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 ' A treatise on the law of real property / 
 
 3 1924 018 826 978 
 
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Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018826978 
 
A TREATISE 
 
 ON THE 
 
 LAW OF REAL PROPERTY 
 
 WILLIAM F. W^LSH 
 
 PROFESSOR OF LAW IN NEW YORK UNIVERSITY 
 
 NEW YOEK 
 BAKEE, VOORHIS & CO. 
 
COPTBIGHT, 1915, 
 
 By WILLIAM F. WALSH. 
 
PREFACE. 
 
 The primary purpose of tMs treatise is to state the law 
 of real property as it is to-day in the simplest terms, and 
 to outline and explain it always in the light of the reasons 
 and principles which are the foundation of it. 
 
 The function of a treatise on law is entirely different from 
 that of a digest or cyclopaedia. Instead of being a mere 
 collaboration of decisions more or less conflicting, leaving 
 the lawyer or student using it at sea in a great mass of 
 confusing cases, the treatise should attempt, as far as its 
 scope will permit, an analysis of the cases in the light of 
 the fundamental principles .of the law and its historical 
 development, a reconciliation" of ' S^'parently conflicting 
 cases whenever possible, to the end that the true rule may 
 be arrived at, and in cases of conflicting rules which cannot 
 be reconciled, an honest attempt to determine which rule 
 should prevail. 
 
 The author is convinced that it is the duty of legal edu- 
 cators to put the results of their labor and research in 
 tangible form so that it may count for whatever it may be 
 worth in the orderly development of the law. This devel- 
 opment must come very largely through progress in legal 
 education, not only of students who will be the lawyers 
 and judges of to-morrow, but also of the lawyers and judges 
 of to-day, on whose shoulders rest the immediate burden 
 and responsibility. Legal education has only its beginning 
 in the law school. It is continued constantly throughout 
 the life of the progressive lawyer or judge. The results 
 of the research and thought of legal educators who give 
 their lives to a study of particular branches of the law in 
 a broad way, with relation not only to the past and present 
 but also to the future, cannot but be of vahxe to the bench 
 and bar in their progressive development of the law so that 
 
 [iii] 
 
iv Peefacb. 
 
 it may keep pace with modern social progress. Tlie busy 
 judge or lawyer has little or no opportunity to do work of 
 this kind. He is hard pressed with the necessity of dis- 
 posing of the immediate cases in hand, without surplus 
 time or strength for the exhausting work of research, the 
 study and analysis of the rapidly growing mass of cases, 
 and the comprehensive study of the entire field with refer- 
 ence to the future of the law as well as to its past and 
 present. 
 
 That the law has not been keeping step in its development 
 with the modern development of society generally is the 
 conviction of most persons who have studied the matter. 
 This finds its reflection in the tendency of the public to 
 distrust law and lawyers. A great deal has been done to 
 throw aside the empty forms and fictions of the past, but a 
 great deal remains to be done. If lawyers and judges can 
 be induced to discard legal fictions, to cast away obsolete 
 rules having no possible bearing on modern conditions, how- 
 ever material they may have been in feudal times, a great 
 step forward will be made. If they can be made to under- 
 stand that the principle of stare decisis, properly under- 
 stood, necessarily carries with it, not only the power, but 
 also the duty, of the courts to make the law fit modern needs 
 in a progressive way, throwing aside so much of it as is 
 obsolete or false, we will be on the direct road to the cor- 
 rection of most of the Aveaknesses of our legal system. In 
 addition, the courts should recognize frankly that it is their 
 duty to correct judicial errors which have crept into the 
 law. Certainly the principle of stare decisis does not call 
 for the perpetuation of error, quite the contrary. Of course, 
 where rules have become so established that a change by 
 judicial decision would affect the rights of persons who 
 may have relied on the law as laid down, the correction can 
 be made only by statute, but in most cases positive error 
 works positive mischief only and can be corrected by the 
 courts without affecting unjustly any intervening rights. 
 
 This treatise has been written in the spirit of the con- 
 victions above expressed. Its scope has necessarily pre- 
 
Peeface. V 
 
 vented anything in the nature of an exhaustive treatment 
 of the topics covered. The purpose has been to express and 
 make clear the fundamental principles of the ownership of 
 land and to discuss honestly and as fully as space will 
 permit such questions as remain unsettled under the cases, 
 and also, incidentally, to point out error, where error seems 
 to exist. 
 
 The author gladly gives credit to the legal writers and 
 authorities on whom he has always based his work as a 
 student and teacher as well as a writer. For that part of 
 the work devoted to the history of the law of real property 
 and the common law of England, special credit is due to 
 Digby's History of the Law of Eeal Property, and Williams 
 Eeal Property. Most of the lists of cases used as the basis 
 of the work were drawn from the American and English 
 Cyclopaedia of Law, Cyc, Washburn on Eeal Property, and 
 the admirable and more extensive works on real property 
 by Professor Tiffany and Professor Eeeves. These cases 
 were examined and the notes taken therefrom became the 
 basis of the text. Professor Gray's cases on property have 
 been the basis of the author's work as student and teacher, 
 and have been drawn from freely in this work. His work 
 nn Perpetuities, together with his cases on that topic, con- 
 stitute the basis of the chapter on Perpetuities. Special 
 credit is also due Professor Tiffany's comprehensive and 
 scholarly work on Landlord and Tenant. 
 
 Wm. F. Walsh. 
 New York University Law School. 
 November, 1915. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 Beai. and Peesonal Peopebtt. 
 
 A — Nature of Property and Ownership, 
 
 Seotiow 1. Property. 
 
 2. Ownership, Absolute and Limited. 
 
 8. Uses of the Term " Property." 
 
 4. Property, Corporeal and Incorporeal. 
 
 B — Distribution Between Real and Personal Property. 
 
 6. Things Seal and Things Personal. 
 
 6. Effect of the Feudal System. 
 
 7. Origin of the Terms " Eeal " and " PersonaL" 
 
 8. Things Annexed to Land. 
 
 9. Fixtures. 
 
 10. Soil or Minerals Severed from Land. 
 
 11. Growing Trees. 
 
 12. Trees; Sale Under Statute of Frauds. 
 
 13. Effect of Failure to Remove Trees in Time Specified. 
 
 14. Perennial Crops. 
 
 15. Annual Crops. 
 
 16. Growing Crops; When Treated as Fersonaltf. 
 
 17. Levy of Execution on Crops. 
 
 18. Effect on Crops of Sale Under Foreclosnre. 
 
 19. Water and Ice. 
 
 20. Manure. 
 
 21. Stock in Land Corporations. 
 
 22. Chattel Interests in Land. 
 
 CHAPTER n. 
 
 ^ATTTKE AND INCIDENTS OF OwNEESHIP OF LaND. 
 
 A — Mines. 
 
 Skction 23. Nature of Ownership in Mines. 
 
 24. Gold and Silver Mines. 
 
 25. Mining Olaima. 
 
 [vii] 
 
yiii Table op Contents. 
 
 B — Wild Animals. 
 
 Ekotion 26. Property in Wild Animals. 
 
 27. Fisli. 
 
 C — Border Trees. 
 
 28. Incidents of Ownership in Border Trees. 
 
 29. Right of Adjoining Owner. 
 
 30. Trees Growing Directly in the Line. 
 
 D — Emblements. 
 
 31. What Are Emblements. 
 
 32. The Tenancy Must Be of Uncertain Duration. 
 '13. The Tenant Must Have Planted or Saved the Crop. 
 
 34. The Tenancy Must Not be Terminated by the Tenant 
 
 35. Effect of Enforcement of Superior Title. 
 
 36. Right to Way-going Crop. 
 
 E — Fixtures. 
 
 37. Nature of Fixtures. 
 
 38. Fixtures Annexed by Owner in Fee. 
 
 39. What Amounts to Annexation. 
 
 40. Constructive Annexation. 
 
 41. Other Cases of Constructive Annexation. 
 
 42. Application of the Test of Intent. 
 
 43. Intent as Shown by Character of Annexation and Adaptability 
 
 for Use With the Land. 
 
 44. Specific Illustrative Cases — Machinery. 
 
 45. House Fixtures, Gas Fixtures, Furnaces, Eanges, Refrigerators, 
 
 Awnings, etc. 
 
 46. Annexation Under Contract of Conditional Sale or Chattel Mort- 
 
 gage. 
 
 47. Between Vendor Under Contract of Conditional Sale or Chattel 
 
 Mortgage and Prior Mortgage of Realty. 
 
 48. Same — ^As to Subsequent Purchasers and Mortgagees. 
 
 49. Same — Chattels not Annexed as Fixtures and Chattels Annexed 
 
 so as to Lose Their Identity. 
 
 50. Annexation Made by Trespasser or Licensee. 
 
 61. Questions Arising Between Vendor and Vendee, Mortgagor and 
 
 Mortgagee, Heir and Personal Representative. 
 
 62. Annexation by Tenant for Life or for Years — Fixtures Removable 
 
 and Not Removable. 
 
 63. Removable Fixtures — Are They Real or Personal Property! 
 
Table of Contents. ix 
 
 BEOTioH 64. Trade Fixtures, Agricultural Fixtures, and Fixtures for Domestic 
 Convenience. 
 56. Buildings. 
 
 56. When ]?enant May Remove Fixture. 
 
 57. Removal by Tenants for an Indefinite Term. 
 
 58. Eflfeot of New Lease Between Landlord and Tenant 
 69. Fixtures Annexed by Tenants for Life. 
 
 F— Waste. 
 
 60. Waste Defined. 
 
 61. Who May Be Held for Waste. 
 
 62. Trees and Timber. 
 
 63. Mines. 
 
 64. Cultivation and Use of the Land. 
 
 65. Buildings ; Changes and Improvements. 
 
 66. Permissive Waste. 
 
 67. Waste in Equity. 
 
 68. Ownership of Timber, Buildings, etc.. Wrongfully Severed. 
 
 CHAPTER III. 
 Feeehold Estates. 
 
 A — Development of Freehold Estates. 
 
 ^Eorian 69. Nature of Estates in Land. 
 
 70. Estates in Land Before the Norman Conquest. 
 
 71. Introduction of Feudalism by the Norman Conquest. 
 
 72. Nature and Incidents of the Feudal System. 
 
 73. Tenure. 
 
 74. Manors. 
 
 75. Creation and Transfer of Freehold Estates Under Feudal System. 
 
 76. Freehold Estates as Distinguished from Estates Less than Free- 
 
 hold. 
 
 77. Tenure in the United States. 
 
 B — Estates in Fee, 
 
 78. Estates in Fee Simple. 
 
 79. Base or Qualified Fees. 
 
 SO. Creation of Estates in Fee by Deed. 
 
 81. Exceptions to Foregoing Rule. 
 
 82. Creation of Estates in Fee by Will 
 
 83. Creation of Estates in Fee Under Modern Statutes. 
 
Table of Contents. 
 
 C — Estates in Fee Tail. 
 
 Seotion 84. Conditional Fee. 
 
 85. Origin of Estates in Fee TaM. 
 
 86. Nature and Kinds of Estates in Fee Tail. 
 
 87. Fee Tail Estates in Modern Times. 
 
 D — Estates for Life. 
 
 88. Nature of Life Estates. 
 
 89. Estates Pur Autre Vie. 
 
 CHAPTEE IV. 
 
 Do WEE. 
 
 A — Nature of Dower. 
 
 Section 90. What Bower is; — ^Historical Development. 
 
 91. Requisites of Dower. 
 
 B — Marriage as a Requisite. 
 
 02. Void and Voidable Marriages. 
 
 93. Validity — How Determined. 
 
 84. What Constitutes a Valid Marriage. 
 
 C — Seisin of the Husband. 
 
 95. What Constitutes Seisin. 
 
 96. Seisin in Fact and At Law. 
 
 97. Dower in Mortgaged Property. 
 
 98. Purchase Money Mortgages. 
 
 D — Estates to which Dower Attaches. 
 
 99. Dower in Equitable Estates, 
 
 100. Dower in Trust Estates in the United States. 
 
 101. Dower in Joint Estates. 
 
 102. Dower in Partnership Realty. 
 
 103. No Dower in Life Estates or Estates Pur Autre Vie. 
 
 104. Dower in Estates in Fee Tail. 
 
 105. Dower in Estates Upon Condition and Estates Upon Limitation. 
 
 106. Dower in Estates Upon Conditional Limitation. 
 
Table of Contents. a 
 
 E — The Inchoate Bight of Dower. 
 
 Section 107. Nature of the Inchoate Eight. 
 
 108. Eminent Domain — Effect on Inchoate Dower. 
 109 Release of Inchoate Dower by Wife. 
 
 110. Payment of Mortgage by Purchaser of Husband's Estate. 
 
 111. Separate Release to Husband's Grantee. 
 
 112. Dower Barred by Misconduct of Wife. 
 
 113. Effect of Divorce on Dower. 
 
 F — Jointures and Testamentary Provisions in Lieu of 
 Dower. 
 
 114. Jointures, Legal and Equitable. 
 
 115. Jointures and Agreements Barring Dower in the United States, 
 
 116. Testamentary Provisions in Lieu of Dower. 
 
 117. Election by Widow. 
 
 G— Dower After Death of Husband. 
 
 118. Consummate Dower. 
 
 119. Assignment of Dower. 
 
 120. Dower in Improvements Made by Heir or Grantee of Husband. 
 
 121. Dower After Assignment. 
 
 122. Widow's Quarantine. 
 
 CHAPEE V. 
 
 Estate et the Maeital Eight and Curtesy. 
 
 Section 123. Estate by the Marital Eight. 
 
 124. Nature of Curtesy. 
 
 125. Requisites of Curtesy. 
 
 126. Seisin of the Wife. 
 
 127. Birth of Issue. 
 
 128. Curtesy in Estates Tail, Conditional Fees, Estates Upon Limita- 
 
 tion and Conditional Limitation. 
 
 129. Curtesy in Equitable Estates. 
 
 130. Curtesy in Other Interests and Estates. 
 
 131. Curtesy as Affected by Married Woman's Acts. 
 
 CHAPTEE VL 
 Eights and Liabilities of Life Tenants. 
 
 Section 132. Life Tenant and Reversioner and Remainderman. 
 
 133. Apportionment of Rents. 
 
 134. Effect of Attempt to Convey Fee by Life Tenant, 
 
xii Table of Contents. 
 
 Section 135. Payment of Taxes. 
 
 136. Assessments for Permanent ImprovementB. 
 
 137. Insurance. 
 
 138 Payment of Interest on Mortgages and Other incumbianeea 
 
 CHAPTEE VII. 
 Landlord and Tenant — Estates Less than Eeeehold. 
 
 A — Tenancies for Years. 
 
 Sectioisi 139. Kinds of Estates less than Freehold. 
 
 140. Development of Estates Less Than Freehold. 
 
 141. Distinguished from Freehold Estates. 
 
 142. Relation of Landlord and Tenant, Essentials Thereof. 
 
 143. Tenancies for Years. 
 
 144. Distinction Between Tenancy and License — As Between Master 
 
 and Servant. 
 
 145. Leases for Advertising Purposes. 
 
 146. Contracts to Work Land for Share of Crops. 
 
 147. Contracts for Board and Lodging. 
 
 148. Form of Lease. 
 
 149. Renewal of Lease. 
 
 B — Tenancies from Year to Year, Month to Month, etc. 
 
 150. Nature and History. 
 
 161. Tenancies Created by Holding Over, etc. 
 
 162. Same — Created by Express Agreement. 
 
 153. Indefinite Tenancies Arising Under Void Lease for Te*r& 
 
 C — Tenancies at Will. 
 
 164. Nature and Charaeteristicb. 
 
 165. Creation of Tenancies at Will. 
 156. Termination of Estates at Will. 
 
 D — Tenancies at Sufferance. 
 
 167. Nature and Characteristics. 
 
 168. Tenancies at Sufferance Under Statute. 
 
 E — Covenants in Leasee. 
 
 159. Nature and Effect. 
 
 160. Implied Covenant of Quiet Enjoyment. 
 
Table op Contents. xiii 
 
 Section 161. Further Incidents of Covenant of Quiet Enjoyment— Covenant 
 of Power to Demise. 
 
 162. Damage for Breach of Covenant of Quiet Enjoyment. 
 
 163. Implied Covenant to Give Possession. 
 
 164. Implied Covenant to Repair. 
 
 165. Express Covenant to Repair. 
 
 166. No Implied Covenant of Fitness for Use. 
 
 167. Express Covenants — Covenant to Pay Rent — Action for Use and 
 
 Occupation. 
 
 168. Other Express Covenants. 
 
 F — Incidents of the Relation of Landlord and Tenant 
 Apart from Covenants Express or Implied. 
 
 169. Duty of Landlord to Pay Taxes, Assessments for Permanent Im- 
 
 provements, and to Make' Changes and Alterations Required by 
 Law. 
 
 170. Tenant Cannot Dispute Landlord's Title and Must Give Land- 
 
 lord Notice of Adverse Action. 
 
 171. Responsibility for Dangerous Condition of Premises to Third 
 
 Persons. 
 
 172. Premises Leased with Nuisance Thereon. 
 
 173. Effect of Covenant to Repair by Landlord. 
 
 O — Assignment and Suhletting. 
 
 174. Assignment and Subletting Distinguished. 
 
 175. Formal Requisites of Assignments and Subleases. 
 
 176. Effects of Assignment — Liabilities of Assignee. 
 
 177. Liability of Original Assignor. 
 
 178. Sublessor and Sublessee. 
 
 179. Restrictions Upon Assigning and Subletting. 
 
 180. Remedies for Breach of Condition Not to Assign or Sublet. 
 
 181. Transfer of the Reversion. 
 
 H — Suspension and Extinguishment of Bent — Evic- 
 tion. Taking hy Eminent Domain, Surrender, For- 
 feiture, Merger and Destruction of Leased Premises. 
 
 182. Eviction. 
 
 182a. Eviction by Act of the Landlord — Effect on Rent. 
 
 183. Eviction by Paramount Title. 
 
 184. Taking of Leasehold Premises by Eminent Domain. 
 
 185. Surrender — Effect on Rent. 
 
 186. Express Surrender. 
 
 187. Surrender by act or Operation of Law. 
 
xiv Table of Contents. 
 
 SEcmoif 188. Cases in which Surrender by Act or Opetation of Law Takes 
 
 Place. 
 188a. Express Provision Permitting Keletting. 
 
 189. Forfeiture for Breach of Condition. 
 
 190. Destruction of Leasehold Premises by Fire or Other Casualty. 
 ini. Mi.'^cellaneous Questions Arising Under Statutes Relating to 
 
 Destruction of Leased Premises. 
 191a. Destruction of Building when Tenant has no Interest in Land. 
 
 CHAPTEE VIII. 
 
 Equitable Estates — Uses and Teusts, 
 
 A — Uses Before the Statute of Uses. 
 
 Section 192. Nature and Origin of Equitable Estates. 
 
 193. Nature and Origin of Equitable Estates — ^Uses. 
 
 194. Creation and Incidents of Uses Before the Statute of Use*. 
 
 B — The Statute of Uses and Its Effect. 
 
 195. Nature and Purpose of the Statute. 
 
 196. Effect of the Statute of Uses— Trusts. 
 
 C— Trusts. 
 
 197. Equitable Estates After the Statute of Uses. 
 
 198. Express Trusts. 
 
 199. Creation of Express Trusts. 
 
 200. Statutory Changes AiTecting Express Trusts. 
 
 201. Implied Trusts— Resulting and Constructive 
 
 202. Constructive Trusts. 
 
 203. Purchase for Value Without Notice. 
 
 204. Further Incidents of Trusts. 
 
 CHAPTEE IX. 
 
 Joint Tenancies and Tenancies in Commow. 
 Section 205. Nature of Joint Tenancies. 
 
 206. The Individual Interest of Each Joint Tenant. 
 
 207. Tenants in Common. 
 
 208. Estates in Coparceny. 
 
 209. Partnership Estates. 
 
Table of Contents. xv 
 
 CHAPTER X. 
 
 Estates in Entibbtt. 
 
 Section 210. Nature of Estates in Entirety. 
 
 211. Effect of Statutes on Estate in Entirety. 
 
 212. Termination of th« Estate. 
 
 CHAPTEE XI. 
 Incidents of Co-owheeship. 
 
 Section 213. Conveyances by Metes and Bounds. 
 
 214. Ouster of One Cotenant by Another. 
 
 215. Liability of Tenant in Possession to Tenant Out of Possession 
 
 for Rents and Profits, Use and Occupation. 
 
 216. Liability Between Cotenants for Services, for Taxes, Interest on 
 
 Mortgages, and Other Carrying Charges, and for Repairs. 
 
 217. Improvements. 
 
 218. Waste Between Cotenants. 
 
 219. Purchase of Outstanding Title by Cotenant. 
 
 220. Voluntary Partition. 
 
 221. Involuntary Partition. 
 
 222. Parties to Action of Partition. 
 
 223. Judgment of Partition. 
 
 CHAPTEE XIL 
 
 Conditionai. Estates. 
 
 Section 224. Nature of Conditional Estates. 
 
 225. Creation of Conditional Estates. 
 
 226. The Right of Entry for Breach of Condition. 
 
 227. What Constitutes Breach of Condition. 
 
 228. Waiver of Breach of Condition. 
 
 229. Continuing Cause of Forfeiture. 
 
 230. License Permitting Breach of Condition. 
 
 231. Relief from Forfeiture in Equity. 
 
 232. Illegal and Impossible Conditions. 
 
 233. Illegal Conditions. 
 
 234. Estates Upon Limitation and Conditional Limitation. 
 
 235. Estates Upon Conditional Limitation. 
 
xvi Table op Contents. 
 
 CHAPTER XIIL 
 
 FuTUEE Estates. 
 
 Section 236. The Different Kinds of Future Estates. 
 
 237. Reversions. 
 
 238. Remainders. 
 
 239. Vested and Contingent Remainders. 
 
 240. Rules of Construction Applying to Deeds or Wills Creating 
 
 Remainders. 
 
 241. Vested and Contingent Remainders — Remainders to Unascer- 
 
 tained Persons. 
 
 242. Vested and Contingent Remainders — ^Remainders to a Class. 
 
 243. Remainders in the Alternative and Cross Remainders. 
 
 244. Destruction of Contingent Remainders by Failure to Vest Before 
 
 Destruction or Termination of Precedent Estate. 
 
 245. Remainders to Posthumous Children. 
 
 246. Transfer and Inheritance of Vested and Contingent Remainders. 
 
 247. The Present Law of Remainders. 
 
 248. The Rule in Shelley's Case. 
 
 249. The Rule in Shelley's Case in the United States. 
 
 250. Future Executory Estates; Executory Devises. 
 
 251. Executory Estates; Springing and Shifting Uses. 
 
 252. The Modern Law of Future Executory Estates. 
 
 CHAPTER XIV. 
 
 POWEES. 
 
 Section 253. Nature and Development of Powers. 
 
 254. Different Kinds of Powers. 
 
 255. Creation and Incidents of Powers. 
 
 256. Execution of Powers. 
 
 257. Defective Execution. 
 
 258. Revocation and Extinguishment of Powers. 
 
 CHAPTER XV. 
 
 The Rule Against Perpetuities. 
 
 Section 259. Nature and Object of the Rule. 
 
 260. Origin and Historical Development of the Rule. 
 
 261. Elements of the Rule: 
 
 (a) The Estate Must be Certain to Vest Within the Required 
 Period. 
 
Table of Coij^tents. xvii 
 
 Section 861. (b) Lives in Being. 
 
 (e) A Future Interest is Valid if it Must Vest Within 
 Twenty-one Years. 
 
 (d) The Period of Gestation is Always Added to the Period 
 
 of Suspension Allowed by the Rule. 
 
 (e) If the Future Interest Begins Within the Required Lim- 
 
 its it is Valid. 
 
 262. Interests Affected by the. Rule. 
 
 (a) Executory Interests. 
 
 (b) Remainders and Reversions. 
 
 (c) Possible Rights of Reverter and of Entry for Breach of 
 
 Condition. 
 
 (d) Equitable Estates. 
 
 (e) Personal Property. 
 
 263. Gifts to a Class. 
 
 264. Powers. 
 
 265. Charitable Trusts. 
 
 266. Accumulations. 
 
 CHAPTEE XVI. 
 
 Stattitoey Changes in Eule Against Perpetuities. 
 
 Section 267. General Nature of Changes. 
 
 268. Suspension of the Absolute Power of Alienation. 
 369. Suspension Caused by Future Executory Interests. 
 
 270. Suspension Caused by Powers. 
 
 271. Suspension Due to Trusts. 
 
 272. Principles of the Common Law Rule Apply Except as Modified 
 
 by statute. 
 
 273. TheMore Important Statutory Changes in Other States. 
 
 CHAPTEE XVII. 
 Easements and Profits. 
 
 Section 274. Nature and Characteristics. 
 
 275. Profits, or Profits a Prendre. 
 
 276. Easements in Gross. 
 
 277. Creation of Easements. 
 
 278. Creation of Easements by Express Grant or Reservation. 
 
 279. Reservations and Exceptions. 
 
 280. Ways of Necessity. 
 
 28L Easements Created by Implied Grant or Reservation. 
 282. Easements by Implied Grant; the More Important Classes of 
 Gases. 
 
xviii Table of Contents. 
 
 Section 283. Easementa Arising by Implied Reservation. 
 
 284. Creation of Easements by PresoriptioTi. 
 
 285. Nature of User Required to Create Easements by Prescription. 
 
 286. Natural Rights; Easements of Liglit and Air. 
 
 287. Percolating and Surface Waters. 
 
 288. Streams and Water Courses. 
 
 289. Riparian Rights in Tidal Waters and Navigable Streams. 
 
 290. Easements of Support. 
 
 291. Subjacent Support. 
 
 292. Party Walla. 
 
 293. Incidents of Party Wall Easements. 
 
 294. Ways. 
 
 295. Extinction of Easements, Servitudes and Profits. 
 
 296. Extinction of Easements by Execution of License. 
 
 297. Extinction of Easements by Abandonment. 
 
 298. Extinction of Easements by Adverse Obstruction. 
 
 299. Extinguishment by Union of Dominant and Servient Estates. 
 
 CHAPTEE XVIII. 
 
 Covenants Running with the Land. 
 
 Section 300. Nature and kinds. 
 
 301. Covenants Running with the Land at Law; Landlord and Tenant. 
 
 302. Covenants Affecting Easements and Servitudes. 
 
 303. Party Wall Covenants. 
 
 304. Covenants in Equity. 
 
 CHAPTEE XIX. 
 
 Licenses. 
 
 Section 305. Nature and Characteristics. 
 306. Revocation of Licenses. 
 
 CHAPTER XX. 
 
 Public Rights. 
 
 Section 307. Highways and Streets. 
 
 308. Rights of Owners of Land Used as Highway in Relation to 
 
 Rights of the Public. 
 
 309. Rights of Abutting Owners, Fee in Public. 
 
Table of Conteistts. six 
 
 BEOtion 310. Eight of Deviation in Public. 
 
 311. Creation of Highways and Streets, (a) Dedication; (b) Pre- 
 
 scription; (c) Condemnation Proceedings. 
 
 312. Extinction of Highways and Streets. 
 
 313. Public Rights of Navigation. 
 
 314. Rights of Fishing. 
 
 CHAPTEE XXI. 
 Deeds and Conveyances. 
 
 Seotioh 316. Common Law Conveyances of Title, (a) Livery of Seisin and 
 Grant; (b) Leases; (c) Deeds of Release; (d) Surrenders; 
 (e) Fines and Common Recoveries. 
 
 316. Conveyances Under the Statute of Uses. 
 
 317. The Modern Statutory Deeds. 
 
 318. Form and Requisites of Conveyances. 
 
 319. Names of Grantor and Grantee. 
 
 320. Granting and Habendum Clauses; Consideration. 
 
 321. Description of Land Conveyed; Boundaries. 
 
 322. Boundaries on Streams, Lakes, etc. 
 
 323. Boundaries on Streets and Highways. 
 
 324. Covenants for Title in Deeds. 
 
 325. How Covenants for Title Run with the Land. 
 
 326. Execution of Deeds; Signing and Sealing. 
 
 327. Delivery of Deeds. 
 
 328. Delivery in Escrow. 
 
 329. Acceptance by Grantee. 
 
 CHAPTER XXII. 
 
 Recoeding of Deeds and Conveyances. 
 
 Section 330. The Recording Acts; General Purpose and Effect. 
 
 331. Instruments that Must be Recorded. 
 
 332. What Constitutes Subsequent Purchaser Without Notice. 
 
 333. What Constitutes Purchaser for Value. ' 
 
 334. Instrument Must Appear in Chain of Title. 
 
 335. Recorded Instrument Must be Entitled to Record. 
 
 336. Defects in the Record. 
 
 337. Record is Notice to Subsequent Purchasers and Incumbrancew 
 
 Only. 
 
ss Table of Contents. 
 
 SECT£t>N 338. Purchaser With Notice from Purchaser for Value Without 
 Notice. 
 
 339. Subsequent Conveyances by a Purchaser with Notice. 
 
 340. Subsequent Liens of Judgments. 
 
 CHAPTEE XXIII. 
 
 Title by Adveese Possessiok. 
 
 BBeriON 341. Xatnre and Origin. 
 
 342. What Constitutes Adverse Possession. 
 
 343. Constructive Possession. 
 
 344. Tacking Possession of Succeeding Adverse Holders. 
 
 345. Disabilities. 
 
TABLE OF CASES. 
 
 Page 
 
 Abbey v. Wheeler 427, 439 
 
 Abbisa v. Burney. . .376, 511, EC^, 565 
 
 572, 576 
 
 Abbott V. Boaworth 163 
 
 Abbott V. Butler 684 
 
 Abbott V. Cottage City 741, 743 
 
 Abbott V. Cremer 24 
 
 Abbott T. Holway 4Q2, 534 
 
 Achorn v. Jaokaon 533 
 
 Ackerman v. Gorton 549 
 
 Ackerman v. Hunsiuker 814 
 
 Ackroyd v. Smith 617 
 
 Acton V. Blundell 658 
 
 Adair v. Lott 156, 207, 208 
 
 Adams v. Banderbeck 808 
 
 Adama v. Beekman 173, 175 
 
 Adams v. Betz 771 
 
 Adams v. Beyer 591 
 
 Adams v. Briggs Iron Co 30 
 
 Adama v. Bristol 427 
 
 Adams v. City of Cohoes. . .252, 258 
 
 Adama v. Conover 784 
 
 Adams v. Cowen 394 
 
 Adams v. Hill 161 
 
 Adams v. Marshall 636 
 
 Adams v. Pease 750, 752 
 
 Adams v. Boas 127, 128, 134 
 
 Adams v. Smith 18, 22 
 
 Adams v. Storey 185 
 
 Adama v. Walker 661 
 
 Adams Co. v. Interstate Bid. 
 
 Ass'n 63 
 
 Addison v. Flack 692 
 
 Adkins v. Holmes 148 
 
 Adler Co. v. Hellman 177 
 
 Adsit V. Adsit 193 
 
 Agate V. Lowenbein 96, 97 
 
 Agawam Canal Co. v. Edwards . . 772 
 
 [xxi] 
 
 Page 
 
 Abeam v. Steele 307 
 
 Ahrens v. Jones 393 
 
 /ikn:an v. Harsell 197 
 
 Akerly v. Vilaa 7S3 
 
 Akorly r. Wl He 301 
 
 Albany Co. Sav. B. v. McCarty.. 21+ 
 
 Albany's Case 557 
 
 Albriglit V. Cortright 753 
 
 Aldine Mfg. Co. v. Barnard 63 
 
 Aldricb v. Aldrich 384 
 
 Alexander v. Bauer 16 
 
 Alexander v. Hodges 467 
 
 Alexander v. Sully 441, 442 
 
 Allen V. Allen 402, 602, 779 
 
 Allen V. Culver 705 
 
 Allan V. Gomme 684 
 
 Allen V. Hooper 202, 204 
 
 Allen V. Howe 462 
 
 Allen V. Jackson 475 
 
 Allen V. Kersey 769, 771 
 
 Allen V. Pray 195 
 
 Allen V. Stevens 585 
 
 Allen r. Taylor 636, 639 
 
 Allen V. Trustees-, etc 494 
 
 Allea \ . Lyon 420 
 
 Ailing V. Cliatiield 194 
 
 AUia V. Moore 828 
 
 AUsmiller v. Freutcbnieht 199 
 
 Almataedt v. Bendiok 602 
 
 Alverson v. Randall 500 
 
 Am. Bk. Note Co. v. N. Y. Elev. 
 
 E. Co 646, 686 
 
 Am. Sugar E. Co. v. Francher. . . 398 
 
 Ambler v. Woodbridge 467 
 
 Amootta v. Catherioh 153 
 
 Ames V. Hilton 778 
 
 Amherst College v. Eich 394 
 
 Ammerman v. Dean 724 
 
xxa 
 
 Table of Cases. 
 
 Page 
 
 Amory T. Kannoffsky S32, 335 
 
 Amos T. Amoa - • • 504 
 
 Amsbry V. Hinds 749 
 
 Anderson v. Blood 391, 397 
 
 Anderson v Henderson 658 
 
 Anderson v. Prindle. . . 356, 259 
 
 Anderson v. Miller 99 
 
 Andrae v. Haseltine 680 
 
 Aaderson's Appeal 195 
 
 4£dr«ws V. Andrews 188, 584 
 
 Ardrews v. Nat. Sugar Eef. Co.. 622 
 
 Andrews v. Lincoln 585 
 
 Andrews v. Powers 72 
 
 Andrews v. Eue 771 
 
 Andrews v. Senter 451 
 
 Andrews v. St. L. Smelting, etc., 
 
 Co 782 
 
 4ngU3 V. Dalton 643, 644, 650 
 
 Anonymous Fitz Ab., etc ... . 87, 90 
 Anthracite Sav. Bank v. Lees.. . 504 
 
 Antoni v. Belknap 80, 83 
 
 Arbuckle v. Ward 653, 
 
 Archer's Case 521 
 
 Archer v. Salinas City 741 
 
 Arkon v. Chamberlain Co 740 
 
 Armstrong v. Rose 212, 213 
 
 Armstrong v. Wilson 91 
 
 Arnold v. Elmore 772 
 
 Arnold v. Fowler 21 
 
 Arnold v. Mundy 753 
 
 Arnold v. Stevens 789 
 
 Ashby V. Ashby 75, 79 
 
 Ashby V. Wilson 722 
 
 Ashcroft V. Eastern R. Co 623 
 
 624, 671 
 
 Ashley v. Ashley 653 
 
 Ashley v. Wolcott 603 
 
 Astor V. Hoyt 313 
 
 Aston V. Nolan 652. 675 
 
 Atkin V. Merrill 197, 198 
 
 Atkins v. Bordman 6S9 
 
 Atkinson v. Stewart 181 
 
 Atkinson v. Bowling 557 
 
 Atkinson v. Angert 182 
 
 Atkinson v. Baker 144 
 
 Atlantic Safe Deposit Co. v. Atl 
 
 City L. Co 48 
 
 Fags 
 
 Atlantic Mills v. Mason 696 
 
 Atlantic Dock Co. v. Leavitt... 725 
 
 763 
 
 Atty.-Gen. v Williams 689 
 
 Atty.-Gen. v. Revere Rubber Co., 643 
 
 Atty.-Gen, v. Met. R. Co 737 
 
 Atty.-Gen. v. Merrimack Mfg. Co. 454 
 
 Atty.-Gen. v. Farr 741, 743 
 
 Atwood V. Atwood 156 
 
 Atwood V. Arnold 175 
 
 Atwater v. Perkins 552 
 
 Atwater v. Russell 585 
 
 Auer V. Penn 340, 341 
 
 Aurora v. Fox 734 
 
 Austerberry v. Oldham 707, 724 
 
 Austin V. Austin 197 
 
 Austin V. Cambridgeport Parish. 451 
 
 458 
 
 Austin V. Dolbee 769 
 
 Austin V. Sawyer 19 
 
 Automarchi's Ex'r v. Russell. . 683 
 
 Averill v. Taylor 233 
 
 Avery v. Dougherty 782 
 
 Avery v. N. Y. C, etc., R. Co. 454, 621 
 
 Avery v. N. Y. C, etc., R 455 
 
 Aver V. Philadelphia, etc, Co. . . 811 
 
 812 
 
 Ayers v. Reidel 824 
 
 Ayres v. Probasco 765 
 
 Ayr V. Philadelphia Co 339 
 
 B. 
 
 Babb V. Perley 91, 202, 203, 205 
 
 Babbitt v. Day 167, 404 
 
 Babbitt V Gaither 165 
 
 Babcock v. Scoville 314 
 
 Eackenstoss v. Stahlen 20 
 
 Bacon v. Albany, etc., Co 353 
 
 Bacon v. Bronson 393 
 
 Bacon v. Fay 446 
 
 Bacon v. Van Schoonhoven 802 
 
 Badgar v. Holmes 424, 426 
 
 r^agley v, Columbus Southern R. 
 
 Co 21 
 
 Bailey v. Bailey 609 
 
 Bailey v. Brown 551 
 
 Bailey v. Carleton 821, 835 
 
Table or Cases. 
 
 XXlll 
 
 Page 
 
 Bailey v. Jamieson 733 
 
 Bailey v. Eichardson 703, 704 
 
 Bailie v. Eodway 702, 704 
 
 Bailey v. Stephens 613, 614 
 
 Eaird v. Jackson 432 
 
 Bakeman v. Talbot 684, 687 
 
 Balcer v. Baker 792, 793 
 
 Baker v. Plart 235, 615 
 
 Baker v. Jordan 20 
 
 Baker v. McClurg 79, 81 
 
 Baker v. Oakwood 819 
 
 Baker v. Woman's Chr. Temp. 
 
 Union 465, 474 
 
 Bald Eagle Valley R. Co. v. Nit- 
 
 tany Valley R. Co 722 
 
 Baldwin v. Brown 771 
 
 Baldwin v. Calkins 646 
 
 Baldwin v. Campfield 389 
 
 Baldwin v. Sager 809 
 
 Baldwin v. Walker 701 
 
 Ball V. Sohaffer 199 
 
 Ballard v. Demmon 627, 643, 654 
 
 Ballard v. Dyson 685, 686 
 
 Ballard ^. Child 787 
 
 Ballan v. Hill 443 
 
 Ballentine v. Poyner 92 
 
 Bally V. Wells 322, 700 
 
 Bambraugh v. Bambraugh 404 
 
 Bamway v. Cobb 60 
 
 Banford v. Turnley 656 
 
 Bangor v. Lansil 668 
 
 Bangor House Proprietary v. 
 
 Brown 778 
 
 Bank v. Evans 793 
 
 Bank v. Stanton 71 
 
 Banks v. School Directors 626 
 
 Banzer v. Banzer 415 
 
 Barker v. Cary 553 
 
 Barber v. Harris 416 
 
 Barbour v. De Forrest 588 
 
 Barclay v. Howell's Lessees.... 733 
 
 Barclay v. Wilcox 658, 663 
 
 Barker v. Barker 152, 209 
 
 Barker v. Pierce 513 
 
 Barker v. Richardson 654 
 
 Barkley v. McCue 332 
 
 Pace 
 
 Barnes v. Barnes 71 
 
 Barnes v. Light 819 
 
 Barnes v. Lloyd 694 
 
 Barnes v. Lynch 422 
 
 Barnes v. Waterbury 674 
 
 Barney v. McCarty 813 
 
 Barrel! v. Barrell 427 
 
 Barrett v. Failing 185 
 
 Barrie v. Smith 465, 477 
 
 Barrow v. Richard 718, 719 
 
 Barrows v. Sycamore 738 
 
 Barry v. Edlavitch 680 
 
 Barry v. Guild 782 
 
 Barry v. Hamburg-Bremen Fire 
 
 Ins. Co 319 
 
 Barthelemew v. Hamilton 67 
 
 Bartlett v. Bangor 744 
 
 Bartlett v. Farrington 782 
 
 Bartlett v. Harlow 421 
 
 Bartlett v. Haviland 76, 79 
 
 Bartlett v. Musliner 183 
 
 Bartlett v. Tinsley 156 
 
 Bashfield v. Empire St. Teleg. & 
 
 Telephone Co 736 
 
 Bassler v. Rewodlinski 402, 419 
 
 Bastow V. Cox 261 
 
 Batavia Mfg. Co. v. Newton 
 
 Water Co 706 
 
 Batchelder v. Brereton 764 
 
 Batchelder v. Hibbard 729 
 
 Batchelder v. Sturgis 78] 
 
 Balteman v. Hotchkin 92, 101 
 
 Bates V. Gillett 516 
 
 Bates V. Smith 658 
 
 Bates V. Virolet 767 
 
 Batterman v. Albright ... 19, 21, 23 
 
 42 
 
 Bauer v. Gottmanhausen 769 
 
 Baumann v. Guion 410, 417 
 
 Bayhart v. Flummerfelt 619 
 
 Bayles v. Baxter 388 
 
 Bayles v. Young 816 
 
 Baylies v. Ingram ?52, 253 
 
 Beach v. Miller 781 
 
 Beach V. Sterling Iron & Zinc Co. 666 
 Beale v. Knowles 203 
 
XXIV 
 
 Table of CASEa. 
 
 Page 
 
 Bearoe v. Jackson 779 
 
 Beard v. Murphy 674 
 
 Beardslee v. Beardslee 172 
 
 Beardslee v. New Berlin L. & P. 
 
 Co 623 
 
 Beardslej v. French 7-17 
 
 Beardaley v. Hotehkias 600 
 
 Beardsley v. Morse 764 
 
 Beaty v. Bordwell 430 
 
 Beaty v. Richardson 184 
 
 Becar v. Flues 23:3, 233, 234, 235 
 
 246, 344 
 
 Beck V. Eebow 78 
 
 Beck V. Ulrich 809 
 
 Becker v. Chester 613 
 
 Beckman v. Kreaiher 35, 753 
 
 Beddoe v. Wadsworth 783 
 
 Bedell v. Village of Sea Cliffe. . . 660 
 Bedford v. Terhune 309, 311, 312 
 
 340, 701 
 
 Bedford v. Tupper 813 
 
 Beebe v. Swartwout 782 
 
 Beers v. St. John 97 
 
 Begole V. Hazzard 381 
 
 Belcher v. Burnett 515 
 
 Belfield v. Booth 564, 579 
 
 Bell V. Am. Protective League. . 313 
 
 Bell V. Kennedy 765 
 
 Bell V. Mayor, etc., of New York 226 
 
 227 
 
 Bell V. Twilight 815 
 
 Bellia v. Bellis 830 
 
 Beloit, etc.. Bank v. Merrill Co.. 76 
 
 79 
 
 Belshay v. Engel 521, 533 
 
 Belvin V. Raleigh Paper Co.. 76, 79 
 
 Bemis v. Wilder 319, 330 
 
 Benedict v. Everard 314 
 
 Benedict v. Marsh 55, 57 
 
 Benedict v. Pincua 246 
 
 Benedict v. Torrent 437 
 
 Benjamin v. Am. Tel. & Teleg. 
 
 Co 423 
 
 Benner v. Bragg 20 
 
 Benneson v. Savage 551 
 
 Bennett v. Bennett 202, 205 
 
 Fash 
 
 Bennett v. Bittle 325 
 
 Bennett v. Morris 498, 511 
 
 Bennett v. Packer 193 
 
 Bennett v. Scutt 15, 16 
 
 Benson v. Morrow 751 
 
 Bent V. Hoxie 13 
 
 Berden v. Vv.n T.'r^en 402. 404 
 
 Berg V. Herring-Hall-Marvin Safe 
 
 Co 85 
 
 Bergen v. Hoerner 79 
 
 Bermger v. Lutz 388 
 
 Bernard v. Campau 814 
 
 Bernard v. Gantz 394 
 
 Bernheimer v. Adams 75, 79, 85 
 
 Bernstein v. Demmert 250, 251 
 
 Bernstein v. Heineman 346 
 
 Berridge v. Ward 775 
 
 Bertram v. Curtis 680, 781 
 
 Besaon v. Gribble 147, 153 
 
 Bettinger v. Baker 43 
 
 Betz v. Bryan 787 
 
 Bevans v. Briscoe 43 
 
 Bewick v. Whitfield 101 
 
 Bice V. Wolcott 747, 748 
 
 Bidinger v. Bishop 742 
 
 Big Rapids v. Comstock 748 
 
 Bigelow V. Cady 550 
 
 Bigelow v. Hubbard 780 
 
 Bigelow V. Shaw 24 
 
 Biggs V. Stueler 342 
 
 Billings V. Taylor 93 
 
 Bindrim v. Ullrich 602 
 
 Bingham v. Klrkland 811, 813 
 
 Bingham's Appeal 553 
 
 Einkley v. Forkner. .■66, 68, 69, 71 
 
 Birckhead v. Cummins 246 
 
 Bird V. Bird 769 
 
 Bird V. Merklee 3SO 
 
 Birmingham v. Allen 673 
 
 Birminghajn v. Kirwan.192, 193, 194 
 Bischofif V. N. Y. Elev. K. Co.... 738 
 
 Bishop V. Elliot 50 
 
 Bishop v. Schneider 813 
 
 Bissell V. Grant 533 
 
 Bissell V. N. Y. Central R. Co. . . 775 
 
 778 
 
Table of Oases. 
 
 XXV 
 
 Page 
 
 Bittinger v. Baker 40 
 
 Black V. Shreve 796 
 
 Blake v. Sanderson 330 
 
 Blackman v. Riley 776 
 
 Blaekmore v. Boardman 702 
 
 Blades v. Higgs 34 
 
 Blair v. Claxton 338 
 
 Blanchard v. Blanchard.498, 503, 52T 
 Blanchard v. Blanchard (Me.) . 783 
 
 Blanchard v. Brooks 490 
 
 Blanchard v. Lambert 153 
 
 Blanchard v. Tyler 809 
 
 Bleecker v. Smith 467, 470 
 
 Blevans v. Smith 164 
 
 Blewitt V. Boorum 793 
 
 Blight V. Schenck 790, 791, 797 
 
 Bliss V. Greeley 659 
 
 Bliss V. Hall .' 656 
 
 Bliss V. Johnson 821 
 
 Bliss V. Kennedy 636 
 
 Bloodgood V. Ayers 658 
 
 Bliven v. Seymour 404 
 
 Block V. Isham 713 
 
 Blodgett V. Hildreth 381 
 
 Stood V. Blood 154 
 
 Bloodgood V. Ayers 663 
 
 Bloom V. Welsh 19, 21 
 
 Bloomer v. Henderson 806 
 
 Bloomfield, etc., Co. v. Calkins.. 731 
 
 Blossom V. Blossom 198 
 
 Blum V. Robertson. 264 
 
 Blumenthal Bros. v. Culver 402 
 
 Board of Education v. Van Wert. 480 
 Bd. of Trade Tel. Co. v. Bar- 
 
 nett 736 
 
 Boatman v. Lasley 617 
 
 Bodwell Granite Co. v. Lane. . . 264 
 
 Bolton V. Bolton 627 
 
 Bolton V. Bowne 132 
 
 Bombaugh v. Miller 694 
 
 Bonham v. Badgley 148 
 
 Booker v. Booker 791 
 
 Boone v. Clark 459 
 
 Boone t. Purnell 153 
 
 Booraem v. Morris 352 
 
 Booraem v. Ry. Co 743, 743 
 
 Paqs 
 
 Eoorman v. Sunnucks 775 
 
 Boorum v. Tucker. 159, 160, 161, 181 
 
 Booth V. R. W., etc., Co 673 
 
 Bopp V. Fox 169 
 
 Boraston's Case 496, 498 
 
 Borden v. Jenks 196 
 
 Boreel v. Lawton 337, 783 
 
 Borie v. Slatterthwaite 390 
 
 Bork V. Martin 381 
 
 Booker v. Tarwater 765 
 
 Borland v. Marshall.. .156, 807, 493 
 
 534 
 
 Borst V. Bmpie 614 
 
 Boscowan v. Bliss 468 
 
 Boston C. & M. R. Co. t. Boston 
 
 & Lowell R. Co 318 
 
 Boston F. Co. v. Condit 403 
 
 Boston Ferrule Co. t. Hills.... 656 
 Boston, etc., R. Co. v. Gilmore.. 48 
 
 Bostwick V. Frankfleld 338 
 
 Bostwick V. Leach 14 
 
 Bostwick V. Williams 783 
 
 Bouvier v. B. & O. R. Co... 446, 458 
 
 Bovee v. Hinde 792 
 
 Bowditch V. Raymond 344 
 
 Bowen v. Beck 725, 763 
 
 Bowen v. Bowen 450 
 
 Bowen v. Brogan 223 
 
 Bowen v. Conner 623, 634 
 
 Bowen v. Guild 831 
 
 Bowen v. Lingle 164 
 
 Bowler v. Curler 392 
 
 Bowie's Case 101, 145, 511 
 
 Bowlsby V. Spear 658, 663 
 
 Bowman t. Bradley 238 
 
 Bowser v. Bowser 388 
 
 Boxheimer v. Gunn 808 
 
 Eoyce v. Mis. Pac. R. Co 645 
 
 Boyce v. Tallerman 307 
 
 Boyd V. Boyd 440 
 
 Boyd V. Conklin 658 
 
 Boyd T. Hunter 155 
 
 Boyd V. McLean 388 
 
 Boyd V. Schesinger 803, 813 
 
 Boyer v. East 394 
 
 Bozart v. Sargent 205 
 
 Bracken v. Cooper 440 
 
XXVI 
 
 Table of Cases. 
 
 Page 
 
 Brackett v. Goddard 11, 13 
 
 Bradford v. Pickles 663 
 
 Bradford v. Monks 551 
 
 Bradford Oil Co. v. Blair 701 
 
 Bradfords v. Kents 194, 195 
 
 Bradley V. Bailey 39,40, 41 
 
 Bradley v. Kuhn 594 
 
 Bradley v. Holdsworth 28 
 
 Bradley v. Rice 774 
 
 Bradley v. Walker 802 
 
 Bradley v. West 826 
 
 Bradley Fish Co. v. Dudley 696 
 
 Bradner v. Faulkner 20, 21 
 
 Braman v. Bingham 792 
 
 Brandenhurgh v. Thorndike 564 
 
 Brandt v. Phillippi 323 
 
 Branger v. Manciet 782 
 
 Bray v. Neill's Executrix 196 
 
 Braythwayte v. Hitchcock 260 
 
 Breaker v. Woolsey 771 
 
 Breeding v. Davis 215 
 
 Brennan v. City of New York. . 253 
 
 Brennan v. Whitaker 69 
 
 Brewer v. Hardy 538 
 
 Brewer v. Marshall 703, 711, 722 
 
 Brewer v. Nat. Bid. Assn 334 
 
 Brewster v. Hill 28, 232 
 
 Broaddus v. Smith 81 
 
 Brick V. Favilla 350 
 
 Bridger v. Pierson 624 
 
 Bridges v. Purcell 729 
 
 Bridges v. WyckofF 741. 744 
 
 Brill V. Brill 684 
 
 Brinkman v. Jones 804, 805, 806 
 
 Brisbane v. St. Paul, etc., Co... 671 
 Bristol Hydraulic Co. v. Boyer.. 670 
 
 Bristor v. Burr 238, 239 
 
 Broadbent v. Ramsbotham 658 
 
 Broadway, etc., Co. v. Myers... 320 
 
 Brock V. Dole 96 
 
 Brosson v. CofiSn 706, 780 
 
 Brooks V. Austin 189 
 
 Brooks V. Belfast 585 
 
 Brooks V. Curtis 677, 680, 681 
 
 Brooks V. Evetts 523 
 
 Brooks V. Jones 131 
 
 Pasi 
 
 Brookville, etc., Co. v. Butler... 24 
 Broome v. N. Y. & N. J. TeL Co. 737 
 
 Broughton v. .Randall 160 
 
 Brown v. Sibley's Contr 569 
 
 Brown v. Alabaster 631 
 
 Brown v. Banner, etc., Co 807 
 
 Brown v. Cairns 340 
 
 Brown v. Chadbourne 750, 751 
 
 Brown v. Cockerell . 824 
 
 Brown v. Gray 824 
 
 Brown v. Higgs 644, 546 
 
 Brown v. Holyoke Water P. Co.. 326 
 
 Brown v. Illins 660 
 
 Brown v. Jones 391 
 
 Brown v. McKee 715 
 
 Brown v. Newbold . 249 
 
 Brown v. O'Brien . . 718 
 
 Brown v. Robins 673 
 
 Brown v. Thurston 19, 263 
 
 Brown v. Volkenning 805 
 
 Brown v. Wallis 76 
 
 Brown v. Wellington 426 
 
 Brown v. Wheeler 443 
 
 Bruce v. Osgood 443 
 
 Brumagin v. Bradshaw. . . . . . .. 823 
 
 Brummel v. MacPherson 469 
 
 Bryan v. Bryan 188 
 
 Bryar's Appeal 182 
 
 Buecleuch v. Metrop. Bd. of Wks. 671 
 
 Buck V. Squires 776 
 
 Buchanan v. Logansport 729 
 
 Buck V. Pickwell 13, 15 
 
 rjuckelow V. Snedeker 424, 427 
 
 Ruckevidge v. Ingram 27 
 
 Buckley v. Doig 86, 168, 169, 411 
 
 413 
 
 Biickworth v. Tliirkell 173, 211 
 
 Buel V. Southwick 140 
 
 Buffalo R. Co. V. Stigeler 770 
 
 BufRngton v. Bank 194, 195 
 
 Buffum V. Buffum 411 
 
 Bughman v. Central Bank 398 
 
 Building, etc., Assn. v. Clark... 801 
 
 Bull V. Church 193 
 
 Billiard v. Chandler 379 
 
 Bunce v. Wolcott 829 
 
Table of Oases. 
 
 xxvn 
 
 Page 
 
 BTmch ▼. Nicks 493 
 
 Busey T, Reese 808 
 
 Buskirk v. Strickland 672 
 
 Bussman v. Ganster . 348 
 
 Bustin V. Newkirk 34 
 
 Butcher v. Yohum. . . 804 
 
 Butler V. Barnes 785 
 
 Butler V. Drake 823 
 
 Butler V. Butler 595 
 
 Butler V. Fitzgerald 200 
 
 Butler V. Kidder 353 
 
 Butrick v. Tilton 769 
 
 Butterworth v. Crawford 634 
 
 Buttlar V. Rosenblath . . 414, 415, 419 
 
 Butts V. Trice 190 
 
 Burbank v. Pillsbury 706, 725 
 
 Burbank v. Whitney 541 
 
 Burge V. Smith 764 
 
 Burgess v. M'heate 157 
 
 Burgoon v. Whitney 153 
 
 Burhans v. Van Zandt 222 
 
 Burk V. Hill 781 
 
 Burkam v. 0. & M'. R. Co 738 
 
 Burnham v. Burnham 794 
 
 Burleigh v. Clough 527 
 
 Burlew v. Hunter 626 
 
 Burnet v. Burnet 157, 158 
 
 Burnett v. Scribner 338 
 
 Burns v. Bryant 264 
 
 Burns v. Gallagher 641 
 
 Burns v. Lynde 765 
 
 Burnside v. Twitchell 51 
 
 Burr V. Lamaster 781 
 
 Burr V. Mueller 440, 441 
 
 Burr V. Smith 771, 772 
 
 Burrage v. Smith 782 
 
 Burrill v. Wilcox L. Co 68, 69 
 
 Burrows v. Gallup 822 
 
 Bury V. Young 793 
 
 Buzby's Appeal 507 
 
 Euzzell T. Gallagher 443 
 
 Byassee v. Reese 11, 14 
 
 Byers v. Byers 443 
 
 Byles T. Lawrence 780 
 
 Byrne t. Farmington 658 
 
 Page 
 
 Byrne v. Werner , . . 53 
 
 Byrnes v. StilweU. 601, 503 
 
 0. 
 
 Cadell T. Palmer 563 
 
 Cady V. Purser 814 
 
 Cage ▼. Acton 148 
 
 Cairns v. Chabert 233 
 
 Cairns v. Chabert 222 
 
 Calder v. Chapman 811, 812 
 
 Caldwell V. Fulton 30 
 
 Calhoun Co. v. Am., etc., Soo... 797 
 
 Callamon v. Gillis 75 
 
 Callanan v. Oilman 734 
 
 Calome v. Calome 185 
 
 Calvert v. Aldrioh 430, 431 
 
 Calvert v. Rice 90 
 
 Cameron v. Little 333 
 
 Camp V. Whitman 627, 686 
 
 Camp V. Wallace 12 
 
 Camp V. Wood 307 
 
 Campau v. Campau 410 
 
 Campbell v. Campbell 169, 411 
 
 Campbell v. Foster Howe Ass'n. 552 
 
 Campbell v. Kuhn 799 
 
 Campbell v. McCoy 619 
 
 Campbell v. Meiser 429, 683 
 
 Campbell v. Race 740 
 
 Campbell v. Roddy 66, 71 
 
 Campbell v. Seaman 656 
 
 Campbell v. Stokes 447, 501, 503 
 
 Canandaigua v. Foster 304 
 
 Canfield v. Andrew 666 
 
 Canning v. Owen 63 
 
 Carmon v. Boyd 631 
 
 Capehart v. Foster 63, 64 
 
 Carbrey v. Willis 639 
 
 Carey v. Rae 626 
 
 Cargill V. Sewell 87 
 
 Carkin v. Babbitt 44, 52, 53 
 
 Carlin v. Ritter 83 
 
 Carlin v. Ritter 76, 80 
 
 Carlisle v. Cooper 647, 648 
 
 Cannon v. Hare 80 
 
 Carmody v. Mulrooney 645, 653 
 
SXVlll 
 
 Table of Cases. 
 
 Paqk 
 
 Carnahan v. Brown 614, 615 
 
 Carnall v. Wilson 201 
 
 Carnegie Nat. Gas Co. v. Phila- 
 delphia Co 451 
 
 Carpenter v. Dexter 398 
 
 Carpenter v. Gwynn 742 
 
 Carpenter v. Carpenter 440, 441 
 
 Carpenter v. Tliayer 423 
 
 Carpenter v. Webster 425 
 
 Carpenter v. Van OHnder 52 
 
 Carr v. Anderson 166, 207, 208 
 
 Carr v. Brigga 394 
 
 Carr v. Carr 185 
 
 Carson v. Blazer 750 
 
 Carter's Appeal 188 
 
 Carter v. Bransome 461 
 
 Carter v. Burr 328 
 
 Carter v. Champion 813 
 
 Carter v. Denman 780, 782, 785 
 
 Carter v. McDaniel 154 
 
 Carter v. Parker 153 
 
 Carter v. Thurston 750, 751 
 
 Caruthers v. Caruthers 188 
 
 Carver v. Gfough 75, 79, 80 
 
 Cary v. Whiting 353 
 
 Cary v. White 808 
 
 Case V. Minot 637 
 
 Case of Mines 31 
 
 Case Mfg. Co. v. Garven..68, 69, 70 
 
 Case V-. Owen 402 
 
 Cass V. Thompson 155 
 
 Oassem v. Kennedy 474 
 
 Castellain v. Preston 395 
 
 Caswell V. Districh 243 
 
 Cater v. Northwestern Telephone 
 
 Co 732, 736, 737 
 
 Cathoart v. Bowman 780 
 
 Catlin V. Decker 822 
 
 Catlin V. Ware 180, 199, 200, 764 
 
 Cecil V. Clark 437 
 
 Cedar Falls v. Hansen 658 
 
 Central Trust Co. v. Egleston. . . 601 
 
 Central Union Gas Co. Browning. 63 
 
 Cheatham v. Gower 496 
 
 Cheever v. Pearson 261 
 
 Cherry v. Heming 787 
 
 Paok 
 
 P. Tel. Co. V. Mac- 
 kenzie 736 
 
 Chesley v. Welch 39, 41 
 
 Chess' Appeal 514 
 
 Chew V. Chew 173 
 
 Chew V. Commr's, etc 207, 213 
 
 Chicago & N. W. R. Co. v. Bor- 
 ough of Fort Howard 48 
 
 Chicago Sanit. Dist. v. Cook.... 83 
 
 Champ V. Thatcher Co 63 
 
 Chadeayne v. Robinson 653 
 
 Chaffee v. N. Y., N. H. & H. R. 
 
 Co 624 
 
 Chalk V McAlily 668 
 
 Chancellor v. Bell 130 
 
 Chalmers v. Smith... 89, 96, 99, 263 
 
 Chamberlain v. Dunlop 336, 338 
 
 Chamberlain v. Elizahethport S. 
 
 C. Co 737 
 
 Chamberlayne v. Brockett 585 
 
 Chamberlain v. Gleason 223 
 
 Champion v. Brown 396 
 
 Champlin v. Champlin 388 
 
 Champlin v. Pendleton 777 
 
 Chandler v. Cheney. .. .403, 415, 419 
 
 Chandler v. Hamil 73 
 
 Chandler v. Hinds 339 
 
 Chandler v. Thurston 40, 41 
 
 Chandler v. Jamaica Pond, etc., 
 
 Co 695 
 
 Chapel V. Hull 95 
 
 Chapln V. Hill 195 
 
 Chapman v. Chapman 186 
 
 Charles v. Rankin 674 
 
 Chartiers Block C. Co. v. Mellon 30 
 
 Chase v. Hazleton 92 
 
 Chase v. Ladd 558 
 
 Chase v. Palmer 764 
 
 Chase v. Walker 718 
 
 Chase v. Wingate 26 
 
 Chase v. Van Meter 176 
 
 Chasemore v. Richards 658 
 
 Chastain v. Dickinson. .604, 606, 610 
 
 Chatfield v. Wilson 659 
 
 Chauncey v. Arnold 765,791 
 
 Chicago V. Drexel 742, 743, 744 
 
Table or Cases. 
 
 XXIX 
 
 Page 
 -Chicago & N. W. R. Co. v. Hoag. 650 
 Chicago, etc. R. Co. v. Sturey . . 739 
 Chicago, etc. E. Co. v. Tittering- 
 ton 178 
 
 Chicago, etc. R. Co. v. West Chi- 
 cago, etc. R. Co 737 
 
 Chicago -i. Rumsey 777 
 
 Chicago V. Witt 804 
 
 Chicago Dock Co. v. Kinzie .... 184 
 
 Chickering v. Faill 439 
 
 Chippewa L. Co. v. Tremper 463 
 
 Chiswel V. Morria 183 
 
 Chittenden v. Gates 409 
 
 Chittock V. Cliittook 190 
 
 Chouteau v. Missou 178 
 
 Christopher v. Austin. .335, .336, 338 
 
 Christs Hospital v. Grainges 584 
 
 Christy v. Pulliam 544, 546 
 
 Christy v. Spring Valley Water 
 
 Works 830 
 
 Chronic v. Pugh 688 
 
 Church V. Gilman 791, 797 
 
 Church V. Sterling 393 
 
 Cliurchil V Hulbert 738 
 
 Ciffarelli v Landidno 675 
 
 Cincinnati v. Whetstone 740 
 
 Cincinnati v. White's Lessee. 733, 741 
 Citizens Sav. Bank v. Mboney... 163 
 
 179 
 
 City Nat. Bank v. Van Meter.. 695 
 
 City of Quinoy v. Jones 653 
 
 Claff V. Herdman 779 
 
 Claflin V. B. & A. R. Co 634 
 
 Clancy v. Byrne 301, 307 
 
 Clanp V. Draper 13 
 
 Clapp V. Ingraham 549 
 
 Clapp V. Nichols 433 
 
 Clapp V. Stougliton 303 
 
 Clapp V. Wilder 731 
 
 Clark V. Aldrich 313, 314 
 
 Clark V. Burnside 53 
 
 Clark V. Cammann ....495,496 
 
 Clark V. Clark 306 419 
 
 Clark V. Cogge 636 
 
 ■CTark v. Elizabeth 741 
 
 Clark V. Foot 99 
 
 Page 
 Clark V. Guest 18 
 
 Clark V. Harvey 43 
 
 aark V. Holden 93, 90 
 
 Clark V. Holland 804 
 
 Clark V. Lindaey 439, 443 
 
 Clark V. Mackin 803 
 
 Clark V. McGee 718, 731 
 
 Clark V. McNeal 815 
 
 Clark V. Pa. R. R. Co 667 
 
 Clary v. Owen 67 
 
 Clavering v. Clavering . .93, 384, 393 
 
 Clay v. Field 433,434 
 
 aay V. Wood 384 
 
 Clay V. Freeman 169 
 
 Clayton v. Blakey 357 
 
 Clayton v. Clayton 133 
 
 Clegg V. Hands 734 
 
 deghorn v. Burrows 309 
 
 Cleland's Appeal 739 
 
 Clemence v. Steer . ..90, 92 95, 96 
 
 98 
 
 Clement v. Bums 751 
 
 Clement v. Wheeler 100, 101 
 
 Clement v. Youngman 30 
 
 Clerk V. Clerk 409 
 
 Cleveland v. Ware 645 
 
 Cleveland Trust Co. v. Lander.. 38 
 
 Clifford V. Am. Cotton Mills 303 
 
 Clifford V. Kampf 177 
 
 Clifford V. Worrell 551 
 
 Clifton Iron Co. v. Dye 666 
 
 Clyno V. Helmes 307 
 
 C. N. & S. R. Co. V. Mayor 739 
 
 C. & W. M. Ey. Co. V. Linard. . . 343 
 
 Coann v. Culver 386 
 
 Coates V. Cheever 93, 197 
 
 Cobb V. Bennett 752 
 
 Cochran v. Flint 66 
 
 Cochran v. Pascault 783 
 
 Cochrane v. Schell 387, 588 
 
 Cochran v. Tuttle 344 
 
 Cocke v. Bailey 161 
 
 Cockrill V. Armstrong 167 
 
 CockriU v. Downey 11 
 
 Codman v. Evans 734 
 
 Coe V. Col. Piq. ■ Ind. R. Co... 48 
 
XXX 
 
 Table of Cases. 
 
 Page 
 
 Ooe V. Hobby 338 
 
 Coe V. Washington Mills 379 
 
 Coe V. Wolcottville Mfg. Co 203 
 
 Coffey V. Sullivan 391 
 
 Coggin's Appeal 577 
 
 Cogswell V. Cogswell . . 223, 226, 227 
 Cohces V. D. & H. Canal Co. . . 745 
 
 Colby V. Osgood 782 
 
 Coldwell V. Sanderson 664 
 
 Cole V. Bradbury 655 
 
 Cole V. Hughes 679,713 
 
 Cole V. Kimball 787 
 
 Cole V. Lake Co 128, 134 
 
 Cole V. Sanford 352 
 
 Cole V. Sewell 581 
 
 Cole V. Van Riper 215 
 
 Coleman v. Coleman 699 
 
 Coleman v. Lewis . . 68, 71 
 
 Coleman v. Manhattan Co 769 
 
 Colgates Ex'r v. Colgate ..193, 194 
 
 Collaraon v. Collamon 141 
 
 Oollaman v. Gillis 81 
 
 Collins V. Collins 502 
 
 Collins V. Chartiers Gas Co 660 
 
 'Collins v. Foley 581 
 
 Collins V. Marcy 729 
 
 Collins V. Pratt 314, 316 
 
 Colins V. Prentice 626 
 
 Collins V. Russell 204, 207, 208 
 
 Collins Mfg. Co. v. Marcy 718 
 
 Collin's Widow v. Torrey 157, 158 
 
 Collister v. Fassitt 384 
 
 Colonies, etc., Co. v. Tucker.... 666 
 
 Colson V. Baker 405, 406 
 
 Colton V. Colton ?.S4 
 
 Columbia College v. Lynch 621 
 
 718, 719 
 Columbia College v. Thatcher... 621 
 
 Colvin V. Burnet 651, 653 
 
 Colville V. Miles 243 
 
 Coman v. Thompson 18 
 
 Comer v. Baldwin 792 
 
 Comer v. Chamberlain 209, 210 
 
 Com. y. Chapin 752 
 
 Conn V. Conn 4-13 
 
 Commissioners v. Poor Dist 216 
 
 Page 
 
 Commonwealth v. Allen 737 
 
 Commonwealth v. Chapin 753 
 
 Commonwealth v. Moorehead . . . 748 
 Commonwealth v. Newbury . . . 74S 
 
 Commonwealth v. E. R. Co 741 
 
 Commonwealth v. Vincent 750 
 
 Company v. Goodale 668 
 
 Compton V. Pruitt 198 
 
 Comstock V. Comstock 779 
 
 Conaheer v. N. Y. Central R. 
 
 Co 693 
 
 Conde v. Lee 76, 79, 81 
 
 Condict V. King 523 
 
 Co'/idit V. Wilson 803, 804 
 
 Condon v. Barr 250 
 
 Conduitt V. Ross 679, 712 
 
 Cone V. Hartford 732 
 
 Conger v. Duryee 451, 463, 467 
 
 Congleton v. Pattison 700 
 
 Conkhite v. Conkhite 619 
 
 Conklin v. Parsons 52, .53 
 
 Congr. Society v. Fleming 49 
 
 Connor v. Gardner 52.3 
 
 Connor v. Sullivan 649, 650 
 
 Conover v. Smith 703 
 
 Conrad v. Long 476 
 
 Conrad v. Saginaw Mining Co. . . 79 
 Consolidated Coal Co. v. Peers. 313 
 
 315, 316 
 Consolidated Coal Co. v. Savitz. 87 
 
 Conway v. Starkweather 252 
 
 Cook V. Bisbee 262 
 
 Cook V. Brown 793, 794 
 
 Cook V. Humphrey 77 
 
 Cook V. Lowry 386 
 
 Cook V. Mayor of Bath 692 
 
 Cook v. Stearns 619 
 
 Cook V. \'\" ailing 215 
 
 Cook V, Whiting 11, 62, 63 
 
 Cool V. Peters B. & L. Co... 13, 727 
 
 Coolidge V. Larned 645 
 
 Cooper V. Classon 475 
 
 Cooper V. Cooper 419 
 
 Cooper V. Remsen 476 
 
 Cooper's Estate 581 
 
Table of Gases. 
 
 XXXI 
 
 Page 
 
 Cooper V. Whitney 158 
 
 Cooper V. Wolfit 20 
 
 Corbin v. Healy 766 
 
 Corey v. Smalley 814 
 
 Corn V. Bass 680 
 
 Cornelius v. Ivins. .450, 451, 453, 454 
 456, 458, 573 
 
 Cornell v. Maltby 397 
 
 Cornell v. Prescott 429 
 
 Cornish v. Capron 783 
 
 Corp. of London v. Eigga 686 
 
 Corrigan v. Chicago 329 
 
 Corse V. Chapman. .495, 503, 518, 548 
 
 602, 610 
 Cortelyou v. Van Brundt . . .733, 753 
 
 Cosgriff V. Dewey 427, 435, 438 
 
 Cosgrig V. Foss 436 
 
 Cosgrove v. Troescher 50, 62, 63 
 
 Costigan v. Penn. E. Co 709 
 
 Cote's Appeal 154 
 
 Cotton V. Pocasset Mfg. Co 646 
 
 Coudert v. Cohn 258, 259, 260 
 
 Coudert v. Sayre 621, 622, 625 
 
 Coulon V. Grace 790 
 
 Countess of Shrewsbury's Case. 90 
 
 Courter v. Stagg 476 
 
 Conger v. Duryee 462 
 
 Covert V. Morrison 263 
 
 Cowan V. Lindsay 176 
 
 Cowdrey v. Coit 782 
 
 Cowdrey v. Cowdrey 789, 790 
 
 Cowell V. Springs Co 574 
 
 Cowell V. Thayer 646, 648 
 
 Cowling V. Higginson 685, 686 
 
 Cox V. Couch 769 
 
 Cox V. Freedley 777 
 
 Cox V. Garst 158 
 
 Cox V. Higsbee 200 
 
 Cox V. Louisville, etc., E. Co. . . 738 
 
 Cox V. Milner 804 
 
 Cozzens v. Parnan 829 
 
 Craddock v. Eiddlesbarger 22 
 
 Craig V. Butler 354 
 
 Craig r. Eochester, etc., R. Co. . . 737 
 
 Grain v. Cavana 179, 186 
 
 Grain Iron Works v. Wilkes ... 60 
 
 Pack 
 
 Crane T. Edwards 335 
 
 Crane v. Powell 246 
 
 Cranston v. Beck 61, 79 
 
 Crary r. Goodman 823 
 
 Cravens v. Rossiter 798 
 
 Cravens v. Winzenberger 175 
 
 Crawford v. Hazelrigg 180 
 
 Crawford v. Redding 349 
 
 Crawford v. Witherbee 312 
 
 Crerar v. Williams 584 
 
 Creveling ▼. De Hart 316 
 
 Crippen v. Morrison 66 
 
 Crippen v. Morss 423, 621 
 
 Croker v. Old South Soc 467 
 
 Cronie v. Hoover 80 
 
 Crook V. Van Devoort 423 
 
 Crooke v. County of Kings. 549, 609 
 
 Cronkhite v. Cronkhite 729 
 
 Cropsey T. McKinney 149, 150 
 
 Cropsey v. Ogden 147, 148 
 
 Crornie v. Hoover 83 
 
 Crosdale v. Lanigan 620, 729 
 
 Cross v. Lewis 654 
 
 Cross V. U. S. Trust Co 611 
 
 Crouse v. Wemple 651 
 
 Crow V. Knightlinger 205 
 
 Crowe V. Riley 701 
 
 Crowley v. Gormley 316 
 
 Cruger v. McLaury 460 
 
 Cubitt V. Porter 676, 681 
 
 Culbertson v. Witbeok 383 
 
 Culver V. Harper 157, 158 
 
 Culver V. Rhodes 425 
 
 Cummings v. Cummings 190 
 
 Cummings v. People 34 
 
 Cunningham v. Cunningham . . . 149 
 
 Cunningham v. Parker 454, 455 
 
 Cunningham v. Pattee 248 
 
 Cunningham v. Seaboard Realty 
 
 Co 63 
 
 Cunningham's Estate 192 
 
 Curran v. Flammer 301, 304 
 
 Curry v. Colbum 792 
 
 Curtiss V. Ayrault 633, 635, 637 
 
 Gurtiss V. Miller 333 
 
 Curtis V. Mundy 805 
 
XXXll 
 
 Table of Cases. 
 
 Page 
 
 CusWng V. Blake 211, 212 
 
 Cutler V. Currier 428 
 
 Cutter V. Pope 14 
 
 Cutler T. Tuttle 389 
 
 Czermak v. Wetzel 246 
 
 D. 
 
 Dabney v. Eailey 195 
 
 Dagett T. Champney 340 
 
 Daggett V. Daggett 794 
 
 Daily v. State 733, 736 
 
 Dakin v. Dakin 190 
 
 Dakin v. Williams 470 
 
 Daley v Savage 303, 304 
 
 Dalton V Ar.gus 652, 672, 673 
 
 Dalton V. Gibson 301 
 
 Dammert v. Osborn 611 
 
 Dana v. Murray.. 508, 583, 592, 608 
 
 Dana v. Valentine 647, 656 
 
 Dana v. Wentworth 721 
 
 Dananbeig /. Reinheimer 313 
 
 Daniel v. Leitch 158 
 
 Daniel v. North 654 
 
 Daniels t. Pond 95 
 
 Danforth v. Oshkosh 612 
 
 Darby v. Darby 168, 413 
 
 D'Arcy v. Blake 163 
 
 Dark v. Johnston 728 
 
 Darrow v. Calkins . . . 168, 169, 411 
 
 413 
 
 Dashwood v. Magniac 93 
 
 Dassori v. Zarek 313, 315 
 
 Datesman'a Appeal 224 
 
 Davenport v. Lamson 685 
 
 Davenport v. Magoon 96 
 
 Davenport v. Kuekman 305 
 
 Davenport v. The Queen. 463, 463, 464 
 
 Davenport v. Shants 66, 69 
 
 David V. Bliss 68 
 
 Davidson v. Crook 813 
 
 Davies v. Davies 90 
 
 Davis V. Bartholomew 180 
 
 Davis V. Bliss 73 
 
 Davis V. Clark 793 
 
 Davis V. Gray 474 
 
 Davis V. Green 164 
 
 Pass 
 
 Davis V. Hutton 200 
 
 Davis V. Kennedy 803 
 
 Davis v. McDonald l&O 
 
 Davis V. McFarlane 21 
 
 Davis V. Mason 207 
 
 Davis V. Monroe 814 
 
 Davis V. Morris 309 
 
 Davis V. Moss 81 
 
 Davis V. Nash 26.") 
 
 Davis V. Sawyer 656 
 
 Davis V. Sear C31 
 
 Davock V. Xealon 827 
 
 Dawson v. Coffman 92, 101 
 
 Dawson v. Edwards 205 
 
 Dawson v. Hall 79.3 
 
 Dawson v. Parsons 169, 412 
 
 Day v. Griffith 79S 
 
 Day V. Walden 693 
 
 Dayton v. Dakin 19, 23 
 
 Day V. Eoth 393 
 
 Debow V. Colfax 39, 40, 41 
 
 De Camp v. Crane 213 
 
 Decker v. Evansvlile, etc. E. Co. 739 
 Decorah Woolen Co. v. Greer .... 729 
 
 Dee V. King 624 
 
 Deerfield v. Conn. Eiv. E. Co 646 
 
 Defreese v. Lake 515 
 
 De Frieze v. Quint 820 
 
 De Gray v. Monmouth Beach.. 717 
 
 719, 724 
 
 De Grey v. Richardson 156, 208 
 
 Delahoussaye v. Judice 658 
 
 De Lancey v. Ganong 823 
 
 Delano v. Montague 346 
 
 D. L. & W. R. Co. V. Oxford Iron 
 
 Co 53, 56, 57 
 
 Delhi v. Youmans 659 
 
 Demarest v. Wynkoop 829 
 
 Demars v. Koehler 781 
 
 Demill v. Eeid 507, 537 
 
 Dempsey v. Kipp 619 
 
 Demuth v. Amweg 649, 650 
 
 Den & Bockover v. Post 318 
 
 Den V. Kenney 92 
 
 Denman v. Prince 430, 699, 706 
 
 D nr.ig V. Ware 383 
 
Table of Cases. 
 
 xxxui 
 
 Faob 
 
 Dennis v. Muller 339 
 
 Denton v. Clark 550 
 
 Denton v. Ont. Co. Nat. Bank.. 397 
 
 Deny Bank v. Webster 798 
 
 Deshong v. Desliong 447 
 
 Degpard v. Walbridge 252 
 
 Despatch Line, etc. v. Bellamy 
 
 Mfg. Co 48 
 
 Detroit St. R. Co. v. Mills 739 
 
 De Vaughn v. Hutchinson 521 
 
 Devereaux v. Me Mahon 788 
 
 Devine v. Lord 331 
 
 Devoue v. Fanning 548 
 
 Dewing v. Dewing 429 
 
 De Witt V. Pierson 337 
 
 Dexter v. Beard 707 
 
 Dexter v. Evans 384 
 
 Dey V. Greenbaum 311 
 
 Dehring v. Beck 57 
 
 Diamond Match Co. v. Ontona- 
 gon 744 
 
 Dickinson v. Canal Co 659 
 
 Dickinson Co. v. Fetterling .... 314 
 
 Diefendorf v. Diefendorf 791 
 
 Dierig v. Callahan 262 
 
 Dietz V. Farish 793 
 
 Dikeman v. Taylor 769 
 
 Dill V. Bd. of Education . 622, 693, 695 
 
 Dingley v. Buffum 81 
 
 Dircks v. Brant 30, 43 
 
 Disher v. Disher 99 
 
 Diver v. Diver 417 
 
 Dix V. Atkins 254 
 
 Dix V. Jaquay 87 
 
 Dixon V. Saville 157 
 
 Doak V. Wiswell 80, 86 
 
 Doane v. Badger 430 
 
 Dobberstein v. Murphy 197 
 
 Dobbins v. Lusch 40 
 
 Dockray v. Milliken 200 
 
 Doctor V. Darling 780 
 
 Dodd V. Holme 673 
 
 Dodd V. Witt 778 
 
 Dodge V. Mc Olintock 651 
 
 Dodge V. Williams 612 
 
 Dodin V. Dodin 240 
 
 Doe V. Green 254 
 
 Paob 
 
 Doer. Wood 614, 615 
 
 Doe d. Baston v. Cox 204 
 
 Doe d. Christmas v. Oliver 813 
 
 Doe d. Harris v. Howell . ..527, 538 
 
 . Doerem v. Gillum 767 
 
 Doherty v. Allman 96, 98 
 
 Dolan V. N. Y. & H. R. Co 738 
 
 Doliflf V. Boston & Maine R. R. 
 
 Co 631 
 
 Dolliver v. St. Joseph's Ins. Co. 236 
 
 Dolph V. White 700 
 
 Donaldson v. Strong 313 
 
 Donason v. Barbero 425 
 
 Donegan v. Donegan 419, 430 
 
 Donnelly v. Estes 453, 473 
 
 Donnelly v. Thieben 76 
 
 Dority v. Dunning GOfl 
 
 Dorr V. Hotchkiss 349 
 
 Dorr V. Johnson 494, 529 
 
 Dorr V. Levering 503, 580 
 
 Dorrance v. Bonesteel 340 
 
 Dorrity v. Rapp 075 
 
 Dorsey v. St. Louis, etc., R. Co. 706 
 
 Dostal v. McCaddon 79 
 
 Dougal ^'. McCarthy 250, 353 
 
 Dougherty v. Thompson 500 
 
 Douglas V. Coonley 678, 683, 696 
 
 Douglass V. Herms 467, 468 
 
 Douglas V. Thomas 779 
 
 Douglass V. Wiggins 99 
 
 Douglaston Realty Co. v. Hess. 703 
 
 Dow V. Doyle 509 
 
 Dowd V. Tucker 394 
 
 Downing v. Mayes 831 
 
 Doyle V. Am. Fire Ins. Co 215 
 
 Doyle V. Gibbs 239 
 
 Doyle V. Lord 637 
 
 Drake v. Lacoe 310 
 
 Drake v. Lady Ensley Coal Co.. . 606 
 
 Drake v. Wells 11, 14 
 
 Dresser v. Dresser 438 
 
 Drey v. Doyle 804 
 
 Driggs V. Phillipps 748 
 
 Drown v. Smith 93 
 
 Drummond's Adm'rs v. Jones... 551 
 Drury v. Drury 191 
 
xxxiv 
 
 Table of Cases. 
 
 Page 
 
 Dubois V. Beaver 37, 424 
 
 Dubois V. Kelly 80 
 
 Du Bois Cbem. Co. v. Griffin... 743 
 
 Dubs V. Dubs 210 
 
 Dudley v. Dudley 154_ 
 
 Dudley V. Hurst 48, 57 
 
 Dukes V. Spangler 790 
 
 Dullard v. Roberts 308 
 
 Durand v. Curtis 313, 314 
 
 Durant v. Palmer 304 
 
 Dumont v. Kellogg 664, 666 
 
 Duncan v. Forrer 404 
 
 Duncan v. Maloney 333 
 
 Duncan v. Sylvester 434 
 
 Duncan v. Terre Haute 178 
 
 Duncklee v. Butler 180 
 
 Dunham v. Angler. .153, 154, 156, 176 
 
 199 
 
 Dunham v. Osborn 155 
 
 Dunham v. Pitkin 627 
 
 Dunham v. Williams 777 
 
 Dunlap v. Bullard 310, 316 
 
 Dunlap V. Stetson 773 
 
 Dunlop V. Mulry 319 
 
 Dunn V. Flood 574 
 
 Dunn V. Snell 323 
 
 Dunworth v. Sawyer 12 
 
 Duraind's App 790 
 
 Durando v. Durado . . . 153, 154, 156 
 
 Durling v. Hammar 393 
 
 Dustin V. Steel 180 
 
 Dyer v. Brannock 153 
 
 Dyer v. Dyer 388, 393 
 
 Dyer v. Clark 169 
 
 Dyer v. Odridge 833 
 
 Dyer v. Walker 687 
 
 Dyer v. WIghtman 339 
 
 Dyett ▼. Pendleton 236 
 
 Dwyer v. Garlough 176 
 
 E. 
 
 Eads V. Rutherford 429 
 
 Earle r. Arbogast 99 
 
 East Jersey Iron Co. v. Wright . . 30 
 
 Easton v. Schofleld 442 
 
 Eaton V. Swansea Water Wks. 
 
 Co 648 
 
 Pagb 
 
 Eaton V. Whittaker 303 
 
 Eaves V. Estes 68, 71 
 
 Eberhardt v. Porolin 384 
 
 Ecke v. Fitzer 702, 704 
 
 Eckerson v. Haverstraw 741 
 
 Eckman v. Atlantic Lodge 307 
 
 Eddy V. Moulton 158 
 
 Edesheimer v. Quackenbush . .,. 235 
 
 Edgar v. Jewell 238 
 
 Edgerton v. Page 326, 337 
 
 Edgett V. Douglass 688 
 
 Edmands v. Rust & R. Drug Co. 345 
 
 346 
 
 Edmonds v. Boston 331 
 
 Edmonson v. Welsh 166 
 
 Edsall V. Merrill 424, 427, 438 
 
 Edson V. Parsons 394 
 
 Edwards v. Bibb 175 
 
 Edwards v. Clark 781 
 
 Edwards v. Edwards 388, 410 
 
 Edwards v. McKernan 803, 810 
 
 Edwards v. McLean 349, 350 
 
 Edwards & Co. v. Bank 66 
 
 Edwards v. Hammond 496 
 
 Edwards v. Sleater 547 
 
 Eels v. Am. Teleg. & Tel. Co... 733 
 
 736 
 
 Efland v. Efland 165 
 
 Ege V. Medler 211, 213 
 
 Egerton v. Massey 507, 511 
 
 Eidemuller Ice Co. v. Guthrie . . 24 
 
 Einstein v. Levy 353 
 
 Electric City Land Co. v. West 
 
 Ridge Coal Co 731 
 
 Elias V. GrijEth 94 
 
 Elkhart Car Works v. Ellis 465 
 
 Ellerson v. Westcott 447 
 
 Elliott V. Fair Haven, etc., E. 
 
 Co 737 
 
 Elliot V. Fitchburg R. Co... 664, 667 
 
 668 
 
 Elliott V. Sallee 638 
 
 Elliot V. Sleeper . 764 
 
 Ellis V. Bassett 686, 637 
 
 Ellis V. Kyger 156, 451 
 
 Ellis v. Pelham, Town of 450 
 
 Ellis V. Eowbotham 349 
 
Table of Casbs. 
 
 XXXV 
 
 Faog 
 
 ElUson T. Ellison 394 
 
 Ellison V. Salem Coal, etc. Co... 66 
 
 EUithorpe v. Keidesil 22 
 
 Elmendorff v. Lockwood . .162, 180 
 
 181 
 
 Elatner v. Fife 550 
 
 Elston V. Piggott 441 
 
 Elwell V. Burnside 437 
 
 Ewes V. Maw 78, 80, 88 
 
 Ely V. Brown 826 
 
 Ely V. Randall 263 
 
 Embrey v. Owen 664 
 
 Embury v. Sheldon 497 
 
 Emeric v. Alvarado Co 422 
 
 Emeriok v. Hackett 761 
 
 Emerson v. Cutter 404 
 
 Emerson v. Harris 172 
 
 Emerson v. Mooney 623, 624 
 
 Emerson v. Simpson 461 
 
 Emery v. Fowler 769, 770, 771 
 
 Emery v. Hill 318 
 
 Emigrant Ind. Sav. Bank v. Re- 
 gan 162, 179 
 
 Emmes v. Feeley 331 
 
 Emson v. Polhemus 4'44, 448 
 
 Eneminger v. People 750, 752 
 
 Engel v. Ayer 617 
 
 England v. Slade 378 
 
 Enterprise Oil & Gas Co. v. Tran- 
 sit Co 426 
 
 Enyeart v. Keppler 4S0 
 
 Equitable Life Ins. Soc. v. Bren- 
 
 nan 721 
 
 Erdman v. Moore 63 
 
 Erick V. Church 828 
 
 Erickson v. Jones 83 
 
 Erickson v. Patterson 19, 21 
 
 Erskine v. Davis 763 
 
 Erskine v. Plummer 14 
 
 Espy V. Comer 169 
 
 Essex V. Esses 168 
 
 Estate of Merchant 585 
 
 Eten T. Lttyster 335 
 
 Evans v. Bagshaw 446 
 
 Evans v. Evans 173 
 
 Evans v. Merriweather 664 
 
 Faqi 
 
 Evans v. Walker 571 
 
 Evans v. Webb 192 
 
 Everett v. Edwards 676, 677, 680 
 
 781 
 
 Everett v. Everett 797 
 
 Everts v. Beach 427 
 
 Ex parte Brook 81, 83 
 
 Ex parte Quincey 78 
 
 Ex parte Stevens 81, 83 
 
 F. 
 
 Fair v. Grand Lodge, etc 402 
 
 Fairbrother v. Giffin 779 
 
 Fairohild v. Edson 394 
 
 Fairchild v. Fairohild 390, 411 
 
 Fairchild v. Marshall 195 
 
 Fairchild v. St. Paul 749 
 
 Falaenam v. Reliance Steel Foun- 
 dry Co 68 
 
 Fallass v. Pierce 816 
 
 Fankbiner v. Corder 687 
 
 Fanning v. Wilcox 826 
 
 Fargo V. Squiers 583, 608 
 
 Farlee ▼. Farlee 791 
 
 Farnham v. Thompson 456 
 
 Farnum v. Hefner 319 
 
 Farnum v. Piatt 689 
 
 Farr v. Grand Lodge, etc... 403, 404 
 
 Farrand v. Gleason 430 
 
 Farrar v. Stackpole 48, 52 
 
 Farrington v. Kimball 316 
 
 Fawlkiier v. Fawlkner 144 
 
 Fay v. Brewer 87 
 
 Fay V. Muzzey 26, 27 
 
 Fears v. Brooks 212 
 
 Feder v. Van Winkle 56, 58 
 
 Felch V. Hooper . 395 
 
 Fellers v. Fellers 188 
 
 Fenby v. Johnson 541 
 
 Fenlason v. Raehlifl 71 
 
 Fennel v. Guffey 314, TOl 
 
 Fentiman v. Smith 693 
 
 Penton v. Miller 424, 434 
 
 Fenton v. Reed 153 
 
 Fenton v. Steere 446 
 
 Ferguson v. — -. .87, 90, 98, 849 
 
XXXVl 
 
 Table op Cases. 
 
 Page 
 
 Ferrand v. Marshall 672 
 
 3?errea v. Knipe 664 
 
 Ferris v. Van Ingen 169 
 
 Festing v. Allen 496 
 
 Fetters v. Humphreys 632 
 
 Fidler v. John 394 
 
 Fidler v. Lash 556 
 
 Field V. Mills . ..309, 310, 316, 318 
 
 Field V. Peoples 504 
 
 Field T. Stagg 765 
 
 Fifield V. Farmers Nat. B...54, 57 
 
 69 
 
 Fillebrown v. Hoar 328 
 
 Finch V. Riverside, etc., E. Co. . . 737 
 
 Findlay v. Smith 93 
 
 Finkelstein v. Herson 255 
 
 Finlay v. King's Lessee 453 
 
 Finley v. Isett 382 
 
 Finley v. Simpson 725 
 
 Firebaugh v. Divan 19 
 
 Firestone v. Firestone 166 
 
 First Com. & Sav. B. v. Milling 
 
 Co 53 
 
 First Nat. Bank v. Villegra 674 
 
 First Universalist Soc. v. Bo- 
 land 124, 125, 480, 483, 575 
 
 Firth V. Rowe 80, 309, 310 
 
 Fish V. Capwell 14 
 
 Fish V. Fish 158 
 
 Fish Co. V. Young 50, 60 
 
 Fisber v. Fields 131 
 
 Fisher v. Hershey 449 
 
 Fisher v. Koontz 190 
 
 Fish V. Wetmore 688 
 
 Fisher v. Beckwith 793 
 
 Fischer v. Johnson 71 
 
 Fisher v. Parry 785 
 
 Fiske V. Soule 19 
 
 Fitoh V. Johnson 706 
 
 Fitch V. Miller 794 
 
 Fitzgerald v. Goff 792 
 
 Fitzgerald v. Graliam 780 
 
 Fitzgerald v. Fitzgerald 39 e 
 
 Flack V. Gasnell 426 
 
 Flack V. Green Island 744 
 
 Flagg V. Bean 302 
 
 Page 
 
 Fleet v. Hegeman 35 
 
 Fleiachman v. Toplitz 354 
 
 Fleming v. Burnham 550 
 
 Fleming v. Griswold 82S 
 
 Fletcher v. Kelly 75 
 
 Fletcher v. Herring 26 
 
 Fletcher v. Livingston 14, 16 
 
 Fletcher v. McMillan 79 
 
 Fletcher v. Monroe 185 
 
 Fletcher v. Shepherd 183 
 
 Flowers v. Flowers 176 
 
 Floyd v. Clark 780 
 
 Floyd-Jones v. Schaan 350 
 
 Flynn v. Boweneaf 781 
 
 Flynn v. Flynn .-...179, 180, 183 
 
 Foley V. Godchaux 65S 
 
 Foley V. Kirk 323 
 
 Foley V. McCarthy 777 
 
 Foley V. Shalow 357 
 
 Foley V. Wyeth 263, 672 
 
 Folsom V. Parker 307 
 
 Folts V. Huntley 329 
 
 Foote V. Man. El. E. Co 693 
 
 Foot V. New Haven, etc., Co. . . 692 
 
 729 
 
 Forbell v. New York 661, 662 
 
 Forbes v. Rome, etc., R. Co 739 
 
 Ford v. Cobb 68, 71, 73 
 
 Ford V. Knapp 434, 436 
 
 Fordick v. Lyons 222 
 
 Forsaith v. Clark 133 
 
 Forster v. Juniata Bridge Co... . 751 
 
 Fortescue v. Bowler 99 
 
 Fosdick V. Fosdick 573 
 
 Fossion V. Landry 741 
 
 Foster v. Dwinel 153 
 
 Foster V. Gordon 164 
 
 Foster v. Mansfield 793 
 
 Foster v. Marshall 204, 205, 832 
 
 Foster v. Oldham 311 
 
 Foster's Appeal 169, 411 
 
 Fould V. Bond 820 
 
 Fowler v. Bott 233, 234, 347 
 
 Fowler v. Coates 458 
 
 Fowler v. Fowler 430 
 
 Fowler v. Ingersoll 497 
 
Table of Cases. 
 
 xsxvii 
 
 Page 
 
 Fowler v. Linquist 742 
 
 Fowler v. Poling 782 
 
 Fowler v. Ingersoll 601 
 
 Fox V. Buffalo Park 307 
 
 Fox V. Mackreth 394 
 
 Fox V. Nathans 854 
 
 Fox V. Phelps 132 
 
 Fox V. Pratt 162 
 
 France's Appeal 631 
 
 Frank v. Brigaldi 62 
 
 Frank v. Harrington 17 
 
 Frank v. Mandel 307 
 
 Frank v. N. Y. & L. E. & W. R. 
 
 Co 311 
 
 Franklin Coal Co. v. McMillan 94 
 
 Franklin, etc., Co. v. Card 251 
 
 Franklin Sav. Inst. v. People's 
 
 Sav. Bk 403 
 
 Fraser v. Ott 778 
 
 Fratt V. Whittier 60, 62 
 
 Frear v. Sweet 802 
 
 Frederick v. Callahan 703, 704 
 
 Frederick v. Emjg 181 
 
 Freeland v. Freeland 189, 191 
 
 Freeman v. Dawson 76 
 
 French v. Freeman 27 
 
 French v. Fuller 263 
 
 French v. Lord 178, 183, 198 
 
 French v. Old South Soc 574 
 
 French v. Pearce 823 
 
 Frentz v. Klotseh 440 
 
 Frcsohberg v. Hunter 304 
 
 Fresno Canal, etc., Co. v. Powell 709 
 
 Frey v. Boylan 183 
 
 Friedman v. Steiner 480 
 
 Fritz V. Pusey 783 
 
 Fritz V. Tompkins 696 
 
 Fryer v. Rockefeller 813 
 
 Fulmer v. Williams 773 
 
 Fulmer's Appeal 435 
 
 Fulper V. Fulper 416 
 
 Fulton V. S. R. R. T. Co 738 
 
 Furnish v. Rogers 507 
 
 G. 
 
 Gage V. Bissell 446 
 
 Gage V. Steinkrauss 25 
 
 Paoe 
 Gaines v. Green Pond Iron Min. 
 
 Co 93, 94 
 
 Galbraith v. Tracy 411 
 
 Galeb v. Pisirsky 308 
 
 Gall V. Gall 150, 153, 153 
 
 Gallagher v. Gallagher 186 
 
 Gallagher v. Shipley 37 
 
 Gait V. Chicago & N. W. R. Co.. 737 
 Gannett v. Albree . ..461, 456, 469 
 
 Gannon v. Hargadon 658 
 
 Ganson v. Baldwin 350 
 
 Ganson v. TifFt 311 
 
 Garamplo v. Cooley 19 
 
 Gardner v. Derring - 90 
 
 Gardner v. Gardner 788 
 
 Gardner v. Hazleton 362 
 
 Gardner v. Keteltas 782 
 
 Gardner v. Watson 703, 704 
 
 Garmire T. Willy 713 
 
 Garner v. Fry 191 
 
 Garnsey v. Gothard 383 
 
 Garrett v. McKie 668 
 
 Garrison v. Rudd 617 
 
 Garver v. Clouser 533 
 
 Garvey v. McDevitt 599, 600 
 
 Garwood v. N. Y. Central, etc., 
 
 R. Co 667 
 
 Gary v. Hastings 783 
 
 Gazzolo V. Chambers 783 
 
 Gebbhardt v. Reeves 749 
 
 Gedney v. Gedney 426 
 
 Geer v. Com 34 
 
 Geer v. Rockwell 34 
 
 Gehlen v. Knoer 664 
 
 Geible v. Smith 633 
 
 Geiger v. Braun 8S6, 259 
 
 Gen. Elec. Co. v. Transit Equip. 
 
 Co 64, 66 
 
 George v. Cooper 162 
 
 George v. Wood 814 
 
 Georgia South R. v. Reeves.... 735 
 
 Gerber's Est '. 585 
 
 Gerbert v. Trustees, etc 83 
 
 Gerrish v. Shattuck 689 
 
 Gibbs V. Williams 663 
 
 Gibbons v. Dayton 256 
 
 Gibson v. Crehore 182 
 
XXXVUl 
 
 Table of Cases. 
 
 Page 
 
 Gibson V. Holden 718, 715 
 
 Gibson v. Thomas 802, 805 
 
 Gibson v. Winslow 441 
 
 Gieszler v. De Graaf 785 
 
 Gilchrist v. Gow 808 
 
 Gilchrist v. Gough 814 
 
 Gildersleeve v. Hammond. . . 673, 673 
 
 Giles V. Austin 347, 473 
 
 Giles V. Comstock 337, 331 
 
 Giles V. Little 475 
 
 Gilford V. Winnipiseogee Lake 
 
 Co 648 
 
 Gilliam v. Madison Co. E. E. 
 
