbur 178 McGrath vs. Boston 178 Mcllhinny vs. Mollhinny 330 Mclntyre vs. Costello 76 McKee vs. Wilcox 63 McKee vs. Wilcox 118 McKelvey vs. McKelvey 102 McKenzie vs. Lampley 17 McLanahan vs. Grlffln 93 McLean vs. Rookey 137 McLeod vs. Tarrant 344 588 TABLES OF CASES CITED. MoMahon vs. Gray 84 MoMahon vs. Gray 85 McMahon vs. Gray 86 McMillan vs. Blssel 254 McNeer vs. McNeer 64 McNeer vs. McNeer 65 McNeil vs. Kendall 182 McQuie vs. Peay 258 McQuillen vs. Hatton 475 McRoberts vs. McArthur 448 McSloy vs. Ryan 213 McTigue vs. McTigue 63 McWilliams vs. Ross 433 McWhooter & Baldwin vs. Mc- Mahon 168 Nash vs. Simpson 245 Nashville Trust Co. vs. Smythe. 260 Nashville Trust Co. vs. Smythe.. 2T7 Naylor vs. Minock 348 Naylor vs. Minock 849 Nebraska vs. Iowa 465 Neely vs. Hosklns 241 Negus vs. Becker 406 Neilson vs. Bishop 319 New York vs. Law 387 New vs. Wlieaton 291 Newton vs. McKay 189 Newton vs. McKay 264 Newton vs. McKay 489 New Vienna Bank vs. Johnson.. 258 Nichols vs. Eaton 244 NicoU vs. N. T. & Brie R. R. Co. 307 Noke vs. Awder 185 Nlgro vs. Hatch 36 North vs. Philhrook i... 48 Norman vs. Wells 186 Nowlin vs. Whipple 419 Noyes vs. Southworth 507 Noyes vs. Hemphill 396 Nunnelly vs. Southern Iron Co.. 384 O'Brien vs. Kasterer 32 Ocean Grove Ass'n vs. Asbury Park 10 Ocean Grove Camp Meeting As- sociation vs. Asbury Park 410 Offutt vs. Scott 353 Olcott vs. Thompson 397 Olcott vs. Fond du lAO Co 476 Old Colony R. Co. vs. Pramlng- ham Water Co 476 Oliver vs. Pullman 455 Oliver vs. Snowden 112 Olmstead vs. Niels 21 Olney vs. Hull 313 Orr vs. Shraft UO Orr vs. Shraft U.3 Osgood vs. Osgood 287 Osgood vs. Abbott 246 Outland vs. Bowen 323 Overturf vs. Dungan 3 Owen vs. Slatter 91 Owen vs. Field 385 Owens vs. Lewis 21 Oyster vs. Oyster 330 Paine vs. Chandler 388 Paine vs. Chandler 389 Paine vs. Chandler 389 Paldi vs. Paldi 442 Palmer vs. Edwards 181 Palms vs. Palms 318 Poull vs. Mockley 387 Parkham vs. Thompson 18 Parker vs. Beasley 287 Parker vs. Beasley 287 Parker vs. King 106 Parker vs. Parker 242 Parker vs. Foote 398 Parker vs. Randolph 277 Parker vs. Randolph 277 Parks vs. Hazelrigg 162 Patterson vs. Rabb — 279 Paul vs. Frierson 311. Payne vs. Becker 85 Pea vs. Pea 38 Pearsall vs. Post 393 Pearson vs. Carlton 359 Peck vs. Rees 483 Peck vs. Sherwood 130 Peebles vs. Taylor 479 Peet vs. Peet 61 Pence vs. Arbuckle 190 Pendergast vs. Heekin 113 PenhoUow vs. Dwight 18 Pennington vs. Pennington 240 Pennington vs. Pennington 320 Penniman vs. Hartshorn 169 Penny vs. Croul 337 People vs. Gillls 177 People's Ice Co. vs. Excelsior 13 People vs. Jackson 413 People vs. Davidson <■ 415 Pepper vs. Pepper 252 Perin vs. Meglbben 79 Perkins vs. Gumbel 277 Peugh vs. Davis 288 Phelan vs. Olney 277 Phelps vs. Phelps 73 Phelps vs. Nowlen 399 Phillips vs. Stanch 124 Phipps vs. Acton 114 Pickering vs. Moore 23 Pierce vs. Cleland 165 TABLES OF CASES CITED, 589 Pierce vs. deland 419 Pierce vs. Selleck 413 Pierce vs. Keator 384 Plerson vs. Hammond 468 Plggot vs. Mason 185 Pike vs. Robertson 451 Plngree vs. McDuffle