 Co 658 
 
 Gillespie v. Eogers 814 
 
 Gillett V. Johnson 664 
 
 Gillian v. Norton 331 
 
 Gillig V. Maas 814 
 
 Gillilan v. Swift 180 
 
 Gillis V. Chase 670 
 
 Gilmer v. Mobile & Montgomery 
 
 R. Co 709 
 
 Gilmore v. Driscoll. . . .652, 673, 675 
 
 Gilmore v. Hamilton 262 
 
 Girardin v. Lampe 813 
 
 Glass V. Glass 150 
 
 Gkason v. Emerson 185 
 
 Glenn v. Clark 161, 164 
 
 Gliddon v. Bennett 86 
 
 Glidden v. Blodgett 514 
 
 niobe Marble Mills Co. v. Quinn 76 
 
 79 
 
 Gloninger v. Franklin Coal Co.. 615 
 
 Glover v. Fischer 396 
 
 Glover v. Mersman 715 
 
 Glover v. Stillson 509, 550 
 
 (loddard v. Prentice 166 
 
 Godfrey v. Black 320 
 
 Goelet V. Spofford 262 
 
 Goelz V. Goelz 388 
 
 Goff V. Kilts 34 
 
 Gold Mining Co. v. Ish 32, 33 
 
 r.oldberg v. Lloyd 349 
 
 Goldsmith v. Goldsmith 391 
 
 Goodale v. Tuttle 658 
 
 fioodall V. Goodfrey 631, 632 
 
 Fact 
 
 Goodheart v. Qoodheart 180 
 
 Goodman v. Eandall 787 
 
 Goodrich v. Burbank . ..614, 616, 617 
 
 Goodrich v. Jones 26, 51 
 
 Goodright v. Davids 462, 463 
 
 Goodright v. Eichardson . ..... 237 
 
 Goodwin v. Clover 263 
 
 Goodwin v. Goodwin . ..28, 170, 236 
 
 Goodyear v. Vosburgh 12 
 
 Goodyear Shoe Machine Co. y. 
 
 Boston Terminal Co 331 
 
 Goralski v. Kostuski 442 
 
 Gordon v. George 701 
 
 Gordon v. Miller 76, 79 
 
 Gore V. Townsend 177 
 
 Gorham v. Daniels 492, 534 
 
 Gorham v. Gross 715 
 
 Gorman v. Simmons 515 
 
 Gould V. Crow 180 
 
 Gould V. Hudson R. E. E. Co 671 
 
 Gould V. Kemp 409 
 
 Gould V. Partridge 718 
 
 Gould V. Wagner 775, 778 
 
 Goulde V. Lynde 392 
 
 Gouverneur v. Nat. Ice Co 774 
 
 Covin V. De Miranda 384 
 
 Gower v. Postmaster Gen 700 
 
 Goyette v. Keenan 769 
 
 Grace M. E. Church v. Dobbins 652 
 
 Grady v. McCorkle 176 
 
 Graff V. Fitch 21 
 
 Grafton v. Moir 689 
 
 Graham \. Graham . ..18S, 1S9, 190 
 
 Graham v. Stern 777 
 
 Graham v. Van Wyck ISO 
 
 Grand June. Canal Co. v. Shugar 
 
 L- E 659 
 
 Grandona v. Lovdal 37 
 
 Grand Rapids, etc., R. Co. v. 
 
 Heisel 737 
 
 Grand Rapids v. Powers 751 
 
 Granite Bid. Corp. v. Greene... 701 
 
 Grant v. Dodge leo 
 
 Grant v. Stanley 157 
 
 Graver v. Scholl 668 
 
 Graves v. Atwood 539 
 
Table or Cases. 
 
 zxxix 
 
 Page 
 ©raves v. Berdan . ..S34, 854, 355 
 
 676 
 ■Graves v. Cochran 201 
 
 <lravcs V. Deterling 451, 454 
 
 Graves v. Dudley 793 
 
 Graves v. Graves 813 
 
 Graves v. Weld 39, 40 
 
 Gray v. Blanchard 465 
 
 Gray v. Kufman Dairy Co... 335, 340 
 
 343 
 
 Gray v. McCune 183 
 
 Gray v. Reynolds 241 
 
 ■Graydon's Ex'rs v. Graydon . . . 475 
 
 Green v. Amstrong 10, 13 
 
 Green v. Collins 784 
 
 Green v. Garrington 813 
 
 ■Green v. Gilbert 666 
 
 Green v. Hewitt 495 
 
 Green v. Horn 770, 772, 813 
 
 Green v. Putnam 433, 434, 436 
 
 Greena-walt v. McEneeley 153 
 
 Green v. Anglemire 823 
 
 Greene v. Conant 791, 797 
 
 Greene v. Greene 168 
 
 Greene v. Huntington 164 
 
 Greene v. Reynolds 172 
 
 Greenby v. Wilcoeks 779, 782 
 
 Greenlief v. Brooklyn, etc., R. 
 
 Co 449 
 
 Greenough v. Welles 546 
 
 Greer v. Blauchar 404 
 
 Greer v. Van Meter 636 
 
 Gregory v. Rosenkranz 25 
 
 Grider v. Eubanks 191 
 
 Gridley v. Blooraington 307 
 
 Griffin v. Banks 150 
 
 Griffin v. Bixby 37 
 
 Griffin v. Griffin 553 
 
 Griffin V. Taylor 392 
 
 Griffith's Case 89 
 
 Griggs V. Landis 462, 472 
 
 Gri:-,'7:a V, Smith 160 
 
 Grimes v. Ragland 825 
 
 Grimes v. Shirk 521 
 
 Grimmer v. Frederick . . .■ 496 
 
 Griscom v. Moore 176 
 
 Pagb 
 
 Grissom v. Moore 169 
 
 Griswold v. Butler 828 
 
 Gris-wold v. Cook 242 
 
 Griswold v. Johnson 401, 410 
 
 Grommea v. St. Paul Trust Co.. 345 
 
 Grove v. Hodges 614 
 
 Grubb V. Grubb 614, 615 
 
 Grube v. Wells 823 
 
 Guerin v. Moore 176, 177, 200 
 
 Guernsey v. Black Diamond, etc. 
 
 Co 790 
 
 Guest V. Farley 377 
 
 Gugel V. Isaacs 337, 331 
 
 Gulf, etc., R. Co. V. Smith 703 
 
 Gulliver v. Fowler 349, 353 
 
 Gunderson v. Kennedy 63 
 
 Gunter v. Laffan 141 
 
 Gustavson v. Hanna 737 
 
 Guthrie v. Jones 74, 79 
 
 Guthrie v. New Haven 743 
 
 Gutman v. Conway 340, 343 
 
 H. 
 
 Haak Lumber Co. v. Crothera . . 416 
 
 Haaven v. Hoass 389 
 
 Haberman v. Baker 773, 778 
 
 Hackett v. Amsden 53 
 
 Haffick V. Stober 80, 86 
 
 Hafner v. Hafner 588 
 
 Hagan v. Varney 323 
 
 Haggerty v. Harkenberry 503 
 
 Haggerty v. Lee 633, 657, 762 
 
 Haight V. Hall 213 
 
 Hajan v. Varney 236 
 
 Haldsman v. Bruckhardt 658 
 
 Hale V. Powell 826 
 
 Hall V. Augusbury 643 
 
 Hall V. Chaffee 514 
 
 Hall V. Eaton 773 
 
 Hall V. Ewin 732 
 
 Hall V. Hall 790 
 
 Hall V. Harris 793, 795, 797 
 
 Hall V. Ionia 617 
 
 Hall V. Lawrence 613, 618 
 
 Hall V. Leonard 764 
 
Table of Cases. 
 
 Page 
 Hall V. La France Fire Engine 
 
 Co 496, 500, 502, 515 
 
 Hall V. Lamb 383 
 
 Hall V. Meredin 743 
 
 Hall V. Middleby 327, 346, 347 
 
 Hall V. Otis 540 
 
 Hall V-. Piddock..433, 434, 436, 445 
 
 449 
 Hall V. Whitehall Water Power 
 
 Co 773 
 
 Hallenback v. Rogers 388 
 
 Halsey v. McCormick . ... 772, 774 
 
 Hamilton v. Austin 101 
 
 Hamilton v. Dennison 263 
 
 Hamilton v. White 689 
 
 Hamlen v. Keith 721 
 
 Hamlin v. Atty.-Gen 775 
 
 Hamlin v. Hamlin 790 
 
 Hammell v. Hyatt 394 
 
 Hammond v. Zehner 653 
 
 Hanahan v. McManus 652 
 
 Hangwout v. Murphy 398 
 
 Hanly v. Morse 806 
 
 Hannah v. Carver 434 
 
 Hannon v. Chistopher 514 
 
 Hansen v. Meyer 703, 704 
 
 Hapgood V. Houghton 454 
 
 Harbeck v. Sylvester 705 
 
 Hardenberg v. Hardenberg 415 
 
 416, 417 
 
 Hardin v. Jordan 774, 775 
 
 Harding v. Austin 345 
 
 Harding v. Larkin 783 
 
 Harmony v, Bingham 473 
 
 Harmony Bid. Assn. v. Berger.. 63 
 
 Harndon v. Stultz 35, 37 
 
 Harnett v. Maitland 90 
 
 Harold v. Jones 750 
 
 Harper v. Clayton 197 
 
 Harrer v. Wallner 420 
 
 Harriman v. Gray 183, 184 
 
 Harrington v. Edwards 752 
 
 Harrington v. Pier 584, 585 
 
 Harris v. Coates 167 
 
 Harris t. Frink.39, 40, 232, 261, 263 
 Harris v. Greenberger 324 
 
 Paob 
 
 Harris T. Hayes 59 
 
 Harris v. Hiscock 757 
 
 Harris v. Howell 510, 525 
 
 Harris v. McElroy 512 
 
 Harris v. Mclntyre 806 
 
 Harris v. Roberts 676 
 
 Harris v. R> ding 676 
 
 Harris v. Scource 789 
 
 Harris v. Scovel 51 
 
 Harrison v. Duke of Rutland... 733 
 
 Harrison v. Peck 201 
 
 Harston v . Elden 581 
 
 Hart V. Buroh 196, 193 
 
 Hart V. Ghalker 685, 686 
 
 Hart V. Chase 213 
 
 Hart V. Lyon 713 
 
 Hart V. McCollum 178 
 
 Hart V. Seymour 581 
 
 Hart V. Vose 668 
 
 Hartford v. R. R. Co 743 
 
 Hartung v. Witte 703 
 
 Hartwell v. Bissell 21 
 
 Hartz V. Eddy 316 
 
 Harvey v. Harvey 89, 98 
 
 Harvey v. Squires 600 
 
 Harvey v. Walters 695 
 
 Hascall ■r. King 386, 588 
 
 Haslem v. Lockwood 26 
 
 Haslett V. Glenn 41 
 
 Hassoltine v. Seavey 342 
 
 Hastings v. Dickenson 191 
 
 Hastings v. ilace 199 
 
 Hastings v. Stevens 158, 181 
 
 Hasty V. Wheeler 97 
 
 Hatch V. DAvight 773 
 
 Hatch V. Hatch 334 
 
 Hatch V, Palmer 181 
 
 Hatch V. Small 177 
 
 Hatch V. Stamper 349, 352 
 
 Hatcli V. Van Dewoort 313 
 
 Hatfield v. Sneden 173, 174, 210 
 
 211, 214 
 
 Hathaway v. Payne 793 
 
 Hauftman v. Haiiftman 169, 412 
 
 Hang V. Schiimaclier. . . .503, 593, 602 
 Hougli's Appeal 660 
 
Table of Cases. 
 
 xli 
 
 Page 
 
 Hank v. McComas 443 
 
 Havens v. Sea Shore Land C!o . . . 494 
 
 Haverhill Sav. B. v. Griffin 623 
 
 Haverstick v. Stupe 637 
 
 Haverstick's Appeal 500 
 
 Hawkins v. Hersey 67 
 
 Hawkins v. Ragsdale 186 
 
 Hawley v. James 163, 165, 599 
 
 Hay V. Knauth 522 
 
 Hayden v. Butcher 651 
 
 Hayden v. Merrill 427 
 
 Hayden v. Stone 741, 742 
 
 Hayden v. Inhabitants of Stough- 
 
 ton 453, 455, 458, 462, 466 
 
 Hayf ord v. Wentworth ... 54, 60, 79 
 
 Haynes v. Aldrich 252, 254 
 
 Hayes v. Waldron 566 
 
 Haynes v. Sherman 592, 608, 609 
 
 Haynie v. Dickens 195 
 
 Hays V. Hays 658 
 
 Haywood v. Brunswick Bid. Co. 724 
 
 Haywood v. Haywood 92 
 
 Haywood v. Miller 238 
 
 Hazard v. Robinson 694 
 
 Hazelton v. Webster 24 
 
 Hazlett V. Sinclair 706 
 
 Healy v. Healy 612 
 
 Heard v. Read 652 
 
 Heartt v. Kruger 677, 682 
 
 Heath v. Hewitt 764 
 
 Heath v. Randall 727 
 
 Heath v. White 209 
 
 Heaton v. Findlay 49 
 
 Heavilon v. Heavilon 20 
 
 Hecht V. Detman 19, 23 
 
 Hedden v. Nederburg 257 
 
 Hedderick v. Smith 79, 80, 83 
 
 Heddleston v. Hendricks 748 
 
 Heflfner v. Lewis 76, 79 
 
 Heisen v. Heisen 183 
 
 Helfrich v. Cantonsville Water 
 
 Co 667 
 
 Hemphill v. Pry 55 
 
 Henderson v. Blackburn 548 
 
 Henderson v. Eason 426 
 
 Henderson v. N. Y. Central R. Co. 737 
 
 Pace 
 
 Hendrick v. Cook 668 
 
 Hendricks v. Stark 680, 781 
 
 Hendriokson v. Ivins 20 
 
 Hendy v. Dinkerhoff 57, 71 
 
 Hendry v. Squier 262 
 
 Hennessy v. Patterson .. 490, 500, 507 
 
 515 
 
 Henning v. Burnet 684, 685 
 
 Henry v. Tupper 472 
 
 Henschel v. Mamero 393 
 
 Herbold v. Chicago 742 
 
 Herd v. Carton 475 
 
 Herlakenden'a Case 101 
 
 Herman v. Roberts 688 
 
 Heme v. Bernbow 88, 90 
 
 Herr v. Payson 394 
 
 Herrell v. Sizeland 254 
 
 Herrick v. Newell 13, 15 
 
 Hersey Est. v. Steiger 701 
 
 Mersley v. Metzgar 19 
 
 Herter v. Mullen 252, 253 
 
 Herzig v. Blumenkrohn 310, 311 
 
 ffertzog v. Marx 64, 779 
 
 Heslop v. Healop 184 
 
 Hess v. Roberts 241 
 
 Hesseltine v. Leavey 340 
 
 Hetfield v. Lawton 255, 256 
 
 Hetherington v. Clark 810 
 
 Hetzel V. Barber 556, 802 
 
 Hetzel V. Lincoln 416 
 
 Hewlins v. Shippman 692 
 
 Hext V. Gill 99 
 
 Hey V. Coleman 645 
 
 Hey V. McGrath 255 
 
 Hibbard v. Smith 798 
 
 Hibblewhite v. McMorine 765 
 
 Hieatt v. Morris 678 
 
 Hicks V. Bell 32 
 
 Hicks V. Coleman 825 
 
 Hicks V. Smith 16 
 
 Hides V. Stebbins 163, 165 
 
 Higden v. Williamson. . . ; 514 
 
 Higgins V. Breen 148 
 
 Higgins V. Flemington Water Co. 654 
 
 667 
 Higgins V. Kusterer 25 
 
xlii 
 
 Table of Cases. 
 
 Paoe 
 
 Higgins V. Reynolds 733 
 
 Hiles V. Fisher 415, 416, 417, 418 
 
 419 
 
 Hill V. Beacon 783 
 
 Hill V. Hill 384 
 
 Hill V. Rockingham Bank 496 
 
 Hill V. Wentworth 50, 59 
 
 Hillen V. Iselin 554, 582, 600 
 
 Hillman v. Bonslaugh 533 
 
 Hilliam's Exrs. v. Dixon 414 
 
 Hilliard v. Gas Coal Co 349 
 
 Hills V. Simons 503 
 
 Hillyer v. Vandewater 802 
 
 Hinchcliffe v. Hinman 792 
 
 Hinehliffe v. Shea 176, 180, 181 
 
 Hinckman v. Patterson Horse R. 
 
 Co 737 
 
 Hinds V. Ballon 159 
 
 Hindson v. Bush 185 
 
 Hindson v. Markle 666 
 
 Iliiiman v. Bocth 796 
 
 Hiugham v. Rabett 685 
 
 Hiram v. Pierce 149 
 
 Hirrie v. Ingraham 381 
 
 Hirsh V. Auer 381 
 
 Hitner v. Ege 209, 223 
 
 Hittinger v. Eames 774 
 
 Hitz V. Nat. Metropolitan Bank. 217 
 
 Hoadley v. San Francisco 748 
 
 Hoag V. Delorme 648 
 
 IToban v. Cable 769 
 
 Hol'oUen, etc., Co. v. Hoboken.. 745 
 
 748 
 
 Hodge V. Phinney 201 
 
 Hodge V. Sloan 722 
 
 Hodgkins v. Farringtnn 729 
 
 Hodge's Exr's v. Amerman 805 
 
 Hodgkins' Petition 447 
 
 Hoffenberth v. Myers 303, 305 
 
 Hoffman v. Armstrong 35, 36 
 
 Hoffman v. Stigers 417 
 
 Hoffman v. Van Allen 256 
 
 Hogan V. Central Pac. R. Co... 739 
 
 Hogan V. Hogan 90, 91 
 
 Hoge V. Hoge 394 
 
 Hogg V. Beerman 753 
 
 Paok 
 
 Hogan V. Curtin 475 
 
 Hohamp v. Hagaman 186 
 
 Hoit V. Stratton 16 
 
 Holbrook v. Chamberlain 79 
 
 Holbrook v. Finney 160 
 
 Holbrook v. Truesdale 793 
 
 Holcomb V. Coryell 433 
 
 Holden v. Cbandler 774 
 
 Holden v. Wells 170, 210, 528 
 
 Holder v. Coates 35, 38 
 
 Holdone v. Cold Spring.743, 743, 744 
 
 Hole V. Rittenhouse 825 
 
 Holland v. Alcoek 379 
 
 Holland v. Hodgson 76 
 
 Holliday t. Franklin Bank 801 
 
 HoUis V. Burns 255, 258 
 
 Hollister v. Shaw 553 
 
 Hollywood V. First Parish Brock- 
 ton 311 
 
 Holm V. Claus Lipsins Brew. Co. 705 
 
 Holmes v. Best 43'5 
 
 Holmes v. Danforth 781 
 
 Holmes v. Oilman 393 
 
 Holmes v. Seely 740 
 
 Holmes v. Turners Falls Co 822 
 
 Holt V. Sargent 685, 747 
 
 Holton V. Milwaukee 671 
 
 Holyoke Water P. Co. v. Lyman. 753 
 Home Life Ins. Co. v. Sherman. 328 
 
 783 
 Home Mut. Ins. Co. v. Tompkies 
 
 & Co 395 
 
 Homer v. Stilwell ; . . . 646 
 
 Hone's Ex'rs v. Van Schaick .... 599 
 Honeywood v. Honey wood. .. .91, 92 
 
 Hood V. Hood 185 
 
 Hook V. Bolton 62, 63 
 
 Hooker v. Cummings. . . .35, 753, 753 
 
 Hooks V. Forst 262 
 
 Hooper v. Cimunings 458, 465 
 
 ilooper V. Hobson 750 
 
 Hoosie Stone Co. v. Malott 617 
 
 Hooton V. Holt 233 
 
 Hope V. Bip-.vor 611 
 
 Hope V. Hope sjLi 
 
Table or Cases. 
 
 xliii 
 
 Page 
 
 Hopewell Mills v. Tanton Sav. 
 
 B 54, 55, 56, 68 
 
 Hopkins t. Bryant 176 
 
 Hopkins v. Crossley 585 
 
 Hopkins v. Grimsliaw 391 
 
 Hopkins v. Hopkins 535, 537, 537 
 
 Hopkins v. Kent 378 
 
 Hopper V. Demarest 514 
 
 Horgan v. Bickerton 443 
 
 Horn V. Ind. Nat. B 66 
 
 Horn V. Miller 699, 706, 708 
 
 Hornberger v. Miller 401, 410 
 
 Horner v. Chicago, etc., E. Co. . . 456 
 
 Hornsey T. Casey 195 
 
 Horstman v. Flege 193 
 
 Horwitz V. Morris 553 
 
 Hoske V. Gentzlinger 357 
 
 Hoas V. Hoss 473 
 
 Hottenstein v. Lercb 805, 806 
 
 Hough V. Brown 339 
 
 Houghton V. Chicago R. Co 751 
 
 Houghton V. Cooper 1 92 
 
 Houghton V. Hapgood \ .... 213 
 
 Houghton V. Mendenhall 678 
 
 House T. Fowle , 191 
 
 House V. House 73, 226, 227 
 
 House V. Jackson 153, 154, 499 
 
 House V. Metealf 305 
 
 Houston V. Smith 154 
 
 Houx V. Batteen 763 
 
 Hovey v. Haverstraw 749 
 
 Howard v. Chase 410 
 
 Howe V. Andrews 24 
 
 Howe V. Bachelder 13 
 
 Howe V. West End St. R. Co 739 
 
 Howell V. Schenck 39, 43, 43 
 
 Howell V. Thompson 186 
 
 Howells V. Hettrick 808 
 
 Hoxsey v. Hoxsey 539 
 
 Hoyle V. Platsburgh, etc., R. Co. 48 
 
 Hoyt V. Kennedy 687 
 
 Hoyt V. Keteham 458 
 
 Hoyt's Estate 475 
 
 Hubbard v. Hubbard 462 
 
 Bubbard t. Norton 781 
 
 Paqb 
 Hubbell T. East Cambridge 
 
 Bank 60 
 
 Hubble V. Cole 95 
 
 Huck V. Fleutye 683 
 
 Hudson V. Steere 167 
 
 HuflF V. McCauley 614, 619, 789 
 
 Huffman v. Hall 741, 743 
 
 Hughes V. Allen 163 
 
 Hughes V. Bingham 741 
 
 Hughes V. Chatham 339 
 
 Hughes T. Graves 819 
 
 Hughes V. Pickering 821, 837 
 
 Hugunin v. Cochrane 161 
 
 Hulick V. Scovil 798 
 
 Huling V. Abbott 815 
 
 Hull V. Culver 554 
 
 Hull V. Glover 184 
 
 Hull V. Wood 255 
 
 Humiston, K. &. Co. v. Wheeler. . 341 
 
 348, 354 
 
 Humphrey r. Phinney 199 
 
 Humphreys v. Blasingame 695 
 
 Humphries t. Brogden 676 
 
 Humphreys v. Eastlack. 775 
 
 Hummelman v. Mounts 766 
 
 Hunels v. Higman 57 
 
 Hungerford v. Wagoner 856 
 
 Hunkins v. Hunkius 168 
 
 Hunt V. Comstock 233 
 
 Hunt V. Johnson 803, 803 
 
 Hunt V. Peake. 673 
 
 Hunt V. Raflee 779 
 
 Hunt V. Rousmanier's Adm'p.... 656 
 
 Hunt V. Wright 574 
 
 Hunter v. Osterhoudt 463 
 
 Hunter v. Reiley 337 
 
 Hunter v. Trustees, etc 741, 744 
 
 Hunter v. Whitworth 209, 310 
 
 Huntington v. Asher 24, 614 
 
 Huntington v. Parkhurst 258 
 
 Hurd v. Curtis ' 70S 
 
 Hurd V. Gushing 143, 362, 478 
 
 Hurley v. Hurley 442 
 
 Hurley v. Sehring. 344 
 
 Hurst V. Hurst 538 
 
 Husband v. Aldrieh 433 
 
xliv 
 
 Table of Cases. 
 
 Page 
 
 Huss V. Stephen 76S 
 
 Huston V. Cincinnati, etc., R. 
 
 Co 706 
 
 Hutcliins V. Kimmell 148 
 
 Hutchins v. Van Vechten 382 
 
 Hutchinson v. Thomaa 721 
 
 Hutchinson v. tJlrich 718 
 
 Huttemeier v. Albro 631 
 
 Huyck T. Andrews 780, 781 
 
 I. 
 
 Ibbs V. Richardson 253 
 
 Idel V. Mitchell 308 
 
 Igwerson v. Rankin 305 
 
 Hlinois Cent. R. Co. v. Illinois.. 671 
 Imlay v. Union Branch R. Co . . 737 
 Indianapolis, etc., R. Co. v. Hart- 
 ley 737 
 
 Indianapolis Water Co. v. Nulte. 709 
 
 Ingalls V. Newhall 425 
 
 IngalU T. Flamondon 677 
 
 Ingalls V. R. R. Co 71 
 
 IngersoU v. Lewis 822 
 
 Inglis T. Sailors Snug Harbor.. 584 
 International Trust Co. v. Weeks. 344 
 
 346 
 In re Adams and Kensington 
 
 Vestry 384 
 
 In re Birmingham 3b Dist. Land 
 
 Co , 721 
 
 In re Brown's Trust 554 
 
 In re Bush 319 
 
 In re Cartwright 87, 89 
 
 In re Dowe 141 
 
 In re Duke of Marlborough 392 
 
 In re Evans Est 503 
 
 In re Frost 572 
 
 In re Gotreau's Estate 192 
 
 In n Hargreaves 581 
 
 In re HoUis Hospital 574 
 
 In re Harrington 149 
 
 In re Jackson's Will 551 
 
 In re Kirwan's Tmsti 546 
 
 In re Mailea.y 574 
 
 In re March 417 
 
 In re Murphy't Est 550 
 
 Paqi 
 
 In re Segar Estate M 
 
 In re Tillinghast 141 
 
 In re Simond's Est 381 
 
 In re Threlfall 262 
 
 In re Yonkers 731 
 
 Ireland v.^Nichols 467, 470 
 
 Irons T. Webb 16 
 
 Irwin T. Covell 437 
 
 Irwin V. Covode 93 
 
 Irwin V. Yeager 740 
 
 Irvine v. Wood 303, 304 
 
 Isenhart v. Brown 196 
 
 Isom V. Rex Crude Oil Co 345 
 
 Ive V. Richardson 788 
 
 Ive'a Case 336 
 
 Ivory V. Klein 226 
 
 Izard V. Bodine 424 
 
 J. 
 
 Jackson v. Allen 463 
 
 Jackson v. Andrews 97 
 
 Jackson v. Bodle 798 
 
 Jackson v. Brownson. .90, 91, 92, 316 
 
 452 
 
 Jackson v. Cator 99 
 
 Jackson v. Churchill 193 
 
 Jackson v. Claw 153 
 
 Jackson v. Crysler 451,465 
 
 Jackson v. Delaney 399 
 
 Jackson v. Dunsbagh 769 
 
 Jackson v. Hathaway 733 
 
 Jackson v. Jackson.204, 205, 816, 217 
 Jackson v. Johnson.156, 207, 208, 209 
 
 210 
 
 Jackson v. Leonard 888 
 
 Jackson v. Mancius 281 
 
 Jackson v. Matsdorf 389 
 
 Jackson v. Moore 378 
 
 Jackson v. Newkirk 143 
 
 Jackson v. Taterno 327 
 
 Jackson v. Phillipps 379 
 
 Jackson v. Post 819 
 
 Jackson v. Root 764 
 
 Jackson v. Rowland 795, 796 
 
 Jackson v. Sellick 208 
 
 Jackson t. Silvernail 319 
 
Tahi,^ of Cases. 
 
 sh 
 
 Page 
 
 Jackson v. Smith 435 
 
 Jackson v. Stevenson 734 
 
 Jackson v. Vermilyea 836 
 
 Jaekson v. Waldron 543 
 
 Jackson v. Wilsey 249, 356 
 
 Jackson v. Wiseman 63 
 
 Jackson v. Woodruff 834, 825 
 
 Jackson, etc., R. Co. v. Davison. 804 
 Jackson d. Haidcntierg v. Schoon- 
 
 maker 820 
 
 Jacksonville Nat. Bank v. Bees- 
 ley 388 
 
 Jacobs V. Jacobs 189 
 
 Jaeger v. Hardy 804 
 
 James v. Ihi Bols 141 
 
 James v. Falk 383 
 
 James v. Upton 164 
 
 Jameson v. Ilayward 447 
 
 Janes T. Jenkins 636 
 
 Jansen t. McCahill 788 
 
 Jaquith v. Mass. Baptist Conv.. 389 
 Jarechi v. Philharmonic Soc... 63 
 
 Jay V. Michael 626 
 
 Jee V. Audley 579 
 
 Jefferies v. Allen 199 
 
 Jenkins v. Hopkins 783 
 
 Jenkins v. Jenkins 763 
 
 Jenning's Lessee v. Wood 814 
 
 Jennings v. McCarthy 240, 264 
 
 Jennings v. Tisbury 745 
 
 Jennings v. Van Sehaick 301 
 
 Jeremiah v. Pitcher 165 
 
 Jermyn v. Hunter 63, 73 
 
 Jerome v. Orton 789 
 
 Jewell V. Harding 790 
 
 Jewett V. Felsheiser 175 
 
 Jewett V. Hussey 653 
 
 Job V. Patton 426 
 
 Jocelyn v. Nott 685 
 
 Johns V. Johns 28 
 
 Johns V. McKibben 833 
 
 Johnson v. Farley 798 
 
 Johnson v. Grenall 778 
 
 Johnson v. Gibson 815 
 
 Johnson v. Johnson . . 88, 90, 91, 101 
 
 403 
 ijohnson v. Jordan 633, 638 
 
 Page 
 Johnson's Adm'r v. Johnson.... 437 
 
 Johnson v. Mehaffy 53 
 
 Johnson v. Montgomery 180, 764 
 
 Johnson v. Oppenheim. .335, 345, 349 
 
 354, 675 
 
 Johnson v. Eayner 769 
 
 Johnson v. Shelter Island, etc., 
 
 Assn 632 
 
 Johnson v. Shields 196 
 
 Johnson v. Smith 183 
 
 Johnson v. Van Velsor 181 
 
 Johnson v. Williams 807 
 
 Johnson's Trusts , 583 
 
 Johnstone v. Johnstone 417 
 
 Johnston v. King 478 
 
 Johnston's Estate 566, 571, 581 
 
 Jonas V. Hunt 20O 
 
 Jones V. Cable 403 
 
 Jones V. Carter 345, 451, 463 
 
 Jones V. Ches., etc., E. Co 474 
 
 Jones V. C. & O. R. Co 453, 465 
 
 Jones V. Fleming 190 
 
 Jones V. Hughes 173 
 
 Jones V. Jones 147, 153, 338, 476 
 
 Jones V. Patterson 202 
 
 Jones V. Robinson SOS 
 
 Jones V. Rushmore 344 
 
 Jones V. Swayze 791, 797 
 
 Jones V. Timmons 783 
 
 Jones V. Warner 783 
 
 Jones V. Zoller 150 
 
 Jooss V. Fay 416 
 
 Jordan v. Eve 781 
 
 Jordan v. Indianapolis Water 
 
 Co 341, 316 
 
 Jordan v. McOlure 511 
 
 Jordan v. Sullivan 301 
 
 Jorgensen v. Squiers 303, 304 
 
 Joslin V. McLean 340 
 
 Joslyn v. Joslyn 426 
 
 Joy V. Boston Penny Sav. Bk. . . 713 
 
 J. Neils L. Co. v. Hines 12 
 
 Julia Bid. Assn. v. Bell Tele- 
 phone Co 732, 737 
 
 Junction R. Co. v. Harris 202 
 
 Junks V. Cannon 163 
 
 Jupp V. Buckwell 416, 417 
 
xlvi 
 
 Table ov Cases. 
 
 Paob 
 K. 
 
 Kade v. Lauder 185 
 
 Kammrath v. Kidd 19 
 
 Kane V. N. Y. El. R. Co 739 
 
 Kanouse v. Stockbower 773, 775 
 
 Karker's Appeal 530 
 
 Karus V. Olney 814 
 
 Katz V. Walkinshaw 661 
 
 Kauffman v. Griesemer 633 
 
 Kauflman v. Peacock 163 
 
 Kean v. Calumet Canal Co 751 
 
 Kean v. Connelly 437 
 
 Kearney v. Kearney 335 
 
 Keats V. Hugo 637, 651 
 
 Keeler v. Eastman 93, 101 
 
 lleeler v. Keeler 63, 64 
 
 Keep V. Miller 395 
 
 Kellam v. McKinstry 16 
 
 Kelley v. Dunning 660, 638 
 
 Kelley v. G-oodwin 31 
 
 Kelley v. Ohio Oil Co 663 
 
 Kelley v. Meins 539, 540 
 
 Kellmer v. Wuchner 435 
 
 Kellog V. Piatt 783 
 
 Kellogg V. King 34 
 
 Kellogg V. Robinson 735 
 
 Kcllum V. Berkshire Life Ins. Co. 
 
 Co 779, 781 
 
 Kelsey's Appeal 434 
 
 Kelsoy v. Romer 780 
 
 Kemp V. BTadford ...... ^ 503 
 
 Kendall v. Hathaway 54 
 
 Kennedy v. Burnap 637 
 
 Kennedy v. City of New York.. 252 
 
 Kennedy v. Kennedy 173 
 
 Kennedy v. ]\lcCloskcy 393 
 
 Kenyon v. See ' 514 
 
 Kent vT. .Judkins 689 
 
 Kent V. JlcCann 185 
 
 Kent V. Jl'orrison 553 
 
 Kent V. Welch 1 783 
 
 K»^iit V. Williams 803 
 
 Kern r. Howell 388 
 
 Kerr v. Hill.-. 20 
 
 Kcrv V. Kingsbury 85 
 
 Rcrr v. Vcrner .■ 509 
 
 PAG3 
 
 Kerrains v. The People 838, 239 
 
 Kessam v. Dierkes 553 
 
 Ketcham v. Walsworth 419 
 
 Kettle River E. Co. v. Eastern 
 
 K. Co 709, 722 
 
 Kew V. Trainor 454, 469 
 
 Kidd V. Dcn.-.i&ou 91 
 
 Kidder v. Rexford 431 
 
 Kiefel v. Keppler 549 
 
 Kile V. Giebner 76 
 
 Killmore v. Howlett 13 
 
 Killner v. Wuebner 434 
 
 Kilpatrick v. Barron 599 
 
 Kim V. Griffin 713 
 
 Kimball v. Ladd 649, 650 
 
 Kimball v. Crocker 586 
 
 Kimball v. Grand Lodge, etc . . . 74 
 
 Kimmel v. Shaffer 140 
 
 Kincaid v. Indianapolis Nat. Gas 
 
 Co 731 
 
 King V. Bushnell 166 
 
 Kir.e v. Farrell 394 
 
 King T. Carmichael 425 
 
 King V. Jones 787 
 
 King V. Killride 783 
 
 King V. Merriam 13 
 
 King V. Miller 93, 101 
 
 King V. Montague 750 
 
 King V. Stetson 161 
 
 King V. Wight 712, 713 
 
 Kingdon v. Nottle 787 
 
 Kingley v. Halbrook 789 
 
 Kingsbury v. Burnside 383 
 
 Kingsbury v. Westf all 34S 
 
 Kingsley v. Goldsborough L. Co. 636 
 
 Kingsley v. Holbrook 13 
 
 Kingsley v. Smith 314 
 
 Kinsman v. Kinsman 20 
 
 Kip V. Merwin 354 
 
 Kipper v. Kurtz 783 
 
 Kirk V. Crystal 70 
 
 Kirkham v. Sharp 685 
 
 Kirkpatrick v. Kirkpatrick.153, 154 
 
 185 
 
 Kiser v. Heuston 814 
 
 Kissam T. Dierkes 550, 556 
 
Table of Cases. 
 
 xlvii 
 
 Page 
 
 Kittle V. Van Dyck 161 
 
 Kittredge v. Woods 26 
 
 Kitts V. Wilson 181 
 
 Klme V. Beetle 307 
 
 Klie V. Van Broock 96, 98 
 
 Klingensteiii v. Goldwasser 256 
 
 Knapp V. St L. T. R. Co 738 
 
 Kneckeii v. Voltz ■617, 625 
 
 Kneeliind v. Van Valkenburgh , . 775 
 
 ICncller v. Lang 821 
 
 Knight V. Heaton 747, 748 
 
 Knight V. Indiana, etc., Co.... 261 
 
 Knowles v. Toothaker 770, 771 
 
 Kocher v. Kocher 223 
 
 Knapp V. Windsor 414 
 
 Knickerbocker Trust Co. v. Penn 
 
 Cordage Co 57 
 
 Knight V. Mahouey 475 
 
 Knolls V. Barnhart 441 
 
 Knowles v. Harris 42S 
 
 Knowlton v. Atkins 382 
 
 Knox V. Jones 592, 593, 605, 610 
 
 Koek V. West 813 
 
 Koehler & Co. v. Brady 466, ITO 
 
 Koen V. Bartlett 93 
 
 Koepker v. Eedel 321 
 
 Kohler v. Brady 322 
 
 Kolasky v. Michaels 347 
 
 Koltenbrock v. Cracraft.220, 221, 823 
 
 Kouvalinka V. Schlegel 193 
 
 Koopman v. Bloodgett 750 
 
 Koppel V. Tilyou 311 
 
 Koplitz V. Gustavus 258 
 
 Kramer t. Carter 780, 784 
 
 Kramer v. Rieke 783 
 
 Krausi v. Fife 326 
 
 Kreiser's Appeal 190 
 
 Krouska v. Janke 764 
 
 Kruschke v. Stefan 411 
 
 Kurtz V. Hoke 686 
 
 Kybicld v. Kalish 256 
 
 Kyle V. Kavanagh 761 
 
 Lacustrine Fertilizing Co. v. The 
 Lake Guano, etc., Co... 10, 12, 803 
 
 Page 
 Lade v. Shepherd 733 
 
 Lailerty v. Mulligan 780 
 
 La Framboise v. Grow 184 
 
 Lake v. Nolan 183 
 
 Lake Erie R. Co. v. Kennedy... 620 
 Lake Erie, etc., R. Co. v. Priest. 706 
 
 Lakey v. Kortright 551 
 
 Lamb v. Crosland 645, 654 
 
 I ami'i V. Pierce 804 
 
 Lambe v. Dayton 539 
 
 Lambert v. Aloora 658 
 
 Lampman v. Milks 637, 638 
 
 Lancaster Bank v. Mj-ley 138 
 
 Langworthy v. Heeb 164 
 
 Landon v. Hutton 383 
 
 Landon v. Piatt 69 
 
 Langley v. Chapin Co 574 
 
 Landon v. Townscnd 209 
 
 Lansing v. Smith 671 
 
 Lansing V. Thompson 349 
 
 Lansing Iron V.'orks Co. v. Wil- 
 bur 681 
 
 Lapish V. Bangor Bank 751 
 
 L.ardner v. Williams 553 
 
 Lariverre v. Rains 503, 504 
 
 Larkin v. Avery 246, 258, 339 
 
 Larsen v. Petersen 631, 834 
 
 Larson v. Cook 16 
 
 Lars,on v. Fitzgerald 747 
 
 Lasala v. Holbrook.652, 672, 674, 675 
 
 Latham v. Atwood 17, 39, 40 
 
 Lathrop y. Foster 180 
 
 Laud V. Shipp 179, 190 
 
 Lavenson v. Standard Soap Co.. 57 
 
 Lawler v. Holohan 529 
 
 Lawrence's Estate S81, 682 
 
 Lawrence v. Brown 200 
 
 Lawrence v. French 328 
 
 Lawrence v. Lawrence 192 
 
 Lawrence v. Springer 739 
 
 Lawrence v. Whitney 708 
 
 Lawrence R. Co. v. Williams. . . . 737 
 
 Lawton v. Gordon 804 
 
 Lawton v. Lawton 78, 86 
 
 Leake v. Robinson 577 
 
 Learned v. Ryder ;. 332 
 
xlviii 
 
 Table of Cases. 
 
 Page 
 
 Leaak v. Horton 789 
 
 1/eaux V. New York 301 
 
 Leavitt v. Stern 336 
 
 lie Barron v. Babcoek 426, 428 
 
 Iiee V. James 182 
 
 liee V. Simpson 652 
 
 Lef evre v. Lefevre 192 
 
 Legg V. Horn 619 
 
 Leggett r. Firth 540 
 
 Lehigh Valley R. Co. v. MeFar- 
 
 lan 643, 644, 645, S50 
 
 Lehndorf v. Cope 141 
 
 Leiter v. Pike 702 
 
 Le Neve v. Le Neve 397 
 
 Lenfers v. Heiike 197 
 
 Lennig's Est 584 
 
 Lennig v. Ocean City Asa'n 632 
 
 Lent V. Howard 386 
 
 Leomister Gaslight Co. v. Hillery 702 
 
 Leonard v. Burr.. 124, 135, 480, 483 
 
 490, 575, 583 
 
 Leonard v. Leonard 631, 655 
 
 Leonard v. Medford 14 
 
 Leppla i. Mackey 703 
 
 Leper v. Taylor 383 
 
 Lerdy v. Proctor 11 
 
 Lermaier v. Jones 701 
 
 Leslie v. Leslie 383 
 
 Lessee of Simpson v. Ammons . . . 406 
 
 Lester v. Young 91, 101 
 
 Lewis' App 420 
 
 Lewis V. Augermiller 338 
 
 Lewis V. Gollner 715, 719. 723 
 
 Lewis V. Hawkins 399 
 
 Lewis V. Hinman 814 
 
 Lewis V. Jones. . 733 
 
 Lev/is V. Lyman 242 
 
 Lewis V. McNatt 17 
 
 Lerned v. Morrill 770, 771 
 
 Lehmeyer v. Moses 353 
 
 Iiewis V. N. Y. & Harlem R. Co . . 646 
 
 686, 695 
 Lewis V. Ocean Nav., etc., Co. 80, 83 
 
 Lewis V. Organ 771 
 
 Lewis V. Payn 325 
 
 Low is V. Eosler 50 
 
 Pagk 
 
 Lewis V. Stafford 345 
 
 Lessard v. Stram 658 
 
 Ley V. Peter 264 
 
 Liford'a Case 50 
 
 Liggins V. Inge 691 
 
 Linahan v. Barr 55 
 
 Lincoln, etc., Bank v. Drum- 
 
 mond 451 
 
 Lincoln v. Burrage 679 
 
 Lincoln v. Chadbourn 668 
 
 Lincoln •?. Davis 751, 753 
 
 Lincoln v. Lincoln 132 
 
 Lindeman v. Lindsay 619, 694 
 
 Linden v. Graham 300 
 
 Lindley v. Keeley 21 
 
 Lindley v. Keim 549 
 
 Lindsley v. Lamb 765 
 
 Lindv.pll V. May 326 
 
 Linn v. Davis 386 
 
 Linscott V. Buck 396 
 
 Linzee v. Mixer 718,719 
 
 Lippencott v. Davis 523 
 
 Lippincott v. Lasher 734 
 
 Lippincott's Ex'r v. Lippincott.. 548 
 
 Litchfield v. Cudworth 203 
 
 Litchfield v. Seituate 751 
 
 LitebBeld v. Wilmot 748 
 
 Little V. Willford 585 
 
 Livett v. Wilson 648 
 
 Livingston v. Ketchum 618 
 
 Livingston v. McDonald 661 
 
 Livingston v. Sulzer 79 
 
 Livingston v. Ten Broeck 618 
 
 Lloyd V. Conover 444 
 
 Locke v. Farmers' Loan & Trust 
 
 Co 602 
 
 Locke V. Hale 780 
 
 Tjockhart v. Van Dyke 403 
 
 Lockrow V. Horgan 849 
 
 Lockwood V. Town of Weston... 28 
 
 Loddington v. Kime 507, 510, 521 
 
 Lodge V. Martin ;529 
 
 Loebenthal v. Raleigh 553 
 
 Lombard v. Chicago Senai Cong. 395 
 
 Lombard v. Culbertson S13 
 
 London & S. W. R. Co. v. Gomm. 573 
 
Table of Cases. 
 
 xlix 
 
 Page 
 
 Long V. Marvin 214 
 
 Long v. M'oler 731 
 
 L. 1. R. Co. V. Conklin 755, 760 
 
 Lonsdale Oo. v. Moies 616 
 
 Loranger v. Carpenter 425 
 
 Lord V. Lord 196 
 
 Lisny v. Norton 773 
 
 Losey v. Stanley 501 
 
 Lothrop V. Foster 764 
 
 Lothrop V. Thayer 88, 89, 99, 263 
 
 Loughran v. Ross 80, 81, 83, 84 
 
 Loughran v. Smith 258, 359 
 
 Louisville H. & St. R. Co. v. Bas- 
 
 kett 709 
 
 Louisville, etc., R. Co. v. White. 747 
 
 Lounsbery v. Snyder 258, 259 
 
 Louvalle v. Menard 432 
 
 Lovejoy v. Richardson 788 
 
 liovell V. Frost 832 
 
 Lovett V. Taylor 393 
 
 Low V. Holmes 448 
 
 Lowell V. Robinson 774 
 
 Lowell, City of v. Spaulding 307 
 
 Lowell V. Strahan 319 
 
 Lowry v. Smith 176 
 
 Lueas v. White 199 
 
 Luce V. Carly 773 
 
 Luddington v. Garloek 356 
 
 Ludlow V. N. Y. & Har. R. Co. . 483 
 
 465, 466 
 
 Luker v. Dennis 723 
 
 Lukens v. Lasper 680 
 
 Lund V. New Bedford 654 
 
 Lundy v. Mason 790, 792 
 
 Luntz V. Greve 211. 213 
 
 Luther v. Winnisimmet Oo 663 
 
 Lyman v. Hale 35, 37 
 
 Lynch v. Livingston 750, 765 
 
 Lynch v. Cox 838 
 
 Lynch v. Swan 30S 
 
 Lynde v. Hough 318 
 
 Lynn v. Gephart 164 
 
 Lyon V. Parker 709 
 
 Lyons v. Oatrander 497 
 
 Lytle V. Lytic 129 
 
 Pagsi 
 Mc. 
 
 McBreen v. McBreen 212 
 
 MoCabe v. Swap 181 
 
 McCandless Appeal 449 
 
 McCartee v. Teller 188 
 
 McCarty v. Kitchenman 696 
 
 McCarthy v. Trumecher 85 
 
 McCaslin v. State 19 
 
 McClellan v. Grant 394 
 
 McClellan v. Kellogg 830 
 
 McClellan v. Whitney 243 
 
 McCluro V. Fairfield 166 
 
 McClurg V. Price 324 
 
 McClurg V. Schwartz 177 
 
 McConnell v. Brillhart 788 
 
 McCord V. Oakland, etc., Min. Co. 93 
 437, 438; 439 
 
 McCormick v. Horan 664, 669 
 
 McCrilliB v. Cole 69 
 
 MoCreary v. Bomberger 553 
 
 McCready v. Lindenborn .... 345, 346 
 McCullough V. Irvine's Ex'rs.80, 86 
 
 98 
 
 McCullough V. Miller 93 
 
 McCurdy v. Canning 415, 418 
 
 McDermott v. French 415 
 
 McDevitt V. People Natural Gas 
 
 Co 732, 735 
 
 McDuffee v. Sinnott 819 
 
 McEachern v. Cotton . . ■ 320 
 
 McKloy's Est. v. Brooke 344 
 
 McElroy v. Hines 790 
 
 McElroy v. McElroy 391 
 
 McFadden v. Allen 72 
 
 McFadden v. Crawford 53 
 
 McFaddin v. Worthington 817 
 
 McGee v. McGee 188 
 
 McGee v. Walker 21 
 
 McGettigan v. Potts 672 
 
 McGill V. Deming 186 
 
 McGonigle v. Atchison 10 
 
 McGowan v. McGowan 388 
 
 McGrath v. Wallace 832 
 
 McGreevy v. McGrath 541 
 
 MeGrew v. Harmon 783 
 
1 
 
 Table of Cases. 
 
 Page 
 
 McGuiness v. Femandes 18 
 
 McGuire v. Grant 674 
 
 Mclntyre v. Costello 176 
 
 McKay v. Mumford 428 
 
 McKeage v. Hanover Fire Ins. 
 
 Co 61, 62 
 
 McKean v. Ferguson 185, 188 
 
 McKceby v. Webster 341 
 
 McKenna v. McKenna 153 
 
 McKenzie v. Gleason 775, 776 
 
 McKenzie v. Hatton 325 
 
 McKeon v. Wendelken 316 
 
 McKinney v. Doane "71 
 
 McKinley v. Hessen 165, 390 
 
 McKinney v. Holt 324 
 
 McLaughlin v. Eandall 789 
 
 McLaughlin v. Sheplicrd 805 
 
 McLaughlin v. Thrucen SOI 
 
 McLoughlin v. Johnson 51 
 
 McMahon v. Gray 197, 201 
 
 McMasters v. Negley 210, 311 
 
 McMillan v. Cronin 688 
 
 Mcifillan V. Lehman 70 
 
 McMuUen v. Wooley 780 
 
 McMath V. Levy 79 
 
 McXeely v. Langan 827 
 
 McXeely v. South Pa. Oil Co. . . . 417 
 
 McNeil V. Hall 16 
 
 McNulty V. Duffy 346 
 
 McPherson v. McPherson 428 
 
 McQuade v. Emmons 238 
 
 McQuinn v. McQuinn 184 
 
 McRea v. Central Nat. Bank. .55, 56 
 
 59 
 
 McRae v. McRae 164 
 
 McRoae v. Bottyer 749 
 
 McVay v. McVay 382 
 
 M. 
 MaoGregor v. Brown.. 90, 91, 92, 727 
 
 Mackin v. Haven 712 
 
 Macomber v. Detroit, etc., K. Co. H 
 
 Maoomber v. Godfrey 664 
 
 M.".con V. Mullaby 397 
 
 Mactier v. Osborn 347, 472 
 
 Paob 
 
 Madison v. Larmon 602, 610, 511 
 
 559, 573 
 Major V. Todd 792 
 
 Makepeace v. Bancroft "TO 
 
 Makepeace v. Worden 733, 734 
 
 Macknet v. Macknet 195 
 
 Mallett V. Paige 790, 791 
 
 Malloney v. Horan 180 
 
 Maloney v. Middleton 816 
 
 Jl-llory v. Russell 168, 169 
 
 Mander v. Falcke 723 
 
 Mandel v. McClave 177 
 
 Jlandclbaum v. McDowell 548 
 
 IManrleville v. Solomon 440 
 
 Mandigo v. Conway 787 
 
 Manice v. Manice 591, 611 
 
 Mann v. Edson 153, 156, 165 
 
 Manning v. Ferrier 346 
 
 Manning v. Ogden 63 
 
 Maples V. Milton 19 
 
 Marcly v. Sehultz 648 
 
 Marden v. Dorthy 813 
 
 IMarkey v. Hermon 781 
 
 Markman v. David Stevenson 
 
 Brewing Co 349 
 
 Markoe v. Wakeman 423, 443 
 
 Marks v. Ryan 75, 83 
 
 Marsellis v. Thalhimer 209 
 
 ilarsli V. Fairbury 741 
 
 Marshall v. Crehon 446 
 
 Marshall v. Fisk 759 
 
 ^Marshall v. John Goss Clothing 
 
 Co 341 
 
 Marshall v. Mellon 93 
 
 Marshall v. Mosely 219 
 
 Marston v. Hobbs 779 
 
 Martin v. Jackson S32 
 
 Martin v. Martin 179, 130 
 
 Martin v. O'Connor 311, 310 
 
 Martin v. Patin 636 
 
 Martin v. Richards 301 
 
 ilartin v. Riddle C58 
 
 ^ilartin v. Walker 446 
 
 Martindale v Alexander 434 
 
 Martling v. Martling 521 
 
 Martyn v. KnoUys 433 
 
Table of Casbs. 
 
 li 
 
 Page 
 Marvin v. Brewster Iron Mining 
 
 Go 676 
 
 Marvin v. Smith 180, 183 
 
 Mason v. Kellogg 782 
 
 Mason v. Method. Epis. Church. 401 
 
 410 
 
 Mason'8 Appeal 715 
 
 Massey v. Goyner 674 
 
 Masters v. Pollie. 35 
 
 Masury ▼. Southworth 701, 702 
 
 Mather t. Chapman 751 
 
 Matter of Albertson 226 
 
 Matter of Albrecht 417 
 
 Matter of Baer 497 
 
 Matter of Brooklyn Bridge 178 
 
 Matter of Brown 496 
 
 Matter of Carpenter 381 
 
 Matter of Chamberlain 16 
 
 Matter of City of New York 670 
 
 Matter of Cramer 496, 501, 502 
 
 Matter of Crane 500, 517 
 
 Matter of Cregier 155 209 
 
 Matter of Corbin 222 
 
 Matter of Davis 396, 396 
 
 Matter of Denton 497 
 
 Matter of Ensign 185 
 
 Matter of Franke 193 
 
 Matter of Folwell 215 
 
 Matter of Gardner 551 
 
 Matter of Gordon 192, 194 
 
 Matter of Hunter 743 
 
 Matter of Ingersoll 380 
 
 Matter of James 383 
 
 Matter of Jones 28 
 
 Matter of Kimberly 404 
 
 Matter of Leggett Ave 623 
 
 Matter of the Mayor of New 
 
 York 331 
 
 Matter of Moehring 549 
 
 Matter of Pollock 233 
 
 Matter of Russell 402 
 
 Matter of Steele 98 
 
 Matter of Third Ave. E. Co 739 
 
 Matter of Tuthill 661 
 
 Matter of Wilcox 595, 596, 597 
 
 606, 603, 611 
 
 Faqb 
 
 Matter of Wynne 209 
 
 Matthews v. Dixey 680 
 
 Mathews v. Kelsey 734 
 
 Matthews v. Carlton 246 
 
 Matthews v. Stillwater, Gas, etc., 
 
 Co 656 
 
 Matthews v. Trent 753 
 
 Mattocks V. Stearns 204 
 
 :\Iaul V. Rider 804 
 
 Maundrell v. Maundrell 547 
 
 May V. Ennis 307 
 
 May V. Fletcher 177 
 
 May V. Giles 349 
 
 May T. Mayer 310 
 
 Mayburry v. Brlen 157, 167 
 
 Mayer v. McCreary 34G 
 
 Mayham v. Coombs 801 
 
 Maynard v. Maynard 791, 794 
 
 Maynard v. Moore 735 
 
 Mayo y. Hamlin 181 
 
 Mayo V. Newhoff 622 
 
 Mayor of Albany v. Sikes 658 
 
 Mayor of Congleton v. Pattison. 711 
 
 Mayor of New York v. Law 616 
 
 Mayor, etc. v. Appold 669 
 
 Maxwell v. Maxwell 438 
 
 M'Conico V. Singleton 34 
 
 Meacham v. Blaess 767 
 
 Meacham v. Bunting. . .306, 311, 212 
 
 822 
 
 Mead V. Madden 313 
 
 Mechanics & Traders Fire Ins. 
 
 Co. V. Scott 323 
 
 Mecklin v. Blake 787 
 
 Medinah, etc., Co. v. Currey.319, 463 
 
 464 
 
 Medler v. Hyatt 780 
 
 Medway v. Needham 148, 149 
 
 Meeker v. Breintall 553 
 
 Meeker v. East Orange. . . = 661 
 
 Meeker v. Spalsburg 339 
 
 Meeks v. Willard 771 
 
 Meiglian v. Stevens 379, 381 
 
 Meikel v. Borders 801 
 
 Melins v. Pabst Brew. Co... .96, OS 
 itellus V. iSnowiiian 202, 203 
 
Ui 
 
 Table of Cases. 
 
 Page 
 Melvin v. Props. Merrimac R. 
 
 Looks, etc 203 
 
 .lercer Co. v. Penn. E. Co 749 
 
 Merrick v. Wallace 814 
 
 Merrill v. Peaslee 383 
 
 Merrills v. Swift 791, 797 
 
 Merritt v. Bucknam 583 
 
 Merritt v. Harris 457 
 
 Merritt v. Judd 79, 81, 83 
 
 Merritt v. Morse 782 
 
 Merrit v. Parker 669 
 
 Messerole v. Hoyt 350, 351 
 
 Messing v. Messing 415 
 
 Messinger's Appeal 668 
 
 Metcalf V. Moses 394 
 
 Metropolitan Concert Co. v. 
 
 Sperry 74 
 
 Mettler v. Miller 207, 209, 823 
 
 Meyer v. Lincoln 748 
 
 Michaels v. Fishel 345 
 
 Miclieau v. Crawford 507 
 
 Mickel V. York 715 
 
 Michigan & C. Ina. Co. v. Cronk. 44 
 
 Middleton v. Stewart 213, 215 
 
 Midland E. Co. v. Fisher 706, 762 
 
 Middlebrook v. Corwin 26, 95 
 
 Miffin's Appeal 582 
 
 Miles V. Janvrin 307, 326 
 
 Miles V. Thorne 832 
 
 Milford V. Holbrook 307 
 
 Mill Eiver, etc., Co. v. Smith... 774 
 
 Millard v. McMillan 425 
 
 Miller v. Becker 339,340 
 
 Miller v. Benton 352 
 
 Miller v. Cheney 40 
 
 Miller v. Dennis 332 
 
 Miller v. Emana 514 
 
 Miller v. Lapham 696 
 
 Miller v. Lauback 660, 669 
 
 Miller v. Levi 478 
 
 Miller v. Meers 791, 799 
 
 Miller v. Miller 166, 402,404 
 
 Miller v. Mills Co 824 
 
 Miller v. Prescott 463, 464 
 
 Miller v. Shields 91, 98 
 
 Millett V. Ford 531 
 
 Pagb 
 Millie Iron M. Co. v. Thalman. . . 324 
 
 Milliken v. Welliver 194, 195 
 
 Mills V. Cattin ^^9 
 
 Mills V. Davison 454,456 
 
 Mills V. Evansville Sem 461 
 
 Mills V. Gore 790 
 
 Mills V. Hitter 176 
 
 Mills V. Van Voorhies. .158, 159, 152 
 
 Miltimore v. Miltimore 185 
 
 Milwaukee Gas Light Co. v. 
 
 Schooner Gamecock 752 
 
 Miner v. Brown 414, 419 
 
 Miner v. Gilmonr 664 
 
 Minnig v. Batdorff 503 
 
 Minot V. Prescott 554 
 
 Minshull v. Oakes 701, 703 
 
 Missouri Hist. Soc. v. Academy 
 
 of Science 585 
 
 Missouri U. L. Co. v. Barwick. 33 
 
 Mitcliel v. Plazen 780 
 
 Mitchell v. D'Olier 34 
 
 Mitchell V. Seipel 631, 641 
 
 Mitchell V. Warren 784 
 
 Mitchell's Lessee v. Eyan . . . 780, 782 
 791, 797, 798, 799 
 
 Modlin V. Kennedy 91 
 
 Moelle T. Sherwood 807 
 
 Moellering v. Evans 672 
 
 Mohr V. Parmelee 781 
 
 Moncrief v. Ross 548 
 
 Monday v. O'Neill 43 
 
 Monroe v. Van Neter 211, 212 
 
 Moutefion v. Brown 550 
 
 Montjroraery v. Santa Ana, etc., 
 
 E. Co 731, 738 
 
 Moody V. King 173 
 
 Moody V. Eennoldson 475 
 
 Moody V. Smith 246 
 
 Mooers v. Wait 101 
 
 Moon V. Jennings 440 
 
 Moon V. Eawson 693 
 
 Moon V. Smith 79 
 
 Moore v. Alden 196 
 
 Moore v. Appleby 603 
 
 Moore v. Darby 215 
 
 Moore v. Flynn 798 
 
Table of Cases. 
 
 liii 
 
 Page 
 
 Moore v. Gary 529 
 
 Moore v. Giles 7C7 
 
 Moore v. Greene 832 
 
 Moore v. Guardian Trust C 318 
 
 Moore v. Hazelton 790, 797 
 
 Moore v. Horsley 392 
 
 Moore v. Littell 499, 515 
 
 Moore v. Lyons 497 
 
 Moore v. Mansfield 334 
 
 Moore v. N. Y. City 177, 178 
 
 Moore v. Pitts 451 
 
 Moore v. Rawlins 93, 159 
 
 Moore v. Smaw 31, 32 
 
 Moore v. Smith 304 
 
 Moore v. Townshend. .87, 88, 89, 98 
 
 249, 263 
 
 Moore v. Weber 782 
 
 Moore v. Wood 76, 80, SI 
 
 Moores v. Moores 554 
 
 Moorehouse v. Cotheal 91, 92 
 
 Morey v. Hoyt 76, 81 
 
 Morgan v. Mason 636 
 
 Morgan v. Smith 780 
 
 Morgan's Heirs v. Morgan 396 
 
 Morice v. Bishop of Durham 391 
 
 Morris v. Caudle 790 
 
 Morris v. lie 822 
 
 Morris v. McClary 825 
 
 Morris v. McCarty 4C3, -ll."; 
 
 Morris Canal, etc., Co. v. Brown. 480 
 
 Morrison T. Bucksport 663 
 
 Morrison t. King 636 
 
 Morrison v. Morrison 437 
 
 Morse v. Aldrich 706, 709 
 
 Morse v. Copeland 692, 729 
 
 Morse v. Curtis 83 7 
 
 Morse v. Goddard 328, 329 
 
 Morse v. Hayden 473 
 
 Morse v. Martin 554 
 
 Morton v. Funk 527, 537 
 
 Morton v. Noble 180 
 
 Mosely v. Marshall 226 
 
 Moses V. Loomis 403 
 
 Mosher v. Funk 390 
 
 Motley V. Blake 447 
 
 Motley V. Sargent 774, 775 
 
 Pagb 
 
 Mott V. Mott 778 
 
 Mott T. Oppenheimer 679, 712, 713 
 
 Mott V. Palmer.. 9, 64, 65, 68, 71 
 
 79, 779 
 
 Mott V. Underwood 439 
 
 Moulton V. Libhey 753 
 
 Moulton V. Moulton 1S5 
 
 Mount V. Murphy 833 
 
 Mowry v. Bradley 169 
 
 Mr. Spencer's Case 39 
 
 Mudge V. Hammill 514 
 
 Mueller v. Cliicago, etc., II. Co... 81 
 
 Muhlker v. N. Y. & H. R. Co 739 
 
 Mullaiiy V. jrullaiiy S13 
 
 Mullarky v. Svllivan 497 
 
 Mullen V. Strieker 637 
 
 Mulligan v. Jordan 731 
 
 Mulva-^e V. Rude 539,540 
 
 Mumf ord v. Brown 430 
 
 Mundy v. Warner 242 
 
 Munroe t. Armstrong 60 
 
 Munsion v. Herd 633 
 
 Murch V. Smith Mfg. Co 222, 223 
 
 227 
 
 Murdock v. Chapman 770 
 
 Mvirdock v. Gifford 73 
 
 Murphy v. Copeland 774 
 
 Murphy v. Whitney 405 
 
 iTunay v. Ballou 398 
 
 Murray v. Cherrington 237 
 
 Murray v. Harway 322, 461, 470 
 
 466 
 
 Murray f. Haverty 437 
 
 Murray v. Murray 605, 610 
 
 Musch y. Burkhart 37 
 
 Mut. Ben. Ins. Co. v. Brown.... 7S7 
 
 788 
 Mutual Life Ins. Co. v. Dake... 813 
 
 8.14 
 
 Mut. L. Ins. Co. V. Deale 202 
 
 ' Mut. Life Ins. Co. v. Everett.. 544 
 
 546, 554 
 Mut. Life Ins. Co. v. Shipman . . 197 
 
 553 
 
 Mi'.zzarclli v. Hulshizer 719, 721 
 
 ll.yers v. Bell Tel. Co 623 
 
Kv 
 
 Table of Cases. 
 
 Page 
 
 Myers t. Bolton 439 
 
 Myers r. Burns 701 
 
 Myers v. Dunn.. 637, 684, 685, 686 
 
 Myers v. Gemmel 637 
 
 Myers v. Safe Dept. & Trust Co. 6S4 
 Mygatt V. Coe 784 
 
 N. 
 
 Nat. Bank v. North 54, «3 
 
 National Bank at Dover v. Segur 711 
 
 723 
 
 Nat. Prov. Bk. v. Jackson 790 
 
 Nat. Stock Yards v. Wiggins 
 
 Ferry Co 730 
 
 Nat. Life Ins. Co. v. Lee 713 
 
 National Revere Bank v. Morse. . 398 
 
 Naundorf v. Schumann 551 
 
 Needham v. Allison 26 
 
 Neel V. Beech 550 
 
 Neel V. Neel 92, 93, 94 
 
 Neely v. Hosklns 4SS 
 
 Neely v Philadelphia 775 
 
 Negus V Becker 680, 681 
 
 Neilson v Iowa E. R. Co... 48, 49 
 
 Nelson v Pomeroy 496 
 
 Newbold v. Brown 89 
 
 Newcomen v. Coulson 684, 688 
 
 Newell v. ■\Voodruff 425 
 
 New England Trout, etc., Club v. 
 
 Mather. 753 
 
 Newhall v. Lvnn Sav. Bank 162 
 
 Newhall v. Wheeler 131 
 
 Newhoif v. Mayo ' 635 
 
 Newton V. Bealer 790 
 
 Newton v. Cook 158 
 
 Newton v. Porter 393 
 
 Newton v. Sly 166 
 
 Niblock V. Sprague 792 
 
 Nichola V. O'Neill 203 
 
 Nickel V. Brown SOI 
 
 Nicodemus v. Young 763 
 
 Nicoll V. Niooll 513 
 
 Nicoll V. Scott 550 
 
 Nicoll V. N. Y. & Erie R. Co... 129 
 
 130, 450, 451, 453, 456, 457, 459 
 
 460 
 
 Paot 
 Nichols V. Chamberlain. 634, 688, 695 
 
 Nicols V. Luce 619, 626 
 
 Nichols V. Park 165, 185 
 
 Nidever v. Ayres 807 
 
 Nieland v. Mahniken 83 
 
 Nimmo v. Harvey 353 
 
 Nininger v. Norwood 638 
 
 Noble V. Sylvester 10, 51 
 
 Ncble V. Thayer 313 
 
 Noble V. T^ler 21 
 
 Noonan v. City of Albany 661 
 
 Norcross v. James 709, 723 
 
 Norman v. Wells 704 
 
 Normille v. Gill 683 
 
 North V. Graham 459, 478, 480 
 
 Northout V. Whipp 173 
 
 Northern, etc., R. Co. v. Canton 
 
 Co 71 
 
 Northfield v. Plymouth 153 
 
 Northwestern Life Ins. Co. v. 
 
 George 66 
 
 Nottingham v. Calvert 159 
 
 Nottingham Patent Brick Co. T. 
 
 Butler 718, 721 
 
 Nowlin L. Co. t. Wilson 729 
 
 Noyes v. Anderson 472 
 
 Noyes v. Stone 90, 91 
 
 Null V. Howell 155 
 
 Nungay v. Lackey 443 
 
 Nunger v. Perkins 181 
 
 Nye V. Hoyle 706 
 
 Nye V. Lowry 7S3 
 
 Nye V. Taunton Br. R. Co 178 
 
 N. Y. Inves. Co. v. Cosgrove.... 70 
 
 ^. Y. Life Ins. Co. v. Milnor 627 
 
 N. Y. Real Estate Co. v. Motley. 353 
 N. Y. Rubber Co. v. Rothery... 6tU 
 
 668 
 N. Y. Zinc Co. v. N. J. Frank- 
 
 Unite Co 676 
 
 O. 
 
 Oakcs V. De Lancey 77a 
 
 Obert V. Bodine 379 
 
 Obert V. Obert 439 
 
 O'Brien v. Ball 329 
 
Table op Cases. 
 
 Iv 
 
 Paoe 
 
 O'Brien r. Capewell 301 
 
 O'Brien v. Fleckenstein 808 
 
 O'Brien v. Goodrich 643 
 
 O'Brien v. Kusterer 75 
 
 O'Brien v. Smith 324 
 
 Ocean Grove Ass'n v. Oommra. 
 
 Asbury Park 668 
 
 O'Connell v. Bryant 774 
 
 O'Connor v. Gifford 390 
 
 O'Connor v. Pittsburgh 740 
 
 Oconto T. Lundquist 15 
 
 Odell T. Odell 584 
 
 Ofschlager v. Surbeck 238 
 
 Ogden T. Grove 626 
 
 Ogden T. Jennings 769 
 
 Ogden ▼. Ogden 794 
 
 O'Hara t. Biehardaon 820 
 
 Oland T. Bnrdvrick 40 
 
 Oliffe T. Wells 394 
 
 Oliver v. Moore 244, 246 
 
 O'Linda v. Lothrop 734 
 
 Olney T. Hull 496 
 
 Olney v. Wharf 739 
 
 O'Neal V. Van Tassel 680, 781 
 
 Onset R. Co. v. County Oommrs. 737 
 
 Orcutt V. Moore S42, 243 
 
 Orford v. Benton 208 
 
 Original Hartlepool Co. v. Gibbs. 734 
 
 752 
 Ormerod v. Todmorden Mill Co. 669 
 
 Ormsby v. Pinkerton 638 
 
 Osborne v. Gordon 546 
 
 Osborn v. Osborn 392 
 
 Osborne v. Rogers 198 
 
 Osgood V. Abbott 450, 461 
 
 Osgood V. Pewey 264 
 
 Osgood V. Eranklin 551 
 
 Otis V. CofEn 586 
 
 Otis V. Parsley 154 
 
 Ottawa V. Yeutzer 742 
 
 Ottumwa Woolen Mills Co. v. 
 
 Hawley 57, 58, 59 
 
 Outerbridge v. Phelps 631 
 
 Overdeer v. UpdegraflF 631 
 
 Overheiser v. Lackey 402 
 
 Overman v. Sasser 86 
 
 pAan 
 
 Owen V. Brookport 776 
 
 Owen V. Field 617, 694 
 
 Owen V. Frink 790 
 
 Owen V. Gibbons 410 
 
 Owens V. Lewis IS 
 
 Owen V. Owen 184 
 
 Owen V. Ilobbins 163, 398 
 
 Owsley V. Harrison 559 
 
 Oxford V. Leathe 307 
 
 P. 
 
 Packard v. Ryder 753 
 
 Packer v. Welsted 626 
 
 Padelford v. Padelford 90, 91 
 
 Padfield v. Padfield 383 
 
 Page V. Waring 810 
 
 Page V. Webster 442 
 
 Paget V. Melcher 496 
 
 500, 502, 516, 518 
 
 Pain V. Pain 150 
 
 Paine v. Barnes 548 
 
 Paine v. Chandler 634 
 
 635, 659, 662 
 
 Paine v. Hutchins 825 
 
 Paine v. McDowell 64 
 
 Paine v. Woods 775 
 
 Paine's Lessee v. Moreland .... 817 
 
 Palmateer v. Robinson 64, 72 
 
 Palmer v. Larchmont Elec. Co . . 732 
 
 735 
 
 Palmer v. Palmer 423, 626, 627 
 
 Parham v. Thompson 22 
 
 Park V. Castle 256 
 
 Parkenham's Case. , 711 
 
 Parker v. B. & M. R. Co 860 
 
 Parker v. Foote 645, 651, 653 
 
 Parker v. Nightingale 718 
 
 Parker v. Proprietors, etc 425 
 
 Parker v. Parker 473, 528 
 
 Parks V. Bishop 685, 686 
 
 Parrish v Parrish 138 
 
 Parsons v. Copeland 57, 58, 59 
 
 Parsons v. Johnson 695 
 
 Parsons v. Winslow 475 
 
 Partridge v. Gilbert 680 
 
 681, C82. 683, 695 
 
IvI 
 
 Table Of Cases. 
 
 Paqe 
 
 Pasohall v. Passmore 456 
 
 Patrick v. Howard 791 
 
 Patten v. Fitz 781 
 
 Patten V. Moore 809 
 
 Patterson v. Arthurs 781 
 
 Patterson v. City of Boston 329 
 
 Patterson v. Snell 790 
 
 Patterson's Appeal 31, 495 
 
 Patton V. Ludington 540 
 
 Paul V. Carver 749, 777 
 
 Paul V. Connersville, etc., Co.... 459 
 
 803 
 
 Payne v. Becker 196, 197 
 
 Payne v^ Parker 203 
 
 Payne v. Schallhamer 331 
 
 Peabody v. Brown 763 
 
 Peabody v. Hewett 764 
 
 Peabody v. Tarbell 823 
 
 Peacock v. Euffiu 250, 351 
 
 Peaks V. Cobb 319 
 
 Pearsall v. Post 654, 741 
 
 Pearson v. Honey 153 
 
 Pease v. Christ 781 
 
 Peck V. Batchelder 60 
 
 Peck V. Carpenter 433 
 
 Peck V. Christman 701 
 
 Peck V. Conway . . . 630, 657, 718, 731 
 
 Peck V. Dennistou 774 
 
 Peck V. Herrington 658 
 
 Peek V. Ingersoll 317 
 
 Peck V. Sherwood 225 
 
 Peckham v. Hadwen 181 
 
 Pect V. Peet 153 
 
 Pcden V. Chicago, etc., R. Co 706 
 
 Peil V. Eeinhart 308 
 
 Pell V. McElroy 806 
 
 Pelts V. Gaw 771 
 
 Pence v. Arbuckle 765 
 
 Penhallow v. Dwight 21, 22 
 
 Pennock v. Lyons 469 
 
 Pennsylvania Coal Co. v. Sander- 
 son 666 
 
 Pa. R. R. Co. r. Miller 667 
 
 Penn. R. Co. v. N. Y. & Har. E. 
 Oo. 738 
 
 Paob 
 Penryn F. Oo. v. Sherman-Wor- 
 rell P. Co 19, 33 
 
 People V. Annis 238, 240, 
 
 People V. Bootman 33, 34 
 
 People V. Bridges 35 
 
 People V. Darling 356, 259 
 
 People V. Eaton 732, 736, 737 
 
 People V. Goelet 356 
 
 People V. Goelet 256 
 
 People V. Henion 661 
 
 People V. Horton 734, 752 
 
 People V. Jones 54 
 
 People V. Piatt 752 
 
 People V. Reed 742 
 
 People V. Underbill... 741, 742, 743 
 
 People's Gas Co. v. Tyner 663 
 
 People's Ice Oo. v. Davenport. . . 25 
 People's Ice Co. v. Excelsior.... 753 
 
 Peoria v. Central N. Bank 773 
 
 Peoria v. Johnston 747 
 
 Pepper v. Thomas 188, 200 
 
 Pereival v. Percival 185 
 
 Perkins v. Nlckols 389 
 
 Perley v. Chandler 733 
 
 Perman v. Wead 769 
 
 Perrin v. Garfield 636, 653 
 
 Perry v. Carr 95 
 
 Perry v. Rockland, etc., Co 351 
 
 Petefish V. Buck 197 
 
 Peters v. Bowman 780, 785 
 
 Peters v. Cartier 807 
 
 Peters v. Grubb 784 
 
 Peters v. Stone 702, 704 
 
 Pettingill v. Devin 749 
 
 Peyton v. Jeffries 201 
 
 Peyton v. Mayor, etc 674 
 
 Pfeiffer v. Brown 666 
 
 Pflum V. Spencer 247, 248 
 
 Plielan v. Brady 805, 806 
 
 Phelps V. Jepson 403 
 
 Phelps T. Nowlen 663 
 
 Phelps V. Phelps 165 
 
 Phelps V. Sullivan 765 
 
 Philbriok v. Ewing 331 
 
 Phillips V. Allen 9t 
 
 Phillips V. Covert 89, 248, 363 
 
Table of Cases. 
 
 Ivii 
 
 Page 
 
 Phillips V. Ferguson 390, 475 
 
 Phillips v. Kent & Miller 819 
 
 Phillips v. Low 636 
 
 Phillips V. Phillips 651 
 
 Phipps V. Kelynge 586 
 
 Phillips V. Medbury 475 
 
 Phillips V. Smith 92 
 
 Phillipps V. Wiseman 184 
 
 Phoenix Ins. Co. v. Continental 
 
 Ins. Co 633, 718, 731 
 
 Picken v. Matthews 606, 307, 679 
 
 Pickering v. O'Brien 340 
 
 Pickering v. Pickering 433 
 
 Pickford v. Lynn 749 
 
 Pickle V. McKissiok 575 
 
 Pierce v. Brown 462 
 
 Pierce v. Chaee 418 
 
 Pierce v. Cloud 645, 651 
 
 Pierce v. Drew 738, 736, 737 
 
 Pierce v. Dyer 676 
 
 Pierce v. George 57, 69 
 
 Pierce v. Goddard 44, 52 
 
 Pierce v. Hubbard 531 
 
 Pierce v. Keator 614 
 
 Pierce v. Oliver 446 
 
 Pierce v. Pierce 189, 190 
 
 Pierce v. Williams 197 
 
 Pierrepont v. Barnard 737 
 
 Pierson v. Armstrong 789 
 
 Pierce v. Selleck 627 
 
 Pierson v. Speyer 664, 666 
 
 Pile V. Pedrick 678 
 
 Pillow V Southurst 446 
 
 Pillow V. Wade 179 
 
 Pillabury v. Morris 713 
 
 Pinekney v. Burrage 823 
 
 Pinkham v. Pinkham 190 
 
 Pinkum v. Eau Claire 617 
 
 Pennington v. Galland 626 
 
 Pitman v. Conner 781 
 
 Pitney v. Huested 778 
 
 Pitts V. Lancaster Mills 664 
 
 fittsburg V. Epping, etc., Co.... 741 
 Pittsburgh Amusement Co. v. 
 
 Ferguson 246 
 
 PUIey y. Clark 659, 688 
 
 Page 
 
 Placke V. Union Depot R. Co 739 
 
 Piatt V. Eggleston 713 
 
 Plimpton V. Plimpton 234 
 
 Plumb V. Sawyer 315 
 
 Plumb V. Tubbs 451 
 
 Plummer v. Coal Co 30 
 
 Plymouth v. Carver 709 
 
 Plympton v. Boston 223 
 
 Plympton v. Converse 633 
 
 Point Pleasant L. Co. v. Cram- 
 mer 743, 744 
 
 Pollard V. Barnes 647 
 
 Pollard V. Slaughter 173 
 
 Pollock V. Cleveland Ship Bid. 
 
 Co 734, 753 
 
 Pomroy v. Stevens 805 
 
 Pond, etc., Co. v. O'Connor. . . .64, 75 
 
 Pool V. Blakie 212 
 
 Pool V. Davis 791 
 
 Poole's Case 78 
 
 Poor's Lessee v. Considine 510 
 
 Pope V. Allen 806 
 
 Popkin V. Bomstead 182 
 
 Porch V. Fries 215 
 
 Porter v. Hill 442 
 
 Porter v. Levey 805 
 
 Porter v. Merrill 244 
 
 Porter^ v. Turner 564 
 
 Porter v. Pittsburgh B. Co 71 
 
 Portland v. Keep 654 
 
 Portmore v. Bunn 621 
 
 Post V. Kearney 311, 701 
 
 Post v. Pearsall 615, 741 
 
 Post V. Phelan 237 
 
 Post V. Weil 454, 620, 631, 718 
 
 Postal Teleg. Co. v. Eaton 733 
 
 Potter V. Cromwell 56 
 
 Potter V. Wheeler 444, 447 
 
 Potts v. Breneman 550 
 
 Powell V. Bagg 648, 649, 650 
 
 Powell V. F. C. Lynde Co 338 
 
 Powell, v. Rich 18 
 
 Powers V. Patten 811 
 
 Prabar v. Tousey 350 
 
 Pratt v. Douglas 233,227 
 
 Pratt V. Paine 262, 478 
 
Iviii 
 
 Tablb of Casks. 
 
 Paob 
 
 Pratt V. Sweetser 694 
 
 Pray v. Hegeman 588 
 
 Pray v. Stebbins 415, 417 
 
 Prentice v. Geigor 666 
 
 Presby v. Benjamin 238, 319 
 
 Prescott V. Edwards 742, 744 
 
 Preston v. Briggs 76, 80 
 
 Preston v. Haw ley 235 
 
 Preston v. Hull 658 
 
 Preston v. Preston 393 
 
 Preston v. Ryan 21 
 
 Price V. Hobbs 200 
 
 Price V. Pestka 403 
 
 Price V. Pittsburgli, etc., R. Co.. 795 
 
 Price V. Plainfield 741 
 
 Price V. Price. 124, 147, 148, 150, 152 
 
 Price V. Price's Heirs 27 
 
 Price V. Sisson 377 
 
 Priestly v. Johnson 71 
 
 Pringle v. Dunn 814 
 
 Pringle v. Vesta Coal Co 676 
 
 Prior V. Kiso 334 
 
 Pritchard v. Walker 402 
 
 Pritts V. Ritcbie 153, 163 
 
 Probst V. Rocbester Steam Laun- 
 dry Co 24S, 315 
 
 Proctor V. Hodgson 626 
 
 Proctor V. Wells 753 
 
 Proffitt V. Henderson 93, 96 
 
 Proprietors of Church, etc. v. 
 
 Grant 490, 569, 574, 583 
 
 Proprietors of Locks, etc., v. 
 
 Nashua, etc., R. Co 733 
 
 Prosene v. Mclntyre 389 
 
 Providence Steam Eng. Co. v. 
 
 Providence Steamship Co 751 
 
 Prustman v. Baker 793, 794, 795 
 
 Pugsley V. Aikin 254,255 
 
 Pulitzer v. Livingston 559, 581 
 
 Pullen V. Bell 71, 73 
 
 Pullen V. Pullen 185, 306 
 
 Purdy V. Hayt.500, 508, 509, 510, 593 
 
 605, 610 
 
 Purdy V. Huntington 814 
 
 Furner v. Piercy 14, 16, 17 
 
 Putnam v. Putnam 148, 149 
 
 Pagk 
 
 Putnam v. Ritdhia 409, 433 
 
 Putnam v. Story 500,515 
 
 Putnam v. Wise 342 
 
 Putney v. Gresser 402, S21 
 
 Putney Bros. Co. v. Mihvaukee 
 
 Light, etc., Co 320 
 
 Putzel V. Drover 682 
 
 Pyer v. Carter 633, 638 
 
 Pynchon v. Lester 167 
 
 Pynohon v. Steams 96 
 
 Q. 
 
 QnackenboBS v. Clark 313 
 
 Quick V. Milligan 797 
 
 Quicksall v. Philadelphia 741, 744 
 
 Quinn v. McCarty 451, 452 
 
 Quinnerly v. Quinnerly 801 
 
 Quick V. Brenner 200 
 
 Quincy v. Bull 732 
 
 Quincy v. Jones 675 
 
 R. 
 
 Race V. Ward 614 
 
 Raconillat v. Sausevaln 813 
 
 Rackley v. Sprague.... 636 
 
 Radcliff V. Mayor, etc 674 
 
 Radcliflfe's Ex'rs v. Brooklyn... 740 
 
 Raddin v. Arnold 76 
 
 Radey v. McCurdy 85 
 
 Radley v. Kuhn 588 
 
 RafTerty v. Central Traction Co.. 734 
 
 737, 739 
 
 Rahm v. Domayer 53 
 
 Ralph V. Bailey 826 
 
 Ramberg v. Wahlstrora 441 
 
 Randol v. Scott 31S 
 
 Randall V. Cleveland 87 
 
 Randall v. Elwell 43 
 
 Randall v. Marble 475 
 
 Randall v. Sanderson 651 
 
 Rands v. Kendall 158 
 
 Rankin v. Rankin 648 
 
 Ranney v. Hardy 805 
 
 Rathbunville Cem. AsB'n y. Bet- 
 son 823 
 
 Eaubitscheck v. Semken 317 
 
Table of Oases, 
 
 liz 
 
 Page 
 
 Raventas v. Green 21 
 
 Eawley v. Brown 841,242 
 
 Rawlins v. Buttel 184 
 
 Rawlins v. Lowndes 160 
 
 Eay V. Pung 546 
 
 Kaymond v. Keseburg 734 
 
 Eaymond v. Strickland 79 
 
 Eayner v. Lee 196 
 
 Raynor v. Preston 395 
 
 Rector t. Hartford Deposit Co. . 318 
 Rector V. Waugh..l30, 131, 442, 443 
 
 Re Dawson 579 
 
 Ecdemptorist Fathers T. Lawler. 463 
 
 Reed v. Dickerman 195 
 
 Reed v. Farr 771 
 
 Reed V. Hatch 473, 474 
 
 Reed v. Jones 432 
 
 Reed v. Morrison 159 
 
 Reed v. Lukens 395 
 
 Reed v. Reynolds 324 
 
 Reed v. Shepley 158 
 
 Reed v. Whitney 163, 164 
 
 Reeder v. Sayre 41, 43, 858, 859 
 
 Reedy v. Canfield 824 
 
 Reeves v. Harman 242 
 
 Reeves v. McComeskey 340, 342 
 
 Regan v. Fosdick 253 
 
 Regan v. Luthy 87 
 
 Reich V. McRea 262 
 
 Reid V. McCrum 701 
 
 Reid V. Weiasner Brew. Co 470 
 
 Reiff V. Reiff 39 
 
 Reilly v. Ringland 39, 40 
 
 Reimer v. Stubcr 654 
 
 Reiming v. N. Y. L,. etc., R. Co. . 739 
 
 Reisert v. New York 661 
 
 Remboth v. Zebe Run Imp. Co. . . 443 
 
 Rendleman v. Rendleman 185 
 
 Renals v. Colishaw 716 
 
 Rennyson's Appeal 636, 651 
 
 Requa v. Domestic Pub. Co 339 
 
 Berick v. Kern 729 
 
 Reynolds v. Boston Rubber Co.. . . 771 
 
 Reynolds v. Van Beuren 240 
 
 Ehoades v. Davis 180, 190 
 
 Bhoads v. Davidheiser 658 
 
 Page 
 
 Rhodes v. Brightwood 748, 744 
 
 Rhodes v. Otis 729 
 
 Rice V. Bost & W. R. Corp.. 457, 458 
 
 Rice V. Lumley 185 
 
 Rich V. Minneapolis 734 
 
 Richard v. Bent 787 
 
 Richards v. Gauflfert 24 
 
 Richards v. Rose 636 
 
 Richardson v. Crocker 553 
 
 Richardson v. Langridge 255 
 
 Richardson v. Stodder 211, 812 
 
 Richardson v. Watts 824 
 
 Richardson v. Wheatland 498 
 
 Richardson v. Wyman 181 
 
 Richart v. Scott 675 
 
 Richbourg v. Rose 17 
 
 Riddle v. Whithill 411 
 
 Ridgeway Stove Co. v. Way.. 63, 67 
 
 68, 69 
 
 Ridgway v. Ludlow 774 
 
 Ridgway v. Masting 181, 183 
 
 Riggin V. Love 767 
 
 Riggs V. Purcell 318, 319, 460 
 
 Riggs V. Riley 819 
 
 Right V. Darby 249, 250 
 
 Riley v. Boston Water Power Co. 10 
 Riley v. Continuous Rail Joint 
 
 Co 672, 873 
 
 Riley v. Hammel 742, 744 
 
 Riley v. Riley 204, 312 
 
 Rindge v. Baker 678 
 
 Rineliart v. Rinehart 783 
 
 Ripka V. Sargeant 668 
 
 Ripley V. Paige 52, 53 
 
 Ritger v. Parker 696 
 
 Rixroth v. Coon 34 
 
 Roach V. Peterson 354 
 
 Roath V. Driscoll 658 
 
 Robb V. Carnegie 666 
 
 Robbins v. Kinzie 184 
 
 Cobbina v. Robbins 390 
 
 Robeke v. Baer 69 
 
 Roberts v. Birks 77, 772 
 
 Roberts r. Bourne 810 
 
 Roberts v. Chicago 740 
 
 Roberts v. Lewis 548 
 
Table of Cases. 
 
 Page 
 
 Roberta v. Lynn Ice Co 241, 347 
 
 Roberts v. Roberts 637 
 
 Roberts v. Thorn 440 
 
 Roberts v. Walker 190 
 
 Robertson v. Meadors 99 
 
 Robertson v. Phillipps 53 
 
 Robertson v. Younghiogheny Coal 
 
 Co 676 
 
 Robinson v. Covers 198 
 
 Robinson v. Clapp 37, 38, 636 
 
 Robinson v. Palmer 496, 502 
 
 Robinson v. Wheeler 96 
 
 Robinson's Appeal 419 
 
 Roche V. Ullman 712 
 
 Rochester Sav. Bank v. Bailey. 794 
 
 Rockland Water Co. v. Tillson.. 689 
 
 Roderick v. Sanborn 50 
 
 Eodwell V. Phillips 16 
 
 Roe dem. Thong v. Bedford. 521, 522 
 
 Rogan V. Walker 472 
 
 Roger's Estate 586 
 
 Rogers v. Atlantic Gulf & Pae. 
 
 Co 87 
 
 Rodgers v. Bonner 398 
 
 Rogers v. Brokaw 54 
 
 Rogers v. Cox 727 
 
 Rogers v. Eagle Fire Co. of N. Y. 362 
 
 363, 364, 731, 759 
 
 Rogers v. Elliott 656 
 
 Rogers v. Hillhouse 768 
 
 Rogers v. Hosegood 717 
 
 Rogers v. N. Y. & Texas L. Co.. . 392 
 
 Rogers v. Sinsheimer 636 
 
 Rogers v. Snow 353 
 
 Rolt V. Somerville lOO 
 
 Roman v. Taylor 352 
 
 Roosa V. Harrington 507, 517 
 
 Roosevelt v. Hopkins 318 
 
 Root V. Stuysevant 599 
 
 Rose V. Hawley 461 
 
 Roseboom v. Van Vechten. . . . 143, 478 
 
 Roseman v. Miller 809 
 
 Rosenberg v. Lustgarten 253 
 
 Rosmuller v. State 25 
 
 Ross V. Adams 755 
 
 Ross V. Drake 497, 503 
 
 Pace 
 
 Eoush V. Miller 161 
 
 Rowan v. Lytle 333, 334 
 
 Rowbothem v. Wilson 676 
 
 Rowe V. Granite Bridge Corp. . . 750 
 
 Rowe V. Hamilton 179 
 
 Eowell V. Kline 42 
 
 Rowland v. Anderson 65, 71 
 
 Rowland v. Rowland 403, 492 
 
 Rowland v. Voechting 242 
 
 Roy V. Munroe 390 
 
 Royce v. Guggenheim 325 
 
 Royston v. Royston 176 
 
 Ruckman v. Cutwater 26 
 
 Rudd V. Cornell 496, 502, 518 
 
 Ruddiman v. Taylor 741 
 
 Rumsey v. N. Y. & N. Eng. R. 
 
 Co 503, 670, 752 
 
 Russel V. Allen 379 
 
 Russell V. Hilton 387 
 
 Russell V. Merchant's Bank, etc. 438 
 
 Russell V. Richards 71 
 
 Russell V. Russell 552 
 
 Russell V. Temple 28 
 
 Ryan v. Brown 7S1, 752 
 
 Ryan v. Schwartz 826 
 
 Ryan v. Wilson 303 
 
 Ryler v. Cloud 2H 
 
 S. 
 
 Sabledowsky v. Arbuckle 488 
 
 493, 534 
 
 Sage V. Jones 737 
 
 Sage v. City of Gloversville 232 
 
 St. Anthony, etc., Co. v. Minne- 
 apolis 688, 670 
 
 St. Louis V. Rutz 670 
 
 St. Louis V. Nelson 83 
 
 St. Louis, etc., E. Co. v. Nugent. 830 
 
 St. Louis Univ. v. McCune 824 
 
 St. Regis Paper Co. v. Santa 
 
 Clara Lumber Co 13 
 
 St. Vincent Asylum v. Troy 651 
 
 Salisbury Sav. Soc. v. Cutting.. SU 
 
 SaJisbury v. Shirley 701 
 
 Salter v. Jonas 777 
 
 Saltonstall v. Little 13, 16 
 
Table of Cases. 
 
 Ixi 
 
 Page 
 
 Sammis t. Day 332 
 
 Sammis v. Sammis 154 
 
 Sampson T. Graham 48 
 
 Sampson v. Grogan 99 
 
 Samson v. Rose 41, 42 
 
 Samuels v. Borrowscale 820 
 
 Sanborn v. Adair 815 
 
 Sand V. Clrnrch 654 
 
 Sanders v. Partridge 312, 701 
 
 Sanderson v. Haverstiek 733 
 
 Sanford v. Goodell 601 
 
 Sanford v. Safford 425 
 
 San Francisco v. Fulde 826 
 
 San Francisco R. Co. v. Oakland. 766 
 
 Sanguinetti v. Peck 658 
 
 Sanitary Dist. v. Chicago 822 
 
 Santer v. Dollman 7'93 
 
 Sargeant v. Ballard 645 
 
 Sargent v. Courrier 242 
 
 Sargent v. Hubbard 685 
 
 Sarles v. Sarles 90, 95, 98 
 
 Sattcrlee v. Kobbe 446 
 
 Saunders v. Clark 16 
 
 Saunders v Haynes.... . 127, 128 
 
 Saunders v. McMillan 197, 200 
 
 Saunders v. Schmaelzle 403 
 
 Savage v. Grill 178 
 
 Savage v. Mason 680, 712 
 
 Sawyer t. Adams. . 814 
 
 Sawyer v. Cubby 495, 592, 594 
 
 Sawyer v Kendal 826, 827 
 
 Sawyer v. Lyon 429 
 
 Sawyers v. Collyer 724 
 
 Sayers t. Hoskinson 92, 93 
 
 Say res v. Kerr 320 
 
 Scales V. Scales 185 
 
 Scammon v. Campbell 200 
 
 Scanlon v. Scanlon 180 
 
 Sehaffer v. Reilly 790 
 
 Schall V. Williams Valley R. Co. 819 
 
 Schenck v. Barnes 385 
 
 Schenck v. Ellingwood 654 
 
 Schenley v. Commonwealth 654 
 
 Sehermerhorn v. Cotting... 601, 609 
 
 Schettler v. Smith 609 
 
 Schey v. Schey 604, 606, 610 
 
 Page 
 
 Schieifelin v. CSarpenter 331 
 
 336, 378 
 
 Schiffer v. Pruden 185 
 
 Schill V. Brokhahus 681, 682 
 
 Schintz V. McManany 765 
 
 Schlereth v. Schlereth 608 
 
 Schlesinger v. Kansas City E. 
 
 Co 451 
 
 Schlessinger v. Mallard 391 
 
 ScUieter v. Phillipy 658 
 
 Sohloss V. Feltus 398 
 
 Schmidt v. Lewis 678 
 
 Schmidt v. Quinn 626, 627 
 
 Schmidt v. Williams 19 
 
 Schmidt v. Willis 162 
 
 Schnebly v. Schnebly 197, 198 
 
 School Dist. Winthrop v. Benson. 819 
 
 School Dist. V. Lynch 653 
 
 Schrieber v. Chicago, etc., R. Co. 81 
 
 83 
 
 Schultz V. Byers 647, 675 
 
 Schultze V. Honfes 809 
 
 Schulte v. Warren : 773 
 
 Schurtz V. Colvin 797 
 
 Schuyler t. Smith 252 
 
 Schweitzer v. Wagner 162 
 
 Scott T. Bryan 552 
 
 Scott V. Guernsey 436 
 
 Scott V. McMillan 679, 713 
 
 Scott V. Mildeberger 552 
 
 Scovill v. MoMahon 454 
 
 Scranton v. Wheeler 671 
 
 Scriver v. Smith 784 
 
 Seabrook v. Moyer 328 
 
 Seamans v. Gibbs 5S1 
 
 Sears v. Russell 580 
 
 Sebald v. Mulholland. . .679, 712, 713 
 
 Sec. Nat. Bank v. Merril Co 85 
 
 Security Bank v. Holmes 787 
 
 Securty Oo. v. Bryant 196 
 
 Securty Ctt. v. Snow 550, 555 
 
 Security Land, etc., Oo. v. Bums. 770 
 Security Loan Co. v. Willamette 
 
 Co 81 
 
 Security Trust Co. v. Temple Co. 62 
 Sedgwick v. Hollenback. .. 779, 782 
 
Ldi 
 
 Table of Cases. 
 
 Page 
 
 er T Pettit 79 
 
 Seiders v. Giles 447 
 
 Selby T. Nettlefold 689 
 
 Sewell V. Underhill 395 
 
 Seymour v. Lewis 626, 638 
 
 Seymour v. Page 778 
 
 Seymour v. Warren 238, 246 
 
 Sexton V. Breece 18, 21 
 
 Sexton V. Chicago Storage Co.. 310 
 
 311, 320 
 
 Shackelford v. Hall 475 
 
 Shackleton v. Sebree 534 
 
 Shafer v. Wilson 672, 674 
 
 Shaher v. St. Paul Water Power 
 
 Co 711 
 
 Shallenberger t. Ashworth 202 
 
 Sharon Iron Co. Erie 462, 469 
 
 Sharp V. Ropes 721 
 
 Sharpless v. Boldt 672 
 
 Shattuek v. Lamb 783 
 
 Shattuck V. Wall 401, 410 
 
 Shaw V. Bowman 43 
 
 Shaw V. Loud 764 
 
 Shaw V. Partridge 202 
 
 Shawmut Nat. Bank v. Boston . . 354 
 
 Shea V. Shea 190 
 
 Sheaf V. Carr 155 
 
 Shearer v. Shearer 169, 411 
 
 Sheehan v. Flynn 660 
 
 Sheldon v. Sherman 751 
 
 Sheller v. Shivers 83 
 
 Shelley's Case 620 
 
 Shinn v. Shinn 415 
 
 Sliepard v. Blossom 59 
 
 Sliepard v. Manhattan El. R. Co. 196 
 
 Shepard v. Shepard 804 
 
 Bhepard v. Spaulding 757 
 
 Sherlock v. Bainbridge 734, 753 
 
 Sherlock v. Kansas City, etc., R. 
 
 Co 738, 739 
 
 Sherlock v. Rushmore 307 
 
 Sherman v. Cong. Missionary' 
 
 Soc 584 
 
 Sherman v. Champlain Trans- 
 
 tation Co 823 
 
 Sherman v. Foster 814 
 
 Page 
 
 Sherman v. Willett 21, 83, 42 
 
 Sherred v. Cisco.. 677, 681, 682, 683 
 
 Sherill v. Connor 98 
 
 Sherry v. Picken 21 
 
 Shierr v. Voorhees 668 
 
 ShJir V. Snyder 167 
 
 Shimer v. Mann 531 
 
 Shimer v. Phillipsburg 233 
 
 Shinn v. Shinn 419 
 
 Shirk V. Thomas 817 
 
 Shirley's Lessee v. Ayers 795 
 
 Shirley v. Crabb 695 
 
 Shirley v. Sugar R. Co 161 
 
 Shively v. Bowlby 751 
 
 Shivers v. Shivers 687 
 
 Shoch v. Shoch 189 
 
 Shoemaker v. Walker 164 
 
 Shores v. Cady 208 
 
 Shortall v. Hinckley 205 
 
 Shotwell V. Gordon 824 
 
 Shrack v. Zubler 826 
 
 Shreve v. Mi^this 617 
 
 Shroder v. Brennemann 685 
 
 Shrunk v. Schuylkill Navig. Co.. 751 
 
 Shulte V. Warren 33 
 
 Shultz V. Bower 673 
 
 Shute V. Bills 301 
 
 Sibley v. Holden 776 
 
 Siceloff V. Redman's Adms 523 
 
 Sidders v. Riley 781 
 
 Sidney v. Ely 223 
 
 Siebert v. Levin 636 
 
 Siglar V. Van Riper 435 
 
 Silberberg v. Trachtenberg 701 
 
 Sill V. White 215 
 
 Silsby V. Trotter 614 
 
 Silva V. Hopkinson 521 
 
 Eimanck v. Neiiictz 19 
 
 Simar v. Canaday 177 
 
 Simmons v. Norton 90 
 
 Simmons v. Turner 313 
 
 Simonton v. Gray 158 
 
 Siinpkins v. Rogers 39, 40, 42 
 
 Simpson v. Dowling 825 
 
 Sii.ifison V. Clayton 701 
 
 f^iiiip^on V. "Mas^oTi 237 
 
Table of Cases. 
 
 Luii 
 
 Page 
 Sims V. Jones 21 
 
 Simpson v. B. & M. E. Co 633 
 
 Singleton v. Gilbert 506 
 
 Sinker v. Flood 787 
 
 Sinton v. Boyd 496 
 
 Sioux City, etc., E. Co. v. Singer 457 
 
 575 
 
 Sioux C. E. Co. V. Steiner 739 
 
 Sip V. Lawback 198 
 
 Sites V. Eldredge 551, 555 
 
 Skally V. ^Shute 336, 337 
 
 Skinner v. Shepard 456 
 
 Skinner v. Wilder 35, 37, 38 
 
 Skolfield v. Skolfield 198 
 
 Slack V. Bird 496 
 
 Slater v. Bonfiglio 345 
 
 Slater v. Gruger 402 
 
 Slater v. Gunn 753 
 
 Slater v. Von Chorus 345, 346 
 
 Sleeper v. Laconla 773, 773 
 
 Slegel V. Lauer 480 
 
 Slingerman v. International 
 
 Cont 20, 25, 26, 671 
 
 Sloan V. Biemiller 753, 774 
 
 Slockbower v. Kanouse 446 
 
 Slocum V. Seymour 11, 12 
 
 Small V. Small 503 
 
 Smallridge v. Hazlett 153, 164 
 
 Smith V. Allen 768 
 
 Smith V. Balcom 165, 390 
 
 Smith V. Barber 324 
 
 Smith V. Barham 20 
 
 Smith V. Barrie 575 
 
 Smith V. Bartlett 772, 773 
 
 Smith V. Block 502 
 
 Smith V. Chapin 836 
 
 Smith V. Collins 498 
 
 Smith r. City of Brooklyn 661 
 
 Smith V. City of Rochester. 750, 751 
 
 Smith V. Commonwealth 62 
 
 Smith V. Coolcy 614 
 
 Smith V. Devlin 333 
 
 Smith V. Edwards 593, 594 
 
 Smith V. Floyd 544 
 
 Smith V. Gaines 447 
 
 Smith V. Howell 180, 788 
 
 Faoe 
 
 Smith V. Jenka 16 
 
 Smith V. Jewett 90 
 
 Smith V. Kerr 336, 337, 838, 354 
 
 Smith V. McCarthy 159, 160 
 
 Smith V. McEnany 325, 338 
 
 Smith T. McGowan 334 
 
 Smith V. McLean 353, 354 
 
 Smith V. Miller 651 
 
 Smith V. Osborn 441 
 
 Smith V. Parsons 386, 588 
 
 Smith V. Pendell 514 
 
 Smith V. Price 19 
 
 Smith V. Rector 468 
 
 Smith V. Rice 502 
 
 Smith T. Rochester 773 
 
 Smith V. Smith 148 
 
 90, 197, 198, 449, 745 
 Smith V. South Royalton Bank. 791 
 
 795 
 
 Smith V. Somes 547, 557 
 
 Smith V. Surman 13 
 
 Smith V. Thackerah 673 
 
 Smith V. Townsend 583 
 
 Smith V. Trustees 449 
 
 Smith V. Wentworth 147, 148 
 
 Smith V. Whitney 80 
 
 Smith V. Yale 804 
 
 Smith's Appeal 170 
 
 Smithsonian Inst. t. Meech 389 
 
 Smoot V. Lecat 306 
 
 Smyles v. Hastings 626, 694, 695 
 
 Smyth V. Carter 96 
 
 Smyth V. Stoddard 79, 80 
 
 Smythe v. Sturges 60 
 
 Snedeker v. Waring 48, 54 
 
 Snell V. Levitt 693 
 
 Snow V. Orleans. 769 
 
 Snow V. Parsons 666 
 
 Snow V. Pulitzer 326 
 
 Snow V. Stevens 153 
 
 Snyder v. Snyder 158 
 
 Society for Theological Eduoa- 
 
 tion V. A. G 509 
 
 Sohier t. Eldredge 224 
 
 Sohier v. Trinity Church... 454, 456 
 Sellers T. SoIIers .ii 
 
bav 
 
 Table off Cases. 
 
 Page 
 
 South Branch R. Co. v. Parker.. 686 
 
 Southard v. Central E. Co 458 
 
 Soutlibridge Sav. B. v. Exeter 
 
 Worka 69 
 
 Southern v. Wallaaton 579 
 
 Sowden V. Craig 69 
 
 Spacy V. Evans 13, 15 
 
 Spangler v. Dukes 190 
 
 Sparger v. Moon 169 
 
 Sparkman v. Gore 725 
 
 Sparrow v. Pond 16, 18 
 
 Spear v. Fuller 451 
 
 Spencer's Case. ...312, 698, 700, 701 
 
 Spencer v. Carr 797 
 
 Spencer v. Kilmer 634, 635 
 
 Sperry v. Miller 332 
 
 Sperry v. Pcnd 575 
 
 Spicer v. Martin 717 
 
 Spielman v. Kliest 233 
 
 Spier V. New Utrecht 653 
 
 Spinney v. Barbe 61 
 
 Spinning v. Spinning 201 
 
 Spohn V. Dives 674 
 
 Sprague v. Baker 781, 783 
 
 Spring T. Randall 386 
 
 Springer v. DeWolf 314 
 
 Springer v. Springer 620 
 
 Spruhen v. Stout 53 
 
 Stahl V. Stahl 185 
 
 Stahl V. Wilbur 20 
 
 Stambaugh v. Smith 779 
 
 Standard Bank v. Stokeg 681 
 
 Standen v. Chrismas 697 
 
 Standish v. Babcoek 392 
 
 Stanton v. Miller 794 
 
 Stan wood v. Dunning 160 
 
 Starbuek v. Starbuck.. 166, 185, 186 
 
 Star Brew. Co. v. Primas 454 
 
 Stark V. Hunton 193 
 
 Starr v. Child 772, 773 
 
 Starr v. Jackson 263 
 
 State V. Cone 151 
 
 State V. Curtis S.TS 
 
 State V. Davis 733 
 
 State V. Elliott 50, 75 
 
 State V. Fowler 17, 18 
 
 Pass 
 
 State V. Green 743 
 
 State V. Holmes 585 
 
 State V. Lewis 35 
 
 State V. Lowell 151 
 
 State V. Martin 48 
 
 State V. Negaard 34 
 
 State V. Roberta 35 
 
 State V. Ross 148 
 
 State V. Shaw .34, 35 
 
 State V. South Amboy 743 
 
 State V. Vv'orthingham 153 
 
 State Sec. Bank v. Hoskins..54, 57 
 
 Strarns v. Richmond 673 
 
 Stearns v. Swift 180, 200 
 
 Stedman v. Smith 681 
 
 Steel V. Steel 533 
 
 Steel Co. >'. Budzisz 827 
 
 Steele v. Fisher 195 
 
 Steele v. Steele's Admr 195 
 
 Steffins V. Earl 349, 254, 255 
 
 Stein V. Bice 327 
 
 Steinke v. Bentley 638 
 
 Steele v. Carroll 157 
 
 Steele v. Steele's Admr 196 
 
 Steltz V. Schreck 167 
 
 Stclz V. Shreck 420 
 
 Stelz V. Van Deusen 307 
 
 Stephens v. Leach 821 
 
 Stephenson v. Silvernail 31S 
 
 Sterger v. Van Sicklen 304, 307 
 
 Sterling v. Jackson 33 
 
 Sterling v. Pciilington 20S, 213 
 
 Sterling Hydraulic Co. v. Wil- 
 liams 706 
 
 Stern v. iMurphy 333 
 
 Stetson V. Curtis 621 
 
 Stevens' Est 58,T 
 
 Stephens v. Ely S3 
 
 Stevens v. Kelley 24 
 
 Stevens v. King 774 
 
 Stevens v. Leonard 164 
 
 Stevens v. Meloher 224, 235 
 
 Stevens v. Orr 626, 6S 1 
 
 Stevens v. Patterson & Newark 
 
 R. Co (;71 
 
 Stevens v. Reed 13a 
 
Table of Oases. 
 
 ixv 
 
 Page 
 
 Stevens v. Eeynolds 440 
 
 Stevens v. Rose 100 
 
 Stephens v. Stephens 663 
 
 Stevens v. Thompson 430, 438 
 
 Stevens v. Wait 423, 4S5 
 
 Stevenson v. Crapnell 392 
 
 Stevenson v. Lesley. .. .406, 410, 507 
 Stewart v. Allegliany Nat. Bank. 448 
 
 Stewart v. Doughty 39, 41 
 
 Stewart v. Exchange Bank 394 
 
 Stewart v. Forst 326 
 
 Stewart v. Long Island E. E. 
 
 Co 309, 310 
 
 Stewart v. Neely 514 
 
 Stewart v. Stewart , 176, 188, 429, 434 
 
 Btiehel v. Grosberg 792 
 
 Stilson V. Stilson 185 
 
 Stinchfield v. Gillis 30 
 
 Stinson v. Sumner 180 
 
 Stirling's Appeal 731 
 
 Stockport Waterworks Co. v. 
 
 Potter 669, 670 
 
 Stockwell V. Campbell 63 
 
 Stockwell V. Henry 813 
 
 Stockwell V. Hunter 354 
 
 Stockwell •!. Marks 76 
 
 Stoffe V. McGinn 548 
 
 Stojan V. Knowles 673 
 
 Stokes V. Stokes 150 
 
 Stokes V. Upton 81 
 
 Stondinger v. Newark 731 
 
 Stone V. Duvall 793 
 
 Stone V. Vandermark. . .. , . ,194, 195 
 
 Stonehull v. Hastings 793 
 
 Stoner v. Chasse 557 
 
 Stoolfors V. Jenkins 207 
 
 Storer v. Freeman 773 
 
 Storrs Agr. School v. Whitney.. 584 
 
 Story V. N. Y. Elev. E. Co 738 
 
 Stoughton V. Leigh 93 
 
 Stoughton, City of, v. Weber... 474 
 
 Stout V. McAdams 669 
 
 Stout V. Stout 573, 579 
 
 Stover V. Chasse 311 
 
 Stowe V. Steele 180 
 
 Strawn v. Strawn 154 
 
 Page 
 
 Strayer v. Long 162 
 
 Street y. Central Brew Co 349 
 
 Street v. Fay 250 
 
 Stretch v. Cassapolis 733 
 
 Strickland v. Spence 249 
 
 Striker v. Mott £14 
 
 Strimpfler v. Roberts 388 
 
 Strobel v. Kerr Salt Works 665 
 
 Strode v. MoCormick 502, 496 
 
 Strode v. Strode 149 
 
 Strong V. Clem 197 
 
 Strong V. Converse 182 
 
 Strong v. Doyle 27 
 
 Strong V. Eddy 16 
 
 Stroup V. Stroup 164 
 
 Stuart v. Easton 456 
 
 Stubbins v. Evanston 329 
 
 Stull V. Rich Patch Iron Co.. 824 826 
 
 Sturgis V. Bridgman 656 
 
 Stuyvesant v. Woodruflf 626 
 
 SuiTern v. Butler 789 
 
 Suffield V. Brown 638 
 
 SuflSeld V. Hathaway 733, 734 
 
 Sullivan v. Graffort 683, 715 
 
 Sullivan v. Eingler 252 
 
 Sullivan V. Eyan 641 
 
 Sullivan v. Schmidt S35 
 
 Sullivan v. Zeiner 652, 675 
 
 Sully V. Schmidt 326 
 
 Summers v. Babb 200 
 
 Sumner v. Darnell 456 
 
 Sumner v. Stevens 653, 833 
 
 Sumner v. Tileston 651 
 
 Sunday Min. Co. v. Wakefield.. 472 
 Susquehanna, etc., E. Co. v. 
 
 Quick 425, 823 
 
 Sutherland v. Sutherland ... 160, 176 
 
 Sutphen v. Therkelson 636 
 
 Sutton V. Askew 176 
 
 Sutton V. Goodman.. ..327, 345, 346 
 
 Sutton T. Groll 689 
 
 Sutton V. Moody 33, 34 
 
 Swan V. Goff 24 
 
 Swan V. Inderlied 247 
 
 Swansborough v. Coventry 639 
 
 Swarthout v. Eanier 549, 557 
 
Table of Cases. 
 
 Page 
 
 Swasey v. Emerson 397 
 
 Sweeney v. Warren 654 
 
 Swerigen v. St. Louia 751 
 
 Swett V. Swett 449 
 
 Switzer v. Knapp 789 
 
 Sword V. Low 66, 68, 69, 71 
 
 Swords V. Edgar 303, 307 
 
 Sykea v. Sykes 155, 176, 180 
 
 Syndham v. Jackson.. 87, 89, 98, 349 
 
 T. 
 
 Taft V. Taft 793,795 
 
 Tainter v. Cole 422 
 
 Talamo v. Spitzmiller 258, 259 
 
 Talbot V. Talbot 550 
 
 Talbot V. Cruger 80 
 
 Talbot V. Hill 40, 41 
 
 Talbot V. Whipple 75, 339 
 
 Tallmadge v. East River Bank.. 719 
 
 Tallman v. Coffin 703 
 
 Tallman v. Franklin 246 
 
 Tallman v. Murphy 336, 350 
 
 Taney v. Fahuley 521 
 
 Taney v. Jasper 661 
 
 Tanney v. Tanney 442 
 
 Tanner v. Volentine 730 
 
 Tarbell v. West 803 
 
 Tarbox v. Grant 3S4 
 
 Tardy v. Creasy 722 
 
 Tarplee v. Sonn 425 
 
 Tarrone v. Beam 199 
 
 Tate V. McCormiok 314 
 
 Taylor v. Baldwin 430, 432, 699 
 
 Taylor v. Bay City St. R. Co... 737 
 
 Taylor v. Bradley 241, 242, 243 
 
 Taylor v. Fornby 824 
 
 Taylor v. Frobock 478 
 
 Ts,ylor v. Glaser 787 
 
 Taylor v. Gould 209 
 
 Taylor v. Lawrence. .. .176, 180, 199 
 
 Taylor v. Millard 443, 614 
 
 Taub V. Spector 771 
 
 Tatum V. Tatum 789 
 
 Taylor v. Taylor 186, 494 
 
 Taylor v. Whitehead 089 
 
 Taylor's Estate 196 
 
 Pabb 
 
 Teaff V. Hewitt 48, 59 
 
 Teets V. Weise 516 
 
 Tefft V. Munson 811 
 
 Temperance House v. Fowle. . . . 170 
 
 Templeton v. Voshue 661 
 
 Ten Eyck v. Witbeck. .397, 398, 790 
 
 80? 
 
 Terhune v. Elberson IS 
 
 TerwiUiger v. Ont. C. & S. R. 
 
 Co 556 
 
 Thacher v. Phinney 96 
 
 Thatcher V. St. Andrew's Church. 790 
 
 Thayer v. Fenton 77: 
 
 Thayer v. Payne 633 
 
 ThellusBom v. Woodford 566 
 
 Theolog. Educ. Soc. v. A. G 583 
 
 Thielman v. Carr 63 
 
 Thoemke T. Fielder. 729 
 
 Thomas y. Evans 224 
 
 Thomas v. Ford 733 
 
 Thomas 7. Gayle 85 
 
 Thomas ▼. Hanson 161 
 
 Thomas v. Hayward 704 
 
 Thomas v. Higgins 523 
 
 Thomas v. Hunt 733 
 
 Thomas v. Nelson 349 
 
 Thomas v. Noel 39 
 
 Thomas v. Record 451 
 
 Thomas v. Sorrell 726 
 
 Thomas v. Thomas 150, 226, 227 
 
 696 
 
 Thomas v. VonkapflF 701 
 
 Thomas v. Wyatt 764 
 
 Thompson v. Boyd 158 
 
 Thompson v. Burhans 825 
 
 Thompson ▼. Chick 256 
 
 Thompson v. Crocker 663 
 
 Thompson v. Hakewill 699 
 
 Thompson v. Hoof 195 
 
 Thompson v. Ludington 496 
 
 Thompson v. Lyman 162 
 
 Thompson v. McClarney 619 
 
 Thompson v. McCorkle 199 
 
 Thompson v. MoCormick 749 
 
 Thompson v. Morrow 200 
 
 Thompson v. Poor 13 
 
Tablb of Oasbs. 
 
 Izrli 
 
 Fagb 
 
 Thompton t. Rose 703, 704 
 
 Thompson v. Smith.... S4, S96, 829 
 Thompson v. Thompson 156 
 
 Thompson v. Vinton 66, 68, 69 
 
 Thompson Scenic R. Co. v. Young 79 
 
 Thorndell v. Morrison 153 
 
 Thorndike v. Loring 685 
 
 Thorne v. Sutherland 81 
 
 Thornton v. Busch 40 
 
 Thornton v. Wiggins 416 
 
 Thorp V. Keokuk Coal Co 761 
 
 Thurber v. Townsend 214 
 
 Thurston v. Hancock 673 
 
 Thropp V. Field 468, 473 
 
 Throop V. Maiden 21 
 
 Tibbetts v. Home 69 
 
 Tibbetts T. Leeson 780 
 
 Tiers v. Tiers 602, 609 
 
 Tietjen v. Palmer 776 
 
 Tiffany v. Tiffany 389 
 
 Tifft V. Buffalo 749 
 
 Tifftv. Horton 66 
 
 Tilden r. Green 380 
 
 Tillinghast v. Dailey 211, 313 
 
 Tillotston V. Mitchell 806 
 
 Tillotson V. Smith 669 
 
 Tilly V. Moyers 335 
 
 Tilt V. Stratton 257, 258 
 
 Timlin v. Standard Oil Co. . . 303, 305 
 
 Timm v. Bear 666 
 
 Tinicum Fishing Co. v. Carter.. 614 
 
 617 
 
 Tink V. Walker 163, 164 
 
 Tinkham v. Erie E. Co 460 
 
 Tinte v. Miller 779 
 
 Titsworth v. Stout 439 
 
 Titus V. Ginheimer 49 
 
 Tobey v. Moore 574, 731 
 
 Tobias v. Ketcham 194 
 
 Tocci V. Powell 353 
 
 Todd V. Oviatt 208 
 
 Tolle V. Correth 664 
 
 Toilet V. Toilet 655 
 
 Tolles V. Winton 51 
 
 Tolman v. Sparhawk 823 
 
 Tomlin v. Hillyard 443 
 
 Paoe 
 
 Tomlinson r. Wlckell 170 
 
 Tompkins v. Fonda 19«, 197 
 
 Toms V. Williams 591, 612 
 
 Toney v. Wondling 389 
 
 Toothe V. Bryce..634, 635, 640, 688 
 
 Torrey v. Burnett 79, 81, 82, 83 
 
 Totten V. Stuyresant 444, 447 
 
 Towle V. Berry 163 
 
 Towler v. Towler 646, 555 
 
 Towne v. Fiske 62, 63 
 
 Townsend v. McDonald 668 
 
 Townssnd v. Scholey 313 
 
 Townsend v. Townsend 179 
 
 Townshend v. Frommer 386 
 
 Tracy v. Albany Exch. Co 336 
 
 Tracy v. Atherton 643, 645, 649 
 
 654, 655 
 
 Trash v. Patterson 202 
 
 Traute v. White 680, 683 
 
 Treadwell v. Inslee 646 
 
 Treat v. Parsons 35 
 
 Trentman v. Neff 769 
 
 Tripp V. Hasceig 18, 19 
 
 Trognam v. Pickard 701 
 
 Trotter v. Barrett 749 
 
 Trotter v. Smith 394 
 
 Trowbridge v. Ehrich 776 
 
 Truesrlale v. Ford 806 
 
 Truesdell v. Lehman 127, 134 
 
 Truman v. Lore's Trustees 788 
 
 Trumbull v. Trumbull 531 
 
 Trustees, etc. v. Hoboken . . . 741, 744 
 
 Trustees, etc. v. Johnson 433 
 
 Trustees Columbia College v. 
 
 Thatcher 733 
 
 Trustees v. Schroll 775 
 
 Trustee, etc. v. Youmans 659 
 
 Trustees of Union College v. City 
 
 of N. Y 450, 462, 465 
 
 Tucker v. Cooney 783 
 
 Tucker v. Shaw 398 
 
 Tuffree v. Polhemus 443 
 
 Tulk V. Moxhay 715, 719 
 
 Tullock V. Worrall 425 
 
 Tunis L. Co. v. Dennis L. Co.... 75 
 Tunstall v. Christian 652 
 
Ixviii 
 
 Table op Cases. 
 
 Page 
 
 Turner v. Hebron 614, 753 
 
 Turner v. Wright 100, 537 
 
 TurnbuU v. Rivera 636 
 
 Tustin V. Taught 763 
 
 Tuttle V. Eobinson 63 
 
 Tuxedo Park Ass'n v. Sterling 
 
 Iron, etc., Co 770 
 
 Tyler v. Hammond 196 
 
 Tyrringham's Case 618 
 
 U. 
 
 Uliler V. Cowen 329 
 
 "Ulrg V. Jonea 34 
 
 Underbill v. Collins 333, 340, 343 
 
 Underbill v. Saratoga R. Co ... . 453 
 
 Underwood v. Curtis 607, 611 
 
 Unger v. Leiter 161 
 
 Unger v. Mooney 425 
 
 Unglish V. Marvin 341 
 
 Union Literage Co. v. London 
 
 Graving Dock Co 639 
 
 Union Nat. Bank v. Goetz 393 
 
 Union Stock Yards v. Gillespie. . 392 
 Union Ter. Co. v. Wilmar R. Co. 80 
 
 81 
 United Merchants Realty & Imp. 
 
 Co. v. N. y. Hippodrome 240 
 
 V. S. V. Bostwick 96, 99 
 
 United States v. Freight Ass'n. 476 
 
 United States v. Loughbrey . . . . 450 
 
 Uppington v. Corrigan.453, 456, 457 
 
 463, 466, 574 
 
 Upton v. Archer 765 
 
 Upton v. Witberwick 43 
 
 Urann v. Coates 383 
 
 Utley V. Wilcox L. Co 16 
 
 V. 
 
 Valentine v. Healy 254 
 
 Van Aken v. Gleason 816 
 
 Van Arden v. Van Arden 191 
 
 Van Bibber v. Ferdinand 425 
 
 Van Blarionm v. Larson 186 
 
 Van Brunt v. Van Brunt. ..540, 594 
 
 563 
 Van Brunt t. Flatbush 731 
 
 Paob 
 
 Van Buren v. Wotherspoon 247 
 
 Van Cleaf v. Burns 185, 18« 
 
 Van Doren v. Van Doren 200 
 
 Van Duzer v. Van Duzer 205 
 
 Van Horn v. Campbell 539 
 
 Van Horn v. -Fonda 440 
 
 Van Keuren v. Central B. of N. 
 
 J 806 
 
 Van Ness v. Paeard 79, 80, 81 
 
 Van Norden Trust Co. v. O'Dono- 
 
 bue 386 
 
 Van Note v. Downey 202 
 
 Van Orden v. Van Orden 195 
 
 Van Rensselaer v. Kearney. 81, 812 
 Van Rensselaer's Heirs v. Penn- 
 
 man 377 
 
 Van Rensselaer 7. Radcliffe . 30, 613 
 
 618 
 
 Van Rensselaer v. Reed 709 
 
 Van Vleck v. White 83 
 
 Van Voorhis v. Brontnall . . 148, 149 
 Van Winkle v. Van Winkle. 775, 776 
 
 Vanderpoel v. Loevir 603 
 
 Vatie V. Underwood 163 
 
 Vane v. Lord Barnard .. 100 
 
 Vann v. Rouse 350, 351 
 
 Varnum v. Abbott 422 
 
 Vanghen v. Haldeman 61 
 
 Veght V. Raritan Water Power 
 
 Co 692, 694 
 
 Veit V. Schwob 763 
 
 Venable v. Wabash W. R. Co 178 
 
 Vernon v. Smith 698, 701, 711 
 
 Vernon's Case 188 
 
 Verona v. R. R. Co 743 
 
 Viall V. Carpenter 627 
 
 Village of Vermont v. Miller... 74 
 
 Vincent v. Spicer 97 
 
 Vincent v. Spooner 188 
 
 Virgin v. Virgin 163,177 
 
 Von Arb v. Thomas 154 
 
 Voke V. Piatt 186 
 
 Volliner's Appeal 683 
 
 Vorebeek v. Roe 12, 802 
 
 Vorhees v. McGinnis 71 
 
 Voorhis v. Freeman 53 
 
Table of Oases. 
 
 liii 
 
 Paoe 
 
 Vought'g Ex'rs v. Vought 790 
 
 Vroom V. Tilly 35 
 
 Vulicevick v. Skinner 17 
 
 Vyvyan v. Arthur 697, 701, 711 
 
 W. 
 
 Wadd V. Hazelton 384 
 
 Waddell v. Eattew 511, 5S5, 527 
 
 Wade V. Miller 158, 196 
 
 Wadleigh v. Janvrin 51 
 
 Wadsworth v. Wendell 790 
 
 Waffle V. N. Y. Cent. R. Co 66& 
 
 Wagner v. Mallory 663 
 
 Wagoner v. Van Noatrand 779 
 
 Wainscott v. Silvers 99 
 
 Wait V. Bovee 417 
 
 Walker v. Cronin 662 
 
 Walker v. Grand Eapida P. Mill 
 
 Co 71 
 
 Walker v. Pieree 689 
 
 Walker v. Sherman 48 
 
 Walker v. So. Pac. E. E. Co 658 
 
 Walker v. Stetson 681, 683 
 
 Walker v. Schuyler 200 
 
 Walker v. Tucker 95 
 
 Walker v. Wheeler 472 
 
 Walker Ice Co. v. American, etc., 
 
 Co 24, 251 
 
 Walkins v. Eaton 429, 442 
 
 Wall V. Plinds 79, 315, 316 
 
 Wall V. Pittsburg Harbor Co 670 
 
 Wallace v. Fletcher 654 
 
 Wallace v. Harris 176 
 
 Wallace v. McEchron 446 
 
 Wallace v. Minor 498, 500 
 
 Wallach v. Riverside Bank 761 
 
 Wallingford v. Hearl 823 
 
 Walsh V. Kelly 179 
 
 Walsh V. McEride 388 
 
 Walsh V. Packard 705 
 
 Walter v. Greenwcod 433 
 
 Walters v. Bredin 454 
 
 Walters V. Hutchin's Adm'x 90 
 
 Walters v. Pfeil 674 
 
 Walters v. Walters 164 
 
 Walton V. Waterhouse 234 
 
 Faos 
 
 Wampler v. Weinmann 351 
 
 Ward V. Bailey 148 
 
 Ward V. Carp, etc., Co 93 
 
 Ward V. Cochran 820 
 
 Ward V. Edesheimer 324 
 
 Ward V. Hasbrouck 245, 246 
 
 Ward V. Kilpatrick 61 
 
 Ward V. Lewis 792 
 
 Ward V. Met. St. E. Co 805 
 
 Ward V. People 25 
 
 Ward V. Ward 693 
 
 Ward V. Ward's Heirs. 428, 430, 431 
 
 433, 434 
 Ward V. Warren.. 645, 646, 653, 830 
 
 Warden v. Richards 550 
 
 Wardwell v. Hale 496 
 
 Wardwell v. McDowell 550 
 
 Ware ^. Chew 637 
 
 Warfel v. Knott 677 
 
 Waring v. King 253 
 
 Waring v. Martin 668 
 
 Warner v. Abby 241 
 
 Warner v. Bennett 454 
 
 Warner v. Southworth 773 
 
 Warner v. Tanner 143, 262, 478 
 
 Warner v. Van Alstyne 161 
 
 Warren v. Bowdran 821 
 
 Warren v. Blake 631 
 
 Warren v. Leland 12 
 
 Warren v. Liddell 68, 71 
 
 Warren v. Matthews 753 
 
 Warren v. Union Bank 392 
 
 Warren Co. v. Cans 92, 101 
 
 Washington Ice Co. v. Shortall. . 24 
 Washington Natural Gas Co. v. 
 
 Johnson 313, 316, 698 
 
 Wass V. Bucknam 213, 425 
 
 Waterman v. Johnson 771, 774 
 
 Waterman v. Soper 38 
 
 Watkins v. Eaton 441 
 
 Watkina v. Green 222 
 
 Watkins v. Peck 651 
 
 Watkins v. Thornton 208 
 
 Watriss v. Nat. Bank of Cam- 
 bridge 83 
 
 Watrons v. Allen 718 
 
ixx 
 
 Table of Cases. 
 
 Paoe 
 Watson T. Chicago M. & St P. E. 
 Co 739 
 
 Watson V. Gray 676, 681 
 
 Watson V. Eillman 798 
 
 Watson V. New Milford Water 
 
 Co 668 
 
 Watson V. Peters 772 
 
 Wattles V. South Omaha lee Co. 352 
 
 Watts V. Kelson 631, 634, 637 
 
 Watts V. Lehman 76, 79 
 
 Watson V. Watson 205 
 
 Way V. Hooton 819 
 
 Way V. Reed 345 
 
 Wead V. Larkin 785 
 
 Weaver v. Barden 398 
 
 Webber v. Chapman 645 
 
 Weber v. Anderson 828 
 
 Weber v. Bridgman 544 
 
 Webster v. Ellsworth 211 
 
 Webster v. Nichols 701 
 
 Webster v. Peet 91 
 
 Webster v. Van Deventer 403 
 
 Webster v. Webster 90, 91 
 
 Wegge V. Madler 775 
 
 Weigmann v. Jones 657 
 
 Weil V. Baldwin 706 
 
 Weinar v. Path 550 
 
 Weir V. Tate 155 
 
 Weiss V. South Bethlehem 746 
 
 Welcome v. Hess 340, 341, 342 
 
 Welch V. Buckins 159 
 
 Welch V. McKenzie 169 
 
 Welch v. Sackett 798 
 
 Weller v. Rolason 134 
 
 Weller v. Weller X73, 175 
 
 Welles V. 0>wles 27 
 
 Welles V. Estes 181 
 
 Wells V. Bannister 71 
 
 Wells V. Chapman 441 
 
 Wells V. Garburr «36, 640, 668 
 
 Wells V. Tolman 687 
 
 Wells V. Wells 602 
 
 Welsh V. Sackett 410 
 
 Welsh V. Wilson 734 
 
 Wendt V. Walsh 166, 377 
 
 Wcntworth v. Fernald 585 
 
 Pa(» 
 
 Wentworth v. Machine Oo...67, 68 
 
 Wentworth v. Wentworth 188 
 
 Wereans v. Peebles 768 
 
 Werner v. Padula 354 
 
 Wertheimer v. Hosmer 470, 701 
 
 Wescott V. Campbell 200 
 
 West V. Berney • • • 657 
 
 West w Edson 741 
 
 West V. Farmers Ins. Co 63 
 
 West V. Moore 20 
 
 West V. Walker 189 
 
 Vrest V. Weyer 428 
 
 Westbrook v. Eager 21 
 
 Westbrook v. Gleason 808 
 
 Westbrook v. Vanderburgh 196 
 
 Westinghouse v. Ger. Nat. Bank 397 
 Westmoreland Coal Co.'s Appeal 93 
 Westmoreland Gas Co. v. DeWitt 663 
 
 Weston V. Sampson 753 
 
 Weston V. Stoddard 446 
 
 West Shore R. Co. v. Wenner 319 
 
 Wheatfield v. Grundmann. . .741, 745 
 
 Wheatley v. Eaugh 658 
 
 Wheatley v. Calhon 160 
 
 Wheatley v. Chrisman 665 
 
 Wheatm v. Andress 132 
 
 Wlieeldon v. Burrows 636,638 
 
 Wheeler v. Erankenthal 246 
 
 Wheeler v. Kirkendell 39 
 
 Wheeler v. Kirthland. .177, 178, 179 
 
 388 
 
 Wheeler v. Smith. 153 
 
 Wheeler v. Walker 455 
 
 Wheelwright v. Wheelwright. . . . 793 
 
 Wheeton v. Woodcock 81 
 
 Whitbeck v. Cook 781 
 
 White V. Arndt 80, 86 
 
 White V. Bradley 651 
 
 White V. Carpenter 388 
 
 White V. Clauson 829 
 
 White V. Crawford 616 
 
 White V. Cutler 90, 101 
 
 White V. Dresser 672 
 
 White V. Eagle, etc.. Hotel Co. . . 688 
 
 White V. Poster 12 
 
 White V. Godfrey 778 
 
Table of Oases. 
 
 Ixxi 
 
 Pass 
 
 White T. Hicks 658 
 
 White V. King 13, 15 
 
 White V. Loring 769, 770 
 
 White V. Lowe 150 
 
 White V. Manhattan R. R. Co.. . 691 
 
 693 
 
 White V. Maynard 244 
 
 White V. Nassau Trust Co.. 672, 674 
 White V. N. Y. & N. E. R. Co.. . . 624 
 
 White V. Smith 742 
 
 White V. Stewart 428 
 
 White V. White 183,192 
 
 White V. Wiley 740 
 
 White V. Williams 769 
 
 Whitehead v. Bennett 74, 81 
 
 Whitehouse v Cummings 627 
 
 White's Bank v. Nichols 693, 696 
 
 Whiting V. Brastow 79, 86 
 
 Whiting V. Nicoll 199 
 
 Whitmarsh v. Cutting 39 
 
 Whitmarsh v. Walker 13 
 
 Whitney v. Allaire 235 
 
 Whitney v. Union Ry. Co... 715, 716 
 
 719 
 
 Whitney v. Whitney 167 
 
 Whitlock V. Washburn 543 
 
 Whittenton Mfg. Co. v. Staples.. 724 
 Whittiei V. Winkley...627, 684, 685 
 
 686 
 
 Whltwel] V. Harris 451 
 
 Whyddon's Case 792 
 
 Wiekersham v. Savage 549, 554 
 
 Wickes V. Hill 64, 66, 69 
 
 Wickham v. Hawker 614 
 
 Wiedeman v. Zielinska 802 
 
 Wier's Appeal 672 
 
 Wiggins V. MoCleary 694 
 
 Wigglesworth v. Dallison 43 
 
 Wilbur V. Wilbur 593 
 
 Wiloox V. Drought 791 
 
 Wilftox V. Quimby 326 
 
 Wilfiox y. Wheeler 130, 131, 654 
 
 Wilder v. Brooks 803 
 
 Wilder v. St. Paul 744 
 
 Wilgus T. Gettings 71 
 
 Wilhelm v. Wilkin 761, 766 
 
 Page 
 
 Wilkea v. Greenway 819 
 
 Wilkins v. Bevier 817 
 
 Wilkins v. Irvine 729 
 
 Wilkins v. Young 407, 416 
 
 Wilkinson v. Duncan.. 506, 577, 580 
 
 583 
 
 Wilkinson v. Haygarth 437 
 
 Wilkinson v. Pettit 701 
 
 Wilkinson v. Wilkinson . ... 92, 476 
 Wilksbarre v. Wyoming Hist. 
 
 Soe 130 
 
 Will V. Simmonds 455 
 
 Willard V Willard 92 
 
 "\^'illiams v. Apothecary's Hall.. 
 
 Co 255 
 
 Williams v. Angell 511 
 
 Williams v. Chicago Exhib. Co... 96 
 
 101 
 
 Williams v. Earle 321, 701 
 
 Williams v. Esten 514 
 
 Williams v. Haddock 395 
 
 Williams v. James 684, 685 
 
 Williams v. Jewett 680 
 
 Williams v. Kinney .... 183, 164, 165 
 
 398 
 
 Williams v. Nelson 655 
 
 Williams v. N. Y. Central R. Co. 737 
 
 Williams v. Safford 689, 740 
 
 Williams v. Vanderbilt 451 
 
 Williams v. Vreeland 394 
 
 Williams v. Williams 153, 176 
 
 Williamson v. Brown 803, 805 
 
 Williamson v. N. J. S. R. Co.. 48, 49 
 
 61 
 
 Willis V. Moore 23 
 
 Willoughby r. R. R. Co 728 
 
 Wilms V. Jess 673 
 
 Willson V. Chaefaut 729 
 
 Wilson V. Craig 184 
 
 Wilson V. Edmonds 89, 98 
 
 Wilson V. Hildfeth 770 
 
 Wilson v. Hunter 769 
 
 Wilson V. Jones 347 
 
 Wilson V. Martin 244 
 
 Wilson V. Mason 549 
 
 Wilson V. Odell 588 
 
Ixzii 
 
 Table of Cases. 
 
 Page 
 
 Wilson y. Taylor 256 
 
 Wilson V. Wilson 417 
 
 Wineh v. Bolton 185 
 
 Winchell v. Clark 870 
 
 Wincher v. Schrewsbury 53 
 
 Winfield v. Henning . .715, 718, 719 
 
 720 
 
 Winfree v. Jones 87 
 
 Wing V. Gray 52, 79, 95 
 
 Winn V. Abeles 824 
 
 Winnipiseogee Co. v. Young 648 
 
 Winslow V. Baltimore 247 
 
 Winslow T. B. & 0. R. Co 550 
 
 Winslow V. Bromich 48 
 
 Winslow V. Goodwin 514 
 
 Winslow V. Ins. Co 58 
 
 Winsor v. Mills 569, 573 
 
 Winston v. Johnson 623 
 
 Winston v. Hodges 788 
 
 Winter v. Brock well 691 
 
 Winter v. N. Y. & IST. J. Tel. Co.. 737 
 
 Winter v. Peterson 776 
 
 Winters t. De Turk 176, 19fl 
 
 Winthrop v. Fairbanks . 020, 823, 633 
 
 624 
 Wiseman v. Lucksinger.619, 853, 729 
 
 730 
 
 Wiser v. Lo«kwood 148 
 
 Wish art v. McKnight 828 
 
 Witthaus V. Schack 175, 180 
 
 Witherell v. Ellison 26 
 
 Witman v. Watry 342 
 
 Witmark v. N. Y. &, El. R. Co.. . 337 
 
 339 
 
 Woerz V. Rademacher 552 
 
 Wadman v. Burke 83 
 
 Wolf V. Gluck 313 
 
 Wolf V. Kilpatrick 303, 304 
 
 Wolf V. Town of Sullivan 748 
 
 Wolf V. Van Nostrand 627 
 
 Wolford V. Baxter 48 
 
 Womack T. McQuarrie 348, 354 
 
 Wood T. Boyd 823 
 
 Wood V. Chapin 801 
 
 Wood V. Cox 383 
 
 Wood V. Fleet 443 
 
 Pagb 
 
 Wood V. Fowler 25, 751 
 
 Wood V. Griffin 87, 573 
 
 Wood V. Hubbell 353 
 
 Wood V. Kelley 647 
 
 Wood V. Leadbitter . ..726, 729, 730 
 
 Wood V. Manley 737 
 
 Wood V. Partridge 219 
 
 Wood V. Rabe 390 
 
 Wood T. Taylor 767 
 
 Wood V. Wood 193 
 
 Wood'3 Appeal 814 
 
 Woods V. Woods 190 
 
 Woodbridge Co. v. Hires Co.. 862, 478 
 
 Woodbury v. Fisher 798 
 
 WoodhuU V. Little 449 
 
 Woodhull V. Longatreet 442 
 
 WoodhuU V. Reid 158 
 
 Woodhull V. Rosenthal .309, 310, 311 
 
 Woodman v. Pease 53 
 
 Woodman v. Pitman 25, 752 
 
 Woodman v. Spencer 774 
 
 Woodruff V. Cooke 601 
 
 Woodruff V. Paddock 695 
 
 Woodruff V. Pleasants 578 
 
 Woodruff V. Trenton Water 
 
 Power Co 407 
 
 Woodruff V. Walling 455 
 
 Woodruff V. Woodruff 456 
 
 Woodward Holmes Co. y. Nudd. 189 
 
 413 
 
 Woodworth v. Paige ISO 
 
 Woodworth v. Payne 460 
 
 Woodworth v. Raymond 626 
 
 Wooley V. Schrader 427 
 
 Wooster v. Cooper 651 
 
 Wooton V. White 83 
 
 Wordin's Appeal J83 
 
 Workman v. Curran 648 
 
 Worrell v. Forsyth 189 
 
 Worthington v. Gunnison 632 
 
 Worthington v. Hiss 434 
 
 Wreford v. Kenrick 346 
 
 Wright V. Latlin 325 
 
 Wright V. McDowell 85 
 
 Wright V. Sperry 44] 
 
 Wright V. White 493 
 
Table of Oases. 
 
 Ixxlii 
 
 Page 
 
 Wright T. Wright 804, 382 
 
 Wyatt V. Simpson 203 
 
 Wyckofif V. Gardner 415 
 
 Wyman v. Ballard 785 
 
 Wyman v. Brown 532, 534, 538 
 
 \\'ystow'8 Case 50 
 
 y. 
 
 Yale V. Seely 15 
 
 Yancey v. Tatloek 781 
 
 Yates 1-. Milwaukee 670, 671 
 
 Yeo V. Mereercau 163, 164 
 
 York \. Stone 466 
 
 '/m-k V. Welsh 1?8 
 
 Page 
 
 Young V. Barkier Dist. Oo 666 
 
 Young V. Dake 232 
 
 Young V. Foster 153 
 
 Young V. Heermans 385 
 
 Young V. Thrasher 169, 200 
 
 Young V. Young . ..54, 63, 164, 383 
 
 396, 515 
 
 Youst V. Hayes 180 
 
 Youst V, Martin 809 
 
 Z. 
 
 Zabriskie v. Morris t E. R. Co. 399 
 
 Zileh V. Young 864 
 
THE LAW OF REAL PROPERTY. 
 
 CHAPTER I. 
 Real and Personal Peopebtt. 
 
 A. — Nature of Property and Ownership. 
 
 § 1. Property. — Property may be broadly defined as in- 
 cluding all those things and rights which are the objects of 
 ownership.* Anything which is not owned by some person 
 or entity is not property. Every thing or right which has 
 an owner is property, and the law of property is made np 
 of the principles and rules governing such ownership. 
 Ownership, in turn, may be defined as the right to the es- 
 clusive possession, control or enjoyment of the things or 
 rights which are owned. He who is owner of land or chat- 
 tels may always maintain or recover his possession as 
 against everyone else. 
 
 § 2. Ownership; Absolute and Limited. — When a man is 
 absolute owner of any parcel of land or chattel, he has the 
 Tight to its exclusive possession, control and enjoyment; 
 he has also the absolute right to dispose of it as he sees fit, 
 to give or sell it to others, to use or destroy it, or any part 
 of it, at his pleasure, subject only to the rules of law govern- 
 ing his ownership by which he is bound as a member of 
 society. No other persons can claim any such right therein. 
 But ownership of property, and particularly of land, is very 
 frequently not of this absolute nature, but limited or quali- 
 fied. A tenant for years or for life of a parcel of land is 
 just as truly owner of it during the continuance of his term 
 as is an absolute owner, except that his ownership is limited 
 
 1 Williams on R. P. (17th Ed.), 1-3; 2 Blackatone Com. IB. 
 
8 Kbal and Peesonal Pbopeety, 
 
 as to time, and will come to an end witli tlie expiration of 
 his term, and except also, tliat his ownership is subject to 
 the rules of law which have been established for the pur- 
 pose of protecting those who will become the own- 
 ers of the land when his term expires. The term 
 " ownership " properly applies to all interests in 
 land or things, whether such interest be absolute or lim- 
 ited, conditional or unconditional, present interests with 
 right of possession or future interests with no present right 
 of possession. It also applies to mere rights in land, with- 
 out possession, such as rights of way, and to mere naked 
 rights having no corporeal object, such as a promissory note, 
 a bond, or a share of stock. In short, ownership in each 
 case means the exclusive right to the object owned, whether 
 that be a chattel, an absolute or limited estate in land, a 
 mere right in land not carrying with it possession, or a mere 
 chose in action, or a right with no tangible object.^ 
 
 § 3. Uses of the Term " Property." — The term " prop- 
 erty " has been used in several different senses (a) as ap- 
 plied to the rights of ownership rather than to the thing 
 which is owned (b) as applied to the thing owned. A third 
 application of the term has been described as "denoting 
 
 2. In Digby's Hist. R. P. (5th Ed.), in accordance with the meaning 
 
 305, the autl.or uses the term " owner- which has received general accept- 
 
 Bhip " ag applying only to the actual ance, then " OM'nership " must be 
 
 possession and control of land or construed as extending to rights 
 
 tangible things; for instance that tl:e involving no present possession or 
 
 term applies to the interest of a ten- control of any corporeal thing as well 
 
 ant for life or for years, but does not as to the rights which are accom- 
 
 apply to the interest of the landlord panied by such possession. Cert- 
 
 or reversioner, or to the owner of an ainly a remainderman or landlord is 
 
 casement, such a^ a right of way, the owner of the interest or estate 
 
 which rights are termed rights in which he has in the land. So also 
 
 alieno solo. The difficulty with this the man entitled to a right of way 
 
 is that it excludes all interests or is the owner of the right though ha 
 
 rights in land or things not involving has no present right to possession or 
 
 Immediate possession and control control of the land itself, 
 thereof. If words are to be taxen 
 
PeOPEETY, CoEFOEEAL and IjsrCOEPOIiJEAL. 3 
 
 valuable things — things which can be turned into value, or 
 assessed at a money value." * It seems clear that the third 
 usage includes the second, and that the second, carried to its 
 logical conclusion, includes the third. Therefore the term 
 " property " may be regarded as meaning, according to 
 the context, either the right which the owner may have 
 in corporeal things or in mere rights existing apart from 
 anything corporeal; or it may be regarded as meaning the 
 land or thing owned, or the interest or right in the land or 
 thing, when the owner has a limited right of user or a right 
 to the future enjoyment of the land or thing, or a mere right 
 or chose in action, where one is owner of a mere right un- 
 connected with any tangible land or thing. This latter 
 meaning of the term as designating the objects of owner- 
 ship, whether tangible or intangible, is the one generally 
 followed, and is the meaning which more nearly accords 
 with the general conception of the term.* 
 
 § 4. Property, Corporeal and Incorporeal. — It is clear, 
 therefore, that property includes incorporeal as well as 
 corporeal things. Tangible objects of every kind are cor- 
 poreal; they involve actual possession and present enjoy- 
 
 3. Wms. E. P. (17th Ed.), 4. is true that rigl'its arising from coii- 
 
 4. Mr. Digby divides all rights in- tracts or torts are not usually 
 to rights in rem, viz. : rights available treated as rights with which the law 
 against all the world, and rights in of property has to do. The nature 
 personam, which may be enforced and incidents of their ownership may 
 against certain and determinate best be treated as part of the law of 
 person or persons. Eights in rem contracts or torts. Nevertheless, 
 ir.clude all rights in land or tangible such rights are valuable; where they 
 things, while rights based on con- are causes of action which survive 
 tract or on injuries to person or prop- the death of either party, they must 
 erty are rights in personam. lie be included as part of the personal 
 states that the law of property, property of the deceased owner in the 
 broadly speaking, has to do with administration of his estate. Tliey 
 rights in rem, and that rights in fairly come within the limits of the 
 personam must be excluded from term property, even though the law 
 this branch of the law. Digby's Hist, of property has livtle to do with 
 L. of E. P. (5th Ed.), 300-302. It them, as it happens. 
 
i IlE.iL AND PeESONAL PrOPEETY. ' 
 
 ment on the part of tlie owner. Tncorporeal things are 
 mere rights carrying with them no right to the present pos- 
 session and control of any tangible thing. A tenant for 
 ye£irs or for life is owner of the land during the continu- 
 ance of his estate. The land is his for the time being; he 
 has exclusive possession and control. But he who has a 
 right to the future ownership of the land after the termina- 
 tion of such estate of limited duration, has a mere right, 
 without the right of possession of any corporeal thing. He 
 has a future interest in the land without any present right 
 to the enjoyment or control of the land itself. This interest 
 or estate is incorporeal ; it is nevertheless valuable and must 
 be treated as part of his property. So also in the case of 
 easements and rights of a similar nature, as where A has 
 a right of way over the laud of B. In such case B is the 
 owner of tlio land, the corporeal thing over which the right 
 of way exists; nevertheless A has an interest in the land; 
 he has the right to pass back and forth over B 's land in ac- 
 cordance with the terms of the grant by which the right of 
 way may have been acquired. This right of way is a valu- 
 able thing, clearly part of A's property, though it carries 
 with it no possession or control of any tangible thing. In 
 these cases the property may be described as intangible 
 rights in tangible things. There is still another kind of in- 
 tangible property, viz. : rights unconnected with any tangi- 
 ble thing, .such as debts, promissory notes, bonds and shares 
 of stock, etc. These are mere rights or things in action, yet 
 they are valuable things and clearly they are part of the 
 property of those to whom they belong.^ 
 
 5. Wms. R. P. 5, 6. to do with the material corporeal 
 
 This division of rights into corpo- land, except so far as it is the subject 
 
 real and incorporeal has been freely of rights. It is the distinction be- 
 
 criticised by writers on jurisprudence, tween the different classes of rights, 
 
 (See Austin 11, pp. 707, 708). and not beetween land on the one side 
 
 In Digby's Hist. E. P. p. 306, note, and rights on the other that he ia 
 
 the author says in this connection: concerned with . . . The names 
 
 "The lawyer has nothing whatever 'corporeal and incorporeal' are most 
 
Things Real and Things Personal. 5 
 
 B. — Distinction Between Real and Personal Property. 
 
 § 5. Things Eeal and Things Personal. — Eeal property 
 consists of things real and all rights or interests in things 
 real which are objects of ownership, except terms for years, 
 which, as we shall see later, are treated arbitrarily as per- 
 sonal property, the only explanation for the exception being 
 the historical development of the law on this subject. Liens 
 on land, though they are interests in things real, are never- 
 theless classed as personal property because they are inci- 
 dent to the debts or obligations which they secure, and 
 therefore partake of their nature. Things real consist of 
 land and all those things attached to the land permanently, 
 such permanency being evidenced by the intention of the 
 person making the annexation to attach the thing to the 
 land as a permanent part thereof. Things personal include 
 property of every other kind or description." 
 
 The old division of property into movable and immovable 
 things expresses the same idea. Movable things are always 
 personal property, and lose their character as such only 
 when they have been rendered immovable in the legal sense 
 by being permanently annexed to land, which is immovable. 
 
 unfortunate because if by 'corporeal' while if it is a right not involving 
 is meant 'relating to land' then a such possession and control it is in- 
 large class of incorporeal heredita- corporeal. As Prof. Williams says 
 ments are also entitled to the name; (Wms. R. P. p. 4, note) : "The 
 if by ' incorporeal ' is meant that they student of any legal system, however, 
 are mere rights then all heredita- must take it as he finds it. It is 
 ments are incorporeal, because the idle for him to find fault witli ideas 
 lawyer is only concerned with differ- which have obtained actual currency 
 eiit classes of rights. " therein, and which he is therefore 
 As Mr. Digby then points out, bound to accept as 'legal tender.' If 
 these terms refer to different classes any such ideas conflict with his sense 
 of rights. All rights, whether of what ought to be, he should look 
 termed corporeal or not, are in and for explanation to the history of the 
 of themselves incorporeal, but as ex- law. " 
 
 plained in the text, if the right in- 6. Bracton, 101, 102; Digby Hist 
 
 volves possession and control of a L. of R. P. 303, 304; 2 Blackstone 
 
 tangible thing, it is called corporeal, Comm. Ch. II. 
 
6 Real and Personal Peopeett. 
 
 It is, of course, obvious that tlie rules of law applying to 
 land and to interests in land must be very different from 
 tbe rules whicli govern the ownership of movable property. 
 Land cannot be worn out, used up or destroyed; it cannot 
 be carried from one place or country to another. What- 
 ever may become of the owner, his land must always remain 
 at the same place for all time, subject to the laws of the 
 state where it is situated. It cannot be transferred by de- 
 livery because, obviously, it cannot be delivered. On the 
 death of the owner, the succession to its ownership must 
 always be determined by the laws of the place of its loca- 
 tion. Personal property, on the other hand, may be used up, 
 worn out or destroyed; it may be moved freely from one 
 place to another and may be transferred by delivery. It 
 may be moved from one state to another, and therefore, on 
 the death of its owner, the succession to its ownership 
 must be determined by the laws of the owner's residence 
 at the time of his death. The physical difference, there- 
 fore, between real and personal property is the real basis 
 and true reason for this classification in the law of prop- 
 erty.'' 
 
 § 6. Effect of the Feudal System.— The feudal system, 
 which became established in England shortly after the 
 Norman conquest, had a profound effect in shaping the law 
 of land. Under that system all the land of the kingdom was 
 held of the king, the final or ultimate title being in him. 
 His lords and barons held the land by grants from the king, 
 they in turn granting to the vassals, who actually occupied 
 the land, or granted it in turn to their retainers or ten- 
 ants. The barons or lords rendered to the king, in return 
 for the land, certain feudal dues and services for the most 
 part of a military nature. Each vassal owed to his over- 
 
 7. Authorities cited in preceding 
 note; Williams R. P. (17th Ed), 10 
 11. 
 
Effect of the Feudal System. 7 
 
 lord, by virtue of the feudal grant to him, the dnty of 
 rendering military or other services, as well as of doing 
 homage and of attending at the manorial conrt Subject 
 to these feudal duties, the vassal or possessor of the land 
 had an estate or interest therein either in fee or for life, and 
 as long as these feudal dues or services were properly met 
 and discharged, the estate was his to enjoy as he pleased, 
 and the power of conveying the property and of disposing 
 of it by wiU finally became his. Nevertheless, the ultimate, 
 or allodial, ownership was not in him but the king. His 
 holding was immediately of his over-lord, and mediately 
 through his over-lord, of the king. His interest in the land 
 was not absolute ownership, but only an estate, which 
 signifies the extent of this interest, as an estate of inheri- 
 tance, or an estate for Hfe.* 
 
 The feudal system had to do only with things real, land 
 and things permanently attached thereto, as above de- 
 scribed. Such a system could not be extended to movable 
 things, and therefore absolute ownership in things personal 
 was always recognized. From this we find another basis by 
 which to determine when property is real and when per- 
 sonal. If it is property which under the feudal system 
 could be held by virtue of tenure, from the king as ultimate 
 owner through an over-lord, it is real property; otherwise 
 it is personalty. The reason why a term of years is not 
 regarded as real, but personal, in spite of the fact that it is 
 an interest in land, is because under the fedual system the 
 holding of a tenant for years was not regarded as of suf- 
 ficient importance and dignity to carry with it the incidents 
 of feudal holdings. The interest of such a tenant was re- 
 garded originally as being solely contractual, and as not 
 carrying with it an estate in the land, and as such holding 
 was not included in feudal holdings, it follows that it has 
 
 8. See discussion of the feudal 
 system in Chapter III herein and 
 
 Rutliorities there cited. 
 
8 Reai, and Peesonal Peopeett. 
 
 always been treated as personal property, and is known as 
 a chattel real.® 
 
 § 7. Origin of the Terms " Real " and " Personal."— 
 Real actions under the common law were actions resulting 
 in judgments for the recovery of the specific thing of which 
 the complainant had been deprived; the actual or real thing 
 sued for was recovered. These actions were always actions 
 for the recovery of land and whatever had become a part 
 thereof by annexation. Actions for injury to movable prop- 
 erty were called personal, and resulted in personal judg- 
 ments for money damges. Even the action of replevin is 
 a personal action, since the judgment therein is in the alter- 
 native, either to return the property or pay the damages 
 which the judgment specifies. Therefore the term real came 
 to be applied to land and real interests therein which could 
 be recovered in real actions; while the term " personal " 
 was applied to all other kinds of property where personal 
 actions only could be maintained in case of the wrongful 
 taking of the property. Although this is the historical 
 explanation of the use of the terms, the form of action in 
 each case is rather an incident of the ownership of the parti- 
 cular kind of property than a test by which to determine 
 what property is real and what personal.'" 
 
 § 8. Things Annexed to Land. — As we have seen, real 
 property is made up of land and those things which are 
 attached to the land in a permanent way, and all interests 
 therein which may be objects of ownership, while every 
 other kind of property is classed as personal. There are 
 several kinds of property, however, attached to land, or 
 identified in use therewith which require special attention 
 with reference to their classification as real or personal 
 
 ». See discussion of chattels real, 10. Bracton, 101, 102; Wms. R. P. 
 
 § 23 of this chapter and authorities (17th Ed.), 83-25. 
 cited. 
 
FixrcKEs. 9 
 
 property, a consideration of which will make more clear 
 the line of demarcation between things real and things per- 
 sonal. 
 
 § 9, Fixtures. — When a chattel is attached to land in a 
 permanent way, with the intention on the part of the per- 
 son who makes the annexation to incorporate the thing 
 annexed with the land permanently, as a part thereof, it 
 loses its character as a movable, becomes a part of the land 
 and is termed a fixture; it is no longer personal property, 
 but has become real property. Permanency of annexation 
 is the essential thing, and the test which the law applies to 
 determine such permanency, is the intent with which the an- 
 nexation is made. That intent is not necessarily the actual 
 state of mind of the person who made the annexation, but 
 it is his intent as inferred from all the circumstances con- 
 nected with the annexation, applying to him the test of the 
 average man, the question being what the intent of the 
 average man would be under the circumstances of the an- 
 nexation. Articles which in their nature are fixtures, and 
 if annexed by the owner would ordinarily become part of 
 the land, retain their character as personalty where title to 
 them remains in some one else after the annexation. Where, 
 for instance, a fence was erected on land by one who occu- 
 pied the land for a temporary purpose, under an agreement 
 with the owner that the fence should remain his property, 
 it was held that it did not pass with the land on a sale there- 
 of.' So, also, in those cases where articles, in their nature 
 fixtures, are attached to land under a contract of condi- 
 tional sale or a chattel mortgage by the terms of which they 
 are to remain the property of the vendor, they do not be- 
 come part of the land, provided they retain their identity 
 as distinct things, capable of removal and are not neces- 
 sarily incorporated with the land as part thereof.^ A de- 
 
 1. Mott V. Palmer, 1 N. Y. 564. under " Fixtures " in Chapter II 
 
 2. See discussion of this subject and cases there cited. 
 
10 Real and Peesonal Peopeett. 
 
 tailed consideration of the subject of fixtures will be found 
 in Chapter 11, following. 
 
 § 10. Soil or Minerals Severed from Land. — If part of 
 the soil be severed from the land, or if minerals, including 
 stone, be taken therefrom with the intention of permanently 
 severing them, and of converting them into movables or 
 commodities, such soil or minerals become personal prop- 
 erty. Where, for instance, dirt, sand and gravel were taken 
 from the plaintiff's land by a trespasser, and used in filling 
 in other land by a contractor who purchased it from the 
 trespasser in good faith, it was held that the contractor was 
 liable for its conversion. The dirt, sand and gravel became 
 personal property as soon as severed from the land by the 
 trespasser, who would be liable either in an action of tres- 
 pass to land, or for conversion of personal property, he 
 having carted away and sold it to the contractor as per- 
 sonalty. The contractor's liability in such case arises from 
 his having converted it to his own use by using it in filling 
 in the other land. It became incorporated with the other 
 land and again became realty, and therefore could not be 
 recovered in specie by the plaintiff, having lost its identity 
 through such incorporation.* So where stone is quarried 
 from land and left thereon ready for shipment, such stone 
 has become personal property and will not pass with the 
 land on a sale thereof.* 
 
 § 11. Growing Trees.— Trees growing in land are as 
 much a part thereof as is the soil from which they spring, 
 and by which they are nourished, and they pass with the 
 land whenever it is transferred, whether by deed or by will 
 or by descent."* When trees are cut down with the intention 
 
 8. Riley v. Boston Water Power Co. v. The Lake Quano, etc. Co., 83 
 
 C!o., 11 Cush. (Mass.) 11; McGonigle N. Y. 476. 
 
 V. Atchison, 33 Kan. 736, and cases 4. Noble v. Sylvester, 43 Vt. 146. 
 
 therein cited. Lacustrine Fertilizina: 5. Green v. Armstrong, 1 Denio 
 
Geowino Teees. 11 
 
 of converting them into fire-wood or lumber, or into a com- 
 modity of any other kind, they become personal property, 
 since they no longer continue identified with the land, but 
 have been changed into an article of commerce, movable in- 
 stead of immovable." If they are blown down by a storm 
 or have fallen through natural causes, they still remain a 
 part of the land on which they restJ They have not been 
 severed by the act of any person with an intention of chang- 
 ing them into commodities or chattels. And even where 
 they have been cut down with the intention of using some 
 part of them for commercial purposes, the parts which 
 remain, abandoned to the land, still continue to be real 
 property. For instance, where trees were cut down for 
 their bark, which was removed, and the trees, except for 
 their bark, were left lying on the ground, the trees remained 
 part of the land and passed therewith under a deed without 
 reservation.* The same principle applies in all cases where 
 the tops of trees are left by men who cut them down for 
 lumber and take away the trunks or logs. 
 
 Trees may become personal property without actual sev- 
 erance. Where A, the owner of a piece of land, sells the 
 trees thereon to B, by instrument which transfers title to 
 the trees to B, who is to enter and remove them either in a 
 reasonable time, or within a stated period, they become 
 B's personal property and may be transferred as such. 
 Though physically attached to the land, they belong to 
 one who has no interest or estate therein other than the 
 right to have the trees supported by the soil until their re- 
 moval. They are therefore severed in their ownership from 
 
 (N. Y.) 550; Slocum v. Seymour, 7. Cockrill v. Downey, 4 Kan?aa 
 
 36 N. J. Law 138; Cockrill v. 366; Brackett v. Goddard, 54 Me. 
 
 Downey, 4 Kansas 366; Byassie r. 309; Macoraber v. Dojtroit, etc. R. 
 
 Reese, 4 Met. (Ky.) 373; Drake v. Co., 108 Mich. 491; Lerdy v. 
 
 Wells, 11 ^Icn (Mass.) 141; and Proctor, 97 Pa. St. 486, at 492. 
 
 eases cited below under this topic. 8. Brackett v. Goddard, 54 Ma 
 
 6. Cook V. Whiting, 16 111. 480, 309. 
 and eases cited in preceding note. 
 
12 
 
 Real and Peesonal Pbopeett. 
 
 tlie ownership of the land, and cannot thereafter be treated 
 as a part of it.* If, however, they are conveyed by deed 
 to B to remain on the property permanently, B acquiring the 
 right to maintain the trees as part of the land indefinitely, 
 they remain real property, B having acquired a real in- 
 terest in the land as such,*" 
 
 § 12. Trees: Sale Under Statute of Frauds.— The fourth 
 section of the statute of frauds, substantially enacted as 
 part of the statutory law of each of the States, provides in 
 effect that contracts for the sale of land, or an interest in 
 
 9. White V. Foster, 102 Mass. 375; 
 Blocum V. Seymour, 36 N. J. Law 
 138; Warren v. Leland, 3 Barb. 
 (N. Y.) 613; Kingsley v. Holbrook, 
 45 N. H. 313; McClintock's Appeal, 
 71 Pa. St. 365. 
 
 They need not be conveyed by 
 deed under seal since they become 
 personal property by virtue of their 
 sale and therefore no freehold estate 
 in land ia created which would re- 
 quire a deed. Any contract of pres- 
 ent sale and transfer sufficient to sat- 
 isfy the statute of frauds will pass 
 title. Warren v. Leland, 2 Barb. (N. 
 Y.) 613. 
 
 Where, however, a freehold in- 
 terest in the trees for life or in fee 
 i& transferred, the conveyance must 
 be by deed. Goodyear v. Vosburgh, 
 39 How. Pr. (N. Y.) 377. 
 
 10. Clapp V. Draper, 4 Mass. 266; 
 Blocum V. Seymour, 35 N. J. Law 
 138; Dunworth v. Sawyer, 94 Me. 
 242. 
 
 It was held in Warren v. Leland 
 (2 Barb. 613) that a sale of trees 
 by which title to them as person- 
 alty was transferred did not come 
 within the Recording Act, and there- 
 frre the written contract of sale was 
 
 valid as against a subsequent pur- 
 chaser of the land. Under the later 
 cases the rule in New York is well 
 settled that a sale of trees or other 
 part of the soil, by written contract 
 without severance, comes within the 
 Recording Act, and such contract must 
 be recorded to be valid as against a 
 subsequent purchaser for value and 
 without notice. Lacustrine Fer. Co. 
 V. L. G. Fer. Co., 82 N. Y. 476; De 
 Camp V. Wallace, 45 Misc. (N. Y.) 
 436; Vorebeck v. Eoe, 50 Barb. (N. 
 Y.) 302. In the first case above cited 
 (82 N. Y. 476), the court held that 
 marl (part of the soil) was con- 
 structively severed and became per- 
 sonalty by reservation in the deed 
 transferring the land, but while re- 
 maining attached to the land a sale 
 of it by parol or by instrument not 
 recorded was void as against a sub- 
 sequent purchaser for value and 
 without notice. The general rule is 
 that transfers of trees, either by 
 deed or contract, come within the Re- 
 cording Acts, and must be recorded 
 to be valid against subsequent 
 purchasers of the land for value and 
 without notice. J. Neils L. Co. v. 
 Hines, 93 Minn. 505. 
 
Teeesj Sale Undee Statute. 13 
 
 land, must be in writing. Therefore in all cases where a 
 contract for the sale of trees is made, which contemplates 
 the immediate transfer of title to the trees as they stand, the 
 contract must be in writing, as a contract for the sale of 
 real property.^ Where the contract does not contemplate 
 the immediate transfer of title to the trees, but where the 
 intention is that such title shall pass to the purchaser only 
 after they have been severed from the land and delivered to 
 or taken away by him as chattels, the contract need not be 
 in writing as it involves only the sale of trees after a sev- 
 erance and conversion into cordwood or logs which makes 
 them personal property.^ The cases are not in substantial 
 conflict on the above proposition, as, obviously, there is no 
 room for disagreement. However, the courts have dis- 
 agreed in special cases as to whether the particular contract 
 involved amounted to a present sale of the trees or was 
 only an executory contract to sell them. Where the con- 
 tract is for the sale of trees to be cut and removed by the 
 vendee, within a fixed time, the courts in most jurisdictions 
 construe it as a present sale, passing title immediately to 
 the vendee, and hold, therefore, that the contract must be 
 in writing.' On the other hand, in some jurisdictions such 
 a contract has been construed as an executory contract to 
 sell, that title was not intended to pass until the trees have 
 been actually severed by the vendee. From this construc- 
 
 1. Green v. Armstrong, 1 Denio vendee was held to be within the 
 
 (N. Y.) 550; Saltonstall v. Little, statute and required a written con- 
 
 90 Pa. St. 433; Howe v. Bachelder, tract, in Thompson v. Poor, 57 Hun 
 
 49 N. H. 304; Cool v. Peters, etc. (N. Y.) 385. 
 
 Co., 87 Ind. 531; Spacy T. Evans, 152 2. Smith v. Surman, 9 Barn. & 
 
 Ind. 431; White v. King, 87 Mich. Ores. 561; Killmore v. Howlett, 4S 
 
 107; Herri ck V. Newell, 49 Minn. 198; N. Y. 669; St. Regis Paper Co. v. 
 
 Bent V. Hoxie, 90 Wis. 625; Whit- Santa Clara Lumber Co., 173 N. Y. 
 
 marsh v. Walker, 43 Mass. 313; 149. 
 
 Brackett v. Goddard, 54 Me. 309; 3. Green v. Armstrong (1 Denio 
 
 Buck V. Pickwell, 27 Vt. 157. N. Y. 550) and cases cited in next 
 
 A. contract for the sale of bark to last preceding note, 
 to be removed from the trees by the 
 
14 Real and Peesonal Pbopeett. 
 
 tion it follows that sucli contract is for the sale and trans- 
 fer of trees after they have been actually severed, and is 
 therefore an executory contract for the sale and transfer 
 of personal property, the vendee having a license to enter 
 and cut down and remove the trees, which may be revoked 
 before the trees are cut, but is irrevocable thereafter since 
 the vendee's license is thereafter coupled with his interest 
 in or ownership of the trees which have been cut.* The 
 argument in favor of this proposition is that it expresses the 
 actual intent of the parties in the great majority of cases, 
 in the absense of special circumstances or terms in the 
 agreement indicating an intention to pass an immediate title 
 to the trees; that where trees are sold for removal as cord- 
 wood or for lumber, the vendee has no idea of acquiring 
 any present right to the use or possession of the trees. 
 What he buys is the cordwood and logs and the privilege 
 of entering and removing them. On the other hand, the 
 vendor in the usual case has no intention of giving to the 
 purchaser any greater interest in the land than this license. 
 Suppose the sale relates to maple trees; do the parties in- 
 tend that the vendee shall acquire the right to tap the trees 
 for maple sugar during the years that may intervene before 
 they are cut down, and that the vendor shall lose that right? 
 So also with trees of any kind bearing fruit each year where 
 the contract provides for the sale and removal of the trees 
 only, it is improbable that the parties intended that the pur- 
 chaser should become owner of the trees and entitled to 
 their fruit before severance. Where the vendor is to cut and 
 remove the trees, all the other circumstances being sub- 
 stantially the same, the courts in all jurisdictions agree 
 that the contract is one involving the sale of personal prop- 
 
 4. Bostwick V. Leach, 3 Day Md. 666 (a very well-considered 
 
 (Conn.) 476; Fletcher v. Livingston, case) ;Erskine v. Plummer, 7 lie. 
 
 153 Mass. 388; Drake v. Wells, 11 447; Cutter v. Pope, 13 Me. 377; 
 
 Allen (Mass.) 141; Purncr v. Piercy, Byassee v. Eepae, 4 Mete. (Ky.) 372; 
 
 40 Md. 212; Leonard v. Medford, 85 Fish v. Capwell, 18 R. I. 667. 
 
Teees ; Sale Undbe Statute. 15 
 
 erty, and need not be in writing. It is submitted tbat there 
 is nothing in severance and delivery by the vendor which 
 should make this difference. In either case the transaction 
 is of the same nature, the purpose being to sell and buy 
 cordwood or logs, whichever party cuts the trees. On the 
 whole, this construction seems the better one, though the 
 view that such contracts contemplate an immediate trans- 
 fer, and therefore must be in writing, generally prevails. 
 These cases seem to be based in some instances on the idea 
 that because the trees are realty at the time the contract 
 is made the Statute of Frauds applies since the contract is 
 for the sale of that which is at the time part of the land. But 
 this would be true also in those cases where the vendor is 
 to cut and deliver the trees in the form of cordwood or logs, 
 in which cases it is generally agreed the statute has no 
 application. 
 
 In any case of the sale of trees to be cut by the vendee, 
 where the contract is held void because not in writing, the 
 courts agree in holding that the parol contract gives the 
 vendee a license to enter and cut the trees, and if he enters 
 pursuant thereto he is not liable as trespasser, and title to 
 the wood or timber cut by him before his license is revoked 
 passes to him; therefore he may enter within a reasonable 
 time to remove the wood or timber so cut; his license being 
 lioupled with an interest therein cannot be revoked.^ Of 
 course, the license to enter and cut timber may be revoked 
 at any time by the vendor. 
 
 5. Yale v. Seely, 15 Vt. 221; Buck need not be in writing, that the ven- 
 
 V. Piekwell, 27 Vt. 157; Bennett v. dee gets a license to enter and cut 
 
 Scutt, 18 Barb, 347; Owens v. Lewis, trees which may be revoked before the 
 
 46 Ind. 488; Spacy v. Evans, 152 trees are cut, not afterwards, as to 
 
 Ind. 431; White v. King, 87 Midi, the trees actually cut; the chief dif- 
 
 107; Oconto V. Lundquist, 119 M'ich. ference in result from that reached 
 
 264; Herrick v. Newell, 49 Minn. 198. in the cases above cited being that in 
 
 See, also, cases cited in preceding case of revocation of the license be- 
 
 note; it being uniformly held in those fore the trees are cut the vendee may 
 
 jurisdictions taking the view that the maintain an action for breach of con- 
 
 «ontrict is executory and therefore tract. 
 
16 Eeal and Peesonal Peopeett. 
 
 § 13. Effect of Failure to Remove Trees in Time Speci- 
 fied. — Where a valid sale of trees or timber is made, to be 
 removed within a stated time, the contract is construed 
 as a sale of such trees as may be cut and removed within 
 the time specified; the trees not removed remain a part of 
 the land thereafter and revert to the vendor, the vendee los- 
 ing his title by failing to remove them in accordance with 
 the terms of the contract.^ Some cases hold that he cannot 
 thereafter remove the cordwood and logs left on the land 
 which he cut from the trees before the time agreed upon 
 had expired.' The prevailing view, however, is that the 
 trees actually severed remain his personal property though 
 not removed in time, but the vendee is liable in damages 
 for breach of contract in leaving them on the land after the 
 date fLsed for their removal.^ 
 
 § 14. Perennial Crops. — Crops of all kinds which grow 
 each season without replanting or re-sowing, are termed 
 perennial, as distinguished from annual crops which must 
 be planted or sowed each year the crop is to be produced.* 
 Perennial crops are frequently called frutus naturales as 
 distinguished from fructus indiistrialcs, which is the term 
 applied to annual crops. Neither expression is entirely ac- 
 curate. It has been the law from an early date that the crop 
 of hops is not to be classed with other perennials, as the 
 
 6. Saltonstall v. Little, 90 Pa. St. Fletcher v. Livington, 153 Mass. 
 
 422; Utley V. Wilcox L. Co., 59 Mich. 388. 
 
 863; French v. Sparrow, etc. L. Co., 7. Strong v. Eddy, 40 Vt. 547. 
 
 135 Mich. 434; Kellam v. MeKinstry, 8. Hoit v. Stratton, 54 N. H. 109; 
 
 69 N. y. 264; McNiel V. Hall, 107 Bennett v. Scutt, 18 Barb. (N. Y.) 
 
 App. DiT. (N. Y.) 36, aff. 187 N. Y. 347; Hicks v. Smith, 77 Wis. 146; 
 
 649; Clark v. Guest, 54 Ohio St. 298; Irons v. Webb, 41 N. J. L. 203. 
 
 Alexander v. Bauer, 94 Minn. 174; 9. Smith v. Jenka, 1 Denio (N. Y.) 
 
 King v.Merriam, 38 Minn. 47; Larson 580; Matttr of Chamberlain, 140 N. 
 
 V. Cook, 85 Wis. 564; Hicks v. Smith, Y. 390; Sparrow v. Pond, 49 Minn. 
 
 77 Wis. 146; Strong v. Eddy, 40 Vt. 412; Purner v. Piercy, 40 Md. 212; 
 
 «47; Saunders T. Clark, 22 Iowa 275; Rodwell v. Phillips, 6 M. & W. 501, 
 
 and cases cited In notes which follow. 
 
Perennial Ckops. 17 
 
 crop depends so entirely upon cultivation, though, the roots 
 from which the crop grows are perennial." This is an ex- 
 ception to the general rule. In a few other cases it has 
 been held that the particular crops in question, though 
 growing from perennial plants, should be classed with an- 
 nual crops, because they depend almost exclusively upon 
 care and cultivation for their production; ^ but aside from 
 these scattered adjudications, the law remains as above 
 stated. 
 
 Perennial crops, including grass and fruits of all kinds, 
 as apples, peaches, oranges, grapes and berries, are sub- 
 ject to the same rules that govern trees. A sale of the crop 
 purporting to transfer title immediately must be in writing, 
 while an executory contract to sell the crop after it has been 
 gathered or severed is a contract to sell personal property, 
 and may be made by parol.^ Such crops are part of the 
 land under all conditions except where title thereto has 
 actually been transferred to one who is not owner of the 
 land by a writing sufficient under the Statute of Frauds. 
 
 Such crops, like the trees, bushes or roots from which 
 they grow, pass with the land under a deed or mortgage 
 without reservation,' and a parol reservation by the vendor 
 or mortgagor is void not only because it violates the Statute 
 of Frauds, being a parol reservation of an interest in land, 
 but also because parol evidence thereof is not admissible, 
 iSince to admit it would be to violate the parol evidence rule, 
 that the terms of a written instrument, as a deed or con- 
 tract, shall not be changed or modified by parol testimony 
 as between the parties to the instrument. To admit such 
 
 10. Latham V. Atwood, Croke, Chas. T. Rose, 53 Fla., 173; Lewis v. Mc- 
 
 615; Frank v. Harrington, 36 Barb. Natt, 65 N. C, 63. 
 
 (N. Y.) 415. 2. Purner v. Piercy, 40 Md. 212; 
 
 1. Crop of Peaches. — Purner v. see, also, §§ 12 and 13, re sale of trees 
 
 Piercy, 40 Md. 212; State v. Fowler, under Statute of Frauds. 
 
 88 Md. 601; Vulicevick v. Skinner, 3. See oases cited in four preced-- 
 
 T7 Cal. 239; Turpentine — Kichbourg ing notes and cases cited ia notei 
 
 nnder §15 herein. 
 
18 Real and Peesonal Pbopeett. 
 
 evidence and give effect to such reservation would clearly 
 modify the terms of the deed or mortgage involved, since 
 perennial crops generally would be included with the land 
 and would pass therewith in the absence of such reserva- 
 tion.* It follows from what has been stated that such trees 
 or perennial crops cannot be levied upon as personal prop- 
 erty since they are real property for all purposes, unless sev- 
 ered either actually or by written transfer.' 
 
 § 15. Annual Crops. — Those crops which require sowing 
 or planting every year the crop is to be produced are called 
 annual crops, fructus mdustriales. It is not sufficient that 
 the crop requires annual care and cultivation in order to 
 produce a superior crop. "With the exception of hops, and 
 the few exceptional cases referred to in the preceding sec- 
 tion, crops coming within this classification never grow 
 from perennial roots, bushes or trees, but must be planted or 
 sowed each year in soil prepared for them. Where fruit 
 trees, berry bushes and other perennials are set out or 
 planted, they constitute an improvement of the land of a 
 permanent nature, and the crops which may mature there- 
 from each year cannot be regarded as owing their existence 
 essentially to the labor expended upon them during the year. 
 In the case of a crop planted each year and yielding only 
 one crop, there is no enhancement in the value of the land, 
 and the crop is the sole return for the labor expended.' 
 Nursery stock presents an apparent, but not a real excep- 
 
 4. Sparrow v. Pond, 49 Minn. 412, G. Sparrow v. Pond, 49 Minn. 412; 
 and cases cited in notes under § 15, Sexton v. Breese, 135 N. Y. 387; 
 post. Powell V. Rich, 41 111. 466; McGuiness 
 
 5. Adams v. Smith, 1 Breese (111.) v. Fernandes, 135 111. 69; Tripp v. 
 221; but in those cases and those Hasoeig, 20 Mich. 254; Coman v. 
 States where crops perennial in their Thompson, 47 Mich. 22; Terhune v. 
 nature have been classified as fructus Elberson, 7 N. J. L. 297 ; and cases 
 industriales, they may, of course, be cited in notes immediately following 
 lened upon like annual erops. State under this and following section. 
 
 ▼. Powler, 88 Md. 601. 
 
AissvM. Cbops. 19 
 
 tion. Nursery stock is a crop in itself; the young trees, or 
 bushes or vines are grown from seeds or shoots, not with 
 the intention of making them part of the land permanently, 
 hut in order that when they are sufficiently developed for 
 transplanting, they may he taken up and sold for permanent 
 transplanting in other land. It is a crop requiring several 
 years to mature, the result entirely of planting and culti- 
 vation, and in no way the product of perennial plants. It 
 is therefore treated as fructus industriales, and comes with- 
 in this classification as an annual crop.'' 
 
 These crops which include crops of grain and vegetables 
 of every description, are part of the land as a matter of 
 fact while growing and attached to the land. As far as 
 physical union is concerned, they are identified with the 
 land as entirely as perennials, and except for certain well 
 defined cases, they are always treated as part of the land. 
 Thus, as between vendor and vendee, annual crops pass 
 with the land under the deed without reservation.^ They 
 -cannot be reserved by parol, since the introduction of parol 
 evidence of such reservation would tend to vary the terms 
 of the deed, which, without such evidence, would be con- 
 strued as transferring the crop with the land.' Some cases 
 lay down the contrary rule, but these cases cannot be sup- 
 
 7. Batterman v. Albriglit, 123 N Y. vest are treated generally like other 
 484; Smith v. Price, 39 111. 28; annual crops. Tripp v. Hasceig, 20 
 Maples V. Milton, 31 Conn. 598. Mich. 254; though in some cases they 
 
 8. See cases cited in last two pre- have been held to be personalty, and 
 ceding notes; also Peniyn F. Co. v. therefore did not pass with the land. 
 Sherman- Worrell F. Co., 143 Cal. 643; Hecht v. Detman, 56 Iowa 679. 
 JfcCaslin v. State, 99 Ind. 438; 9. Auatin v. Sawyer, 9 Cowen (N. 
 Schmidt v. Williams, 72 Iowa 317; Y.) 39; Smith v. Price, 39 III. 28 
 Erielcson v. Paterson, 47 Minn. 535; Firebaugh v. Divan, 307 HI. 287 
 Hersley v. Metzgar, 90 Pa. St. 217; Garamplo v. Cooley, 33 Kan. 137 
 Simanck v. Nemetz, 120 Wis. 42; Kammrath v. Kidd, 89 Minn. 380 
 Dayton v. Dakin, 103 Mich. 65. See Bloom v. Welsh, 27 N. J. L. 177 
 
 -eases cited in notes immediately fol- Fiske v. Soule, 87 Cal. 313; Brown ▼, 
 
 (lowing, also cases cited under section Thurston, 56 Me. 126; McLain v. Har 
 
 18, post. ris, 20 Mo. 457. 
 Crops matured and ready for har- 
 
20 Keal and Personal Peopeett. 
 
 ported on principle." In case of a devise of the land, an- 
 nual crops thereon pass as part of it to the devisee.^ In 
 New York, under a statute which provides that such crops 
 shall be treated as assets in the hands of the personal rep- 
 resentative of a deceased owner, the courts are, of course, 
 forced to hold that they are personalty, in such case, but 
 they hold that such crops pass with the land to the devisee, 
 not as part of the land, but as chattels specifically be- 
 queathed, finding from the circumstances, in the absence of 
 express disposition of the crop, an intent on the part of the 
 devisor that the devisee of the land shall also have the 
 crop.* 
 
 § 16, Growing Crops — When Treated as Personalty. — 
 Annual growing crops are treated as personal property in 
 two classes of cases: (a) for purposes of sale by the owner; 
 (b) for purposes of distribution on the death of the owner 
 intestate. In each of these cases the crop is regarded as 
 assets in the hands of the owner who has produced it, or 
 in the hands of his administrator in case of his dying in- 
 testate. Since the crop is produced by his labor and indus- 
 try, and is the result of the business of farming in which 
 he is engaged, it is reasonable and in accord with sound 
 policy to permit him to treat the crop as part of his assets, 
 subject to disposition as personalty at his election. There- 
 fore, a contract for the sale of such crop need not be in 
 
 10. Heavilon t. Heavilon, 29 Ind. of cour e. no inconsistency here with 
 
 509; Benner v. Bragg, 68 Ind. 338; the case of Bloom v. Welsh, cited in 
 
 Baker v. Jordan, 3 Ohio St. 438; preceding notr, which holds that a 
 
 Backenstoss v. Stahlen, 33 Pa. St. parol reservat'on is invalid. 
 
 851; Kerr v. Hill, 27 W. Va. 577, at 1. Cooper v. Wolfit, 2 Hurl. & N. 
 
 614. 122; West v. Moore, 8 East 339; 
 
 In Hendrickson v. Ivins, 1 N. J. Eq. Bradner v. Faulkner. 34 N. Y. 347; 
 662, the court held that where by Stall v. Wilbur, 77 N. Y. 158; Kins- 
 mutual mistake the reservation of the man v. Kinsman, 1 Root (Conn.) 
 crop was omitted from the deed, 180; Smith v. Barbara, 17 N. C. 420. 
 equity would reform the deed to con- 2. Stall v. Wilbur, 77 N. Y. 168. 
 form with their intention. There i<. 
 
Levy of Execution on Crops. 21 
 
 writing, and title to it will pass by parol sale.* In case of 
 Ms death, without having disposed of the land either by- 
 deed or will, it is only reasonable that the crop should be 
 treated as it was during his life, as part of his assets, going 
 to his administrator as personalty for distribution among 
 his next of kin.* 
 
 § 17. Levy of Execution on Crops. — Since annual corps 
 may be sold by the owner as chattels, it follows that they 
 may be levied upon as such under an execution on a judg- 
 ment against the owner. A sale under such execution 
 amounts to a transfer of the owner's title under compulsion 
 of law, and therefore the sheriff can sell it as personalty 
 just as the judgment debtor could have done." The sheriff, 
 upon a levy under an execution, may wait until the crop 
 
 3. Sexton v. Ereese, 135 N. Y. 387 j cultivated them. They are his ex- 
 Batterman v. Allbright, 123 N. Y. ^. elusive property, apart from the land, 
 484; Kelley v. Goodwin, 95 Me. 538; the result of his labor and industry. 
 Davis V. McFarlane, 37 Oal. 634; They may, therefore, be taken to pay 
 Oraff V. Fitcli, 58 111. 373; Sherry v. his debts under execution; they may 
 Picken, 10 Ind. 375; Westbrook v. be sold by him as exclusively his awn, 
 Eager, 16 N. J. L. 81; Bloom v. apart from the land, and on his death 
 Welsh, 37 N. J. L. 177. See, also, intestate, they go to his next of kin as 
 cases cited in notes under § 15. part of his personal estate. These 
 
 4. Sherman v. Willett, 43 N. Y. are exceptional cases with exceptional 
 146; Bradner v. Faulkner; 34 N. Y, reasons supporting them, which take 
 347; Penhallow v. Dwight, 7 Mass, them out of the general rule that 
 34; McGee v. Walker, 106 M'ich. 521; growing crops of any kind are real 
 Noble V. Tyler, 61 Ohio St. 433. property. 
 
 In Bjgley v. Columbus Southern R. 5. Batterman v. Allbright, 122 N. 
 
 Co., 98 Ga. 626, Simmons, Oh. J., in Y. 484; Hartwell v. Bissell, 17 Johns, 
 
 an able opinion, reviews the law on (N. Y.) 128; Westbrook v. Eager, 16 
 
 the subject of growing crops. He N. J. L. 81; Patterson's Appeal, 61 
 
 makes it clear that such crops are in Pa. St. 294; Eaventas v. Green, 57 
 
 their nature part of the land, and Cal. 254; Lindley v. Keeley, 43 Ind. 
 
 that under the common law they have 294; Throop v. Maiden, 52 Kan. 258; 
 
 always been treated as such; that the Preston v. Ryan, 4S Mich. 174; 
 
 only cases where such crops have Erickson v. Patterson, 47 Minn. 525; 
 
 been "treated" as personalty are Arnold v. Fowler, 94 Md. 497; Sima 
 
 cases involving their separate dispo- v. Jones, 54 Neb. 769, aad cases cited 
 
 aition by the owner who planted and in next two notes. 
 
22 Real and Peesoitai. Peopeett. 
 
 matures before selling it, or he may sell it at once though 
 it still be immature, since the owner may sell it before its 
 maturity.' The purchaser acquires the right to enter and 
 take care of and cultivate the crop and harvest it when it 
 matures; he acquires a license to enter for these purposes,. 
 but the license is limited to entry and acts on the premises 
 strictly necessary or proper in the care or harvesting of the- 
 crop.'' 
 
 As we have seen, trees and perennial crops, being realty 
 for all purposes, cannot be levied upon as personal property. 
 They cannot be levied upon and sold apart from the land 
 as realty. The land as such can be levied upon and sold 
 under execution only in its entirety by metes and bounds, 
 everything attached to the land as part thereof passing on 
 such sale.^ 
 
 § 18. Effect on Crops of Sale Under Foreclosure. — In the 
 
 case of trees and perennial crops on land sold under fore- 
 closure of a mortgage thereon, no question can arise. Such 
 trees and crops pass as part of the land to the purchaser 
 at such sale. But in the case of sale under foreclosure of 
 lands on which are growing annual crops, some conflict of 
 authority has arisen. The prevailing view is that they pass 
 with the land to the purchaser at such sale. The lien of the 
 mortgage extends to everything which, as between vendor 
 and vendee, would be a part of the land. Therefore, the lien 
 attaches to annual crops on the land as long as they remain 
 unsevered. Of course, the mortgagor in possession is the 
 owner of these crops; he may remove them from the land, 
 
 6. Craddock v. Eiddlesbarger, 2 time of levy. Penhallow v. Dwight, 
 
 Dana (Ky.) 205; Parham v. Thomp- 7 Mass. 34; Ellithorpe v. Reidesil, 71 
 
 son, 2 J. J. Marshall (Ky.) 159, and Iowa 315. 
 
 cases cited in preceding note. 7. See eases cited in last two notes. 
 
 It has been held in two states that 8. Adams v. Smith, 1 Breese (111.) 
 
 the crop must be mature so that it 221; and cases cited in three preced- 
 
 may be immediately severed at the ing notes. 
 
Watbb and Ice. 23 
 
 or sell them by parol and pass title to them to another as 
 personal property, but this ownership of his is always sub- 
 ject to the lien of the mortgage. Therefore if the crop is 
 still attached to the land on the foreclosure sale, it passes 
 therewith to the purchaser, whose title to the land has been 
 secured by foreclosing — that is, extinguishing — every in- 
 terest in the land subsequent and inferior to the lien of the 
 mortgage. Therefore, the enforcement of this paramount 
 title of the mortgagee forecloses or extinguishes the inter- 
 est of the mortgagor in the crop as well as in every other 
 part of the land. A purchaser of the crop from the mort- 
 gagor may remove it before the foreclosure sale, but if the 
 crop is left on the land at the time of the sale, it passes 
 with the land to the purchaser at the sale, since the pur- 
 chaser of the crop can have no greater right therein than the 
 mortgagor had, who sells it to him.* 
 
 The opposing view is based on the argument that a mort- 
 gage is a mere lien; that the crop may be sold as personalty, 
 and if so sold is severed from the land and therefore can- 
 not pass with the land on foreclosure. It seems clear that 
 these cases beg the entire question. If the lien of the mort- 
 gage extends to annual crops, then a sale of the crop cannot 
 affect the right of the mortgagee while the crop remains a 
 part of the land by physical attachment. The purchaser of 
 the crop must necessarily take it subject to the same rights 
 and limitations which bound the mortgagor.^" 
 
 § 19. Water and Ice. — Water in a spring, lake or stream, 
 or percolating through the soil, is not part of the land on 
 
 9. Battennftn t. Allbriglit, 133 N. 10. Willis v. Moore, 59 Tex. 638; 
 
 Y. 484; Sherman v. Willei;t, 43 N. Y. Hecht v. Detman, 56 Iowa 679. In 
 
 146; Penryn P. Co. v. Sherraan-Wor- the latter case the decision was based 
 
 rell F. Co., 143 Cal. 643; Missouri U. on the fact that the grains were ma- 
 
 L. Co. V. Barwick, 50 Kan. 57; ture, and therefore it was personal 
 
 Wooton V. White, 90 Md. 64; Dayton property, and did not pass with the 
 
 T. Dakin, 103 Mich. 65. land, according to the Iowa rule. 
 
24 
 
 E.EAL AND Personal Peopeety. 
 
 which it rests or flows, nor has the owner of the land any 
 absolute ownership of the water. He has, generally speak- 
 ing, the exclusive right to its use while on his land, sub- 
 ject to restrictions which will be considered in a later chaj)- 
 ter; but when the water flows from his land, he loses all 
 right to it, and the owner of the adjoining land which has 
 received the water will have the same right of user.* 
 
 Ice formed on water situated on private land is the abso- 
 lute property of the owner thereof and passes with the land 
 as part of it. The owner has the exclusive right to take 
 and dispose of the ice, without restriction.* Though water 
 is not part of the land, ice formed therefrom must be re- 
 garded as a product of the land on which it rests, and a 
 
 1. 3 BI. Comm. 14, 18. A detailed 
 consideration of water rights will be 
 found in Chapter XVII herein. 
 
 8. Washington Ice Co. v. Shortall, 
 101 ni. 46; The Brookville, etc., Co. 
 V. Butler, 91 Ind. 134; Richards T. 
 Gauffret, 145 Mass. 486; Bigelow v. 
 Shaw, 65 Mich. 341. 
 
 In Huntington v. Asher, 96 N. Y. 
 604; Mitchell v. D'Olier, 68 N. J. L. 
 375, and Walker Ice Co. v. Am. Steel, 
 etc., Co., 185 Mass. 463; the courts 
 not only recognized that ice passes 
 with the land as part thereof, but also 
 held that where the owner of the land 
 grants by proper instrument the right 
 to enter and cut ice from water 
 thereon, the right created is a profit 
 a prendre, viz. : a corporeal interest in 
 the land itself involving the right to 
 take a part of it, as distinguished 
 from an easement, which is a mere 
 right of user. If ice may be a profit, 
 it seems to follow that it must be 
 part of the land. 
 
 As between a mill owner with a 
 right or easement of flowage, and the 
 
 owner of the land flowed, the owner 
 of the land is alone entitled to the 
 ice. Brookville, etc., Co. v. Butler, 91 
 Ind. 134; Stevens v. Kelley, 78 Me. 
 445; Hazelton v. Webster, 20 App. 
 Div. (N. Y.) 177; EidemuUer Ice Co. 
 V. Guthrie, 43 Neb. 338; Abbott T. 
 Cremer, 118 Wis. 377. 
 
 In Swan v. Goff, 39 App. Div. (N. 
 Y.) 95, where plaintiff reserved not 
 only a right of flowage, but also the 
 right to the use of the land while 
 flowed, the court held that he ac- 
 quired the right to the ice by the 
 terms of the deed. 
 
 The owner of the easement of flow- 
 age has a right to have the ice re- 
 main and melt where it is if taking it 
 would so diminish the flow of water 
 as to interfere materially with hia 
 water power. Howe v. Andrews, 62 
 Conn. 398; Geer v. Rockwell, 65 Conn. 
 316, 323; Eidemuller Ice Co. v. 
 Guthrie, 42 Neb. 238. In moat states 
 it is held that taking of ice cannot so 
 interfere with water power. Set 
 cases supra. 
 
Wateu ANT) Ice. 25 
 
 part of it. It is not a movable, wandering thing, like the 
 water beneath, but has become fixed as an accretion to, or 
 product of, the land. On the other hand, its only value is 
 for removal and sale as a chattel. If not removed, it will 
 soon melt and disappear. It is in no permanent way identi- 
 fied with the land, but is a mere temporary incidental pro- 
 duct, belonging absolutely as such to the owner of the land, 
 who has the sole right to dispose of it. It is in his possession 
 and control, and therefore cannot be classed with fish and 
 game at large. It has been held that unsevered ice may be 
 sold by the owner as personalty, in spite of the fact that it 
 passes with the land as part of it in case of conveyance, 
 devise or descent, and this decision is based on sound rea- 
 son. Ice is thus treated in much the same way as annual 
 crops. It is part of the land generally, because attached to 
 it and identified with it for the time being, but treated by 
 itself it is of value only as an article of commerce, to be dealt 
 with by the owner as part of his assets or profits resulting 
 periodically from his ownership of the land and which he 
 may therefore treat and dispose of separately as personal 
 property.* Of course, where ice has been actually severed, 
 it is personal property.* 
 
 Ice formed on public waters — viz. : navigable streams and 
 lakes — belongs to the people as a class, or the state as their 
 representative, and may be cut and removed by the first 
 person who takes possession of it. The riparian owner has 
 no right in such ice superior to that of any other member of 
 the public." 
 
 3. Higgins v. Kusterer, 41 Mich. Co.. leg N. Y. 60 at 72; Gage v. 
 318. Pteiiikrauss, 131 Mass. 233; Wood- 
 
 4. Ward v. People, 6 Hill (N. Y.) man v. Pitman, 79 Me. 456; Eoss- 
 144; Gregory v. Eosenkranz, 72 Wis. muller v. State, 114 Wis. 169. 
 
 220, and cases cited in preceding In People's Ice Co. v. Davenport, 
 
 note. 149 Mass. 322, the court held that 
 
 6. Wood V. Fowler, 36 Kan. 682; scraping off the snow from the ice 
 
 Slingerman v International Cont. of a great pond, held to be public 
 
26 Real and Personal Peopeett. 
 
 § 20. Manure. — When in tlie regular and usual course of 
 farming, manure made by live stock is accumulated on a 
 farm, it is regarded as a part of the farm. In such case, if 
 the farm be sold, mortgaged, devised or inherited, the ma- 
 nure in each case goes with the farm as appurtenant to it, 
 and as between landlord and tenant, manure made on the 
 land must be left there by the tenant at the end of his term.' 
 The reason for this rule is that good husbandry — viz. : good 
 farming — requires that the manure resulting from the feed- 
 ing of any hay or grain to live stock on the farm be re- 
 turned to the soil in order that its fertility may be main- 
 tained. The use of the manure made on the farm for the 
 purpose of maintaining the fertility of the soil, and for use 
 each succeeding year in the growing of crops is so in ac- 
 cordance with custom and is so essential to good farming 
 that it is treated as part of the farm. It is manifest that in 
 all other cases, where the manure is not made in the regular 
 course of farming, this rule has no application. In such 
 case it is personal property, unless incorporated with the 
 soil, since it is personal in its nature, not being a part of the 
 soil nor identified with the land in any way.^ Where it is 
 made from feed brought on to the farm, and not produced 
 in the regular farming operations, it is held to be personal 
 
 %vater, and staking off the ice, was (Mass.) 53; Kittredge v. Woods, 3 
 
 not such taking of possession as N. H. 505; Witherell v. Ellison, 19 
 
 would give ownership in the ice as Vt. 339; Chase y. Wingate, 68 Me. 
 
 against a,ny one else who might 204. 
 
 thereafter cut it. In New Jersey it is held that man- 
 As to rights of riparian owners ure is personal property in all cases 
 along navigable streams in New unless actually mingUd with the soil, 
 York, see Slingerland v. International or appropriated thereto by being 
 Cent. Co., 43 App. Div. (N. Y.) 215; thrown on the land. Ruckman ▼. Out- 
 affirmed in 169 N. Y. 60; and Stat- water, 28 N. J. L. 521. 
 ute, Laws 1895, ch. 853; Laws of 7. Fletcher ▼. Herring, 112 Mass. 
 1879, oh. 388. 382; Fay v. MHzzey, 13 Gray (Mass.) 
 6. Goodrich V. Jones, 2 Hill (NY.) 53; Needham ▼. Allison. 84 N. H. 
 143 ; Middlebrook v. Corwin, 15 Wend. 355 ; Haslem v. Loekwood, 37 Conn. 
 (N. Y.) 169; Fay v. Muzzey, 13 Gray 500. 
 
Stock in Land Cokx^oeations. 27 
 
 property.* So, also, it is personalty wlien produced in a 
 livery stable, or on land not used regularly for agricultural 
 purposes.* 
 
 Even in the case of manure on farms, the owner may sell 
 it as personal property and a contract for its sale need not 
 be in writing." Like annual crops and ice, when dealt with 
 separately, apart from the land, it is treated as personalty 
 for the purposes of sale, though in case of the death of the 
 owner, it passes with the land to the heir." Unless incor- 
 porated with the soil it is never real property as a matter 
 of fact; it is merely treated as though it were realty when 
 accumulated in connection with farming because of the nec- 
 essity for its use in maintaining the fertility of the soil. 
 
 § 21. Stock in Land Corporations. — Before the nature 
 of business corporations had come to be fully understood, 
 some cases were decided to the effect that stock in corpora- 
 tions, the sole or chief asset of which consisted of land, par- 
 took of the nature of the land which the stock was supposed 
 to represent, and was therefore realty.* It is now well 
 settled everywhere that such stock is personal property. 
 The stockholder has no interest in or title to the property 
 of the corporation, and the stock gives him no title to such 
 property. As stockholder he is entitled to his share of the 
 dividends that may be declared out of surplus profits by 
 the directors of the corporation, and to his share of any 
 surplus that may remain when the corporation is wound up. 
 He is also entitled to vote at stockholders' meetings. His 
 stock is therefore a mere right of action, unconnected with 
 any interest in any tangible thing belonging to the corpora- 
 
 8. Gallaglier v. Shipley, 24 Md. 418. 11. Fay v. Muzzey, 13 Gray 
 
 9. Fay v. Muzzey, 13 Gray (Mass.) (Mass.) 53. 
 
 53. 1. Buckeridge v. Ingram, 2 Ves. jr. 
 