S91 Pittsburg, W. & Ky. Ry, Co. vs. Iron Works 475 Pluck vs. Dlgges 181 Plimpton vs. Farmers' Ins. Co.. 269 Plummer vs. Hillside Iron Co 9 Plumraer vs. Russell 162 Plympton vs. Boston Dispensary 130 Poignand vs. Smith 264 Pollock vs. Maison 295 Pond vs. Kimball 119 Pool vs. Lewis 408 Poole vs. Bently 178 Porter vs. Perkins 3BT Porter vs. Wheeler 462 Porter vs. Woodhouse 483 Porter vs. TuU 210 Post vs. Kearney 182 Potts vs. Plaister 287 Pound vs. HoUis 154 Powers vs. Mastln 273 Powers vs. Harlow 413 Pratt vs. Tefit 99 Pray vs. Stebbins 347 Preble vs. Maine C. R. Co 454 Preble vs. Reed 390 Prentice vs. Geiger 408 Preston vs. Ryan 18 Preston vs. Brant 314 Prey vs. Stanley 244 Price vs. Price 68 Price vs. Gover 253 Price vs. Hobbs 92 Priest vs. Chouteau 354 Proctor vs. Bigelow 97 Proprietor, etc., vs. Permit 50 Prutsman vs. Baker 483 Pulling vs. Pulling 82 Estate of Pulling 72 Purner vs. Plercy 18 Pynehon vs. Stearns 134 Qulgley vs. DeHaas 164 Railroad Co. vs. Groh 455 Railroad Co. vs. Groh 456 R. R. Co. vs. Schmoele 218 Ramsden vs. Dyson 461 Rasholt vs. Mehns 122 Raynor vs. Lee 85 Kead vs. Leads 382 Rector vs. Waugh 50 Reed vs. Marble 879 Reid vs. N. W. R. Co 468 Relse vs. Bnos 386 Reise vs. Enos 387 Reno Smelting Co. vs. Stevenson 409 Reske vs. Reske 114 Reynolds vs. Reynolds 92 Rhea vs. Bagley 441 Rhodes vs. McCormick 113 Rice vs. Rudd U2 Richard vs. Knight 17 Richards vs. Carrie 479 Rickenbacker vs. Zimmerman 441 Rlckett vs. Dowell 4 Ridgway vs. Masting 93 Ridgeway Stone Co. vs. Way.. 27 Ridgeway Stone Co. vs. Way.. 30 Riedler vs. Fish 162 RIggs vs. Palmer 439 RIggs vs. Sterling 106 RIggs vs. Bell 17f Riley vs. Starr 254 Riley vs. Boston Water Power Company 24 Ritchie vs. Kansas, N. & D. !Ry. Company 240 Ritger vs. Parker 386 Roan vs. Holmes 89 Roan vs. Holmes 93 Roane vs. Baker 290 Roane vs. Holllngshead 507 Robertson vs. Stevens 62 Robertson vs. Baker 354 Robbins vs. Barron 479 Robinson vs. Baker 106 Robinson vs. Vancleave 42 Kobinson vs. Vancleave 288 Robinson vs. Clapp 15 Robinson vs. Clapp 16 Robinson vs. Clapp 398 Robinson vs. Leach 120 Robinson Bank vs. Miller 352 Robinson's Appeal 850 Robbins vs. Mastellar 260 Roche vs. Waters ISO Re Rochester 293 Roe vs. Havley 185 Rogers vs. Brokaw 28 Rogers vs. Barnes 298 Rogers vs. Sinlshelmer 405 Root vs. Wadhams 413 Root vs. Bradley 286 Ross vs. Thompson 414 Boss vs. Henderson 353 Rose vs. Hawley 391 Rose vs. Watson 376 590 TABLES OF CASES CITED. Rough vs. Warner 17 Rouse Est. vs. Directors of Poor. 64 Routree vs. Renard 109 Rowley vs. Stray 430 Royal vs. Aultman-Taylor Co... 243 Ruoh vs. Rock Island 243 Rumsey V8. N. T. & N. E. R. Co. 408 Russell vs. IFabyan 229 Russell vs. Fabyan 230 Russell vs. McCall 353 Russell's Ex. vs. Moose's Heirs. 