 10. Strong V. Doyle, 110 Mass. 93; 651; Welles v. Cowles, 2 Conn. 567; 
 French i. Freeman, 43 Vt. 93. Price v. Price's Heirs, 6 Dana (Ky.) 
 
 107. 
 
28 Keal and Peesonal Pbopeett. 
 
 tion, whether real or personal. All such rights of actioit 
 are necessarily personal property.* 
 
 § 22. Chattel Interests in Land. — As we have seen, the 
 interest of a tenant for years is as truly an interest in land^ 
 involving present ownership of it, and the absolute right to 
 its possession and control during the term as is the interest 
 of a tenant for life. In fact the interest of such a tenant for 
 a long term, as for 999 years, is practically equivalent to a 
 fee in so far as the value of the interest is concerned. The 
 explanation for the rule that such terms are not real prop- 
 erty, but only chattel interests therein, lies in the historical 
 development of the law on this subject. Terms for year* 
 were not recognized as feudal holdings under the feudal 
 system. Before the reign of Henry III, lessees had no in- 
 terest in the land which was recognized by the law, and if" 
 the tenant should be wrongfully ousted by a stranger, he 
 had no remedy. In ease of his eviction by his landlord, he 
 could maintain an action of covenant in case he held the 
 land by covenant under seal, but in any other case he had 
 no remedy, even against his landlord. His possession was^ 
 treated as the possession of the landlord, and in no way in- 
 volved tenure. The landlord, not the tenant, was seized of 
 the land, and livery of sezin was not used in the creatiig 
 of terms for years.^ 
 
 In the regin of Henry IV a statute was enacted giving to 
 lessees the right to recover possession of the land either 
 from the landlord or from strangers in case of wrongful 
 
 2. Johns V. Johns, 1 Ohio St. 350; in action, like stock in an incorpor- 
 
 Russell v. Temple, 3 Dana's Abr. ated company. Matter of Jones, 172 
 
 (Mass.) 108; Bradley v. Holdpworth, N. Y. 575. 
 
 3 M. & W. 422; Matter of Jones, 172 3. Eracton, Bk. 11. ch. 9, fol. 27, 
 
 N. Y. 575; Lockwood v. Town of and Bk. IV, ch. 36, fol. 220; Digby, 
 
 Weston, 61 Conn. 211; Cleveland Hist. L. E. P. 176, 177; Goodwin v. 
 
 Trust Co. V. Lander, 184 U. S. 111. Goodwin, 33 Conn. 314; Brewster v. 
 
 Shares in a joint stock company are Hill, 1 N. H. 350. 
 treated as personal property, chosea 
 
Chattel Interests in Land. 29 
 
 •ejection. Thereafter a lessee had an interest in the land 
 enforceable against all the world, as he has at the present 
 time. Since his interest before this statute was merely a 
 right of action in covenant, which would pass to his ex- 
 ecutor or administrator, and not to his heirs as realty, his 
 interest in the land arising by virtue of the statute was 
 treated as of the same nature, and was called a chattel in- 
 terest in land, or a chattel real.* 
 
 Terms for years are, therefore, personal property, and no 
 matter what the duration of the term may be, whether for a 
 month or a thousand years, it will be subject to the rules of 
 law applying to personalty." 
 
 4. Ckses in preceding note. 8. See { 140, 
 
30 ITatueb and Incidents of Owneeship of Land. 
 
 CHAPTER n. 
 Nature and Incidents of Owneeship of Land. 
 
 A. — Mines. 
 
 § 23. Nature of Ownership in Mines. — Minerals of every 
 description while in place are, of course, part of the land, 
 and therefore, in the usual case, the owner of land is owner 
 also of mines or minerals which it may contain, and they 
 pass therewith in case the land is transferred by deed or 
 will without express reservation, or by descent.^ But the 
 mines or minerals in land may be owned by one person, and 
 the surface of the land, and every part of it except such 
 mines or minerals, may be owned by another. The owner of 
 the land may, therefore, divide it horizontally as well as 
 vertically, granting to another the substratum, containing 
 mineral deposits, and retaining the surface in himself. In 
 such case the grantee of the substratum or mine is as much 
 the owner of so much of the land as is included in the grant 
 as is the grantor the owner of the surface retained by him.* 
 
 The granting of the right to enter and take minerals from 
 land, there being no intent to pass title to the minerals until 
 severed, creates a profit a prendre, as the right to enter and 
 take away some part of the land itself or of its produce is 
 called, and title to the minerals remains in the grantor until 
 sev^erance. These interests and also the rights which the 
 owner of the substratum, or mines, has in the surface, as 
 against the owner of the surface, will be found discussed in 
 Chapter XVII under " Easements and Profits." 
 
 1. 8 Bl. Comm. 18; Oaldwell v. Ea^cliife, 10 Wend. (N. Y.) 639; 
 
 Fulton, 31 Pa. St. 475; Clement v. Stinehfield v. Gillis, 96 Cal. 33. 
 
 Youngman, 40 Pa. St. 341; Ohartiers 2. Adams v. Briggs Iron Co., 7 
 
 Block C. Co. T. Mellon, 152 Pa. St. Cush. (Mass.) 361: Plummer v. Coal 
 
 286 ; East Jersey Iron Co. v. Wright, Co.. 160 Pa. St. 483, and cases in pre- 
 
 32 N. J. Eq. 348 ; Van Rensselaer v. ceding note. 
 
Gold and Sii/Veb Mine* 31 
 
 § 24, Gold and Silver Mines. — Under the common law of 
 
 England, all mines of gold and silver belonged to the King, 
 not as an incident of sovereignty, but by virtue of the royal 
 prerogative. The right to these mines was part of the 
 crown's "regalian rights" and was based upon the sup- 
 posed necessity of owniag and controlling them in order to 
 provide and issue currency for purposes of trade, and to 
 supply means for the defense of the kingdom. The crown 
 could grant the mines with the land, in which case the gran- 
 tee became sole owner of the mines with the land, exactly 
 as in the case of mines of any other kind.' As a matter of 
 fact, the crown did grant "all mines" and therefore mines 
 of gold and silver in the lands included in the charters un- 
 der which the American colonies were settled.* It follows, 
 therefore, that where such mines are now the property of 
 any state, or of the United States, they are held by the state 
 or nation as proprietary owner, exactly as where they are 
 the property of a private individual. Therefore, where title 
 to property has been acquired by private individuals 
 through grant or patent from the state or nation under laws 
 regulating the settling of land or otherwise, if the grant or 
 patent be without reservation, they take mines of gold or 
 silver with the land as part of it; and it may be taken as 
 generally true that in the different states as well as under 
 
 8. Case of Mines, Plowd. 310. In crown and be granted to another, for 
 
 this case the English rule was estab- it is not an incident inseparable to 
 
 lished as follows: "By the law all the crown, but may be severed from 
 
 mines of gold and silver within the it by apt and precise words." 
 
 realm, whether they be in lands of See, also, Moore v. Smaw, 17 Oal. 
 
 the queen, or of subjects, belong to 199. 
 
 the queen by prerogative, with liberty The rule that mines of other metals 
 
 to dig and carry away the ore thereof, containing any gold or silver also be- 
 
 and with other such incidents thereto longed to the crown was changed by 
 
 as are necessary to be used for the statute, 1 William & Mary, c. 30; 6 
 
 getting of the ore." It was also held William &. Mary, o. 6. 
 
 "that a mine royal, either of base 4. 3 Danes, Abr. 137 j 1 Kerr, Eeal 
 
 metal containing gold or silver, or of Prop. 85, 86; S Washburn, Eeal prop, 
 
 pure gold and silver only, may, by the (6th Ed.) 361. 
 grant of the king, be severed from the 
 
32 ITatxjee and Incidents of Owneeship of Land. 
 
 patents from the United States, private ownership of land 
 carries with it ownership of the gold and silver mines there- 
 in, except where snch mines have been expressly reserved. 
 After the crown had granted away the gold and silver mines 
 in the lands covered by the Colonial Charters it no longer 
 had any right to such mines, to which the state or nation 
 could succeed on their separation from England. Certainly 
 the ownership of these mines is not an incident of sover- 
 eignty, since they could be transferred by the crown at 
 pleasure, and therefore the states and the nation did not 
 succeed to them by virtue of sovereignty.* In New York, 
 gold and silver mines have been reserved in all grants 
 by the state, and by statute it is expressly asserted that the 
 state by virtue of its sovereignty is owner of all such mines.' 
 In other states, and in public territory of the United States, 
 it is generally held that private ownership of the land car- 
 ries with it title to gold and silver mines therein unless they 
 are expressly reserved to the state.^ 
 
 § 25. Mining Claims. — Rights in mines acquired by dis- 
 covery in public lands of the United States are controlled by 
 the Federal Statutes.* The acquisition of such rights in 
 
 5. Moore v. Sniaw, 17 Cal. 199. of the land, exactly like mines of any 
 
 In Hcks V. Bell, 3 Cal. 219, it was other kind. 
 held that tlie state was entitled to In Grold Mining Co. v. Ish, 5 Ore- 
 gold and silver mines as incident to gon, 104, there is dicta to the effect 
 its sovereigiitj-, b;it this doctrine was that "mines of precious metals be- 
 ■oierthrown in Moore v. Smaw, supra, long to the eminent domain of the 
 in which case it is made clear that political sovereignty," in the United 
 tlie ownership of such mines never States as well as under the laws of 
 was an incident of sovereignty, but England and Spain. 
 merely a rcgalian right subject to 6. 1 Kerr, Real Prop. 86. 
 alienation by the king like any pri- N. Y. Laws of 1894, c. 317, §§ 80- 
 vate property; that such ownership 85, provide that gold and silver minea 
 is in no sense required for the pur- belong to the state. These sections 
 poses of sovereignty, and therefore in contain regulations pertaining to the 
 the United States gold and silver discovery and working of mines, 
 mines are the property of the owners 7. Moore v. Smaw, 17 Cal. 199. 
 
 8. U. S. Rev. St. §§ 2318-3346. 
 
Jf EOPEKTT IN Wild Animals. 33 
 
 the public land of any state is controlled by the statutory 
 regulations of the particular state. In the western mining 
 states there grew up a system of mining laws and customs 
 and usages before the enactment of statutes on the subject, 
 which are generally recognized as binding and valid when 
 not inconsistent with the statutes as a sort of "common 
 law of the mines." * Therefore the law of mines and min- 
 ing is made up of the customary law, the statutes, state and 
 federal, and their application to the many different situa- 
 tions which have arisen, all forming a distinct and separate 
 branch of the law, manifestly outside the scope of this 
 treatise. 
 
 B. — Wild Animals. 
 
 § 26. Property in Wild Animals. — Beasts and birds of 
 the wood, untamed and not within the possession and con- 
 trol of any owner, are not property since they are not sub- 
 ject to ownership. The owner of the land on which such 
 animals may be at any given time has the exclusive right to 
 take them by killing or capture, while they are on his land, 
 but that right is an incident of his ownership of the land, 
 not a right of property in the animals themselves. Neither 
 are they in any sense a part of the land, for as soon as they 
 pass to the land of another that other has the same exclu- 
 sive right to take them while on his land. The owner 's right 
 arises from his exclusive dominion over his land and his ex- 
 clusive right to hunt and fish thereon.^" It has sometimes 
 been said that wild animals belong to the state as represen- 
 tative of the public, but the state has no ownership in such 
 
 4 
 
 9. Gold Min. Co. v. Ish, 5 Oregon cxclusiveiy in the owner of the land 
 104. o^'sr which the water may be. Those 
 
 10. Sutton V. Moody, 1 Ld. Ray- having the right of navigation have 
 mnnd, 250; People v. Bootman, 180 no right to hunt on or fish in such 
 N. Y. 1 ; Sterling v. Jackson, 69 Mich, waters. Sterling v. Jackson, 69 
 488; Shulte v. Warren, 218 111. 108. Mich. 488; Sliulte T. Warren, 21 S 111 
 
 The right to hunt over water sub- 108. 
 ject to an easement of navigation is 
 
34 ITatueb and Incidents or Ownership of Land. 
 
 animals as property. In fact they become property only 
 when possession or control over them has been secured. 
 The public generally has the right to hunt for and take game 
 of any kind as long as the rights of no individual are vio- 
 lated, and the state in the exercise of the police power for 
 the protection of the public has the right to enact laws to 
 preserve game and to regulate hunting. This is all that is 
 meant by the statement that the state is the owner as re- 
 presentative of the public.^ 
 
 When game has been reduced to possession by any per- 
 son hunting lawfully therefor, it becomes his personal prop- 
 erty. His possession must be such that the animals are 
 under his control so that he may subject them to his use at 
 pleasure.'* But if the hunter kills game on land where his 
 hunting is a trespass, the game belongs to the owner of 
 the land where it is killed.® It seems, however, that if the 
 hunter starts game in A's land and drives it onto the land 
 of B, and kills it there, the hunter is entitled to the game, 
 since it did not come on B's land of its own volition.* Where 
 animals, wild by nature, such as bees, have been tamed or 
 reclaimed, the owner's property right in them continues as 
 long as he retains control over them, and if they return to 
 the wild state they still remain his property as long as he 
 can keep them in sight and within his control, so that he 
 may re-take actual physical possession of them at his pleas- 
 ure; but if he loses such control, they become mere wild 
 animals again, and he loses all ownership in them." 
 
 1. Ctimmings v. People, 211 111. 250; Blades v. Higgs, 11 H. L. Caa. 
 392; People v. Bootman, 180 N. t It 621, and cases in last two notes. 
 Geer v. Com., 161 U. S. 519; Kellogg 4. Cases cited in preceding note. 
 V. King, 114 Cal. 378; State t. See criticism of this rule in Blades v. 
 Negaard, 124 Wis. 474. Higgs, supra. 
 
 2. Goflf V. Kilts, 15 Wend. (N. Y.) 6. Goff v. Kilts, 15 Wend. (N. Y.) 
 650; Buatin v. Newkirk, 20 Johns. 660, and eases in note 2, supra. 
 
 (N. Y.) 75; State v. Shaw, 67 Oh. M'Conioo v. Singleton, 2 Mills (S. 
 
 Bt. 157; Ulerg v. Jones, 81 111. 403; C. Const. Repr.) 244, holds that the 
 
 Kixroth v. Coon, 15 R. I. 35. public has a right to hunt in unin- 
 
 3. Sutton T. Moody, 1 Ld. Raymond closed lands. Of course it is weU 
 
Incidents of Ownership in Border Trees. 35 
 
 § 27. Fish. — What has been said concerning animals of 
 the wood applies also to fish. The owner of land under 
 private waters has the exclusive right to take fish in such 
 waters, and the fish beconae his property only when taken. 
 The public have the same right to take fish as to hunt for 
 wild animals, subject to the laws limiting and controling 
 this right enacted by the state in the exercise of the police 
 power. This right extends to fishing in public waters, and 
 also to fishing in private waters where the fishing is with 
 the consent of the owner. Fish are not subjects of owner- 
 ship until taken and title can be said to be in the state for 
 the benefit of the public only in the sense in which that 
 statement is used in connection with wild animals of the 
 wood.' 
 
 C — Border Trees. 
 
 § 28. Incidents of Ownership in Border Trees. — Ques- 
 tions concerning trees, in so far as they involve the dis- 
 tinction between real and personal property, have been 
 treated in Chapter I. Trees growing close to the line divid- 
 ing the land of two adjoining owners, the roots and branches 
 extending into or over the land of each are border trees. 
 Where the trunk stands entirely in the land of A, and some 
 of the roots and branches extend into or over the land of B, 
 adjoining, the tree is exclusively the property of A, even to 
 the roots and branches growing into or over B's land." 
 
 settled that the public may hunt on Oysters planted by an individual in 
 
 land or water not held in private a bed clearly marked out in an arm 
 
 ownership. See cases in notes preced- or bay of the sea are the property of 
 
 ing. him who planted them. Fleet v. Hege- 
 
 6. Hooker v. Cnmmiss, 20 Johns, man, 14 Wend. (N. Y.) 43; Vroora 
 
 (N. Y.) 90; Beckman t. Kreamer, 43 t. Tilly, 184 N. Y. 168. ' 
 
 m. 447; People v. Bridges, 142 111. 4. Masters v. Puilie, 2 Roll. E. 141; 
 
 30; State v. I^wis, 134 Ind. 250; Holder v. Coates, 1 Moo. & M. 113; 
 
 Treat v. Parsons, 84 Me. 53; State r. Hoffman v. Armstrong, 48 N. Y. 301; 
 
 Sha/w, 67 Ohio St. 157; State v. Rob- Lyman v. Hale, 11 Oonn. 177; SkiB- 
 
 erta, 59 N. H. 356; Sollers v. Sollers, ner v. Wilder, 38 Vt. 115; HamdoD 
 
 77 Md. 148. See, also, cases cited un- v. Stultz, 124 Iowa 440. 
 der S 36. 
 
36 jSTattjee and Incidents of Owneesiiip of Land. 
 
 In such case, A is the owner of any fruit which may grow on 
 such branches, and he has a license arising out of his own- 
 ership and the necessity of the case to enter upon B's land 
 for the purpose of gathering such fruit.^ 
 
 It has been urged that in such case the adjoining owner, 
 B, should have ownership of so much of the trees as extends 
 into or over his land, on the principle that his land includes 
 everything permanently attached thereto by nature to an 
 indefinite extent upwards and downwards; that as the tree 
 draws nourishment from his land, he should have some 
 ownership in the tree. The rule seems to have been settled 
 on the theory that the ownership of the tree should be de- 
 termined by the place where it was originally planted. At 
 first entirely on the land of A, its branches and roots gradu- 
 ally extend themselves till they crossed the line into B's 
 property. This, however, involves no wrong on the part 
 of A or his predecessor in the title, but was entirely a 
 process of nature, with which neither of the parties had 
 anything to do. Therefore the tree, unquestionably A's 
 property before the invasion of B's land, continues to be 
 his property thereafter. To give B an interest in the tree 
 commensurate with the extent to which it invades his land, 
 or draws nourishment therefrom, is as a practical matter, 
 impossible. Such a rule would make it necessary in every 
 case to examine the roots of trees growing in a strip several 
 rods wide on each side of the line to see if the roots extend 
 into the adjoining land, and to what extent, in order to de- 
 termine the ownership of the tree. Furthermore it would 
 be manifestly impossible to determine the proportions in 
 which they should own the tree, as tenants in common, and 
 their interests would be constantly changing through the 
 growth of the tree. To hold that each of the parties should 
 own such trees in equal shares would be far more unfair 
 and unjust than the established rule, and it would mean 
 
 5. Hoffman v. Armstrong, 48 N. Y. 201. 
 
Trees Growing Directly in the Line. 37 
 
 that the ownership of trees for several rods on either side 
 of the line would be vague and uncertain, a situation which 
 the law would not tolerate. It must always be remembered 
 that the law is made up of rules which govern men in all 
 their practical relations, and those rules must be practical 
 and workable, even though they may conflict with some 
 maxim of general application.® For the same practical 
 reason, ownership of the tree now depends entirely on the 
 place where the trunk of the tree stands, irrespective of 
 where it was planted. A definite, certain criterion by which 
 ownership of the tree may be determined is of more im- 
 portance than the satisfying of purely theoretical reason- 
 ing.^ 
 
 § 29. Right of Adjoining Owner. — Though the invasion 
 of the adjoining owner's land by the branches and roots of 
 such a tree involves no wrong on the part of its owner, 
 nevertheless it is a burden imposed upon his land to which 
 he is not compelled to submit. He may, therefore, cut the 
 roots and branches to the dividing line, irrespective of the 
 injury to the tree which may result. These roots and 
 branches, when severed, continue to be the property of the 
 owner of the tree, and if the adjoining owner converts them 
 to his own use he is liable for their conversion.* 
 
 § 30. Trees Growing Directly in the Line. — Where the 
 trunk of the tree stands directly in the boundary line it 
 belongs to the two adjoining owners as tenants in common, 
 each having an equal undivided interest in the entire tree. 
 The trunk must stand so that part of it is on the land of each 
 of the parties in order to come under the rule." If a grow- 
 
 e. Lymm v. Hale, 11 Conn. 177; 9. Dubois v. Beaver, 35 N. Y. 123; 
 
 Skinner v. Wilder, 38 Vt. 115. Griffin v. Bixby, 12 N. H. 464; Rob- 
 
 7. Skinner v. Wilder, 38 Vt. 115. inson v. Clapp, 65 Conn. 365; Musch 
 
 8. Lyman v. Hale, 11 Conn. 177; v. Burkhart, 83 Iowa 301; HarndoB 
 Grandona v. Lovdal, 70 Cal. 161, v. Stulty, 124 Iowa 440. 
 
 Robinson v. Clapp, 65 Conn. 365. 
 
38 Natuee and Incibents of Owfeeship of Land. 
 
 ing tree on a side hill, issues from the soil, very close to the 
 line, but on the land of A, while the roots grow into B's 
 land for the most part, it would appear that such tree is suf- 
 ficiently on the line to be treated as the common property of 
 both parties." Such trees are subject to the ordinary inci- 
 dents of tenancies in common, in so far as applicable to 
 trees, and if either party cuts the tree down, or otherwise 
 destroys it, the other can sue him in trespass.^ 
 
 To hold that each adjoining owner is owner of the tree 
 to the line in segments, with mutual rights of having the 
 tree maintained in its entirety so far as may be necessary to 
 the enjoyment of the tree by each of them, would not be in 
 accordance with the nature of trees, which do not lend them- 
 selves to ownership in segments. A tree is a single plant, 
 and as a practical matter the ownership should extend to 
 the entire tree.* 
 
 D.—Emb lements. 
 
 § 31. What are Emblements. — The right of emblements 
 is the right of a tenant, whose tenancy is of indefinite dura- 
 tion, to enter and take away annual crops maturing after 
 the expiration of his tenancy, provided the crops were 
 planted or sowed by him and that his tenancy was not ended 
 by his own act or volition. Such crops, as we have seen, are 
 a part of the land, and in the usual case pass with the land 
 to the landlord or owner of the reversion or remainder, if 
 still growing thereon at the expiration of the tenant's term. 
 It is only in the special case of the tenant holding an in- 
 terest or estate in the land of uncertain duration, who in 
 good faith plants or sows a crop expecting that his ten- 
 
 10. Holder t. Coates, 1 Moo. & M. might cut the branches on his side 
 
 112; Waterman v. Soper, 1 Ld. Raym. of the tree to the trunk, but could not 
 
 737; Skinner v. Wilder, 38 Vt. 118 cut the trunk, since he should have at 
 
 (at end of case). least as great right to cut branches 
 
 1. Cases under note 9, supra. as he would have if the tree stood in 
 
 2. In Robinson v. Clapp, 65 Conn, his neighbor's land, and the branches 
 355, the court held that either owner extended over the line. 
 
 of a tree growing directly on the line 
 
Thb Tenanot Must be of TJnoeetaiw Dubatiok. 39 
 
 ancy ■will continue till the time for harvesting, and 
 whose tenancy is brought to an end before that time 
 through the happening of some contingent and uncertain 
 event, that the right to enter after the expiration of the 
 tenancy and to harvest the crbp is given. This special 
 right or privilege is not based on the notion that such 
 crops are personal property belonging to the tenant, or 
 on any principal usually applying to the ownership of 
 property. It is a special additional privilege given in 
 such case in order to encourage good husbandry by in- 
 ducing tenants of uncertain holdings to cultivate the soil as 
 freely as tenants having definite and certain interests. This 
 qualification of the usual principles of ownership of land is 
 therefore based on the broad ground of public policy.* 
 
 § 32. The Tenancy Must be of Uncertain Duration. — The 
 tenancy must be of such a character that the tenant, at 
 the time he puts in the crop, cannot be sure whether his 
 tenancy will be brought to an end before the maturity of the 
 crop or not. If the tenancy is for a definite term, as a 
 tenancy for one year or five years, the right to emblements 
 does not exist.* A life tenant whose estate is subject to 
 the uncertainty of the continuance of his life, has an estate 
 
 3. Latham v. Atwood, Croke, Ohas. etc., even though grown from teed 
 
 615; Mr. Spencer's Case, C. P. Winch sown by the tenant. 1 Williams on 
 
 51; Graves v. Weld, 5 Barn. & Adol. Exrs. 670, 673; Reiff v. Eeiff, 64 Pa. 
 
 105; Stewart v. Doughty, 9 Johns. St. 134; Graves v. Weld, 5 Barn, t 
 
 (N. Y.) 108; Harris v. Frink, 49 K. Adol. 105. It would seem that if the 
 
 Y. 24; Debow v. Colfax, 10 N. J. !>. first crop of a perennial matures 
 
 138; Bradley V. Bailey, 56 Conn. 374; within one year after planting the 
 
 Simpkins v. Bogers, 16 111. 397; tenant should be entitled to it aa em- 
 
 ReiUy v. Bingland, 89 Iowa 106; Mehients. See Graves v. Weld, supra. 
 
 Chesley v. Welch, 37 Me. 106, ajid 4. Whitmarsh v. Cutting, 10 Johns. 
 
 tases cited in notes following. (N. Y.) 360; Thomas v. Noel, 81 Ind. 
 
 The doctrine of emblements applies 383; Howill v. Schenck, 34 N. J. L, 
 
 only to growing annual crops, as de- 77; Dircks v. Brant, 66 Md. 600; 
 
 fined in Chapter I of this work. Th« Wheeler v. Kirkendell, 67 Iowa 813; 
 
 doctrine does not apply to perennial and cases cited in preceding note. 
 erops such as growing grass, fruit. 
 
1-0 Natuee and Incidents of Owneeship of Land. 
 
 of indefinite duration, and therefore his personal repre- 
 sentative has the right to enter after his death, and har- 
 vest any crop planted or sowed by him.^ If a life tenant 
 leases the land to a tenant for a fixed term, such tenant has 
 the right to emblements if his tenancy is terminated by the 
 death of the life tenant, since his tenancy depends on the 
 life estate, out of which it has been created, and will be 
 brought to an end by the termination of the life estate.® 
 "WTiere land was given to a woman during widowhood, 
 creating in her a life estate, since it might continue for 
 life, it has been held that a tenant for a fijsed term, holding 
 under her, is entitled to emblements on the termination of 
 his estate by her re-marriage, his tenancy being of un- 
 certain duration, since it depended on her life estate^ Ten- 
 ancies at will supply another illustration of the sort of ten- 
 ancy to which this right is incident. The interest of such a 
 tenant may be ended by the landlord at any time, and if so 
 ended, the tenant is entitled to take away the crop then 
 growing upon its maturity, provided it was planted by him.* 
 A tenant by sufferance, however, is not entitled to emble- 
 ments for, as we shall see later, he is in no true sense a ten- 
 ant, his holding being wrongful.® 
 
 § 33. The Tenant Must Have Planted or Sowed the Crop. 
 — If a life tenant, tenant at will, or any other tenant hold- 
 ing for an uncertain period, finds a crop growing upon the 
 land at the time of the commencement of his tenancy, which 
 was planted by someone else, and thereafter his tenancy is 
 
 6. Latham V Atwood, Cro. Car. 461, and Blackstone's Commentaries. 
 
 515; Keilly V. Ringland, 39 Iowa. 106; 8. Harris v. Frink, 49 N. Y. 24; 
 
 'ITiornton v. Busch, 20 Ga. 791; Tal- Simpkins v. Rogers, 15 111. 397; Reilly 
 
 bot V. Hill, 68 111. 106. V. Ringland, 39 Iowa 106; Dobbins v. 
 
 6. Bradley v. Bailey, 56 Conn. 374; Lusch, 53 Iowa 304; Chandler ▼. 
 Graves v. Weld, 5 Barn. & Adol. 105, Thurston, 27 Mass. (10 Pick.) 205; 
 where tenancy was determinable on Bittinger v. Baker, 29 Pa. St. 60. 
 three lives. 9. Miller v. Cheney, 88 Ind. 466, 
 
 7. Debow V. Oolfax, 10 N. J. L. 128, 470. 
 «ting Oland v. Burdwick. Cro. Eliz. 
 
Tenancy Must Not be Terminated by Tenant. 41 
 
 brought to an end in some way other than by his own act, 
 he is not entitled to emblements because he did not plant or 
 sow the crop. This rule holds good no matter how much 
 oare and labor he may have expended upon the crop in car- 
 ing for and cultivating it. The right of emblements is given 
 in order to encourage initiation on the part of such ten- 
 ants in planting crops, and to come within the rule they 
 must have planted or sowed the crop themselves in order to 
 be entitled to take it away as emblements.^" 
 
 § 34. The Tenancy Must Not be Terminated by the Ten- 
 ant. — If the tenant terminates the tenancy himself, by hia 
 own act and volition, he has no right to emblements. He 
 will not be permitted to terminate the estate and free him- 
 self from the obligations incident to it, and at the same 
 time retain the ownership of a crop, encumbering the land 
 therewith till its maturity. Therefore, where a tenant at 
 will brings the tenancy to an end by his own act he is not 
 entitled to emblements.^ Where a clergyman had as part 
 of his compensation a tenancy which was to continue during 
 his term of service as pastor, and he gave up the position 
 voluntarily, he was not entitled to the crop then growing 
 upon the land as emblements; nor could a third party, who 
 had purchased the crop from him before the termination of 
 his estate, take the crop on its maturity, since such pur- 
 chaser could acquire no greater interest in the crop than 
 the clergyman had.^ So if a tenant from year to year, or 
 from month to month, terminates the tenancy by giving 
 the requisite notice, he would not be entitled to emble- 
 ments after the termination of his tenancy.* 
 
 10. Mr. Spencer's Case, C. P. Pick.) 305; Chesley v. Welch, 37 Me. 
 
 Winch 51; Debovr v. Colfax, 10 N. J, 106; Talbot v. Hill, 68 111. 106; Kip- 
 
 Eq. 128; Bradley v. Bailey, 56 Conn, linger v. Green, 61 Mich. 340. 
 
 S74; Haslett v. Glenn, 7 Har. & .J. 2. Debow t. Colfax, 10 N. J. L. 128. 
 
 (Md.) 17, and cases cited in preced- 3. Reeder v. Sayre, 70 K. Y. 180 j 
 
 in7 notes on this topic. Stewart v. Doughty, 9 Johns. (N. Y.) 
 
 1. Samson v. Rose, 65 N. Y. 411; 108. 
 Chandler v Tlinrston, 27 Maa=i. flO 
 
42 ITatuee and Incidents of Owneeship of Laitd. 
 
 § 35. Effect of Enforcement of Superior Title.— Though 
 all the requisites to emblements be present, the enforcement 
 of a title superior to that of the tenant, the enforcement of 
 which destroys or wipes out his tenancy, will take away 
 from him his right. Therefore, if it turns out that the 
 tenant holds from one who has no title, the tenant can- 
 not claim emblements as against the real owner of the land.* 
 Where a tenant takes land subject to a mortgage, the lien 
 of the mortgage antedating his tenancy, he cannot claim 
 emblements as against the purchaser of the property on 
 foreclosure sale since the lien of the mortgage covers the 
 growing crops as part of the land, and its foreclosure, in 
 which action the tenant is made a party, wipes out the in- 
 terest of the tenant both in the land and in the crops.^ 
 
 Where the tenant holds from a landlord who has an es- 
 tate upon condition in the land, subject to forefeiture for 
 breach of the condition, and the landlord's estate is for- 
 feited for breach of the condition, the tenant is entitled to 
 emblements as against the one who enforced the forfeiture 
 since his tenancy was of uncertain duration because subject 
 to the condition, like the estate of his landlord out of which 
 it was created, and like the landlord's estate, it was de- 
 stroyed by the enforcement of the forfeiture." All the re- 
 quisites of emblements are present, the tenant having in 
 good faith planted the crop believing that his tenancy would 
 continue until its harvest, and his tenancy having been 
 ended without wrong on his part. Where the tenant him- 
 
 4. Coke on Littleton, 55b; Simp- 139; Doe d. Upton v. Witherwiek, 3 
 kins V. Rogers, 15 111. 397; Rowell v. Bing. 11. 
 
 Kline, 44 Ind. 290 ; Howell v. Schenck, In Monday v. O'Neill, 44 Neb. 734, 
 
 34 N. J. L. 89. the purdiaser under foreclosures per- 
 
 5. Lane v. King, 8 Wend. (N. Y. ) mitted the tenant to remain in poa- 
 584; Howell v. Schenck, 24 N. J. L. session while he grew and harvested 
 89. See, also, Sherman v. Willett, 42 the crop. The court held, very prop- 
 N. Y. 146, and Batterman v. Albright, erly, that the crop belonged to the ten- 
 122 N. Y. 484. ant, as he was not a trespasser in 
 
 6. Sampson v. Eose, 65 N. Y. 411; growing it, having done so with the 
 Bevans v. Briscoe, 4 Har. & J. (Md.) consent of the purchaser. 
 
Right of Way-Going Chop. 43 
 
 self breaks the condition which causes the forfeiture he is 
 not entitled to emblements, having brought the tenancy to 
 an end by his own act. There is no real difference between 
 these cases and cases of tenancies ended by foreclosure of a 
 superior mortgage. In this latter case the tenant should be 
 allowed emblements, though the law is well settled to the 
 contrary. His tenancy is uncertain, his crop was planted in 
 good faith and his tenancy was ended without fault on his 
 part. Every consideration of public policy that supports the 
 right to emblements in other cases would seem to apply with 
 equal force to these cases of tenants holding subject to a 
 mortgage or to a conditional estate. They are in no sense 
 wrongdoers, and therefore cases of tenants holding under 
 a landlord having no title are not at all parallel.^ 
 
 § 36. Eight to Way-going Crop. — In several states 
 the courts have recognized and given effect to a custom 
 existing in those states that a tenant from year to 
 year shall be entitled to winter crops, viz.: — crops sowed 
 in the fall and maturing the following summer — when his 
 tenancy is brought to an end by his landlord in the spring 
 before the crop has matured.^ This right is based on cus- 
 tom, and where in any case the custom is not establislied 
 so that it may be treated as forming part of the contract 
 of letting, the right will not be recognized." It has, of course, 
 no connection with the right of emblements, and both 
 rights may exist independently in the same case." This 
 right applies only to winter crops, and not to crops sowed 
 or planted in the spring." 
 
 7. See three preceding notes. 9. Eeeder v. Sayre, 70 N. Y. 180; 
 
 8. Wigglesworth v. Dallison, 1 Dircks v. Brant, 56 Md. 500. 
 Doug. 201, 2 Smith's L. Gas. 842: 10. Bettinger v. Baker, 29 Pa. St. 
 Reeves v. Hannan, 65 N. J. L. 249; 70, and other cases cited in last two 
 Howell V. Sohenck, 47 N. J. Eq. 73; notes. 
 
 Shaw V. Bowman, 91 Pa. St. 414; 11. Cases cited in preceding notes. 
 
 Clark V. Harvey, 54 Pa. St. 148; 
 Bettinger v. Baker, 39 Pa. St. 70. 
 
44 ISTatuke and Incidents of Ownership of Land. 
 
 F. — Fixtures. 
 
 § 37. Nature of Fixtures. — A cliattel annexed to land in 
 a permanent ^vay so that it lias lost its character as a mov- 
 able tiling and lias become permanently identified with 
 the land to which it is attached so as to become, if annexed 
 by the owner of the freehold, a part thereof, is a fixture, 
 provided it still retains its identity as a distinct thing, 
 apart from the land.^ Permanency of annexation, as a re- 
 sult of which the thing affixed loses the attributes of per- 
 sonal property and acquires those of real property, is the 
 essential test. If, however, the thing annexed is so merged 
 with the land as to lose its identity as a distinct thing, it 
 is not a fixture. Therefore, building material, such as lum- 
 ber, brick and stone, when nsed in the construction of a 
 permanent building, lose their identity as separate things 
 and are not fixtures, though the building itself, which would 
 be personal property apart from the land, is a fixture when 
 erected as a permanent improvement of the land on which 
 it stands. In the same way, stone or soil whenever severed 
 from one parcel of land, and nsed in filling in or grading 
 another parcel, though personal property while so severed 
 and before being used in such filling in or grading, be- 
 come merged with the second parcel when so used, losing 
 their identity as separate distinct things, and therefore 
 cannot be treated as fixtures.^ 
 
 1. Where a fixture is annexed by each case it is a fixture if it would 
 
 the owner in fee who is also owner have become part of the land, had the 
 
 of the fixture, it becomes part of the owner in fee annexed it, he alao hav- 
 
 land. But where title to the fixture ing title to it at the time of annexa- 
 
 remains in some one else, after an- tion. The term " chattel fixtures," 
 
 nexation, or when annexed by a, ten- applies to these two classes of cases, 
 
 ant for years without intent to leave 2. Carkin v. Babbitt, 58 N. H. 579 ; 
 
 it permanently there, it remains per- Michigan & C. Ins. Co. v. Cronk, 93 
 
 Bonal property. The same t€St ap- Mich. 49; Pierce v. Godrlard, 12 Pick. 
 
 ,plies to each of these cases, however, (Mass.) 559. See § 10, ante and 
 
 which applies to the usual case of an cases cited thereunder, 
 annexation by an owner in fee. In 
 
Nature of Fixtures. 45 
 
 As we have already seen,* and as will appear more 
 fully later* a fixture may become the property of some 
 third person who has no estate or interest in the land, and 
 in such case separate ownership of the fixture apart from 
 ownersliip in the land makes it the personal property of the 
 owner, since necessarily it cannot be treated as a part of 
 the land because of such divergence of ownership. Trees, 
 for instance, when transferred by writing sufficient to sat- 
 isfy the statute, to one who is not the owner of the land on 
 which they stand, are his personal property. Nevertheless, 
 they still remain trees and a part of the land as a matter 
 of fact,^ and there is no reason why the term used to desig- 
 nate them should be changed because they have become 
 personalty for the time being. So with fixtures which are 
 attached in a permanent way so as to become part of the 
 land if annexed by the owner in fee; there seems to be no 
 good reason why they should not still be termed fixtures 
 even though they do not become part of the land because 
 their ownership as chattels is in some person other than 
 the owner of the land. Therefore chattels attached to the 
 land by the owner in fee, who acquires them under a con- 
 tract of conditional sale, or who gives a chattel mortgage 
 thereon, to secure the purchase price, are properly termed 
 fixtures if annexed in such a way that they would have be- 
 come part of the land in the absence of such chattel mort- 
 gage or contract of conditional sale, although they continue 
 to be personalty because title to them, as chattels, -remains 
 in the vendor by the terms of the contract of conditional sale 
 or chattel mortgage.® In the same way, annexations made 
 by a tenant for years or for life, which in most cases remain 
 the personal property of the tenant during his term, may 
 properly be classed as fixtures in all cases where the an- 
 nexation is of such a nature that the chattels would have 
 
 S. See § 9, ante, and cases cited 5. See § 11, note 9, ante. 
 
 thereunder. 6. See, for full treatment of this 
 
 4. See §§ 46 to 59, post. question, §§ 46-59, post. 
 
46 Natuee and Incidents of Ownership of Land. 
 
 become a part of the land if annexed by tlie owner in fee. 
 Fixtures annexed by tenants remain their personal prop- 
 erty because they do not intend to permanently improve the 
 property for the benefit of the landlord or remainderman, 
 but only for their own benefit during the term. Such fix- 
 tures are annexed in the same way as though annexed by 
 the absolute owner, and they are just as much ostensibly 
 a part of the land in the one case as in the other. They 
 are prevented from becoming a part of the land because of 
 the tenant's ownership of them as chattels. Any definition 
 of fixtures which excludes them would be manifestly in- 
 complete, as a very considerable part of the law of fixtures 
 has to do with them. Futhermore, the courts have uniformly 
 called them fixtures, which is also the general usage.'^ 
 
 Therefore fixtures include (a) chattels annexed to land 
 permanently by the owner in fee; (b) chattels annexed in the 
 same permanent way under an agreement that title to them 
 as chattels is to remain in a third person; (c) chattels an- 
 nexed in the same permanent way by tenants for years or 
 for life and removable during the term. In the first case 
 they become part of the land and are called real fixtures; in 
 the two latter cases they remain chattels and are called 
 chattel fixtures. 
 
 § 33. Fixtures Annexed by Owner in Fee. — Excluding 
 for the time being annexations made by tenants for life or 
 for years, and taking up for detailed consideration fixtures 
 annexed by the owner in fee, by what tests are we to deter- 
 mine whether a chattel has been permanently annxed so as 
 to become a fixture? There must always, of course, be an- 
 nexation.* Whether or not there is physical annexation 
 is a question of fact, in determining which there is not 
 much difiiculty. The difficult problems arise in determin- 
 
 7. See §§ 52-59, post, for treatment 8. See § 39, " Wliat Amounts to 
 
 of fixtures annexed by tenants for life Annexation," post. 
 Or for years. 
 
Fixtures Annexed bt Ownke in Feb. 47 
 
 ing whether or not there is permanency of annexation suf- 
 ficient to change the actual or ostensible character of the 
 property from personalty to realty. In determining this 
 question the law applies the test of the intent with which the 
 annexation was made. If the owner intended to annex the 
 chattel permanently, as a permanent improvement of his 
 land, for use thereon for all time, or until the thing attached 
 be worn out or antiquated, or the land be diverted to some 
 other use, then it is a fixture. The owner's intent must be 
 determined from the facts and surrounding circumstances 
 under which the annexation was made. Any fact or circum- 
 stance accompanying the annexation which will tend to 
 throw light on the purpose or intention of the owner in 
 making the annexation, should be considered in determin- 
 ing his intent. If, in view of such facts and circumstances, 
 the average man would be held to have intended to annex 
 the chattel as a permanent improvement on the land, then 
 it is a fixture and becomes a part of the land. The secret, 
 unexpressed intent of the owner is immaterial. In determ- 
 ining this question of intent, the courts lay stress on two 
 tests: 1st, the nature of the annexation, whether perman- 
 ent or merely transient, and 2nd, the adaptability of the 
 chattel to the land to which it is annexed; whether or not 
 it is adaptable for use in connection with the permanent 
 use to which the premises have been appropriated. The 
 nature of the annexation has, of course, some bearing on 
 the matter of intent, but the important and usually con- 
 trolling test is whether or not the chattel attached is adapt- 
 able to some permanent use in connection with the land 
 as a part thereof. If it is, then the inference is clear that 
 the owner, having annexed it for permanent use in connec- 
 tion with the land, intended to attach it permanently as a 
 part of the freehold. A detailed consideration of these 
 tests can be best taken up only in connection with a consid- 
 eration of the cases, which will follow.® 
 
 8. See §S 42-45, post, and caaes cited and discussed therein. 
 
48 l^ATUKE AND INCIDENTS OF OwNEESHIP OS LaKD. 
 
 § 39. What Amounts to Annexation. — A fixture must be 
 annexed to the land of which it is a part, and it is immater- 
 ial what form the annexation may take, except as bearing on 
 the question of intent. Whether it be fastened with nails 
 or screws or by any other means, or merely rest in posi- 
 tion of its own weight, there is actual physical annexation 
 and the article so annexed is a fixture if annexed with 
 the intention of making it a permanent part of the free- 
 hold." Therefore, where a large statue was placed in a 
 pedestal built in a permanent way expressly to receive it, 
 the statue was held to be sufficiently attached though it 
 was not fastened in any way and was held in position simply 
 by the force of gravity.* There must, however, be annexa- 
 tion to some definite piece of land. Utensils or implements 
 used in connection with a manufacturing plant are not an- 
 nexed to it. They are on the premises for use wherever 
 they may be required, but they have no definite situs ; they 
 are still movables, and therefore chattels." The rolling stock 
 of a railroad, including the cars, engines, etc., are not fix- 
 tures for the same reason.^ They are made for use, it is 
 true, upon the road-bed, but even when in use they cannot 
 be regarded as annexed thereto; they are not identified 
 with any parcel of land as a part thereof. They are not 
 
 10. Williamson v. N. J. S. R. Co., lamy Mfg. Co., 12 N. H. 205; Wins- 
 
 29 N. J. Eq. 311; Walker v. Sherman, low v. Bromich, 54 Kan. 300; Samp- 
 
 20 Wend. (N. Y.) 656; Teaff v. son v. Graham, 96 Pa. St. 405; At- 
 
 Hewitt, 1 Ohio St. 511, and cases cited lantie Safe Dep. Co. v. Atl. City L. 
 
 and discussed under this topic, since Co., 64 N. J. Eq. 140. 
 
 every case involving fixtures holds 3. Williamson v. N. J. S. R. Co., 
 
 that there must be annexation, actual 29 N. J. Eq. 311; Randall v. Eiwell, 
 
 or constructive. 52 N. Y. 531; Hoyle v. Plattsburgh 
 
 1. Snedeker v. Waring, 12 N. Y. & Mont. R. Co., 54 N. Y. 314; Neil- 
 170. son v. I. E. R. Co., 51 Iowa 1S4; Chi- 
 
 2. Dudley v. Hurst, 67 Md. 44; cago & N. W. R. Co. v. Borough of Ft. 
 Walker v. Sherman, 20 Wend. (N. Y.) Howard, 21 Wis. 45; Coe v. Col. Piq. 
 63G: Farrar v. Stackpole, 6 Me. 154; & Ind. R. Co., 10 Ohio St. 372, 379; 
 Hoy'.e V. Plattsburgh, etc. R. Co., 54 Boston, etc. R. Co. v. Gilmore, 37 N. 
 N. Y. 314; Wolford v. Baxter, 33 H. 110; State v. Martin, 141 N. C. 
 Minn. 18; Despatch Line, etc. v. Bel- 832. 
 
CoNSTEUCTIVE ANNEXATION. 49 
 
 part of any specific portion of the roadbed, and it is impos- 
 sible to treat them as part of the entire roadbed, since 
 they are used not only on the tracks of the company to 
 which they belong, but also on other tracks. While in use 
 on some other railroad, perhaps thousands of miles from 
 the home tracks, it would be absurd to regard them as part 
 of the roadbed of the railroad. Some cases have held to the 
 contrary, but these cases cannot be supported on principle, 
 nor do they now represent the law in any state.^ There is 
 no annexation in such case, either actual or constructive, 
 since there is no localization in use. They are not a part 
 of any definite and specific piece of land, and are therefore 
 mere movable chattels. 
 
 § 40. Constructive Annexation. — When a fixture, actu- 
 ally attached to the land in a permanent way, is temporarily 
 removed for the purpose of repair, or for any other tem- 
 porary purpose, or in the ordinary course of its use in con- 
 nection with the land, but without any intention of severing 
 it permanently, or of changing its character to personalty, 
 it remains a part of the land while so removed.^ As we 
 
 4. Titus V. Ginheimer, 27 111. 4G3; as a result of statutes and decisions, 
 
 but see Const, of 111. .Art. 11, § 10. that rolling stock is personal property 
 
 which provides that rolling stock in all the states. 
 
 " shall be considered personal prop- It may, however, be mortgaged with 
 
 erty." the road bed, and such mortgage, hy 
 
 In some cases, such as Minn. Co. v. statutory provision, need not be filed 
 
 St. Paul. Co., 69 U. S. 209, and State as chattel mortgage, in New York and 
 
 V. Nor. R. Co., 18 Md. 193, statements New Jersey and some other states. 
 
 are made to the efiect that rolling See cases in preceding note. Laws of 
 
 stock are fixtures, but these are N. Y., 1868, ch. 709. 
 
 dicta, since the question was not 5. Williamson v. N. J. S. R. Co., 29 
 
 necessarily involved. N. J. Eq. 311; Congr. Society v. Flem- 
 
 Cases cited for the proposition that ing, 11 Iowa 533 (in which ease a 
 
 rolling stock is realty are discussed bell taken from tower of old church 
 
 in Neilson v. Iowa E. R. Co., 51 Iowa when demolished, and kept on the 
 
 184, and the court points out that premises to be put in tower of new 
 
 they generally turn on some other church, was held to remain part of 
 
 question. It may be taken as settled, the land throughout) ; Heaton v. 
 
 4 
 
50 !N"atuee and Incidents of Ownership of Land. 
 
 have already seen, that which is realty remains part of the 
 land until severed permanently with the intention of chang- 
 ing its character and making it personalty.® Fixtures while 
 temporarily detached are said to be constructively annexed. 
 In fact they have been actually annexed, and remain real 
 property because not severed permanently with the intent 
 of making them chattels. Where, for instance, a mill stone 
 was removed for repair, the intention being to restore it to 
 its original place in the mill, it passed iij a deed conveying 
 the mill.'^ Keys of a house, fitted to the doors as part of 
 it, are part of the house, though most of the time in the 
 owner 's pocket. They were originally fitted and annexed to 
 the doors, and are removed only in the regular course of 
 their use in connection with the house.* Hop poles, used for 
 the purpose of growing hops, and attached in the land to 
 support the vines during the growing season, remain part 
 of the land, though severed, during the winter, and stowed 
 away for use in a similar way the following year. Having 
 become fixtures by annexation, such severance in no way 
 changes their character.* Storm doors and windows, shut- 
 ters or blinds, awnings, etc., if fitted to a house for perman- 
 ent use as part of it, remain fixtures and part of the house 
 though detached and stored away during part of the year 
 when not required for use.^° In all such cases the article 
 
 Findlay, 12 Pa. St. 304 (where cylin- 10. Hill v. Wentworth, 28 Vt. 436 
 
 der was removed and sold, but shortly ( in which ease it was held that where 
 
 after restored to its original position, blinds and storm windows had never 
 
 it was still subject to a lien on the been fitted or fastened to the house, 
 
 land existing before Its removal); they remained chattels); State v. 
 
 Lewis Y. Rosier, 16 W. Va. 333 (cop- Elliott, 11 N. H. 540; Fish Co. t. 
 
 per and brass fixtures removed from Young, 127 Wis. 149 (window 
 
 a salt worlds for safe Iceeping). screens); Roderick v. Sanborn, 106 
 
 6. See §§ 9 and 10, ante. Me. 159; Cosgrove v. Troisoher, 68 
 
 7. Wystow's Case, 14 Henry VIH, App. Div. (N. Y.) 123 (awnings— 
 25b. whether realty or not depending on 
 
 8. Liford's Case, 11 Coke, 60b; whether specially made and fitted and 
 Bishop V. Elliott, 11 Exch. 113. annexed. They were detached at time 
 
 9. Bishop T. Bishop, 11 N. Y. 123. of the suit) . 
 
CONSTBUOTIVE AnNEXA-TION. 51 
 
 IB said to be constructively annexed while temporarily re- 
 moved. In fact, such removal is in no true sense a sever- 
 ance from the freehold; it is incident to the use of the fix- 
 tures in question as permanent parts of the house.* 
 
 Fence rails or boards, when blown off, or removed from 
 the fence with the intention of using them on the same 
 premises for repairing or rebuilding the same or some other 
 fence, remain real property while so removed, and pass 
 with the land as part of it. They have not been removed 
 with the intention of changing them to chattels.^ Field 
 stones or stones from a wall gathered for use on another 
 part of the same premises, for the purpose of reannexing 
 them to the same parcel of land as part thereof, remain 
 Teal property during the process, though they would be- 
 come personalty if taken from their original place for the 
 purpose of use elsewhere, since in the first case there would 
 be no intent of permanently severing them, while in the 
 latter case such intent would necessarily exist.' In the case 
 of trees cut down and converted into rails, or boards, or 
 lumber of any kind for the purpose of building or repair- 
 ing fences or buildings on the same premises, it has been 
 stated that such rails or timber remain part of the land 
 before reannexation, so as to pass therewith under a deed 
 of conveyance.* The cases, however, do not bear out this 
 proposition, and the better view would seem to be that such 
 rails or lumber cut from trees on the same premises to 
 which reannexation is to be made, become and remain per- 
 sonalty until so reannexed. Such rails or boards or sticks 
 of timber are personal property in their nature, with all 
 
 1. other oases illustrating the same 2. Goodrich t. Jones, 2 Hill (N. 
 
 principle are Tollea v. Winton, 63 Y.) 143; Harris v. Scovel, 85 Mich, 
 
 Conn. 440; Burnside v. Twitchell, 43 33; McLoughlin T. Johnson, 46 lU. 
 
 N. H. 390; Wadleigh v. Janvrin, 41 163. 
 
 N. H. 503. 3. Noble v. Sylvester, 43 Vt. 146. 
 
 For a good discussion of this ques- 4. Washburn R. P. § 35. 
 tion, see Williamson v. N. J. S. R. 
 To.. 39 N. J. Eq. 311. 
 
52 Nature and Incidents of Owneesiiip of Land. 
 
 the attributes thereof. There is no intent to restore the 
 trees as such to the land. The trees have been changed 
 from part of the land into a commodity, an article of 
 commerce with all the characteristics of personalty, and 
 they become part of the land again only when re-annexed. 
 This seems to be the prevailing view under the cases.* 
 
 § 41. Other Cases of Constructive Annexation. — Another 
 class of cases of fixtures said to be constructively annexed 
 are parts of machinery or appliances used habitually as es- 
 sential parts of the permanent machines or other equipment 
 of manufacturing plants, or things personal of any kind 
 actually appropriated to permanent use in connection with 
 the land, though there be no permanent attachment to any 
 specific part of the premises in question. The rolls of an 
 iron rolling mill, of varying sizes, for use in the rolling ma- 
 chines, as they may be required, but kept in reserve until 
 needed, are as much a part of the machines while not at- 
 tached as the rolls actually in position. So, also, extra rolls 
 kept in reserve to take the place of those in use, in case of 
 emergency, are part of the machines, and therefore part 
 of the freehold.* Bails distributed obviously for the pur- 
 
 5. Cook V. Whiting, 16 111. 480 (in Page, 13 Vt. 353, where it was held 
 
 which case hewed timhers, posts and that rails distributed along obviously 
 
 a round log, severed from the same for the purpose of a fence were part 
 
 premises and lying loose on the ground of the land because appropiiated to 
 
 intended for the purpose of erecting the land by being so distributed. If 
 
 a granary, were held to be person- cut on the same land, it follows that 
 
 alty) ; Winoher v. Schrewsbury, 2 they were personal before being so 
 
 Scam. E, 283 (where rails cut by one distributed. See, also, Wing v. Gray, 
 
 having no title were held to be per- 36 Vt. 261; Oarkin v. Babbitt, 58 N. 
 
 sonal property when piled on the H. 579; Robertson v. Phillips, 3 
 
 land, and did not pass with the Greene (la.) 230. 
 land) ; Clark v. Burnside, 15 111. 62 6. Voorhis v. Freeman, 2 Watts i 
 
 (holding that rails in fence were Searg. 116; Farrar v. Stackpolc, 6 
 
 realty, while rails stacked on the Me. 154; D. L. & W. R. Co. v. Oxford 
 
 ground were personalty). Iron Co., 36 N. J. Eq. 452; Pierce «. 
 
 See, also, Conklin v. Parsons, £ Goddard, 108 Mass. 78; fia parte Ast- 
 
 Pinney (Wis.) 264, and Ripley v. bury, L. R. 4 Ch, App. 630. 
 
Ox-UEE Cases of Constkuotive Annexation. 53 
 
 pose of repairing or building a fence have been held so far 
 appropriated to the fence as to become part of the land.'' 
 In these cases there is annexation of a permanent kind, and 
 as a matter of fact the rolls or other parts of machinery 
 are brought on the premises and are assigned a permanent 
 use in connection with the machines which makes them 
 part thereof. This annexation is constructive only in the 
 sense that they are not fastened in any way to any fixed 
 part of the premises. The fence rail cases above referred 
 to can be justified only by regarding the rails as sufficiently 
 appropriated to the fence as to become a part thereof. It 
 is well settled that where building material for buildings 
 or a stone for a door-step, in fact any article intended for 
 permanent annexation, are brought upon the premises they 
 do not become part of the land until actually placed in the 
 position which they are to occupy permanently.^ In one 
 case where heavy spike machines, weighing several tons, 
 were made to order and shipped to a manufacturing plant, 
 where stone foundations had been prepared for them, were 
 levied upon as personalty after they had been brought on 
 the premises but before they were placed in position, it was 
 held that they had become part of the realty and that the 
 levy was therefore void.^ It is difficult to find a principle 
 
 7. Ripley v. Paige, 13 Vt. 353; In Byrne v. Werner, 138 Mich. 323, 
 Conldin v. Parsons, 3 Pinney (Wis.) the court held that structural iron 
 264; Hackett v. Amsden, 57 Vt. 433. and cut stone, prepared and fitted for 
 
 8. Woodman v. Pease, 17 N. H. use in the completion of a. building, 
 2S3; Carkin v. Babbitt, 58 N. H. 579; brought on the premises and on an 
 Cook V. Whiting, 16 111. 480; John- adjoining lot ready to be placed in the 
 son V. Mehaffy, 43 Pa. St. 308 (rolls building, were personal property, but 
 for rolling mill, never attached, and nevertheless passed with the land as 
 left on premises in a rough state, re- chattels, under the peculiar facts of 
 raained personalty, though brought the case. See, also. First Com. & 
 on the premises for the purpose of the Sav. B. v. Milling Co., 144 Mich. 188, 
 mill) ; Spruhen v. Stout, 52 Wis. 517 holding that machines brought on 
 (tubs brought on premises, but not premises, but not annexed, though in- 
 attached did not become part of tended to be, were chattels. 
 
 realty, but might be included under 9. McFadden v. Crawford, 36 W. 
 
 mechanic's lien). Va. 671. See Eahm v. Domayer, 137 
 
54 Nature and Incidents of Ownership of Land. 
 
 on wMcli this case can be supported. It is hard to see how 
 the mere bringing of the machines on the premises can be 
 said to have made them a part thereof any more than in 
 the case of the stone for the door-step, or the cases of build- 
 ing material brought on the premises for a building. The 
 machines had not reached the places where they were to- 
 be placed permanently, and in fact were not annexed at 
 all. The doctrine of constructive annexation has no appli- 
 cation to such a case. 
 
 § 42. Application of the Test of Intent. — Having deter- 
 mined that the chattel has been affixed to the land by either 
 actual or constructive annexation, the permanency of such 
 annexation, which is essential to convert the chattel into 
 a fixture, is determined by applying the test of the intent 
 with which the owner made the annexation. If all the facts- 
 and circumstances under which the annexation was made 
 are sufficient to establish that the average man under the' 
 Bame circumstances would have intended to annex the chat- 
 tel as a permanent accession to the freehold, then the law 
 declares the annexation to be permanent, and the chattel 
 annexed a fixture.^" The secret unexpressed intent of the- 
 owner is immaterial, as it furnishes no general test of per- 
 manency.^ Parol statements, made at the time of annexa- 
 
 lowa 18, holding that doors, transoms cited and discussed in the sections and 
 
 and other prepared finishing trim, notes immediately following, 
 
 made to order for building in course 1. Snedeker v. Waring, 13 N. Y. 
 
 of erection became realty when 170; Nat. B. of Catasauqua v. North, 
 
 brought on the premises though not 160 Pa. St. 303, 308; Rogers v. 
 
 attached. Brokaw, 25 N. J. Eq. 496; Fifieid y. 
 
 10. Hopewell Mills v. Tautou Sav- Farmers' Nat. Bank, 47 111. App. 118, 
 
 Ings Bank, 150 Mass. 519; Sne- affirmed 148 111. 163; Kendall v. 
 
 deker y. Waring, 12 N. Y. 170; Hathaway, 67 Vt. 122; Thompson y. 
 
 Voorhia t. Freeman, 2 W. & S. Smith, 111 Iowa 718; Hayford y. 
 
 (Pa.) 116; Potter v. Cromwell, 40 N. Wentworth, 97 Me. 347; Young v. 
 
 Y. 287, McRea y. Central Nat. Bank, Hatdi, 99 Me. 465; State Sec. Bank 
 
 •6 N. Y. 489; Ottuman Woolen M. v Hoskins, 130 Iowa 339; People y. 
 
 Co. y, Hawley, 44 Iowa 57, and cases Jones, 130 Mich. 283. 
 
Intent as Shown by Chaeaotee of Aitnexation. 
 
 65 
 
 tion, while admissible as throwing light on the actual in- 
 tent and purpose of the annexation, are by no means con- 
 trolling.^ The question must be determined from the facts 
 and circumstances under which the annexation was made, 
 and the uses for which the chattel was intended in connec- 
 tion with the use of the land.* 
 
 § 43. Intent as Shown by Character of Annexation and 
 Adaptability for Use with the Land. — The way in which 
 the annexation is made, and the adaptability of the thing 
 attached to the uses and purpose for which the freehold has 
 been given over, are important only as tending to establish 
 the intent of the owner, as an average man, in annexing 
 the chattel. If it is annexed in such way that it is not easily 
 removable, the intention of making it a permanent part of 
 
 In Hopewell Mills v. Tauton Sav. 
 B., 150 Mass. 519, holding that looms 
 in a cotton mill, placed there appar- 
 ently for permanent use, were fix- 
 tures, the court said: "A machine 
 placed in a building is found to be 
 real estate or personal property from 
 the external indications which show 
 whether or not it belongs to the build- 
 ing as an article designed to become 
 a part of it, and to be used with It t§ 
 promote the object for which it was 
 erected, or to which it has been 
 adapted or devoted — an article in- 
 tended not to be taken out and used 
 elsewhere unless by reason of some 
 unexpected change in the use of the 
 building itself. The tendency of the 
 modern cases is to make this u ques- 
 tion of what was the intention with 
 which the machine was put in place 
 • • * (citing cases). These cases 
 seem to recognize the true principle 
 on which the decisions should rest, 
 only it should be noted that the in- 
 tention to be sought is not the un- 
 
 disclosed purpose of the actor, but 
 the intention implied and manifested 
 by his act. It is an intention which 
 settles, not merely his own rights, but 
 the rights of others who have or who 
 may acquire interests in the property. 
 They cannot know his secret purpose, 
 and their rights depend not upon that 
 but from the inferences to be drawn 
 from what is external and visible." 
 
 The court found that the ma- 
 chinery was put in to remain until 
 worn out, or until for some unfor- 
 seen cause, the character of the real 
 estate should be changed or put to 
 different use. 
 
 2. McRea v. Central Nat. Bank, 66 
 N. Y. 489 ; Linahan v. Barr, 41 Conn. 
 471; Benedict v. Marsh, 127 Pa. St 
 309 (statements of owner who erect- 
 ed saw mill that he intended to move 
 it and use it in sawing timber of 
 three different woodlots admitted) ; 
 Nelson v. Howison, 122 Ala. 673. 
 
 3. Cases cited in last three preced- 
 ing notes. 
 
56 Natueb and Incidents of Ownership of Land. 
 
 the land is indicated; on the other hand, if the attachment 
 be slight, or only by mere weight, that will be some evi- 
 dence of a contrary intent. The important and usually 
 controlling test of intent is, however, the chattel's adapt- 
 ability for permanent use in connection with the land, for 
 if it is adaptable for use permanently as a part of the equip- 
 ment of the premises, and incident to the permanent use to 
 which the land has been appropriated, it was unquestiona- 
 bly annexed to remain for all time or until worn out as a 
 fixed part of the establishment. The best way of consider- 
 ing these tests is by considering in some detail selected 
 cases of characteristic classes which illustrate the prin- 
 ciples above set forth. These cases involve a considera- 
 tion of both tests of intent above referred to, and they will 
 be considered as illustrating how intent may be established, 
 not only by employing these tests, but also by considering 
 all the facts and circumstances connected with the annexa- 
 tion and uses of the chattel which throw light on this ques- 
 tion of intent. It will be found that practically all of such 
 facts and circumstances will fall naturally into one or the 
 other group, either as showing the nature of the annexation, 
 or as indicating the adaptability of the thing annexed in 
 connection with the permanent use of the land. 
 
 § 44. Specific Illustrative cases — Machinery. — Where a 
 parcel of land has been appropriated to the purposes of a 
 manufacturing establishment of a permanent kind, such 
 as cotton and woolen mills, steel and iron mills, grist mills, 
 and the like, machines used therein as permanent parts of 
 the mill, and forming necessary parts of its equipment, are 
 fixtures.* Essential parts of such machines such as rolls of 
 
 4. Hopewell Mills v. Tauton Sav. (machines in paper mill) ; Potter v. 
 
 B., 150 Mass. 519 (looms in cotton Cromwell, 40 N. Y. 287 (grist mill); 
 
 mill, and beams on which they rest, D. L. & W. R. Co. v. Oxford Iron Co., 
 
 tliough temporarily removed) ; Mc- 36 N. J. Eq. 452 (machinery and belt- 
 
 Rea V. Cent. Nat. B., 66 N. Y. 4S9 ing of a factory) ; Feder v. Van Win- 
 
Specific Illusteative Cases — Machineey. 57 
 
 vs-rying sizes used for different purposes as required in the 
 machines of a rolling mill, are included as part of the 
 land, as are duplicates kept on hand for use in case of 
 breakage.^ Such machines and parts of machines are an- 
 nexed with the intention of using them permanently as part 
 of the establishment, and this is true even though the at- 
 tachment be very slight, and even where the parts are kept 
 in reserve on the premises, and attached only when in use. 
 As stated in a case covering iron rolls in a rolling mDl," 
 " Nothing but a passive regard for old notions could have 
 led them (the courts) to treat machinery as personal prop- 
 erty when it was palpably an integrant part of a manufac- 
 tory or a mill, merely because it might be unscrewed or un- 
 strapped, taken to pieces and removed without injury to 
 the building. It would be difficult to point out any sort of 
 machinery, however complex in its structure, or by what 
 means soever held in its place, which might not with care 
 and trouble be taken to pieces and removed in the same 
 way." The character of the annexation is of little moment 
 where it appears that the machine was annexed as a per- 
 manent and essential part of the mill or factory. Whether 
 it may be easily removed and used in a similar establish- 
 
 kle, 53 N. J. Eq. 370 (machinery in Beck, 146 Mich. 706 (machinery of a 
 
 iron works. The court said the use brewery ) . 
 
 need not necessarily be intended to 5. Voorhis v. Freeman, 2 W. & S. 
 be perpetual, merely that the chat- (Pa.) 116; D. L. & W. R. Co. v. 
 lels be incorporated for use to which Oxford Iron Co., 36 N. J. Eq. 452 
 the realty is appropriated) ; Knicker- (duplicate cylinders kept for emerg- 
 tccker Trust Co. y. Penn Cordage Co., ency but never used held to be 
 66 N. J. Eq. 306; Benedict v. Marsh, fixtures) ; Pierce v. George, 108 Mass. 
 127 Pa. St. 309; Hendy v. Dinker- 78 (detachable wheels of polishing 
 hoff, 57 Cal. 3; Lavenson v. Standard machines held to be realty) ; Dudley 
 Soap Co., 80 Cal. 245 (machinery of v. Hurst, 67 Md. 44 (orates, chaffing 
 Boap factory) ; Eifield v. Bank, 148 machines, wash tables, etc., essential- 
 Ill. 163; Ottumwa Woolen Mill Co. ly necessary to the working of tlio 
 ». Hawley, 44 Iowa 57; Parsons v. principal machinery, classed as part 
 Copeland, 38 Me. 537; Hunels v. Hig- of the realty). 
 
 man, 145 Ala. 215; State Sec. B. v. 6. Voorhis v. Freeman, 2 W. & 8. 
 
 Eoskins. 130 Iowa 339; Dhring v. (Pa.) 116. 
 
58 Nature and Incidents of Ownership of Land. 
 
 ment elsewhere is also immaterial in such a case. It was an- 
 nexed for permanent use as a part of the plant where af 
 fixed, not to be removed and not to be used elsewhere. The 
 intention to annex it permanently as part of the land is 
 conclusively established from its adaptability for use as a 
 permanent accession to the freehold in connection with the 
 permanent use to which the land is given over.'^ 
 
 In New York it has been held that looms annexed to a 
 woolen miU by being fastened to the floor by screws, and 
 operated by the power by which the other machinery was 
 operated, being connected with the permanent shafting by 
 belts, was personal property nevertheless, because the looms 
 could easily be removed and used in any other mill where 
 power might be applied without material loss in their value.* 
 This decision, by a divided court, is not in accord with 
 the rule generally prevailing, and is also inconsistent with 
 cases decided both before and after it in New York. In 
 Walker v. Sherman,® a leading case in the United States, 
 the court held that mere loose, movable machines not 
 shown to have any connection with the plant, were per- 
 sonal property, but the court makes it clear that if they 
 were connected by bands and operated by the same power, 
 so as to constitute part of the factory, they would be fix- 
 tures. In Potter v. Cromwell " the court held that a port- 
 
 7. See casea cited under note 4 im- would become a. fixture from bein^ 
 mediately preceding, particularly connected in its operation by bands, 
 Hopewell Mills v. Tauton Sav. B., 150 or in any other way, with the per- 
 Maas. 519; D. L. & W. R. Co. v. manent machinery, though it might 
 Oxford Iron Co., 36 N. J. Eq. 452; be detached, and restored to its ordi- 
 Feder v. Van Winkle, 53 N. J. Eq. nary place, as easily as the chain in 
 370; Parsons v. Copeland, 38 Me. Farrar v. Stackpole, I think it would 
 537 ; Ottumwa Woolen Mill Co. v. be a fixture notwithstanding." 
 Hawley, 44 Iowa 57; and Voorhis v. 10. 40 N. Y. 387. The court quotes 
 Fieeman, supra. with approval Shaw, J., In Winslow 
 
 8. Murdock v. Gifford, 18 N. Y. 28. v. Ins. Co., 4 Met. 306: "In general 
 
 9. 20 Wend. (N. Y.) 636. The terms we think it may be said that 
 court said: "I am not prepared to when «. building is erected as a mill, 
 deny tliat a machine movable in itself and the water works or steam work« 
 
Specific Illusteative Cases — •Machineey. 
 
 59 
 
 able grist mill, annexed to a tannery building under cir- 
 cumstances disclosing an intent to use it as a permanent 
 custom and grist mill for the neigbborbood, became part 
 of the land. The court distinguished the loom case on the 
 ground that it was found as a matter of fact that the looms 
 in that case were not attached for the purpose of rendering 
 them part of the building, but merely to hold them in posi- 
 tion. In another later case the New York court again fell 
 in line with the rule generally prevailing, holding that ma- 
 chines in a twine factory which constituted part of the 
 factory, were fixtures.* In these cases, the controlling con- 
 
 which are relied upon to move the 
 mill are erected at the same time, 
 and the works to be driven by it are 
 essential parts of the mill, adapted to 
 be used in it and with it thougli not 
 at the time of the conveyance or mort- 
 gage attached to the mill, are yet 
 parts of it and pass witli it by a 
 conveyance, mortgage or attachment." 
 1. McRea v. Cent. Nat. B., 66 N. Y. 
 489. All cases agree that the engine 
 and boiler or water wheel and equip- 
 nient by which power is generated and 
 applied in a mill are fixtures. A few 
 cases which apparently express the 
 rule prevailing in the jurisdictions 
 where they were decided, hold that 
 machines not fastened in a permanent 
 way, but fastened only by screws or 
 cleats, or only by bands tlirough 
 which power is applied, merely to 
 hold them in position, or to apply 
 the power, are chattels though form- 
 ing part of the equipment of a fac- 
 tory or mill. The line seems to be 
 drawn at the belts or bands connect 
 ing them with the permanent shaft- 
 ing. Such cases are Teaflf v. Hewitt, 
 1 Ohio St. 511, holding that looms, 
 carding and spinning machines of a 
 woolen factory were chattels, because 
 
 easily removed and adaptable for use 
 elsewhere; Hill v. Wentworth, 28 Vt. 
 4S8, holding that permanent ma- 
 chinery of a paper mill were person- 
 alty for a like reason; Harris v. 
 Hayes, 34 Vt. S20, which followed 
 the preceding case. In Shepard v. 
 Blossom, 66 Minn. 421, following the 
 general rule that machines fastened 
 by cleats, screws, bolts, etc., or by 
 their own weight in the case of pon- 
 derous machines, are fixtures, refuses 
 U> extend the rule to cover light ma- 
 chines not fastened in any way ex- 
 cept by attachment to the belts, etc., 
 irrespective of whether they are an 
 essential part of the factory or not, 
 holding tliem to be chattels. 
 
 These cases, except the last, are 
 discussed in many of the cases cited 
 heretofore under this topic, notably in 
 Ottumwa Woolen Mill Co. v. Haw- 
 ley, 44 Iowa 57; Parsons v. Copeland, 
 38 Me. 537, and in these cases as 
 well as in the other cases cited in 
 notes 4 and 7, immediately preceding, 
 it is made very clear that essential 
 machines placed in a mill as part of 
 it are as truly a part of the realty 
 as the engine, water wheel, etc., since 
 they are annexed with the intention 
 
60 Natuee and Incidents of Owneeship of Land. 
 
 sideration was the adaptability of the machinery to the 
 factory as a permanent and essential part of it, as show- 
 ing an intent of making the machinery part of the freehold. 
 When a machine has no definite or fixed location in use 
 by attachment or by connection with an attached machine, 
 so that it is a mere utensil or tool, it is necessarily per- 
 sonal property, no matter how essential it may be in the 
 business of the factory or plant. Such articles are used 
 merely in connection with the land and buildings, not as 
 part thereof. This applies to mere movable utensils and 
 tools used on farms, in dwellings, or in connection with 
 lands or buildings of any kind, whether appropriated to 
 manufacturing or not.^ 
 
 § 45. House Fixtures, Gas Fixtures, Furnaces, Ranges, 
 Refrigerators, Awnings, Etc. — Ornamental mantels, fire- 
 places, hat-racks, mirrors and similar things, annexed to 
 a house as part of it, completing the interior finish of the 
 house, are fixtures. They are adapted and fitted to the 
 house for permanent use as part of it. They go to the 
 completion of the house. Their adaptability for permanent 
 use as part of the house shows conclusively that they were 
 annexed, with the intent to make them fixtures.^ Here also 
 
 of maintaining them permanently as water filter, tanks and mosquiti> 
 
 part of the plant, until used up or screens, held to be fixtures of hotel 
 
 until the land be appropriated, on building; Peck v. Batchelder, 40 Vt. 
 
 some unforseeu contingency, to a dif- 233 (blinds and storm windows, per- 
 
 ferent use. See Hubbell v. East sonalty because not fitted or at- 
 
 Cambridge Bank, 133 Mass. 447, hold- tached) ; Fish Co. v. Young, 127 Wis. 
 
 ing that loose machinery, not clearly 149 (window screens) ; Bamway v. 
 
 established to be a permanent part of Cobb, 99 Mass. 457 (Stoves, Eink in 
 
 the plant, were chattels. See, also, house). 
 
 Grain Iron Works v. Wilkes, 64 N. J. Water closets, bath tubs, wash 
 
 L. 193. basins, wash tubs, etc., are fixtures 
 
 2. See cases cited in note 3 under Smyth v. Sturges, 103 N. Y. 495 
 8 39. Hayford v. Wentworth, 97 Me. 347 
 
 3. See cases discussed in text; also Munroe v. Armstrong, 179 Mass. 
 Fratt V. Whittler, 58 Cal. 120 165. 
 
 (kitchen range with boiler, patent 
 
House I'ixtuees, Ga3 Fixtures, Furnaces, Etc. 61 
 
 the character of the annexation is of little moment. Even 
 ctioiigh easily removed and capable of use elsewhere, never- 
 theless they are fisitnres if essential to the completeness of 
 the dwelling to which they are attached. They were an- 
 nexed to remain, not to be taken away and used somewhere 
 else. For instance, where mirrors and hall-racks were placed 
 in houses in vacant spaces in the walls of hall and parlor 
 left to receive them, so that their removal would leave un- 
 finished places in the inner walls, the court held that they 
 were unquestionably annexed to remain as part of the 
 houses, and were therefore fixtures, in spite of the fact that 
 they could readily be removed since they were fastened 
 only with hooks and screws. They were hot, mere furniture, 
 but part of the houses.* In another case, where mirrors 
 were put in after the house was completed, being fastened 
 in much the same way by hooks and screws, and easily re- 
 movable, it was held that they were mere furniture, since 
 they formed no part of the building, as their removal would 
 leave the house as complete as before." 
 
 Gas pipes are uniformly held to be part of the realty 
 to which they are annexed, but chandeliers and gas fix- 
 tures screwed on such pipes for the purpose of using the 
 gas for lighting or heating purposes are treated as personal 
 property. The leading case in the United States on this 
 point is based on the analogy of lamps, candlesticks, etc., 
 used with oil or candles, which are, of couse, chattels. The 
 ■court held that gas fixtures were of the same nature, capable 
 of being removed and taken elsewhere, for use in any house 
 fitted with gas pipes, and therefore may be removed by a 
 vendor of a house, as part of his furniture." The rule in 
 this case has been followed generally, and has been extended 
 
 4. Ward T. Kilpatrick, 85 N. V. Co., 81 N. Y. 38. Cranston v. Beck, 
 413; Spinney v. Barbe, 43 111. App. 70 N. J. L. 145 (annexed firmly but 
 585 (mirrors firmly attached, would easily removed without damage. Not 
 injure walls seriously to remove essential to finish of the house). 
 them). 6. Vaughea v. Haldeman, 33 Pa. 
 
 5. McKeage v. Hanover Fire Ins. St. 522. 
 
62 
 
 Nattjee and Incidents of Ownbeship of Laud. 
 
 to include gas ranges in residences and apartment honsesJ 
 As a matter of fact, gas fixtures are treated by vendors and 
 pnrcliasers as part of the building to wMch tbey are an- 
 nexed, passing as personal property by delivery on the 
 transfer of the land.^ They are undoubtedly put in for 
 permanent use as part of the house to which they are at- 
 tached. The gas piping is of no value without them, and 
 the houses in which they are used are left unfinished if they 
 are taken away. These cases are to be explained as being 
 based on a mistaken analogy to lamps and candlebra, be- 
 fore the permanent nature of the use of gas in connection 
 with buildings was thoroughly understood. Hall carpets, 
 window shades, curtain poles and ash cans are held to be 
 personal property in all cases as a matter of law.^ Whether 
 
 7. Jarechi v. Philharmoniae Soc, 79 
 Pa. St. 403; McKeage v. Hanover 
 Fire Ins. Co., 81 N. Y. 38; Central 
 Union Gas Co. v. Browning, 210 N. 
 Y. 10 (gas ranges) ; Manning v. 
 Ogden, 70 Hun (N. Y.) 399; Cos- 
 grove V. Troescher, 62 App. Div. (N. 
 Y.) 123 (gas fixtures and ranges in 
 apartment house) ; Towne v. Fiske, 
 127 Mass. 125. In Capeliart v. Foster, 
 61 Minn. 132, the prevailing view is 
 followed, but reluctantly, the court 
 holding that it is purely arbitrary 
 and refusing to extend it to steam 
 radiators. 
 
 8. McKeage v. Hanover Fire Ins. 
 Co., 81 N. Y. 38. 
 
 In Fratt v. Whittier, 68 CaL 126, 
 after carefully considering the cases 
 holding gas fixtures to be chattels, the 
 court refused to follow them as being 
 out of accord with the well settled 
 principles governing fixtures, and 
 held that the gas fixtures of a hotel 
 passed with it as part thereof. In 
 Canning v. Owen, 22 R. I. 624, the 
 •ourt also refused to follow the gen- 
 
 eral rule, and held that the electric 
 light fixtures of a hotel were fixtures. 
 In Jackson v. Wiseman, 4 Mete 
 (Ky.) 357, and Smith v. Common- 
 wealth, 14 Bush 31, the same result 
 was reached. 
 
 In Keeler v. Keeler, 31 N. J. Eq. 
 181, a gas generator, pipes and burn- 
 ers, used to supply light for a mill, 
 were held to be real property, the 
 entire lighting plant being on the mill 
 premises. See also Frank v. Brigaldi, 
 4 Daly 359. Security Trust Co. v. 
 Temple Co., 67 N. J. Eq. 514, repudi- 
 ates the general rule also. In Hook 
 V. Bolton, 199 Mass. 244, the court 
 held that whether gas fixtures were 
 part of the realty or not should be 
 submitted to the jury as a question 
 of fact, depending on the intent of 
 the annexor. The court says that if 
 gas stoves or window shades are 
 proved to have been annexed to an 
 apartment house to go with it per- 
 nianeritly they would be fixtures. 
 
 9. Manning v. Ogden, 70 Hun (N. 
 
HoTTSE Fixtures, Gas Fixtures, Fuenaoes, Etc. 63 
 
 refrigerators, gas logs, drying frames on roof, coal ranges 
 and awnings are real property or not must depend on 
 whether they were annexed under circumstances establish- 
 ing an intent to make them a part of the building. If made 
 to order for the particular place used, and fitted in as a part 
 of the interior finish, or in a permanent way, in the case of 
 refrigerators, gas logs and coal ranges, or if fitted and 
 used with the particular windows in the case of awnings, 
 they are fixtures; but if they were of stock sizes, and kinds 
 merely placed in the house for use in connection with it 
 but not as part of it, they continue to be chattels.*" Fur- 
 naces and heaters, connected with pipes, the whole forming 
 a permanent heating plant in the house, are part of the 
 house, since they form an essential and permanent part of 
 its equipment, and are therefore annexed with the intention 
 of making them part of the house in a permanent way.' It 
 has been held, by analogy to gas fixtures, that steam radia- 
 tors, which may readily be unscrewed and removed, are 
 chattels,^ but this again is contrary to the general under- 
 
 y.) 399; Cosgrove v. Troeacher, 63 supply water to house were part of 
 
 App. Div. (N. Y.) 133. the land) ; West v. Farmers Ins. Co., 
 
 It is difficult to Bee why window 117 Iowa 147 (furnace and also boiler 
 
 shades, when made to order for the and pipes attached to kitchen range 
 
 windows of a house and attached for hot water) ; Ridgeway Stove Co. 
 
 thereto, should not be treated as r Way, 141 Mass. 557 (permanent 
 
 fixtures, just as awnings are under furnace) ; Gunderson v. Kennedy, 
 
 like conditions. ^Oi 111. App. 117; Young v. Hatch, 
 
 10. Cosgrove v. Troescher, 62 App. 99 Me. 465; Thielman v. Carr, 75 
 
 Div. (N. Y.) 123; Hook v. Bolton, 111. 385; Tuttle v. Robinson, 33 N. H. 
 
 199 Mass. 344. In Cunningham v. 104; Jermyn v. Hunter, 93 App. Div. 
 
 Seaboard Realty Co., 67 N. J. Eq. 210, (N. Y.) 175. 
 
 window screens made to order were In Towne v. Fiske, 137 Mass. 135, 
 
 held to be part of the realty. and Rahway Sav. Inst. v. Baptist 
 
 1. Erdman v. Moore, 58 N. J. L. Church, 36 N. J. Eq. 61, portable iron 
 
 445; Stockwell v. Campbell, 39 Conn, furnaces were held to be personalty. 
 
 363; Champ v. Thatcher Co., 75 So, also, a Baltimore heater was held 
 
 Conn. 165; Aldine Mfg. Co. v. Bar- to be a chattel in Harmony Bid. 
 
 nard, 84 Mich. 632; Kent v. Brown, Assn. v. Berger, 99 Pa. St. 330. 
 
 59 N. H. 236 (furnace and pipes for 2. Nat. B. of Catasangria v. North, 
 
 ( fating and also cistern and pipes to 160 Pa. St. 303. 
 
C4; Nature and Incidents of Ownership of Lanb. 
 
 standing and out of accord witli the principles governing 
 fixtures as those principles have been applied in other cases. 
 The best considered cases hold such radiators to be fix- 
 tures.^ 
 
 § 46. Annexation Under Contract of Conditional Sale or 
 Chattel Mortgage, — When the owner of real property af- 
 fixes a machine or other fixtures to his land or building, 
 having purchased it under a contract of conditional sale, 
 by the terms of which title to the fixture is to remain in the 
 vendor until paid for, or in a like case, where he gives back 
 a chattel mortgage on the fixture to secure the purchase 
 price, in either case title to the fixture remains in the ven- 
 dor until it is paid for. Therefore it is impossible to es- 
 cape the conclusion that the fixture does not become part of 
 the land. When the title to it is in someone other than the 
 owner of the land, it cannot, as a matter of law, be treated 
 as part of the land without arbitrarily disregarding the 
 legal rights of the vendor or holder of the chattel mort- 
 gage. This is the true reason why such fixtures remain 
 personal property.* We have already seen that even trees, 
 incorporated with the land more firmly than a fixture can 
 be, become personal property when transferred separately 
 by deed or writing sufficient to satisfy the statute of frauds 
 to one who is not owner of the land in which they grow, 
 he buying them for the purpose of removal, not with tlie 
 intention of acquiring a permanent interest in the land." 
 This is because it is impossible to treat them as part of the 
 land when they are owned apart from it as distinct things. 
 In any case where a fixture is annexed by a stranger with 
 
 3. Capehart v. Foster, 61 Minn, mateer v. Robinson, 60 N. J. L. 433; 
 133; Pond Co. v. O'Connor, 70 Minn. Gen. Elec. Co. v. Transit Equip. Co., 
 266; Kceler v. Keeler, 31 N. J, Eq. 57 N. J. Eq. 460; Paine v. MeDoweli, 
 181. 71 Vt. 2S. 
 
 4. Hertzog v. Marx, 203 N. Y. 1 ; 6. See § 11, ante, and cases cited in 
 Mott V. Palmer, 1 N. Y. 664; note 9 tliereunder. 
 
 VTicIs-es V. Hill. 115 Mich. 333; Pal- 
 
Annexation Undee Contract ob Conditional Sale. 65 
 
 the license and consent of the owner, the stranger retain- 
 ing title therein, it does not become part of the land be- 
 cause of snch severence of the title. For instance, where s» 
 fence was built on a farm by a person having no interest 
 in the farm under an agreement that the fence was to re- 
 main his, it was held that the fence did not pass with the 
 land to a subsequent purchaser of the farm without notice 
 of such agreement.* The reason generally given for the 
 rule that fixtures attached under contract of conditional 
 sale or chattel mortgage remain chattels is that the con- 
 tract or chattel mortgage establishes the intent of the 
 owner to annex them as chattels for the time being, but 
 this is ■ a very unsatisfactory reason, as in the majority 
 of cases the fixture is annexed by the owner with the in- 
 tention of making it a permanent part of the freehold. As 
 we have seen, the intent that governs is the intent to be 
 reasonably inferred from the facts and circumstances sur- 
 rounding the annexation, including statements made at the 
 time by the owner, tending to throw light upon the perman- 
 ency of annexation. It does not depend at all upon his 
 secret unexpressed intent, or upon intent expressed by 
 words or writing which is clearly contrary to the intent 
 to be inferred from the character of the annexation and 
 the adaptability of the fixture for use in connection with 
 the permanent use to which the land is appropriated.'^ 
 Suppose in any of the cases in the reports involving this 
 ■question, that instead of a chattel mortgage or contract 
 of conditional sale there were letters or other positive evi- 
 dence of the owner's expressed intent at the time of annexa- 
 tion tJiat fixtures of a permanent character should remain 
 personal property. There isn't a doubt that they would be 
 real property, nevertheless, and would be treated as sucli 
 
 G. Mott V. Palmer, 1 N. Y. 564. subsequent purchaser of the land 
 
 Bee Rowland v. Anderson, 33 Kan. without notice. 
 
 364, holding that title of owner of 7. See § 43, ante, and cases oited 
 
 ■fence could not be set up against a thereunder. 
 
 5 
 
66 Natueb and Incidents of Owneeship op Land. 
 
 for all purposes. It is not the intent expressed by the con- 
 tract or chattel mortgage which makes such fixtures per- 
 sonalty, but it is the title and ownership of the vendor 
 which prevents them from becoming part of the land. Cases 
 on this question fall into two classes which will be separ- 
 ately considered. 
 
 § 47. Between Vendor Under Contract of Conditional 
 Sale or Chattel Mortgage and Prior Mortgagee of Realty. — 
 
 It is well settled in nearly all jurisdictions that the chat- 
 tel mortgage or contract of conditional sale is valid and 
 enforceable against the fixture as a chattel as against a 
 prior real estate mortgagee. The fixture does not be- 
 come part of the land, in fact or law, since title to it is 
 not in the owner of the land. He has only a right to re- 
 deem it from the chattel mortgage or' contract of condi- 
 tional sale. It therefore never comes under the lien of 
 the real estate mortgage. The real estate mortgagee can 
 claim no equity arising out of estoppel, since the fixture was 
 not annexed when he accepted the land as security, and he 
 was not misled in any way.* The cases which hold to the 
 contrary seem to be out of accord with the fundamental 
 principles of ownership. They are based on the theory that 
 annexation sufficient to make a thing part of the land in 
 the absence of such contract or chattel mortgage nec- 
 essarily makes it part of the land in any event.® If these 
 
 8. Tifft V. Horton, 53 N. Y. 377 
 Binkley v. Forkner, 117 Ind. 176 
 H'orn V. Ind. Nat. B., 125 Ind. 381 
 Crippen v. Morrison, 13 Mich. 23 
 
 (Src. Co. V. Bank, 57 Neb. 333; Daven- 
 port V. Shants, 43 Vt. 546; Paine ▼ 
 McDowell, 71 Vt. 28. 
 
 CajiigbelLv^^o<idjr,_44_JL J. Eq. 
 
 Wickes V. Hill, 115 Mich. 333; Coch- 244, holds that a chattel mortgage 
 ran v. Flint, 57 N. H. 514; Gen. Elee creates only a lien in the mortgagee- 
 Co. V. Transit Equip. Co., 57 N. J. Eq. that the fixtures become part of the 
 460; Campbell v. Roddy, 44 N. J. Eq. realty, but the lien of the chattel 
 844; Ellison v. Salem Coal, &c. Co., mortgage will be protected so far aa 
 43 111. App. 120; Sword v. Low, 122 it does not diminish the security of 
 111. 487; Northwestern Life Ins. Go. the real estate mortgagee. 
 V. George, 77 Minn. 319; Edwards, 9. Thompson v. Vinton, 121 Mass. 
 
Between Vendoe Undee Conteaot of Conditional Salb. 67 
 
 cases are sound then it is impossible to have separate own- 
 ership, apart from the land, of trees, buildings or fixtures 
 of any kind; mere annexation must result in loss of own- 
 ership. Aside from these cases it is well settled in these 
 same states that there may be such separate ownership 
 of trees and fixtures." Even though the real estate 
 mortgagee be regarded as the owner of the land, posses- 
 sion by the mortgagor should be held to be subject to the 
 usual incidents of such possession, including the right to 
 annex fixtures the title to which is in strangers and which 
 are subject to removal. These decisions result in the arbi- 
 trary divesting of the title and interest of the vendor or 
 chattel mortgagee without any semblance of reason or prin- 
 ciple therefor either legal or equitable. 
 
 139; Clary t. Owen, 15 Gray (Mass.) 
 522; Hawkins v. Hersey, 85 Me. 394; 
 Ekstrom v. Hall, 90 Me. 186. 
 
 In Clary v. Owen, supra, the court 
 Bays: "And we think it is not in the 
 power of the mortgagor, by any 
 agreement made with a third person 
 after the execution of the mortgage, 
 to give to such person the right to 
 hold anything to be attached to tho 
 freehold, which as between mort- 
 gagor and mortgagee would become a 
 part of the realty. The entry of the 
 mortgagee would entitle him to the 
 full enjoyment of the premises with 
 all the additions and improvements," 
 etc. 
 
 It is submitted that this places 
 annexations made by a mortgagor in 
 possession in the same class with 
 those made by a trespasser. If title 
 to the fixtures was in the mortgagor, 
 it would, of course, become part of 
 the realty, but since title is in the 
 vendor of the fixture, it cannot be- 
 come part of the land except by 
 
 estoppel, and there is no basis what- 
 ever for an estoppel. 
 
 When the prior mortgagee consents 
 to the annexation knowing the facts, 
 the chattel mortgage or conditional 
 contract will be valid against him, 
 Barthelemew v. Hamilton, 105 Mass. 
 239, and Hawkins v. Hersey, supra. 
 
 10. This is expressly admitted in 
 Clary v. Owen, supra, when the court 
 suggests that a person erecting a, 
 building on the land of the mort- 
 gagor, retaining title thereto, might 
 maintain a bill to redeem. So, also, 
 in Wentworth v. Machine Co., 163 
 Mass. 88, and Ridgeway Stove Co. v. 
 Way, 141 Mass. 557, which eases 
 stand for the rule that a contract of 
 conditional sale is good as against a 
 subsequent purchaser or mortgagee 
 with notice, though void as to such 
 mortgagee or purchaser without 
 notice, the title of the vendor in the 
 fixture is expressly recognized. See 
 also Maine and Mass. cases cited 
 under § 50, annexations made by 
 licensee. 
 
68 I^Tatuee and Incidents of Ow^'eesiiip of Land. 
 
 § 48. Same — As to Subsequent Purchasers and Mort- 
 gagees. — It is uniformly held that such chattel mortgage 
 or contract of conditional sale is good as against subsequent 
 mortgagees or purchasers of the land with notice. The fix- 
 tures are not part of the land sold or mortgaged and the pur- 
 chaser or mortgagee knows it.^ Strangely enough, this doc- 
 trine is accepted even in those jurisdictions holding that 
 such contracts and chattel mortgages are void as to prior 
 mortgagees, though there seems to be no reason why a prior 
 mortgagee should be in a better position than a subsequent 
 mortgagee with notice.^ Where the subsequent purchaser 
 or mortgagee parts with value and has no notice of the chat- 
 tel mortgage or contract of conditional sale, it is held in 
 some states that his position is no better, since he does not 
 get title to the fixture in question, title being in the vendor 
 under the contract or chattel mortgage, and therefore the 
 doctrine that in the case of a purchaser for value without 
 notice equity will not disturb the legal title which he has 
 acquired, does not apply .^ In the majority of states, however, 
 the better rule prevails, that he who has voluntarily per- 
 mitted his property to be affixed to the land of another, 
 so that it becomes ostensibly a part thereof, will be estop- 
 ped from denying that it is part of the land as against a 
 purchaser for value of the land without notice of the rights 
 of such third person; he will not be permitted to establish 
 
 1. Davis V. Bliss, 187 N. Y. 77; Lewis, 27 Pa. St. 291; Eaves y. 
 
 Ford V. Cobb, 20 N. Y. 344; Binkley Estes, 10 Kan. 314. 
 V. Forkner, 117 Ind. 182; Sword v. 3. Wentworth v. Machine Co., 163 
 
 Low, 133 111. 487; Burrill v. Wilcox "^^^s. 28; Ridgway Stove Co. v. Way, 
 
 L. Co., 65 Mich. 371; Lansing Iron ^*^ ^^^s^- 557. 
 
 W. Co. V. Wilbur, 111 Mich. 413; ^- ^•'■°** ''• Pa-lmer, 1 N. Y. 564; 
 
 Case Mfg. Co. v. Garven, 45 Ohio St. "^''"''^ ^- ^°^^' ^° ^- Y- 344; Warren 
 
 389; Thompson v. Smith, 111 Iowa ''' ^"^'^''"' "" ^^^- ^^^' ^^^"^^ ^o. 
 
 718; Adams Co. v. Interstate Bid. ^ ^''^'''^^-^^ ^Id Assn., 119 Ala. 97; 
 
 Assn.. 119 Ala. 97; Coleman v. L ^K J. SJ'Ts/*"' ''°"''' 
 
As TO Subsequent Puechasees and Moetgagees. 69' 
 
 his title to the fixture against one who bought the land 
 in good faith believing and having a right to believe that 
 the fixture was included in the purchase.* It is manifest 
 that fair dealing and the proper operation of the record- 
 ing acts reqiiire such a rule. Generally the filing of a chat- 
 tel mortgage or contract of conditional sale is not notice 
 to such subsequent purchasers or mortgagees.^ In New 
 York, however, contracts of conditional sale of fixtures must 
 be filed and indexed against the land to which they are to be 
 attached,® and in New York City the same rule applies to 
 chattel mortgages ^ and they are void as to subsequent pur- 
 chasers or mortgagees for value of the real property af- 
 fected if not so filed, provided they have no actual notice 
 thereof. A search of the title of the land will, therefore, 
 disclose their existence. This seems to be the best solu- 
 tion of the difficulty, the rights both of the vendors of the 
 fixtures and of subsequent purchasers or encumbrancers of 
 the realty being fully protected. 
 
 In New York and those states holding that such con- 
 tracts and chattel mortgages are good even against subse- 
 quent purchasers or encumbrancers for value and without 
 notice, the chattel mortgage or contract must be kept good 
 by being filed and re-filed as required by statute. If it is 
 not, then by the terms of the statute it is void as to a sub- 
 
 4. Binkley v. Forkner, 117 Ind. St. 446; Case Mfg. Co. v. Garven, 45 
 
 176; Wickes v. Plill, 115 Mich. 333-. Ohio St. 289; Tibbetts v. Home, 65 
 
 Watson V. Alberts, 120 Mich. 508; N. H. 243. 
 
 Case Mfg. Co. v. Garven, 45 Ohio St. In some states the filing ol a ohat- 
 
 289; Fifield v. Farmers Nat. B., 148 tel mortgage or contract of condi- 
 
 111. 163; Thompson v. Smith, 111 tional sale is notice under above rule, 
 
 Iowa 718; Pierce v. George, 108 and subsequent purchasers -vrill take 
 
 Mass. 78; Southbridge Sav. Bank v. subject thereto, irrespective of actual 
 
 Exeter Works, 137 Mass. 543; Ridge- notice. Sword v. Low, 123 111. 487; 
 
 way Stone Co. v. Way, 141 Mass. 557; Burrill v. Wilcox L. Co., 65 Mich. 
 
 McCrillis v. Cole, 25 E. I. 156; 571; Sowden v. Craig, 26 Iowa 156. 
 
 Davenport v. Shants, 43 Vt. 546; 6. N. Y. Lien Law, § 112, as ara'd 
 
 Landon v. Piatt, 34 Conn. 517; by Laws of 1904, Ch. 698. 
 
 Eobeke v. Baer, 115 Mich. 333. 7. N. Y. Lien Law, § 93, as amend- 
 
 8. Brennan v. Whitaker, 15 Ohio ed by Laws of 1903, Ch. 64. 
 
70 Nature and Incidents of Ownership of Laijd. 
 
 sequent purcliaser or encumbrancer of the fixture for value 
 and without notice. A subsequent purchaser or encum- 
 brancer of the land or building comes clearly within this 
 provision, since he has a right to believe that he is buying 
 the fixtures with the land. Therefore if such contract or 
 chattel mortgage is not filed and re-filed it will be void 
 as to such subsequent purchaser or mortgagee of the land 
 who will become entitled to the fixture as though the con- 
 tract or chattel mortgage did not exist.^ 
 
 § 49. Same — Chattels not Annexed as Fixtures, and Chat- 
 tels Annexed So as to Lose Their Identity. — The foregoing 
 rules have no application to chattel mortgages on furni- 
 ture or tools or articles of any nature which do not be- 
 come fixtures since they are not attached so as to become 
 ostensibly a part of the land. To become fixtures they must 
 be so annexed that in the absence of the chattel mortgage 
 or contract of conditional sale they would become part of 
 the realty.' 
 
 If the chattel is so attached to the land as to lose its 
 separate identity and to become merged with the land as 
 an essential part of it, a chattel mortgage or contract of 
 conditional sale affecting it is void. It has ceased to exist 
 as a separate thing and therefore is not a fixture but nec- 
 essarily part of the land as a matter of fact. Soil taken 
 from land and used to grade another parcel, or stone or 
 building material used in erecting buildings of a perman- 
 ent nature on the land, are illustrations. This also applies 
 to machines and other chattels so annexed and used that 
 their removal would work serious injury to the premises 
 or would destroy or greatly diminish the value of the chat- 
 tel. When so annexed chattels may be fairly said to have 
 
 8. Kirk v. Crystal, 118 App Div. 9. Caae Mfg. Co. v. Garven, 45 
 
 (N. Y.) 33; McMillan V. Leliman, 101 Oliio St. 2S8, and cases cited in pre- 
 
 .App. Div. 436; N. Y. Inves. Co. v. ceding notes. 
 (Josgrove, 47 App. Div. S."!. 
 
Annexation Made by Teespasser oe Licensee. 71 
 
 lost their identity, and a chattel mortgage or contract of 
 conditional sale covering them is void.^" 
 
 § 50. Annexation Made by Trespasser or Licensee. — 
 Buildings or fixtures of any kind annexed by a trespasser 
 become part of the land if they would have done so had 
 the owner annexed them. The trespasser, therefore, loses 
 all right to them and cannot take them away as his personal 
 property, since they are treated as though annexed by the 
 owner.* If a building or other fixture be annexed by a 
 stranger with the consent of the owner, the stranger be- 
 ing given the right to take it away, expressly or by implica- 
 tion, it remains his personal property and may be removed 
 by him, subject to the same general rules governing subse- 
 quent purchasers and mortgagees which apply in the cases 
 of chattel mortgages and contracts of conditional sale, 
 and the right of removal will be implied from the license 
 in the absence of facts showing a contrary intent.* 
 Of course, where such licensee is not given the right to 
 remove the fixture, but is to leave it on the land, it be- 
 comes the property of the owner of the land, exactly as 
 
 10. Ford V. Cobb, 20 N. Y. 344 
 Vorhees v. McGinnia, 48 N. Y. 278 
 Warren v. Liddell, 110 Ala. 232 
 Binkley v. Forkner, 117 Ind. 176 
 Campbell v. Roddy, 44 N. J. Eq. 244 
 
 E. Co., 39 Minn. 479; Bank v. Stan- 
 ton, 55 Minn. 811; Rowland v. 
 Anderson, 33 Kan. 264; Walker T. 
 Grand Rapids F. Mill Co., 70 Wis. 
 92; Fischer v. Johnson, 106 Iowa 
 
 Hendy v. Dinkerhoff, 57 Cal. 3 ; Swor^ 181 ; Wilgus v. Gettings, 21 Iowa, 
 
 V. Low, 122 IlL 487, 500; Eaves v. 177; Wells v. Banister, 4 Mass. 514: 
 
 Fstes, 10 Kan. 314; Walker v. Grand Aldrich v. Parsons, 6 N. H. 555. 
 Rapids F. Mill Co., 70 Wis. 92, 97; That licensee has a reasonable time 
 
 Porter v. Pittsburgh B. Co., 122 U. 8. to remove fixture at expiration of 
 
 267. license was held in Ingalla v. R. R. 
 
 1. See cases cited in following Co., 39 Minn. 479; Barnes v. Barnes, 
 notes. 6 Vt. 388; Northern, &c. R. Co. v. 
 
 2. Mott ▼. Palmer, IN. Y. 564; Canton Co., 30 Md. 347; and in 
 Fenlason v. Rachliff, 50 Me. 362; Russell v. Richards. 11 Me. 371, leav- 
 Pullen V. Bell, 40 Me. 314; Priestly iug fixtures 3 years, there being no 
 V Johnson, 67 Mo. 632; Coleman v. objection, did not result in loss of 
 Lewis, 27 Pa. St. 291; Ingalls v. R. removal. 
 
72 Natuee and Incidents of Owneeship of Land. 
 
 in tlie case of annexation by a trespasser. Wliere, for 
 instance, a contractor for tlie building or alteration of a 
 bouse put in a furnace under a contract of conditional 
 sale witli the vendor thereof, the owner knowing nothing 
 of such contract, he had no right to remove it himself, and 
 therefore the vendor had no right to take it under Ms con- 
 tract of conditional sale, since he had sold it to the con- 
 tractor, and the owner had not consented to the contract.* 
 So when a vendee in possession under a contract of pur- 
 chase annexes fixtures to the land, he has no right to take 
 them away if the sale of the land falls through. He is 
 treated as a licensee who has annexed fixtures without 
 having either express or implied permission to remove 
 them.^ However, if he annexes them under a contract of 
 conditional sale, the vendee under such contract is en- 
 titled in such case to enforce the contract against the owner 
 who has resumed possession to the extent of the balance 
 due.' 
 
 § 51. Questions Arising Between Vendor and Vendee, 
 Mortgagor and Mortgagee, Heir and Personal Representa- 
 tive, Etc. — Though a good deal has been made of classifica- 
 tions of this description, it is submitted that such classi- 
 fication of fixtures is entirely unnecessary. Whether the 
 question arises between vendor and vendee, mortgagor 
 
 4. Jermyn v. Hunter, 93 App. Div. cJiattel mortgage or not, provided the 
 (N. Y.) 175. vendor has let him take possession. 
 
 5. McFadden v. Alien, 134 N. Y. 6. Davis v. Bliss, 1S7 N. Y. 77; 
 489; Andrews v. Powers, 66 App. Div. Palmatteer v. Robinson, 60 N. J. L. 
 (N. Y.) 216; Chandler v. Hamil, 57 ^^^' ^^"'^3' '• ^inkerhoff, 57 Cal. 3. 
 App. Div. (N. Y.) 305; Contra, Pul- " '^ '''^'''" *''** ^''^^^ "^^^^^ a'^^ i"" 
 len V. Bell, 40 Me. 314. consistent with the cases cited in the 
 
 c- , u • • preceding note. The lien of the vendor 
 
 Since such purchaser m possession „= 4., - , , . i, . , 
 
 , 4 J. I •„ -i . /^ ,^ , °^ ^^^ fixture depends on the right of 
 
 ie a tenant at will, it is difficult to ^^e vendee in possession. If the 
 
 Bee why he ,3 not permitted to re- fixture has merged with the land, it 
 
 move such fixtures within a reason- is hard to see how the lien thereon 
 
 aljle time, whether annexed under a could continue. 
 
Annexation by Tenant foe Life oe foe Yeaes. 73 
 
 and mortgagee, heir and personal representative, tlie ques- 
 tion is tlie same. Did the owner of the fee make the an- 
 nexation in a way and under circumstances showing an in- 
 tention to annex the thing permanently to the land? '' So 
 where the question arises between the personal representa- 
 tive of a deceased life tenant and a remainderman, or be- 
 tween tenant for years and landlord, the question is, did 
 the tenant for life or for years annex the thing with intent 
 of permanently improving the property? In answering 
 either question the nature of the interest of the person mak- 
 ing the annexation must be considered. Therefore, the 
 better classification, and the only one necessary in this 
 connection is the one adopted, viz.: (a) fixtures annexed 
 by the owner in fee and (b) fixtures annexed by tenants 
 for life or for years. 
 
 § 52. Annexation by Tenant for Life or for Years; Fix- 
 tures Removable and not Removable. — The one point of 
 difference distinguishing cases under this topic from the 
 cases considered heretofore is that in the case now to be 
 discussed the fixture is annexed by one whose interest in 
 the land is not absolute or unlimited, but is limited either 
 to his life or to a term of years. We have no occasion to 
 consider here mere chattels, furniture, utensi''s or tools, 
 
 7. N. Y. Code Civ. Pro. § 2713, as are mentioned in Subd. 4. This 
 
 Subd. 4, provides that "things an- has been interpreted as meaning that 
 
 nexed to the freehold, or to any those things annexed to the land or 
 
 building, for the purpose of trade or building so as to become part of it 
 
 manufacture and not fixed into the under common law principles are real 
 
 wall of a house so as to be essential property and go to the heir, while 
 
 to its support" shall be assets and chattels not so annexed remain per- 
 
 shall go to the personal representa- sonalty and go to the personal repre- 
 
 tives of the deceased to be distributed sentative. House v. House, 10 Paige 
 
 as part of his personal estate. Subd. (N. Y.) 158; Murdock v. Gifford, 18 
 
 9 provides that "things annexed to N. Y. 28 ; Ford v. Cobb, 20 N. Y. 344. 
 
 the freehold, or to a building, shall It is apparent, therefore, that thia 
 
 not go to the executor" but shall de- statute as construed has made no sub- 
 
 snend to the heir, except such fixtures stantial change in the law. 
 
%4: Nature and Incidents of Ownership of Land. 
 
 which do not become fixtures in either case,* but only those 
 annexations which would become part of the land if an- 
 nexed by the owner in fee. As we have seen, such an- 
 nexations may properly be, and are as a matter of fact, 
 called fixtures, whether or not they become part of the 
 land.^ In determining whether or not they become real 
 property we are guided by the same test employed in the 
 case of annexation by the owner of the fee, viz. : the intent of 
 the annexor as determined from the facts and circum- 
 stances under which the annexation is made; only we must 
 take into consideration the new fact of the annexor 's limited 
 interest in the land in determining what the intent of the 
 average man would be in his position. It would be con- 
 trary to human e:^perience to hold that a tenant for a short 
 term or a tenant for life, intended to permanently im- 
 prove the property for the benefit of the landlord or re- 
 mainderman. Therefore, in annexations of every descrip- 
 tion made by such tenants, whether of fixtures used for 
 the purpose of trade, of agriculture or of domestic con- 
 venience, the rule is that they rema:in the personal prop- 
 erty of the tenant and may be removed by him at or be- 
 fore the expiration of his term; they do not become part 
 of the land because they were not attached with that in- 
 tent.^ Where, however, their character and the character 
 of their annexation is such that they lose their identity as 
 distinct things, or cannot be removed without seriously 
 damaging the freehold, or without rendering the fixtures 
 themselves of little or no value, then they become per- 
 
 1. Articles which would be personal v. Sperry, 9 N. Y. St. Rep. 343 (hold- 
 property though brought on the ing that chairs screwed to the floor in 
 premises by the owner in fee, remain a theatre were not fixtures, but mere 
 the property of the tenant before and chattels) 
 
 after the expiration of the lease. They 
 are not fixtures, and are not identified 
 
 2. See § 37, ante. 
 
 with the land for any purpose. See '; ^^^ especially cases in note 8 fol- 
 
 Gutherie v. Jones, 108 Mass. 191; lo^'ing and cases in note immediately 
 
 Kimball v. Grand Lodge, &c., 131 following. 
 Mass. 59; Metropolitan Concert Co. 
 
Kemovable Fixtukes. 75 
 
 manently identified with the land as part of it. In such 
 cases the only intent reasonably to be attributed to the ten- 
 ant as a reasonable man is that he intended to annex such 
 fixtures as permanent additions to the realty.* 
 
 § 53. Removable Fixtures — Are they Real or Personal 
 Property? — If we apply the same principles which have 
 controlled the courts in like cases, the necessary conclusion 
 is that removable fixtures annexed by a tenant for years or 
 for life are the personal property of such tenant. All the 
 cases admit that during the term such fixtures are the prop- 
 erty of the tenant. He may remove, sell, destroy them, or 
 do with them what he will during his term. Until left on 
 the premises by the tenant after the expiration of his lease 
 the landlord or remainderman has no interest in them what- 
 ever. In the case of a building or other fixture annexed 
 by a licensee, the title thereto to remain in him, it remains 
 personal property because of the separation of the owner- 
 ship of the fixture from the ownership of the land.° For the 
 same reason, fixtures annexed under chattel mortgages or 
 contracts of conditional sale remain personal property.* 
 So also in the case of trees transferred by deed or written 
 contract for future removal, they become personalty, though 
 not removed, because of the severance of title and owner- 
 ship.''' Therefore, in the case of fixtures removable by a ten- 
 ch. 474; Callamorev. Gillis, 149 Mass. n permanent annexation, and the fact 
 £78; Talbot v. Whipple, 14 Allen is shown by his agreement with his 
 (Mass.) 177; Pond, &c.. Co. v. O'Con- landlord, a l)iiilding erected by liim is 
 n&r, 70 Minn. 366; O'Briea v. Kuster- not removable. Flctclier v. Kelly, 88 
 er, 37 Mich. 389; Carver v. Gough, Iowa 475; Tunis L. Co. v. Dennis L. 
 153 Pa. St. 325; Bernheimer v. Co., 97 Va. 682. 
 
 Adams, 70 App. Div. 114; Ashby v. See also § 55 post, and cases thei-e- 
 
 Ashby, 59 N. J. Eq. 536; Marks v. under in note 4 as to removability of 
 Ryan, 63 Cal. 107; State v. Elliott, structures of brick and stone. 
 11 N. H. 540. 5. See § 50, ante, and cases cited. 
 
 Where the tenant's intention, de- 6. See § 46, ante, and cases cited. 
 
 duced from all the facts, is to make 7. See § 11, note 9, ante, and cases 
 
 4. Whiteliead v. Bennett, 37 L. J. cited. 
 
76 
 
 Natuee and Incidents of Owneeship of Land. 
 
 ant for years or for life, his separate, distinct ownership 
 of them, apart from the title to the land, necessarily makes 
 them personal property. The weight of authority is that 
 such fixtures are personalty.* It has been said, in a num- 
 ber of cases in several jurisdictions, that they are, for the 
 time being, part of the realty, remaining permanently part 
 of the land unless removed by the tenant; that they are 
 therefore real property subject to the tenant's right of re- 
 moval.^ From the standpoint of these cases the tenant's 
 right of removal is regarded as a special right enjoyed by 
 tenants, based on public policy rather than on any con- 
 trolling principle of ownership. It is admitted, however, 
 in these very cases, that such fixtures are the tenant's prop- 
 
 8. Globe Marble Mills Co. v. Quinn, 
 76 N. Y. 23 ; Moore v. Wood, 13 Abb. 
 Pr. (N.Y.) 393; Conde v. Lee, 55 App. 
 Div. (N.Y.) 114; Heffner V. Lewis, 73 
 Pa. St. 303; Watts v. Lehman, 107 
 Pa. St. 106; Kile v. Giebner, 114 Pa. 
 St. 381; Bartlett v. Haviland, 93 
 Mich. 553; Belvin v. Raleigh Paper 
 Co., 133 N. Car. 133; Beloit, &R., 
 Bank v. Merrill Co., 69 Wis. 501; 
 Morey v. Hoyt, 63 Conn. 553; Gordon 
 V. Miller, 38 Ind. A,pp. 613. 
 
 These cases hold that such -fixtures 
 remain the tenant's personal property 
 because not annexed with the inten- 
 tion of making them a permanent 
 part of the freehold for the benefit of 
 the landlord, but for the temporary 
 use and convenience of the tenant 
 during the term. That the separation 
 of the title to the fixtures from title 
 to the land makes personalty is dealt 
 with particularly in Bartlett v. Havi- 
 land, 93 Mich. 553, supra. 
 
 9. Holland v. Hodgson, L. E. 7 
 P., 338, 336; Freeman v. Dawson, 110 
 U. S. 364, 370; Stockwell v. Marks, 
 17 Me. 455; Brown v. Wallis, 115 
 
 Mass. 156, and Eaddin v. Arnold, 116 
 Mass. 270 (holding that trade fix- 
 tures, though removable, are real 
 property, so that replevin in trover 
 cannot be maintained against the 
 landlord based upon his wrongfully 
 preventing the tenant from removing 
 them) ; Preston v. Briggs, 16 Vt. 134. 
 (In this case the statements by the 
 court are dicta, since the tenant had 
 left the fixtures on the premises after 
 the end of his term, and they had 
 therefore become real property in any 
 event) ; Donnelly v. Thieben, 9 111. 
 App. 495 (statements to same effect 
 dicta for a like reason, the tenant 
 having left fixtures on the land after 
 the end of his term) ; Carlin v. Rit- 
 ter, 68 Md. 478 (this and preceding 
 case place reason for the rule that 
 tenant loses his right of removal on 
 leaving the fixtures on premises at 
 the end of his term, or on making a 
 new lease, on fact that the fixtures 
 are part of the land, subject merely 
 to the right of removal during the 
 term). 
 
Tbade Fistuees, Ageictjltukal Fixtuees, Etc. 77 
 
 erty, and that would seem to be an all-sufficient reason for 
 his right to remove them, entirely consistent with the 
 rights of licensees and others owning fixtures annexed to 
 land of which they are not owners. It cannot be claimed 
 that the tenant's interest in the land should make any dif- 
 ference. His ownership of the fixture is as absolute as that 
 of the licensee above referred to, and is entirely distinct 
 from his ownership of the land, which is limited to his in- 
 terest for a term of years or for life. Furthermore, there 
 seems to be no good reason for holding that the modern 
 test of intent should be abandoned in these cases. It is 
 much better that the test should be uniform in all cases. 
 In annexing removable fixtures, it is clear that a tenant 
 does not intend to make them part of the land, applying 
 the test of " reasonably presumed intent " to be gathered 
 from all the circumstances, including the fact of the ten- 
 ancy. It is hard to understand how such fixtures can be 
 held to have become part of the land in the absence of such 
 intent. On principle, therefore, there is nothing to be said 
 in favor of the position that such fixtures are real property 
 during the term. 
 
 § 54. Trade Fixtures, Agricultural Fixtures, and Fix- 
 tures for Domestic Conveniences. — Originally annexations 
 made by a tenant for years were treated as though made by 
 the landlord, because the tenant was treated as the land- 
 lord's bailiff, having no interest in the land beyond the 
 mere contractual right to occupy and work it." When the 
 tenant's interest came to be recognized as an estate in 
 the land, which the law would protect even against the 
 landlord, the rule had already been established that tenants 
 could not remove fixtures, annexed by them, without com- 
 mitting waste.^ The first modification of this rule was in 
 favor of trade fixtures, that annexations made for the pur- 
 
 10. Co. Litt. 53a. See § 23, ante. lakenden's Case, 4 Co. 64; Cook v, 
 I. Year Book, 17 E. 3, p. 518; Her- Humphrey, Moore 117. 
 
^8 ITatuee and Incidents of Owneeship of Land. 
 
 pose of mamifacttire and trade by a tenant for his own ad- 
 vantage might be removed by tlie tenant during his term.^ 
 This was subsequently extended to include fixtures an- 
 nexed to dwellings for domestic convenience and ornament.^ 
 In England it has been held that agricultural fixtures are 
 not removable, but this seems to have been limited to build- 
 ings of a permanent nature erected upon a farm.* 
 
 This development of the common law with reference to 
 tenant's fixtures is in entire accord with the development 
 of the rule governing fixtures generally. Until comparatively 
 recent times the one test of a fixture was annexation, and we 
 have seen how the modern law has grown away from this, 
 or rather has evolved a test by which permanency of an- 
 nexation may be determined, viz.: the test of intent as de- 
 duced from circumstances under which the annexation is 
 made.^ It was natural that the court should treat the ten- 
 ant's right to remove fixtures as in the nature of an excep- 
 tion to the general rule, which justice and public policy re- 
 quired. The modern rule is, however, that fixtures annexed 
 by a tenant do not become part of the land unless tenants 
 can be held, under all the circumstances of the case, to have 
 intended to affix them pernaanently and not for the tempor- 
 ary use of the tenant during the term. In other words, 
 we have here only an application of the general rule gov- 
 erning all cases of fixtures. This is now recognized as the 
 reason why trade fixtures and fixtures of domestic con- 
 venience are removable by such tenants. Trade fixtures and 
 fixtures of domestic convenience or ornament include, un- 
 der the cases, all kinds of annexations made by tenants to 
 lands or buildings, such as boilers, and engines, machinery 
 
 2. Year Book, 30 H. 7, 13a and b; S East 38 (in which there is a review 
 Poole's Case, Salk. 368 ; Elwes v. of the development of the law on this 
 MopW, 3 East 38. point) . 
 
 3. Beck V. Rebow, 1 P. Wms. 94; 4. Elwes v. Maw, 3 East 38. 
 Ex parte Quincey, 1 Atk. 477; Law ton 5. See §§ 38, 42-44. 
 
 T, Lawton, 3 Atk. 13; Elwes v. Maw, 
 
Trade Fixtuees, Agbicultueal Fixtures, Eto. 12 
 
 of all kinds of a permanent character and fixtures of every 
 kind used in mills and factories;* partitions, plate glass 
 windows, counters, bars, plumbing fixtures of every kind 
 used in stores or offices,^ mantels, wainscoting, plumbing 
 fixtures and fixtures of all kinds used by tenants in con- 
 nection with houses and dwellings.^ Whether agricultural 
 or miscellaneous fixtures, not falling naturally within the 
 above groups, are removable by such tenants or not must 
 be determined by applying the same test of intent, and un- 
 der the modern cases this is the rule.' It would seem, there- 
 fore, that any reason for distinguishing between trade and 
 domestic fixtures on the one hand, and agricultural and 
 other fixtures on the other, no longer exists. A.ny fixture 
 annexed by a tenant may be removed by him if it does not 
 become part of the land, but remains his personal prop- 
 erty, applying the test of intent in determining its charac- 
 ter. As was stated in a preceding section (§52) such fix- 
 tures will be held to be the property of the tenant and re- 
 movable by him when they may be removed without serious 
 injury to the land and without destruction or dispropor- 
 tionate impairment in value of the fixtures. 
 
 6. Globe Marble Mills Co. v. Quinn, Div. 114; Hayford v. Wentworth, 97 
 76 N. Y. 23; Conde v. Lee, 55 App. Me. 347; Guthrie v. Jones, 108 Mass. 
 Div. (N. Y.) 401; Merritt v. Judd, 191; Dostal v. MeCaddon, 35 Iowa 
 14 Cal. 59; Moon v. Smith, 24 111. 318; Wall v, Hinds, 70 Mass. 256; 
 512; Baker v. McClurg, 198 111. 28; Bcrger v. Hoerner, 36 111. App. 360; 
 Dostal V. MeCaddon, 35 Iowa 318; Fletcher v. McMillan, 103 Mich. 494. 
 Holbrook v. Chamberlain, 116 Mass. 8. Livingston r. Sulzer, 19 Hun 
 155; Conrad v. Saginaw Mining Co., 375; Cranston T. Beck, 70 N. J. L. 
 54 Mich. 249; Eartlett v. Haviland, 145; Guthrie v. Jones, 108 Mass. 191; 
 92 Mich. 552 ; Gordon r. Miller, 28 Seeger v. Pettit, 77 Pa. St. 437 ; Ray- 
 Ind. App. 612; Tliompson Scenic E. mond v. Strickland, 124 Ga. 504. 
 Co. V. Young, 90 Md. 278; Beloit, eto. 9. Carver v. Gough, 153 Pa. St. 
 Bank v. Merrill Co., 69 Wis. 501; 225; Van Ness v. Pacard, 27 U. S. 
 Heffner v. Lewis, 73 Pa. St. 302; 137; Smyth v. Stoddard, 203 111. 424; 
 Watts y. Lehman, 107 Pa. St. 106; Hedderick r. Smith, 103 Ind. 203; 
 Belvin r. Raleigh Paper Co., 123 N. Wing v. Gray, 36 Vt. S61; Mbtt v. 
 Car. 138; Ashby v. Ashby, 59 N. J. Palmer, 1 N. Y. 564; Whiting t, 
 Eq. 536; Torrey v. Burnett, 38 N. J. Brastow, 4 Pick. (Mass.) 310; Mo- 
 L. 457. Math v. Levy, 74 Miss. 450 
 
 7. Bernheimer v. Adams, 70 App. 
 
80 Natuee and Incidents of Ownbeship of Land. 
 
 § 55. Buildings. — Buildings erected in a permanent way 
 are, of course, fixtures, becoming part of the land wlien an- 
 nexed by the owner in fee, but remaining the property of 
 the tenant and removable by him when annexed by a tenant 
 for years provided they can be removed without serious in- 
 jury of a permanent kind to the land, and without too 
 great impairment in value of the building.*" Where land 
 is leased for the purpose of business, either of trade or 
 manufacture, and a building is erected in order that the 
 business may be carried on, it is clear that the tenant erected 
 the building, not as a permanent improvement of the land, 
 but solely for the purpose of utilizing the land for the needs 
 of his business. It therefore remains his property subject 
 to removal, and this may be said to be true in nearly all 
 cases.* But where a building of a permanent nature is 
 erected for agricultural purposes, removable only by de- 
 molishing it, of little value except attached where it was 
 built, and designed for the permanent improvement of the 
 farm as such, the evident intention was to annex it as a 
 permanent improvement of the farm, and the tenant cannot 
 remove it.^ The same rule applies to dwelling houses; if 
 erected in a permanent way they are not subject to removal.' 
 In any case, if the building is of a temporary nature it is 
 the tenant's personal property.* 
 
 10. Van Ness v. Paoard, 27 U. S. Van Ness v. Pacard, 27 U. S. 137. 
 
 137; Dubois v. Kelly, 10 Barb. (N. See, also, White v. Arndt, 1 Whart. 
 
 Y.) 496; Talbot v. Ciuger, 151 N. Y. (Pa.) 91; Haffick v. Stober, 11 Ohio 
 
 117; Cronie v. Hoover, 40 Ind. 49; St. 483; McCullough v. Irvine, 13 Pa. 
 
 Moore v. Wood, 13 Abb. Pr. (N. Y.) St. 438. 
 
 393; Firth v. Eowe, -53 N. J. Eq. 3. Doak v. Wiswell, 38 Me. 569; 
 
 530; Smyth v. Stoddard, 203 111. 434; Cannon v. Hai-c, 1 Tenn. Ch. 22. 
 
 Union Ter. Oo. v. Wilmer, 116 Iowa 4. Smyth v. Stoddard, 303 111. 434; 
 
 392; Hedderiok v. Smith, 103 Ind. Loughran v. Eoss, 45 N. Y. 792; 
 
 303; Preston v. BriggS, 16 Vt. 124; Lewis v. Ocean, etc. Co., 125 N. Y. 
 
 Smith V. Whitney, 147 Mass. 479; 341; Talbot v. Cruger, 151 N. Y. 117; 
 
 Antoni v. Belknap, 102- Mass. 193. Carlin v. Ritter, 68 Md. 468. 
 
 1. See cases in preceding note. Some question is mSide as to 
 
 8. Elwes V. Maw, 3 East 38; Car- whether buildings of brick and stone 
 
 »er V. Ckjugh, 153 Pa. St. 225; Comp. can ever be removed, since it means 
 
When Tenant May Remove Fixtuke. 
 
 81 
 
 § 56. When Tenant May Remove Fixture. — The law is 
 well settled in all jurisdictions that a tenant for years mnst 
 remove fixtures belonging to him during the term, or if he 
 holds over, before quitting possession of the premises as 
 tenant, and if left on the premises thereafter they merge 
 with the land and become the property of the landlord.' 
 The reason usually given is that under such circumstances 
 a gift to the landlord will be presumed, the fixture having 
 been abandoned to the land. That a gift is not in fact in- 
 tended by the tenant in any such case is clear enough. The 
 fair inference is that the tenant intends no gift, as such 
 intent ■would be contrary to human nature and common ex- 
 
 tearing down the building and con- 
 verting it into a mass of mere loose 
 building material. In Whitehead v. 
 Bennett, 37 L. J. Ch. 474, it was held 
 that a brick building could not be 
 removed by a tenant as it would re- 
 sult in the practical destruction of 
 the building. In Collamon v. Gillis, 
 149 Mass. 578, it was held that a 
 baker's over could not be removed, 
 since it would result in destroying it 
 or reducing it to a mass of crude 
 materials. In many of the cases cited 
 above, as Moon v. Wood, 13 Abb. Pr. 
 393 and Van Ness v. Pacard, 37 U. S. 
 137, it was held that buildings of 
 brick and stone might be removed, 
 and in Baker v. McClurg, 198 111. 38, 
 ovens, engines and boilers used in a 
 bakery business were held removable 
 fixtures, even though it would in- 
 volve taking them apart brick by brick 
 and piece by piece, since they were of 
 value to the tenant and the premises 
 could be left substantially as before 
 their annexation. 
 
 5. Wheeton v. Woodcock, 7 Mees & 
 Wels. 14; Ex parte Brook, 10 Ch. Div. 
 100; Ex parte Stephens, 7 Oh. Div. 
 187; Loughran v. Ross, 45 N. Y. 793; 
 
 Torrey v. Burnett, 38 N. J. L. 457; 
 Merritt v. Judd, 14 Cal. 59; Security 
 Loan Co. v. Willamette Co., 99 Cal. 
 636; Dingley v. Buffum, 57 Me. 381; 
 Schreiber v. Chicago, etc. R. Co., 115 
 111. 340; Union Ter. Co. v. Wilmar R. 
 Co., 116 Iowa 392; Stokes v. Upton, 
 40 Mi oh. 581; Mueller v. Chicago, etc. 
 R. Co., Ill Wis. 300. See, also, cases 
 cited under § 57, post. 
 
 Where the landlord consents to the 
 tenant's leaving the fixture, with the 
 understanding that the tenant may 
 remove it thereafter, the fixture does 
 not merge with the land as the land- 
 lord's property, but may be removed 
 by the tenant in accordance with his 
 agreement with, or license from, the 
 landlord. In such case the tenant 
 is in no sense a, trespasser. Torrey v. 
 Burnett, 38 N. J. L. 457; Broaddus v. 
 Smith, 131 Ala. 335; Thome v. Suth- 
 erland, 133 N. Y. 336; Conde v. Lee, 
 55 Ap.p. Div. 401, aff. 171 N. Y. 663. 
 
 When the tenancy is terminated by 
 forfeiture for breach of condition the 
 same rule applies. Morey v. Hoyt, fi2 
 Oonn. 543; Davis v. Moss, 38 Pa. St. 
 346. 
 
&ii Natuee and Incidents of Ownership of Land. 
 
 perience. That this is not the controlling reason will appear 
 if we take the case of a tenant who states to his landlord 
 that he intends no gift, but that he intends to return later 
 and remove the fixtures. If the landlord does not consent 
 to this, the tenant cannot return and take the fixture away, 
 and yet there is no semblance of a gift in such case. The 
 controlling reason for this rule, as suggested in a New 
 Jersey case ® is that the tenant will not be permitted to re- 
 serve the right to remove such fixtures after the termination 
 of his tenancy, since it would involve a " plain trespass to 
 the property of another." Therefore such tenant should 
 occupy the same position as a trespasser who has annexed 
 fixtures to the land after the expiration of the term. Such 
 a trespasser has no right to such fixtures, which become, 
 as we have seen, the property of the owner of the land as 
 completely as though he had annexed them himself.'' Mere 
 chattels, such as tools, furniture, etc., left on the premises 
 by the tenant, remain his property and he will have the 
 right to recover them, because they do not merge with the 
 land on the termination of his tenancy. This is also true 
 of mere chattels left on premises by a trespasser. This 
 reason covers every situation which may arise under the 
 rule and explains it in a way which is understandable. The 
 " implied gift " or " abandonment " theory is not only 
 purely arbitrary but it is dangerous in that it has led to 
 decisions in the case of renewal of leases which are contrary 
 to justice and to fundamental principles of ownership.* 
 
 § 57. Removal by Tenants for an Indefinite Term. — Ten- 
 ants from year to year and at will, representatives of ten- 
 ants for life and all tenants whose holdings are uncertain, 
 have a reasonable time in which to remove such fixtures 
 after the termination of their estate or interest. As they 
 
 6. Torrey T. Burnett, 38 N. J. L. 8. See § 58 and oaaea cited fbarer 
 457. under. 
 
 7. See ; 50, ante. 
 
Effect of New Lease Between Landloed and Tenant. 83 
 
 cannot know when their estate is to terminate they are 
 given this much leeway when their interest is brought to an 
 end. So also when any tenant holds over after his term or 
 interest has come to an end, as he continues technically as 
 tenant by sufferance, he may remove such fixtures any time 
 before he finally quits possession.® 
 
 § 58. Effect of New Lease Between Landlord and Tenant. 
 
 ^The rule prevails in the majority of the states in which 
 the question has arisen that when the tenant takes a new 
 lease for a further term, without reserving therein the right 
 to remove fixtures, he loses the right to remove them and 
 they become part of the land included in the lease.^" In 
 those states which hold that removable fixtures are real 
 property this rule is reasonable, since the tenant has failed 
 to take advantage of the special right of removal, which, 
 under the theory of those cases, the law gives him.^ But in 
 the majority of states where such fixtures are, very cor- 
 rectly, treated as the personal property of the tenant, it is 
 impossible to justify the rule by any process of reasoning. 
 
 9. Loughran v. R'lss, 45 N. Y. 793; 
 Lewis V. Ocean, etc. Co., 125 N. Y. 
 341; Torrey v. Burnett, 38 N. J. L. 
 457; Watriss v. Nat. Bank of Cam- 
 bridge, 134 Mass. 571; SI eller v. 
 Shivers, 171 Pa. St. 569; Crornie r. 
 Hoover, 40 Ind. 49. In the case of a 
 tenant lidding over and becoming ten- 
 ant by sufferance, lie may still remove 
 his fixtures as long as he has a right 
 to regard himself as tenant. Ex parte 
 Brook, 10 Ch. Div. 100; Ex parte 
 Stephens, 7 Ch. Div. 137; Merritt v. 
 Judd, 14 Cal. 59; Schreiber v. Chi- 
 cago, etc. R. Co., 115 111. 340; An- 
 toni V. Belknap, 103 Mass. 193. 
 
 Where » tenant at will receives 
 proper notice to quit he must move 
 away hig flxturei on or before the day 
 
 fixed for the termination of his ten- 
 ancy. He is not given m. reasonable 
 time thereafter to remove them. 
 Er'ckson v. Jones, 37 Minn. 459. 
 
 10. Loughran v. Ross, 45 N. Y. 792 ; 
 Stephens v. Ely, 162 N. Y. 79; Nie- 
 land V. Mahnken, 89 App. Div. (N. 
 Y.) 463; Van Vleck v. White, 66 App. 
 Div. (N. Y.) 14; Gerbert v. Trustees, 
 etc., 59 N. J. L. 160; Watriss v. Nat. 
 Bank of Cambridge, 134 Mass. 571; 
 Oarlin v. Ritter, 68 Md. 468; Chicago 
 Sanit. Dist. v. Cook, 169 111. 184; 
 Hedderick v. Smith, 103 Ind. 303; 
 Marks v. Ryan, 63 Cal. 107; Wadman 
 V. Burke, 147 Cal. 351; St. Louis v. 
 Nelson, 108 Mo. App. 310. 
 
 1. See treatment of this subject in 
 Carlin v. Ritter, 63 Md. 468. 
 
84 Natukb and Incidents of Ownbeship of Land. 
 
 These cases generally state the reason to he that there is at 
 least a momentary surrender of the premises to the landlord, 
 and the taking back of them under the new lease ; that dur- 
 ing the moment of such surrender the fixtures merge with 
 the land on the " implied gift " or " abandonment " theory, 
 and therefore the tenant loses them. The danger of this 
 utterly false and unsupportable theory of " implied gift " 
 or " abandonment " lies in the effect it has had in leading 
 the courts to take this position. Thus, without any actual 
 intention on the part of either party to transfer the fixture, 
 without any bill of sale or other transfer, without any 
 wrongful act on the part of the tenant in making use of the 
 property of another for the purpose of his fixtures, the 
 tenant finds himself divested of title to the fixtures, worth 
 perhaps thousands of dollars, which just before the lease 
 was signed were indisputably his property, but which, 
 through some judicial magic, become the property of his 
 landlord a moment later when the new lease is signed and 
 delivered. The argument sometimes advanced that the new 
 lease covers the land including the fixtures begs the whole 
 question.^ It does not cover the property of the tenant 
 unless he intended that it should, and any such intent can- 
 not be taken for granted any more than the intent to make 
 a gift. 
 
 The absurdity of this position clearly appears when the 
 tenant takes the new lease some time before the expiration 
 of the old lease. In that case there is no momentary sur- 
 render — the tenant has an interest or estate in the property 
 continuing without break until the expiration of the term 
 given by the new lease. ^ 
 
 The best considered cases hold that the new lease has no 
 
 ,. 2. In Loughran v. Rosa, 45 N. Y. 3. Such was the situation in Lough- 
 79§, this position was taken, and the ran v. Ross and Watriss v. Cam- 
 argument is repeated and relied on bridge, etc. Bank, and some of Ui« 
 in several, cases in other jurisdictions, other cases above cited, 
 above cited which followed the Ross 
 ease. 
 
Fixtures Annexed by Tenants foe Life. 
 
 85 
 
 effect on tlie tenant's right to remove fixtures; that as long 
 as he continues to occupy the premises rightfully as tenant 
 he has a right to take away such fixtures, whether he holds 
 under one lease, or under a succession of leases made at in- 
 tervals.* "We have seen that even in the case of a tenant 
 holding over wrongfully after his term has ended as a ten- 
 ant by sufferance, he has the right to remove fixtures prior 
 to his quitting possession. It is absurd to hold that the 
 same tenant should be deprived of his fixtures if, instead 
 of holding over as a wrongdoer, he had made a new lease 
 and paid the rent thereunder which the landlord required. 
 
 § 59. Fixtures Annexed by Tenants for Life. — In the pro- 
 ceeding sections fixtures annexed by tenants for life have 
 been considered with fixtures annexed by tenants for years, 
 
 4. Kerr v. Kingsbury, 39 Mich. 150; 
 Eadey v. McCurdy, 309 Pa. St. 306; 
 Sec. Nat. Bank v. Merril Co., 69 Wis. 
 501; Berg. v. Herring-Hall Marvin 
 Safe Co., 136 Fed. '368; Thomas v. 
 Gayle, 134 Ky. 330. Wright v. Mc- 
 Dowell, 88 Tex. 140, and McCarthy v. 
 Trumecher, 108 Iowa 984, while ad- 
 mitting the prevailing view to be that 
 a new lease ternainates the tenant's 
 right to remove fixtures, take the 
 position that the very question to be 
 decided is whether the tenant actu- 
 ally intends any such gift to the land- 
 lord, and in each of these oases it 
 was naturally found that as a matter 
 of fact the tenant had no such intent ; 
 therefore the fixtures involved did not 
 merge with the land. 
 
 In Bernheimer v. Adams, 70 App. 
 Div. (K. Y.) 114, the court held that 
 the general rule should be limited to 
 buildings and other erections not re- 
 movable without serious injury or 
 damage to the buildings or land, 
 whi(vh are inherently part of the land; 
 
 that it should not apply to trade fix- 
 tures. The court held that urinals, 
 water closets, a partition, etc., placed 
 in a business building by a tenant 
 were removable by him even after the 
 execution of a new lease in which the 
 right of removal was not reserved 
 This case was affirmed without opin- 
 ion, 175 N. Y. 472. Whether this 
 modification of the rule laid down in 
 Loughran v. Eoss, was concurred in 
 by the Court of Appeals is therefore 
 left in doubt, as there seems to ba 
 other ground on which their affirm- 
 ance may have been baaed. 
 
 In Berge v. Herring, etc. Safe Co., 
 136 Fed. 368, the Circuit Court of 
 Appeals followed the Bernheimer case, 
 the court stating that there are no 
 principles of law or equity on which 
 the prevailing rule (as to effect of 
 new lease in taking away the right 
 to fixtures) can be ba.sed. In the last 
 two cases the principles involved are 
 very clearly discussed. 
 
&6 Nature and Incidents of Ownekship of Land. 
 
 since they are governed by the same principles and rules 
 of law. It has been suggested by way of dicta in a few 
 cases that the rule as to the removal of fixtures is stricter 
 as against tenants for life, but this is true only so far as the 
 difference in the character of the life tenant's interest may 
 be held to modify his intent.^ In general, fixtures annexed 
 by life tenants are governed by the same principles and 
 subject to the same rules as fixtures annexed by tenants 
 for years.* 
 
 F.— Waste. 
 
 § 60, Waste Defined. — A¥e have seen that absolute own- 
 ership gives absolute control and dominion over property, 
 including the right to destroy or to permanently damage 
 it, subject only to the limitation imposed by law on all, that 
 the owner shall not maintain a nuisance on his land. In 
 cases of tenants for life, tenants for years, and tenants from 
 year to year, whose ownership is limited rather than abso- 
 lute, a further, limitation is imposed, viz., that they shall 
 not commit waste. Waste is injury to the land done or 
 suffered by a tenant for life, for years or from year to year, 
 which results in damage of a permanent kind, so that the 
 premises are permanently reduced in value. The damage 
 is to the interest of the one who is to succeed to the posses- 
 sion and enjoyment of the property after the termination 
 of the precedent estate for life or for years. Damage to the 
 future estate of the reversioner or remainderman is the 
 essential requisite of waste. ^ Waste can be committed only 
 liy tenants entitled to the possession. Such tenants cannot 
 lie guilty of trespass, since trespass is an injury to the pos- 
 session, and can be committed against those only who have 
 
 5. White V. Arndt, 1 Whart. (Pa.) Buckley, 11 Barb. (N. Y.) 43, 61; 
 91; Haffick V. Stober, 11 Ohio St. Whiting v. Brastow, 4 Pick. (Mass.) 
 483; McOullough v. Irvine, 13 Pa. St. 310; Overman v. Sasser. 107 N. C, 
 438; Doak v. Wiswell, 38 Me. 569; 433, and cases in preceding note. 
 Gliddon v. Bennett, 43 N. H. 308. 1. 3 Bl. Com. 281. See cases cited 
 
 6. Lawton v. Lawton, 3 Atk. 13; under sections following. 
 Elwes V. Maw, 3 East 13; Biuklev v. 
 
Who Mat be Held foe Waste. 
 
 87 
 
 the possession. Tenants impeachable for waste were liable 
 at common law not only for their own acts of waste, but 
 also for the acts of any stranger resulting in permanent 
 injury, excluding damage done by the public enemy or re- 
 sulting from storm or tempest, or fire arising without wilful 
 wrong or negligei^ e.^ The tendency of the modern cases is 
 against this position, which was never supported by any 
 controlling reason. Waste is voluntary when resulting 
 from acts of commission, it is permissive when resulting 
 from a failure on the part of the tenant to make repairs and 
 to maintain the property in a reasonable maimer as required 
 by law.* 
 
 § 61. Who May Be Held for Waste. — Under the ancient 
 common law guardians in chivalry and tenants in dower 
 and curtesy were alone punishable for waste. The law gave 
 this remedy against such tenants because their estates were 
 
 8. Anonymous, Fitz Ab. Waste PL 
 30; Co. Litt. 54a; Fay v. Brewer, 3 
 Pick. (Mass.) 203; Regan v. Luthy, 
 34 N. Y. St. Repr. 10; Dix v. Jaquay, 
 94 App. Div. (N. Y.) 555, and cases 
 cited; Cargill v. Sewell, 19 Me. 388, 
 391; Wood V. Griffin, 46 N. H. S30; 
 Randall v. Cleveland, 6 Conn. 328; 
 Consolidated Coal Co. v. Savitz, 57 
 111. App. 659. 
 
 That the tenant is not liable in 
 waste except for his own acts or neg- 
 ligent conduct, see Winfree v. Jones, 
 104 Va. 39, and Rogers v. Atlantic 
 Gulf and Pac. Co., 313 N. Y. 246. In 
 the case last cited the Court of Ap- 
 peals makes clear that if any reason 
 ever existed for the old rule it no 
 longer has any application, as the 
 stranger may be sued directly by the 
 reversioner or remainderman. The 
 court ex:pressly disapproves of the 
 position taken by an inferior court in 
 Regan v. Luthy, supra. Though the 
 
 point was not so directly involved as 
 to make this case a controlling deci- 
 sion thereon, nevertheless the strength 
 of the court's position and the unim- 
 peachable character of the reasoning 
 followed will probably result in the 
 final overthrow of the old rule, which 
 never had a valid reason to support 
 it. The landlord may sue the stranger 
 directly either in an action on the 
 case or under statute? providing there- 
 for, such as N. Y. Code, § 1665, and 
 the old excuse that the tenant should 
 be held liable as the landlord could 
 not sue the stranger, has no applica- 
 tion to-day, and has had none since 
 the development of the action on the 
 case. 
 
 3. 3 Bl. Com. 281; Syndham v. 
 Jackson, 54 N.Y. 450 ; Moore v. Town- 
 shend, 33 N. J. L. 384; Ferguson v. 
 
 . 2 Es.p. 590; In re Cartwright, 
 
 41 Ch. Div. 532. 
 
88 Natuee and Incidents op Owneeship of Land. 
 
 created by tlie law and not by any transfer or other act of 
 any person. In cases of tenants for years or for life created 
 by grant or devise, the owner might provide against the 
 doing of waste in the deed or will by which the estate was 
 created, and if he failed to do so the law gave him no 
 remedy. But by the Statute of Malbridge * and of Gloces- 
 ter ^ it was provided that the writ of waste might be main- 
 tained against tenants for years and life of every kind. 
 Waste, therefore, from the standpoint of a court of law, 
 can be committed only by tenants for life and for years, 
 including tenants from year to year.® It has always been 
 held that tenants at will do not come within the provisions 
 of these statutes, and therefor such tenants are not liable 
 for waste, as such. Acts which would amount to voluntary 
 waste in the case of tenants for life or for years are acts 
 
 4. 53 Henry III, c. 33. 
 
 5. 6 Ed\7. I, c. 5. This statute pro- 
 vided, further, that the tenant ad- 
 judged guilty of waste should forfeit 
 the place where the waste was com- 
 mitted and also treble damages. For- 
 feiture and the provision for treble 
 damages were done away with in 
 England by statute 344, Wm. IV, c. 
 27. 
 
 In the absence of special statutory 
 provision the action of case in the 
 nature of waste has taken the place 
 of the common law writ, and single 
 damages only are recoverable. Heme 
 V. Bernbow, 4 Tauton, 764 ; Moore v. 
 Townshend, 33 N. J. L. 384; Johnson 
 v. Johnson, 18 N. H. 594. In most 
 states there are special statutes pro- 
 viding remedies for waste, some of 
 which provide for double or treble 
 damages, and sometimes forfeiture of 
 the place wasted. See 1 Stimson Am. 
 St. Law, §§ 1333, 1343. 
 
 In New York the action for waste 
 is provided for by §§ 1651-1659 of the 
 Corlo of Civil Procedure. By § 1651 
 
 a tenant for life or for years or the 
 assignee of such a tenant is liable for 
 waste committed " without a special 
 
 and lawful written license so to do," 
 § 1653 provides that an heir Or devisee 
 may sue for waste committed in the 
 time of his ancestor or testator as 
 well as in his own time. The grantor 
 of a reversion mav maintain an action 
 for waste committed before the grant. 
 § 1653 provides for an action for 
 waste committed by a guardian upon 
 the real property of the ward. § 1655 
 provides that if the plaintiff recovers 
 he is entitled to treble damages, and 
 where the plaintiff is the person next 
 entitled to the reversion, and it ap- 
 pears that the damage done the re- 
 version is equal to the value of the 
 tenant's estate or unexpired term, or 
 that it was done maliciously, the final 
 judgment must also award forfeiture 
 of defendant's estate, and possession 
 of the place wasted. 
 
 6. Moore v. Townshend, 33 N. J. L. 
 284; Lothrop v. Thayer, 138 Mass. 
 466. 
 
Who Mat be Held foe Waste. 89 
 
 of trespass when committed by a tenant at will, whicli may 
 be treated by the landlord as terminating the estate of the 
 tenant, who may be held for damages in an action of 
 trespass^ 
 
 Some doubt has arisen as to Avhether tenants for life or 
 for years can be held for permissive waste. This turns on 
 whether the statutes of Malbridge and Glocester should 
 be construed as including waste resulting from failure to 
 repair, as a result of which the freehold is permanently 
 damaged. The earlier English cases and authorities hold 
 that the statutes apply to everything treated as waste be- 
 fore the statutes were enacted, both voluntary and permis- 
 sive, the purpose of the statutes being to extend the remedy 
 to cover waste of every kind committed by all classes of 
 tenants for life and for years, as well as tenants in dower 
 and curtesy, and guardians in chivalry, leaving the ques- 
 tion of what is and what is not waste to be determined by 
 the principles of the common law.* There can be no doubt 
 that before these statutes waste included injuries resulting 
 from failure to make reasonable repairs as well as from 
 voluntary acts of destruction. In the United States this 
 view is taken, and tenants for life and for years are held 
 liable for permissive waste.^ In England it is settled that 
 a life tenant or his estate on his death cannot be held for 
 waste of this kind,^" while the question of the liability of 
 
 7. Co. Litt. 57a; 5 Co. 13a; Cro. fith's Case, Moore -69, and other cases 
 Eliz. 777, 784; Phillips v. Covert, 7 cited in opinion of Depue, J., in 
 Johns. 1; Chalmers v. Smith, 153 Moore v. Townshend, 33 N. J. L. 
 Mass. 561, and cases in preceding 384. 
 
 note. 9. Moore v. Townshend, 83 N". J. L. 
 
 8. On this question Lord Coke said, 284; Lothrop v. Thayer, 138 Mass. 
 referring to the statute: "To do or 466; Suyndham v. Jackson, 54 N. Y. 
 make waste, in legal understanding in 450; Newbold v. Brown, 44 N. J. L. 
 this place, includes as well permis- 366 (holding that a tenant from year 
 give waste, which is waste by reason to year was liable for permissive 
 of omission or not doing, as for want waste ) ; Wilson v. Edmonds, 24 N. H. 
 of reparation, as waste by reason of 517; Harvey v. Harvey, 41 Vt. 377. 
 commission," etc. 3 Inst. 145; 7 10. In re Cartwright, 41 Oh. Div. 
 Bao. Abr. S50; 2 BI. Com. 283; Grif- 532. 
 
90 Nature awd Incidents of Ownership of Lajs'd. 
 
 a tenant for years seems to be left in uncertainty under the 
 later cases.^ 
 
 § 62. Trees and Timber. — A tenant for years or for life 
 may cut trees for the purpose of firewood to be used by 
 himself on the premises,^ and, where the amount required 
 is not unreasonable, with reference to the amount of wood 
 growing on the land, he may cut firewood for the use of a 
 tenant occupjdng a tenant house and working the farm; * 
 though this will be waste if, under all the circumstances, it 
 would be unreasonable.* He must use dead and down tim- 
 ber if available rather than growing trees for this purpose,^ 
 and he will not be permitted to cut timber trees, of special 
 value for building purposes, if there are trees enough of 
 the ordinary kind for fuel.^ Timber trees are those of 
 special commercial value for lumber and for building pur- 
 
 1. Ferguaon T. , 8 Espinesse Pitz. Ab. Wast. PI. 30; Simmonds t. 
 
 590 (1797) (in which case a tenant Norton, 7 Bing. 640; McGregor v. 
 
 from year to year was held liable for Brown, 10 N. Y. 114; Calvert v. Rice, 
 
 permissive waste) ; Heme v. Bernbow, 91 Ky. 533; Smith v. Smith, 105 Ga. 
 
 4 Taunton 764 (1813) (in which case 106; Walters v. Hutchins' Admx., 29 
 
 the court held that case in the nature Ind. 136; Clemence v. Steere, 1 S. I. 
 
 of waste would not lie for permissive 273; Padelford v. Padelford, 7 Pick, 
 
 waste, citing Countess of Shrews- 152; Noyes v. Stone, 163 Mass. 490; 
 
 bury's Case, 5 Co. 13. The court said, White v. Cutler, 17 Pick. (Mass.) 
 
 however, that whatever duties the law 248; Johnson v. Johnson, 18 N. H. 
 
 casts on the tenant, the law will raise 594. 
 
 an assumpsit for him to perform, in 3. Gardner v. Derring, 1 Paige (K. 
 
 the absence of an express covenant). Y.) 572; Smith v. Jewett, 40 X. H. 
 
 See, also, Harnett v. Maitland, 16 M. 530. 
 
 & W. 257; Davies v. Davies, 38 Ch. 4. Sarles v. Sarles, 3 Sandf. Ch. (N. 
 
 Div. 299. Y.) 601, at 605. 
 
 As the question of waste between 5. Simmons v. Norton, 7 Bino-. 640; 
 
 tenants in common or joint tenants is Jackson v. Brownson, 7 Johns. (N. 
 
 inseparably involved with the ques- Y.) 227. 
 
 tion of accounting for rents, etc., re- 6. Hogan v. Hogan, 102 Mich. 641; 
 
 ceived, etc., under the statute of Anne, Calvert v. Rice, 91 Ky. 533. See 
 
 a consideration of it is deferred, and Padelford v. Padelford, 7 Pick, 
 
 will be found in Ch. XI, § 218, under (Mass.) 152, and Webster'v. Webster! 
 
 "Incidents of Co-Ownership." 33 N. H. 18 holding that oak tree! 
 
 3. 2 Bl. Comm. 281; Anonymous, may be cut for fuel. 
 
Trees and Timbee. 91 
 
 poses generally. This question is determined in accordance 
 with the customs of the place where the question arises; 
 those trees which have special value as timber in one place 
 and at one time, may not be used for building purposes and 
 may therefore have no special value as timber at another 
 place at a different time.' In England it is settled that oak, 
 ash and elm trees are timber as a matter of law ; ^ while in 
 some cases in this country, it appearing that oak trees were 
 used generally for firewood, it was held that it was not 
 waste to cut them for that purpose.* 
 
 Tenants for life and for years may cut timber trees to 
 erect and repair necessary buildings and fences on the proj)- 
 erty.^" It is waste, however, to cut trees of any kind for 
 the purpose of sale, even though the proceeds are used in 
 making repairs or improvements, or in purchasing fuel to 
 he used by the tenant on the premises.^* It is also waste for 
 a tenant to cut timber to replace or repair buildings for the 
 destruction or injury of which he is liable in waste. But 
 in the United States, in the case of wild and uncultivated 
 lands, the strict rule of the common law has been modified 
 so as to permit such tenants to cut and sell trees of any kind 
 when it is done for the purpose of clearing the land and 
 bringing it under cultivation. In such cases the cutting 
 and removal of the trees must be in accordance with good 
 husbandry, that is, enough trees and timber must be left 
 to supply the future needs of the farm, and it must not 
 
 7. Jackson v. Brownson, 7 Johns. ■f. Wilson, 60 lil. 226, and cases cited 
 (N. Y.) 227; Kidcl v. Dennison, 6 in note 2 preceding. 
 
 Barb. 9; Hogan v. Hogan, 102 Mich. 11. McGregor v. Brown, 10 N. Y. 
 
 641; Lester v. Young, 14 R. I. 579. 114; Babb v. Perley, 1 Me. 6; Modlin 
 
 8. Honywood v. Honywood, L. E. v. Kennedy, 53 Ind. 267; Webster v. 
 18 Eq. 306. Peet, 97 Mich. 326; Miller v. Shields, 
 
 9. Padelford v. Padelford, 7 Pick. 55 Ind. 71 ; Noyes v. Stone, 163 Mass. 
 (Mass.) 152; Webster v. Webster, 33 490; Phillips v. Allen, 89 Mass. 115; 
 N'- H. 18. Johnson v. Johnson 18 N. H. 594, and 
 
 10. Co. Litt. 54b; Morehouse v. cases cited in preceding notes and 
 Cotheal, 22 N. J. L. 521; Armstrong notes immediately following. 
 
92 
 
 JSTatuee and Incidents of Owneesiiip of Land. 
 
 result in permanent injury to the farm.^^ This rule has no 
 application to settled communities and farms which have 
 been already cleared for cultivation. In such cases the cut- 
 ting of any trees for sale is waste. ^^ 
 
 Still another exception is made, both in the United States 
 and England, in the case of lands given over to the growth 
 of timber or trees for sale. Tenants for life may cut and 
 sell trees in such case, since it is in accordance with the 
 customary and regular use and enjoyment of the land.^* 
 
 § 63. Mines, Quarries, etc. — Tenants impeachable for 
 waste may work mines and quarries which are opened when 
 
 12. Jackson v. Brown son, 7 Johns. 
 (N. Y.) 227; Morehouse v. Cotheal, 
 22 ISr. J. L. 531; Keeler v. Eastman, 
 11 Vt. 293; Dawson v. Coflfman, 28 
 Ind. 220; Warren Co. v. Gans, 80 
 Miss. 76; Proffitt v. Henderson, 29 
 J!o. 325; King v. Miller, 99 N. C. 
 5S3; McCullough V. Irvine, 13 Pa. St. 
 i33; Sayers v. Hoakinson, 110 Pa. St. 
 473; Wilkinson v. Wilkinson, 59 Wis. 
 557; Drown v. Smith, 52 Me. 141. 
 
 The cutting and removing of dead 
 and down timber is not waste, as it 
 improves the inheritence. Bateman v. 
 Hotchkin, 31 Beav. 486; Sayers v. 
 Hoskinson, 110 Pa. St. 473; Keeler v. 
 Eastman, 11 Vt. 293; Houghton v. 
 Cooper, 6 B. Mon. (Ky.) 281; King 
 T. Millar, 99 N. C. 583. 
 
 So, also, tenants subject to waste 
 are entitled to all proper thinnings 
 and cuttings, bushes, &c., removed in 
 the process of improving the land; 
 2 Bl. Com. 281-282; Haywood v. Hay- 
 wood, L. R., 18 Eq. 306; Phillips v. 
 Smith, 14 M. & W. 586. 
 
 Some of the cases seem to be au- 
 thority for a more liberal modifica- 
 tion of the common law rule, viz.: 
 that timber land may be cleared and 
 the timber sold in anv case where 
 
 such cutting is in accordance with 
 good husbandry and for the purpose 
 of clearing the land for cultivation, 
 where the value of the land is thereby 
 increased . Da\vson v. Goffman, 23 
 Ind. 230; Warren Co. v. Gans, SO 
 Miss. 76; Wilkinson v. Wilkinson, 53 
 Wis. 557. In these cases, however, it 
 did not appear that the farms were 
 fully cleared and the relative 
 a.mounts of woodland and land fcr 
 cultivation determined by the owner 
 of the fee. The general rule, as ex- 
 pressed in MacGregor v. Brown, 10 
 N. Y. 114, is that the exception above 
 referred to does not apply to settled 
 communities and farms long cleared 
 and settled. See text and note im- 
 mediately following. 
 
 13. MacGregor v. Brown, 10 X. Y.- 
 114; Chase v. Hazlcton, 7 N. H. 171; 
 Clark V. Holden, 7 Gray 8; Keeler v. 
 Eastman, 11 Vt. 293. 
 
 14. Honywood v. Honywood, L. R., 
 18 Eq. 306; Dashwood v. ^Magniac, 3 
 Ch. 306; Willard v. Willard," 56 Pa. 
 St. 119; Keel V. Neel, 19 Pa. St. 323; 
 Den. V. Kinney, 5 N. J. L. 648; 
 Clemence v. Steere, 1 R. I. 272; Bal- 
 lentine v. Poyner, 2 Hayw (N. C.) 
 110. 
 
Mikes, Quaeries, Etc. 
 
 93 
 
 their tenancy begins, because the land is in tbis way ap- 
 propriated to mining operations or quarrying, and the 
 working of them is in accordance with the regular use and 
 enjoyment of the property.^ Such tenants may also sink 
 new shafts to follow up the vein which has been opened.* 
 It is waste to open a new mine, which includes the tapping 
 of a new vein even though another vein has been opened 
 on the same premises.* Any opening of the land and the 
 taking out of minerals for sale, even though the opening or 
 •excavation be slight, will be sufficient to permit the working 
 of the mine by a tenant.* If before the tenancy arose the 
 mine was abandoned and closed by the owner of the in- 
 heritance, the mine is no longer " open " and the tenant 
 "will have no right to work it, but there must be affirmative 
 •evidence of the abandonment and closing to justify this 
 result; mere non-user, even for many years, will not be 
 enough.* 
 
 1. Co. Litt. 54 B; 2 Bl. Com. 283; 
 •Coates V. Cheever, 1 Cowen (N. Y.) 
 460; Gaines v. Green Pond Iron Min. 
 €o., 33 N. J. Eq. 603; Sayera v. Hos- 
 Icinson, 110 Pa. St. 473; Neel v. Neel, 
 19 Pa. St. 324; Billinga v. Taylor, 27 
 Mass. 460; Ward v. Carp, &c. Co., 47 
 Mich. 65; Findlay v. Smith, 6 Munf. 
 (Va.) 134; Koen v. Bartlett, 41 W. 
 "Va. 559 (oil and gas wells) ; McCord 
 T. Oakland, &c. Co., 64 Cal. 134; 
 Moore v. Eolins, 45 Me. 493. 
 
 Such mines may be worked to ex- 
 haustion if worked by the tenant in 
 Ihe usual way. See cases above cited, 
 particularly Neel v. Neel and Sayer v. 
 H(i ;kinson ; also Irwin v. Covode, 24 
 Pa. St. 163 ; Westmoreland Coal Co.'s 
 Appeal, 85 Pa. St. 344; Stoughton v. 
 Xeigh, 1 Taut. 410. 
 
 In Marshall v. Mellon, 179 Pa. St. 
 371, it was held that the same prin- 
 ciples applied to the opening of oil or 
 gas wells, it being waste for a tenant 
 
 for life or for years to open such a 
 well, none having been opened on the 
 property. 
 
 2. Clavering v. Clavering, 2 P. 
 Wms. 388; Westmoreland Coal Co.'a 
 Appeal, 85 Pa. St. 344, and cases cited 
 in preceding note. 
 
 3. The reason, of course, is that it 
 will permanently depreciate the pro- 
 perty in value, since it is a taking 
 away of a valuable part of tlip land. 
 See cases cited in last two notes. 
 
 4. Gaines v. Green Pond Iron Min. 
 Co., 33 N. J. Eq. 603; Billings v. 
 Taylor, 27 Mass. 460 (quarry opened 
 by husband at one point, extended to 
 that entire deposit of stone within 
 the limits of the tract, and the widow 
 was held entitled to dower therein) ; 
 Moore v. Rollins, 45 Me. 493 
 ( semble ) . 
 
 6. Gaines v. Green Pond M. Co., 33 
 N. J. Eq. 603. 
 
 Where, however, the owner in fee, 
 
94 Natuek and Incidents of Owneeship of Lakd. 
 
 There is some authority in the United States for the praj)- 
 osition that in the case of wild and uncultivated lands, of 
 value only for mining purposes, tenants for life or for years 
 should be permitted to open up and work mines even though 
 none have ever been opened on the premises, and this propo- 
 sition is supported by sound reason and common sense. Any 
 rule which prevents the only possible profitable use and en- 
 joyment of the premises by a tenant for a limited term is un- 
 reasonable and contrary to fundamental principles of own- 
 ership. As in the case of land given over to the growth of 
 timber or trees for profit, such tenants should be permitted 
 to make use of the premises in accordance with the use to 
 which the land has been appropriated, either by the act of 
 man or by natural conditions.* 
 
 § 64. Cultivation and Use of the Land. — A tenant im- 
 peachable for waste holding lands for farming purposes is 
 bound to work the land in a husbandlike manner, that is, 
 in accordance with accepted and customary methods of 
 farming in vogue in the community where the land is situ- 
 ated. He must not work the land to exhaustion, either by 
 ploughing and planting it too frequently, or by taking re- 
 peated crops without fertilizing the land in cases where the 
 land requires fertilizer, or by any other method of cultiva- 
 
 before the tenancy for life or for purposes. Franklin Coal Co. v. Me- 
 
 years arose, took stone from a quarry Millan, 49 Md. 549. See dicta whicli 
 
 merely for use upon the land, but not is contra in Neal v. Neal, 19 Pa. St. 
 
 for the purpose of sale, the tenant 333, the court saying: "It is sufficient 
 
 thereafter may take stone only for a if he opened them, and derived any 
 
 similar use, and not for commercial profit from them, even if it were only 
 
 purposes. Cotton L. J. in Elias v. fire bote. The fact of his opening the 
 
 Griffith, 8 Ch. Div. 533. So, also, in pits made the coal a part of the 
 
 case the owner took coals from an proiits of the land, and the right to 
 
 outcropping on his land for the sole tliem will pass as such by a devise of 
 
 purpose of use as fuel on the prem- a life estate." 
 
 Ises, none being sold, the tenant im- 6. In Re Seager Estate, 92 Mich, 
 
 ptachable for waste was restricted to ISG; Gaines v. Green Pond I. M. Co, 
 
 a like use of the coal. He could not 33 N. J. Eq. 603. 
 work the coal mine for eommprcial 
 
Cultivation and Use of the Land. 95 
 
 tion which in his community would be fairly regarded as 
 bad farming^ He must not sell or remove from the land 
 manure made by the feeding of hay and other products of 
 the land to live stock kept thereon, since good husbandry 
 requires that such manure shall be used to maintain the 
 fertility of the soil.* For similar reasons hay, straw and 
 like products must be fed out on the farm if that is the ac- 
 cepted and usual course of husbandry in the community,* 
 but it is generally recognized that part of the hay may be 
 sold, since the usual course of farmers is to sell so much as 
 they may not require for their stock. It is not waste, there- 
 fore, to sell hay, straw or like products, provided such sale 
 is in accordance with good husbandry as practiced by th^ 
 farmers in the neighborhood, and does not result in injury 
 to the farm.^** 
 
 The rule at common law was that the changing of arable 
 land into woodland, or of meadow into plough land or pas- 
 ture, or any other like changes, by a tenant for life or years, 
 was waste even though there was no damage to the inheri- 
 tance. The reason was that such changes tended to injure 
 the reversion or remainder by impairing the evidences of 
 title, rendering uncertain the descriptions of the property 
 contained in deeds and wills.* Under the modern system of 
 conveyancing by metes and bounds, everything constituting 
 part of the land within the described boundaries passing 
 to the grantee, this reason no longer applies, and therefore 
 the modern rule is that changes of this description, if made 
 in the due course of good husbandry, and without actual 
 injury to the inheritance, are not waste. For instance it 
 
 7. Clemence v. Steere, 1 R. I. 372; 118; Daniels v. Pond, 21 Pick. 367; 
 SarleB v. Sarles, 3 Sandf. Ch. (N. Y.) Lewis v. Jones, 17 Pa. St. 362. 
 
 601; Chapel v. Hull, 60 Mich. 167; 9. Sarles v. Sarles, 3 Sandf. Ch. 
 
 Hubble V. Cole, 85 Va. 87; Walker v. (N. Y.) 601; Wing v. Gray, 36 Vt 
 
 Tucker, 70 111. 5S7. 20 1, 
 
 8. Middlebrook v. Corwin, 15 Wend. 10. Wing v. Gray, 36 Vt. 261. 
 
 (N. y.) 169; Perry v. Carr, 44 N. H. 1. Coke Litt. 53b; 2 Bl. Com. 282; 
 
 Comyn'a Dig. " Waste " D 4. 
 
96 Nature and Incidents of Owneeship of Land. 
 
 is not waste to grade land, lay out streets and erect dwelling 
 houses wliicli resulted in increasing the value of the in- 
 heritance, even though the buildings should be removed by 
 the tenant. Nor is it waste to change pasture into meadow, 
 or meadow into pasture, where the result is benefit rather 
 than injury to the property.^ 
 
 § 65. Buildings; Changes and Improvements. — The de- 
 struction or removal of permanent buildings, or of any per- 
 manent part thereof by a tenant for life or years is waste, 
 since the result is permanent impairment in value of the 
 property,^ and under the general rule already discussed 
 similar destruction or removal by a stranger was waste at 
 common law for which the tenant was answerable, though 
 he had nothing to do with the wrongful act.* It is sub- 
 mitted that this rule is now obsolete, and no longer binds 
 the courts. 
 
 The common law rule it still of general application, that 
 a tenant impeachable for waste cannot alter the property 
 by tearing down buildings and erecting others, or by mak- 
 ing material alterations of a permanent nature, unless the 
 right is given expressly or impliedly by the terms of the 
 lease or other instrument of title under which he holds, or 
 unless the owner of the inheritance consents.' This is true 
 irrespective of whether the changes will result in permanent 
 injury or permanent betterment of the property, because 
 
 2. DoTierty v. Allman, 3 App. Caa. 5. Co. Litt. 53a; 3 Dana Abr. 215: 
 "26; Pynchon V. Stearns, 11 Met. Com. Dig. Waste D 3; Smyth v. Car- 
 (Mass.) 304; Clark v. Holden, 7 Gray tcr, 18 Beav. 78; Dolierty v. Allman, 
 6; Clemence v. Steere, 1 R. I. 272 3 App. Cas. 709; Agate v. Lowen- 
 ( meadow changed to pasture); Pro- bein, 57 N. Y. 604; Klie v. Van 
 ffitt V. Henderson, 29 Mo. 325. Broock, 56 N. J. Eq. 180; Brock v. 
 
 3. U. S. V. Bostwick, 94 U. S. 53; Dole, 66 Wis. 142; Melms v. Pabp.t 
 Robinson v. Wheeler, 25 N. Y. 253; Brew. Co., 104 Wis. 142; Thaclier v. 
 Clialmers v. Smith, 152 Mass. 561; Thinney, 7 Allen (Mass.) 146; 
 MrCullough V. Irome's Exrs., 13 Pa. Davenport v. Magoon, 13 Ore. 3; Wil- 
 St. 433. liams v. Chicago Exhib. Co., 188 lU. 
 
 4. See § 60, note 2 thereunder. 19. 
 
Buildings ; CnAisraES and Improvements. 97 
 
 the landlord or rev^ersioner has a right to have the property 
 returned to him substantially unchanged in character be- 
 yond what is provided for under the lease, and what is rea- 
 sonably incident to the estate of the tenant. Equity, there- 
 fore, will enjoin changes, even though they be improvements 
 which are to be made contrary to the will of the owner of 
 the inheritance, and which are not authorized, expressly or 
 impliedly, by the terms of the lease or grant.* The tenant, 
 however, has a right to make alterations which will not 
 cause permanent injury where the lease authorizes such 
 alterations,''' and he may make changes which are not of a 
 permanent character as he pleases, since the inheritance is 
 not affected. He may tear down a building which is ruin- 
 ous and erect another of the same general character, since 
 that is not only a benefit rather than an injurj'', but it is an 
 act reasonably incident to his holding, and therefore may 
 be regarded as impliedly authorized by the lease.* Tenants 
 for long terms and for life may make more extensive 
 changes than tenants for a short term, since such changes 
 would be incident to their interests as tenants, and therefore 
 impliedly authorized, which would not be the case with 
 
 6. See cases in preceding note, Splcer, 23 Beav. 380, the courts hold 
 especially Smyth v. Carter, 18 Beav. that the tenant may make alterations 
 78; Klie v. Van Broock, 56 N. J. Eq. even though they amount to waste, 
 180 (containing review of the cases provided no permanent injury is done 
 and admirable treatment of this ques- the inheritence and the alterations 
 tion) ; Brock v. Dole, 66 Wis. 142; art such as a prudent owner would 
 Melma v. Pabst Brew. Co., 104 Wis. 7. make in the due course of manage- 
 
 7. When the lease permits altera- ment. 
 
 tions "provided they do not injure the 8. Beers v. St. John, 16 Conn. 323; 
 
 premises,'' as in Agate v. Lowenheim, Jackson v. Andrews, 18 Johns. 431. 
 
 57 N. Y. 604; or where the permis- It is not waste to erect a new build- 
 
 Bion is accompanied with u covenant ing. See in addition to above cases, 
 
 not to commit waste, as in Hasty v. Klie v. Van Broock, 56 N. J. Eq. 180, 
 
 Wheeler, 13 Me. 434; or wliere the in which case Pitney, V. C, points 
 
 estate of the tenant is without ira- out that tlie statement by Littleton 
 
 peachment of waste " save and except that the erecting of a new building 
 
 spoil and destruction, voluntary and was waste was soon after abandoned, 
 
 permissive waste,'' aa in Vincent v. and was never law 
 7 
 
98 ITatuee and Incidents of Ownbeship of Laud. 
 
 tenants for short terms.* Where the property in the neigh- 
 borhood changes in character, as where a dwelling becomes 
 of no value for rental purposes as such on account of mills 
 and factories which have grown up all around it, it is not 
 waste for a tenant for life or for a long term to destroy the 
 dwelling in order to improve the land and make it more 
 valuable for commercial purposes. The right to make 
 changes of this character under such circumstances may 
 fairly be regarded as within the contemplation of the par- 
 ties, and therefor within the terms of the instrument by 
 which the tenant's interest was created.^" 
 
 § 66. Permissive V/aste. — Failure on the part of tenants 
 for life or for years to make such reasonable repairs as will 
 prevent the buildings from falling to ruin and decay is per- 
 missive waste. This duty to repair does not include rebuild- 
 ing either the whole or a substantial part of a building, nor 
 the making of the substantial or general repairs necessary 
 to maintain the premises in the condition in which they 
 were at the beginning of the tenancy. If a window should 
 blow in, or shingles or boards should blow off, the tenant 
 must make such repairs as may be required to keep out the 
 wind and rain, and thus prevent the waste and decay of the 
 building which would otherwise result.^ He is not required 
 to put on a new roof,^ or to repair buildings which were 
 ruinous at the beginning of the tenancy.* 
 
 9. Doherty t. Allman, 3 App. Cas. 1. Comyn, Land & T., p. 188; Fer- 
 
 709; Klie T. Van Broock, 56 N. J. ^son v. , 2 Esp. 590; Syndham 
 
 Eq. ISO, and cases in note 5 preccd- v. Jackson, 54 N. Y. 450; Sarles v. 
 
 ing. Sarles, 3 Sandf. Ch. 601; Moore <r 
 
 10. Melme v. Pabst Brew. Co., 104 Townshend, 3 N. J. L. 284; Clemence 
 Wis. 7; Doherty v. Allman, 3 App. v. Steere, 1 R. I. 272; Wilson v. Ed- 
 Cas. 709 (the court refusing to enjoin monds, 24 N. H. 517- Miller T. 
 Hie tenant from changing storehouses Shields, 55 Ind. 71 j Harvey v. Har- 
 into dwellings, the property having vey, 41 Vt. 373. 
 
 become valueless for storehouse pur- 2. Ferguson v 8 Esp. 590. 
 
 poses) ; Kli» v. Van Broock, 56 N. But see, contra, Matter of Steele, 19 
 
 J. Eq. 180; Sherrill y. Connor, 107 N. J. Eq. 130. 
 
 N. C. 630. S. Clemence v. Steer*. 1 R, I. 872. 
 
Waste in Equity. 99 
 
 The burning of buildings through the negligence of the 
 tenant is treated as permissive waste,* though it would seem 
 that negligence in guarding and caring for fires, amounting 
 as it does to affirmative wrong, should be treated as volun- 
 tary waste. Since tenants at will are not liable for permis- 
 sive waste, this classification of negligent burning has led 
 to the anomolous holding that a tenant at will is not liable 
 for his negligent burning of a building on the premises,^ 
 while in the same jurisdiction it was held that such a tenant 
 was liable for placing too great weight in a barn on account 
 of which the floors and other parts of the barn gave way.® 
 There is no question but that tenants for life and for years 
 are liable for the burning of buildings on the premises 
 through their negligence.^ There was at first some question 
 as to whether such tenants were not liable for the destruc- 
 tion by fire of buildings arising from mere accident without 
 negligence or wrong on the part of the tenant or anyone 
 else, but in England it was settled by statute that tenants 
 are not liable for such accidental burning,^ and it is well 
 settled in the United States that in the absence of negli- 
 gence or wilful wrong on their part or on the part of some 
 stranger they cannot be held.* 
 
 § 67. Waste in Equity. — The jurisdiction of equity over 
 waste must be considered with reference to two distinct 
 classes of cases, (a) Equity will enjoin threatened acts of 
 waste on the part of tenants for life or for years." (b) 
 
 4. U. 8. V. Bostwick, 94 U. S. 53 ; 8. St. 6 Anne, c. 31 ; 14 George III, 
 Lothrop V. Thayer, 138 Mass. 466; c. 78. 
 
 Sampson v. Grogan, 21 R. I. 174; g g^g ^^^ „^,t^ ^ ^„^ ^ g^. 
 
 Earle v. Arbogast, 180 Pa. St. 409. j 
 
 5. Lothrop V. Thayer, 138 Ma-ss. ,' _ ^ „.„ ^, . 
 
 ^gg *^ ^ 10. Hext V. Gill, 7 Oh. App. 699; 
 
 6. Chalmers t. Smith, 152 Mass. •^^°'=^°° ^- ^^^or, 5 Vesey 688; Fort- 
 ggj escue V. Bowler, 55 N. J. Eq. 741; 
 
 7. Clark v. Foot, 8 Johns. (N. Y.) I>ouglasa v. Wiggins, 1 Johns. Ch. (N. 
 421; Wainscott v. Silvers, 13 Ind. Y.) 435; Robertson v. Meadors, 73 
 497; Anderson v. Miller, 96 Tenn. 35, Ind. 43; Disher v. Disher, 45 N..b. 
 
 and cases cited in note 4 preceding. 100. 
 
100 Nature and Incidents op Owneeship of Land. 
 
 Equity will enjoin threatened acts of destruction to prop- 
 erty in several cases in each and all of wMch. the acts threat- 
 ened would not amount to legal waste. The term " waste " 
 is applied to these acts, which has led to some confusion. 
 In the first class of cases equity is dealing with legal waste, 
 in which an action at law to recover damages for waste 
 could be maintained. In the second class of cases no action 
 at law for damages would lie, as the acts of destruction 
 would not be waste in the legal sense. Waste of this kind, 
 recognized as such only in a court of equity, is called equi- 
 table waste. In the case of a tenant for life or for years 
 holding under a lease, deed or will which gives him an in- 
 terest in the property " without impeachment of waste," 
 no action for any act of destruction, however flagrant, could 
 be maintained against him by the remainderman or re- 
 versioner, since by the express terms of the instrument 
 creating his estate he is authorized to do anything which 
 would otherwise amount to waste. A court of equity, how- 
 ever, interprets the expression " without impeachment of 
 waste ' ' to mean that the tenant may cut timber, open mines 
 and generally do that which would otherwise amount to 
 waste, but with this limitation, that he shall not commit any 
 unconscionable act of waste, such as destroying the dwell- 
 ing, cutting down shade trees, etc., but must limit his acts 
 to such a use of the land as the average owner in the reason- 
 able exercise of prudent management would exercise.^ So, 
 also, in the case of a conditional limitation, as where prop- 
 erty is devised to A in fee, but if A should die without issue 
 the property shall go to B in fee, equity will enjoin A from 
 unconscionable acts of destruction of the same kind, not 
 coming within the limits of a reasonable user of the land 
 by an owner of average prudence.^ Another case where 
 
 1. Vane v. Lord Barnard, 2 Vern. 2. Turner v. Wright, 3 De Gex. F. 
 
 738; Rolt V. Soraerville, 2 Eq. Cas. & J. 234. 
 
 Atr. 759; Stevens v. Rose, 69 Mich. Tenant in tail after possibility of 
 
 259; Clement v. Wheeler, 25 N. H. issue extinct is not liable for waste, 
 
 861. having an estate of inheritance, yet 
 
OWNEESHIP OF TiMBEE, EuiLDINGS, EtO. 101 
 
 equity intervenes is in the case of a mortgagor who will be 
 restrained from acts which will tend to impair the security 
 of the mortgagee.' These are all cases of so-called waste 
 which are not recognized as waste in a court of law, and no 
 action would lie at law for relief. Legal waste can be com- 
 mitted as we have seen, only by a tenant for life or for years, 
 including tenants from year to year. There is no question 
 of legal waste involved in any of the above cases. These 
 cases have to do with the jurisdiction of equity and turn on 
 purely equitable doctrines and therefore require no further 
 consideration here. 
 
 § 68. Ownership of Timber, Buildings, etc., Wrongfully 
 Severed. — Timber or a fixture or building wrongfully sev- 
 ered by a tenant becomes at once the property of the owner 
 of the first estate of inheritance.* The tenant, however, is 
 entitled to whatever he rightfully severs, and in the case of 
 timber blown down by a storm, he is entitled to so much as 
 he would have had a right to cut, while the owner of the 
 first estate of inheritance gets the balance." 
 
 equity will restrain such tenant from White v. Cutler, 17 Pick. (Mass.) 
 
 unconscionable acts of destruction on 248; Johnson v. Johnson, 18 N. H. 
 
 the same principles. Williams v. Day, 594. 
 
 2 Chan. Cas. 32. 5. Bateman v. Hotehkin, 31 Beav. 
 
 3. Williams v. Chicago Ex. Co., 188 486; Herlakenden's Case, 4 Coke 63a; 
 111. 19; Hamilton v. Austin, 36 Hun Bowie's Case, 11 Coke 79b; Clement 
 138. V. Wheeler, 25 N. H. 361; Keeler v. 
 
 4. Bewick v. Whitfield, 3 P. Wms. Eastman, 11 Vt. 293 ; Dawson v. Coff- 
 267; Luohington V. Bolderno, 15 Beav. man, 28 Ind. 220; Warren Co. v. 
 1; Mooers t. Wait, 3 Wend. (N. Y.) Gans, 80 M'iss. 76; King v. Miller, 09 
 104; Lester T. Young, 14 R. I. 579; N. C. 583. 
 
109 Feeehold Estates. 
 
 CHAPTER m. 
 
 Freehold Estates. 
 
 A. — Development of Freehold Estates. 
 
 § 69. Nature of Estates in Land.— The term " estate," as 
 used in connection with the law of real property, signifies, 
 not the land itself, but the interest in the land which the 
 owner has, the nature, extent and duration of his ownership. 
 Thus one having a life estate in a specified parcel of land 
 has an estate or interest in the land which is measured by 
 the duration of his life ; a tenant for years has an estate or 
 interest in the land which will end with the expiration of 
 his term ; while a tenant in fee simple has an interest which 
 is unlimited and absolute. Estates for life, in fee simple 
 and estates tail are freehold estates, while tenancies for 
 years and all interests less than a life estate are called es- 
 tates less than freehold, and as we have seen, are regarded 
 as merely chattel interests in land, termed chattels real.^ 
 
 § 70. Estates in Land Before the Norman Conquest. — 
 
 The Anglo-Saxon customary law, as it was developed 
 by the G-ermanic tribes which invaded England and con- 
 quered the ancient Celts and Britains, forms the earliest be- 
 ginnings of the modern law of real property. It is probable 
 that the Angles and Saxons took with them into England 
 the essential features of land holding practised by them on 
 the continent.^ There seems to have been at first little or 
 
 1. See § 23, ante. 4-11. The conclusion drawn by Digby 
 
 2. Digby Hist. L. R. P. (5th ed.) ,1- is as follows: " On the whole, there- 
 4. For an acount of the probable way fore, we may conjecture that as a gen- 
 in which the Saxon conquest was ac- eral rule the different bodies of set- 
 complished and the way in which land tiers divided the land into townships 
 was at first held by the conquerors, Or districts bearing the main features 
 see Digby Hist. L. Real Prop., pp. of the Teutonic community, that prob- 
 
Estates in 'Land Befoee the Noeman Conquest. 103 
 
 no trace of the feudal system of holding from an overlord 
 wHch subsequently developed on the Continent of Europe. 
 During the Anglo-Saxon period grants of land were com- 
 monly made by the king as chief of the community with the 
 concurrence of the "Witanagemot or Witan, made up of the 
 great men and chief ecclesiastics of the kingdom. Such 
 land was termed booklalid, because granted by the use of 
 a " book " or charter. These grants were most frequently 
 made to religious bodies, the grants to individuals being 
 principally to the kings thegns. This land was held by 
 alodial holdings, viz.: in absolute ownership subject to no 
 superior and to no service or charge, except that it was 
 subject, like all land of the kingdom, to the duty of render- 
 ing military service and of repairing bridges and fortresses. 
 These duties were, however, in no sense feudal, but were 
 rather incidents of government.' Bookland could be freely 
 conveyed by the holders during their lives, or devised by 
 will. In case of intestacy it descended to the children in 
 equal shares, the law of primogeniture not existing in 
 Saxon times. The right to convey and to devise by will 
 could be limited and controlled, however, by the form of 
 the grant or charter, and the descent of the land could in 
 the same manner be limited to lineal descendants or to heirs 
 male or female.* 
 
 All land not so granted by " books " or charters was 
 termed folkland. This included land occupied by com- 
 munities subject to customary law which had never been 
 granted by " book " or charter, but over which such com- 
 munities had acquired rights by settlement and occupation; 
 and also wild and unoccupied lands from which grants 
 might be made by the king and Witan as representatives 
 
 ably a large district was allotted to plus land, increased perpetually, as 
 the leader a» his domain, and perhaps the boundaries of the occupied terri- 
 smaller districts to the king's immedi- tory are enlarged, by further eon- 
 ate followers. quests." (Digby, p. 11.) 
 " Over and above the land thus set- 3. Digby, pp. 11, 12, 13. 
 tied would be a large amount of sur- 4. Digby, 13, 14. 
 
104 Feeehold Estates. 
 
 of the kingdom. There is very little information to be had 
 as to the way in •which folkland was held, and the relations 
 existing between the community or its chief and the person 
 in actual possession. It is probable, however, that the in- 
 cidents of such holdings, and the duties attaching thereto, 
 were based rather on the idea of community of interest 
 among the members of each community, by means of which 
 their mutual rights and those of their chief were worked 
 out and exercised, than upon any idea of feudal relationship. 
 Folkland descended from ancestor to heirs, was probably 
 not subject to alienation, except with the king's consent, 
 and apparently could not be devised by will." 
 
 Any proprietor of land could permit another to have the 
 beneficial use of it with rents reserved payable in produce, 
 labor or money. The ownership of the property was not 
 thereby transferred, the tenant acquiring only a right to 
 use and enjoy the land in accordance with the terms of the 
 agreement. This was called laenland, and might be for a 
 life or lives, or for a definite period, and is the beginning 
 of the modern relation of landlord and tenant.® 
 
 During the latter part of the Anglo-Saxon period the 
 germs of the feudal relation in England seem to have been 
 formed. Large holdings of land were held by the thegns of 
 the king and other great men, and the parts not within the 
 actual possession of these men were occupied by tenants 
 who held subject to the payment of rents or dues to the 
 lords or great men to whom the land had been granted. 
 The relation of lord and man between the chief and the 
 members of the community existed in some form from the 
 beginning, and this relation came to be more and more 
 identified with the relation of each to the land.'' The Anglo- 
 Saxon system of land holding grew through the develop- 
 ment of local customs and laws little influenced by the forms 
 
 5. Digby, 15-18; 1 Pol. & Mait. 7. 1 Poll. & Mait. Hist. Eng. Law 
 Hist. Eng. Law (3d ed.), 61. (3d ed.), p. 61; Digby Hist. & Law R. 
 
 6. Digby, 16, 49, 50. P. 19-25. 
 
Intkoduction of Feudalism by Noeman Conquest. 105 
 
 of tlie feudal system wMcli had become generally estab- 
 lished on the continent of Europe before the Norman in- 
 vasion. The forms arid ideas of the feudal system were 
 entirely absent, though the rendering of dues and services 
 to the lord as incident to the holding of bookland by tenants 
 had come to exist to a very considerable extent shortly 
 before the conquest. 
 
 § 71. Introduction of Feudalism by the Norman Con- 
 quest. — The feudal system, which had become firmly es- 
 tablished among the Normans, and in many divergent forms 
 throughout the Continent of Europe, at the time of the 
 Norman conquest, involved two main purposes: first and 
 principally the rendering of military and other services 
 by the tenant to his over-lord, and second and incidentally 
 the giving of protection of property and person by the over- 
 lord to the tenant. Under this system the final or ulti- 
 mate property in land was in the king. His chief men held 
 great districts of the land of the kingdom from him as his 
 vassals, subject to the duty of rendering military and other 
 services to him. These great men, or lords, in turn granted 
 the land to their retainers or vassals, who in turn might, and 
 generally did, distribute their portions in the same way 
 to their defendents and vassals, subject to the duty on the 
 part of the vassals of rendering military and other services 
 to their over-lord in each case, the over-lord giving protec- 
 tion of person and property to them in return. In this 
 way the enforcement of law and order and the maintenance 
 of a military system to repel invasion or overthrow re- 
 bellion were identified with the holding of land. The ten- 
 ant in actual possession of a parcel of land, after the feudal 
 system was fully developed, was owner of it, having the ab- 
 solute right to its possession and control, his interest dif- 
 fering from alodial ownership only in this, that it was 
 subject to the rendering of military and other feudal ser- 
 vices to the over-lord, from whom he held the property.* 
 
 8. Maine's Ancient Law (1st Am. ed.), 280-294; Digby 30, 31. 
 
106 Freehold Estates. 
 
 On the conquest of England in 1066 by William the Con- 
 queror, the Normans brought with them this system of 
 land holding and of government, and it was quickly es- 
 tablished in England and extended to most of the land of 
 the kingdom. This was not accomplished all at once by 
 kingly fiat, or the like, but was the result of conditions ex- 
 isting after the conquest, and the action of social, econo- 
 mic and political forces which united to bring about this 
 result.^ At the time of the conquest the Anglo-Saxon king 
 was owner individually of extensive tracts of land. The 
 unoccupied land of the kingdom was also his as head of 
 the nation, subject to be " booked " or granted by him and 
 the Witan. As conqueror, William succeeded to all this, 
 tiie unoccupied lands becoming his absolutely, under the 
 rules of the feudal system. By the law of both England 
 and Normandy all land held by those who had resisted 
 him was forfeited to him. In this way he became owner 
 of a very large part of the lands of England. These lands 
 were granted to his followers, who became his tenants or 
 vassals, bound to render to him military service, and sub- 
 ject to the usual feudal incidents in accordance with Nor- 
 man customs. In addition to this, Anglo-Saxon land- 
 holders who had escaped forfeiture, in many cases surren- 
 dered their land to the king to receive it back from him sub- 
 ject to military service, homage, and the other incidents of 
 feudal holdings. By the time of Henry II the feudal sys- 
 tem was well established in England, and most of the land 
 of the kingdom was held by feudal over-lords." 
 
 § 72. Nature and Incidents of the Feudal System. — The 
 
 feudal system, as it was developed in England after the Nor- 
 man conquest, was really a system of government having 
 for its foundation the ownership and enjoyment of land, 
 on which the people of the kingdom depended almost ex- 
 
 e. 1 Poll. & Mait. Hist. Eng. L. (2d 10. Digby 34, 3S. 
 
 »d.), 79, 80; Digby 32, 33. 
 
Nature and Incidents of the Feudal System. 107 
 
 clusively for their liveliliood. The means of enforcing the 
 law of the land, of repelling invasion and putting down 
 rebellion, were secured by making military service to the 
 king a duty attendant upon the holding of land, so that 
 a continuance of such holding depended upon a faithful 
 discharge of such service. In this way the king always had at 
 his command the means of quickly raising an army for any 
 military service, and the overlords had the power and means 
 wherewith to put down disorder and to punish and prevent 
 lawlessness. By bringing himself within the system, and 
 making himself vassal to the overlord, the tenant acquired 
 the right to protection from him. In other words he secured 
 the benefits of the protection afforded by law and gov^ern- 
 ment in return for the feudal services to which he was 
 bound, and was made secure in his possession and enjoy- 
 ment of his land. 
 
 The fundamental principle of the feudal system was that 
 all the land of England belonged to the king; in the king 
 alone was to be found the allodial, or final or ultimate title. 
 In theory, and to a great extent in practice, as we have 
 seen, all the land of the kingdom was granted by the king 
 to the chief men or overlords to be held by them as the 
 king's vassals or tenants. These in turn divided their por- 
 tions respectively among others who thus became their 
 tenants or vassals. These tenants might divide their hold- 
 ings among others holding under them. This process of 
 subdividing or regranting the feuds or interests granted to 
 tenants was called subinfeudation. Chief above all stood 
 the king as the only final or allodial owner. His immediate 
 vassals, the great men or their successors to whom the 
 king had granted the land, were called tenants in capite, 
 or in chief. The final tenants who actually held posses- 
 sion of the land were called tenants paravail, and held, as it 
 was termed, in demesne. Those standing between the king 
 and the tenants paravail holding in demesne, were called 
 mesne lords. Tenants paravail, the last of the series, hold 
 
108 Feeeholo Estates. 
 
 ing tlie actual possession of the land in demesne, were en- 
 titled to its exclusive enjoyment and might use it or abuse 
 it as they pleased, subject only to the feudal service in- 
 cident to their tenure. Even the lord from whom the ten- 
 ant in demesne held the land could not enter and oust the 
 tenant without a judgment. If he did so he was guilty of a 
 disseisin. If a third party entered and ousted the tenant, 
 the injury was to the tenant, not to the lord. The right to 
 enjoy and control the property was in the tenant alone, 
 and therefore he alone was owner in the sense in which we 
 understand ownership today, subject only to the feudal 
 dues and services which bound him as holder of the land.^ 
 
 The overlord had rights in the land, but these were not 
 rights of dominion; they were rather rights arising out of 
 the dues and services which were attached to the holding of 
 the tenant. In turn the rights of the lord from whom the 
 tenants' immediate overlord held were rights which theor- 
 etically attached to the land, but they were not rights of 
 dominion, or ownership, but rights enforceable only against 
 the lord holding from him as tenant, and not against the 
 tenant in demesne. Each of the mesne or middle lords had 
 rights in the land, and each may be said to have " held " 
 the same piece of land, each holding from his immediate 
 overlord, but the rights and duties arising from such hold- 
 ings were rather rights to services and dues, and in no way 
 involved any right of dominion or ownership in the land.* 
 Tliis complicated situation continued till subinfeudation 
 was done away with by the statute Quia Emptores, which is 
 discussed in another place.* 
 
 Land to be held of a superior was granted by words of 
 pure donation, dcdi et conccssi, perfected by corporeal in- 
 vestiture by open and notorious delivery of possession in 
 the presence of other tenants of the neighborhood who 
 
 1. 2 Bl. Com. 53-59; 1 Poll. & 2. WilHam.s R. P. (17th ed.), 71, 
 
 Mait. Hist. Eng. L. (3d ed.), 233; 72; 2 Poll, i Mat. Hi^t. Eng. L. 2-6. 
 Williams R. P. (17th ed.), 44-46. 3. § T5, post. 
 
Tenuke. 109 
 
 iaight afterwards be called upon to bear witness to the 
 grant in ease of dispute. The tenant or vassal was required 
 to take the oath of fealty, or faithfulness, to his lord. He 
 also usually did homage to the overlord, at the time of the 
 grant, " openly and humbly kneeling, being ungirt, un- 
 covered, and holding up his hands both together between 
 those of the lord, who sate before him; and there professing 
 that he did become his man, from that day forth, of life and 
 limb and earthly honor, and then he received a kiss from 
 his lord."* 
 
 § 73. Tenure. — The holding and manner of holding lands 
 by a tenant from his overlord under the feudal system ia 
 called tenure. In England the king alone held land allodially, 
 that is absolutely, holding from no superior. All others, 
 as we have seen, held mediately or immediately of the 
 king. This system of tenure extends to every acre of land 
 held in the kingdom. The forms of tenure which developed 
 under the feudal system differed principally in the nature 
 of the services or dues which attached to the tenant's hold- 
 ing of his land. Thus tenure in chivalry, or by knight-ser- 
 vice called for military services on the part of the tenant. 
 This was the most ancient and honorable of all the different 
 forms of tenure. The tenant or knight was required to 
 render to his lord, and through his lord to the king, a 
 definite amount of military service, limited to 40 days each 
 year. As the maintenance of wars of any magnitude could 
 not be waged with soldiers serving for only forty days, the 
 practice of paying scutage, viz.: a sum of money in lieu of 
 military service, with which to hire soldiers, grew up at 
 an early date to the exclusion of the rendering of personal 
 military services.** The need of money on the part of the 
 overlord led to the development of other incidents of mili- 
 tary tenure calling for the payment of money. The earliest 
 
 4. 2 Bl. Com. 53, 54. 5. Digby Hist. h. E. P. (5th ed.), 
 
 39, 130, 131. 
 
llO ¥eee1ioli) Estates. 
 
 of these were called reliefs, viz.: the payment of dues by 
 the heir of a tenant in order that he might be allowed to 
 hold the land after the tenant's death. By the feudal 
 theory tbe admission of the heir to the land of his ancestor 
 was a favor to be paid for, but one that could not be de- 
 nied if the relief, or dues payable to the lord on the heir's 
 entry and rendering homage, was duly paid.^ The pay- 
 ment of aids was another incident attaching to military 
 tenures. Though at first exacted by the lord in a 
 very loose way, and for various purposes, the 
 injustice of the exactions made upon tenants in this form 
 caused the enactment of statutes which limited aids to three 
 cases, (1) to ransom the person of the lord when he was cap- 
 tured by an enemy, (2) to supply a marriage portion or 
 dowry for his eldest daughter, and (3) to meet the expense 
 of conferring the order of knighthood upon his eldest son. 
 The amount required from each tenant was also restricted 
 in the two latter cases, but in the case of ransoming the 
 lord 's person, the amount was left to be determined by the 
 necessity of each case.'' 
 
 The incidents of wardship and marriage became rights 
 of the greatest importance to the lord and constituted the 
 heaviest burden to the tenant. If the feud or fee descended 
 to a male heir under the age of twenty-one, or to a female 
 heir under the age of fourteen, the lord was entitled to the 
 possession and enjoyment of the land, and of the income 
 therefrom during the heir's minority, without obligation 
 to account therefor, his obligation being to make reasonable 
 use of the land, and to commit no waste. During the heir's 
 minority the lord was also guardian of his or her person, 
 and he was obliged to support and educate his ward out of 
 the income derived from the land so held. Wardship con- 
 tinued as an incident of tenure until abolished by 12 Car. II, 
 
 6. Digby 40; 2 Bl. Com. 65, 6C; 1 7. Disby Hist. L. R. P. (5th ed.), 
 
 Poll. & Mait Hist. Eng. L. (2d ed.), 41; 1 Po.l. & Mait. Hist. Eng. L. (2d 
 308. ed.), 350; 3 Blackstone 64. 
 
Tenxtee. Ill 
 
 eh. 24. The right to control the marriage of such wards 
 grew out of the right of wardship. The lord could select 
 the person to whom the ward was to be given in marriage, 
 and in case the ward (male or female) refused to enter 
 into the proposed marriage, he or she forfeited to the lord 
 an amount equal to the value of the marriage to him, viz.: 
 the amount the lord was to receive from the proposed suitor 
 in return for the marriage with the ward. There was clearly 
 no feudal justification of this incident of tenure, and its 
 existence must be attributed solely to the avarice of the 
 great lords through whose power it became established 
 as a property right.* 
 
 The right of escheat was the lord's right to become full 
 and complete owner of the land on the tenant 's death with- 
 out heirs. As between lord and vassal this right depended 
 entirely upon tenure. The tenant held an estate only, hold- 
 ing from his overlord as superior, and therefore even an 
 estate in fee simple, capable of being inherited forever, 
 necessarily came to an end on the death of the tenant with- 
 out heirs, and vested in the lord as owner, holding from Ma 
 overlord, the king.* This right of escheat exists today in 
 every American state as an incident of sovereignty, en- 
 tirely apart and distinct from any feudal principle.^" 
 
 It is clear that the collection and payment of scutage 
 instead of the rendering of personal military service, and 
 the enforcement of the various and vexatious exactions 
 above described, changed completely the character of mili- 
 tary tenures, and made them as undesirable as they were 
 at first superior and honorable. They were finally abol- 
 ished by statute," and tenure in socage, which had been 
 constantly gaining ground on military tenure, took their 
 place. 
 
 Tenure in socage took its origin, undoubtedly, from Saxon 
 
 8. Digby 41, 42; 2 Bl. Com. 67-69. 10. 3 Kent's Com. 512. 514; Reeve's 
 
 e. Digby 43; 2 Bl. Com. 72. Real Property, § 390. 
 
 11. 12 Car. II, ch. 24. 
 