172 Ryan vs. Andrews 435 Ryan vs. Martin 288 Eager vs. Galloway 319 Sager vs. Galloway 320 Salem Natl. Bank vs. White 85 Sammon vs. Wood 125 Sampson V3. Easterby 185 Sanders vs. McMillan 88 Sanders vs. McMillan 91 Sanderlin vs. Baxter 391 Sargent vs. Webster 164 Sawyer vs. Twiss 23 Saxton vs. Webber 316 Saxton vs. Hitchcock 256 Sayers vs. Hoskinson 132 Scales vs. Scales 94 Scantlin vs. Allison 358 Scharman vs. Scharman 461 Schaefer vs. Marthaler 10 Schier vs. Eldridge 130 Schile vs. Brokhahus 404 Schilling vs. Rominger 409 Schmalzried vs. White 208 Schmidt vs. Zahrandt 290 Schneider vs. Norris 1S9 Schofield vs. Walker 506 School Dist. No. 11 vs. Batsche.. 22S Schuch vs. Hilsendegen 234 Contra. Schuelly vs. Schuelly 83 Schulenberg vs. Harriman S4S Schultz vs. Byers 402 Schuyler vs. Hanna 317 Scofleld vs. Olcott 317 Scofield vs. Olcott 317 Scott vs. Hancock 78 Scott vs. West 319 Scott vs. Young Men's Assn 378 Scott vs. McAlpine 164 Scovlll vs. MoMahon 242 In re Seager Elstate 80 Searle vs. Lead 278 Seibert vs. Todd 96 Sexton vs. Breese 17 Shaugnessey vs. Leary 396 Shaw vs. Kirby 114 Shaw vs. Shaw 75 Shaw vs. Hearsey 344 Shaw vs. Famsworth 177 Shaw vs. Famsworth 178 Shearer vs. Banger 85 Shell vs. Duncan US Shellenberger vs. Ransom 439 Shelley's Case 327 Shelton vs. Orr 119 Shelton vs. Codman 185 Sherod vs. Ewell 83 Shields vs. Lozier 285 Shoemaker vs. Shoemaker 390 Shortall vs. Washington Ice Co.. 13 Stelz vs. Shreck 350 Simms vs. Hervey 189 Simpson vs. Pearson 347 Simpson vs. Ferguson 287 Sinclair vs. Comstock 416 Sioux City vs. Singer 390 Sisson vs. Donnelly 48 Skinner vs. Wilder 15 Sloan vs. Williams 94 Slooum vs. Seymour 10 Slocum vs. Seymour 19 Blingerland vs. Sherer 295 Small vs. Small 98 Small vs. Small 99 Swearingen vs. Lahner 295 Smeberg vs. Cunningham 454 Smiley vs. Wright 91 Smith vs. Det. B. & L. Assn 220 Smith vs. Arthur 459 Smith vs. Barrie 241 Smith vs. Barrie 243 Smith Lead Cas 417 Smith Lead Cas 442 Smith's Lead Cas 1S5 Smith vs. West 312 Smith vs. West 317 Smith vs. Austin 288 Smith vs. Wooding 175 Smith vs. Lock 416 Smith vs. Jewett 138 Smith vs. Hamilton 463 Smith vs. Hitchcock 453 Smith vs. Roberts 282 Smith vs. Price 15 Smith vs. Mohr 277 Smith vs. Youmans 409 Smith vs. Smith 68 Snell vs. Levitt 394 Soderberg vs. King 298 Sohier vs. Trinity Church 23 Contra. Southwlck vs. Ellison 22 Sparger vs. Cumpton 106 TABLES OF CASES CITED. 591 Sparger vs. Cumpton 106 Sparrow vs. Hovey 450 Sparrow vs. Pond 14 Spencer vs. Gelssmian 118 Spencer's Case 185 Splelman vs. Kliest 171 Squire vs. Ford 212 Staokpole vs. Healy 413 St. Paul Furnltura Co. vs. Sauer. 31 St. Joseph & St. L. R. Co. vs. St. Louis, I., M. & L. R. Co 182 St. Joseph & St. L,. R. Co. vs. St. Louis, L, M. & L. R. Co 222 Stael vs. Wilbur 17 Stamm vs. Bostwlclc 425 Stamm vs. Bostwlck 438 Strange vs. Durham 456 Stantons vs. Thompson 280 Stames vs. Hill 320 Starnes vs. HIU 329 Slegel vs. Lauer 307 Sternberg vs. Larklns 353 Sterling vs. Jackson 418 Stern vs. Lee 107 Stem vs. Lee 112 Stern vs. I^ee 118 Stern vs. Lee 118 Stevens vs. Rose 131 Stevenson vs. Wallace 400 Stewart vs. Wheeling & L. E. R. R. Co 283 Stewart vs. Wheeling 300 Stewart vs. Doughty 18 Stewart vs. Ross 64 Stewart vs. Mackey 124 Stillman vs. Flenniken 28 Stinneia vs. Little 164 StuU vs. Rich Patch Iron Co 447 Stone vs. Darnell 121 Stone