112 Feeeiiold Estates. 
 
 holdings heretofore described, in which tenants held free 
 from feudal burdens except the obligation of paying to 
 the overlord a fixed sum, or a certain amount of produce, 
 as rent. Tenants in socage were free from the obligation 
 of rendering military service or paying scutage as a sub- 
 stitute therefor, and in general were free from the incidents 
 of military tenures which were uncertain and indefinite. 
 The certainty and definiteness of the rent charge or service 
 were its chief characteristics, the term socage evidently ex- 
 pressing this freedom of the socage tenant from the un- 
 certain burdens of military tenures.*^ 
 
 Tenants by free and common socage tenure were required 
 to take the oath of fealty and generally, though not nec- 
 essarily, to do homage to the lord. They were also subject 
 to the incidents of relief and aids, as above described in 
 connection with military tenure. The relief usually took the 
 form of double rent for the year following the ancestor's 
 death. The incidents of wardship and marriage never at- 
 tached to socage tenure. The guardian in socage of in- 
 fant heirs was the oldest male relative, and he was subject 
 to an accounting for the rents and profits of the lands when 
 the infant heir became of age.^' 
 
 By statute (12 Car. II, ch. 24), relief, aids, and all other 
 feudal incidents of socage tenure were abolished, except 
 fixed rents, guardianship in socage and escheat, which were 
 expressly preserved. It also left the oath of fealty subject 
 to be demanded at any time.^* 
 
 Burgage tenants were tenants holding lands by socage 
 tenure in towns. The ordinary incidents of socage tenure 
 attached, subject, however, to certain local customs which 
 came to be recognized as attaching to lands held in this way, 
 particularly with reference to their descent and disposition 
 by will. Before the first statute of wills and after feudalism 
 became established, land could not be devised by will. But 
 
 12. Digby Hist. L. R. P. (5th ed.), 13. 2 Bl. Com. 86-89; Digby 45-48. 
 
 45-48; 3 Bl. Com. 75, 78. 14. Ibid. 
 
Tenuee, 113 
 
 most of the land held in burgage tenure could be devised by 
 will by force of local custom just as before the conquest, 
 local custom prevailing to this extent over feudal rules. 
 In some cases the widow, by similar custom, was endowable 
 of all her husband's land, instead of one-third thereof. One 
 of the most remarkable of burgage tenures was called 
 borough English, the youngest son inheriting instead of the 
 eldest, by virtue of local custom.' ^ 
 
 Gavelkind tpnure was a species of free socage tenure 
 ■which existed in the County of Kent. This tenure may be 
 traced very clearly from Anglo-Saxon holdings, feudalism 
 in this instance having imposed very few of its burdens. 
 Besides being subject to a fixed and certain rent, 
 lands held by this tenure descended equally to all the 
 sons of the tenant, could be devised by will, and did not 
 escheat to the lord in case of attainder for felony.** 
 
 Villienage; Copyhold Tenure. — Besides the freehold 
 tenures above described there was another large and im- 
 portant class of tenants who held land, not as freemen and 
 freeholders, but as villiens or slaves, being bound to render 
 base services to the lord in return for their holdings, such 
 as the ploughing and cultivating of his land retained by him 
 for his over immediate use and enjoyment. They belonged 
 to the manor, could not leave it, might be beaten and pun- 
 ished by the lord at his pleasure, so long as he committed 
 no violent crime against their persons or did them no ser- 
 ious personal injury. They held at first at the lord's will 
 and pleasure, but gradually customs developed in con- 
 nection with their holdings, which customs became matters 
 of record on the rolls of the court of the manor in which they 
 enjoyed their holdings. The king's courts gradually came to 
 recognize these customs and to enforce them. By this time 
 such tenants had become free, and were able to enforce 
 
 15. Digby Hist. L. R. P. (5th ed.), 18. Dig-by 47, note 3; 2 Bl. Com, 
 
 47, 48. 84; 2 Poll. & Mait. Hist. Eng. L. 872. 
 
 8 
 
114 Fekbhold Estates. 
 
 their rights against the lord in the king's courts. A copy 
 of the rolls of the manorial court was the only evidence such 
 tenants had of their title and rights in the land. For this 
 reason they were called copyholders, holding by copy- 
 hold tenure. Therefore a copyhold estate is one which 
 Vv'as originally held in pure villienage at the will of the 
 lord, hut which has become modified and changed by cus- 
 toms which fix and establish the respective rights of the 
 lord and tenant, those customs being evidenced by the rolls 
 of the manorial court, and enforceable against the lord 
 by action of the tenant in the common law courts. In time 
 copyhold tenures came to have the same characteristics as 
 free tenures, except as modified by local customs of the 
 manor. ^^ 
 
 Grand Sergeanty, Petty Sergeanty, Frankalmoin. Besides 
 the tenures heretofore mentioned there existed tenure by 
 grand sergeanty, in which case land was held of the king 
 subject to the duty of rendering to him some personal ser- 
 vice of an honorary character, such as to bear his sword or 
 banuer, to act as his messenger, forester, butler, chamber- 
 lain, and the like. Tenure by petty sergeanty existed 
 where personal services of a like nature were rendered by 
 a vassal to a lord as incident to the holding of land from 
 him.!** Another, and very important tenure, was frankal- 
 moin, and was the holding of land by a religious person, 
 body or corporation, the dues being spiritual, such as the 
 saying of prayers, the solemnizing of masses and the like 
 for the soul of the donor or of others. No money dues or 
 military service of any kind attached to this form of tenure. 
 The spiritual services to be rendered were enforceable as a 
 matter of church discipline, but in no way by the secular 
 courts.*** 
 
 17. Digby 50, 51, 388-395; 2 Bl. 19. 1 Bract. 207; 2 Bl. Com. 101, 
 Com. 93, 95-98. 102; 1 Poll & Malt. Hist. Eng. L. 
 
 18. 3 Bl. Com. 73; 1 Poll. & Mait. (3d ed.), 240-244. 
 Hist. Eng. L. 2S7-290. 
 
Manoes. 115 
 
 § 74. Manors. — The practical operation of the feudal 
 system, and the way in which the different kinds of tenure 
 were employed may be best understood from a consideration 
 ■of the manorial system. We have seen that before the 
 conquest large districts of land were held by king's thegns 
 or great men, and were occupied by tenants holding small 
 parcels for which rent or other service was paid or rend- 
 ered.^ After the conquest these districts were either for- 
 feited and granted by the king to his chief men, or they 
 were surrendered and received back from the king as su- 
 preme lord. Most of the land of England, though not all, 
 was granted in this way, originally by the king, in great 
 districts, to the great men of the kingdom. A district so 
 granted was called a manor. Of this the lord retained a 
 portion for his house or castle and for his own exclusive 
 possession and use, called his demesne. Another part of 
 the manor was granted to the lord's freemen, holding by 
 military tenure or knight service, and by free socage. A 
 third part was placed in the possession of villeins, or vas- 
 sals who were not freemen, as above described. The bal- 
 ance of the manor was left unoccupied as waste land, to be 
 used in common by lord, vassals and tenants in accordance 
 with the customs of the manor. There was no demarca- 
 tion of fixed portions for each purpose. Lands granted 
 to freemen might be and undoubtedly were separated, as to 
 parcels, by lands placed in the possession of villeins, or 
 lands left waste, as the convenience and mutual interests of 
 the parties should require. It was usual for the lord to 
 let part of his demesne lands to farmers to work it, render- 
 ing rent in produce or money, pursuant to a covenant or 
 lease, binding only as between the parties, creating no es- 
 tate as to third parties, but simply giving rise to mere con- 
 tractual rights as between the farmer and lord, in no way, 
 therefore, amounting to socage tenure.'' Sometimes sev- 
 
 l. See § 70, note 6, ante. 2. Digby Hist. L. R. P. (5th ed.), 
 
 49, 50. 
 
116 Feeehold Estates. 
 
 eral manors were held by a single lord, in which cases a 
 single court was usually maintained for all the manors, such 
 court being the court of each manor.^ 
 
 The Manorial Court, called Court Baron, was maintained 
 by the lord, through which court offenses committed by ten- 
 ants and others within the manor might be punished, and 
 controversies arising between tenants might be settled. This 
 court exercised a jurisdiction over the manor and its people 
 which was partly ministerial and partly judicial. Property 
 rights of tenants were determined, customary rights de- 
 clared and rights of common passed upon. The 
 records of the manorial court, showing the customs 
 of the manor and the rights of the tenants who were 
 not freeholders, were the sole evidence of title that copy- 
 hold tenants possessed.* 
 
 § 75. Creation and Transfer of Freehold Estates Under 
 Feudal System; Seisin. — During the Anglo-Saxon period 
 book-land held allodially could be transferred by the owner 
 during his life, and by will at his death. The transfer of 
 folkland by grant and its disposition by will were hampered 
 by customs attaching to such holdings, as has been already 
 pointed out.^ When feudalism became established the 
 right to dispose by will of land held by feudal tenants or 
 vassals was lost, since it was regarded as repugnant to the 
 feudal relation to permit vassals to will the land to persons 
 who might be stangei.3 to the lord, perhaps his enemies. Not 
 until the Statute of "Wills was enacted (32 Henry VIII, ch. 
 32, § 1), was the power to dispose of land by will restored 
 
 3. Digby 43-53; 2 Bl. Com. 90; to the court, and would have said, 'A 
 Poll, k Mait. Hist. Eng. L. {2d ed.), single court is held for it, therefore 
 364. it is a manor,' rather than ' It is a 
 
 4. Digby 53-55. manor and therefore it has a court.' " 
 " In particular, it seems to us that 1 Poll. & Mait. Hist. Eng. L. (2d ed.), 
 
 the men of the time would generally 605. 
 
 have argued from the court to the 5. Sfe § 70, ante. 
 
 manor, rather than from the manor 
 
Ceeation ahd Teansfee of Feeehold Estates. 117 
 
 to feudal tenants. As we have already seen, the power of 
 disposition by will was preserved by special custom in cer- 
 tain cases of tenants holding by burgage tenure and gavel- 
 kind tenure.^ Absolute alienation inter vivos under the 
 feudal system was subject to the consent and approval of 
 the lord, and was so hampered by restrictions that the pro- 
 cess of subinfeudation, heretofore explained,'^ was resorted 
 to by tenants. This resulted in serious loss to the lords. 
 Thus when a tenant or vassal transferred his feud by sub- 
 infeudation to another, that other becoming his tenant, 
 and owing to him as lord a service or pajnnent in return 
 therefore, all the overlord was entitled to in case of escheat, 
 or in case the tenant died leaving an infant heir, was the rent 
 or service reserved by the tenant from the sub-feudatory to 
 whom he had subinfeudated the land.* The danger to the 
 feudal relation from this practice was obvious. It was pro- 
 vided by Magna Charta (1217) that "no free man shall 
 henceforth give or sell so much of his land as that out of 
 the residue he may not sufficiently do to the lord of the 
 fee the service which pertains to that fee." This provision 
 proved to be uncertain and inadequate, and to remedy the 
 difficulty the statute Quia Emptores, or statute of West- 
 minster m (18 Edw. 1, ch. 1), was enacted in 1290. 
 
 The Statute Quia Emptores is of the first importance in 
 the history of the development of the law of real property. 
 It did away absolutely with subinfeudation. It enacted that 
 thenceforth it should be lawful for every freeman to sell 
 at his own pleasure his lands and tenements, or part of them, 
 so that the feoffee should hold the same lands and tenements 
 of the chief lord of the same fee by such services and cus- 
 toms as his feoffor held before. The services were to be 
 ratably apportioned in case only a part of the land held by 
 the tenant should be transferred by him. The statute ap- 
 plies only to estates in fee simple, where the tenant trans- 
 
 e. See § 73, ante. 8. Digby Hist. L. R. P. (5th ed.), 
 
 7. See § 73, ante. 835. 
 
118 Eeeehold Estates. 
 
 fera his entire interest, and does not apply to the creating of 
 life estates or any other estate less than fee with a rever- 
 sion remaining in the grantor. In these latter cases tenure- 
 might still exist between the grantor as owner of the rever- 
 sion and his tenant. 
 
 The result of the statute was that thereafter tenants 
 might convey their feuds or estates at pleasure, the effect 
 of the conveyance being to remove them absolutely froni' 
 the feudal relation with the lord in so far as the land was 
 concerned and to substitute in their places the persons to 
 whom the land had been conveyed. These grantees or feo- 
 ffees took the land subject to the same feudal dues and ser- 
 vices as bound the tenant who made the feoffment. Thus 
 the lords gave up their right to control alienation of the- 
 land and the consequent right of determining the persons- 
 who might hold under them, but received in return security 
 in their enjoyment of their feudal rights freed from the- 
 dangers arising from subinfeudation.® 
 
 After the statute no new tenure could be created in lands 
 already granted by the king, and the only new tenure which 
 could possibly be created was by grant from the king to ten- 
 ants in capite, holding directly from him. Therefore there 
 could be no other manorial or mesne lords except those 
 created before the statute and their descendants. Grad- 
 ually as time has passed, and as the incidents which made 
 the feudal relation of value to the lord have been swept 
 away, the feudal relation of lord and tenant has disappeared, 
 so that at present in England most of the land is held di- 
 rectly of the king without the intervention of a mesne 
 lord," and the tenure existing is that of free and common 
 socage. 
 
 9. Digby Hist. L. E. P. (5th ed.), In socage tenure, -when no rent was 
 334-339; Williams R. P. (17th cd.), payable and no value attached to the 
 79- service, there was no motive of keep- 
 
 10. " Gradually by successive alien- ing up the empty ceremony of fealty 
 ations the tie between the chief lord and thug in many cases the relation of 
 and the freeholder becomes weakened, lord and tenant became altogether ob- 
 
Ceeation and Transfeb of Feebhold Estates. 119 
 
 Livery of Seisin. — A feud or fee was created or trans- 
 ferred by a deed of feoffment with, livery of seisin. The 
 ceremony of livery of seisin was a formal procedure the 
 purpose of which was to impress upon the minds of the 
 other freeholders of the manor, or of the same lord, who 
 were present, the facts attending the conveyance, so that 
 they might bear witness to what took place thereafter in 
 case of dispute, "for in case of dispute as to the title to 
 the lands, or the right to services, aids or reliefs, the fact 
 of this open and notorious livery of seisin enabled the lord 
 to appeal to the tribunal before which, since the reforms 
 of Henry II, suits relating to land were commonly decided — 
 the verdict of twelve legales homines de vicineto, who would 
 know themselves or have heard from their fathers the truth 
 of the matter."" This ceremony consisted in the feoffor 
 and feoffee going on the land to be conveyed and the deliv- 
 ering to the feoffee of a clod of earth, or a branch or twig on 
 the land as a symbolical delivery of the land itself. It was 
 a sufficient livery of seisin, however, if the two parties were 
 actually present on the land and formal possession thereof 
 was transferred by word or act. Even going in sight of the 
 land to be transferred and giving to the feoffee power to 
 enter as owner was a sufficient livery, provided an actual 
 entry was thereafter made by the feoffee during the life of 
 the feoffor." A deed of feoffment was usually delivered 
 
 literated. Finally, when all the valu- manor, and the relation between the 
 
 able incidents attaching to knight- freeholder and the lord of the manor 
 
 service were abolished, and the tenure has been kopt up by the recognition 
 
 itself converted into socage by the of mutiial r'gtits and duties, such as 
 
 statute of Charles (13 Car. II, c. 24), the payment of rents, or rendering 
 
 the relation between the freeholder hcriots or other duties to the lord." 
 
 and his lord fell into abeyance, and Digby Hist. L. R. P. (5th ed.), 235, 
 
 the freeholder became for all practical 336. 
 
 purposes owner of the soil. Thus at 11. Digby Hist. L. R. P. (5th ed.), 
 
 the present day in the great majority 147. 
 
 of cases no intermediate lord is recog- 12. Digby Hist. L. R. P. (5th ed.), 
 
 nized between the freeholder and the 146, 147; Bracton, Lib. II, eh. 18, foL 
 
 crown, except where the freehold i.' 39. 
 within the known precincts of a 
 
120 Feeehold Estates. 
 
 to tlie feoffee at tlie same time, which, defined the interest 
 transferred or created, and the extent of the land conveyed. 
 Only present estates in possession could be created or trans- 
 ferred by feoffment with livery of seisin. Future estates, 
 easements and incorporeal interests not involving posses- 
 sion could be created only by deeds of grant, without livery 
 of seisin. Hence the distinction between estates which " lie 
 in grant " and estates or interests which " lie in livery." ^' 
 
 Seisin is a principle of the greatest importance in the 
 law of property, both under the feudal system and during 
 the entire history of the law of property down to and in- 
 cluding the modern law. A person is " seised " who is in 
 possession of the land in question, having therein or claim- 
 ing to have a freehold estate. A freehold estate is, as we 
 shall see,^* either an estate in fee or a life estate, these es- 
 tates alone requiring livery of seisin for their creation inter 
 vivos. A man in possession as tenant for a term of years, 
 or under a license is not seised. He must be in possession 
 as owner of an estate in fee simple or tail or a life estate. 
 Actual possession by such a tenant is actual seisin. If a per- 
 son is entitled to the immediate possession, not having as yet 
 entered, he is said to have " seisin at law," provided the 
 land is not in the adverse possession of another. A person 
 in adverse possession, claiming to hold as freeholder ad- 
 versely to the title of the record owner, is seised of the land, 
 his seisin resulting from the disseisin committed against the 
 true owner, who must enter and oust the disseisor, or re- 
 cover the property by action at law, in order to recover his 
 
 § 76. Freehold Estates as DistinguishedfromEstatesLess 
 Than Freehold. — From what has been said heretofore it 
 will be seen that a freehold estate is an estate of a free- 
 
 13. Digby Hist. L. R. P. (5th ed.), 15. 2 Poll. & Mait. Hist. Eng. L. 
 860, 261; Co. Lit. 9a, 49a, 172a. (2rl ed.), 29 39; Dig*y Hist. L. R. P. 
 
 14. See § 76, post. (5th ed.), 108, 109. 
 
Tenuek in the United States. 121 
 
 man, holding under tlie feudal system from an overlord 
 either as tenant in chivalry (military tenure) or by free and 
 common socage, and not as a villein, serf, or mere contrac- 
 tual tenant. Such feuds in England after the conquest were 
 at first estates in fee only, hut later life estates were rec- 
 ognized as freehold estates held by freemen subject to the 
 incidents of feudal tenure, and created or transferred only 
 by livery of seisin. Estates less than freehold were not at 
 first recognized as subsisting interests in land. A farmer 
 to whom the lord of the manor might let part of his demesne 
 land had only a contractual relation with the lord; he was 
 not regarded as having any ownership of the land itself. He 
 had no remedy against a stranger who might oust him, and 
 he could not recover the land from the lord, should the 
 lord oust him, his remedy being limited to an action for 
 damages for breach of covenant. Later when by statute 
 tenants for years were given the right to maintain and re- 
 cover possession of their land not only as against strangers 
 but against the lord himself, their interests came to be rec- 
 ognized as estates in the land, but estates of a lower nature 
 not amounting to the dignity of a freehold, since they in no 
 way involved any element of the feudal relationship. This 
 interest, therefore, continued to be regarded as a con- 
 tractual interest of a personal nature, not amounting to 
 real estate, and is termed a chattel real. Estates less than 
 freehold are, therefore, tenancies for years, from year to year, 
 etc., and are treated as personal property, being personal in- 
 terests in real property.^ Freehold estates required livery 
 of seisin for their creation, while estates less than freehold 
 could be created by contract merely without livery or any 
 other formality.^ 
 
 § 77. Tenure in the United States.— The land of the 
 American colonies was held under royal grants, and the 
 
 1. 2 Bl. .Oom. 103; Williams E. P. 2. Ibid. 
 
 (17th ed.), 70, 71; Digby Hist. L. E. 
 P. (5th ed.), 176. 
 
122 Fkeehold Estates. 
 
 tenure under whicli it was held was that of free and com- 
 mon socage. As the statute Quia Emptores undoubtedly 
 applied to these grants, the only tenure which could exist 
 was between the owners or holders and the king. After the 
 revolution the various States succeeded to the king's feudal 
 rights, and therefore any tenure existing in the United 
 States exists only between the state and the owTier and 
 holder of the land. Every incident of feudal tenure has 
 been abolished, no state has put forth any claim to feudal 
 rights, and in some states, as in New York, it is expressly 
 provided that the land of the state is held by allodial owner- 
 ship, free from tenure in any f orm.^ The safe conclusion is, 
 therefore, that tenure does not exist as a practical matter 
 in the United States, but that the land is held allodially free 
 from tenure and the incidents of tenure. The feudal term 
 " escheat " is still used as expressing the reverting of land 
 to the state on the death of the owner intestate and with- 
 out heirs, but this is an incident of sovereignty existing 
 without any connection with the escheat of the feudal sys- 
 tem, which existed as a right of tenure, not as a right of 
 sovereignty.* 
 
 B. — Estates in Fee. 
 
 § 78. Estates in Fee Simple. — A tenant in fee simple is 
 one holding land to himself and his heirs forever. It is the 
 greatest estate in land which can be held, constituting ab- 
 solute ownership. The original meaning of the word fee 
 (feodum), as Blackstone points out, is synonymous with 
 " feud " or " fief," and indicates a feudal holding from an 
 overlord as distinguished from allodial ownership,^ but this 
 
 3. N. Y. Const. Art. I, §§ 11, 12. Georgia tenure between the owner and 
 
 Constitutions or statutes in many the state 13 recognized by statute, but 
 
 other states, including Connecticut, has no practical significance. See 
 
 Ohio, Minnesota, Wisconsin, Cali- Reeves R. P., § 289. 
 
 fomia, Virginia, West Virginia and i. 3 Kent's Com. 512-514; Reevet 
 
 Kentucky are to the same effect. R. P., § 290. 
 
 In New Jersey, South Carolina and 1. 2 Bl. Com. 104. 
 
Base or Qualified Fees. 123 
 
 original meaning has long since been lost. A fee signifies 
 an estate of inheritance, an estate wHcli will continue in the 
 holder — his heirs and assigns, forever, subject only, under 
 the feudal system, to the feudal bond of tenure, and subject 
 today only to such remnants of tenure as continue to 
 exist.^ A fee simple, as distinguished from a fee tail, is an es- 
 tate limited to a man and his heirs generally, no particular 
 class of heirs being specified, while a fee-tail is an estate 
 limited to one and the heirs of his body, only lineal descend- 
 ants being capable of inheriting. 
 
 Since the fee represents absolute ownership which may 
 continue for an infinitely long time in the owner, his heirs and 
 assigns, it follows that no estate in the land can exist as a 
 remainder or reversion after the fee. The owner may create 
 a life estate, a term of years or even a fee-tail out of his es- 
 tate in fee simple, and there will still remain in him a re- 
 version in fee. In other words the fee may be divided into 
 one or any number of particular estates, as estates less than 
 fee are called, and a reversion retained by such owner, or he 
 may transfer the balance of the fee to a third person at the 
 same time the particular estate or estates are created, in 
 which case such third person's interest is called a remainder 
 in fee. 
 
 § 79. Base or Qualified Fees; Estates Upon Limitation 
 and Upon Condition. — A base or qualified fee is one which 
 
 2. 2 Bi. Com. 104, 105. land all trace of the feudal relation, 
 
 As stated by Mr. Williams, "In except between the owner in fee and 
 
 modern times the incidents which the king, lias been lost with reference 
 
 mark the relations of lord and free to by far tlie greater part of the land, 
 
 tenant of a fee, rarely occur in prac- and tliat in the United States the re- 
 
 tiee, and are an insignificant buiden lation does not exist, even in theory, 
 
 On the tenant and of smuU profit to in most states, and that in those states 
 
 the lord. For the latter now has no where it may still be traced a* a 
 
 possibility of deriving any substantial theoretical principle, it haa ceased to 
 
 benefit from his position excppt in the have any significance, the right of 
 
 case of escheat, and this can only hap- escheat being regarded as an incident 
 
 pen when the tenant dies intestiitp and of sovereignty inseparable from tha 
 
 without heirs." WilHams E. P. (17th state. See § 77, ante. 
 ed.) 70. It may be added tha* \n Ens- 
 
124 Freehold Estates. 
 
 is made, by the deed or will creating it, subject to be brought 
 to an end on the happening of some collateral event, as 
 where land is granted to A and heirs until B returns from 
 Eome, until Gloversville is incorporated as a village, aa 
 long as the property granted shall be devoted to the uses and 
 support of religion, and the like. In such cases the entire 
 fee passes to the grantee or devisee, subject, however, to be 
 brought to an end and to revert back to the grantor or heirs 
 of the devisor on the happening of the collateral event 
 which is thus set up as the outer boundary or limitation 
 of the estate.* Base fees have been recognized by Black- 
 stone, Kent, and most writers on the subject as valid and 
 existing estates in modern times. It has been urged, how- 
 ever, that the statute Qida Emptores did away with these- 
 estates, and that when created after the statute they be- 
 came estates in fee simple, the limitation being void. It 
 is argued that the right of reverter from grantee to grantor, 
 in case the limitation on which the estate depended should 
 happen, was an incident of tenure in the nature of 
 escheat between the parties; that the statute Quia 
 Emptores did away with tenure as between grantor 
 and grantee, and therefore did away with this right of 
 reverter which depended upon tenure.* In any case where 
 land is held subject to feudal tenure this position is unques- 
 tionably sound though there is little or no authority in the 
 English cases, touching the question. In the United States, 
 in the few cases which have arisen, base fees, or estates in 
 fee upon limitation, have been expressly recognized, the 
 courts taking the position that as tenure either does not 
 exist or has no significance in the United States, the argu- 
 ment in question can have no application to allodial owner- 
 ship which prevails throughout the United States. There 
 seems to be no good reason why an allodial owner may not 
 
 3. 3 Bl. Com. 109; 4 Kent Com. 9- 4. Gray, Perpetuities (2d ed.), §§ 
 
 11; Leonard v. Burr. 18 N. Y. 96; 33,33,36,38,39; Sanders, Uses, 300; 
 
 First Universalist Society, etc. v. Leake Land Law 35. 
 B(.Und, 155 Mass. 171. 
 
Base oe Qualified Fees. 125 
 
 -create an estate in fee wliicli will revert to himself and tls 
 heirs on the happening of some event in the future by way 
 -of limitation upon the estate created. There is no question 
 but that a limitation over to another person on the happen- 
 ing of a future contingency would be good as a conditional 
 limitation under the modern statutes,^ and there would seem 
 to be no reason why an express provision to the effect that 
 the estate should revert to the grantor or his heirs should 
 not be equally effective. The absence of such express pro- 
 vision should make no difference; it is clearly implied 
 that on the happening of the limitation the estate should 
 revert to the grantor or his heirs, and an express provision 
 to that effect is unnecessary. One holding by absolute and 
 allodial ownership is permitted to dispose of his property 
 as he pleases, creating such interests therein as he may de- 
 .sire, so long as he violates no rule of law and the interest 
 •created or condition imposed is not contrary to public 
 policy. There would seem to be no reason why he cannot 
 -create an estate in his land which will be determinable on 
 the happening of some collateral event, and it would seem 
 to be consistent with the modern principles of ownership 
 that on the termination of such estate the property should 
 become his again, even in the absence of tenure between 
 iimself and his grantee. In other words, the right of rever- 
 ter may exist entirely apart from tenure as an incident of 
 allodial ownership.® 
 
 As the statute Quia Emptores had no application to es- 
 tates for life or tenancies for years it follows that estates for 
 life or tenancies for years may always be made subject to 
 collateral limitations on the happening of which the es- 
 tate comes to an end, the land reverting to the reversioner or 
 passing to the remainderman. 
 
 By modern usage base or qualified fees and other estates 
 which are made subject to a collateral limitation are called 
 
 5. S-e §§ 350, 351, post. Boland, 155 Mass. 171; Leonard v. 
 
 8 First Universalist Society, etc. 7. Burr, 18 N. Y. 96. 
 
12G Fkeehold Estates. 
 
 estates upon limitation. They differ radically from es- 
 tates upon condition in that they come to an end in and of 
 themselves by the mere happening of the limitation on 
 which they depend, while estates upon condition are not 
 brought to an end by breach of a condition. Such breach 
 gives to the grantor or his heirs, or the heirs of the devisor, 
 as the case may be, the right to terminate the conditional 
 estate by making an entry thereon for that purpose, or by 
 starting an action of ejectment, which has the same ef- 
 fect as an entry. An estate upon condition is one made 
 subject to forfeiture for breach of a condition contained 
 in the deed or will creating the estate. "Words of condition, 
 such as " if , " " on condition that, " " provided that, ' ' are 
 used. Compliance with the condition is enforced by the 
 penalty of forfeiture. No idea of penalty or forfeiture is 
 involved in an estate upon limitation. The happening of 
 the future contingent event terminates the estate because 
 it was the intent and purpose of the grantor or devisor that 
 the estate should end on the happening of the limitation. 
 Words of duration, such as " while," " during," " as long 
 as, " " until, ' ' are used in their creation. 
 
 The possibility of reverter on the happening of the limi- 
 tation is all that remains in the grantor or heirs of the 
 devisor of an estate upon limitation in fee. The possibility 
 of a right of entry for breach of condition is air that remains 
 in the grantor or heirs of the devisor of an estate upon 
 condition in fee. In each case this possibility could not 
 be assigned or conveyed at common law, and therefore could 
 not be limited over to others on the termination of the 
 estate upon limitation or condition. As these limitations 
 and conditions may be applied to every kind of estate, in 
 fee, for life and for years, and are not incidents of estates in 
 fee alone, a consideration of them in detail is reserved for 
 a later chapter.' 
 
 7. See Ch. XII and Ch. XVI, post. 
 
Cbbation of Estates of Fee bt Deed. 127 
 
 § 80. Creation of Estates in Fee by Deed. — At common 
 law estates in fee, including estates in fee simple and es- 
 tates in fee upon limitation, or base fees as tbey were termed, 
 could be created by deed inter vivos only by tbe use of the 
 word " heirs " in some operative part of the deed. No 
 matter how clearly the intent of conveying an absolute es- 
 tate in fee might be expressed, only a life estate would pass 
 if the word " heirs " was not used. Thus a conveyance 
 " to A and his issue forever," " to A in fee simple," " to 
 A absolutely and forever," " to A and his heir " the singu- 
 lar being used, would be effective in each case only as 
 creating a life estate.^ The explanation of this technical 
 rule is based on the historical development of the right to 
 convey the interest held by a tenant under the feudal sys- 
 tem. At first such tenants held subject to their over-lord's 
 pleasure, later the interest of such tenants developed into 
 life estates; still later a grant to a tenant and his heirs was 
 regarded as a life estate with an estate arising in the heirs 
 of the tenant on his death. Soon after the establishment of 
 the feudal system in England, following the Norman con- 
 quest, a grant to a tenant and his heirs had come to mean 
 an absolute estate in the grantee or feoffee, the word 
 *' heirs " being regarded and used, not as a designation 
 of a class of persons who were to take by virtue of the grant 
 on the death of the tenant to whom the grant was made, but 
 rather a word of limitation, limiting and describing the 
 estate created in the tenant, as an estate, not limited to his 
 life, but one which would continue in him or his heirs for 
 all time. The word " heirs " was construed as including, 
 not only those persons who might be the heirs of the tenant 
 in fee at his death, but the heirs of such heirs in succession 
 to the end of time. In its technical use, therefore, this 
 word expressed and designated an estate which was to con- 
 
 8. Litt. 1; Co. Litt. 8b, 9a, 9b; 2 218; Adams v. Ross, 30 N. J. Eq. 505; 
 Bl. Com. 107-109; 4 Kent Com. 5-8; Saunders v. Haynes, 44 N. Y. 353. 
 rruesdellv. Lehman, 47 N. J. Eq. 
 
128 Fbeehold Estates. 
 
 tiBue in the tenant and his heirs and the heirs of such heirs 
 indefinitely for an infinite time. The need of absolute cer- 
 tainty, under the feudal system, of the nature and extent 
 of estates created by grant led to the establishment of this 
 rule that the word " heirs " alone would result in creating 
 an estate in fee.® The rule was highly technical from the 
 first, and whatever practical reasons existed under the 
 feudal system to Justify it, there remained no reason for it 
 after the early strictness of the feudal relation had become 
 relaxed. After that system had been brought to an end 
 all reason for the rule disappeared. Nevertheless it became 
 so firmly fixed as part of the common law of land that it 
 continued to be the law down to modem times, and in sev- 
 eral jurisdictions it is still adhered to in all its strictness. 
 
 It was necessary that the word " heirs " appear in some 
 operative part of the deed. If it appeared only in the coven- 
 ants attached to the deed, such as the covenant of warranty, 
 of seisin, etc., only a life estate would pass though there 
 might be terms in the deed itself expressing an intention 
 to transfer a fee. The covenants are not part of the deed, 
 but are contracts attached to it; the deed would operate to 
 transfer title just as effectively without as with such coven- 
 ants.^" As between the granting clause and the habendum, 
 in case of ambiguity, that construction must be followed 
 which will reconcile and give effect to both. Thus if the 
 granting clause is " to A, " without further words of limi- 
 tation, and the habendum clause is to "A and his heirs," 
 a fee passes. So, also, if the granting clause is " to A and 
 his heirs " and the habendum is " to A and the heirs of his 
 body," an estate tail is created. In these cases the con- 
 struing of both clauses together clears up the ambiguity 
 and gives effect to both.^' 
 
 9. Co. Litt. 9a; 2 Bl. Cora. 107; 4 11. See Lancaster Bank v. Mylev, 
 Kent Com. 5-7; Cole v. Lake Co., 54 13 Pa, St. at 351; Saiuidert v. Haynea, 
 N. H. 842. 44 N. Y. 353. 
 
 10. Adams v. Eoss, 30 N. J. Law 
 S0&. 
 
Exceptions to Foeegoinq Eulb. 129 
 
 Where the two clauses are necessarily inconsistent, as 
 where the granting clause is " to A for life," the habend\un 
 being '* to A and his heirs," that construction will be taken 
 which transfers the greater estate, the rule of construction 
 applying that the deed must be construed most strongly 
 against the grantor and in favor of the grantee. There- 
 fore an estate in fee passes. The same result is reached 
 and for the same reason where the granting clause is to A 
 and his heirs, and the habendum to A for life." 
 
 § 81. Exceptions to Foregoing Rule. — Where a deed re- 
 fers to a former deed or will which contains the word 
 " heirs " as required to pass a fee, and purports to convey 
 the same estate that was conveyed or devised by the instru- 
 ment so referred to, an estate in fee is transferrd though 
 the word heirs be omitted. The incorporation specifically 
 of the former instrument containing the word " heirs " re- 
 sults in the inclusion of that word in the deed in question.* 
 Suppose A devises property " to B forever." Later B con- 
 veys the same land to by deed which does not contain the 
 word " heirs," but the deed recites that he grants to C the 
 same estate that was devised to him by A's will. Though B 
 took a fee under A's will, only a life estate passed to C, as 
 the will in question did not contain the word " heirs " and 
 its incorporation with the deed does not result in bringing 
 that word into the deed to C.^ 
 
 Grants to corporations do not contain the word " heirs " 
 for obvious reasons. The entire fee of the grantor passes un- 
 der such grants unless the intention to convey a smaller 
 estate is expressly stated in the deed. 
 
 The word " successors " though generally used as a mat- 
 ter of practice, is not required, since corporations may con- 
 tinue to exist forever.^ Even in the case of a corporation 
 
 12. See § 318, note 6, po»t. 8. Lytle t. Lytle, 10 Watts (Pa.) 
 
 1. Lytle T. Lytle. 10 Watts (Pa.) 259. 
 289. 3. Nicoll v. N. Y. & Erie R. Co., 12 
 
 9 
 
130 Feeeiiold Estates. 
 
 created for a definite mimber of years, the rale ia the same 
 Bince the corporation may have its corporate esistence ex- 
 tended indefinitely, and a grant to it, unrestricted as to time, 
 imports an estate to last forever, unless it is expressly stated 
 that a smaller estate is conveyed, since such corporations, 
 like those whose existence is perpetual, may own and hold 
 estates in fee.* 
 
 J o-int tenancies are of such a nature that one joint tenant 
 may execute a release of his interest to his tenant in fee 
 by deed of release without the word " heirs." The reason 
 is that each joint tenant in fee is seised of each and every 
 part of the property, not of a separate and distinct undi- 
 vided interest therein, subject only to his co-tenant's right 
 to enjoy the property with him. Therefore such deed of re- 
 lease operates only as a release or giving up of the joint 
 tenant's right of enjoyment, leaving his co-tenant's interest 
 or estate freed from this right of enjoyment. Such deed 
 does not operate as a conveyance of the fee in a separate 
 undivided estate in the land, as the fee as to every part was 
 in the tenant to whom the release was made from the be- 
 ginning of the joint tenancy." Joint tenants are seised as 
 though all the joint tenants together constituted one legal 
 person, or unity, each tenant being seised as a member of 
 such unity, and each being entitled to exactly the same right 
 of enjoyment and possession by virtue of his community 
 of interest as a member of the fictitious unity.** Tenants in 
 
 N, Y. 121; Wilcox V. Wheeler, 47 N. corporation by virtue of his holding a 
 
 H. 483; Wilksbarre v. Wyoming Hist, particular office, his successors in such 
 
 Soc, 134 Pa. St. 616. office being tlie " Buccessora " of such 
 
 4. NicoU V. N. Y. & Erie K. Co., corporation sole. 2 Bl. Com. 167; 
 
 13 N. Y. 121. Chancellor v. Bell, 45 N. J. Eq. 538. 
 
 At common law the word "suoces- 6. Co. Litt. 9b; 4 Kent Com. 7; 
 
 Bion " or other words of succession Rector v. Waugh, 17 Mo. 13. 
 were necessary in conveyances and 6. See preceding note, also Oh. 
 
 mortgages of estates in fee to a cor- IX, post, on Joint Tenants and Ten- 
 
 poration sole, viz.: a corporation con- ants in Common, 
 sisting of only one man existing as a 
 
Ceeation of Estates in Fee by Will. 131 
 
 common, however, are each seised of a distinct undi- 
 vided share of the fee; therefore a deed of release by one 
 tenant in common in fee to another must contain the word 
 " heirs " in order to pass a fee, since such release amounts 
 to a conveyance of a separate undivided interest in the land 
 in fee." 
 
 Property conveyed to a trustee will pass in fee though the 
 word ' ' heirs ' ' be omitted if the trustee is required to have 
 a fee in order to carry out the terms of the trust, as where 
 he is directed to convey the property in fee.® 
 
 § 82, Creation of Estates in Fee by Will.— Though wills 
 of real property were undoubtedly valid before the establish- 
 ment of feudalism in England by the Norman conquest, the 
 introduction of the feudal system resulted in the destruction 
 of the right, as the diverting of the tenant's feudal holding 
 from his heirs by will was regarded as inconsistent with 
 that system, interfering with the overlord's control of the 
 tenant's holding and weakening the relation between lord 
 and tenant by the possible introduction of strangers who 
 might be hostile to the overlord, or who might not be as 
 ready or able to render or perform the feudal dues incident 
 to that relation.' Furthermore, at first the interest of the 
 tenant in fee was regarded as a life estate in the tenant with 
 a right in the tenant's heirs to take from the overlord on 
 the tenant's death. The payment of a relief by the heir to 
 the overlord on his succession to the tenancy grew out of 
 this notion.^" Therefore real property could not be dis- 
 posed of by will during the continuance of the feudal sys- 
 tem down to the time of the enactment of the fij-st Statute 
 of Wills, during the reign of Henry VIII." The practice of 
 
 7. 4 Cruise, tit. 33, ch. 6, § 25; 3 84; Fisher t. Fields, 10 Johns. (N. 
 Preston 48; Reotor v. Waugh, 17 Mo. Y.) 494, 505. 
 
 13. 9. Digby Hist. L. R. P. (5th ed) 
 
 8. Wilcox T. Wlieeler, 47 N. H. 488; 28; Williams R. P. (17th ed.) 80. 
 Newhall t. Wheeler, 7 Mass. 189-198; 10. See § 73, SO, ante. 
 
 Brooks V. Jones, 11 Mete. (Mass.) 11. 33 Henry VIII, o. 1; 34 ft 3J 
 
132 rEEEHOLO Estates. 
 
 conveying land to a trustee to uses to hold subject to such, 
 uses as might be expressed in the owner's will, on his death, 
 grew up during this time as a means of avoiding this feudal 
 restraint. This is discussed hereafter in the chapter on 
 Uses and Trusts. Such uses were not recognized at law and 
 could be enforced only in a court of equity.^ By the time of 
 Henry VIII the rigid rules and practices of feudalism were 
 fast passing away. Military tenure and the relation of lord 
 and man as incident to the holding of lands with the 
 burdens attaching thereto had been largely displaced 
 by socage tenure with the certain and definite payments 
 by tenants to their overlords in lieu of military or other 
 service which characterize socage tenure. Even these pay- 
 ments were coming to be regarded as of less importance. 
 The natural tendency and the desire of the times were to 
 get away from the rigorous and technical rules of feudal- 
 ism, the reasons for which had mostly ceased to exist. 
 Therefore when the courts were called on to construe wills 
 of real property after the Statute of Wills, having a clear 
 field unincumbered by precedents, since there had been no 
 wills of land before that Statute, they decided that the in- 
 tention of the testator, as expressed in the will, should 
 govern, and therefore any word or expression in a will 
 equivalent to " heirs " and expressing an intent to devise 
 a fee, would have that effect as expressing the intent of the 
 testator, even though the technical word " heirs " did not 
 appear in the will. Therefore, after the Statute, a devise of 
 
 Henry VTII, c. 5. This statute per- of Uses, enacted 6 years before the 
 
 mitted the disposition by ■will of all Statute of Wills, operated to convert 
 
 lands held by socage tenure or in the Immediately all uses into legal estates 
 
 nature of socage tenure, and of three- in the cestui que use. This necessari- 
 
 fourtha only of land held by knight ly did away with the scheme of 
 
 service or military tenure. When in granting to a trustee to uses to be 
 
 1660 the statute, 13 Car. II., c. 24, named in the owner's will, and the 
 
 did away with military tenure and inconvenience resulting probably led 
 
 Bubstituted socage tenure therefor, ail to tht enactment of the Statute of 
 
 land was rendered alienable by will. Wills six years later. Williams R. P. 
 
 1. See Ch. VIII, post. The Statute (17th ed.) 879. 
 
Ckeation of Estates in Fee TJndee Modeen Statutes. 133 
 
 real property " to A forever," " to A and Ms issue for- 
 ever," " to A in fee," and the like were construed as pass- 
 ing estates in fee.^ It was necessary that the testator's in- 
 tent to devise an estate in fee rather than a life estate 
 should by clearly expressed by language in the will itself, 
 and would not be inferred from ambiguous expressions 
 which might not have that meaning. Thus a devise of real 
 property to A for life, and immediately after A's death to 
 be equally divided among A's children did not give a re- 
 mainder in fee to A's children, however reasonable such an 
 inference might be from the context, since no term or ex- 
 pression of the will declared that such remainder was 
 given to A's children in fee.^ The recitals in the introduc- 
 tory clause of a will such as "and as touching such worldly 
 interest, etc., I dispose of the same as follows," or " and as 
 for my temporal estate, I devise the same as follows, etc., ' ' 
 do not of themselves express an intent to transfer a fee, since 
 they are equivocal and capable of a different interpreta- 
 tion. If such expressions are followed by others in the 
 body of the will which construed together show such in- 
 tent unequivocally, then an estate in fee will pass.* 
 
 § 83. Creation of Estates in Fee Under Modern Statutes. 
 In England, New York, and a majority of the states of the 
 United States statutes have been enacted which provide 
 in effect both as to deeds and wills that the entire estate of 
 the grantor or devisor passes under the deed or will unless 
 the intent to transfer or devise an estate for life or other 
 estate less than fee is expressly stated in the deed or will 
 creating the estate."^ Therefore, since the enactment of 
 
 2. 2 Bl. Com. 107; 4 Kent Com. 7 
 Bolton V. Bowne, 18 N. J. L. 210 
 Lincoln v. Lincoln, 107 Mass. oOO 
 
 (N. Y.) 453; Fox v. Phelps, 17 Wend. 
 (N. Y.) 393, 399; Bolton v. Bowne, 
 18 N. J. Law 210. 
 
 Foraaith v. Clark, SI N. PL 409. 5. 1 Vict. c. 26 § 28 ; 44 & 45 Vict. 
 
 3. Clayton V. Clayton, 3 Binney (12 c. 41; N. Y. Eeal Prop. Law, § 245; 
 Pa.) 476. Williams R. P. (17th Ed.), Hutchina 
 
 4. Wheaton v. Andreas, 23 Wend. Am. Notes, 148. 
 
1^4 Fbeehold Estates. 
 
 these statutes in the jurisdictions affected, if the grantor or 
 devisor has an estate in fee in the land affected by his deed 
 or will, his entire estate passes thereunder though the word 
 ' ' heirs ' ' or any equivalent word be omitted altogether, un- 
 less his intent to transfer or devise an estate for life or for 
 years is expressly stated. Under these statutes the same 
 rule applies to wills as to deeds in this respect. In some 
 states the common law rule requiring the use of the word 
 " heirs " in deeds is retained, while the statutory rule has 
 been enacted with reference to wills, that the entire state 
 of the devisor passes in the absence of an expressed intent 
 to devise a lesser estate.^ It must be remembered that these 
 statutes are not retroactive, and that the common law rules 
 apply to all deeds and wills taking effect before the statu- 
 tory change was made in each jurisdiction, and therefore 
 in searching a title back to a time antedating the statute, 
 deeds and wills taking effect before that time must be 
 passed upon from the standpoint of the common law. 
 
 The jurisdiction of equity to reform instruments in case 
 of mutual mistake of the parties must also be borne in mind. 
 In case of a deed from which the word " heirs " had been 
 omitted by mistake, the parties intending that a fee should 
 pass, equity will reform the instrument by inserting the 
 word " heirs," the effect being to make the deed effective 
 as conveying the fee except as against subsequent innocent 
 purchasers for vn^'^-^ of tlie same property without notice of 
 the mistake.'' 
 
 6. Massachusetts. Connecticut, courts have decided, without the aid 
 
 Rhode Island, New Jersey, Pennsyl- of statutory changes, that an estate 
 
 vania, Delaware and South Carolina in fee passes by deed if the intention 
 
 are the more important of the small to convey a fee is expressed in the 
 
 number of states which have so modi- deed, though the word "heirs" be 
 
 fied the common law as to wills but omitted. Cole v. Lake Co., 54 N. 11. 
 
 not as to deeds. 1 Stim. Am. St. L. 242. 
 
 S§ 1474, 2808. Adams v. Ross, 30 ^T. 7. Trusdell v. L-'.man. 47 X. J. Eq 
 
 J. Law 505; Tnisdell v. Lehman, 47 SIS; V.'rllrr v. Rol,-\son, 17 N. J. Eq, 
 
 N. J. Eq. 218. In some states the 13; 4 Kent Com. 7, 8. 
 
Conditional Fee. 135 
 
 C. — Estates In Fee Tail. 
 
 § 84. Conditional Fee. — A conditional fee at common law 
 was created by a conveyance to a man and the heirs of his 
 body, or to a man and the heirs of his body male, or by any 
 conveyance -with similar words of procreation limiting the 
 inheritance to the issue of the grantee and their issue in the 
 direct line of lineal descent. This fee, like other qualified 
 fees, carried with it the entire estate of the donor, leaving 
 no reversion in him, but the donee took it subject to the 
 contingency that children be borne to him. Only the chil- 
 dren of the donee could take such a fee by inheritance, and 
 the children of such children in turn, so that if there should 
 be at any time a failure of the direct line of lineal descent 
 the estate would come to an end and escheat back to the 
 donor or his heirs provided there had been no alienation of 
 the fee after birth of issue to the donee. On the birth of 
 issue to the donee the contingency which made the fee con- 
 ditional was removed and the donee could then convey the 
 land to a third person in fee simple, thus defeating the pos- 
 sible interest of his children as presumptive heirs of his 
 body. The reason was that such heirs were bound to war- 
 ranty, that is, to uphold the gift or grant of their ancestor, 
 as they could only take the land in question by descent from 
 him, they being entitled to nothing by virtue of the original 
 grant to him, since no estate was given to them, the expres- 
 sion ' ' heirs of his body ' ' or the like being words of limita- 
 tion limiting and definnig the estate conveyed to their an- 
 cestor, in whom the entire fee was vested subject to the con- 
 tingency of their birth. Before the birth of a child the 
 donee had what was in effect a life estate, the fee being 
 subject to the birth of issue as a condition precedent. On 
 the birth of issue, however, the fee vested freed from the 
 contingency, and might be conveyed absolutely as we have 
 seen; but if no conveyance was made so that the donee at 
 the time of his death was still the owner of the estate, it 
 would come to an end unless he was survived by heirs of 
 
130 Feeehold Estates. 
 
 his body capable of inheriting in accordance with the terms 
 of the conveyance.^ These estates were changed into estates 
 in fee tail, as explained in the following section. 
 
 § 85. Origin of Estates in Fee Tail. — The statute de donis 
 conditionaWbus, or the statute of Westminster 11, ch. 1, 
 was enacted during the reign of Edw. I, in the year 1285,* 
 for the purpose of stopping the practice of alienation of the 
 fee so that the overlords might not lose their right of 
 escheat on failure of issue, and so that the issue of the 
 grantor might be protected in their right to the inheritance. 
 This statute provided that such an alienation would not 
 defeat the inheritance of the estate by the heir, and if such 
 conveyance be made the heir might, on the death of his an- 
 cestor, recover the property from the person to whom the 
 land had been alienated, or any person claiming through 
 him. If the issue of such tenant should die before the death 
 of the tenant the statute provided that the original donor, 
 or lord, might recover the property as escheating to him, 
 exactly as though no issue had been borne to the tenant. 
 The effect of this statute, as interpreted by the courts, was 
 to create a new species of estate which was called an estate 
 in fee tail. The fee conditional, as we have seen, carried the 
 entire fee, and nothing remained in the grantor except a 
 possibility of escheat in case there should be a failure of 
 issae, and in case no alienation in fee was made by the 
 grantee after the birth of issue, or by any succeeding owner 
 taking in the direct line of descent. But the statute re- 
 moved the possibility of changing the estate to a fee simple 
 absolute by alienation, and made it over into an estate 
 which by no possibility could continue longer than the 
 direct line of lineal descendants of the tenant. The courts 
 held that this estate was less than a fee simple; that the 
 
 tBracton, 17; Plowd. 845; S BL 2. (13 Edw. I, 188S.) 
 Com. 109-119; Digby Hiat L. R. P. 
 {5th ed.) 222-224. 
 
Nature and Kind of Estates in Fee Tail. 137 
 
 entire fee did not pass from the grantor, but the balance 
 thereof, over and above the estate in fee tail, remained in 
 the grantor as a reversion, necessarily vested in him, since 
 he had never divested himself of it. This interest could be 
 granted over to a third person by way of remainder at the 
 time the state in fee tail was created, as it was the balance 
 of the fee over and above the limited estate in fee tail 
 which had been cut off {taille) from the entire fee. Before 
 the statute the possibility of an escheat remaining in the 
 grantor of a conditional fee could not be assigned or granted 
 by way of remainder, as the entire fee had passed to the 
 grantee, or tenant, the mere possibility of escheat not being 
 capable of alienation.* 
 
 § 86. Nature and Kinds of Estates in Fee Tail. — Estates 
 tail general arose in case of a grant or devise " to A and 
 the heirs of his body," or " to A and the heirs of his body 
 male " or " female." In the last two cases only male or 
 female heirs of the tenant's body, as the case might be, could 
 inherit. These estates were called estates tail male and 
 estates tail female respectively. An estate tail special arose 
 where land was granted or devised " to A and the heirs of 
 his body by his present wife, B, " or in any like case where 
 the inheritance was limited to issue by a specified husband 
 or wife of the tenant. In such cases only children born of 
 such wife or husband could inherit, excluding from the in- 
 heritance children born of other wives or to other husbands 
 of the tenant.* 
 
 As we have seen, an estate tail comes to an end, and the 
 land passes to the remainderman or reverts to the rever- 
 sioner in fee simple, whenever the direct line of descent, as 
 provided for in the deed or will creating the estate, fails. 
 As the tenant in tail could not defeat the right of inheri- 
 
 S. Plowd. 251; Lit. §5 13-84; 8 Bl. (5th ed.) S34-230; Williams R. P. 
 Com. 109-119; Digbv Hist. L. R, P. (17th ed.) 104-105. 
 
 4. 3 Bl. Com. 113-116. 
 
138 Eeeehold Estates. 
 
 fcance of his children by any alienation, and could alienate 
 only for his own life, it follows that estates tail effectnally 
 prevented the free alienation of lands. This was felt as a 
 great inconvenience and hardship by all except the great 
 landed proprietors for whose benefit the statute de donis 
 was originally enacted. No matter how long land might 
 have been held under a title apparently perfect, if an old 
 entail should be discovered, the heirs of the body of the 
 original tenant in tail, though several generations removed, 
 could recover the property under the statute. Titles were 
 thus made uncertain and insecure. Creditors and other 
 claimants against the tenant in tail were unable to enforce 
 their claims against the land, as it would pass to his heir 
 freed from all such claims. The king also suffered, as a 
 tenant in tail did not forfeit his estate for treason so as to 
 defeat the right of his heir. Nevertheless parliament was 
 so controlled by the interests which were benefited by these 
 estates that it was impossible to get relief by legislation.^ 
 The barring of entails by means of common recoveries came 
 into general use after " Taltarums Case," (12 Edw. TV). 
 Before that time the principle was recognized that a con- 
 veyance by the tenant in tail with warranty bound his heirs 
 by virtue of the warranty provided the tenant in tail died 
 leaving assets, viz., real property of equal value of the estate 
 tail, which passed to his heirs by descent. Where, however, 
 he left no such assets a conveyance made by him or a re- 
 covery suffered by him by collusion with a third party suing 
 to recover the land by means of a writ of right would have 
 no effect on the heirs of the tenant in tail, and on his death 
 they could recover the property." A common recovery, 
 finally worked out as the means of barring an entail in any 
 case whether the tenant left assets or not, took the form of 
 a fictitious and prearranged suit in the form of a writ of 
 
 5 Digbj Hist. L. R. P., 5th Ed., 6. Digby Hist. L. R. P. f.-jtli edl 
 
 249, 252, 2i3; Williama R. P. (17th 851, 252. 
 ed.) lot, 105. 
 
Natukb and Kind of Estates in Fee Tail. 139 
 
 right started by the person to wliom the property was to 
 be conveyed in fee simple. He would allege (of course 
 falsely) that he was the owner of the property in fee simple 
 by a title superior to the defendant's, that the defendant 
 had no title to the land, having come into possession of it 
 alter the complainant had been wrongfully ousted there- 
 from by some third person named. The defendant, tenant 
 in tail, would then appear, making no denial of the com- 
 plainant's allegations, but calling upon one X, alleged to be 
 the man who had conveyed the land to him in tail with 
 warranty, to appear and defend the title which he had war- 
 ranted. X then would in turn appear and defend the title. 
 X thereafter would default, and thereupon judgment would 
 be given for the complainant against the tenant in tail that 
 he recover the land sued for in fee simple, and because of 
 X's default judgment would be given in the tenant's favor 
 against X that he recover from X lands of equal value in 
 recompense for the lands so conveyed by him with warranty 
 to the tenant in tail. X, called the vouchee, an irresponsible 
 person selected to take this pretended part because judg- 
 ment-proof, was usually the court crier, and was called the 
 common vouchee because of his employment in this capac- 
 ity. He, of course, had never any interest in the property, 
 the whole matter being a fiction in so far as his connection 
 with the suit was concerned. The judgment against him for 
 an equal amount of land in favor of the tenant in tail and 
 the heirs of his body was regarded as sufficient recompense 
 for the loss of the entail by such heirs, so that the recovery 
 suffered by the tenant in tail was binding as against them, 
 the complainant taking by virtue of the judgment an estate 
 in fee simple which cut off the entail in favor of the heirs of 
 the body of the tenant in tail and also the reversion of the 
 original grantor of the estate tail or those taking through 
 him, it having been judicially determined that the com- 
 plainant 's title in fee simple was superior to the title of the 
 tenant or of his grantor. Pursuant to the prearranged 
 plan the complainant would then convey the land in fee to 
 
140 Feeehold Estates. 
 
 the tenant in tail, who could thereafter hold in fee simple^ 
 or convey the property in such other way as such tenant 
 might direct, or pay to the tenant the purchase price agreed 
 upon in case an actual sale to him was intended^ 
 
 From the time of " Taltarum's Case " (12 Edw. IV), 
 above referred to until 1834, tenants in tail used this method 
 to bar the entail and change their interest to an estate in 
 fee simple. A statute enacted during the reign of Henry 
 Vm permitted the barring of entails by a fine.® 
 
 § 87. Fee Tail Estates in Modem Times. — By statute 
 (3 & 4 Will. rV, c. 74), fines and recoveries were abolished 
 in 1834, and thereafter tenants in tail might defeat the en- 
 tail by conveying the land in fee simple by deed enrolled 
 in the Chancery Division of the High Court of Justice.' 
 
 Estates tail do not now exist as such in most of the 
 states. In a majority of the states estates tail have been 
 abolished and changed into estates in fee simple.*' In 
 New York, Michigan, California, and some other states, 
 it is provided in addition that a remainder in fee after an 
 estate tail shall be valid as a conditional limitation to take 
 effect on the death of the first taker of the estate tail with- 
 out issue. In such case the estate tail is changed into a fee 
 which will become a fee simple absolute if the first taker is 
 survived by issue, but if he dies without issue his estate in 
 fee ends and goes over to the person named as remainder- 
 man as a conditional limitation.* 
 
 7. 8 Bl. Com. 357-362; Digby Hist. the Real Property Law were enacted 
 L. E. P. (5th ed.) 253-255; Williams as part of the revised statutes. 
 
 E P. (17th ed.) 105-108. Pennsylvania, Indiana, Kentucky, 
 
 8. 32 Henry VIII, ch. 36. Michigan, Georgia and California ar« 
 
 9. Williams R. P. (17th ed.) lOD. some of the other states which have 
 
 10. N. Y. Real Prop. L. § 32. The adopted this provision. Stein. Am. 
 first statutory provision to this effect St. L. § 1313; 4 Kent's Com. 14; 
 in New York was in 1782 (L. of 1783, Kimmel v. Shaffer, 219 Pa. St. 375; 
 eh. 2; L. of 1786, ch. 12). In 1830 Buel v. Southwick, 70 N. Y. 581. 
 the previBions of what is now § 33 of 1. See preceding note. 
 
Natuee of Life Estates. 141 
 
 In some states tlie estate tail is changed into a life estate 
 in tlie first taker with remainder in fee simple to his child 
 or children.* In other states the remainder in fee after such 
 life estate passes to such persons as would be entitled at 
 common law to take the land on the death of the first taker.' 
 
 The Connecticut statute provides that every estate given 
 in fee tail shaU be an absolute estate in fee simple, to the 
 issue of the first donee in tail, the estate tail in the donee 
 being changed into an estate in fee simple in the issue of 
 such donee on his death. Ohio has a similar provision.* 
 
 In Massachusetts, Maine, Ehode Island and a few other 
 states, estates tail may be conveyed as estates in fee simple, 
 and like fee simple estates they are liable for the debts of 
 the tenant and may be sold on execution as estates in fee. 
 In other respects they continue until barred by conveyance 
 as estates tail.* In states where no statute has been en- 
 acted or case decided changing or abolishing them it is 
 probable that they would not be recognized or enforced as 
 such but that one or the other of the statutory modifications 
 would be adopted as the common law rule of such states.* 
 
 D. — Estates for Life. 
 
 § 88. Nature of Life Estates. — Estates for life, including 
 estates pur autre vie, are the smallest freehold estates in 
 land which can be created. An estate for life continues dur- 
 
 2. N. J. Descent Act, § 11 (1 N. J. dorf v. Cope, 132 111. 317; Peterson v. 
 Gen. St.) (1895). This statute fur- Jackson, 196 III. 40. 
 
 ther provides that the wife of the 4. Conn. Gen. L. § 2952; Ohio Rev. 
 
 tenant is entitled to dower, or the St. § 4200. 
 
 husband of the tenant is entitled to 5. Mass, Puh. Stat., 1883, c. 120, 
 
 curtesy in like manner as if the ten- § 15; 1 Stim. Am. St. L. § 1313 (c) ; 
 
 ant had died seized of an estate in fee Ccllamore v. Collamore, 158 Mass. 
 
 simple. See also James v. Du Eois, 74; In re Tillinghast, 25 R. I. 338. 
 
 16 N. J. L. 285: In re Dowe, 68 N. 6 Kent. Com. 14. Williams Real 
 
 J. Eq. 11. Prop. (17th ed.), American notes, p. 
 
 3. Kurd's Rev. St. 111. (1899), p. 121. 
 403, { 6 (Conveyancers Act) ; Lehn- 
 
1412 Feeejiolb Estates. 
 
 ing the life of the life tenant, coming to an end on his death. 
 During his life the life tenant is the exclusive owner of the 
 land so held by him, with the exclusive right to its posses- 
 sion, control and enjoyment. The owner of the reversion or 
 remainder in fee has no present right of enjoyment, no tang- 
 ible physical ownership of the land. He has a future in- 
 corporeal interest or estate in the land which will ripen into 
 ownership of the land itself on the death of the life tenant. 
 Since the life tenant 's estate is limited and not absolute, his 
 right of enjoyment is subject to the rule that he shall not 
 commit waste, as we have seen,^ and of course he can convey 
 only the estate which he has in the land, viz., an estate for 
 his own life. Otherwise his ownership is absolute and with- 
 out restriction. Since every life estate is necessarily un- 
 certain in duration it follows that the right of emblements 
 attaches as an incident to all life estates. The rules of law 
 applying to waste and emblements are considered elsewhere 
 in this work.2 Other incidents attaching to the ownership 
 of life estates as between life tenants and reversioners and 
 remaindermen are considered in detail in a later chapter.' 
 Under the common law, as we have seen, the word 
 " heirs " was essential in a deed to the creation of an es- 
 tate in fee. Therefore any conveyance of real property 
 which did not contain the word " heirs " in an operative 
 part of the deed transferred only a life estate in the land, 
 no matter how clearly the intent to convey an estate in fee 
 may have been otherwise expressed. Thus a conveyance 
 " to A and his issue " or " to A and his children forever," 
 was effective only as creating an estate for life, since the 
 word " heirs " was absent. In every such case the terms 
 used were at least sufficient to create an estate for the life 
 of the donee, but not an estate of inheritance under the 
 technical rule referred to.* In wills of real property, after 
 
 1. See sections on Waste, ante. S. See Ch. VI., post. 
 
 2. See sections on Waste and Em- 4. See § 80, ante. 
 blementa, ante. 
 
Nature of Life Estates. liS 
 
 the enactment of the Statute of Wills, the testator's inten- 
 tion was given effect, and if from the terms of the will it 
 appeared that the testator intended to devise an estate in 
 fee, then an estate in fee would pass, though the word 
 " heirs " was absent. This has been fully discussed else- 
 where." The important point to note at this time is that 
 in any case where a deed or will transferring real property 
 failed to pass an estate in fee because of the absence of the 
 word " heirs " in a deed, or of that or some equivalent ex- 
 pression in a will, a life estate passed under the instrument, 
 as the greatest estate which could pass by virtue of the 
 language used.^ 
 
 An estate, not of inheritance, which may continue for the 
 life of the person to whom it may have been granted or 
 devised, is a life estate, though it may be brought to an end 
 by the happening of some collateral event before the death 
 of the tenant. Thus where property is devised to a woman 
 during widowhood a life estate is created, since the estate 
 will continue for her life in case she does not remarry. Such 
 an estate is a life estate upon limitation, subject to be 
 brought to an end by the happening of the event by which 
 it is limited.'' 
 
 An estate for life may sometimes arise by implication 
 from the terms of a deed or will, though the instrument in 
 question contains no limitation of such estate by express 
 words. Thus where a testator devises property to A, and 
 his heirs after the death of B, a life estate arises in B by 
 necessary implication, because if B does not take a life es- 
 tate A, as heir of the testator, will take the property during 
 the life of B as undisposed of by the will, which is clearly 
 <5ontrary to the expressed intent of the testator that he 
 should not take the property until after B's death. If A 
 
 6. See § 82, ante. Van Vechten, 5 Denio (N. Y.) 414; 
 
 6. See last two preceding notes, Hurd v. Gushing, 7 Pick. (MasB.) 
 Also 3 Bl. Com. 130-121; Jackson v. 169; Warner v. Tanner, 38 Oh. St. 
 Ivcwkirk, 14 Johns (N. Y.) 198. 118. 
 
 7. 4 Kent Com. 26; Eoseboom r. 
 
144 FeeehoI/D Estates. 
 
 were not the heir of the testator, B would not take a life 
 estate, since the testator might have intended that his heir 
 or heirs should take the property by inheritance until B's 
 death when A's estate would arise.* 
 
 § 89. Estates Pur Autre Vie. — An estate pur autre vie is 
 an estate in one person limited to continue during the life 
 of another or others. Thus where land is granted or devised 
 to A for the life of B, the estate in A is a life estate which 
 will continue during the life of B and on B's death the 
 estate immediately comes to an end, though A be still alive. 
 If A dies before B a peculiar situation arises imder the 
 common law. The land in question could not pass to the 
 heirs of A for the life of B, as his interest is not an estate 
 of inheritance, but only a life estate. It cannot pass to his 
 personal representatives since it is not personal property. 
 The original grantor, or present owner of the reversion or 
 remainder, has no present right to the property until the 
 death of B, since the estate granted to A is not to end, and 
 the reversion or remainder to vest in possession, until tlio 
 death of B. The conclusion arrived at by the common law 
 courts was that in such event any person who might enter, 
 though an entire stranger, could hold the land until B's 
 death, since there would be no person who could oust him 
 by virtue of a superior title. The rule in such case is that 
 a person in possession of land cannot be ousted therefrom 
 because of the weakness of his own title, but only by virtue 
 of the superior title of the party suing him for the land. 
 In case the estate was given " to A and his heirs for the life 
 of B," the heirs of A were permitted to enter as special 
 occupants ahead of all others.® 
 
 In England by statute (29 Chas. 11, c. 3), it was provided 
 that the interest of the life tenant in such case could be 
 
 8. Fawlkner t. Fawlkner, 1 Vernon 9. 4 Kent Com. 36-28; 8 Bl. Com. 
 
 22 (Eq. Cas. Abr. 119) Jarman on 259; Atkinson v. Baker, 4 Durn. & 
 Wills, oh. 17, p. 499. East 229. 
 
Estates Pue Autee Vib. 145 
 
 devised by his will, and if not devised, the heir was made 
 chargeable with it as assets by descent, the heir taking as 
 special occupant. A statute enacted during the reign of 
 Greorge n (14 Geo. 11, ch. 20), provided that if the heir was 
 not named as special occupant, and the estate was not de- 
 vised by the tenant's will, it should pass to the executor 
 or administrator of the tenant as part of Ms personal es- 
 tate.^" In New York the Real Property Law, § 34, provides 
 that an estate pur autcr vie " shall be deemed a freehold 
 only during the life of the grantee or devisee; after his 
 death it shall be deemed a chattel real." In other words, 
 on the death of the tenant the interest remaining during 
 the life of the third person, whose life measures the estate, 
 passes as personal property to the esecutor or administra- 
 tor of the tenant, exactly as a tenancy for a term of years 
 would pass. In Massachusetts, North Carolina and some 
 other states by statute, the interest of the tenant in such 
 case is treated as real property and descends to the heirs 
 of the tenant if not devised by will." The New York rule 
 has been followed by statute in Michigan and several other 
 states.^^ 
 
 It will be observed that whenever an estate for life is 
 conveyed by the life tenant to another the grantee neces- 
 sarily takes an estate pur auter vie, for the life of the gran- 
 tor, who as life tenant can convey no greater estate than he 
 has himself, viz.: an estate measured by his own life. 
 
 If a tenant for life acquires a life estate held by another 
 in the same land, the estate pur auter vie, merges with his 
 own life estate and disappears, so that on his death his in- 
 terest ceases, unless an intent can be shown on his part to 
 keep the two interests separate and distinct.^^ 
 
 10. See last note. cousin and several other states. 1 
 
 11. Mass. Pub. St. c. 135, 5 1; 1 Stim Am. St. L. § 1310. 
 
 Stim Am. St. L. § 2630. 13. Bowie's case, 11 Rep. 83b, Co. 
 
 12. The New York rule prevails by Litt. 41b. 
 statute m Michigan, Minnesota, Wis-. 
 
 10 
 
146 DowEB. 
 
 CHAPTER rV. 
 
 DOWEE. 
 
 A. — Nature of Dower. 
 
 % 90. What Dower is; Historical Development. — Dower 
 
 is tlie estate which the law gives a wife in the real property 
 of her husband, and constitutes an estate for the life of 
 the wife ia one-third of all the real property of which the 
 husband was seised of an estate of inheritance during cover- 
 ture. The right to dower which exists in the wife before the 
 death of her husband is called inchoate; on the death of 
 the husband and before admeasurement it is called con- 
 summate, and it is then a vested right of action against the 
 heir to have dower set off; when actually set off the estate 
 of dower, an estate for the life of the widow arises, subject 
 to the ordinary incidents of life estates.^ 
 
 Dower may be traced back to the beginning of the Eng- 
 lish law of land. Its origin cannot be determined with any 
 degree of certainty. Whether dower comes from an early 
 Danish custom, as suggested by Blackstone,^ or was intro- 
 duced by the Saxons, which is the view favored by Scrib- 
 ner,^ there seems no doubt but that it existed to some extent 
 and in some form during part of the Saxon period.* It was 
 expressly recognized by the Charter of Henry I, about 
 1101 ; and the Great Charter of King John, as modified and 
 amended by the first and second charters of Henry HI (1215 
 to 1217), recognizes and defines the right of dower in very 
 much the same terms in which it is stated and defined to- 
 day.* As these charters were declarations of rights of the 
 people theretofore existing, and as they, in general declare 
 
 1. Co. Litt. 30a; 2 Bl. Com. 129, 3. 1 Scribner Dower, 5. 
 ISl; 4 Kent' Com. 35; 3 Bac. Abr. 4. 1 Scribner Dower, 6. 
 
 191. 5. 4 Kent Com. 36; Scribner Dower, 
 
 2. 2 Bl. Com. 129. 13. 
 
Void akd Voidable Maeeiages. 147i 
 
 ■existing customary rights or those enjoyed before the con- 
 quest, the conclusion is irresistible that dower existed as 
 part of the law, in some form, long before the Norman 
 conquest.^ 
 
 There can be no question that the purpose of the law in 
 creating dower was to provide for the sustenance and sup- 
 port of the wife and children after the death of the husband 
 and father. Dower, therefore, is an estate created by law 
 and arising out of the marital relation, in recognition of 
 "the moral obligation on the part of the husband to make 
 provision for his wife after his death, as well as to support 
 and provide for her during his life.'' 
 
 § 91. Requisites of Dower. — Before the inchoate right 
 of dower arises two things must concur: there must be a 
 valid marriage between the parties, and the husband must 
 have been seised, at some time after said marriage and dur- 
 ing coverture, of an estate of inheritance in the land in 
 which dower is claimed, capable of being inherited by the 
 children of the marriage. On the death of the husband, 
 this inchoate right of dower becomes consummate; it has 
 become an absolute right in the wife to have one-third of 
 "the real estate to which her inchoate right attached set off 
 to her for her life.* 
 
 B. — Marriage as a Requisite. 
 
 § 92. Void and Voidable Marriages. — The martial rela- 
 tion is essential to dower, as it was created by the law as an 
 incident of that relationship. Therefore there must be a 
 valid marriage before dower can arise. If the marriage is 
 absolutely void under the law of the place where solomnized, 
 no right of dower exists.® If the marriage is voidable 
 
 €. 1 Scribner Dower, 9-16. 9. Besson v, Gribble, 39 N. J. Eq. 
 
 7. 1 Scribner Dower, 20-22; Banks 111; Jones v. Jones, 28 Ark. 19; 
 T. Stratton, 2 P. Wma. 702. Cropsey v. Ogden, 11 N Y. 228; 
 
 8. See sections which follow on Smith v. Wentworth, 44 Barb. (N. 
 marriage and seisin. Y.) 193; Price v. Price, 124 N.Y. 589; 
 
148 DowEE. 
 
 merely, but not void until its invalidity has been determined 
 by a court of competent jurisdiction, the inchoate right of 
 dower exists in lands of which the husband is seised until 
 the marriage is set aside and annulled by judgment or de- 
 cree; when it is so set aside the right to dower ceases and 
 the wife is treated in so far as dower is concerned, as though 
 no marriage had ever been made.*"* 
 
 § 93. Validity; How Determined. — The law of the place 
 where the marriage is made determines its validity, except 
 that marriages which violate the accepted standards of 
 morality generally, such as polygamous and incestuous mar- 
 riages, are void in most jurisdictions, even though valid at 
 the place where solemnized.^ Where by the laws of the 
 state a divorced person is prohibited by the terms of the 
 judgment or decree of divorce from marrying again during 
 the life of the plaintiff who secured the divorce, a marriage 
 contracted in violation of such prohibition in the same state 
 is void; ^ but if it is contracted in another state, by the law 
 of which such marriage is legal, it is recognized as valid in 
 the state in which the decree of divorce was made, even 
 
 Smith V. Smith, 5 Ohio St. 33; Hig- Y. 18; Medway v. Needham, 16 
 
 gins V. Breen, 9 Mo. 493, 497; Ward Mass. 157; Putnam v. Putnam, 25 
 
 V. Bailey, 118 N. C. 55; Putnam v. Mass. 433; Hutchins v. Kimmell, 31 
 
 Putnam, 8 Pick. (Mass.) 433. Mich. 126; State v. Eoss, 76 N. C. 
 
 10. Cage V. Acton, 1 Ld. Eaym. 243 (holding that marriage between a 
 621; Price v. Price, 124 N. Y. 589; negro and a white person, void if con- 
 Wiser V. Lockwood, 42 Vt. 730; Bon- tracted in North Carolina, is valid in 
 ham V. Badgley, 7 111. 632; Adkins v. North Carolina when contracted in 
 Holmes, 2 Ind. 197, and cases dis- another state where such marriage is 
 cussed in § 93 and cited thereunder, valid). 
 
 See also Ward v. Bailey, 118 N. 0. 2. Cropsey v. Ogden, 11 N. Y. 228 ; 
 65, the court holding that the mar- Smith v. Wentworth, 44 Barb. 198 
 riage was void, but recognizing the (holding that the rule is the same 
 rule that if the marriage had been and the statute applies where the 
 voidable the wife would be entitled marriage and divorce thereafter were 
 to dower nnles« the marriage was in another state, the subsequent mar- 
 annulled during the life of the bus- riage of the defendant in this state 
 band. Is void). 
 
 1. Van Voorhis v. Brontnall, 86 N. 
 
Validity; How Deteeminbd. 
 
 149 
 
 thougli the parties were married in a neighboring state with 
 the express purpose of avoiding the prohibition of the de- 
 cree.^ 
 
 Therefore, where the question of validity arises, it can 
 be determined only by examining the statutory provisions 
 relating to marriage which will be found in all the states. 
 Incestuous and bigamous marriages are, as we have seen, 
 absolutely void in all the states.* The statutes in several 
 states provide that if a husband or wife has been absent 
 for a period designated, generally for either five or seven 
 years, and has not been heard from and his absence re- 
 mains unexplained, is presumed to be dead, and a marriage 
 contracted by the other thereafter in good faith after mak- 
 ing every reasonable effort to find the absent party, is void- 
 able merely and not void until annulled by a court of com- 
 petent jurisdiction, though it appear later that the absent 
 spouse was living at the time of the subsequent marriage.* 
 
 3. Von Voorhis v. Brontnall, 86 N. 
 Y. 18; Medway v. Needham, 16 Mass. 
 157; Putnam v. Putnam, 25 Mass. 433. 
 In Cunningham v. Cunningham, 306 
 N. Y. 341, holding that a marriage 
 contracted by a girl under 18 was 
 voidable in N. Y., though valid in N. 
 J., where contracted, the parties be- 
 ing residents of N. Y., states the rea- 
 son why the marriage of a divorced 
 person outside of the state who is 
 forbidden to marry again by decree 
 against him in N. Y. is because such 
 prohibition is in the nature of a pen- 
 alty not enforceable outside N. Y. 
 
 4. See cases cited in note 9 under 
 S 93, ante, and the statutes of tba 
 several states. The N. Y. Dom. Eel. 
 Law (Ch. 14 Consolidated Laws) ! 5, 
 provides that a marriage is incestuous 
 and void when between an ancestor 
 or descendant, a brother and sister of 
 the whole or half blood, an uncle and 
 niece or an aunt and nephew. 
 
 § 6 provides that a marriage con- 
 tracted by a person whose husband or 
 wife by a former marriage is living is 
 void (1) unless the former marriage 
 has been annulled or dissolved for ta. 
 cause other than the adultry of the 
 person remarrying; (2) unless tlie 
 former husband or wife has been 
 finally sentenced to imprisonment for 
 life; (3) unless the former husband 
 or wife has been absent for five suc- 
 cessive years prior to the second mar- 
 riage without being known to such 
 person to be living. 
 
 5. Cropsey v. McKinney, 30 Barb. 
 (N. Y.) 47; Price v. Price, 124 N. Y. 
 5S9; In re Harrington, 140 Cal. 294; 
 Hiram v. Pierce, 45 Me. 367; Strode 
 V. Strode, 3 Bush (Ky.) 227. 
 
 The N. Y. Dom. Eel. Law (Ch. 14, 
 Consol. Laws, 5 7) provides that a 
 marriage is void from the time its 
 nullity is declared by a court of com- 
 petent jurisdiction if either partjr 
 
150 
 
 DOWEE. 
 
 Two situations may arise: 1st, remarriage of the husband 
 after the unexplained absence of his wife for the statutory 
 period, and 2nd, remarriage of the wife after similar ab- 
 sence on the part of the husband. In either case, since the 
 second marriage is voidable and not void, the wife of the 
 second marriage should be entitled to dower if her husband 
 dies before the marriage is annulled.* In the first case 
 
 thereto (1) is under the age of legal 
 consent, whicli is eighteen yeais; (3) 
 is incapable of consenting to a mar- 
 riage for want of understanding; 
 
 (3) is incapable of entering into the 
 marriage state from physical cause ; 
 
 (4) consents to such marriage by 
 reason of force, duress or fraud; (5) 
 has a former husband or wife living 
 who has been absent for five succes- 
 sive years then last past without 
 being known to such party to be liv- 
 ing during such time. 
 
 In the absence of such statutory 
 provision in other states such mar- 
 riages are absolutely void. Glass v. 
 Glass, 114 Mass. 563; Thomas v. 
 Thomas, 134 Pa. St. 646; Fain v. 
 Pain, 37 Mo. App. 110. 
 
 6. Price v. Price, 124 N. Y. 589 
 (holding that when the second mar- 
 riage has been annulled the right of 
 dower of the second wife comes to an 
 end, and by implication recognizing 
 the right of dower as existing if the 
 second marriage had not been an- 
 nulled), Cropsey v. McKinney, 30 
 Barb. (N. Y.) 47 (holding that such 
 a marriage was valid, not having been 
 set aside, and its validity could not 
 be questioned after the death of either 
 party, so that a transfer of the wife's 
 personal property by the husband was 
 valid, this being before the married 
 woman's property statutes were en- 
 acted) ; White V. Lowe, 1 Redf. (N. 
 
 Y.) 376 (holding that the survivor 
 was entitled to administration) ; 
 Jones V. Zoller, 29 Hun (N. Y.) 551; 
 32 id. 380; 37 id. 237; reversed on 
 another point. 104 N. Y. 418, the 
 Court of Appeals refusing to pass on 
 th'S question. 
 
 In Gall V. Gall, 114 N. Y. 109, and 
 Stokes V. Stokes, 198 N. Y. 301, the 
 fourt holds that the party remarry- 
 ing must make reasonable inquiries,, 
 and must honestly believe, acting as a 
 reasonable person, that the former 
 spouse is dead. The enquiries and 
 efforts to find the absent party must 
 be thorough — such as the importance 
 of the matter deserves and requires. 
 
 In the Gall case, following a simi- 
 lar statement in Griffin v. Banks, 24 
 How. Pr. 313, the court held that giv- 
 ing validity to the second marriage in 
 such case necessarily suspended the 
 first marriage. Otherwise the law 
 would sanction a polygamous relation. 
 As soon as the second marriage is 
 avoided the first marriage is fully re- 
 stored. Though this is sound as- to 
 the personal relation between the first 
 husband and wife, it is submitted that 
 the validity of th^ second marriage 
 can have no effect on the right of 
 dower of the first wife. In Re Har- 
 rington, 140 Cal. 394, holds, however, 
 that the second marriage of the wife 
 in such case deprives her of marital 
 property rights under the first mar- 
 riage. 
 
Validity J How Dbtbeminkd. 151 
 
 above stated both wives should be entitled to dower, the 
 dower of the second wife being subject to the dower 
 of the first. The right of the first wife to dower is 
 undoubted since the validity of her marriage is not af- 
 fected by the subsequent marriage; at most the personal re- 
 lation under the first marriage is suspended until the sec- 
 ond marriage is annulled; it remains valid in every other 
 respect, and it is submitted that property rights arising 
 thereunder are not affected by such suspension. In the 
 second case, if the two husbands should die, the second 
 marriage not having been annulled, the wife would be en- 
 titled to dower in the real property of which each husband 
 was seised during his coverture. She has dower in her first 
 husband's property, the first marriage being valid in every 
 respect; and her right to dower in the second husband's 
 property is undoubted, since the marriage was not annulled, 
 and therefore continued to be valid till his death.'' There 
 seems to be little authority on these questions, which remain 
 unsettled. 
 
 In the majority of the states there is no such statutory 
 provision, and the second marriage, contracted in any case 
 during the life of a former husband or wife, is absolutely 
 void, and no right of dower arises thereunder. Another 
 general provision is that marriages contracted by parties 
 under the age of legal consent are voidable. Under the 
 general rule such marriages are valid till set aside, and 
 unless set aside before the death of the husband, the wife 
 will be entitled to dower.® 
 
 7. See preceding note. Sec, also, however, seems never to have been 
 
 cases cited in note 10, preceding, sua- definitely determined by the cases. 
 taining the undoubted rule that a 8. Co. Litt. 33a; 1 Seribner Dower, 
 
 voidable marriage gives dower unless 135-139; 3 Dyer, 368b; see § 5, N. Y. 
 
 avoided during the lives of the par- Dom. Eel. L. (Ch. 14, Consolidated 
 
 ties. It follows necessarily, in the Laws), note 4 preceding, 
 cases discussed in the text, since the See State v. Lowell, 78 Minn. 166; 
 
 marriages were voidable and were State v. Cone, 86 Wis. 498, holding 
 
 never set aside, that dower attaclies that such marriages are voidable and 
 
 aa stated in the text. The question, not void. It follows, of course, that 
 
1&2 DOWBE. 
 
 The setting aside of voidable marriages results in making 
 tliem void from the beginning in every respect and for 
 every purpose, except as provided by statute. Under the 
 common law the decree of annulment rendered the children 
 of such marriages illegitimate, and the relation of the 
 parties meretricious. By the modern statutes the children 
 of such marriages are legitimate and the relation between 
 the parties up to the making of the decree of annulment, 
 is lawful, in spite of the decree.* There is no provision in 
 the statutes, however, which preserves the wife's right of 
 dower after such annulment, and therefore dower must 
 end with the termination of the marital relation out of 
 which it grew and on which it depends.^* 
 
 § 94. What Constitutes a Valid Marriage. — In most jur- 
 isdictions the statutes thereof provide for the ways in 
 which marriages may be solemnized, and the o£5cers or 
 clergymen who may officiate.* Where, by the terms of such 
 statutes it is provided that no marriage is valid unless 
 made in accordance with the statutory provisions, the 
 common law marriage is not recognized as valid, but in the 
 ^bsence of such provision common law marriages have been 
 
 dower attaches subject to be defeated See, also, §§ 13 to 20, as to duties of 
 by annulment. clergymen or magistrates, securing of 
 
 9. See note 5 preceding. license and filing of certificate or con- 
 
 10. Price v. Price, 124 N. Y. 589. tract. 
 
 1. See the statutes of the different § 19 of the Dom. Eel. Law, added 
 
 states for provisions as to solemniza- by L. of 1901, ch. 339 (incorporated 
 
 tion of marriage. in § 11 of said law as modified in 
 
 As to how a marriage must be sol- 1909, when included as Ch. 14 of the 
 
 emnized in N. Y., see §§ 11 and 12 of Consolidated Laws), provides that no 
 
 the Domestic Eel. Law (Ch. 14, Con- marriages contracted in New York 
 
 solidated Laws), providing for mar- after Jan. 1st, 1902, shall be valid 
 
 riages by clergymen and by certain unless contracted in accordance with 
 
 city and judicial officials, and also by the express provisions of the Domestio 
 
 written contract signed by both par- Eelations Law. Prior to this enact- 
 
 ties, and subscribed by two witnesses, ment common law mArriages were 
 
 •nd acknowledged by the parties and fully recognized in New Twk. G*l] 
 
 witnesses as a deed to be recorded, v. Gall, 114 N. Y. 109. 
 
What Constitutes Seisin. 
 
 153 
 
 recognized as valid in most of the states.' The common 
 law marriage is one made without ceremony or oflSciating 
 clergyman or officer, by the actual agreement of the parties 
 to assume the relationship of husband and wife, and it may 
 be established either by direct evidence of such agreement, 
 or by indirect evidence, as that the parties have cohabited 
 together as husband and wife, and have been generally 
 known as such, and such other evidence of like character 
 as will tend to establish the making of such contract be- 
 tween them.* 
 
 C. — Seism of the Husband. 
 
 § 95. What Constitutes Seisin. — Before the inchoate 
 right of dower attaches the husband must be seised of an 
 estate of inheritance in the land in question, which the 
 issue of the marriage, if any, could inherit.* Seisin means 
 
 2. 1 Scribner Dower, 71 to 98, con- 
 taining a review of the cases in the 
 different states. McICenna t. Mc- 
 Kenna, 180 111. 577; Peet v. Peet, 52 
 Mich. 464; State v. Worthingham, 23 
 Minn. 528; Blanchard v. Lambert, 43 
 Iowa 228; Dyer v. Brannock, 66 Mo. 
 391. 
 
 In Northfield v. Plymouth, 20 Vt. 
 682, the court held that to recognize 
 the common law marriage would be in 
 effect to abrogate the Vermont stat- 
 utes. 
 
 3. Jones v. Jones, 28 Ark. 19 ; Fen- 
 ton V. Reed, 4 Johns. (N. Y.) 52; 
 Jackson v. Claw, 18 Johns. (N. Y.) 
 346; Besson v. Gribble, 39 N. J. Eq. 
 Ill; Pearson v. Honey, 11 N. J. L. 
 13; Thorndell v. Morrison, 25 Pa. St. 
 326; Greenawalt v. MeEnelley, 85 Pa. 
 Bt. 352; Williams v. Williams, 46 
 Wis. 46; Carter v. Parker, 28 Me. 509; 
 Boone v. Purnell, 28 Md. 607; Young 
 T. Foster, 14 N. H. 141; Stevens v. 
 Keed, 37 N. H. 49. 
 
 Where cohabitation is illicit at the 
 start, the inference is that it so con- 
 tinues thereafter, in the absence of 
 strong evidence of a marriage. North- 
 field V. Plymouth, 30 Vt. 582; Wil- 
 liams V. Williams, 46 Wis. 460; Gall 
 V. Gall, 114 N. Y. 109. 
 
 1. Co. Litt. 31a; Durando v. Dur- 
 ando, 23 N. Y. 331; House v. Jack- 
 son, 50 N. Y. 161; Mann v. Edson, 39 
 Me. 25; Pritts v. Ritchie, 29 Pa. St. 
 71; Dudley v. Dudley, 76 Wis. 567; 
 Wheeler v. Smith, oO Mich. 93 ; Kirk- 
 patrlck V. Kirkpatriek, 197 111. 144; 
 Smallridge v. Hazlett, 112 Ky. 841; 
 Burgoon v. Whitney, 131 Iowa 76, and 
 oases cited in notes which follow. 
 
 That the estnte must be one inhert- 
 able by possible issue of the marriage, 
 see Litt. § 53; 2 Bl. Com. 131; Am- 
 ootta V. Catherich, Cro. Jac. 615; 
 Barker v. Barker. 2 Simons 249 (cur- 
 tesy). 
 
154 DowBE. 
 
 possession of the land by one having a freehold estate 
 therein. An estate which under the common law before 
 the Statute of Uses required the ceremony of livery of seisin 
 in its creation, is a freehold estate, carrying with it the 
 feudal incidents of tenure, as distinguished from a term of 
 years which did not require livery of seisin, and which 
 involved no feudal relation with the overlord. A tenant 
 for years, therefore, is never seised, since he has no free- 
 hold estate. Livery of seisin was not made to him in the 
 creation of his term. His possession is the possession of his 
 landlord, holding for life or in fee, who is therefore seised 
 of the freehold.^ 
 
 It follows that if the husband is the owner of a remain- 
 der or a reversion, to take effect in possession after the 
 expiration of a present life estate, his wife will not be en- 
 titled to dower in the property in question if the husband 
 dies during the life of the life tenant. The seisin is in the 
 life tenant, since he is in possession with a present free- 
 hold estate in the land, and therefore the owner of the estate 
 in reversion or remainder is not seised, not being in pos- 
 session or entitled to the possession.^ But if the precedent 
 estate be only a term of years, as the tenant for years can^ 
 not be seised, and as his possession is that of his land- 
 lord, the reversioner or remainderman as the case may be, 
 seisin is in such remainderman or reversioner, and the right 
 
 2. See § 75, ante. seized of an estnte of inheritance and 
 
 3. Durando v. Durando, 23 N. Y. dower attaches. House v. Jackson, 
 331; Otis V. Parsley, 10 N. H. 403; 50 N. Y. 161; Strawn v. Strawn, 50 
 Blood V. Blood, 40 Mass. 80; Sammis 111. 33. 
 
 V. Sammis, 23 R. I. 499; Kirkpatrick In Pennsylvania under a statute 
 
 V. Kirkpatrick, 197 111. 144; Carter v. providing that in case of intestacy the 
 
 McDaniel, 94 Ky. 564; Durham v. wife shall have a life estate in one- 
 
 Angler, 20 Me. 242; Von Arb v. half the real property of decedent and 
 
 Thomas, 163 Mo. 33; Dudley v. Dud- one-half of his persona] property ab- 
 
 ley, 76 Wis. 567; Houston v. Smith, solutely, it is held that the v.ifc 
 
 88 N. C. 312. takes a half interest in n^mninjfrs 
 
 If the precedent life estate is con- belonging to the husband, thonai he 
 
 reyed to the htisband, so that it mer- was never seized of the property, 
 
 ges with the remainder, he is then Cote's Appeal, 79 Pa. St. 235. 
 
Seisin iit Fact and at Law. 155 
 
 of dower of liis wife attaches to the land, subject only to the 
 term of years.* 
 
 Suppose A dies intestate, leaving a widow, B and a son, 
 C. The son marries X and dies during the life of his mother. 
 In such case C, the son, inherits the real property of A, but 
 subject to his mother's right of dower, which is the right to 
 have one-third of the property set off to her for life. If 
 C dies during the life of his mother X, his wife will be en- 
 titled to dower in only two-thirds of the property in ques- 
 tion, because no matter how long after the death of A 
 dower is set off to his widow, her seisin is held to relate 
 back to the time of A's death, so that C, dying during 
 his mother's life, was never seised of her one-third, and 
 therefore his wife's dower is limited to the remaining two- 
 thirds of the property.^ But if C's mother dies, her dower 
 never having been set off, his wife wiU be entitled to dower 
 in the entire estate.® 
 
 § 96. Seisin in Fact and at Law. — Seisin in fact includes 
 
 all cases where the husband has actually taken possession, 
 having a freehold estate of inheritance, and also all cases 
 where he takes title by the modern deed, or by deed under 
 the Statute of Uses, since the delivery of the deed results 
 in putting seisin in the grantee as completely as would 
 the common law livery of seisin, such deeds having taken 
 the place of the common law feoffment with livery of seisin 
 
 4. Sheaf v. Carr, 24 Beav. S59; Law, provides further the wife must 
 
 Weir V. Tate, 39 N. C. 264; Boyd v. elect by entry or action within a year 
 
 Hanter, 44 Ala. 705; Sykes v. Sykes, for dower in the land conveyed by 
 
 49 Miss. 190. her husband in exchange; otherwise 
 
 Dower in Lands Exchanged. Where she is deemed to have elected to take 
 lands are exchanged the wife of either dower in the lands received in ex- 
 party to the exchange is entitled to change. 
 
 dower in either parcel, since her hus- 5. Matter of Cregier, 1 Barb. Ch. 
 
 band was seized of both, but she is (N. Y.) 598; Dunham v. Osborn, 1 
 
 not entitled to dower in both parcels. Paige (N. Y.) 634. 
 
 Co. Litt. 31b; Cr„s3 V. Tliompson, 1 N. 6. Null >. Howell, 111 Mo. 273, and 
 
 H. 65. In New York, § 191, R. P. preceding note. 
 
156 
 
 DOWEE. 
 
 as the method of transferring title to real estate inter 
 vivosJ Where the husband inherits property as heir, and 
 where property is devised to him by will, he is not seised in 
 fact before entry; * but if the premises are in the possession 
 of a tenant for years at the time, holding under a lease not 
 yet expired, in which case the possession of the tenant is 
 Mb possession, he is seised as a matter of fact.® Where 
 there is no such possession by a tenant, the husband is said 
 to be seised in law, which means only this: that he will 
 not be permitted to defeat his wife's dower by failing to 
 make an entry; if he is entitled to the immediate posses- 
 sion he is sufficiently seised to entitle his wife to dower 
 whether he enters or not.^"* 
 
 7. Adair v. Lott, 3 Hill (N. Y.) 
 182; Jackson v. Johnson, 5 Cowen 
 74 ; Oarr v. Anderson, 6 App. Div. (N. 
 Y.) 6; Borland v. Marshall, 8 Ohio 
 St. 308. The foregoing are all eases 
 involving the question of actual seizin 
 in the wife as a requisite of curtesy. 
 They, however, necessarily stand for 
 the proposition of the text, since the 
 same principle is involved in cases of 
 actual seisin of the husband. See, 
 also, Atwood v. Atwood, 39 Mass. 283. 
 
 8. See preceding note. 
 
 9. De Grey v. Richardson, 3 Atk. 
 4";;). and cases cited in note 7, supra. 
 
 10. 4 Kent Com. 87; Durando v. 
 Durando, S3 N. Y. 331; Mann v. Ed- 
 son, 39 Me. 35, and cases in note 7, 
 si< pra. 
 
 When property is held adversely to 
 tie husband during the entire period 
 of coverture, so that the husband was 
 never seized, there is no seisin either 
 in fact or at law which would en- 
 title his wife to dower. 4 Dana Abr. 
 fifitf; 1 Washb. R. P., § 390. The right 
 of the husband to maintain ejectment 
 is a right of action, not amounting to 
 ■eizin at law. 1 Scribner 3S5. There- 
 
 fore a right to enter for breach of con- 
 dition does not give dower. Thomp- 
 son V. Thompson, 46 N. C. 430; EUia 
 V. Kyger, 90 Mo. 600. In Ohio the 
 court held that in the like case of 
 curtesy adverse possession was im- 
 material, since the technical doctrine 
 of seizin has no application to pre- 
 sent conditions; that therefore cur- 
 tesy attaches if the wife is owner of 
 the property, even though she was 
 never seized. Borland v. Marshall, i 
 Ohio St. 308. In Missouri it is held, 
 under a statute, that the widow is en- 
 titled to dower though there was nw 
 actual possession or recovery of pos- 
 session by the husband during his life. 
 Bartlett v. Tinsley, 175 Mo. 319. 
 
 Where the husband becomes seized; 
 and is disseised during coverture by 
 one holding adversely, the adverse 
 holding during the coverture does not 
 affect the wife's right of dower, since 
 she could maintain no action against 
 the disseisor during her husband'i 
 life. Durham v. Angier, 20 Me. 848. 
 
 In England and in some of the 
 states, there are statutes giving the 
 wife dower in lands as to which her 
 
DOWEE IN MOETGAGED PeOPEBTT. 157 
 
 § 97. Dower in Mortgaged Property. — Originally under 
 ilie common law theory of mortgages, by which mortgages 
 were treated as conditional conveyances subject to be de- 
 feated by payment of the mortgage debt on the due day, 
 the mortgagee was held to be seised, not the mortgagor. 
 Therefore where the husband became the owner of property 
 subject to a mortgage, he was held to have only a right in 
 equity to redeem the property from the lien of the mortgage, 
 but no legal seisin, and for that reason his wife was not 
 -entitled to dower.^ Even in equity the wife fared no bet- 
 ter, for though equity treated the mortgage as a convey- 
 ance by way of security, and regarded the mortgagor as 
 beneficial owner subject to the lien of the mortgage, equity 
 rrefused to recognize dower as an incident of equitable es- 
 tates, and therefore refused to give to the wife dower in 
 Jher husband's equity of redemption.* 
 
 Under the modem oases mortgages are regarded in some 
 states as conveyances of the bare legal title to the mortgagee, 
 «olely for the purpose of securing the mortgage debt, and the 
 mortgagor in possession is seised of the property as owner 
 -against all persons except the mortgagee. His interest, 
 though strictly speaking, an equitable interest only, sinco 
 the technical legal title is in the mortgagee, and though 
 .generally termed the " equity of redemption," is never- 
 theless regarded as legal ownership as against anyone not 
 claiming under the mortgage, and therefore his wife is 
 entitled to dower in the property acquired by him subject 
 to a mortgage, as against everyone but those claiming under 
 the mortgage; in other words her dower attaches subject 
 to the mortgage. In many states mortgages are mere liens, 
 
 :hTi9band had only a ripTit of action or Y.) 278; Chjlver v. Harper, 27 Ohio 
 
 entry. 3 and 4 Wm. IV, c. 105, § 3; St. 464; Grant v. Stanley, 37 Me. 11; 
 
 1 Stimson Am. St. L. § 3311: Stat. Burnet v. Burnet, 46 N. J. Eq. 144. 
 
 TCy. (1903), § 3134; Va. Cod'', § 3363. 2. Park Dower, 137; Cases in pre- 
 
 1. Burgess v. Wheate, 1 Black. Rep. ceding note. Also Stelle v. Carroll, 
 
 160; Dixon v. Saville, 1 Bro. 336; 13 Pet. (U. S.) 201; Mayburry y. 
 
 Collin's Widow V. Torrey, 7 Joins. (N. Brien, 15 Pet. fU. S.) 38. 
 
3 58 
 
 DOWEE. 
 
 the legal title remaining in the mortgagor thronghout, the 
 mortgagee having a lien only to secure the mortgage debt. It 
 follows that in these states also the wife is entitled to dower 
 in the property, subject only to the mortgage and rights 
 arising thereunder.^ It will further appear from the cases 
 cited that the same situation exists where the wife bars her 
 dower by joining with her husband in a mortgage. Under 
 the common law her dower was gone absolutely, unless the 
 mortgage was satisfied, since she had barred her dower by 
 a conveyance of the legal title; but by the modern view her 
 dower attaches to the property subject to the mortgage. 
 Of course the wife's inchoate right of dower attaches to 
 her husband's interest in the property subject to all liens 
 which encumber his estate at the time her right of dower 
 attaches, via.: on the concurrence of marriage and seisin.* 
 The wife of the mortgagee is not entitled to dower, since 
 her husband has, at most, the bare legal title held by way of 
 security and is not beneficially seised.** 
 
 3. Collin's Widow v. Torrey, 7 
 Johns. (N. y.) 278; Mills v. Van 
 Voorhies, 30 N. Y. 412; Fish v. Fish, 
 1 Conn. 559; Burnet v. Burnet, 46 N. 
 J. Eq. 144; Wade v. Miller, 32 N. J. 
 L. 296; Thompson v. Boyd, 22 N. J. 
 L. 543; Nefl'ton v. Cook, 4 Gray 
 (Mass.) 46; Snow v. Stevens, 15 
 Mass. 279; Simonton v. Gray, 34 Me. 
 50; Cox V. Garst, 105 111. 342; Culver 
 V. Harper, 27 Ohio St. 464; Daniel 
 V. Leitch, 13 Grat. (Va.) 195; Sny- 
 der V. Snyder, 6 M'ich. 47; Hastings 
 V. Stevens, 29 N. H. 564; Eddy v. 
 Moulton, 13 E. I. 105. 
 
 In many states statutes provide 
 that the widow of the mortgagor shall 
 be endowed of the property against 
 every one except the mortgagee or 
 those claiming under the mortgage. 
 X. Y. Real Prop. Law, § 192; 1 
 Stinison Am. St. L., §§ 3214, 3216 
 
 In states where there are separate 
 courts of law and equity, if the mort- 
 
 gagee, or any one claiming under the 
 mortgage becomes the owner of the 
 husband's equity of redemption, be- 
 fore his death, the wife lias no right 
 to dovrer at law; but .she has a right 
 in equity to redeem pro tanto, and 
 then take dower in the property re- 
 deemed. Cox v. Garst, 105 111. 342; 
 Tlioiiipson V. Boyd, 23 N. J. L. 543; 
 Woodhull V. Eeid, 16 N. J. L. 123. 
 In Rands v. Kendall, 15 Ohio 671, 
 in a ca-e where the liusbaud released 
 the equity of redemption to the mort- 
 gageo, the court held that the widow 
 had no dower in the equity of redemp- 
 tion as it was only an equitable es- 
 tate, and tlie husband was not seized 
 of it at his death. 
 
 4. See preceding note. 
 
 5. 4 Kent Com. 43; Cooper v. Whit- 
 ney, 3 Hill (NY.) 95, 100; Reed v. 
 Shepley, 6 Vt. 602; Foster v. Dwinel 
 49 Me. 44. 
 
PuECHASB Money Moetgages. 159 
 
 § 98. Purchase Money Mortgages. — When a married 
 man takes title to real property and gives back to the vendee 
 a mortgage to secure the whole or any part of the purchase 
 money, pursuant to a contract of. purchase and as part of the 
 same transaction, his wife 's dower attaches to the property 
 subject to the purchase money mortgage, and therefore it 
 is unnecessary for wives to join in such mortgages in order 
 to bar their dower.® The reason for this is that the hus- 
 band buys only the equity of redemption in the property, 
 subject always to the mortgage which he agrees to give 
 back, and his wife's dower right can attach only to his 
 interest. The reason commonly given for this rule is that 
 the husband's seisin is instantaneous, the seisin passing 
 immediately to the mortgagee through the delivery of the 
 mortgage immediately after the delivery of the deed 
 to the husband, and that such seisin is not beneficial, 
 but solely for the purpose of passing on the title to the mort- 
 gagee.^ However logical and correct this may have been 
 under the ancient common law doctrine of dower in mort- 
 gaged property, as explained in the preceding section, it 
 does not apply to the situation existing under the modern 
 cases which give the wife of the mortgagor dower in mort- 
 gaged property subject to the mortgage. It is a quite suf- 
 ficient reason for the rule that the husband contracts for and 
 gets the property subject to the purchase money mortgage, 
 his interest being commonly called the equity of redemp- 
 tion, and the wife 's dower right can attach only to such in- 
 terest. That this artificial doctrine of instantaneous seisin 
 no longer applies and is therefore misleading is clearly 
 shown in those cases where some considerable time elapses 
 between the delivery of the deed to the husband and the 
 
 6. Co. Litt. 31a; 2 Bl. Com. 133; Hinds v. Ballou, 44 N. H. 619; Welch 
 
 Boorum v. Tucker, 51 N. J. Eq. 135; v. Buckins, 9 Ohio St. 331; Eeed v. 
 
 Mills V. Van Voorhies, 20 N. Y. 412; Morrison, 13 Serg. & R. (Pa.) 18, and 
 
 Smith V. McCarthy, 119 Mass. 519; eases in following notes. 
 Moore v. Eawlins, 45 Me. 493; Not- 7. See preceding note. 
 tingham v. Calvert, 1 Ind. 527; 
 
160 
 
 DOWSB. 
 
 delivery of the purchase money mortgage by him. In such 
 cases his seisin is certainly not instantaneaus; it may con- 
 tinue for months; nevertheless his wife's dower is subject 
 to the mortgage given later to secure the purchase money.* 
 In such case, during the interval referred to, the husband is 
 either bound by his contract of purchase to give the mort- 
 gage, or his title is subject to the vendor's lien, viz.: a lien 
 on the land which equity gives vendors of real property 
 for the unpaid balance of the purchase money. The dower 
 right is subject, of course, to the contractual obligation of 
 the husband or the vendor's lien, as the case may be, and 
 will remain subject to the purchase money mortgage given 
 pursuant to the contract, or given to take the place of 
 the vendor's lien. In other words her dower attaches to 
 her husband's actual interest in the property.® 
 
 8. Boonim t. Tucker, 51 N. J. Eq. 
 135; Wheatley v. Calhon, 13 Leigh 
 (Va.) 264. 
 
 Is Hawlina t. Lowndes, 34 Md. 639, 
 the court held that dower was su- 
 perior to a mortgage given to secure 
 purchase money several days after de- 
 livery of the deed to the husband. 
 This decision rested on the finding of 
 the court that there was no evidence 
 that the mortgage had been agreed 
 upon under the contract of sale. If 
 there had been such agreement to give 
 the mortgage it would seem very clear 
 that the widow's dower should be held 
 subject thereto. 
 
 It must appear afBrmatively that 
 the mortgage was given to secure pur- 
 chase money. Grant v. Dodge, 43 Me. 
 489; Smith v. McCarty, 119 Mass. 
 519. 
 
 9. See preceding note. 
 
 The doctrine of instantaneous 
 seizin is responsible for statements in 
 most of the cases that the purchase 
 Money mortgage must be delivered at 
 
 the same time that the deed is de- 
 livered, as a part of the same tran- 
 saction. See cases in note 6, tupm. 
 But it is clear that it is not the in- 
 stantaneous ebaraeter of the seizin 
 which prevents dower from attach- 
 ing. If the seisin carries with it 
 beneficial ownership of the property, 
 dower attaches, no matter how 
 brief the seizin may be. Stan- 
 wood V. Dunning, 14 Me. 290; Hol- 
 brook V. Finney, 4 Mass. 566; Griggs 
 V. Smith, 12 N. J. L. 22; Sutherland 
 V. Sutherland, 69 111. 481; Broughton 
 V Randall, Cro. Eliz. 602. In this 
 last case a father and son had been 
 hanged together, and the son ap- 
 peared to live a moment longer than 
 the father. They owned property as 
 joint tenants, and it was held that 
 the son was seized suflfciently to give 
 dower to Ms wife. Therefore, the 
 true reason why a husband, gWng a 
 purchase money mortgage, was not 
 sufficiently seized was because, at 
 common law, his seisin was not l>ene" 
 
PuBCHASB Money Moktgages. 
 
 lei 
 
 Where the purchase money in whole or in part is advanced 
 by a third party, a mortgage given to such third party is a 
 purchase money mortgage and the dower of the wife of the 
 purchaser is subject thereto. By the transaction of pur- 
 chase the husband became owner of the equity of redemp- 
 tion only, and his wife's dower right is limited, here as in 
 all cases, to the actual interest which he acquired."* 
 
 In every case where the wife's dower right is subject 
 to a mortgage, whether a mortgage made before dower at- 
 tached, or a purchase money mortgage, or a mortgage in 
 which the wife has joined with her husband, she is entitled 
 to dower in the equity of redemption, and may redeem the 
 property from the mortgage in order to protect her dower.** 
 On foreclosure of the mortgage her dower right is trans- 
 ferred to the surplus money payable to her husband after 
 satisfying the mortgage debt, and if she makes application 
 therefor, the court will protect her interest by ordering the 
 
 flcial, but solely for the purpose of 
 transferring title, by purchase money 
 mortgage, to the vendor. Under the 
 modern law, which regards the mort- 
 gagor as the owner of the property, 
 subject to the lien of the mortgage, 
 the husband is beneficially seized, and 
 in nearly all jurisdictions it is now 
 admitted that the wife is entitled to 
 dower as against every one other 
 than the mortgagee, and that she has 
 dower- in the equity of redemption. 
 There is no reason, therefore, why a 
 purchase money mortgage given aftar 
 the delivery of the deed, either pur- 
 suant to the contract of sale, or in the 
 nbsence thereof in substitution for the 
 vendor's lien, should not be superior 
 to the wife's dower right. 
 
 That the vendor's lien is superior to 
 dower of the purchaser's wife, is 
 recognized in most jurisdictions. 1 
 Scribner, 555; Boorum T. Tucker, 51 
 N. J Eq. 135; Warner v. Van Al- 
 ii 
 
 styne, 3 Paige (N. Y.) 513; Shirley 
 V. Sugar E. Co., 8 Edw. Ch. (N. Y.) 
 505; Unger v. Leiter, 33 Ohio St. 
 210: Hugunin v. Cochrane, 81 111. 
 302; Cocke v. Bailey, 48 Miss. 81; 
 Eoush V. Miller, 39 W. Va. 638. 
 
 The dower right of the wife being 
 subject to the vendor's lien, there 
 seems to be no valid reason why a 
 purchase money mortgage taking th« 
 place of such lien, some time after 
 the conveyance to the husband, should 
 not also be superior to her right ol 
 dower. 
 
 10. Kittle V. Van Dyck, 1 Sandf, 
 Ch. (N. Y.) 76; Adams v. Hill, 39 N. 
 H. 208; King v. Stetson, 11 Allen 
 407; Glenn v. Clark, 53 Md. 580; 
 Cowardin v. Anderson, 78 Va. 88 i 
 Roush v. Miller, 39 W. Va. 638. Sm 
 also Thomas v. Hanson, 44 Iowa 6S1. 
 
 11. See cases cited in last four pr» 
 ceding notes. 
 
16S DOWBB. 
 
 investment of one-third of such surplus money to await the 
 event of her surviving her husband, the income therefrom 
 being payable to the husband while he lives, and after hia 
 death the income will be paid to the wife, or if the parties 
 all agree to it, the present value of her dower may be deter- 
 mined and paid to her at once.'* 
 
 D. — Estates to which Dower Attaches. 
 
 § 99. Dower in Equitable Estates. — It appears sti.'ii- 
 ciently from the foregoing sections that dower attaches to 
 all legal estates of inheritance. Certain special classes of 
 estates require further consideration in so far as the nature 
 of the estate affects the right of dower. 
 
 An equitable estate is a trust, the legal title to the prop- 
 erty being in a trustee for the benefit of the cestui que trust, 
 as the owner of the trust estate is called. Such estates 
 did not exist from the standpoint of courts of law, but were 
 recognized only in equity. Therefore courts of equity have 
 sole jurisdiction over such estates, and the sole power of 
 determining the incidents attaching thereto, including 
 dower and curtesy. The general principle in accordance 
 with which the character and incidents of these estates were 
 worked out was this : that equity follows the law, applying 
 to these estates ail the incidents which attach to legal es- 
 tates of the same kind, in so far as those incidents may be 
 applied without violating the trust.' The most important 
 
 12. Mills V. Van Voorhies, 20 N. Y. Willis, 40 K. J". Eq. 515; Schweitzer 
 
 412; Ehnendorf v. Lockwood, 4 Lans. v. Wagner, 94 Ky. 458; George v. 
 
 (N. Y.) 393; Vartie v. Underwood, Cooper, 18 W. Va. 666; Fox v. Pratt, 
 
 18 Barb. (N. Y.) 561; Citizens Sav. 27 OMo St. 512; Thompson v. Lyman, 
 
 Bank V. Mooney, 26 Misc. (N. Y.) 67 28 Wis. 266; contra, Kauffman v. 
 
 (holding that she may demand that Peacock, 115 111. 213; but see Virgin 
 
 one-third be invested, &c. She has no v. Virgin, 189 111. 144; Newhall v. 
 
 right to demand payment of a sum in Lynn Sav. Bank, 101 Mass. 438, 
 
 gross) ; Emmigrant, &c. Bank v. Re- holding that wife is barred from 
 
 gan, 41 App. Div. (N. Y.) 523; De dower in surplus money, she not hav- 
 
 Wolf V. Murphy, 11 R. I. 630; Stray- ing exercised her right to redeem. 
 
 er V. Long, 86 Va. 557; Schmidt v. 1. See Ch. VIII., post. 
 
DowEE IN Textst EsTAns IN THE TTnited States. 163 
 
 exception to this rule was in the case of dower; though 
 equity followed the law in determining the devolution of the 
 estate on the death of the cestui que trust in fee, and gave 
 curtesy to the husband of such cestui que trust, equity re- 
 fused to follow the law in the case of dower, holding that 
 dower did not attach to equitable estates.^ This has been 
 changed by statute in England, where now dower attaches 
 to equitable estates of inheritance of which the husband 
 was seised at his death.' The inchoate right of dower does 
 not exist in such estates; the right arising only on the death 
 of the husband, he being still the owner of the equitable or 
 trust estate at the time of his death. 
 
 § 100. Dower in Trust Estates in the United States. — It 
 is now generally settled in the United States, either by ex- 
 press statutory provision following the English statute, or 
 by decision, or by a combination of statutory provisions 
 and judicial decisions, as in New York, Ihat dower attaches 
 to trust estates in fee of which the husband continues to be 
 the owner at the time of his death. Of course there is no 
 such thing as seisin in the owner of a trust estate, the seisin 
 being in the trustee; but ownership of the equitable estate, 
 carrying with it the present right of enjoyment, is the 
 equivalent of seisin in the case of legal estates, and must 
 concur with a valid marriage and death of the husband who 
 is still the owner of the trust estate, in order that dower may 
 attach.* 
 
 2. 4 Kent. Com. 43; Bottomley v. 4. Hawley v. James, 5 Paige (N.Y.) 
 Fairfax, Finch Preo. 336; D'Arcy v. 418, 453; Hicks v. Stebbins, 3 Lana. 
 Blake, 3 Schoeles & L. 388. (N. Y.) 39; Williams v. Kinney, 43 
 
 3. 3 & 4 William IV, ch. 105. It Eun (N. Y.) 1; Yeo v. Mercereau, 18 
 will b« noted that by this statute the N. J. L. 387 ; Owen v. Robbina, 19 
 husband may defeat the wife's dower 111. 545; Tink v. Walker, 148 111. 234; 
 by any conveyance or devise in any Reed v. Whitney, 7 Gray (Mass.) 
 estate, legal or equitable, so that in 533; Towle v. Berry, 44 N. H. 569 
 England dower attaches only when Abbott v. Bosworth, 36 Ohio St. 605 
 the husband dies intestate as to tho Pritts v. Ritchie, 29 Pa. St. 71 
 property in question. Junks r. Cannon, 34 Pa. St. 286 
 
164 
 
 DOWBB. 
 
 This rule applies to all trust estates in fee, including im- 
 plied or resulting trusts, or trusts which equity declares 
 shall result from certain acts, though no express trust was 
 created or was intended hy the parties involved. Thus 
 where A makes a contract to sell real property to B, and B 
 promises to pay a certain sum therefor, from the stand- 
 point of a court of equity A holds the legal title in trust for 
 B, the purchaser, who is the beneficial owner, subject to the 
 payment of the purchase price according to the contract of 
 sale. If B dies before the transfer of the title to him, not 
 having assigned his contract to another, his widow is en- 
 titled to dower in the trust estate which he had under the 
 contract, subject, of course, to the payment of the purchase 
 price.' 
 
 Langworthy v. Heeb, 46 Iowa 64; 
 Smallridge v. Hazlett, 113 Ky. 841; 
 Fester v. Gordon, 49 Me. 54; Glenn v. 
 Clark, 53 Md. 580; McRae v. McRae, 
 78 Md. 270. For statute see 1 Stim. 
 Am. St. L. § 3313. In Davis v. Green, 
 103 Mo. 170, it was held that the 
 wife's dower in her husband's equi- 
 table estate was not affected by the 
 Rale under (execution of the husband's 
 interest. 
 
 In Pennsylvania dower in equitable 
 estates is recognized without the aid 
 of stahites, as part of the law of the 
 state. Shoemaker v. Walker, 3 Serg. 
 & R. 554. 
 
 Under the statute In Connecticut 
 dower attaches to an equitable re- 
 mainder in fee. Greene v. Hunting- 
 ton, 73 Conn. 106. To same effect, 
 Stroup V. Stroup, 140 Ind. 179. 
 
 6. Williams v. Kinney, 43 Hun (N. 
 Y.) 1; Young v. Young, 45 N. J. Eq. 
 27; Yeo v. Mercereau, 18 N. J. L. 
 387; Tink v. Walker, 148 HI. 234; 
 Seed T. Whitney, 7 Gray, 533; 
 Smallridge t. Hizlett, 118 Ky. 841; 
 Sowen T. Lingle, 119 Ind. 560; Ble- 
 
 vina V. Smith, 104 Mo. 583, 613, 614; 
 Lynn v. Gephart, 37 Md. 547. 
 
 In Stephens v. Leonard, 133 Mich. 
 135, the court held that in Michigan 
 dower does not attach to equitable 
 estates. In this case, however, ths 
 husband had assigned his contract of 
 purchase before his death. 
 
 See James v. Upton, 96 Va. 396, 
 and Everitt v. Everitt, 71 Iowa 321, 
 holding, under the statutes in those 
 states, that the husband cannot defeat 
 his wife's right of dower by trans- 
 ferring his interest under such con- 
 tract of purchase before his death, 
 she not joining in the transfer. 
 
 The husband must be owner of an 
 equitable estate giving him the right 
 to specific performance of the con- 
 tract, on paying the balance of the 
 purch.ase price, and doing the things 
 which he was bound by his contract 
 to do, and the wife's right of dower 
 is subject to the payment of the pnr- 
 cbase money. See cases also cited, 
 and also Walters t. Walters, 132 III. 
 4ST. 
 
DowEE IN Trust Estates in the United States. 165 
 
 Another case of a resulting trust arises where A buys 
 and pays for real property, and has title taken in the name 
 of B; a trust results in favor of A, the legal title being held 
 by B for his benefit as cestid que trust. In New York the 
 statute provides that no trust results in such case except for 
 the benefit of creditors under certain conditions, unless 
 title is taken by B either without A's knowledge or in viola- 
 tion of some trust. It has been held, therefore, that where 
 the legal title is taken by a third party, in the absence of 
 any trust, the right of dower does not exist since the hus- 
 band who paid the purchase price, and on whose behalf the 
 property was held by the third party or " dummy " was 
 never seised, the seisin being in such third party.^ It is 
 now well settled in New York, by decisions in which no 
 question of dower arose, that in such cases a trust arises in 
 spite of the statute from an agreement on the part of the 
 third party or dummy that he is to hold the property for his 
 principal and will convey it to him or at his direction, such 
 a situation not coming within the terms of the statute.'^ It 
 would seem to follow that in any such case, where the hus- 
 band dies having a right of action in equity to compel the 
 party holding the title for his benefit to convey the prop- 
 erty to him, his widow should be entitled to dower in the 
 property, since the husband was equitable owner of the 
 property at his death.* 
 
 6. Phelps V. Phelps, 143 N. Y. 197; perform on his part. In other words, 
 Nichols V. Park, 78 App. Div. (N. Y.) a trust results from hia contract to 
 95; Mann V. Edson, 39 Me. 25; EUand so convey. MoKinley v. llessen, 203 
 V Efland, 96 N. C. 488; Babbitt v. N. Y. 24; Jeremiah v. Pitcher, 26 
 Gaither, 67 Md. 94. App. Div. (N. Y.) 403, and cases 
 
 7. The agreement of the third party cited therein. Smith v. Balcorn, 24 
 to convey to the principal at his di- App. Div. 437, N. Y. Real Prop. Law, 
 rection will be specifically enforced, § 94. 
 
 though not in writing, the contract 8. The right to dower in equitable 
 
 having been partly executed by the estates of inheritance of which the 
 
 conveyance of the land to him and husband dies seized is fully recog- 
 
 payment of the consideration by the nized in New York. Hawley v. James, 
 
 principal, justice requiring that he 5 Paige 418; Hicks v. Stebbins, 3 
 
166 
 
 DOWHR. 
 
 In New York and in most of the other states a dry or 
 naked trust, imposing no active duty on the trustee, is void, 
 and the legal title passes directly to the beneficiary of such 
 trust. In such case the beneficiary becomes seised of a legal 
 estate, and the inchoate dower of his wife attaches.' 
 
 The wife of the trustee is not entitled to dower, since the 
 trustee is not beneficially seised. To give his wife dower 
 would be clearly in contravention of the trust and would 
 be enjoined ia equity. The husband's seisin must be for his 
 own benefit, as beneficial owner of the property, in order 
 that dower may attach, and a trustee's seisin is manifestly 
 not of this description.*" 
 
 § 101. Dower in Joint Estates. — Dower does not attach 
 to the interest of a joint tenant, since his interest is not 
 one which his children will inherit, even though the joint 
 tenancy be in fee. This arises from the peculiar nature 
 
 Lans. (N. Y.) 39; Williams v. Kin- 
 ney, 43 Hun 1. In Hawley v. James, 
 supra, the court expressly recognized 
 the right of dower as attaching to a 
 trust estate arising out of the taking 
 of title by a third person who holds 
 under an agreement to convey to the 
 Imsband or at his direction, provided 
 the husband is still owner of such 
 trust interest at his death. (See opin- 
 ion at p. 452.) In Phelps v. Phelpa, 
 143 N. Y. 197, the husband was not 
 yet dead, and his wife was seeking to 
 liave her dower right declared in his 
 trust interest before his death. As 
 her right of dower could not arise 
 till his death, it is clear that she 
 could not maintain her action. In 
 Nichols V. Park, 78 App. Div. 95, it 
 appeared that the husband was seized, 
 at the most, if only an equitable 
 estate before his wife divorced him, 
 pnd that after the divorce he took 
 title and transferred the property to 
 
 another. At his death, therefore, ho 
 was no longer owner of an equitable 
 interest of which he was seized dur- 
 ing coverture, and therefore his wife 
 could not be entitled to dower. These 
 cases, therefore, are not contra to the 
 principle stated in the text, and if 
 Hawley v. Paige will be followed, the 
 law in New York is as there stated. 
 
 9, Starbuck v. Starbuck, 6S App. 
 Div. (N. Y.) 437, at 450; Wendt v. 
 Walsh, 164 N. Y. 154; Newton v. 
 Sly, 15 Mich. 3yl; N. Y. Real Prop. 
 Law, §,§ 92, 93. 
 
 10. Starbuck v. Starbuck, 62 App. 
 Div. (N. Y.) 437; King v. Bushnell, 
 121 111. 656; Miller v. Miller, 148 Mo. 
 113; Hunkins v. Hunkins, 65 N. H. 
 95; Goddard v. Prentice, 17 Conn. 
 546; Firestone v. Firestone, 2 Ohio 
 St. 415; Edmonson v Welsh, 27 Ala. 
 578 ; McClure v. Fairfield, 153 Pa. St 
 411. 
 
DowEB IN Paetneeship Rbaltt. 16T 
 
 of the estate. Joint tenants are not seised of a separate 
 undivided interest in the property like tenants in common, 
 but are seised jointly with their co-tenants, exactly as 
 though they together constituted a fictitious unity for the 
 purpose, like that of husband and wife. When one of them 
 dies the entire estate goes to the survivors, who, as the 
 continuation of this unity, remain the owners of the prop- 
 erty, and nothing passes to the heirs or devisees of the 
 deceased joint tenant. There is nothing, therefore, to which 
 dower can attach while the joint tenancy continues.* The 
 wife of a tenant in conmion, however, is entitled to dower, 
 since the interest of such a tenant descends to his heirs on 
 his death.* A joint tenant is not only seised of the entire 
 property a^ a member of the unity above referred to, but he 
 has also an undivided interest arising out of his individual 
 right of enjoyment which he may convey. When he con- 
 veys such an interest the joint tenancy is broken, the unities 
 of time and title, which are essential to a holding by the 
 several joint tenants as a unity being gone, and the pur- 
 chaser of his interest holds as tenant in common, and his 
 interest is therefore subject to dower. So, also, since the 
 last survivor of the joint tenants takes by survivorship an 
 estate in severalty, dower then attaches to his estate, it being 
 no longer held subject to the possibility of survivorship.* 
 
 § 102. Dower in Partnership Realty. — Partnership real 
 estate, bought and paid for by the firm for firm purposes, 
 is under no circumstances subject to dower under the Eng- 
 lish rule. The courts there hold that partners do not enter 
 into a partnership to become proprietors of land, but to do 
 
 1. 1 Co. Litt. 37b; 1 Scribner 260; Lester, 6 Gray 314; Shiff v. Snyder, 
 Babbitt v. Day, 41 N. J. Eq. 392; 121 Mo. 155; Whitney v. Whitney, 
 Maybury v. Brien, 15 Pet. (U. S.) 45 N. H. 311; Hudson v. Steere, 9 R. 
 21; Coekrill v. Armstrong, 31 Ark. I. 106; Harris v. Coates, 6 Gray 
 680. See Ch. IX, post. (Mass.) 314. 
 
 2. Steltz V. Schreck, 60 Hun 74, 3. See last two notes preceding, 
 affirmed, 128 N. Y. 263; Pynchon ▼. also Chap. IX, post. 
 
168 DowEE. 
 
 business and make profits, and therefore it is presumed 
 that in all cases they expressly or impliedly agree that 
 when the firm is wound up the real property shall be sold 
 like the other property of the firm, and the surplus remain- 
 ing after the payment of debts shall be distributed as money. 
 Therefore, applying the doctrine of equitable conversion, 
 that equity will treat that as done which ought to be done 
 pursuant to the agreement of the parties, equity treats 
 partnership realty as converted into personalty, and on 
 the death of either partner it is administered like the per- 
 sonal property of the firm. Therefore dower does not at- 
 tach to partnership realty in England.* 
 
 In the United States the doctrine of equitable conversion 
 has been held to apply in cases where there was an express 
 agreement made between the partners, or one is to be 
 reasonably inferred from the facts, that on the dissolution 
 of the firm the real property is to be sold and the proceeds 
 divided after payment of the debts, and in such cases the 
 wives of the partners are not entitled to dower under any 
 circumstances.® In the absence of such agreement, how- 
 ever, the right of dower of the wife of each partner at- 
 taches to her husband 's interest in the firm realty. Whether 
 the legal title is in all the partners, or only in one no more 
 of them, they hold such legal title as trustees for the firm. 
 
 4. Eng. Part. Act, 53 & 54 Vict, the affairs of the firm. The court 
 c. 39, §§ 20, 33; Essex v. Essex, 30 held that because of this agreement 
 Beav. 443; Darby v. Darby, 3 Drew the real property in question descend- 
 495. ed as realty, and was not subject ti 
 
 5. Darrow T. Calkins, 154 N. Y. the doctrine of conversion for the 
 603; Buckley v. Doig, 188 N. Y. 238, purpose of paying firm debts, &.c. 
 and cases cited therein; Parrish v. Though the question has not been 
 Parrish, 88 Va. 539; Mallory v. Eus- raised in many states, it has been 
 Bell, 71 Iowa 63; Greene v. Greene, 1 uniformly held where the question 
 Ohio 535. has arisen that the express agree- 
 In Hughes T. Allen, 66 Vt. 95, there ment of the partners will control. It 
 
 was an express agreement between is safe to say that the same position 
 
 the partners that the real estate of will be taken in other states, as no 
 
 the firm should not be sold or con- other result is consistent with the 
 
 verted for the purpose of winding up principles of equitable conversion. 
 
DowEE IN Paetneeship Realty. 169 
 
 Therefore whenever the property is conveyed or mortgaged 
 by the firm in the course of the partnership business, the 
 interest of each partner is subject thereto, and the inchoate 
 dower right of the wife of each partner will be defeated to 
 that extent. It follows that it is not necessary for the wives 
 of partners to join in firm deeds or mortgages made in the 
 due course of the partnership business.* 
 
 On the dissolution of the firm the inchoate right of dower 
 of the wives of the partners is subject to the sale of the 
 real property if required for the purpose of paying firm 
 debts and adjusting accounts between the partners. When 
 the firm is fully wound up, its debts paid and the accounts 
 or equities between the partners have been adjusted, the 
 legal title to the partnership real property remaining un- 
 sold is still in the partners as tenants in common, but no 
 longer subject to any trust in favor of the firm, and the wife 
 of each partner has dower in her husband's interest exactly 
 the same as in any case of a tenancy in common.^ 
 
 This is the view which generally prevails in the United 
 States, cases of equitable conversion arising out of the ex- 
 press agreement of the partners being few. 
 
 6. Dawson v. Parsons, 10 Misc. (N. state the purchaser should insist upon 
 
 Y.) 428; Hauftman v. Hauftman, 91 the wives of the vendors joining. 
 
 App. Div. (N. Y.) 197; Welch v. Mc- 7. Darrow v. Calkins, 154 N. Y. 
 
 Kenzie, 66 Ark. 251; Mallory v. Kus- 503; Buckley v. Doig, 188 N. Y. 238; 
 
 sell, 71 Iowa 63; Woodward Holmes Bopp v. Fox, 63 111. 540; Grissom v. 
 
 Co. V. Nudd, 58 Minn. 236. Moore, 106 Ind. 296; Shearer v. 
 
 Where there were practically no Shearer, 98 Mass. 107 ; Dyer v. Clark, 
 
 debts of the firm, a sale by one part- 5 Mete. (Mass.) 562; Free v. Beatty, 
 
 ner to his copartner of his interest 95 Mich. 426; Woodward Holmes Co. 
 
 did not affect his wife's right of v. Nudd, 58 Minn. 236; Young v. 
 
 dower in the firm realty. Young v. Thrasher, 115 Mo. 222; Campbell v. 
 
 Thrasher, 115 Mo. 222. Campbell, 30 N. J. Eq. 415; Sparger 
 
 In New York the Court of Appeals T. Moore, 117 N. C. 449; Espy v. 
 
 bas not yet passed on this question. Comer, 76 Ala. 501; Ferris v. Van 
 
 and therefore tTie practice is to have Ingen, 110 Ga. 102; Foster's Appeal, 
 
 the wives of parties join in such deeds 74 Pa. St. 391; Mowry v. Bradley, 
 
 and mortgages. Where the law on this 11 R. I. 370; Clay v. Freeman, 118 
 
 ^int has not been settled in any U. S. 97, and cases in preceding notM. 
 
170 DOWEE. 
 
 If, on the sale of the firm realty for the purpose of paying 
 firm debts, a surplus of the proceeds of such sale remains 
 after the firm debts are paid and accounts between the 
 partners adjusted, such surplus is regarded as real prop- 
 erty, since it represents so much of the realty as was not 
 required for firm purposes, and the wife of each partner is 
 entitled to dower in her husband 's interest therein.® 
 
 § 103. No Dower in Life Estates or Estates Pur Auter Vie. 
 
 — The right of dower cannot attach to these estates, since 
 they are not estates of inheritance. On the death of the 
 life tenant nothing of his estate remains to which dower 
 can attach.® 
 
 § 104. Dower in Estates in Fee Tail. — The law has always 
 been well settled that dower attaches to an estate in fee 
 tail, since it is an estate of inheritance, and the wife 's right 
 or estate of dower is not brought to an end by the termina- 
 tion of the estate tail on the death of the husband or his de- 
 scendant without issue. Dower is an incident of estates 
 of inheritance and the estate of dower, continuing for the 
 life of the wife after the estate tail has come to an end, is 
 regarded as an incident of the husband's estate.^" It is 
 difficult to see how dower, which is an estate created by the 
 law out of the husband's interest, can be greater than the 
 estate of the husband out of which it is created. Here as in 
 
 8. See preceding note. entitled to it. The widow of the de- 
 
 9. Goodwin v. Goodwin, 33 Com. ceased owner in fee is entitled to her 
 314. dower in the property, however, and 
 
 10. Litt. § 53; 4 Kent Com. 49; the state takes the property subject 
 Tomlinson v. Nickell, 24 W. Va. 148; to her dower. 4 Kent Com. 49. A 
 Smith's Appeal, 33 Pa. St. 9; as to fee tail estate is only part of the en- 
 analogus case of curtesy, see Holden tire fee, being carved therefrom leav- 
 V. Wells, 18 R. I. 802. ing a vested reversion or remainder. 
 
 The case where an estate In fee and the estate of such reversioner or 
 
 simple escheats to the state because remainderman is inconsistent with 
 
 the owner dies without heirs is very the widow's dower after the termina- 
 
 different. In that case the state takes tion of her husband's estate tail, 
 the property because no one else is 
 
DowEB IN Estates Upon Condition. 171 
 
 many other cases arising in the law of property, the ex- 
 planation for the rule is to be found in its historical de- 
 velopment rather than in any fundamental principle of 
 ownership. 
 
 § 105. Dower in Estates Upon Condition and Estates 
 Upon Limitation. — An estate upon condition is an estate 
 subject to forfeiture for breach of a condition attached to 
 the estate by the deed or will creating it. The mere breach 
 of the condition does not terminate the estate; it simply 
 gives to the grantor or his heirs, or the heirs of the devisor, 
 as the case may be, a right to terminate the estate by making 
 an entry or by bringing an action of ejectment.^ Estates 
 upon limitation are estates limited upon the happening of 
 some uncertain event in the future, as where property is 
 granted or devised to A and his heirs until B returns from 
 Eome, or as long as St. Paul's Cathedral shall stand. Words 
 of limitation or duration such as " while," " until," " as 
 long as," etc., are used in creating such estates. The estate 
 comes to an end immediately on the happening of the limita- 
 tion and the property reverts back immediately to the 
 grantor or his heirs, or to the heirs of the devisor, as the case 
 may be.^ Estates upon condition or upon limitation may be 
 for years, for life, in fee tail or in fee simple. When such 
 estates are created in fee tail or fee simple dower attaches as 
 in any case of an estate of inheritance, but the termination 
 of an estate upon condition by entry for breach of the condi- 
 tion on which it was limited, or the termination of the estate 
 upon limitation by the happening of the limitation, im- 
 mediately puts an end to dower, whether inchoate, consum- 
 mate, or actually set off as a life estate in the widow. In 
 these cases the courts have been governed by the funda- 
 mental principles of ownership logically applied, holding 
 that dower created out of the husband's estate must nec- 
 essarily come to an end when the estate of the husband ia 
 
 1. See Ch. X, post. 2. See Ch. X, post. 
 
172 DowBB. 
 
 brought to an end by the entry for breach of condition or by 
 the happening of the limitation, as the case may be. This 
 has always been the law, both before the Statute of Uses and 
 the Statute of Wills, referred to in the following section, 
 and since the enactment of those statutes.* 
 
 § 106. Dower in Estates Upon Conditional Limitation. — 
 An estate upon conditional limitation is created where prop- 
 erty is granted or devised to A in fee, but on the happening 
 of some future and contingent event it is to go over to B in 
 fee. The estate in B could not be created as an estate at 
 law before the Statute of Wills and the Statute of Uses, 
 enacted within a brief interval during the reign of Henry 
 VIII. The reason was that, according to the reasoning of 
 the courts, a fee could not be mounted on a fee. Having 
 created a fee in A and his heirs the entire estate of the 
 grantor or devisor was disposed of, and there was nothing 
 left to limit over to B. A future estate could be created only 
 by way of remainder, and as there could be no remainder 
 after a fee, it followed no such estate now knoAvn as a 
 conditional limitation could be created. TJnder the Statute 
 of Wills, which permitted, for the first time, the devising 
 of property by will, the courts gave effect to the intention of 
 the testator in such cases, and gave effect to estates upon 
 conditional limitation as executory devises. By the Statute 
 of Uses such estates could be created by means of the new 
 forms of conveyancing which grew up under that statute. 
 Such estates were created by way of shifting use. A full 
 discussion of the effect of these statutes, and of estates 
 created under them as executory devises, or by way of 
 springing or shifting use will be found hereafter.* It is 
 sufficient at this point to understand that by virtue of these 
 
 3. 1 Scribner 197, 297; 4 Kent v. Harris, 6 Mete. (Mass.) 475, and 
 
 Com. 49; Beardslee v. Beardslee, 5 cases cited under § 106. 
 Barb. (N. Y.) J 24; Greene v. Rev- 4. See Ch. XIII, post. 
 
 ■olds, 73 Hun (N. Y.) 565; Emerson 
 
PowEB IN Estates Upon Conditional Limitation. 173 
 
 statutes estates by way of conditional limitation could 
 be created as valid legal estates from tbe time of the en- 
 actment of these statutes till tbe present time. 
 
 It would seem to follow from tbe cases of estates upon 
 condition and upon limitation tbat tbe termination of an 
 estate in fee by tbe happening of a limitation on wbicb it 
 was to go over to another, would necessarily bring to an 
 end tbe right of dower of the wife of tbe bolder of such 
 estate. Nevertheless tbe rule is established in England 
 and in several of tbe states tbat tbe wife's dower will not 
 be affected by tbe termination of her husband's estate, and 
 the one to whom tbe estate is limited over, on tbe happening 
 of the contingency, must take it subject to tbe right of dower 
 of the wife of tbe former bolder in fee whose estate is ter- 
 minated by tbe happening of tbe contingency.' Tbe rea- 
 soning of these cases seems to be this: Under tbe old com- 
 mon law, before the Statute of Uses and the Statute of 
 Wills, dower of tbe wife could not be affected by tbe taking 
 effect of an estate on conditional limitation, bringing to an 
 end tbe precedent estate of tbe husband in fee, since condi- 
 tional limitations did not then exist, and could not be 
 created. Such estates are valid only by statute, wbicb 
 
 5. 1 Washb. R. P. 813, et seq.; holding, very properly, that as dower 
 
 Buckworth v. Thirkell, 3 Bos. & P. is an incident of the husband's estate, 
 
 653, note; Moody v. King, 2 Bing. growing out of such estate as a part 
 
 44.7; Hatfield v. Sneden, 54 N. Y. 380 of it, anything which terminates the 
 
 (involving the question of curtesy in estate will also bring dower to an 
 
 such case, in effect overruling Weller end. These cases are in effect over- 
 
 V. Weller, 28 Barb. (N. Y.) 588); ruled by Hatfield v. Sneden, 54 N. Y. 
 
 Evans v. Evans, 9 Pa. St. 190; Ken- 280, which case follows the reasoning 
 
 nedy v. Kennedy, 29 N. J. L. 185; in Washburn on Real Property, 313 
 
 Pollard V. Slaughter, 93 N. 0. 72; et seq., the case involving the effect 
 
 Jones v. Hughes, 37 Grat. (Va.) 560; of a conditional limitation on curtesy. 
 
 Chew V. Chew, 1 Md. 163; Northcut holding tbat it was not affected by 
 
 T. Whij^, 13 B. Mon. (Ky.) 65. the termination of the wife's estate 
 
 In Adams v. Beekman, 1 Paige (N. by the hap-pening of the limitation 
 
 Y.) 631, and Weller v. Weller, 28 on which the fee was to pass over to 
 
 Barb. (N. Y.) S88, the contrary rule another. 
 was followed, the court in each eaae 
 
174 DowEE. 
 
 statutes have not expressly provided that dower shall be 
 destroyed by the vesting of such estates. Therefore dower, 
 Avhich attaches to the first estate in fee, is not affected by 
 the termination thereof on the happening of the event on 
 which the estate over on conditional limitation is to take 
 effect. On the other hand the termination of estates upon 
 condition or upon limitation necessarily put an end to the 
 wife's dower, since these estates were recognized as valid 
 under the old common law before these statutes, and such 
 estates are terminated in accordance with the law as it then 
 existed.'' 
 
 The fallacy of this reasoning lies in the attempted dis- 
 tinction at this time between these classes of estates. Since 
 the enactment of these statutes, during the centuries which 
 have passed since the reign of Henry VIII, estates upon 
 conditional limitation have been valid estates at law, and 
 the estate of the first holder comes to as complete and 
 valid a legal ending as do estates upon condition or upon 
 limitation. If the termination of the one class of estates 
 should put an end to dower in the wife of the holder, then 
 the same result should follow from the termination of es- 
 tates of the other class. There can be no question but that 
 the rule which permits the wife an estate in dower after her 
 husband's estate has been terminated in a way which has 
 been recognized as legal for several hundred years, is con- 
 trarj^ to fundamental principles, and contrary to the prin- 
 ciples of the ancient common law as applied to estates 
 upon condition and upon limitation. That conditional limi- 
 tations could not affect dower before the statutes above re- 
 ferred to is no argument, since conditional limitations had 
 no existence at that time. Present law should be settled ia 
 accordance with present conditions, not in accordance with 
 a situation which has ceased to exist for hundreds of years. 
 
 6, 1 Washburn on R. P. 213 et seq.; 
 Hatfield v. Sneden, 54 N. Y. 280, and 
 otiier cases in preceding nots. 
 
Natuee of the Inohoatb Eight. 
 
 175 
 
 The cases which hold that dower is brought to an end by the 
 vesting of an estate upon conditional limitation are entirely 
 sound,'' though as we have seen, the prevailing view is 
 contra. 
 
 E. — The Inchoate Bight of Dower. 
 
 § 107. Nature of the Inchoate Right. — On the concur- 
 rence of marriage and seisin the inchoate right of dower 
 arises. It is not an estate in the land. It cannot be con- 
 veyed, assigned or mortgaged, and is capable only of ex- 
 tinguishment.* It is only a possibility in the wife, in case 
 she survives her husband, of acquiring a right as against 
 the heir or devisee or grantee of her husband, to have a 
 life estate in one-third of the property set off to her. It is, 
 however, an interest in the property, though not amounting 
 
 7. Adams v. Beekman, 1 Paige (N. 
 
 Y.) 631; Weller v. Weller, 28 Barb. 
 
 (N. Y.) 588; Edwards v. Bibb, 54 
 
 Aia. 475. 
 
 Prof. Tiflfany, in his excellent work 
 On the Modern Law of Real Property 
 
 (Vol. 1, p. 431, note), suggests a rea- 
 son for the prevailing rule which has 
 not been advanced, apparently. In the 
 extensive discussion of this subject by 
 judges and legal writers. He says 
 that estates upon condition and upon 
 limitation are base fees, in their 
 nature subject to termination on the 
 happening of the contingency on 
 wbich they depend, but that an estate 
 in fee, subject to be defeated by the 
 taking effect of another estate in the 
 same property on the happening of a 
 contingency, is an estate in fee 
 simple; that an express direction that 
 dower sihould not attach, or should bfi 
 limited in any way would be void, 
 as repugnant to the estate; and that 
 no greater effect should be given an 
 executory limitation as implying such 
 * direction But does this question 
 
 depend at all on whether the grantor 
 or devisor desires to limit dower or 
 not? Is it not true that the estate 
 held subject to the conditional limi- 
 tation, whether it be called a base or 
 qualified fee or a fee simple, is never- 
 theless an estate which will come to 
 an end on the happening of the limi- 
 tation, absolutely and in accordance 
 with the principles of law which have 
 prevailed since the reign of Henry 
 VIII? The reason why dower should 
 be defeated is that the estate of the 
 husband from which it was derived 
 has come to an end. Dower in such 
 case is defeasible because the estate 
 of the husband is defeasible, not be- 
 cause of any attempted limitation 
 upon dower as an incident of estates 
 of inheritance. 
 
 8. Witthaus v. Schack, 105 N. Y. 
 332; Cravens v. Winzenberger, 97 111. 
 App. 335; Atwood v. Arnold, 23 R. I, 
 609; Jewett v. Peldheiser, 68 Ohio St. 
 523 and cases in notes which follow 
 under this section. 
 
176 
 
 DOWBB. 
 
 to an estate, of which the wife cannot be deprived by any 
 act of the husband or of any other person. A conveyance 
 or mortgage executed and delivered by the husband, in no 
 way affects the wife's inchoate right, unless she joins in the 
 deed or mortgage,^ nor is it affected by the liens of judg- 
 ments secured against the husband,^" nor by the husband's 
 bankruptcy or insolvency.^ In each and every case her right 
 of dower is superior to any title or lien which may be ac- 
 quired by a third party from her husband during coverture, 
 unless she has released or extinguished it for the benefit of 
 such title or lien.* 
 
 The inchoate right of dower is a valuable property right 
 in the wife which the courts will protect. Therefore it has 
 been held that where her signature has been forged to a 
 deed executed by her husband, an action will lie to declare 
 
 9. Sutherland v. Sutherland, 69 III 
 481; Stewart v. Stewart, 5 Conn. 317; 
 Griscom v. Moore, 106 Ind. 296; Wal- 
 lace V. Harris, 33 Mich. 380; Grady 
 T. McCorkle, 57 Mo. 173; Eoyston v. 
 Eoyston, 21 6a. 161; Guerin v. 
 Moore, 25 Minn. 462. 
 
 10. Hinchliffe v. Shea, 103 N. Y. 
 153; Lowry v. Smith, 9 Hun (N. Y.) 
 514; Temperance House v. Fowle, 32 
 Greg. 303. See, also, cases in notes 
 which follow. 
 
 1. Mills V. Hitter, 197 Pa. St. 353; 
 Chase v. Van Meter, 140 Ind. 331; 
 Dwyer v. Garlough, 31 Oh. St. 158. 
 
 2. Therefore loss of title by the 
 husband through adverse possession 
 does not affect the wife's dower right. 
 Mclntyre y. Costello, 47 Hun 289; 
 Winters v. DeTurk, 133 Pa. St. 359; 
 Taylor v. Lawrence, 148 111. 388; Lu- 
 cas T. Whiteacre, 121 Iowa 251; 
 Cowan V. Lindsay, 30 Wis. 586; Dun- 
 ham V. Angier, 30 Me. 243; Williams 
 y. Williams, 89 Ky. 381; Hart y. Me- 
 Collum, 28 Ga. 478. 
 
 In England and in several of the 
 states statutes have been enacted 
 providing that the wife shall be en- 
 titled to dower only in the land of 
 which the husband is seized at the 
 time of his death. By the English 
 Dower Act, 3 & 4 William IV, ch. 105, 
 the wife's dower will not attach in 
 case the husband conveyed the pro- 
 perty during liis life, or devised it 
 by his will. Cases involving dower 
 under such statutes in the different 
 states follow: Stewart v. Stewart, 5 
 Conn. 317; Flowers v. Flowers, 89 
 Ga. 632 (holding that conveyance 
 under such a statute must be a real 
 and not a pretended conveyance in 
 which beneficial ownership and pos- 
 session is retained, in order to defeat 
 dower) ; Sykes v. Sykes, 49 Miss. 
 190; Hopkins v. Bryant, 85 Tenn. 
 520. In North Carolina such a statute 
 was repealed and the common law of 
 dower restored. Sutton y. Aekew, 66 
 N. C. 178. 
 
Eminknt Domain ; Efb-eot on Inchoatb Doweb. 177 
 
 &e deed void in so far as it pxirports to bar her right of 
 dower." So, also, in a case where husband and wife were 
 indnced to join in the conveyance of the husband's property 
 flirough the fraud of the defendant, it was held that the 
 wife's inchoate dower was such an interest that she might 
 maintain an action as joint party plaintiff with her hus- 
 band to recover the damages sustained through its loss.* 
 
 Though a valuable contingent interest in property it is not 
 a vested property right, and therefore it may be modified 
 or abolished altogether by statute, without violating the 
 constitutional provision forbidding laws impairing vested 
 property rights." In several states dower has been abol- 
 ished and other provisions have been made in favor of wives 
 in lieu thereof. Such statutes are constitutional though 
 abolishing inchoate rights of dower then existing.® 
 
 § 108. Eminent Domain; Effect on Inchoate Dower. — 
 When land is taken for public use by right of eminent do- 
 main, it is not necessary to make the wife a party to the 
 
 3. Clifford V. Kampfe, 147 N. Y. Brooklyn Bridge, 75 Hun (N. Y) 
 383. To same effect, Buzick v. Bu- 558, affirmed, 143 N. Y. 640. 
 
 lick, 44 Iowa 259. 5. Virgin v. Virgin, 189 111. 144; 
 
 4. Simar v. Canaday, S3 N. Y. 298. Guerin v. Moore, 25 Minn. 462. See, 
 That the inchoate right of dower is a also, cases under § 108, post, relating 
 substantial property right, the value to lands taken under the power of 
 of which is capable of being estimated, eminent domain. See, contra, In re 
 and which the courts will protect, is Alexander, 53 N. J. Eq. 96, holding 
 generally recognized. In addition to that the act providing for the barring 
 the cases cited in this and the preced- of the inchoate dower of insane wives 
 ing note, see Mandel v. McClave, 46 does not apply to inchoate dower ex- 
 Ohio St. 407; Gore v. Townsend, 105 isting at tne time the act took effect; 
 K. C. 228; Adler Co. v. Hellman, 55 as to such dower rights it would be 
 Neb. 266; McClurg v. Schwartz, 87 unconstitutional. 
 
 Pa. St. 521. The dictum in Moore v. 6. May v. Fletcher, 40 Ind. 575; 
 
 K. Y. City, 8 N. Y. 110, that inchoate Hatch v. Small, 61 Kan. 242. For 
 
 dower is not property, the value of statutes abolishing dower and subati- 
 
 which may be estimated, has been tuting some other provision for wives, 
 
 generally disapproved. See cases generally as heirs, out of their bus. 
 
 above cited, and also Wheeler v. Kirt- band's property, see 1 Stim. Am. St 
 
 land, 27 N. J. Eq. 634; Matter of L. |§ 3105(A), 3109, 32<»(B). 
 
 12 
 
178 
 
 DOWBE. 
 
 proceeding, as her inchoate dower is inferior to the right 
 of the state to take land for a public purpose. Her interest 
 is in no sense a vested right or estate, but a mere inchoate 
 possibility, and therefore statutes enacted by the legisla- 
 ture under which title to the land is acquired by eminent 
 domain, and compensation for the value of the entire fee 
 is paid to the husband, are constitutional, and the wife's in- 
 choate dower in the property so taken is destroyed/ Though 
 she has no further claim to dower in the property so taken, 
 her dower right attaches to the proceeds of the property 
 awarded to the husband, and if she intervenes before the 
 money has been paid over to the husband and therefore 
 before the court has lost control thereof, the court will order 
 either that one-third of the award be invested and held to 
 await the event of the wife's surviving her husband,^ or, 
 
 7. Moore v. City of New York, 8 N 
 Y. 110; Wheeler v. Kirtland, 27 N. 
 J. Eq. 534; French v. Lord, 69 Me. 
 637; Flynn v. Flynn, 171 Mass. 313; 
 Chouteau v. Missou. Pac. R. Co., 122 
 Mo. 375. 
 
 Where dower has become consttiiiat- 
 ed by death of the husband, the 
 widow must be made a party to the 
 condemnation proceeding and be 
 awarded compensation, since her 
 dower is then a vested interest. York 
 V. Welsh, 117 Pa. St. 174; In Re 
 Williams, &c. Streets, 19 Wend. (N. 
 Y.) 678. Where land is dedicated by 
 the husband to public use, as for tlie 
 purpose of a street, the inchoate 
 dower of the wife is destroyed, for 
 like reasons. 1 Scribner 583; Dun- 
 can V. Terre Haute, 85 Ind. 104; Ven- 
 able V. Wabash W. E. Co., 112 Mo. 
 103 (in which case it was held that 
 land conveyed to a railroad company 
 for a right of way was in effect dedi- 
 cated to a public use, and therefore 
 the wife's inchoate dower ■^vas barred, 
 
 though she did not join in her hus- 
 band's deed. To same effect, Chicago, 
 &c. E. Co. V. Titterington, 84 Tex 
 318). 
 
 In Nye v. Taunton Br. R. Co., 113 
 Mass. 277, the court held in a similar 
 case that since the railroad company 
 did not take the land under the power 
 of eminent domain but by deed, they 
 took it subject to all the incidents 
 attending that form of transfer, and 
 therefore subject to inchoate dower. 
 It is difficult to see how the convey- 
 ance of land to a railroad company 
 lor the purpose of a right of way can 
 amount to a dedication of the land to 
 public use within the meaning of the 
 cases and statutes on such dedication, 
 and within the meaning of the rula 
 that the dedication and acceptance of 
 land for streets, &c., will bar inchoate 
 dower. The rule in Massachusetts 
 would therefore seem to be the better 
 law. 
 
 8. Matter of Brooklyn Bridge, 75 
 Hun (N. Y.) 558, affirmed without 
 
Ret^ease of Inchoate Dowee by Wife. 179 
 
 if the parties prefer, a sum in gross will be paid to the wife 
 representing the then value of her inchoate right.^ The 
 taking of the property by condemnation proceedings may 
 be likened to the foreclosure of a mortgage to which the 
 right of dower is subject. In each case the wife's dower 
 right is transferred from the land to the moneys which 
 the husband is entitled to; the award in the case of condem- 
 nation proceedings, the surplus money in the case of the 
 foreclosure of the mortgage." 
 
 The reason why inchoate dower is subject to the right of 
 the state, either where the land is taken in condemnation 
 proceedings for a public purpose, or where the husband 
 dedicates land to a public use without his wife's consent, 
 must be looked for in the historical development of the law, 
 rather than in any controlling principle of ownership ap- 
 plicable to the situation." 
 
 § 109. Release of Inchoate Dower by Wife. — We have 
 seen that a wife cannot convey, mortgage or otherwise 
 transfer or incumber her inchoate dower since it is not an 
 estate or interest which can be alienated. It can only be 
 barred, released or extinguished.^ A release made to the 
 husband while the marital relation exists is void.^ This 
 was true at common law, because of the disability of cover- 
 ture. Under the various married woman's acts, giving to 
 married women the rights over their property which they 
 
 opiaion, 143 N. Y. 640; Id., 89 Hun 10. See § 98, ante, and note 12 
 
 219; contra, Flynn v. Flynn, 171 thereunder. 
 
 Mass. 312. 11. See 1 Seribner, Dower, 582. 
 
 9. Wheeler v. Kirtland, 27 N. J. 1. See § 107, ante. 
 
 Eq. 534. This, however, seems to be 2. Grain v. Cavana, 36 Barb. (N, 
 
 based on the consent of the parties. Y. 410; Townsend v. Townsend, 3 
 
 In the absence of such consent one- Sandf. (N. Y.) 711; Eowe v. Hamil- 
 
 third of the award must be invested ton, 3 Me. 63; Walsh v. Kelly, 34 
 
 as above stated. See Citizens Sav. Pa. St. 84; Laud v. Shipp, 98 V». 
 
 Bank V. Mooney, 26 Misc. (N. Y.) 67: 284; Martin v. Martin, 22 Ala. 86; 
 
 Emigrant Ind. Sav. Bank v. Regan, Pillow v. Wade, 31 Ark. 678. 
 41 App. Div. (K. Y.) 523. 
 
180 
 
 DOWBE. 
 
 would have if unmarried, the same rule holds true in the 
 absence of express provision giving her such right.* 
 
 A wife may release her inchoate dower by joining in a 
 deed or mortgage with her husband.* In such case she 
 relinquishes her right only for the benefit of the title made 
 by the deed or mortgage, and therefore, if for any reason 
 the deed or mortgage of the husband is void, or is set aside 
 for fraud, her right of dower will arise again as though she 
 had never joined in the instrument. This is because it is 
 incapable of separate extinguishment apart from the trans- 
 fer or incumbrance of her husband 's estate in the land, and 
 if the transfer or incumbrance was never valid, or has been 
 set aside and rendered void for any reason, her dower right 
 necessarily remains imaffected.* For the same reason, if 
 
 3. Flynn v. Flynn, 171 Mass. 312; 
 Graham v. Van Wyck, 14 Barb. (N. 
 Y.) 531; Rhodes v. Davis, 51 Mich. 
 306. 
 
 In New York, § 206 Real Prop. L., 
 provides that where husband or wife 
 has secured either an absolute or 
 limited divorce against the other, the 
 wife may release to her husband by 
 Instrument suflScient to pass real 
 estate her inchoate right of dower in 
 any specific real property theretofore 
 owned by him, or generally in all 
 such real property, and such as he 
 shall thereafter acquire. See Savege 
 V. Grill, 19 Hun (N. Y.) 4, and 
 Rhoades v. Davis, 51 Mich. 306. 
 
 4. Hinchliffe v. Shea, 103 N. Y. 
 153; ElmendorfF V. Lockwood, 57 N. 
 Y. 322; Witthaus v. Schaek, 105 N. 
 Y. 332; Taylor v. Lawrence, 148 111. 
 388; Scanlon v. Soanlon, 134 111. 63; 
 Goodheart v. Goodheart, 63 N. J. Eq. 
 746; Youst v. Hayes, 90 Ind. 413; 
 Sykes v. Sykes, 49 Miss. 190. 
 
 The wife must sign the deed — 
 merely assentiag tliereto li not 
 
 enough. Davis v. McDonald, 43 Ga. 
 205. 
 
 The wife must not only sign the 
 instrument, but her name must ap- 
 pear as a grantee in the body of the 
 deed, with appropriate language of 
 grant or release, or there must be a 
 formal release of her dower in some 
 part of the deed. Merely signing the 
 deed or mortgage is not sufficient. 
 Catlin V. Ware, 9 Mass. 21S; Stearna 
 V. Swift, 8 Pick. (Mass.) 532; Lath- 
 rop V. Foster, 51 Me. 367; Johnson v. 
 Montogmery, 51 111. 485; Dustin v. 
 Steele, 27 N. H. 332-431; Davis v. 
 Bartholomew, 3 Ind. 485; Gillilan v. 
 Swift, 14 Hun (N. Y.) 574. 
 
 5. Marvin v. Smith, 46 N. Y. 571; 
 Duncklee v. Butler, 25 Misc. (N. Y.) 
 680; Smith v. Howell, 53 Ark. 279; 
 Stinson v. Sumner, 9 Mass. 143; 
 Stowe V. Steele, 114 111. 382; Morton 
 V. Noble, 57 111. 176; Crawford v. 
 Hazelrigg, 117 Ind. 73; Woodworth 
 V. Paige, 5 Oh. St. 70. 
 
 Deeds set aside because of fraud— 
 Malloney v. Horan, 49 N. Y. Ill; 
 
PuKOHASB OP Husband's Estatb. 181 
 
 a mortgage in which the wife has joined with her hushand 
 is satisfied and discharged in any way except by foreclosure, 
 her right of dower is restored exactly as though she had 
 never joined. Where, for instance, the mortgage debt is 
 paid by the husband, from his personal property before or 
 after his death, whether voluntarily or as the result of a 
 personal judgment on the debt, enforced against the hus- 
 band's personal estate, the mortgage comes to an end as 
 soon as the debt which it secures is satisfied, and the wife's 
 right of dower in the land in question is no longer subject to 
 the mortgage,® So, where the mortgage lien is destroyed 
 by the enforcement of a prior superior lien, as by the sale of 
 the property in the enforcement of the lien of a prior judg- 
 ment or mortgage to which the dower right of the wife is 
 not subject, her dower is restored exactly as it was before 
 she joined in the mortgage so wiped out J 
 
 § 110. Payment of Mortgage by Purchaser of Husband's 
 
 Estate. — In one class of cases the payment of the mortgage 
 debt does not bring about this result. Suppose A executes 
 a mortgage on his property, in which mortgage his wife 
 joins. Later he sells the property subject to the mort- 
 
 Frederick v. Emig, 186 111. 319; 153; Mayo v. Hamlin, 73 Me. 188; 
 
 Kitts V. Wilson, 130 Ind. 492; Rich- Hatch v. Palmer, 58 Me. 271; McCabe 
 
 ardson v. Wyman, 62 Me. 280; Ridg- v. Swap, 14 Allen (Masa.) 188; At- 
 
 Tray v. Masting, 23 Oh. St. 294; Nun- linson v. Stewart, 46 Mo. 510; Peck- 
 
 ger V. Perkins, 62 Wis. 499 ; Wells v. ham v. Hadwen, 8 R. I. 160 ; Hast- 
 
 Estes, 154 Mo. 291. ings v. Stevens, 29 N. 'H. 564. 
 
 But where the deed in which the 7. Hinchliffe v. Shea, 103 N. Y. 
 
 ■wife joined is not void and has not 153. 
 
 been set aside, her right of dower is Where the mortgage in which she 
 
 gone absolutely, not only as to the joined is foreclosed, and she is made 
 
 g'-antee and his privies, but also as a party defendant, her dower right in 
 
 to anyone else having any interest iu the property is foreclosed and de- 
 
 the property. Elmendorf v. Lock- stroyed, but, as we have seen, such 
 
 wood, 57 N. y. 322; Boorum v. Tuck- right then attaches to the surplus 
 
 er, 51 N. J. Eq. 135 ; Morton v. Noble, money that may remain after the 
 
 S7 111. 176 ; Johnson v. Van Velsor, mortgage debt is paid. See § 98, ante, 
 
 43 Mich. 208. note 12 thereunder. 
 
 6. Hinchliffe v. Shea, 103 N. Y. 
 
182 DowEB. 
 
 gage to B, his wife not joining in tlie deed. Subsequently 
 B pays off tlie mortgage. On the death of A, his wife's 
 dower is still limited to the equity of redemption, spite of the 
 fact that the mortgage debt has been paid and the mort- 
 gage satisfied. There is no question about this result where 
 B, the purchaser, takes an assignment of the mortgage when 
 he pays it off, and does not satisfy it of record, as it is clear 
 that he does not intend a merger of his title to the property 
 and the mortgage, and the mortgage continues a valid lien 
 on the property against the wife 's right of dower .^ In some 
 states it is held that if such an assignment is not taken, and 
 the mortgage is satisfied of record, the mortgage is dis- 
 charged even as against the wife, and her right of dower 
 attaches free and clear of the mortgage." But the best con- 
 sidered cases hold that the doctrine of subrogation applies 
 in such a case, that B, the purchaser, is subrogated to the 
 position of the mortgagee, and in equity will be regarded 
 as holding the mortgage exactly as the mortgagee held it, 
 or as though assigned to him by the mortgagee, so that the 
 dower right of A's (the grantor's) wife will still be subject 
 to the mortgage, though in fact the mortgage has been 
 satisfied and extinguished. This would seem to be a clear 
 case for the application of the equitable doctrine of subro- 
 gation, since the payment of the mortgage was made by 
 the purchaser solely for his own benefit, not because he had 
 bound himself to pay it, and to permit the result which 
 would follow at law, giving the wife of the vendor dower 
 in the property free from the mortgage, would be a manifest 
 injustice. To prevent this equity treats the purchaser as 
 subrogated to the position of the mortgagee to whom he 
 paid the money; by this fiction the wife's dower remains 
 subject to the mortgage in which she joined.^" 
 
 8. Lee v. James, 81 Ky. 443; 9. Atkinson v. Angert, 46 Mo. S15. 
 
 Bryar's Appeal, 111 Pa. St. 81; See preceding note. 
 
 Strong V. Converse, 8 Allen 557 ; Gib- 10. Everson v. McMuUen, 113 N. Y. 
 
 son T. Crehore, 3 Pick. 475; Lake v. 293; Popkin v. Bomstead, 8 Mass. 
 
 Nolan, 81 Mich. 113; Thompson v. 491; Chiswell v. Morris, 14 N. J. Eq. 
 
 Boyd, 21 N. J. L. 58. ICl. 
 
Sbpakate Release to Husband's Grantee. 183 
 
 If in the above case B, the purchaser, had expressly as- 
 sumed the payment of the mortgage debt, he would be 
 bound by his covenant of assumption to make the payment. 
 In such case he becomes the primary debtor, A, the mort- 
 gagor, being liable as surety. Therefore when B pays off 
 the mortgage he is doing only what he bound himself to 
 do. The husband secured the covenant of assumption as 
 part of the consideration for the conveyance of the property, 
 and the subsequent payment by B is the same as though A 
 had paid the mortgage debt himself. Therefore there is 
 no reason for the intervention of a court of equity by apply- 
 ing the doctrine of subrogation, and A's wife will be en- 
 titled to dower in the property free and clear of the 
 mortgage.* 
 
 § 111. Separate Release to Husband's Grantee. — A wife 
 cannot release her dower to one having no interest or es- 
 tate in the property at the time the release is made, since 
 such a release could only operate as a conveyance, and in- 
 choate dower cannot be conveyed.^ She may, however, re- 
 lease to a grantee of her husband or any subsequent grantee 
 holding the property subject to her right of dower, pro- 
 vided at the time of the release he is owner of the property,* 
 or has conveyed the property by deed of warranty by virtue 
 
 1. Bartlett V. Musliner, 38 Hun (N. gage being deducted from the full 
 
 T.) 235. purchase price of the property? 
 
 See note 8 preceding. The reasons 2. Flynn v. Flynn, 171 Mass. 312 
 
 given by the court appear in the text. Marvin v. Smith, 46 N. Y. 571 
 
 But is it not true, in this case as I'letcher v. Shepherd, 174 111. 262 
 
 where the mortgage is not assumed, Heisen v. Heiaen, 145 111. 658 ; French 
 
 that the wife of the grantor is given v. Lord, 69 Me. 537; White v. White, 
 
 a life estate in one-third of the 16 N. J. L. 202; Frey v. Boylan, 23 
 
 amount paid by the grantee in dis- X J. Eq. 90; Eidgway v. Masting, 23 
 
 charging the mortgage, a result as Ohio St. 294; Johnston v. Smith, 70 
 
 clearly inequitable in this case as in Ala. 108. 
 
 the other, since in each case he pur- 3. Harriman v. Gray, 49 Me. 537; 
 
 chases th« property on exactly the Saunders v. Blythe, 112 Mo. 1; Gray 
 
 Mme basis, the amount of the mort- v. McCune, 23 Pa. St. 447 (release to 
 
 son as presumptive heir held valid). 
 
184 DowBB. 
 
 of whicli lie might be held liable in case the right of dower 
 should be subsequently enforced. In such case the release 
 of dower is taken in discharge of the covenant of warranty 
 in so far as it is broken through the outstanding right of 
 dower.* 
 
 § 112. Dower Barred by Misconduct of Wife. — By the 
 terms of the statute of Westminster Second (13 Edw. I, c. 
 34), it was provided that in case a wife elope from her 
 husband and thereafter live in adulterous relation with her 
 paramour, she should be deprived of her dower unless she 
 should become reconciled with her husband and be taken 
 back by him. Prior to this statute wives did not lose their 
 dower because of misconduct.'* In several of the states 
 there are somewhat similar statutes, which provide gener- 
 ally that if a wife desert her husband and live in adultery 
 thereafter she shall be barred of dower. Adultery alone is 
 not a bar; there must be desertion of the husband by the 
 wife followed by living in adulterous relation.* 
 
 § 113. Effect of Divorce on Dower. — As a general rule 
 in most states adultery or other misconduct of the wife, 
 even though accompanied by abandonment, does not bar 
 dower unless followed by a divorce dissolving the marriage. 
 Divorce, whether secured by the husband against the wife 
 for her misconduct, or by the wife against the husband for 
 
 4. Hull V. Glover, 126 111. 123; La Heslop, 83 Pa. St. 537; Reel v. Elder, 
 Framboise v. Grow, 56 111. 197; 63 Pa. St. 308; Phillips v. Wiseman, 
 Chicago Dock Co. v. Kinzie, 49 111. 131 N. C. 402; McQuinn v. McQuinn, 
 2P9 ; Robbins v. Kinzie, 45 111. 354. 110 Ky. 331. 
 
 A release to one who has recon- It is provided in some states that 
 
 veyed the property without covenants if the desertion by the wife is due to 
 
 of warranty is void. Harriman v. cruelty or other misconduct of the 
 
 Gray, 49 Me. 537. husband, her subsequent adultery does 
 
 5. Co. Litt. 32a; 2 Bl. Com. 130. not bar dower. Heslop v. Heslop, 88 
 
 6. Owen v. Owen, 57 Ind. 291; Pa. St. 657; Beaty v. Richardson, 5« 
 Payne v. Dotson, 81 Mo. 145; Wilson S. C. 173; Ratrlins T. Buttel, I Houst 
 V. Craig, 175 Mo. 363; Cogswell r. (Del.) 824. 
 
 Tibbetts, 3 N. H. 41; Heslop t. 
 
Effect of Divoeob on Dowbe. 
 
 185 
 
 his fault, puts an end to inchoate dower, since it ends tlie 
 martial relation out of which, the dower right arose and on 
 which it depends, unless saved by express statutory pro- 
 vision preserving the dower right in cases where the wife 
 is the innocent partyJ In New York and several other 
 states there is express provision by which the dower right 
 of the innocent divorced wife is preserved.^ Her right in 
 such case attaches only to the property of which the hus- 
 band was seized during coverture, that is, up to the time 
 the divorce is secured against him; it does not attach to 
 property of which he may become seized after the divorce, 
 since in such case the requisite of seizin during coverture 
 is lacking.® If a divorce is secured against the wife in 
 another jurisdiction for a cause which is not a ground for 
 
 7. Barrett v. Failing, 111 U. S. 
 523; Schiffer v. Pruden, 64 N. Y. 47; 
 Hood T. Hood, 110 Mass. 463; Moul- 
 ton V. Moulton, 76 Me. 85; Kent t. 
 MoCann, 53 111. App. 305; Fletcher v. 
 Monroe, 145 Ind. 56; Winch v. Bol- 
 ton, 94 Iowa 673; Pullen v. PuUen, 
 62 N. J. Eq. 9; Calome v. Calome, 
 24 N. J. Eq. 440; Miltimore v. Milti- 
 more, 40 Pa. St. 151; Oarr v. Carr, 92 
 Ky. 653; Hindson v. Bush, 84 Ala. 
 368; Gleason v. Emerson, 51 N. H. 
 405. 
 
 For American statutes providing 
 that divorce bars dower, see 1 Stim. 
 Am. St. Law, § 3346 (c). 
 
 Where husband and wife were both 
 found guilty of adultery, and for 
 that reason no divorce was granted 
 either party, it was held that the 
 wife's right of dower was not affected. 
 Schiffer v. Pruden, 64 N. Y. 47. 
 
 8. N. Y. Code Civ. Pro. S 1759, 
 Bubd. 4; 1 Stim. Am. St. Law, § 3346 
 
 (c) ; Kirkpatrick v. Kirkpatrick, 
 197 m. 144; Scales v. Scales, 65 Mo. 
 
 App. 293; Stilson v. Stilson, 46 Conn. 
 
 15; Percivai v. Pereival, 66 Mich. 297. 
 
 When after such a divorce the wife 
 receives almony in lieu of dower, she 
 cannot also have dower. Adams v. 
 Storey, 135 111. 448; McKean y. Fer- 
 guson, 51 Ohio St. 207. 
 
 Of course divorce of the wife for 
 her misconduct bars dower absolutely. 
 See cases in preceding note, also 
 Rendleman v. Eendleman, 118 111. 
 257; Van Cleaf v. Burns, 118 N. Y. 
 549. 
 
 9. Matter of Ensign, 103 N. Y. 284; 
 Starbuok v. Starbuck, 173 N. Y. 503; 
 Kade v. Lauder, 18 Abb. Pr. (N. S.) 
 288; Nichols v. Park, 78 App. Div. 
 (N. Y.) 95, 99. 
 
 The right of dower of an innocent 
 divorced wife is not affected by the 
 subsequent marriage of her former 
 husband. Stahl v. Stahl, 114 N. Y. 
 375. See Rice v. Lumley, 10 Oh. St. 
 596, holding that where the innocent 
 divorced wife remarries she loses 
 dower in the property of her former 
 husband. 
 
186 
 
 Do WEE. 
 
 divorce in New York, such divorce will not affect her right 
 of dower as it existed up to the time of the divorce in landa 
 situated in New York, since she has not been divorced on 
 tlj e ground of adultery, which alone bars her dower in that 
 state.^" If the divorce is valid her dower right in such case 
 will not attach to property in New York subsequently 
 acquired by the husband, since there would be no seizin 
 during coverture.^^ 
 
 Where a limited divorce is secured by either party 
 against the other, amounting to a judicial separation of the 
 parties from bed and board, the marital relation continues 
 and the wife's right of dower is not affected,** unless pur- 
 suant to the statute in some states provision is made for the 
 wife by the judgment in lieu of dower." 
 
 10. Van Cleaf v. Burns, 118 N. Y. 
 ::49, 133 N. y. 540. See, also, on 
 effect of foreign divorces on dower. 
 McGill T. Deming, 44 Oh. St. 645; 
 Chapman v. Chapman, 48 Kan. 636; 
 Gould V. Crow, 57 Mo. 200; Hawkins 
 V. Ragsdale, 80 Ky. 353. 
 
 11. Starbuck v. Starbuck, 173 N. Y. 
 503. In this case it appeared that 
 the wife had secured a decree against 
 the husband in Massachusetts which 
 was void in New York, because per- 
 sonal jurisdiction over the husband 
 had not been secured. It was held 
 that the wife was estopped from deny- 
 ing the validity of the divorce in an 
 action for dower in land in New York 
 subsequently acquired by her husband. 
 
 See Voke v. Piatt, 48 Misc. (N. Y.) 
 273, the court at special term holding 
 that where the wife secured a divorce 
 in Kansas on the ground of cruelty 
 (not recognized as a ground for di- 
 vorce in New York) without personal 
 service on or appearance by the hus- 
 bmd, she at least was bound by the 
 decree, and could not claim dower 
 «ither in land subsequently acquired 
 
 by the husband or even in land of 
 which he was seized before the di- 
 vorce. Though an innocent divorced 
 wife, she did not secure the divorce 
 on the ground of adultery, and there- 
 fore she did not come within the stat- 
 ute preserving her right of dower in 
 case of divorce secured for the hus- 
 band's misconduct. The principle of 
 this case was overruled in Van Blari- 
 cnm V. Larson, 203 N. Y. 356, the 
 court holding that a wife who secured 
 a valid divorce from her husband in 
 another state on other than the New 
 York statutory ground was entitled 
 to dower in lands of which he was 
 seized during coverture up to the di- 
 vorce, the view being taken that in 
 New York the wife will be deprived 
 of dower only in case she is divorced 
 for her adultery. 
 
 12. Co. Litt. 3Sa; 2 Bl. Com. 130; 
 Grain t. Cav&na, 62 Barb. 109; 
 Hokamp ▼. Eagaman, 36 Mfl. 511; 
 Taylor ▼. Taylor, 93 N. C. 418; 
 Howell V. Thompson, 95 Tenn. 396. 
 
 13. Gallagher v. Gallagher, 101 
 Wis 202, the statute in Wisconsin p«r- 
 
JoiKTUEEs, Lkoal and Equitablb. 187 
 
 P- — Jointures and Testamentwry Provisions m Lien of 
 
 Douoer. 
 
 § 114. Jointures, Legal and Equitable.— Jointures, de. 
 fined as " a competent livelihood of freehold for the wife, 
 of lands and tenements, to take effect, in profit and posses- 
 sion, presently after the death of the husband for the life of 
 the wife at least," were first made a bar to dower by the 
 Statute of Uses (27 Henry VHI, c. 10, § 6). Before that 
 statute a great part of the land of England was held subject 
 to uses. The wife of the trustee to uses was not entitled to 
 dower because her husband was not beneficially seized. 
 The cestui que use, who was the beneficial owner of the 
 property, did not have an interest which gave his wife 
 dower because equity refused to follow the law in this re- 
 spect, and refused to recognize dower as an incident of 
 equitable estates. Therefore property held subject to uses 
 which as we have seen constituted most of the land of Eng- 
 land, was not subject to dower, and it became usual, on 
 marriage, to make voluntary provision in favor of the wife, 
 by conveying to husband and wife jointly for their lives, 
 some particular piece of property, which the wife would 
 take by survivorship on the death of her husband. The 
 Statute of Uses changed uses into legal estates so that 
 holders of the beneficial interests thereunder became, by 
 virtue of the statute, immediately seized of legal estates of 
 the same quality and duration. In order to prevent wives 
 from taking both the jointures made for their benefit, in 
 lieu of dower, and also dower in their husbands' property, 
 which result would otherwise follow because of the hus- 
 band's seizin acquired through the statute, it was enacted 
 by the statute that upon making such an estate in jointure 
 to the wife before marriage, she shall be forever barred of 
 her dower, provided the estate in jointure would take effect 
 immediately on the death of the husband, and was an estate 
 for her own life at least, conveyed to herself, or to herself 
 and husband jointly, and not in trust for her, and provided 
 
188 DowEB. 
 
 further that the conveyance was expressly in lien of dower.* 
 
 If the jointure failed to come up to the statutory require- 
 ments, but was nevertheless a suitable and proper provision 
 for the wife accepted by her in lieu of dower, it was given 
 effect in equity as a bar to her dower by way of specific 
 enforcement of her contract, and was termed an equitable 
 jointure.^ Where the jointure was made after marriage and 
 during coverture, it did not bar the wife 's dower right abso- 
 lutely; it merely put her to her election as to whether she 
 should take dower or the jointure in lieu thereof.^ 
 
 § 115. Jointures and Agreements Barring Dower in the 
 United States. — The law of jointures is embodied in stat- 
 utes in most of the states.* By the terms of these statutes 
 it is generally provided that a conveyance of real property 
 to a person and his intended wife, or to the wife alone, or 
 in trust for her, for the purpose of creating a jointure for 
 her and with her assent, bars her dower right absolutely; 
 and that any pecuniary provision made for the benefit of 
 the intended wife, and in lieu of dower, if assented to by 
 her, will also bar her dower. It is frequently provided fur- 
 
 mitting the determination of the re- 3. Co. Litt. 36b; 3 Bl. Com. 138v 
 spective property rights of the parties Vernon's Case, 4 Coke 1; McCartee v. 
 in the decree of limited divorce. See, Teller, 8 Wend. (N. Y.) 267. 
 also, to same effect, Stewart v. Stew- 4. N. Y. R. P. Law, §§ 197-202 in- 
 art, 43 Ga. 294; McKean v. Fergu- elusive; 1 Stim. Am. St. L. §§ 3241, 
 son, 51 Oh. St. 207. 3242, 3243; Graham v. Graham, 67 
 
 1. 2 Bl. Com. 137-138. Hun (N. Y.) 339, afT. 143 N. Y. 573; 
 
 2. 2 Scribner, Dower, 208 et seq.; MoCartee v. Teller, 8 Wend. (N. Y.) 
 Williams R. P. 235; Drury v. Drury, 267; Vincent v. Spooner, 2 Cush. 
 2 Eden. 39; Caruthers v. Caruthers, (Mass.) 467; Andrews v. Andrews, 8 
 4 Brown Ch. 500; McCartee v. Teller, Conn. 79; Carter's App., 59 Conn. 576; 
 8 Wend. (N. Y.) 267. McGee v. McGee, 91 111. 548; Grogan 
 
 Where the intended wife was an in- v. Garrison, 37 Oh. St. 50; In re Pul- 
 
 fant such equitable jointure would be ling, 93 Mich. 274; Pepper v. Thomas, 
 
 enforced if the provision for her bene- 85 Ky. 539; Bryan v. Bryan, 62 Ark. 
 
 fit in lieu of dower was sufficient and 79; Fellers v. Fellers, 54 Neb. 694; 
 
 certain, and was assented to by her Wentworth v. Wentworth, 69 Me. 247 
 parent or guardian. See cases an4 
 authorities above cited. 
 
JOINTUEES AND AGREEMENTS BaBEINQ DoWEE. 189 
 
 ther that such jointure or pecuniary provision made before 
 the marriage without the wife's assent, or made after the 
 marriage, shall put the wife to her election between such 
 jointure or provision and dower. In New York she must 
 elect by entering on the lands assigned for her dower or by 
 starting an action therefor within a year from the death of 
 her husband; otherwise she is deemed to have elected in 
 favor of the jointure or pecuniary provision.^ 
 
 In all states with statutes of this kind jointures or pro- 
 visions made before marriage in accordance with their 
 terms will, of course, bar dower at law as well as in equity.* 
 But apart from these statutes, the jurisdiction of equity 
 over contracts gives to a court of equity the power to specifi- 
 cally enforce the performance of any valid contract made 
 between a man and woman before marriage with reference 
 to the marital rights of each in the property of the other, 
 and if such contract is supported by a valid consideration, 
 and has been made without fraud, and with full knowledge 
 and understanding on the part of the wife of its terms and 
 effect, equity will enforce it according to its terms. There- 
 fore if the intended wife agrees, by such contract, not to 
 claim dower, she will be barred therefrom.'' The burden, 
 
 5. See preceding note, also N. Y. R. land, which was executed in part by 
 P. L. §§ 199, 200, 201. conveyance of the substituted parcel 
 
 6. See note 4 preceding. to a trustee, for the wife, it was held 
 
 7. Pierce v. Pierce, 71 N. Y. 154; that the agreement as modified should 
 Graham v. Graham, 143 N. Y. 573; stand under the circumstances, and 
 Worrell v. Forsyth, 141 111. 82; dower was barred. Worrell v. For- 
 Jacobs V. Jacobs, 42 Iowa 600; Free- syth, 141 HI. 32. 
 
 land V. Preeland, 128 Mass. 509; In So, also, in West v. Walker, 77 
 
 re Heald, 22 N. H. 265; Shoeh v. Wis. 557, where there was a valid 
 
 Shoch, 19 Pa. St. 253; Shea v. Shea, prenuptial contract barring dower, it 
 
 131 Pa. St. 303; In re Fennell's Es- was held that a further agreement 
 
 tate, 307 Pa. St. 309; Brooks v. Aus- made after marriage by which the 
 
 tin. 95 N. C. 474. provision for the wife was increased. 
 
 Where by the prenuptial contract was only a continuation of the pre- 
 
 the wife was to receive a certain piece nuptiaj contract, not in discliargs 
 
 of property in lieu of dower, and after thereof, and therefore dower waa 
 
 the marriage the agreement was modi* barred, 
 fled by substituting another piece of 
 
190 DOWBR. 
 
 however, is upon those setting up sucli a contract to prove 
 that it was secured from the intended wife without mis- 
 representation or concealment, with a full understanding on 
 her part of its nature and effect.® If the provision made 
 for the intended wife in lieu of dower is inadequate, and 
 the contract from her standpoint is unfair and inequitable, 
 the court will not enforce it.^ These cases of pre-nuptial 
 contracts seem to be only cases of equitable jointures, dis- 
 cussed in the preceding section. 
 
 Where provision is made by way of jointure after mar- 
 riage, the wife is put to her election, on the death of her 
 husband, between the jointure and dower. Her dower is 
 not absolutely barred, since she cannot release dower to her 
 husband.^" If she has received and used up the amount 
 paid her in lieu of her dower before her husband's death, 
 she is not barred from claiming dower, as her election dur- 
 ing coverture does not bind her.*^ If the provision in lands, 
 money or income is held by her on her husband's death, she 
 must give it up before she can have dower assigned to her.^^ 
 
 8. Pierce v. Pierce, 71 N. Y. 154; Martin v. Martin, 22 Ala. 86; Roberta 
 Graham v. Graham, 143 N. Y. 573 ; v. Walker, 82 Mo. 300. 
 
 Shea V. Shea, 121 Pa. St. 302 ; Taylor In Michigan it is held that the 
 
 V. Taylor, 144 111. 436; Fisher v. Married Woman's Acts impliedly give 
 
 Koontz, 110 Iowa 498; Cummings v. the wife power to release dower to 
 
 CUmminga, 25 R. I. 528. her husband during coverture. 
 
 9. Curry v. Curry, 10 Hun (N. Y.) Rhoades v. Davis, 51 Mich. 306; 
 366, and cases in preceding note. Dakin v. Dakin, 97 Mich. 2S4; Cliit- 
 
 10. Jones V. Fleming, 104 N. Y. tock v. Chittock, 101 Mich. 367. 
 418; Woods V. Woods, 77 Me. 434; 11. Land v. Shipp, 98 Va. 284. 
 Spangler v. Dukes, 39 Oh. St. 642; 12. Kreiser's App., 69 Pa. St. 194; 
 Pinkham v. Pinkham, 95 Me. 71, hold- Pinkham v. Pinkham, 95 Me. 77, and 
 ing that the same rule applies to the cases in last two notes preceding, 
 estate given by Stat. (ch. 157, L. These cases hold that an election 
 1895), instead of dower, which is made by the wife during coverture 
 abolished by that statute. Wife is does not bind her. If after her hus- 
 put to her election between the pro- band's death she accepts the jointure, 
 vision by way of jointure and the that constitutes an election and she 
 statutory estate created to take the is barred of dower. Roberts v. Wal- 
 place of dower; Kreiser's App. 69 Pa. ker, 82 Mo. 200. 
 
 St. 194; Butts v. Trice, 69 Ga. 74; In Iowa and Oregon, by statute, Miy 
 
Tbstambntaet Peovisionb in Libtj of Dowee. 191 
 
 This is true irrespective of statutory provision, as it would 
 be manifestly inequitable to let ber take dower and also 
 hold the provision made to take its place. 
 
 If a jointure fails, as wbere it develops that the husband 
 was not the owner of the property given by way of jointure, 
 or bis estate is not sufficient to make good the pecuniary 
 provision made therein, the wife's dower right arises again, 
 at least to the extent of the failure of the jointure.^* 
 
 § 116. Testamentary Provisions in Lieu of Dower.— If a 
 husband devise or bequeath property, real or personal, to 
 his wife, expressly providing by his will that such testa- 
 mentary provision shall be in lieu of dower, the wife miist 
 elect between the two; she will not be permitted to take 
 both. By accepting the provisions of the will she accepts 
 the condition thereto attached, and therefore gives up all 
 claim to dower in her husband's estate, irrespective of the 
 value of such provision as compared with her dower. ^ 
 
 Where there is no express provision in the will to the 
 effect that the legacy or devise in favor of the wife is in 
 lieu of dower, she will, generally speaking, be entitled to 
 both the testamentary provision and dower. She is put to 
 her election only when the provisions of the will and her 
 
 agreement to release dower during barred, though husband's estate was 
 
 the marriage is void for any purpose, not sufficient to pay her $1500, which 
 
 and therefore the acceptance of such by the terms of the prenuptial agree- 
 
 provisions does not bar dower. Gar- ment was to be charged as a debt 
 
 ner v. Fry, 104 Iowa, 515 at 518; against his estate. This was because 
 
 House V. Fowle, 20 Oreg. 163. she received the other benefits provided 
 
 13. 3 Scritner, Dower, 432 et seq.; for, and as this payment was, by the 
 
 Drury v. Drury, 2 Eden 39; Statute terms of the agreement to be charged 
 
 of Uses so provided, 37 Henry VIII, as a debt against his estate, it ap- 
 
 c. 10, § 7. For statutes in U. S. on peared that the wife took the chance 
 
 this point, see 1 Stim. Am. St. L. § of its collection, and so understood 
 
 3247. See, also, Hastings v. Dickin- the matter. 
 
 Bon, 7 Mass. 153; Grlder v. Eubanks, 1. Van Orden v. Van Orden, 10 
 
 12 Bush. (Ky.) 510. Johns. (N. Y.) 30. See, also, cases in 
 
 In Freeland v. Freeland, 128 Mass. notes which follow, sustaining thi» 
 
 509. it was held that dower was general proposition. 
 
19S DOWEE. 
 
 do-^er cannot stand together. If it is possible for them to 
 stand together she may take both. In the absence of posi- 
 tive evidence to the contrary the presumption is irresistible 
 that the husband intends a provision for his wife to take 
 effect as a testamentary gift, as though made to anyone 
 else, not as an offer to buy a release of the dower which 
 the law gives her.^ 
 
 It is immaterial whether the provision in lieu of dower 
 is greater or less in value than the dower right. If it can 
 stand with dower the widow takes both.^ If real estate 
 be devised to the wife in fee, it does not interfere with her 
 dower in other real property of which the husband was 
 seized during coverture, since dower may stand together 
 with such devise. As to the land devised to her, of course 
 her dower therein merges with the fee, but as to the other 
 real property of the husband, her dower right is not af- 
 fected. There is no release of dower to be implied from the 
 acceptance of such a devise by her.* For the same reason, 
 where the will gives the wife a life estate in a part or all 
 of the husband's real property, her dower right is not af- 
 fected except as it merges with the life estate created by 
 will. If such life estate be limited to her during widow- 
 hood or upon any limitation or condition which may bring 
 it to an end before her death, it is subject to her right to a 
 life estate in one-third of the same property, viz.: to her 
 
 2. Birmingham v. Kirwan, 3 In White v. White, 16 N. J. L. 802, 
 Sohoales & Lef. 444; Matter of Gor- the widow was given one room in the 
 don, 173 N. Y. 35; Bennett v. Packer, dwelling house of her husband for her 
 70 Conn. 357; Cunningham's Estate, life, and a comfortable living out ot 
 137 Pa. St. 631; In re Gotrean's Ea- his property, and subject thereto 
 tate, 34 Minn. 159, and oases on spe- his lands, etc., were devised to his 
 cific points in following notes. For sons. This provisions was held to be 
 statutes expressing this rule, see 1 consistent with dower. 
 
 Btim. Am. St. L. § 3344. 4. Lawrence v. Lawrence, 2 Vem. 
 
 3. Jackson v. Churchill, 7 Cow. (N. 365; Jackson v. Churchill, 7 Cow. 
 Y.) 387; Matter of Gordon, 173 N". 287; Lefevre v. Lefevre, SO N. Y. 
 Y. 35; Evans v. Webb, 1 Yeates (Pa.) 434, and cases in following noU. 
 434; Cunningham's Estate, 137 Pa- 
 st. 631. 
 
Testamentaey Peovisions in Lieu of Dowee. 193 
 
 dower right, and on the termination of the life estate by her 
 remarriage or on the happening of the contingency on which 
 it was limited, she is entitled to her dower in the same prop- 
 erty." The point is that the devise to her, like a devise to 
 any one else, is a devise of the interest which the husband 
 had, subject to her dower right, unless the two estates or 
 rights are necessarily repugnant to each others and it would 
 aeem to be clear that they are not so repugnant in the case 
 referred to, since there is no reason why the widow cannot 
 hold a life estatf, in the entire property subject to her right 
 of dower, any more than where such life estate is held by 
 any third party. It has been held to the contrary, however, 
 in New Jersey.* 
 
 The giving to the wife of an annuity or legacy charged 
 by the will on the testator's real estate, is not repugnant to 
 dower, as the devisee or heir takes the property subject to 
 dower and ako subject to the charge. Therefore, in the 
 absence of an express provision making the devise or legacy 
 in lieu of dower, the widow is not put to her election but 
 may take both.'' Even the creation by will of a trust in all 
 the husband's property, title thereto being vested in a trus- 
 tee for the benefit of the wife and children or others does 
 not force the wife to elect, since in the usual case there is 
 nothing to prevent the trustees from holding such property 
 subject to dower; and the same result follows where the 
 trustee is given a power to sell or mortgage the property, 
 since such conveyance or mortgage may well be made sub- 
 ject to dower.^ Where, however, the trustee is directed to 
 care for the property, pay the taxes and interest on mort- 
 
 5. Lewis V. Smith, 9 N. Y. 502; Le- Ex'r v. Colgate, 23 N. J. Eq. 372. 
 levre v. Lefevre, 59 N. Y. 434; Bull v. 7. Horstmann v. Flege, 172 N. Y. 
 Caiureh, 5 Hill (N. Y.) 206; Matter 381; Adsit v. Adsit, 2 Johns. Ch. 
 of Franke, 97 Iowa 704. 448 ; Birmingham v. Kirwan, 3 
 
 6. In New Jersey it is held that Sohoales & Iief. 444. 
 
 such life estate is inconsistent with 8. Wood v. Wood, 5 Paige (N. Y.) 
 
 dower in the same property, and the 596; Konvalinka v. Schlegel, 104 N. 
 
 widow U put to her election. Stark Y 125, and cases in following note. 
 V. Hunton, 1 N. J. Eq 216 ; Colgate's 
 
 13 
 
194 DowEB. 
 
 gages, keep the premises in repair, and generally take care 
 of the entire property, it is held that the trust is inconsistent 
 with dower, since such provisions are necessarily inconsist- 
 ent with setting off a life estate in one-third of the property 
 to the widow, thereby giving her sole possession and con- 
 trol of that portion. If the widow is a beneficiary of such 
 a trust she is put to her election.® 
 
 In Connecticut it has been held that where a trust was 
 created for the benefit of the widow and children of the 
 testator, and it appeared that the taking of dower by the 
 widow would so reduce the estate that nothing would be left 
 for the children at the expiration of the trust, the widow 
 was put to her election, it appearing that dower was incon- 
 sistent with the purposes of the testator in creating the 
 trust." 
 
 In some states it is provided by statute that any provision 
 of the husband's will in favor of the wife puts her to her 
 election. ^^ 
 
 § 117. Election by Widow. — In cases where the widow 
 is put to her election she will be bound by an election actu- 
 ally made with knowledge of the extent and value of her 
 husband's real estate in which she has dower and of the 
 value of the testamentary provision in lieu thereof. An 
 
 9. Matter of Gordon, 173 N. Y. 25; husband was to be sold, and one-half 
 
 Tobias v. Ketcha.m, 32 N. Y. 319; the proceeds was to form a fund, the 
 
 Birmingham v. Kirwan, 2 Schoales income from which was to be paid the 
 
 & L- 444. widow during her life. This was 
 
 It is submitted that there is no held to be Inconsistent with dower 
 
 necessary inconsistency in these and put the widow to her election. 
 cases, since the husband might have 10. Ailing v. Chatfield, 43 Cona 
 
 intended that the trustees should so 276. 
 
 act subject to dower. But the hus- 11. Buffington v. Bank, 113 Mass. 
 
 band's intent to put the wife to her 246; Miliiken v. Welliver, 37 Oh. St. 
 
 election appears beyond a reasonable 460; Stone v. Vandermark, 146 111. 
 
 doubt, which is the true basis of the 312; Bradfords v. Kents, 43 Pa. St 
 
 rule. 474. For statute, see 1 Stim. Aia. 
 
 In Colgate's Ex'r v. Colgate, 23 N. St. L. § 3244. 
 J. Eq. 372, all the property of the 
 
Election by Widow. 195 
 
 -election made under a mistake of fact as to the value of 
 either her dower or the testamentary provision will not bind 
 her, and she may revoke it by returning what she has re- 
 ceived by virtue of her election.* The time in which such 
 election must be made is generally provided by statute.^ 
 The New York statute, providing that if she does not elect 
 by entering after her dower has been assigned or by start- 
 ing an action for her dower within a year from the death of 
 her husband, she shall be deemed to have elected in favor 
 of the testamentary provision in lieu thereof, is f.irly 
 typical of these statutes.* Generally the actual taking pos- 
 session of the property or receiving the money so devised 
 or bequeathed in lieu of dower will amount to an election 
 if made with full knowledge of the value and character of 
 her husband's estate, though the mode of election is fre- 
 quently provided for by statute.'* A valid election in favor 
 of the testamentary provision where such election is re- 
 quired, bars dower absolutely, not only as to the property 
 of which the husband died seized, but also to property con- 
 veyed before his death subject to her dower right.^ 
 
 1. Maoknet v. Macknet, 29 N. J. tt-rs of administration, § 10, Dower 
 Eq. 54; Stone v. Vandermark, 146 Act. 
 
 111. 313; Anderson's Appeal, 36 Pa. See, also, Eeed v. Dickerman, 12 
 
 St. 476; Milliken v. Welliver, 37 Oh. Pick. 146. 
 
 St. 460; Dabney v. Bailey, 42 Ga. 4. Van Orden v. Van Orden, 10 
 
 521; Steele v. Steele's Admr., 64 Johns (N. Y.) 30; Bradfords >-. 
 
 Ala. 438. Kents, 43 Pa. St. 474; Thompson v. 
 
 2. 1 Stim. Am. St. L., §§ 3365, Hoop, 6 Oh. St. 480. 
 
 3S66; 2 Scrib. Dower, 505. Pbr statutes fixing modes of elec- 
 
 3. N. Y. Keal P. Law, §§ 200, 201. tion, see 1 Stim. Am. St. L., § 3367. 
 In Alabama the widow must dis- 5. Steele v. Fisher, 1 Edw. Ch. (N. 
 
 sent in writing to a legacy in lieu of Y.) 435; Haynie v. Dickens, 68 III. 
 
 dower within a year from the probate 267; Buffington v. Bank, 113 Mass. 
 
 of the will. Steele V. Steele, 64 Ala. 246; Allen v. Pray, 13 Me. 1.38 ; 
 
 438. In Ohio the widow must elect Hornsey v. Casey, 21 Mo. 545 ; Chapin 
 
 within a year after service of citation v. Hill, 1 R. I. 446 ; Fairchild v. 
 
 upon her citing her to appear and Marshall, 43 Minn. 14. 
 make election. Milliken v. Welliver, In Michigan the court construed 
 
 37 Oh. St. 460. In Illinois she must the statute as referring to lands of 
 
 dect within a year from date of let- ^'l•hioh the husband was seized at the 
 
1&6 DoweK. 
 
 "When the wife elects in favor of the testamentary pro- 
 vision, she takes it subject to the payment of debts of the 
 husband, provided there is not sufficient other property to 
 pay his debts, but she is entitled to receive such testament- 
 ary provision ahead of any other legatees named in the will. 
 This is because she is not in the position of a recipient of 
 the husband's bounty, like the others, but of one who has 
 released or given up a valuable property right in considera- 
 tion of the provision of the will in her favor.® 
 
 G. — Dower After Death of Husband. 
 
 § 118. Consummate Dower. — On the death of the hus- 
 band the wife's dower right becomes consummate; it is no 
 longer the uncertain, indefinite, anomolous kind of interest 
 which it was during its inchoate state, nor, on the other 
 hand, is it an actual life estate before actual assignment. 
 It is a right of action in the widow against the heir or 
 devisee or grantee of the husband, as the case may be, to 
 have her dower set off.'' As, before admeasurement, her 
 dower is a mere chose in action, it cannot be assigned or 
 mortgaged at law; ^ but in equity such assignments or mort- 
 tages are recognized and enforced. Therefore under the 
 merged procedure in law and equity prevailing in New York 
 and other states, transfers and mortgages of the consum- 
 mate right of dower are generally treated as valid and en- 
 forced no matter in what court the question arises.* Be- 
 
 time of his death, and for that rea- Jenks, 140 Mass. 562; Moore v. Al- 
 
 Bon the widow's dower right in lands den, 80 Me. 301. 
 
 Bold by the husband is not affected 7. 2 Scribner, Dower, 87; Sliepard 
 
 by her election. Westbrook v. Van- v. Manhattan El. E. Co., 117 N. Y. 
 
 derburgh, 36 Mich 30. 442; Thompkins v. Fonda, 4 Paig? 
 
 6. Isenhart v. Brown, 1 Edw. Ch. (N. Y.) 448; Wade v. Miller, 32 N. 
 
 (N. Y.) 411; Bray v. NeilVs Exe- J. L. 296; Rayner v. Lee, 20 Mich. 
 
 cutrix, 21 N. J. Eq. 343; Steele v. 384. 
 
 Steele's Admr., 64 Ala. 438; Lord v. 8. 2 Scribner, Dower 42; Hart v. 
 
 Lord, 23 Conn. 327; Security Co. v. Bureh, 130 111. 426; Johnson v. 
 
 Bryant, 53 Conn. 311; Taylor's Shields, 32 Me. 424. 
 
 Estate, 175 Pa. St. 60; Borden T. 9. Payne v. Becker, 87 N. Y. 153; 
 
Assignment of Dowee. 197 
 
 cause of its nature, as above explained, consummate dower 
 caimot be reached by execution on judgments against tlie 
 widow, though it may be reached by a creditor's bill in 
 equity or by supplementary proceedings, a receiver being 
 appointed by the court to bring an action for the admeasure- 
 ment of her dower, after the assignment of which the life 
 estate may be sold and the proceeds used to satisfy the 
 judgment.*" 
 
 § 119. Assignment of Dower. — Dower must be assigned 
 by metes and bounds if it can be done as a practical matter 
 and without serious injustice to the widow or those inter- 
 ested in the land.* Where setting it off by metes and bounds 
 is not practicable or would be clearly inequitable, doAver 
 will be assigned in some other way, either by giving to the 
 widow a share of the rents and profits, or the final judg- 
 ment may direct that one-third of the rental value of the 
 property in question be paid to the widow during her life.* 
 In New York it is provided that in such case such sum shall 
 be a charge upon the property during the life of the wife.^ 
 
 "Where the husband was seized as tenant in common, the 
 widow is entitled to a life estate in one-third of her hus- 
 band's interest, therefore when dower is set off to her she 
 
 Mut. Life Ins. Co. v. Shipman. 119 at law, but that a court of equity 
 
 N. Y. 324; Strong v. Clem, 12 Ind. would not lend its aid to enable a 
 
 37; Dobberstein v. Murphy, 64 Minn, creditor ol the widow to reach it in 
 
 127. The assignee may sue in hi3 equity. 
 
 own name by virtue of express statu- 1. 3 Scribner Dower, 80; Smitli v. 
 
 tory provision in New York and many Smith, 6 Lans. (N. Y.) 313; Pierce v. 
 
 cf the states. See above cases. Williams, 3 N. J. L. 281; Schnebly v. 
 