vs. Darnell 120 Stone vs. Welling 293 Storrs vs. Storrs 127 Stowell vs. Lincoln 409 Strong vs. Doyle 23 Stroup vs. Stroup 73 Contra. Stuart First Natl. vs. Holllngsworth 114 Stubblngs vs. Bvanston 200 Stubblngs vs. Evanston 211 Stults vs. Sales 110 Stuyvesant vs. Woodruff 386 Stuyvesant vs. Woodruff 387 Sulzbacher vs. Dickie 154 Summit vs. Tount 247 Sumner vs. Darnell 241 Sumner vs. Seaton 462 Sun Fire Office vs. Clark 253 Sutherland vs. Sutherland 76 Swaine vs. Ferine 102 Swan vs. Munch 444 Swayne vs. Chase 117 Sweany vs. Mallory 91 Sweet vs. Cutts 10 Swetland vs. Swetland 254 S wetland vs. Swetland 254 Swift vs. Calnan 404 Taft vs. Brewster 164 Talama vs. Spitzmiller 232 Talbot vs. Hudson 475 Talcott vs. Peterson 267 Tampa Water Wks. Co. vs. Cllne 410 Tarrant vs. Swain 119 Tatem vs. Chaplen 185 Taylor vs. Burnsides 448 Taylor vs. Burnsides 449 Taylor vs. Millard 356 Taylor vs. Millard 357 Taylor vs. Millard 387 Taylor vs. Fickas 410 Taylor vs. Fickas 411 Taylor vs. Horde 442 Taylor vs. Hart 211 Taylor vs. Boulware 398 Taylor vs. Mason 248 Taylor vs. Taylor 101 Taylor Land and Tenn 143 Templeton vs. Twitty 63 Templeton vs. Twitty 64 Terrel vs. Frazier 21 Texas Land & Co. vs. Carroll.... 170 Thomas vs. Evans 130 Thompson vs. Christie 219 Thornburg vs. Wiggins 339 Thornburg vs. Wiggins 345 Thornburg vs. Wiggins 356 Thornburn vs. Doscher 99 Thornton vs. Trammell 241 Thurber vs. Townsend 65 Thurston vs. Maddox 119 Tibbetts vs. Home 30 Teffit vs. Munson 266 Tllden vs. Streeter 254 Tillman vs. Fuller 177 Titsworth vs. Stout 366 Timm vs. Bear 407 TIndell vs. Tindell 345 Tlnkham vs Jackson 392 Tioga Co. vs. South Creek Twp.. 436 Tippets vs. Walker 164 Todd vs. Oviatt 62 Tong vs. Marvin 66 Toomey vs. McLean 70 592 TABLES OF OASES CITED, Toomey vs. McLean 96 Tapla T8. Demartlnl 271 Towne vs. Butterfleld 233 Townsend vs. Hubbard 164 Tracy vs. Atherton 393 Traylor vs. Cabanne 168 Trent vs. Hunt 290 Tripp vs. Hasclg 17 Troman vs. Mahlman Ill Trombley vs. Humphrey 476 Trombley vs. Humphrey 476 Trombley vs. Auditor-General... 473 Trotter vs. Dobbs 120 Trowbridge vs. Cross 351 Truesdell vs. Lehman 48 Trull vs. Bigelow 291 Trumbull vs. Trumbull 329 Trustee of Poor vs. Pratt 96 Tucker vs. Adams 233 Tucker vs. Bass 164 Tucker vs. Tucker 85 Turner vs. Thompson 398 Turner vs. Wentworth 38 Turner Coal Co. vs. Glover 262 Turnpike Road vs. Railway Co... 478 Tuttle vs. Wilson 97 Tuttle vs. Burgett 273 Tyler vs. Cartwright 358 Tyler vs. Hammond 394 Ulbrlcht vs. Eufala Water Co... 407 Underbill vs. Saratoga R. R. Co.. 240 Unger vs. Lelter 77 Unger vs. Lelter 78 Union Mut. Life Ins. Co. vs. Han- ford 276 Union Mortgage Co. vs. Peters.. 283 Union Brewery Co. vs. Meier 85 United States vs. Peachy 402 U. S. vs. Jones 476 Vail vs. L. I. R. R. Co 306 Van Baalen vs. Cotney 291 Van Cleof vs. Boems 95 Vannest vs. Flemming 411 Vann vs. Marbury 278 Vann vs. Marbury 278 Veghte vs. Rarltan Co 395 Venerable vs. Wabash 96 Verner vs. Betz 268 Vernon vs. Smith 185 Verplanck vs. Wright 186 Vincent vs. Spooner 100 Vinton vs. Beamer 349 Vlnz vs. Beatty 175 Viser vs. Rice 189 Voorhees vs. McGlnnis 88 Vyoyan vs. Arthur 186 Wade vs. Jones 109 Wade vs. Donau Brewing Co SO Wager vs. Stone 263 Walte vs. O'Neil 210 Wallace vs. McCoUough 169 Wallace vs. Kimball 436 Wallace vs. Harris 125 Waldron vs. Toledo & Ann Ar- bor R. R. Co 241 Waif vs. Dozer 173 Walker vs. Schmidel 36 Walker vs. Cronin 399 Walsh vs. Usher 164 Walters vs. People 116 Ward vs. Ward 858 Ward vs. Ward 359 Ward vs. Pagin 210 Ware vs. Owens 353 Warren vs. Warren 285 Watson vs. Conrad 313 Warren vs. Chambers 466 Warren vs. Chambers 466 Warner vs. Bennett 239 Wassell vs. Tumah 104 Washington Ice Co. vs. Shortall. 13 Watklns vs. Peck ' 393 Wattles vs. S. Omaha Ice Co... 221 Watson vs. Wyman 278 Watson vs. Lion Brewing Co — 436 Weaver vs. Rush 85 Webster vs. Lowell 396 Webster vs. Wlggln 337 Webster vs. Peet 132 Weed vs. Lindsay 233 Weidersum vs. Naumann 4t9 Welch vs. Taylor 395 Weld vs. Tralp 177 Wellington vs. Janvein 244 Welsh vs. Poster 866 Welton vs. Dickon 475 Welton vs. Dickon 477 West Point Iron Co. vs. Reymert 408 Westmoreland Natural Gas Co. vs. Dewltt 10 Westmoreland & Cambria Nat- ural Gas Co. vs. DeWItt 220 Westmoreland Natural Gas Co. vs. DeWitt 10 Wharton vs. Stevens 411 Wheart vs. Cruser ; 54 Wheatly vs. Barker 54 Wheeler vs. Knltland 95 Wheeler vs. Wilder S97 Wheeler vs. Klrtland 82 Whitbeok vs. Cook 414 Whitcomb vs. Rodman 508 TABLES OP CASES CITED. 593 White vs. Howard 4 White • vs. Skinner 104 White vs. Downs 2B8 White vs. Fuller 141 White vs. Atlas Lumber Co 268 White vs. Atlas Lumber Co 268 White vs. Atlas Lumber Co 268 White vs. Atlas Lumber Co 269 Whiteside vs. Cooper 314 Whitney vs. Salter 127 Whitney vs. Salter 130 Whitney vs. Wheeler Cotton M'ls 409 Whittier vs. Cooheco Mfg. Co 396 Whitting vs. Ohlert 173 Whltting vs. Pittsburg Opera House Co 173 Weihl vs. Robertson 489 Wiggin vs. Perkins 316 Wiloox vs. Wheeler 49 Wilkins vs. French 270 Wilkins vs. Jewett 405 Wilkinson vs. Merrill 110 Wilkinson vs. Sherman 321 Williams vs. Williams 97 Williams vs. Clark 412 Williams vs. Williams 93 Williams vs. Williams 96 Williams vs. Morris 356 Williams vs. Kimball 440 Williams vs. Silliman 271 Williamson vs. Janes 133 Willis vs. Bellamy 164 Wilson vs. Hughes 10 Wilson vs. Hughes 480 Wilson ViS. New Bedford U Wilson vs. Cox 98 Wilson vs. Cookron 109 Wilson vs. Campbell 278 Wilson vs. Campbell 280 Wilson vs. White 315 Wilton vs. Mayberry 283 Winans vs. Wllkie 280 Winship vs. Pitts 134 Winters vs. Deturk 93 Winters vs. Deturk 96 Winters vs. Deturk 97 Witham vs. Perkins 63 Wltozniski vs. Everman 271 Wittenmeyer vs. Board of Ed... 39 Wood vs. Wood 94 Wood vs. Landl, T. S 181 Wood vs. Clarke 178 Wood vs. Robertson 816 S. P. Wood vs. Crocker 178 Woodbury vs. Short 466 Woodman vs. Pitman 13 Woodward-Holmes Co. vs. Nudd. 79 Woodward-Holmes Co. vs. Nudd. 79 Wright vs. Wright 90 Wright' vs. Wright 272 Wright vs. Trevisant 178 Wyckoff vs. Gardner 344 Wynkoop vs. Cowing 288 Tale vs. Leeley 21 Young vs. Young 273 Zoellner vs. Zoellner Ill