 10. Tompkins v. Fonda, 4 Paige Schnebly, 26 111. 116; Austin v. Aua- 
 
 (N. Y.) 448; Aikman v. Harsell, 98 tin, 50 Me. 74; Sanders v. McMillan, 
 
 X. Y. 186; Payne v. Becker, 87 N. Y. 98 Ala. 144. 
 
 153; McMahon v. Gray, 150 Mass. 2. N. Y. Code Civ. Pro., § 1613; 
 
 8&1; Petefish v. Buck, 56 111. App. Coates v. Cheever, 1 Cow. 460; Len- 
 
 149. fcra V. Henke, 73 111. 405, 411; Atkin 
 
 In Barper v. Clayton, 84 Md. 346, v. Merrill, 39 111. 02. 
 
 the court held not only that con- 3. N. Y. Code Civ. Pro., § 1613. 
 Bummate dower could not be reached 
 
198 DowEE. 
 
 is entitled to occupy and enjoy the premises as tenant in 
 common only, her undivided interest being one-third of the 
 interest that her husband had.* 
 
 In the absence of mutual agreement between the parties 
 concerned, or of statutes providing otherwise, dower must 
 be set out in each parcel to which the dower right has at- 
 tached; it cannot be confined to a single parcel, even though 
 the value of the land set off is equal in value to dower in all 
 the parcels subject to dower.^ In New York, if the widow 
 consents, a distinct parcel, equal in value to her dower, may 
 be set off to her in fee simple in satisfaction of her dower in 
 all her husband's property." Provisions more or less simi- 
 lar may be found in the statutes of other states.'^ 
 
 Where real property is sold in an action of partition, the 
 widow's right of dower attaches to the net proceeds, and 
 either a gross sum will be paid to her, if she consents, or 
 one-third thereof will be invested and the income paid to 
 her during her lif e.^ 
 
 The right of the parties interested to agree upon a gross 
 sum to be paid to the widow for her dower is generally 
 recognized and is provided for by the statutes in many 
 states. In the absence of such agreement, however, the 
 widow cannot be compelled to receive any such gross sum 
 for her dower.* 
 
 4. Smith V. Smith, 6 Lans. (N. Y.) See, also, § 1567. The same rule ap- 
 313; Osborne v. Rogers, 19 N. J. Eq. plies where the land is sold to pay 
 429 ; Hart v. Burch, 130 111. 426 ; the husband's debts. Higbee v. West- 
 French V. Lord, 69 Me. 537; Blossom lake, 14 N. Y. 281. See, also, for 
 V. Blossom, 91 Mass. 254. statutes in other states, 1 Stim. Am. 
 
 5. 2 Scribner Dower, 587; Sip v. St. L., §§ 3316, 3276(2). As to 
 Lawback, 17 N. J. L. 442; Schnebly dower in surplus money after fore- 
 V. Schnebly, 26 111. 116; Compton v. closure of mortgage, see § &8, note 12, 
 Pruitt, 88 Ind. 171; Skolfield v. ante. 
 
 Skolfield, 88 Me. 258. 9. N. Y. Code Civ. Pro., 5 1617. In 
 
 6. N. Y. Code Civ. Pro., § 1620. such case, if dower cannot be ad- 
 
 7. See 1 Stim. Am. St. L., § 3277, measured by metes and bounds, tha 
 and statutes on dower in the different propprty may be sold. See § 1619. 
 sta-t'^s- Eobinson v. Govers, 138 N. Y, 425; 
 
 8. N. Y. Code Civ. Pro., § 1569. Atkin v. Merrill, 39 111. 62, 
 
DowEE IN Improvements Made by Heir, Etc. 199 
 
 The statute of limitations upon tlie action for dower is 
 generally for the same period as provided for actions of 
 ejectment." 
 
 § 120. Dower in Improvements Made by Heir or Grantee 
 of Husband. — If the heir or devisee of the husband enters 
 on the property, and improves it by erecting buildings or 
 otherwise, and fails to set off dower for the widow, when 
 dower is finally assigned she will be entitled to her life 
 estate in the property as it is at the time of assignment, no 
 allowance being made on account of the improvements for 
 the benefit of the heir or devisee, it being his own fault that 
 her dower was not assigned before the improvements were 
 made.^ This rule has been changed by statute in New York, 
 but continues to be the law in the absence of statutory 
 change.* 
 
 Where land was conveyed by the husband subject to his 
 wife's dower right, the general rule is that the widow is 
 entitled to have her dower set off to her in the property 
 based on its value at the time of admeasurement, deducting, 
 however, the additional value of the property due to im- 
 provements made by the husband 's grantee. She is entitled 
 
 See, also, Stim. Am. St. h., § affect the wife's dower right. See 
 
 3276(5) (7). above cases. 
 
 10. In New York, the action for For statutory provisions covering 
 
 dower is barred if not brought within the action for dower in New York, see 
 
 20 years. Code Civ. Pro., § 1596. Code Civ. Pro., §§ 1596-1625, inc. 
 
 On this question see Hastings V. Mace. 1. Co. Litt. 32a; Doe v. Gwinnel, 
 
 157 Mass. 499; Winters v. DeTurk, 1 Q. B. 682; Catlin v. Ware, 9 Mass. 
 
 133 Pa. St. 359; Whiting v. Nicholl, 218; Tarrone v. Beam, 10 Oh. 498; 
 
 46 111. 230; Taylor v. Lawrence, 148 Humphrey v. Phinncy, 2 Johns (N. 
 
 111. 388; Tnompscn v. McCorkle, 135 Y.) 484; Allsmiller v. Freutclienicht, 
 
 Iiid. 4S-t; Lucas v. W^hite, 120 Iowa, 80 Ky. 198; Ball v. Schaffer, 14 111 
 
 755; Dunham v. Angier, 20 Me. 242. App. 302, and cases cited in following 
 
 In all cases the statute begins to run notes. 
 
 on the husband's death. Adverse pos 2. N. Y. Code Civ. Pro., § 1609 An 
 
 '-«aion before that time does not to similar statute in South Carolina, 
 
 JefTeries v. Allen, 34 S. C. 199. 
 
200 DowEB, 
 
 to dower in the property with all increase in value due to 
 any cause whatever other than such improvements.^ 
 
 In New York and some other states it is settled that the 
 widow is limited in every such case to the value of the prop- 
 erty at the time her husband conveyed it, the reason given 
 being that the increase in value apart from the improve- 
 ment is due to the development of the property in the neigh- 
 borhood, and the grantee of the husband has contributed 
 his part to the general increase in values by the improve- 
 ments on the land in question made by him.* This reason- 
 ing would seem to fail in cases where the grantee has left 
 the property unimproved, but where the value of the land 
 has greatly increased through other causes. There seems 
 to be no valid reason why the widow's right of dower should 
 not grow in value with the property, excluding the value 
 added by the improvements made by the husband's grantee. 
 
 § 121. Dower After Assignment. — After dower is actually 
 set off to the widow by metes and bounds and she has. en- 
 tered, she holds a life estate in the land so set off, which is 
 subject to all the usual incidents of such estates as between 
 herself and the remainderman or reversioner." 
 
 3. Scammon v. Campbell, 75 111. iraprovementa should be deducted ia 
 
 223 ; Summers v. Babb, 13 111. 483 ; stated. As to increase in value not 
 
 Davis V. Hutton, 127 Ind. 481 ; Quick due to improvements, the question is 
 
 V. Brenner, 101 Ind. 230; Pepper v. not considered or decided. 
 
 Thomas, 85 Ky. 539; Dockray v. 4. Walker v. Schuyler, 10 Wend. 
 
 Millikeii, 76 Me. 517; Price v. Hobbs, (N. Y.) 480; Guerin v. Moore, 23 
 
 47 Md. 359; Young v. Thrasher, 115 Minn. 462. For statutes on this 
 
 Mo. 223; Butler v. Fitzprerald, 43 point see 1 Stim. Am. St. L., § 3279. 
 
 Kcb. 192; Sanders v. McMillan, 93 The widow takes dower subject to 
 
 Ala. 144; Thompson v. Morrow, 5 any decrease or impairment in value, 
 
 Porg. & R. (Pa.) 289; Wescott v. irrespective of the cause thereof, in 
 
 Campbell, 11 R. I. 378. any of the cases above discussed. See 
 
 In Van Doren v. Van Doren, 3 N. i cases cited in preceding not^es. 
 
 J. L. 270; Cox V. Iligsbee, 11 N. J. L. 5. 2 Scribner Dower, 781; Law- 
 
 395; Catlin v. Ware, 9 Mass. 318 and rence v. Brown, 5 N. Y. 394; Linden 
 
 Stearns v. Swift, 8 Pick. (Mass.) v. Graham, 34 Barb. (N. Y.) 316; 
 
 632, the general rule t'lat the value of Jonas v. Hunt, 40 N. J. Eq 660; 
 
Widow's Qtjaeantinb. 201 
 
 § 122. Widow's Quarantine. — The right of quarantine at 
 common law is the right of the widow to remain forty daya 
 in the principal mansion house or residence of her husband, 
 within which period dower might be assigned. It was 
 originally provided for by Magna Charta. It is not a term 
 of years, nor an estate, but a privilege of occupation given 
 by law to the widow to provide for her during the period 
 immediately following her husband's death, bridging over 
 the interval until dower may be assigned.' In New York 
 and many of the states the widow's quarantine is provided 
 for by statute substantially as at common law, it being gen- 
 erally provided that in addition to occupying the principal 
 residence of her husband, she shall have her reasonable 
 sustenance from his estate during the forty days following 
 his death.'^ 
 
 In some states the period during which she may so hold 
 possession is a year, and in other states it is provided that 
 she shall have this right until dower is actually assigned.* 
 
 Since the right of quarantine is a mere personal privi- 
 lege, and does not amount to an estate, either for the period 
 provided for by the statute, or for life in cases where the 
 right is to continue until the assignment of dower, it fol- 
 lows that none of the incidents of such estates attach to it. 
 The widow is not required to pay taxes or make repairs or 
 meet any of the charges incident to the carrying of the prop- 
 erty,' nor is her interest subject to sale on execution.^" 
 
 Peyton v. Jefferies, 50 111. 143; Mc- 8. 1 Stlm. Am. St. L., S 8S78; 
 
 Mahon v. Gray, 150 Mass. 289 ; Hodge Spinning v. Spinning, 43 N. J. Eq. 
 
 V. Phinney, 108 Mich. 537. See, also. 815. 
 
 Chapter VI, post, Incidents of Life 9. Harrison v. Peck, 56 Barb. (H. 
 
 Kstates. Y.) 251; Spinning v. Spinning, 43 N. 
 
 6. Co. Lilt. 34b; 2 Bl. Com. 139; J. Eq. 215; Graves v. Cochran, 68 
 8 Scribner Dower, 55. Mo. 74. 
 
 7. N. Y. Real Prop. Law, § 204; 1 10, Camall v. Wilson, 81 Ark. 62. 
 Pt'm. Am. St. L., § 3378. 
 
202 Estates by the Mabital Right ahb CuSiTssy. 
 
 CHAPTER V. 
 Estates by the Maeital Right and Cuetbst. 
 
 § 123. Estate by the Marital Right. — At common law the 
 husband was entitled to the rents and profits, use and en- 
 joyment of all the real property of which his wife was 
 seised in freehold at the time of the marriage, and of all 
 of which she might subsequently become seised during the 
 marriage. This estate by the marital right was a freehold, 
 measured by the joint lives of husband and wife; if the hus- 
 band died first, the wife became the sole owner as before 
 the marriage; if the wife died first her heirs became im- 
 mediately entitled to the property, free of any claim of 
 the husband, unless he had acquired an estate of curtesy 
 through the birth of issue.^ As we shall see, the estate by 
 the marital right was changed, by the birth of issue to the 
 marriage, into a life estate in the husband, measured by 
 his own life, which was not subject to be defeated by the 
 death of the wife.^ 
 
 The estate by the marital right, being a freehold estate 
 in the husband measured by the joint lives of husband and 
 wife, could be conveyed by him without the consent or 
 concurrance of the wife, and his grantee acquired all of 
 his rights in the property.* Since the husband could con- 
 
 1. Co. Litt. 351a; 2 Kent Com. 130; tliem) ; Shaw v. Partridge, 17 Vt 
 
 Jones V. Patterson, 11 Barb. (N. Y.) 626. 
 
 572; Babb v. Perley, 1 Me. 6; After the wife's death the husband 
 Payne v. Parker, 10 Me. 178 ; Van is entitled to ungathered crops plant- 
 Note V. Downey, 28 N. J. L. 219 ; ed or sowed by him, as emblements. 
 Shallenberger v. Ashworth, 25 Pa. St. Bennett v. Bennett, 34 Ala. 53. 
 153; Junction R. Co. v. Harris, 9 2. See § 124, post. 
 Ind. 184; Mut. L. Ins. Co. v. Deale, 3. Co. Lilt. 325b; Trask v. Patter- 
 18 Md. 26 ; Clapp v. Stoughton, 10 son, 39 Me. 499 ; Eaton v. Whittakeh, 
 Pick. (Mass.) 463 (holding that if 18 Conn. 222 ; Allen v. Hooper, 50 Me. 
 husband does not receive rents and 371, 379; Flagg v. Bean, 25 N. H. 49; 
 profits during his life, his representa- Melius v. Snowman, 21 Me. 201, and 
 tive and not his wife iB entitled to cases in note 1 preceding. 
 
Estate by the Mabital Eight. 203 
 
 vey it, creditors of the husband could levy upon it and 
 sell it for Ms debts.* In any case where this estate was 
 transferred the purchaser thereof got only the husband's 
 interest, viz.: the right to the rents and profits, use and 
 enjoyment of the property in question during the joint lives 
 of the husband and wife, such estate coming absolutely to 
 an end on the death of either of them. 
 
 Though the husband was the owner of a distrinct free- 
 hold estate, nevertheless his seisin was " in right of the 
 wife," and they were regarded as jointly seised. There- 
 fore, if they were disseised or ousted wrongfully, the ad- 
 verse possession of the wrongdoer ran against tliem both 
 so as to bar the wife as well as the husband if continued 
 for the period provided for by the Statute of Limitations. 
 For the same reason actions based on injuries to the land 
 of a permanent nature could be maintained only in the 
 names of both of them jointly," while actions for injuries 
 of a temporary kind could be maintained by the husband 
 alone, since the injury was to his present estate only." 
 
 Leasehold interests of the wife could be reduced to pos- 
 session by the husband only by selling or assigning them. 
 He was entitled to the possession and enjoyment of such 
 leasehold properties during his wife's life, and on her death, 
 if he survived, they became his property absolutely, like her 
 other personal property; if she survived him they became 
 her property again, in which event a bequest of such lease- 
 hold interests by the husband would be void. The hus- 
 band, however, could reduce them to possession by selling 
 
 4. Babb v. Perley, 1 Me. 6; Beale by the marital right in land inlierit- 
 V. Knowles, 45 Me. 479; Litchfield v. ed by his wife, the court holding that 
 Cudworth, 15 Pick. (Mass.) 23; the possession of the purchaser was 
 Kicholls V. O'Neill, 10 N. J. Eq. 88. not adverse to the wife, since shr* 
 
 5. Coe V. Wolcottville Mfg. Co., 35 could not interfere with his posaes- 
 Conn. 175; Melvin v. Props. Merrimae sion till after her husband's death). 
 R. Locks, &c., 16 Pick. (Mass.) 161; 6. Nicholls v. O'Neill, 10 N. J. Eq. 
 Melius V. Snowman, 21 Me. 201 (lu F8; Wyatt v. Simpson, 8 W. Va. 394, 
 n-hieh case the husband sold his estate and cases in preceding note. 
 
204 Estates by the Maeital Right and Cuetebt. 
 
 and assigning them, tlie proceeds of such sale being hia 
 property absolutely^ 
 
 The married women's property acts, which have been 
 enacted in England and the different states, have done 
 away with this estate by the marital right. Generally 
 speaking, a married woman is now entitled to the use and 
 enjoyment of her property as though unmarried, free and 
 clear of any claim on the part of the husband, except in- 
 so-far as his right of curtesy may affect her interest. The 
 effect of these statutes will be considered further in con- 
 nection with curtesy.* 
 
 § 124. Nature of Curtesy. — Curtesy, whether initiate or 
 consummate, is a life estate in the husband, measured by 
 his own life, in all the real property of which his wife was 
 seised of an estate of inheritance during coverture, pro- 
 vided there is a valid marriage between the parties and 
 that issue has been born to the marriage who may inherit 
 the property in which curtesy is claimed. As soon as issue 
 is born the husband's estate by the marital right is changed 
 into this estate of curtesy. It is called curtesy initiate dur- 
 ing the life of the wife, and differs radically from inchoate 
 dower, in that it extends to all the real property of which the 
 wife was seised of an estate of inheritance during the mar- 
 riage, and in that it is a vested freehold estate measured 
 by the husband's life, and in no way affected by her death.^ 
 
 7. Co. Litt. 46b, 351a; 2 Bl. Com. the estate by the marital right 
 434; Riley v. Riley, 19 N. J. Eq. 329; Wright v. Wright, 2 Md. 429; Bar- 
 In Re Bellamy, 25 Oh. Div. 620; ber v. Root, 10 Mass. 260; Mattoclia 
 Allen V. Hooper, 50 Me. 371, 374. v. Stearns, 9 Vt. 326, dicta at p. 336. 
 The husband became the absolute 8. See § 131, post, and notes there- 
 owner of his wife's chattels; he had under. 
 
 the right to "reduce to possession her 1. 2 Bl. Com. 127, 128; Foster T. 
 
 choses in action by collecting them, Marshall, 22 N. H. 491; Collins v. 
 
 and on doing so the sums collected Russell, 184 N. Y. 74; Jackson v. 
 
 became his absolutely." Jackson, 144 111. 374, and cases cited 
 
 Divorce, terminating the marital in notes which follow, 
 relation, necessarily brings to an end 
 
Requisites of Cubtest; Valid Maeeiagb. 205 
 
 After the wife's death the estate is called curtesy consum- 
 mate; it differs in no material respect from curtesy initiate, 
 being nothing more or less than a continuance of the life 
 estate which vests in the husband on the concurrence of 
 seisin and the birth of issue. As we have seen, in the case 
 of the estate by the marital right, husband and wife are 
 jointly seised, the husband in right of his wife, so that the 
 adverse possession of a disseisor, if continued for the period 
 provided by the Statute of Limitations, will run against 
 the wife as well as the husband, and bar her right of entry .^ 
 But in the case of curtesy, the wife has only a reversionary 
 interest depending upon the life estate of the husband. She, 
 therefore, has no right of entry during her husband's life, 
 and the period of adverse holding in the case above men- 
 tioned does not begin to run against her till after her right 
 of entry accrues on her husband's death.* 
 
 § 125. Requisites of Curtesy; Valid Marriage. — As in the 
 case of dower there must be a valid marriage in order that 
 curtesy may arise, since the estate, like dower, arises by 
 
 2. See preceding section and notes execution by his creditors; Van 
 6 and 6 thereunder. Duzer v. Van Duzer, 6 Paige (N. Y.) 
 
 3. Foster v. Marshall, 28 N. H. 3C6; Watson v. Watson, 13 Conn. 83 ; 
 481; Shortallv. Hinckley, 31 111. 219; Bozart v. Sargent, 128 111. 95; he 
 Crow V. Kightlinger, 35 Pa. St. 343; may sue without joining his wife to 
 Dawson v. Edwards, 189 111. 60. recover the land from an adverse 
 
 Courts and text writers speak of holder; Shortall v. Hinckley, 31 111. 
 
 curtesy consummate as differing es- 219; he is entitled. to emblements in 
 
 sentially from curtesy initiate, but it both cases, and in both cases the 
 
 is submitted that no essential differ- estate is held subject to the limita- 
 
 ence exists, all the incidents of a life tation that no waste be committed, 
 
 estate for the husband's own life ex- Benneti v. Bennett, 34 Ala. 53, hold- 
 
 jsting in an estate of curtesy initiate ing that a husband having an estate 
 
 as in the case of an estate of curtesy by the marital right only ia entitled 
 
 consummate. Thus he may convey to emblements; Babb v. Perley, 1 Me. 
 
 the estate before as well as after his 6, holding that an estate by the mari- 
 
 wife's death. Poster v. Marshall, 22 tal right when conveyed to a third 
 
 Iv. H. 491; Jackson v. Jackson, 144 person is held subject to the duty not 
 
 111. 874. Before as well as after his to commit waste, 
 wife's death his estate may be sold on 
 
206 Estates by the Maeital Riqht and Cuetest. 
 
 operation of law out of the marital relation. If the mar- 
 riage is absolutely void no estate of curtesy arises. If the 
 marriage is voidable curtesy arises subject to be defeated, 
 like dower, by the annulment of the marriage by a court 
 of competent jurisdiction. If such a marriage is not set 
 aside up to the time of the wife's death, the husband's cur- 
 tesy cannot thereafter be affected by any question as to the 
 validity of the marriage.* 
 
 Divorce, bringing the marriage to an end, terminates 
 curtesy unless there be express statutory provision preserv- 
 ing the husband's rights in case he secures the divorce 
 against his wife for her misconduct." 
 
 § 126. Seisin of the Wife. — The wife must be seised of an 
 estate of inheritance during coverture. The common law 
 rule was that she must be actually seised — seisin at law was 
 not sufficient — contrary to the rule in the case of dower. 
 Seisin at law, as we have seen, exists where an heir or de- 
 visee becomes entitled to property by inheritance or by 
 devise, but has not yet entered. An exception was made 
 in the case of dower in order to prevent the husband from 
 defeating his wife's dower right by refusing to make an 
 entry in such case." The same reason for the exception 
 does not exist in the case of curtesy, as the husband may, 
 by entry, complete his wife 's seisin, and if he fails to do so 
 it is his OAvn fault. Therefore in such case the wife must 
 
 4. Pee discussion of this topic in secured the divorce against his wife 
 Chapter IV, on Dower, and cases }iis curtesy would not be affected 
 there cited. thereby, following the argument in 
 
 5. PuUen v. Pullen, 52 N. J. Eq. 9; Wait v. Wait, 4 N. Y. 95 (a dower 
 Meacham v. Buntin";, 156 111. 536; case). 
 
 Vv heeler v. Hotchkiga, 10 Conn. 235; A divorce a mensa et Ihoro, or acp- 
 
 Burgess v. Muldoon, 18 E. I. 607. aration from bed and board by legal 
 
 In Meacham v. Bunting, 156 111. decree, has no effect on curtesy. 
 
 586, tlie court lield tliat under a Clark v. Clark, 6 Watts, & S. (Pa.) 
 
 atatidc providing that divorce secured 85; Smoot v. Lecat, 1 Stew. 590. 
 
 p,gainst a hushand tor his miscon- 6. See § 96, ante. 
 duct bars curtesy, if the husband 
 
SsaBiir OF THE Wife. 201 
 
 actually enter, or her husband must enter in her hehalf, 
 in order that curtesy may ariseJ The reason why actual 
 seisin was necessary at common law was that the wife must 
 be actually seised in order that the children of the marriage 
 might inherit the land in question; if she died before entry 
 on land inherited by her from an ancestor or devised to 
 her by will, her heirs would not inherit, but the land would 
 revert to the heirs of her ancestor or devisor. This techni- 
 cal rule has been generally abolished, both in England and 
 the United States, including New York.* Nevertheless in 
 New York an actual entry by the wife is still required as 
 a prerequisite of curtesy, though the reason therefor has 
 long ceased to exist.^ In other states actual entry is not 
 necessary. If the wife is the owner of an estate of inheri- 
 tance which is not in the adverse possession of another dur- 
 ing coverture, curtesy attaches.^" It has been held in a few 
 states that seisin is entirely unnecessary, since seisin of the 
 wife is no longer required in order that her heirs may in- 
 herit, and therefore that even though the property be in the 
 adverse possession of another, curtesy attaches provided 
 she have a present estate of inheritance in the land,^^ but 
 the courts have not generally gone so far. The prevailing 
 rule is that she must be seised in fact or in law in order to 
 entitle her husband to curtesy.^^ 
 
 7. 3 Bl. Com. 127; Adair v. Lott, 10. Lessee of Borland v. Marshall, 
 3 Hill (N. Y.) 182; Jackson v. John- 3 Oh. St. 308; Mettler v. Miller, 129 
 sen, 5 Cowen 74, 97; Carr v. Ander- 111. 630; Chew v. Commr's, &c., 5 
 son, 6 App. Div. (N. Y.) 6, and cases Rawle (Pa.) 160; Dend. Hopper v. 
 cited in notes which follow. Demarest, 31 N. J. L. 535; Martin v. 
 
 8. Co. Litt. 40, a; S Bl. Com. 138; Trail, 143 Mo. 85. See, also, Mass. 
 Davis V. Mason, 1 Pet. 507; Leasee of Pub. Stat., eh. 173, 5 3. 
 
 Borland v. Marshall, 3 Oh. St. 308; 11. Lessee of Borland v. Marshall, 
 
 Carr v. Anderson, 6 App. Div. (N. 3 Oh. St. 308; Kline v. Beebe, 6 Conn. 
 
 Y.) 6. 494; Stoolfors v. Jenkins, 8 S. & R. 
 
 9. Carr v. Anderson, 6 App. Div. (Pa.) 167. 
 
 (N. Y.) 6; Adair v. Lott, 3 Hill (N. 12. See cases in note 10, supra, ex- 
 
 Y.) 183. See dicta to same effect in cept Borlahd v. Marshall, which holds 
 Collins V. Russell, 184 N. Y. 74. that curtesy attaches though seisin 
 
 be prevented by adverse possession. 
 
208 Estates by the Maeital Rioht and Cuktbsy. 
 
 Where real property is conveyed by deed, either under the 
 Statute of Uses or under the modem statutes, the delivery 
 of the deed causes seisin to pass to the wife without entry, 
 so that in such cases she becomes actually seised without en- 
 tering or taking possession.*^ So, also, where the property 
 is in the possession of a tenant for years when she takes by 
 will or inheritance, she is actually seised without entry, 
 as the possession of the tenant is her possession for the pur- 
 poses of seisin." Furthermore actual entry is not necessary 
 in the case of wild and uncultivated lands; curtesy attaches 
 though no entry be made by the wife.*" The possession of 
 one tenant in common is the possession of the other, so that 
 if one is in possession the other is seised though she may 
 iiave made no entry, and her husband will be entitled to 
 curtesy.*^ 
 
 As in the case of dower, ownership of a reversion or a re- 
 mainder after a precedent life estate is not sufficient to en- 
 title the husband to curtesy, since seisin is in the life ten- 
 ant, not the wife, she having died before the death of the 
 life tenant." But where a remainder is created after a 
 
 18. Adair v. Lott, 3 Hill (N. Y.) that adverse possession does not pre- 
 
 183; Jackson v. Johnson, 5 Cowen 74, vent curtesy from arising. Collins v. 
 
 97; Carr v. Anderson, 6 App. Div. Russell, 184 N. Y. 74 ; Shores v. Cady, 
 
 (N. Y.) 6. 8 Allen (Mass.) 425; Todd v. Oviatt, 
 
 14. DeGrey v. EicliardBon, 3 Atk. 58 Conn. 174; Orford v. Benton, 36 N. 
 
 469; Jackson v. Johnson, 5 Cowen, H. 395; Watkins v. Thornton, 11 Oh. 
 
 74, 97. St. 367. 
 
 16. In such case, "the possession Where land is devised to or inherited 
 follows the title so as to enable the by a married woman subject to an 
 owner to maintain trespass, and, with outstanding right of dower, and she 
 equal reason, to sustain an estate by dies during the life of the tenant in 
 the curtesy." From opinion in Jack- dower, curtesy attaches to a two- 
 son V. Johnson, 5 Cowen (N. Y.) 74, thirds interest in the land, since she 
 at p. 97, referring to decision in was seised of only a two-thirds in- 
 Jackson v. Sellick, 8 Johns. (N. Y.) tcrest. Even though dower bad not 
 270. actually been assigned until after the 
 
 16. Sterling v. Perlington, 2 Equity death of such married woman^ never- 
 Cas. Abr. 730. thelesa such assignment relates back 
 
 17. This is true in all jurisdictions, to the death of the testator or ance.=i- 
 even in those states where it is held tor, so that by relation the doweress 
 
BlSTH 07 IsauB. 20d 
 
 precedent tenancy for years, curtesy attaches to the remain- 
 der, since the possession of the tenant for years is the pos- 
 session of the remainderman, who is thus actually seised." 
 
 § 127. Birth of Issue. — Issue must he born alive during 
 the life of the mother, capable of inheriting the property 
 in which curtesy is claimed. Evidence sufficient to estab- 
 lish that the child was alive when bom will be enough to 
 satisfy this requisite even though the child die immediately 
 after birth.* If the mother dies in childbirth and the child 
 is given birth through the Caesarean operation thereafter, 
 curtesy does not arise, as the rights of her heirs attach im- 
 mediately on her death, and curtesy must attach during 
 her life.'* The child or children must be capable of inherit- 
 ing the property in question. If they take on the mother's 
 death by purchase and not by descent, curtesy does not arise. 
 For instance, where property was devised to the wife in 
 fee, but in case of her death leaving issue the property 
 should then go to such issue in fee, it was held that the chil- 
 dren took by virtue of the will, as purchasers, and could not 
 by any possibility take by inheritance from their mother 
 as heirs, and therefore the husband of the devisee was not 
 entitled to curtesy.^ 
 
 is seised from that time, in that way (Mass.) 166. In Hunter v. Whit- 
 preventing such married woman from worth, 9 Ala. 965, the court held that 
 being seised in the one-third part set curtesy attaches where the children 
 off as dower. Matter of Cregier, 1 were born before marriage but were 
 Barb. Ch. (N. Y.) 598; Hitner v. Ege, legitimatized by the subsequent mar- 
 23 Pa. St. 305; Mettler v. Miller, riage of their parents. 
 129 111. 630. 2. Co. Litt. 29b; 2 Bl. Com. 127; 
 
 18. 4 Kent Com. 29; Taylor v. Marsellis v. Thalhimer, 3 Paige (N. 
 
 Gould, 10 Barb. (N. Y.) 388; Jack- Y.) 35, at p. 42; Matter of Wynne, 1 
 
 Bon V. Johnson, 5 Cowen (N. Y.) 74; Lansing (N. Y.) 508, at p. 513. 
 
 Landon v. Townsend, 129 1?. Y. 166. 3. Barker v. Barker, 2 Simons 
 
 1. 2 Bl. Com. 128; Co. Litt. 29b; 249. The only other situation in 
 
 Heath v. White, 5 Conn. 228; Jack- which this question can arise is in the 
 
 son V. Johnson, 5 Cowen (N. Y.) 74, case of a fee tail special to a woman 
 
 at p. 95; Cleghorn v. Burrows, 2 Ch. and her heirs by a certain husband, 
 
 497; Comer v. CI- araberlain, 6 Allen naming him. In such case if such 
 
 14 
 
210 Estates by the Marital Right and Ctjetest. 
 
 It is not necessary that these requisites should concur 
 at the same time. If a child be bom at any time during the 
 marriage the husband's curtesy attaches to any property of 
 which the wife was seised during coverture, and if after the 
 death of the child the wife becomes seised of other property, 
 curtesy attaches at once.* All that is necessary is that at 
 some time during the marriage the wife was seised, and that 
 at any time during the marriage a child was born alive. 
 
 § 128. Curtesy in Estates Tail, Conditional Fees, Estates 
 Upon Limitation and Conditional Limitation. — Curtesy at- 
 taches to estates in fee tail exactly as does dower, and the 
 termination of the estate tail on the death of the wife with- 
 out issue surviving does not defeat her husband's curtesy." 
 The doing away with estates tail by statute in most juris- 
 dictions has made this rule of little practical importance at 
 the present time.' In the case of estates upon condition, 
 limitation and conditional limitation the rules are the same 
 as with dower; that is, the termination of an estate upon 
 condition by enforcement of forfeiture for breach of condi- 
 tion, and the termination of estates upon limitation by the 
 happening of the event on which the estate was limited, 
 also brings to an end the husband 's curtesy in such estate.'' 
 But the termination of estates upon conditional limita- 
 
 husband dies and the wife, tenant in been enacted doing away with the 
 
 tail, marries again, her second bus- requisite of birth of issue. See Dubs 
 
 band is not entitled to curtesy in the v. Dubs, 31 Pa. St. 154; 2 Mich. 
 
 land so held by his wife, since the Comp. L. Ch. 89, § 30; Ohio Eev. 
 
 issue of the marriage could not take Stat. § 4176; Neb. Comp. Stat. Ch. 
 
 it by inheritance. The doing away 23, § 29. 
 
 with estates tail in most jurisdictions 5. Holden v. Wells, 18 R. I. 802; 
 
 has made the rule of little practical May v. Mayer, 8 Watts (Pa.) 203; 
 
 importance. Co. Litt. 29b; 2 Bl. Com. 4 Kent's Com. 32. 
 
 128. G. See Estates Tail, ante. 
 
 4. Co. Litt. 30a; Corner v. Cbamb- 7. 1 Soribner, Dower, 391; 4 Kent 
 
 erlfiin, 6 Allen (Mass.) 166; Jacl^son Com. 33; Hatfield v. Sneden, 54 N. Y. 
 
 V. Johnson, 5 Cowen (N. Y.) 74, at p. 280; McMasters v. Ncglcy, 153 Pa. 
 
 95; Hunter v. Whitworth, 9 Ala. 965. St. 303. 
 
 In sei'cral st.ites statutes have 
 
OuETEST IN Equitable Estates. 211 
 
 tion does not affect tlie husband's curtesy.^ What was 
 said in connection with this subject in its application to 
 dower applies with equal force to curtesy, and the cases 
 there cited are equally in point on the above proposition.* 
 
 § 129. Curtesy in Equitable Estates.— Equity follows the 
 law in recognizing curtesy as an incident of trust estates in 
 fee. If all the elements are present which would entitle the 
 husband to curtesy in a similar legal estate, he is entitled 
 lo curtesy in the trust estates of his wife.^ As was said 
 in connection with the discussion of dower in trust estates,^ 
 there is no such thing as seisin in the owner of an equitable 
 •estate, seisin being in the trustee ; but the ownership of such 
 -estate, carrying with it the right of enjoyment of the in- 
 come therefrom through the trustee, is the equivalent in 
 •equ.ity of seisin at law, sufficient to give rise to curtesy. 
 If the wife is seised in that sense, and the further re- 
 quisites of a valid marriage and the birth of issue are pres- 
 ent, the right of curtesy attaches as in the case of legal 
 estates. 
 
 If, however, the trust estate is given to the wife for her 
 sole and separate use, to be held and enjoyed by her and 
 her heirs free from any estate or interest in the husband, 
 ■and therefore free from the estate of curtesy, curtesy does 
 not arise therein, since it would be contrary to the express 
 terms of the trust.* But, in order that curtesy shall not 
 arise the intention to exclude it must be clearly expressed 
 in such case. Therefore, if the trust is for the sole and 
 separate use of the wife, " separate and apart from her 
 
 8. Buckworth v. Thirkell, 3 Bos. & Richardson v. Stodder, 100 Mass. 
 P. 653; Hatfield v. Sneden, 54 N. Y. 538; Tillinghast v. Bailey, 7 R. I. 
 280; McMasters v. Negley, 152 Pa. 383; Luntz v. Greve, 103 Ind. 173; 
 St. 303; Webster v. Ellsworth, 147 Meacham v. Bunting, 156 111. 586. 
 Mass. 602. 2. § 99, ante. 
 
 9. § 106, ante. 3. Ryler v. Cloud, 14 Pa. St. 361; 
 1. Gushing v. Blake, 30 N. J. Eq. Monroe v. Van Neter, 100 111. 347, and 
 
 «89; Ege v. Medler, 82 Pa. St. 86; cases in note 1 preceding. 
 
212 Estates by the Maeital Eight and Cuetest. 
 
 hnsband," though the husband is excluded from curtesy 
 in the land in question during her life he will neverthe- 
 less be entitled to curtesy on her death, the provision re- 
 ferred to excluding curtesy or the estate by the marital 
 right, as the case may be, during her life only.* Where a 
 legal estate is conveyed to a wife for her sole and separate 
 use, free from curtesy by the express terms of the deed, 
 there is no question that at law such attempt to prevent 
 curtesy from attaching would be void as an attempt to 
 take away a legal incident of the estate. There is authority 
 sustained by strong reasoning for the position that equity 
 will not interfere in such case; that equity must recognize 
 the rule at law and enforce it.^ The prevailing view, settled 
 as law in most states where the question has arisen, how- 
 ever, is that curtesy will not arise as a beneficial right in 
 such a case ; that the husband takes the legal title as tenant 
 in curtesy under the rule at law, but he takes it impressed 
 with a trust in equity to hold it for the sole and separate 
 use of the wife, her heirs or assigns, in accordance with 
 the terms of the deed or will by which the wife took title.^ 
 
 § 130. Curtesy in Other Interests and Estates. — Mort- 
 gaged property is subject to curtesy, the husband's inter- 
 est attaching to the property subject to the mortgage, or 
 to the equity of redemption, of which his wife is seised. 
 The same general rules exist as in the case of dower in mort- 
 gaged property: (a) where the wife takes title subject to a 
 mortgage, and (b) gives back a purchase money mortgage 
 
 4. Gushing v. Blake, 30 N. J. Eq. Pool v. Blakie, 53 111. 495; Monroe ▼. 
 689; Richardson v. Stodder, 100 Mass. Van Meter, 100 111. 347; McBreen v. 
 538; Ege v. Medlar, 82 Pa. St. 86; McBreen, 154 Mo. 323; Haight T. 
 Tiilinghast v. Dailey, 7 R. I. 383; Ilall, 74 Wis. 152. See, also, Arm- 
 Meacham v. Bunting, 156 111. 586; strong v. Rose, 20 N. J. Eq. 109, dieta 
 Luntz V. Greve, 102 Ind. 173. stating above rule, contra to MuUany 
 
 5. Mullany v. Mullany, 4 N. J. Eq. v. MuUany, 4 N. J. Eq. 16; Riley v. 
 16; Ames Cas. Trusts, 383, quoting Pviley, 25 Conn. 154, dicta to same 
 Lewis on Trusts, 829. effect. 
 
 8. Fears v. Brooks, 12 Gra. 195; 
 
Curtesy in Other Interests and Estatibs. 213 
 
 on taking titleJ As the wife conld not convey or mortgage 
 her property at common law without her husband joining 
 therein, a deed or mortgage executed by her alone was 
 ■^oid, and in no way affected her husband's curtesy.* 
 
 Curtesy does not attach to estates for life or estates pur 
 autre vie for the same reasons that prevent dower from at- 
 taching to sxich interests, viz.: they are not estates of in- 
 heritance, and are not capable of being inherited as free- 
 hold estates by the children of the marriage.® 
 
 An estate in joint tenancy in the wife gives no estate of 
 curtesy to the husband, since her interest is not one which 
 will of necessity pass by inheritance to her children on her 
 death intestate. If she should die before her co-tenant her 
 interest passes by survivorship to such co-tenant.*" As in 
 the case of dower, however, curtesy attaches to a tenancy in 
 common, since the estate will pass by inheritance to the 
 children of the marriage." 
 
 The husband of a mortgagee or trustee is not entitled to 
 curtesy since his wife is not beneficially seised. The legal 
 title vests in a mortgagee only by way of security for the 
 mortgage debt, and as incident thereto, and in a trustee 
 only for the purposes of administering the trust in favor of 
 the beneficiaries who are the real owners of the property.*' 
 
 Where land is taken under the power of eminent domain 
 the husband's curtesy in the land ceases, but attaches to the 
 proceeds awarded therefor." 
 
 7. Hart v. Chase, 46 Conn. 207; De 10. Co. Litt. 183a; § 101, ante, aa 
 Camp V. Crane, 19 N. J. Eq. 166. to analogous case of dower. 
 
 See, also, § 97, ante, as to dower in 11. Sterling v. Penlington, 2 Eq. 
 
 mortgaged property, and § 98, ante, Cas. Abr. 730; Wass v. Bucknam, 38 
 
 as to dower subject to purchase Me. 356; § 101, ante. 
 
 money mortgages. 12. Chew v. Commr's, etc., 5 Rawie 
 
 8. Armstrong T. Rose, SO N. J. Eq. (Pa.) 160; Ames Cas. Trusts, 374, 
 109; Middleton v. Stewart, 47 N. J. note; 4 Kent Com. 33. See § 100, 
 Eq. 293. For effect of married note 10, ante. 
 
 woman's acts, see § 131, post. 13. In re Camp, 136 N. Y. 377; 
 
 9. § 103, ante. Houg'iton v. Hapgood, 13 Pick. 154. 
 
214 Estates by the Marital Eight and Cuetest. 
 
 § 131. Curtesy as Affected by Married Woman's Acts. — 
 In England and in most if not all states, statutes have 
 been enacted giving to married women control over their 
 property, real and personal, and taking away from the hus- 
 band the right to the possession and enjoyment of her land, 
 the right to convey or encumber it in any way, and taking 
 away the right of the husband 's creditors to levy upon her 
 property. In England, New York, Michigan, and some 
 other states the wife is given the right to hold and enjoy^ 
 convey and devise her real property as though unmarried. 
 In these jurisdictions it is held that curtesy initiate is done- 
 away with as a right, and is necessarily reduced to a mere 
 status, like that of a presumptive heir, the husband being 
 entitled to curtesy only in such real property of which the 
 wife continues to be seised at the time of her death, not 
 having disposed of it by will. Since she is given the right 
 to enjoy, convey and devise her land as though unmarried,, 
 she may do so unaffected by curtesy. Therefore curtesy 
 initiate does not exist, and curtesy arises for the first time' 
 on her death, but only in such land as she has not conveyed 
 to others during her life or devised by will on her death. 
 In other words a new requisite of curtesy is introduced — 
 that the wife must die intestate as to the lands in question 
 and seised thereof at the time of her death.^ 
 
 In New Jersey, Delaware, Virginia, Rhode Island and 
 possibly some other states, the courts construe the married 
 woman's acts in force in those states as giving to the wife 
 the exclusive right to possess and enjoy her own land and 
 the income therefrom, and the right to convey it during 
 her life, and if such conveyance is made by her in legal form 
 the husband's curtesy is defeated. In fact, in these states 
 as in the first class of states above referred to, curtesy 
 initiate is reduced from a life estate in the husband to a 
 mere possibility similar to the possible right of a presump- 
 
 1. Hope V. Hope, 3 Ch. (Eng.) 336; Y. 71; Thurber v. Townsend, 23 N. Y. 
 Hatfield v. Sneden, 54 N. Y. 280; Al- 516; Kingsley v. Smith, 14 Wis. 390; 
 bany Co. Sav. B. v. MoCarty, 149 N. Long v. Marvin, 15 Mich. 60. 
 
CuETEST AS Affected bt Married Woman's Acts. 215 
 
 tive heir. On tlie wife's deatt, however, curtesy attaches 
 as at common law, unaffected by any will which she may 
 have executed.'^ The same rule seems to prevail in Con- 
 necticut, though the effect of a conveyance by the wife is 
 not clearly laid down in the cases.® In New Jersey and 
 Virginia and several other states the question is further 
 complicated by statutes which require the husband to join 
 with the wife in any conveyance of her realty, or to consent 
 thereto in writing, otherwise the conveyance is void.* It is 
 clear, however, that these statutes do not save his curtesy 
 initiate ; they merely give him the power to prevent aliena- 
 tion by the wife so that she will continue seised of the land 
 till her death when his curtesy attaches. 
 
 In Massachusetts the earlier statutes were construed as 
 changing curtesy initiate into an inchoate interest in the 
 husband, like inchoate dower, but extending to all of his 
 wife's real property, and ripening into a life estate therein 
 on her death, which interest, like dower, remained un- 
 affected by any conveyance or devise made by the wife. 
 The later statutes have reduced curtesy to a life estate in 
 one-third of the wife 's realty only, and have made it exactly 
 the same as dower, though the term, curtesy, is still applied 
 to it.** In Illinois, Ohio, and possibly some other states, 
 curtesy as such has been expressly abolished and in lieu 
 thereof the husband is given dower in his wife's real prop- 
 erty, exactly as she is given dower in his real property, 
 
 2. Porch v. Fries, 18 N. J. Eq. 204; Eq. 293; Moore v. Darby, 6 Del. Ch. 
 Middleton t. Stewart, 47 N. J. Eq. 193; Breeding v. Davis, 77 Va. 639; 
 293; Matter of Folwell, 67 N. J. Kq. Cook v. Walling, 117 Ind. 9; Cole v. 
 570, 574; Moore v. Darby, 6 Del. Ch. Van Riper, 44 111. 58. 
 
 193; Breeding v. Davis, 77 Va. 639. 5. Doyle v. Am. Fire Ins. Co., 181 
 
 R. I. Gen. Lavfs (1909), p. 883, § 12. Mass. 139, holding that .such inchoate 
 
 3. Sill V. White, 63 Conn. 430 curtesy is an insura.ble interest be- 
 ( holding that a devise made by wife fore and after the Statutes of 1900, 
 in no way aflFected curtesy) ; Plumb c. 450, and Statutes of 1901, c. 46. 
 V. Sawyer, 21 Conn. 351. See, also, cases therein cited and dis- 
 
 4. Porch V. Fries, 18 N. J. Eq. cussed. 
 804; Middleton v. Stewart, 47 N. J. 
 
216 Estates by the Maeital Right and Cttetest. 
 
 this being substantially equivalent to the Massachusetts 
 provision, though the husband's interest is still called cur- 
 tesy there.® In Pennsylvania the Married "Woman's Act has 
 been construed as taking away from the husband the power 
 to convey his estate by the curtesy initiate, nor can it be 
 taken under execution by his creditors, nor is it subject to 
 the lien of a judgment for his separate debt, but with these 
 modifications curtesy initiate and consummate exist as at 
 common law, unaffected by any conveyance or will made 
 by the wifeJ The court holds that curtesy initiate in Peim- 
 sylvania is something more than the inchoate right of dower, 
 as the husband to a degree has the enjoyment of the initiate 
 estate which his wife cannot defeat by deed or mortgage.^ 
 In New Hampshire common law curtesy has been expressly 
 reaffirmed by statute * and the Vermont statute would seem 
 to have the same effect, with the modification that on the 
 death of his wife the husband takes one-third of her real 
 property in fee." 
 
 In Maine, Indiana, Kansas, Georgia, Florida, and per- 
 haps other states, curtesy has been abolished by statute, 
 provisions being made for the husband by the statute of 
 descent.^ ^ 
 
 A detailed account of the married wom&n's acts in the 
 different states, and their effect on curtesy, and of the 
 statutory changes which have been made is beyond the 
 scope of this treatise. The foregoing will give in out- 
 line the general nature of the statutory changes involved. 
 
 6. Jackson V. Jackson, 144 111. 874 8. See preceding note. 
 (holding that under married woman's g. Public Stat. N. H., p. 840, $ 9. 
 act of 1861, and prior to the act of .q -tr. q. . , oejo 
 
 1874, abolishing curtesy and substi- • • •» 
 
 tuting dower, the husband had no in- "• ^^- ^«^- ^^*- P- «85' « «; 
 
 terest or estate in his wife's land ^"™ ^- ^"'^- S'^*- <1«°8). p. 
 
 during her life); Ohio Gen. Code ^°^^- See statutes of other states un- 
 
 (1910), § 8614, § 8606. ^^'^ heading "Curtesy," "Descent" 
 
 7. Commissioners v. Poor Dist., 169 ^ S*'"" ^"»- ^t- ^. 5§ 3808, 3301. 
 Pa. St. 116, at 133, 134. 
 
CtTETEST AS ApFECTKD BY HaEEIED WoMAN's AoTS. 217 
 
 In every case of curtesy initiate which had vested as a 
 life estate in the husband before the enactment of the 
 statutes destroying the right, the husband's interest is 
 protected by the provision of the constitution which forbids 
 the impairment of vested property rights, and is there- 
 fore unaffected by such statutes." 
 
 13. Hitz y. Nat. Metropolitan Bank, 
 111 U. S. 723; Jackaon y. JacksM, 
 144 HL 274. 
 
218 Eights and Liabilities of Life TENAwra. 
 
 CHAPTER VL 
 Rights and Liabilities of Life Tenants. 
 
 § 132. Life Tenant and Reversioner or Remainderman.— 
 
 The nature of a life estate, and the relation existing between 
 a life tenant and the owner of the fee in reversion or remain- 
 ders, have been discussed and explained in foregoing chap- 
 ters of this work. We have seen that a life tenant is the 
 corporeal owner of the land as such during his life, and 
 entitled as such owner to its exclusive possession and en- 
 joyment, having the right to convey the interest which he 
 owns like any other owner of an estate in land; that the 
 reversioner or remainderman is the owner of the balance of 
 the fee over and above the life estate, and that the remain- 
 derman's interest or estate is incorporeal, in that it carries 
 with it no present right to the possession or enjoyment of the 
 land held by the life tenant, but is a future estate, the right 
 of enjoyment and ownership of the land as such being post- 
 poned until the life estate comes to an end.^ We have 
 learned also that because the reversioner or remainderman 
 will become the owner of the land on the termination of 
 the life estate the life tenant must not injure or destroy 
 the estate of the reversioner or remainderman by commit- 
 ting waste. Since the doctrine of waste applies to all es- 
 tates or tenancies not of inheritance other than tenancies 
 at will that subject has been separately treated hereto- 
 fore as one of the incidents of ownership.^ Life tenants 
 are entitled to emblements, since their estates are of indefi- 
 nite duration; but as the right of emblements attaches to 
 all estates of indefinite duration, this right has also been 
 treated in Chapter 11, herein, on Nature m d Incidents of 
 Ownership of Land.^ Having considere^Sl^Bltates in gen- 
 
 1. §§ 3, 88, ante. 3. %i 31-3 
 
 t. § 60, et seq., ante. 
 
Appoetionment of Eents. 219 
 
 eral, and estates for life in dower and curtesy and the special 
 incidents attaching thereto, there remains for our con- 
 sideration certain rights and liabilities of life tenants on 
 the one hand, and reversioners and remaindermen on the 
 other, in their relation to each other as owners of successive 
 estates in the same parcel of land. 
 
 § 133. Apportionment of Rents. — Where a life tenant has 
 leased the land to a tenant for a term of years, or has taken 
 the property subject to such a lease made by the former 
 owner from whom he derived his life estate, if the life 
 tenant dies before the lease expires and between two rent 
 days, his personal representative could not, at common law, 
 recover rent for the period intervening between the time 
 the last payment accrued and the death of the life tenant. 
 The reason was that rent is not earned from day to day for 
 the use of the property, like interest, but becomes due only 
 on the days fixed for its payment, whether annually, semi- 
 annually, quarterly or monthly as the case may be. There- 
 fore in a case of a lease made before the life estate arose, 
 where the rent is payable quarterly at the end of each 
 quarter, and the life tenant dies a month or a week before 
 the end of any quarter, the reversioner or remainderman 
 would be entitled to the rent for the entire quarter, the 
 personal representative of the deceased life tenant being 
 entitled to no part thereof. So, also, where the lease was 
 made by the life tenant, it necessarily came to an end on his 
 death, and his representative could not recover rent for 
 so much of the quarter as had elapsed before the life tenant 's 
 death, the tenant for years beir i^'-eed from all obligation 
 to pay such rent.* By statute ugland and injmost of 
 
 the states it is now expressly^ ed that the rent^hall 
 be apportioned b ween the pei epresentativ' !■ the 
 
 4. Ex parte Cook. Vma. 501; 
 
 Wood T. Partridge, Ij ^8, 493; 
 
 Maisliall V. M sely, 2. SO. 
 
220 Eights and Liabilities of Life Tenants. 
 
 life tenant and the reversioner or remainderman in all cases 
 where the life tenant received his estate subject to the lease, 
 such representative receiving such proportion of the rent 
 for the quarter or other rental period as corresponds to the 
 continuation of the life estate during the period for which 
 rent is paid. Thus, if the life tenant dies a month before 
 the end of the quarter, his representative will receive two- 
 thirds of the rent for the quarter, and the remainderman 
 the other third. In all cases where the lease was made by 
 the life tenant, and therefore is brought to an end by his 
 death, the statutes provide that his representative may 
 recover a proportionate part of the rent for the actual time 
 elapsing up to the death of the life tenant.' 
 
 § 134. Effect of Attempt to Convey Fee by Life Tenant.— 
 
 At common law an attempt on the part of a life tenant to 
 convey an estate in fee resulted in a forfeiture of his life 
 estate, the purchaser taking nothing, and the reversioner or 
 remainderman acquiring an immediate right to enter and 
 enjoy the land. This was based on the feudal notion that 
 by so doing he renounced the feudal relation between him 
 and his lord, the alienation amounting to a wrongful dis- 
 seisin, in that the seisin would be transferred to one who 
 would hold adversely to the reversioner or remainderman. 
 This disseisin gave to the reversioner or remainderman an 
 immediate right to enter or recover the land by action. 
 
 This rule applied only to common law conveyances involv- 
 ing an immediate transfer of seisin, viz. : by feoffment with 
 livery of seisin, fine or common recovery.® It did not apply 
 
 5. 2 Geo. II, c. 19, § 15; 4 Wm. and reversioner or remainderman in 
 
 IV, c. 23; 33 & 34 Viet. c. 35; N. Y. such case, the provision of the Real 
 
 R. P. Law, § 222; N. Y. Code of Civ. Property Law being limited to leases 
 
 Pro., § 2720 (covering case of lease made by the life tenant). Stim. Am. 
 
 m;ide by former owner subject to Stat. L., §§ 2037, 2028. 
 
 which life tenant took his interest, 6. Oo. Litt., §§ 251, 252; 2 Bl. Com. 
 
 and providing for an apportionment 374, 275; Koltenbrock t. Cracraft, 30 
 
 between life tenant's representative Oh. St. 584. 
 
Payment of Taxes. 221 
 
 to conveyances under tlie Statute of Uses either in the form 
 of a deed of bargain and sale or a covenant to stand seised, 
 since such deeds pass only the interest of the life tenant, 
 and do not disturb the estate of the reversioner or re- 
 mainderman, there being no transfer of seisin by livery or 
 other act of the tenant for life, his life estate and seisin 
 necessary to support it passing only by operation of the 
 statute^ The modem statutory deed, in no way involving 
 livery of seisin, passes only the estate of the grantor, and 
 therefore the rule does not apply to such conveyances. As 
 the ancient common law conveyances have long since been 
 obsolete, it follows that the rule has no longer any practical 
 application, such attempted alienation of a fee resulting in 
 the transfer of the life estate only.^ The rule has been 
 ■expressly abolished in England, New York, and other 
 states by statute, or has been declared by the courts to be 
 no longer applicable.® 
 
 § 135. Pajrment of Taxes. — The life tenant must pay all 
 taxes out of the income derived from his estate. Taxes 
 are a current charge which must be met from year to year 
 or the property will be sold for their non-payment. Since 
 taxes are a current charge incident to the present enjoy- 
 ment of his estate on the part of the life tenant, if follows 
 that he must pay them out of the rents and profits which 
 he receives from the land. He is not given a life estate 
 free and clear of the charges incident to his ownership, 
 but subject thereto. He assumes no personal obligation to 
 pay such taxes, however, which can be enforced against 
 other property of which he may be the owner. He has per- 
 formed his full duty when he has applied the entire income 
 from the property, or its entire rental value, to the dis- 
 
 7. 4 Kent Com. 84; Koltenbrock, 9. 8 & 9 Victoria, c. 106, § 4; N. 
 V. Cracraft, 30 Oh. St. 684; Jackson Y. Real Prop. L., § 247; Koltenbrock 
 ▼. Mancius, 3 Wend. (N. Y.) 357. v. Cracraft, 30 Oh. St. 584. 
 
 8. See preceding note. 
 
222 Rights and Liabilities of Life Tenants. 
 
 charge of this and like charges. If the rents and profits 
 are insufficient one year, and are more than sufficient during 
 any succeeding year, to pay the current taxes, he must 
 apply the surplus to the payment of the back taxes still 
 due for the year when the income from the land was insuffi- 
 cient. His duty is to apply the entire income received by 
 him during the continuance of his life estate, if necessary, 
 to the payment of taxes accruing during that time, irrespec- 
 tive of when during that time the taxes accrued or the 
 rents and profits were received.^ 
 
 The remedy of the reversioner or remainderman is to 
 apply for a receiver who will collect the rents and profits and 
 apply them to the payment of taxes in arrear.^ If the re- 
 mainderman or reversioner pays the taxes himself, in order 
 to protect his estate from a tax sale, it would seem on prin- 
 ciple that he should have an action against the tenant for 
 life for money paid to the use of the tenant, but the weight 
 of authority seems to be that no such action will lie, the 
 remainderman being able to protect himself by bidding in 
 the property at the tax sale.^ 
 
 In the case of two successive life estates, followed by 
 
 1. Cairns v. Chabert, 3 Edw. Ch. dorruan, the interest of the life ten- 
 (N. y.) 313; Sidney v. Ely, 90 N. Y. ant would be charged with the amount 
 257; Matter of Corbin, 101 App. Div. of such payment. To the same effect, 
 (N. Y.) 25 at 28; Murch v. Smith viz.: that on foreclosure the share of 
 Mfg. Co., 47 N. J. Eq. 193; Hagan v. the life tenant In the surplus is 
 Varney, 147 111. 281. chargeable with unpaid taxes. See 
 
 2. Cairns v. Chabert, 3 Edw. Ch. Fordick v. Lyons, 38 App. Div. (N. 
 (N. Y.) 313; Sage v. City of Glovers- Y.) 608. 
 
 ville, 43 App. Div. (N. Y.) 345; 3. Burhans v. Van Zandt, 7 N. Y. 
 
 Murch V. Smith Mfg. Co., 47 N. J. 523; Foley v. Kirk, 33 N. J. Eq. 170; 
 
 Eq. 413. Watkins v. Green, 101 Mich. 493; 
 
 In Sidney v. Ely, 90 N. Y. 257, it Dunn v. Snell, 74 Me. 32. In Sage 
 
 was held that where the mortgagee v. City of Gloversville, 43 App. Div. 
 
 paid taxes left unpaid by a life ten- (N. Y.) 245, it is held that a receiver 
 
 ant, he had a right to add the amount appointed on the application of the 
 
 of the payment to the mortgage debt, remainderman may reimburse the re- 
 
 The court stated that in such case, as niainderman out of the rents and 
 
 between the life tenant and remain- profits for ta?:cs paid by him. 
 
Assessments foe Permanent Impeovbments. 223 
 
 a remainder in fee, each life tenant must pay taxes accruing 
 during the continuance of his estate. The second tenant 
 for life is not obliged to pay taxes accruing during the first 
 life estate.* 
 
 § 136. Assessments for Permanent Improvements. — 
 Municipal assessments made for permanent street improve- 
 ments, such as opening a street, laying sidewalks, putting 
 in a sewer and the like, and becoming a lien against the 
 land benefitted, are apportioned between life tenant and 
 remainderman. Such an assessment is not a current charge, 
 to be met regularly out of the income from the property, as 
 an incident of its enjoyment, like taxes, but is a charge to 
 be paid once and for all, for an improvement of a permanent 
 kind which enhances the value of the reversion or remain- 
 der as well as of the life estate.* The apportionment is 
 made by dividing the assessment in proportion to the value 
 of the estate of each. As a practical matter this has gen- 
 erally been done by charging the life tenant with interest 
 on the amount of the assessment during his life, the rever- 
 sioner or remainderman paying the principal, or if the 
 assessment is paid at once, by charging the life tenant with 
 the present value of such interest annually for the probable 
 duration of his life in accordance with the mortality tables.® 
 
 Improvements made voluntarily by a tenant for life give 
 him no claim for contribution from the reversioner or re- 
 mainderman.^ But where property is held in trust for the 
 
 4. Murch V. Smith Mfg. Co., 47 N. 6. Chamberlain v. Gleason, 163 N. 
 
 J. Eq. 193, and cases therein cited, Y. 214; Cogswell v. Cogswell, 2 Edw. 
 
 holding that where a life estate is Ch. (N. Y.) 231; Cairns v. Chabert, 
 
 conveyed the grantee takes it subject 3 Edw. Ch. 312; Kocher v. Kocher, 
 
 to the payment of unpaid taxes 56 N. J. Eq. 545. 
 
 which accrued before the conveyance. Where the improvement is tempo- 
 
 6. Chamberlain v. Gleason, 163 N. rary, benefiting the life tenant only, 
 
 Y. 314; Pratt V. Douglas, 38 N. J. Eq. the entire charge falls upon the lite 
 
 516, 541; Plympton v. Boston, 106 tenant. Wordin's Appeal, 71 Conn. 
 
 Mass. 544; Bowen v. Brogan, 119 631; Hitner v. Ege, 23 Pa. St. 305. 
 
 Mich 218. 7. Matter of Pollock, 3 Eedf. Surr. 
 
224 Eights and Liabilities or Life Tenants. 
 
 benefit of one person for life, and for the benefit of remain- 
 dermen on the death of the life tenant, if improvements 
 are made by the life tenant with the consent of the trustees 
 which enhance the value of the property, the life tenant 
 wHl be allowed the increased amount which the property 
 brings in an accounting made by the trustees. This is in 
 accordance with an allowance for improvements to the 
 extent that the property is increased in value when made 
 by one of two or more tenants in common in a partition in 
 equity of the property so improved. Equity makes the 
 allowance because the additional amount secured results 
 entirely from the improvement, and should go equitably to 
 the person who made it, the remaindermen being in no way 
 injured since they get their remainder as though no im- 
 provement had been made. This is based on the maxim that 
 he who comes into equity must do equity.^ 
 
 § 137. Insurance. — In the ordinary case of a legal life 
 estate with a remainder or reversion thereafter, each has a 
 definite estate which he may or may not insure as he pleases 
 
 (N. Y.) 100; Thomas v. Evans, 105 be made for improvements erected in 
 
 N. y. 601; Stevens v. Meleher, 158 good faith by one having a limited 
 
 N. Y. 551; Sohier v. Eldredge, 103 interest in the property improved, 
 
 Mass. 345; Datesman's App., ]27 Pa. equity will require that the person 
 
 St. 348; Hogan v. Varney, 147 111. making the improvements be allowed 
 
 8?1. therefor, not to the extent of their 
 
 Completion of a building by a life cost, but to the extent of the addi- 
 tenant started by the former owner in tional value which they add to the 
 fee will give him the right to con- property so improved, as a condition 
 tribution therefor from the remain- of granting relief in equity to the 
 derman or reversioner, on the same other parties interested in the prop- 
 basis of computation as in the case of erty. This principle applies to im- 
 assessments for permanent street im- provements made by life tenants 
 provements. Parsons v. Winslow, 16 under such circumstasces as well as 
 Mass. 361; Sohier v. Eldredge, 103 to improvements made by tenants in 
 Mass. 345. common and others in a similar posi- 
 
 8. Stevens t. Meleher, 153 N. Y. tion. Plimpton v. Plimpton, 18 Cush. 
 
 551. In any case arising in equity (Mass.) 458; Barrett v. Strade, 73 
 
 where on equitable principles justice Wis. 385. 
 and equitj require that an allowance 
 
PAYMENT' OIT LsTTEEEST ON MoKTGAGES. 225 
 
 against loss by jfire. There is no duty imposed upon the 
 life tenant to insure for the benefit of the reversioner or 
 remainderman, nor is there any such duty imposed on the 
 remainderman or reversioner to insure for the benefit of the 
 life tenant.' But in the case of property held in trust for 
 the benefit of a tenant for life, with a remainder in fee in 
 another, the trustee may insure the property to the full 
 fee value for the benefit of the beneficiaries for life and 
 in remainder. In such case he may charge the beneficiaries 
 for life and in remainder with the cost of such insurance, 
 charging each with his pro rata share." In a case where 
 life estate and remainder are both subject to a mortgage, 
 and the mortgage requires that the premises be kept in- 
 sured to the amount thereof for the benefit of the mortgagee, 
 the life tenant is chargeable with the entire cost of insur- 
 ance taken out as required by the mortgage, as it is a cur- 
 rent charge incident to the mortgage, which, like interest, 
 must be paid by the life tenant pursuant to his general duty 
 tb keep down encumbrances.^ 
 
 § 138. Payment of Interest on Mortgages and Other In- 
 cumbrances. — Where real property is granted or devised 
 to a tenant for life subject to a mortgage or other lien, with- 
 out express provision covering the payment of interest, the 
 life tenant must pay interest as it accrues on such mortgage 
 or incumbrance. It is not intended that the life tenant shall 
 hold the property for life free of the mortgage, which would 
 be the stituation if he was not compelled to pay interest 
 thereon. The purpose is to give him a life estate, subject to 
 the mortgage, viz. : a life estate in the equity of redemption. 
 Such interest, like taxes, is a current charge which must be 
 paid every year or half year in order that the life estate may 
 continue and may not be ended by foreclosure, and must bo 
 
 9. Stevens v. Melcher, 152 N. Y. 10. Stevens v. Melcher, 153 N. Y. 
 
 851; Peck v. Sherwood, 56 N. Y. 615; 551, and authorities cited therein. 
 Kearney v. Kearney, 17 N. J. Eq. 59. 1. Stevens T. Melcher, 153 N. Y. 
 
 551. 
 
 15 
 
2ii6 EiGitTS AND Liabilities of Life Tekants. 
 
 paid out oi' the rents and profits derived from the land by 
 the life tenant. The life tenant is entitled only to the net 
 income after all such current charges have been paid.* The 
 principal must be paid by the remainderman; but if the 
 remainderman pays off the mortgage when it falls due he is 
 subrogated to the position of the mortgagee and may collect 
 the interest from the life tenant during his life. The pay- 
 ment of the mortgage debt by the remainderman or rever- 
 sioner and the satisfaction of the mortgage is for the benefit 
 of the remainderman or reversioner and not for the purpose 
 of increasing the life estate from an estate in the property 
 subject to the mortgage, or in the equity of redemption, to 
 ;m estate in the property free of the mortgage lien. There- 
 fore equity applies the doctrine of subrogation, subrogating 
 or transferring the remainderman or reversioner to the 
 position of the mortgagee, and treating the mortgage, by a 
 fiction, as still in existence, for the purpose of preventing the 
 unjust result referred to above from arising, as it otherwise 
 would.^ As the duty of paying the principal of the mort- 
 gage debt on the expiration of the life estate devolves upon 
 the remainderman it follows that if the life tenant pays off 
 the mortgage when it falls due he will be subrogated to the 
 position of the mortgagee in the same way, and will have 
 the right to enforce the mortgage against the remainder- 
 man exactly as the mortgagee could have done, except that 
 the remainderman will be entitled to a deduction from the 
 total amount of the mortgage debt equal to the present 
 value of the interest for the balance of the life tenant's 
 life, computed as an annuity for the probable duration of 
 
 2. Cogswell V. Cogswell, 2 Edw. Cli. 3. Cogswell v. Cogswell, 3 Edw. Oh. 
 
 (N. Y.) 331; Mosely v. Marshall, 23 (N. Y.) 231; Bell v. Mayor, &c. of 
 
 X. Y. 200; Matter of Albertsou, 113 New York, 10 Paige (N. Y.) 49; 
 
 K. Y. 434; Wilcox T. Quimby, 73 Han House v. House, 10 Paige (N. Y.) 
 
 (N. Y.) 534; Thomas v. Thomas, 17 158; Murely v. Marshall, 33 N. Y. 
 
 N. J. Eq. 356, 359; Ivory v. Klein, 54 300; Thomas v. Thomas, 17 N. J. Eq. 
 
 K. J. Eq. 379; Hajan v. Vaniey, 147 356, 359. 
 111. 281. 
 
Payment of Interest on Mortgages. 227 
 
 his life as shown by the mortality tables.* In the case of 
 a trust estate for life, followed by a remainder in fee, the 
 legal title in fee being in a trustee for the benefit of remain- 
 derman and life tenant as beneficiaries, if the trustee pays 
 off a mortgage to which the interests of the beneficiaries are 
 subject, it will be apportioned in the same way, the life 
 tenant being charged with the interest, or the present value 
 thereof for the probable duration of his life, the remainder- 
 man being charged with the balance of the principal." 
 
 The liability of the life tenant to pay interest on such 
 mortgages or liens is in no sense a personal one. It arises 
 out of his holding of the life estate, and extends only to the 
 rents and profits derived from the estate, or its rental value 
 in case the life tenant occupies the premises for his own use. 
 He is obliged to apply all of the rents and profits or rental 
 value, if necessary, to the payment of interest, taxes, and 
 other current charges, but having applied such income, re- 
 ceived during the entire continuance of his estate, there is 
 no personal liability enforceable against his other property, 
 for any deficiency which may remain.® 
 
 4. Bell V. Mayor, &c., 10 Paige (N. 6. See last four preceding notes; 
 Y. ) 49; House v. House, 10 Paige (N. also Murch v. J. 0. Smith Mfg. Co., 
 Y.) 158; Thomas v. Thomas, 17 N. J. 47 N. J. Eq. 193; 4 Kent. Com. 75; 
 Eq. 356, 359; 1 Story Eq. Juris., Pratt v. Douglas, 11 Stew. Eq. (K 
 § 487. J-) 516; Thomas v. Thomas, 2 C. E. 
 
 5. Cogswell V. Cogswell, 2 Edw. Ch. Green (N. J.) 356. Real Property 
 (N. Y.) 831. Law (N. Y.), § 209. 
 
228 Landloed and Tenant. 
 
 CHAPTER Vn. 
 Landlord and Tenant; Estates Less Than Pebbhou). 
 
 A. — Tenancies for Years. 
 
 § 139. Kinds of Estates Less Than Freehold. — Estates 
 less than Freehold include (a) tenancies for years, all ten- 
 ancies for a fixed and certain term, having a definite be- 
 ginning and a definite ending, whether the term be for one 
 month, one year or a thousand years; (b) tenancies of un- 
 certain duration, which will continue indefinitely until 
 brought to an end by act of the parties, including tenancies 
 from year to year, from month to month and from week to 
 week, tenancies at will and tenancies by sufferance. Ten- 
 ancies from year to year, from month to month and from 
 week to week are in all respects like tenancies for a fixed 
 term and subject to the same incidents except that they 
 continue for an indefinite period until brought to an end by 
 notice at the end of one of the successive periods. The 
 holding of the tenant is by the year or by the month or 
 week, and his interest cannot be terminated during the 
 year, month or week, as the case may be, but only at the end 
 of one of such periods, upon the giving of the notice re- 
 quired by law, six months or a half year's notice in the case 
 of tenancies from year to year, a month's notice in the case 
 of tenancies from month to month, a week's notice in the 
 case of tenancies from week to week. Tenancies at wUl 
 may be brought to an end at any time by either party at 
 common law without notice. Tenancies by sufferance are 
 in no true sense tenancies at all. Such a tenancy arises 
 when a tenant, rightfully in possession, holds over after 
 his right to the possession has come to an end, as when a 
 tenant for a year holds over after the expiration of his term. 
 His so-called tenancy amounts only to this, that he is not a 
 trespasser until the landlord enters, or by some equivalent 
 
Development of Estates Less than Freehold. 22ff 
 
 act elects to hold him as trespasser, •upon which he holds 
 as a trespasser. The characteristics and incidents of these 
 different tenancies are fully discussed hereafter.* 
 
 § 140. Development of Estates Less Than Freehold. — ^We 
 have seen that as part of the manorial system under which 
 the land of England was divided, the lord of the manor 
 frequently let a portion of the land within the manor to 
 farmers, as they were termed, men who worked the land 
 and gave in return to the lord a part of the produce result- 
 ing. Feudal tenants holding as freeholders frequently 
 made similar contracts with farmers. These farmers had 
 no estate or interest in the land as such.** If their agree- 
 ment with the lord or freehold tenant was under seal they 
 could maintain an action for breach of covenant against 
 him in case he wrongfully ousted them from possession, 
 but they recovered damages only, not the land of which they 
 had been deprived. If ousted by anyone else they had no 
 remedy at all. During the first half of the thirteenth cen- 
 tury a new writ came into use called the writ of quare ejecit 
 infra termmum, giving a remedy to the lessee against his 
 lord whether the lease was under seal or not, and also a rem- 
 edy against any strangers who might oust him from the 
 land. Under this writ, and also subsequently under the 
 writ of ejectio firmae, a tenant could recover the land itself, 
 not only from the lord but also from any third person wrong- 
 fully entering and ousting him from the possession. There- 
 after such farmers or lessees became tenants having es- 
 tates in the land as against all the world, which they could 
 hold and protect under the law.^ Before " farmers " or 
 
 1. §§ 143-150, et seq., 154, 156, 157, a chattel interest in the land his es- 
 post. tate might be defeated if the lord suf- 
 
 2. § 74, ante. fcred a common recovery, viz.: Per* 
 
 3. Digby Hist. L. Real Property mitted a collusive suit to be main- 
 (5th ed.), 176, 177, S43. tained against him resulting in a 
 
 Since a tenant for years had only judgment giving to the plaintiff titl« 
 
230 Landloed and Tenant. 
 
 tenants acquired tlie right to hold and enjoy against the 
 lord and all the world their leasehold properties during the 
 term of the letting they had no property right of any sort 
 arising out of their holdings except the contractual right 
 to hold the lord in damages for breach of cov^enant in case 
 of ouster by him. This right was, of course, purely per- 
 sonal, was in no sense real property, and passed on the death 
 of the tenant to his personal representative, not to his heir. 
 The interest of the tenant was a purely personal contractual 
 interest, carrying with it no interest in the land. The ten- 
 ant occupied as the bailiff of his lord and his possession 
 was his lord's possession. Of course livery of seisin was 
 not required in the creating of such contractual rights and 
 the incidents involving the relationship of lord and man 
 wore fntively absent. After tenants had acquired the right 
 of ownership in the land during the term, with the right of 
 exclusive possession and enjoyment which they <;ould hold 
 and defend against all the world, including their lord, they 
 were no longer owners of a merely personal contractual 
 right but of an estate in the land, differing from freehold 
 estates intrinsically only in the duration of the estate. But 
 these changes had come about very gradually through the 
 creating and the developing of writs, by which tenants ac- 
 quired remedies as heretofore explained. There was no con- 
 scious formal change, by statute or otherwise, in the nature 
 of tenant's interests. Therefore it was natural that their 
 rights, treated as mere personal contractual rights before 
 these remedies were evolved, should continue to be re- 
 garded as personal property after they had developed into 
 estates. Tenancies for years have, therefore, always been 
 
 and possession to the lajid. This was tenant and had thereupon conveyed 
 
 remedied by the statute, 21 Henry to a third party by feoflment. Under 
 
 VIII, c. 15. the writ referred to in the text the 
 
 The writ of ejectio firmae gave to tenant could not recover in such case 
 
 the tenant a remedy by which he as the feolVee of his lord had not 
 
 could recover the leased property in evicted the tenant. Uigby, 243 (5th 
 
 a case where the lord had ousted the ed.). 
 
DiSTINGUISHBB PEOM FREEHOLD EsTATES. 231 
 
 classed as personal property, but as they are interests iu 
 land they are termed chattels real.* 
 
 § 141. Distinguished From Freehold Estates. — Freehold 
 estates, conaprising life estates, estates pur autre vie and 
 estates in fee tail and fee simple, were the estates of free- 
 holders holding by feudal tenure from their overlord, the 
 relation of lord and man existing between the tenant or 
 vassal and his lord, and all the incidents of the feudal rela- 
 tion attaching. Livery of seisin was essential in the creat- 
 ing and transfer of freehold estates."* The person seised of 
 the property was the person answerable to the lord for the 
 feudal dues and services, and no future freehold estate was 
 valid which would result in putting the seisin in abeyance 
 even for a day. Therefore a freehold estate could not be 
 created to commence at a future day except by way of re- 
 mainder.' Estates less than freehold, beginning as mere 
 contractual rights and developing later into estates in land, 
 were nevertheless still classed as personal property. Ten- 
 ants for years were not freeholders; they did not hold by 
 virtue of feudal tenure, nor did the relation of lord and 
 man in the feudal sense exist between the tenant and his 
 lord. Livery of seisin was not involved in the creation of 
 their estates. Arising originally as mere contractual rights, 
 involving no ownership of the land itself and therefore re- 
 quiring no other formality originally than a contract, parol 
 or under seal, after they had developed into estates they 
 continued to be regarded as of the same nature, and there- 
 fore could be created by parol or in writing without for- 
 mality, until the Statute of Frauds, enacted during the 
 reign of Charles 11, required that leases for over three years 
 should be in writing. For the purposes of seisin under 
 the feudal system the possession of the tenant was his 
 landlord's possession, and wherever the doctrine of seisin 
 
 4. Digby Hist. L. R. P. 213; Brew- 5. See §§ 75, 76, ante. 
 
 ■ter V. HiU, 1 N. H. 350. 6. .See § 238, post. 
 
232 Landlobd and Tenant. 
 
 is material under the modern law the aame mle holds true 
 to this day. A tenancy for years could be created to com- 
 mence at a future day, since the landlord remained seised 
 after as well as before the making of a lease, involving no 
 abeyance of the seisinJ 
 
 § 142. Relation of Landlord and Tenant; Essentials 
 Thereof. — The relation of landlord and tenant involves in 
 every case the existence of an estate in the tenant, whether 
 for a shorter or a longer term, by virtue of which he is owner 
 of the land during the term. A tenant for one year, ten 
 years, or one thousand years is the owner of the land during 
 his term, entitled to its exclusive possession and control 
 just as truly as is a tenant for life or a tenant in fee. There 
 is no fundamental difference, the only distinction in fact 
 being in the duration of the estate. Under the law, for 
 historical reasons stated in the preceding sections, a ten- 
 ancy for years is personal property, subject to the law 
 applying to personalty. But it is nevertheless an estate in 
 land as truly real property in fact as a life estate. A tenant 
 has something more than a mere privilege or license; he has 
 ownership, exclusive and as against aU the world including 
 his landlord, and if this be absent in any disputed case the 
 relationship of landlord and tenant does not exist. Specific 
 illustrations appear in the sections that follow. Ordinarily 
 the relation is created by a lease made by the landlord and 
 delivered to the tenant; the lease is first of all a transfer or 
 conveyance of an estate in the land from the landlord to the 
 tenant. It is also generally a contract containing promises 
 or covenants, the promise or covenant to pay rent being the 
 most important. An express contract, however, is not nec- 
 essarily involved in the relation of landlord and tenant; 
 thus a tenancy for years may be created by will without any 
 reservation of rent and without any of the elements of a 
 contract between the tenant and the devisee of the reversion. 
 
 7. Yo-ing V. Dake, 6 N. T. 463 ; Becar v. Flues, 64 N. Y. 51S. 
 
Eelation of Landloed and Tenant. 23i3 
 
 A leasehold estate may also be created by gift inter vivos, 
 the reservation or payment of rent not being essential.* As 
 illustrating tbe nature of a tenancy for years certain cases 
 involving the essentials of the relation of landlord and ten- 
 ant may be profitably considered. Suppose a tenant leases 
 a building with the land on which it stands for a term of 
 years, and long before the expiration of the term the build- 
 ing, constituting the greater part of the value of the lease- 
 hold interest of the tenant, is destroyed by fire without 
 fault on the part of the tenant. He will nevertheless be 
 compelled to pay rent to the landlord as it accrues, his lia- 
 bility being in no way affected by the fire. His relation with 
 the landlord is not a mere contract for the possession and 
 use of the premises during the term, ownership and domin- 
 ion being retained by the landlord. The landlord performs 
 his part of the contract when he makes the lease and de- 
 livers it to the tenant. From that moment the tenant is the 
 owner of the premises during the term provided for in the 
 lease. They are his to use or lose as the case may be. The 
 rent is not earned by the tenant's use of the premises from 
 
 8. Woodfall, Landl. & Ten. ( 16th tent not a contract, but a conveyance, 
 
 ed.), 133; Averill v. Taylor, 8 N. Y. altliough it maybe a contract to soma 
 
 44; Spielman v. Kliest, 36 N. J. Eq. other extent and considered from soma 
 
 803; Shimer v. Phillipsburg, 58 N. J. other aspect." Austin's Jurisprud- 
 
 L. 508; Becar v. Flues, 64 N. Y. 518; ence (3d ed.), 387. 
 
 Fowler v. Bott, 6 Mass. 68; Tiflfany, That a reservation of rent is not es- 
 
 Landl. & Ten. 1009. ecntial to the validity of a lease, see 
 
 "Eights in rem sometimes arise Co. Litt. 143a; Hooton v. Holt, 139 
 from an instrument which is cajled a Mass. 54; Hunt v. Comstock, 15 
 contract, and are therefore said to Wend. (N. Y. ) 665 (the court stat- 
 ariae from a contract. The instru- ing : " It is true no rent is reserved, 
 ment in these eases wears a double but that is not material to consU- 
 aspcct. or has a two-fold effect. To tute the relation of landlord and ten- 
 one purpose it gives jus in personam ant between the parties'") ; Harris 
 and is a contract, to another purpose v. Frink, 49 N. Y. 24 (in which case 
 St gives jus in rem and is a convey- the court held that a vendee of land 
 ance. When a so-called contract under a parol contract who had bees 
 passes an estate, or, in the language let into possession was a, tenant at 
 of the modern civilians, a right in will, entitled to emblements, though 
 rem, to the obligor, it is to that ex- no rent was to be paid). 
 
234i Landloed and Tenant. 
 
 day to day or from year to year, but such rent is the pur- 
 chase price which the tenant agrees to pay to the landlord 
 for the estate in the land which is transferred to him by 
 the lease, and it follows that his obligation to pay the rent 
 is in no way affected by the destruction of the building, just 
 as the obligation of the purchaser of a chattel which has 
 been sold and delivered to him, to pay therefor would be 
 in no way affected by the subsequent destruction of the 
 chattel.' Statutes modifying this rule, but which in no way 
 change the nature of tenancies are discussed hereafter." 
 
 Suppose a landlord has leased land to a tenant for one 
 year to commence from the first of May thereafter, the lease 
 having been made and delivered on January 1st. In Febru- 
 ary the tenant gives notice that he rescinds the contract and 
 that he will not take the premises or pay rent. The land- 
 lord may recover the rent as it falls due, and he is not 
 obliged to look for another tenant in order to recover dam- 
 ages, nor is he bound to accept another tenant, so that his 
 failure or refusal to let the premises to another tenant for 
 a substantial rent cannot be shown in order to reduce the 
 amount of his recovery against the tenant. By the lease the 
 tenant becomes the owner of the premises for the term as 
 soon as the lease is made and delivered; he may occupy the 
 premises or not as he pleases, but in any event he must pay 
 the rent, which is the purchase price for the estate in the 
 land which he has acquired. The action for rent is in no 
 sense an action for breach of contract in such case; it is an 
 action to recover the purchase price of the leasehold estate 
 in accordance with the promise to pay rent contained in the 
 lease.* 
 
 9. Fowler v. Bott, 6 Mass. 62; at his election quit the premises, 
 Graves v. Berdan, 26 N. Y. 498; Wal- thereby bringing the leasehold estate 
 ton V. Waterhouse, 3 Saund. 428. to an end are discussed in § 165, notes 
 
 10. Statutes in New York and else- 7 and 8, post. 
 
 where providing that on destruction 1. Becar v. Flues, 64 N. Y. 618, 
 
 of the leased premises by fire or other and cases cited, 
 act of the elements the tenant may 
 
Relation of Landloed and Tenant. 235 
 
 The mteresse termini, as it is called, is the interest of 
 the tenant under such a lease before the time fixed for the 
 vesting in possession of his estate has arrived. He is in 
 snch case the owner of a future estate for years in the prop- 
 erty, "which will ripen into actual ownership of the land, 
 giving to the tenant the right to recover it in ejectment as 
 against the landlord or anyone else wrongfully withholding 
 it from him, when the day fixed for the beginning of the 
 tenancy has arrived.^ The tenant 's right to maintain eject- 
 ment against his landlord or against any stranger wrong- 
 fully depriving him of the possession goes back to the very 
 beginning as we have seen, of the relation of landlord and 
 tenant. His right to maintain trespass against the land- 
 lord or anyone else wrongfully entering upon the land, and 
 the liability of the tenant to third persons rightfully on the 
 premises for damages resulting from a dangerous condi- 
 tion existing on the demised land during the term all de- 
 pend on the same principle, viz.: that the tenant is owner 
 of the premises during the term.^ This principle is the key 
 
 2. Whitney v. Allaire, 1 N. Y. 307; to quarry stone therefrom for a. term 
 Becir V. Flues, 64 N. Y. 518. of years, but by the terms of the in- 
 
 The lanjlord is not obliged to oust strument he was not to have posses- 
 
 a formep tenant wrongfully holding sion or control of the premises for 
 
 over or a stranger wrongfully in pes- any other purpose. The defendant 
 
 session. When the time fixed in the entered wrongfully and took stone, 
 
 lease for the beginning of the term The court held that only an incor- 
 
 lias arrived tlie tenant may then re- poreal right to enter and quarry stone 
 
 cover tlie possession from such wrong- was created, that no estate in the land 
 
 ful holders. Sullivan v. Schmidt, 93 was transferred, so that the plaintiff 
 
 App. Div. (N. Y.) 469; Edesheimer did not occupy as tenant. The stone 
 
 V. Quackenbush, 68 Hun (N. Y.) 427. did not belong to the plaintiff till 
 
 3. See § 171, post. quarried, and therefore he could not 
 The case of Baker v. Hart, 123 N. hold the defendant in trespass. As 
 
 Y. 471, clearly illustrates the rule he was not a tenant the plaintiff could 
 
 that there must be a conveyance of an not be held for the taking of this 
 
 estate in the land to the tenant in stone by a stranger on the theory that 
 
 order to create the relationship of it was waste. 
 
 landlord and tenant. The plaintiff's In Preston v. Hawley, 139 N. Y. 
 
 right in the land arose under a eon- 896, the defendant, vendor of th« 
 
 tract by whicli he was given the right premises, held over wrongfully after 
 
236 Lawdloed and Tenant. 
 
 to most of the rules of law governing the relationship of 
 landlord and tenant. 
 
 § 143. Tenancies for Years. — This term is applied to all 
 tenancies less than freehold for a fixed period, whether for 
 one day, one month, one year, or a thousand years. Though 
 an estate for a thousand years is very much greater and 
 more valuable than a life estate, and practically amounts 
 to a fee, it is nevertheless a mere chattel interest in land, 
 and passes on the death of the tenant as personal property 
 to his personal representative, not to his heir.* There are 
 surprisingly few statutory modifications of the rule.' A 
 tenancy for years must be for a certain fixed term, or one 
 which is reduceable to a certainty. Thus a lease for three, 
 six or nine years from a certain date, determinable in the 
 years 1788, 1791, 1794, was held to be a tenancy for nine 
 years which might be determined by either party at the 
 
 the conveyance was complete. The Mass. Gen. St. Ch. 121, § 1; 1 Stim. 
 court held that the plaintiff, pur- Am. Stat. L., § 1310. 
 chaser of the property, could not hold In New York the only restriction 
 the defendant for use and occupation upon the length of leasehold estates is 
 under the statute as he was not a the provision of the New York Con- 
 tenant, but a trespasser, the remedy stitution ^sirt I, § 13: "No lease or 
 of the plaintiff being in trespass or grant of agricultural lands tor a 
 ejectment and for the mesne profits, longer period than twelve years, here- 
 Tlieie was no transfer of the property, after made, in which shall be reserved 
 by parol or otherwise, to the defend- any rent or service of any kind, shall 
 ant, who occupied as a tresspasser be valid." 
 
 only, and the law implies no promise In New York by § 8 of the tax law 
 
 in such case that the trespasser pay (Ch. 60 of the Consolidated Laws), 
 
 the reasonable value of the use and •' rents reserved in any lease in fee 
 
 occupation. o^ fo^ o„g ^j. ^^^^^^ jj^^^ ^^ j^^ ^ ^^^^^ 
 
 4. Co Litt. 118a; Goodwin v. Good- more than twenty-one years and 
 win, 33 Conn. 314; Dolliver v. St. Jo- chargeable upon real property within 
 geph's Ins; Co., 138 Mass. 315. the state, shall be taxable to the per- 
 
 5. In Massachusetts, by statute, a son entitled to receive the same, a* 
 term for 100 years or over shall be a personal property in the tax district 
 freehold estate so long as 50 or more where such real property is situated." 
 years thereof remain unexpired. 
 
Distinction Between Tenancy and License. 23V 
 
 end of the third or sixth year.' A lease for twenty-one years 
 after two lives in being is a tenancy for years since the be- 
 ginning of the tenancy will be reduced to a certainty by the 
 death of the persons referred to. But where the tenancy is 
 uncertain in its duration, subject to be brought to an end 
 by notice, it is either a tenancy from year to year, month 
 to month, etc., or a tenancy at will.'^ The law of landlord 
 and tenant, as discussed in this treatise, has to do princi- 
 pally with tenancies for years; but the principles of law 
 herein discussed apply to tenancies from year to year and 
 from month to month as well as to tenancies for years, the 
 only difference in these tenancies being in the duration of 
 the interests and their termination by notice in the case of 
 tenancies from month to month and from year to year. Ten- 
 ancies at will, being subject to termination without notice, 
 are radically different from tenancies of the other kinds and 
 subject to special rules which are hereafter separately con- 
 sidered.® 
 
 § 144. Distinction Between Tenancy and License. — A li- 
 cense is a mere privilege or permission given by the owner 
 of land authorizing another to enter and to use or occupy 
 the land or part of it for any special purpose. A contractor 
 engaged in erecting a house for the owner is a licensee oc- 
 cupying the land for the purpose of performing his con- 
 tract, not a tenant. Ownership and dominion over the 
 land has not been given to him, but has been retained by 
 the owner." 
 
 6. Goodright v. Richardson, 3 Term and lodgers all Illustrate the distinc- 
 Eep. 462. tion between the occupation by a li- 
 
 7. Murray v. Cberrington, 99 Mass. censee, having at most a mere per- 
 329. ^ sonal right in contract, and the pos- 
 
 8. See §§ 154-156, post. session and ownership of the land by 
 
 9. Post V. Phelan, 3 How. Pr. N. B. a tenant, having an estate in the land, 
 (N. Y.) 133. not a mere personal right against the 
 
 The cases in the notes that follow, landlord, 
 including eases of servants, croppers. 
 
238 Landloed and Tenant. 
 
 As hetw^en master and servant tlie relation of landlord 
 and tenant does not exist if the tenant occupies a room, 
 apartment, cottage or tlie like primarily for tlie purpose of 
 carrying out his contract of service. There is no intent in 
 each case that the ownership of the premises, involving 
 their exclusive possession and control, should pass from 
 the master to the servant during his term of service.^" If, 
 however, a lease is made in due form in such a case, with 
 words of letting employed, the tenant paying for the prem- 
 ises with his labor instead of in cash, the relation of land- 
 lord and tenant arises because there is an intent to transfer 
 ownership to the servant during the term. The question 
 which arises in any doubtful case is whether or not this 
 intent to transfer to the tenant an estate or interest in the 
 land exists as between the parties, the presumption being, in 
 the absence of a lease or other affirmative evidence of a 
 tenancy, that the servant is to occupy merely in that capac- 
 ity and not as a tenant where such occupation is necessary 
 or convenient to his employment as servant, or is other- 
 wise connected with his service as an incident thereof.^ The 
 
 10. Kerrains v. The People, 60 N. the question was properly submitted 
 
 Y. 231 ; McQuade v. Emmons, 38 N. J. to the jury, and their finding that a 
 
 Law 397. tenancy existed was supported by the 
 
 Farm laborers, occupying a house evidence, 
 
 on the farm during their term of ser- Domestic servants occupying rooms 
 
 vice, the use of the house and other of the employer are never tenants, 
 
 privileges being given, together with State v. Curtis, 20 N. C. 363. 
 
 wages, for their services, are not ten- Caretakers in occupation of prem- 
 
 ants. Haywood v. Miller, 3 Hill (N. ises as such are not tenants, but ser- 
 
 Y.) 90; People v. Annis, 45 Barb, vants. Presby v. Benjamin, 169 N. 
 
 (N. Y.) 304; Boivman v. Bradley, 151 Y. 377; Seymour v. Warren, 86 App. 
 
 Pa. St. 351; Edgar v. Jewell, 34 N. J. Div. (N. Y.) 403. 
 
 Law 239. A clergyman in occupation of a 
 
 In Ofschlager v. Surbeek, 22 Misc. parsonage or rectory is a tenant, not 
 
 (N. Y.) 595, it appeared that a de- a servant. Bristor v. Burr, 120 N. Y. 
 
 duction from the farm laborer's 427; Doe d. Jones v. Jones, 10 Barn. 
 
 wages was made for rent, and that & C. 718. 
 
 the employer haxi stated in affidavits 1. Ofschlager v. Surbeok, 22 Misc. 
 
 that he had "rented" the premises (N. Y.) 595; McQuade v. Emmons, 
 
 to the servant. The court held that 38 N. J. Law 397 (dicta) ; Kerraini 
 
Distinction Between Tenancy and License. 
 
 239 
 
 occupation by a servant as such is, of course, that of a 
 licensee. 
 
 A servant has no estate in the land, and like any other 
 licensee whose license is not coupled with an interest, he 
 may be ousted forcefully by the master from the premises 
 so occupied. The servant is a mere trespasser after his 
 license is revoked by his discharge or by the termination of 
 his employment in any other way.^ Some authority to the 
 effect that a tenancy by sufferance arises if the servant is 
 allowed to remain in possession for some time after his 
 employment is terminated must be regarded as not settling 
 the law to that effect. A trespasser does not become a 
 tenant at sufferance by any holding over, however long con- 
 tinued, and as a servant wrongfully remaining in possession 
 is not a tenant holding over after his tenancy has termi- 
 
 T. The People, 60 N. Y. S31 (dicta), 
 the court quoting Tindal, C. J., in 
 Hughes V. Chatham, 5 M. & G. 54, as 
 follows : " There is no inconsistency 
 in the relation of master and servant 
 with that of landlord and tenant. A 
 master may pay his servant by con- 
 ferring on him an interest in real 
 property, either in fee, for years or 
 at will * * • and if he do so 
 the servant then becomes entitled to 
 the legal incidents of the estate as 
 much as if it were purchased for any 
 other consideration." 
 
 In Bristor v. Burr, 130 N. Y. 437, 
 the court, holding that the posses- 
 sion by a minister of a parsonage was 
 that of a tenant, said : " Tliis is pre- 
 sumptively the relation assumed to 
 premises by a party who lawfully en- 
 ters upon them as a place of abode 
 and occupies tliem as such; and any 
 less right than that which possession 
 furnishes is dependent upon some un- 
 derstanding, express or implied, deny- 
 ing such relation." 
 
 This language is sound as applied 
 to the facts of that case, but in the 
 case of the ordinary servant, such as 
 a gardner, coachman or lodgekeeper, 
 who occupies a cottage or living quar- 
 ters in connection with the perform- 
 ance of his service the presumption is 
 that he occupies as servant, which 
 stands until overthrown by evidence 
 of a lease. Kerrains v. The People, 
 60 N. Y. 331. 
 
 2. See cases cited in last two pre- 
 ceding notes, also Doyle v. Gibbs, 6 
 Lans. (N. Y.) 180. 
 
 N. Y. Code of Civ. Pro., § 3331, 
 subd. 1, provides that a servant hold- 
 ing wrongfully after termination of 
 his service except in New York city 
 and Brooklyn, may be ousted by sum- 
 mary proceedings; but the right of 
 the employer to oust the servant in 
 any other way permitted him by the 
 common law is in no way affected. 
 Haywood v. Miller, 3 Hill 90. 
 
24:0 Landloed aitd Tenant. 
 
 nated, but a trespasser only, it follows that these cases are 
 not sound.^ 
 
 § 145. Leases for Advertising Purposes. — The distinc- 
 tion between a license and a tenancy is clearly illnstrated 
 by the so-called advertising cases, the right to use a wall, 
 or to erect and maintain a sign for advertising purposes 
 being given by an instrument in the form of a lease. In a 
 New York case recently decided it appeared that a lease 
 had been made by which the plaintiff let to the defendant 
 " all the roof on the premises " for a term of years, to 
 be used solely for a bulletin board for displaying advertis- 
 ing at an annual rental of $2,000, defendant to have access to 
 the roof for the purpose of erecting and maintaining the 
 sign. The court held that a tenancy was not created, say- 
 ing: " It is quite clear that the defendant was not given ex- 
 clusive possession of the premises at any time. . . . But it 
 seems to me the essential element of a lease of real property 
 is lacking, for by it the defendant acquired no right of 
 possession of the property, but simply a right to erect an 
 advertising sign upon the plaintiff's building with a right 
 of access to the sign when erected."* In these cases the 
 
 3. Jennings v. McCarthy, 16 N. Y. ing that mere occupation for eight 
 
 Supp. 161. In Kerrains v. People, 60 years without affirmative recognition 
 
 N. Y. 231, the court said (dicta), re- of the occupier as a tenant by the 
 
 ferring to People v. Annis, 45 Barb, owner, did not create the relationship 
 
 804: " I am unable to agree with the of landlord and tenant, 
 
 learned judge who delivered the opin- 4. United Merchants' Realty & Imp. 
 
 ion in that case, that immediately Co. v. N. Y. Hippodrome, 133 App. 
 
 upon the termination of the service Div. (N. Y.) 582. See, also, Rey- 
 
 a tenancy at will, or by suflFerance, nolds v. Van Beuren, 155 N. Y. 120; 
 
 springs up. In order to have that Goldman v. N. Y. Adv. Co., 29 Misc. 
 
 effect the occupancy must be suffici- (N. Y.) 123; Lowell v. Strahan, 145 
 
 ently long to warrant an inference of Mass. 1. 
 
 eonsent to a different holding." In Pickering v. O'Brien, 83 Pa. 
 
 That mere holding by a trespasser Super Ct. 125, the court held that 
 
 will not create a tenancy at will or the relation of landlord and tenant 
 
 hy sufferance. See Dodin v. Dodin, arose because the lease necessarily 
 
 S2 Misc. (N. Y.) 208, the court hold- gave to the advertiser the right to oc- 
 
CONTEAOTS TO WOKK LaND FOB ShAEE OF CeOPS. 241 
 
 possession of and dominion over the property is retained 
 by the owner, the advertiser being given a license only by 
 the so-called lease. 
 
 In a Massachusetts case the relationship of landlord and 
 tenant was held to arise under a formal lease of an ice 
 business and privileges in Lynn, at Flax Pond, with the use 
 and benefit of the owner's ice houses, the tenant getting 
 exclusive possession of the ice houses and land under them 
 at least. Here there was involved the transfer and owner- 
 ship of a definite part of the realty, not mere occupation 
 for some defined purpose as licensee.^ 
 
 § 146. Contracts to Work Land for Share of Crops. — 
 Farming on shares as usually conducted does not involve 
 the relationship of landlord and tenant. The farmer in the 
 usual case contracts to work the land and to share the crops 
 with the owner. He occupies the farm as licensee in order 
 to grow the crop pursuant to his contract, he and the owner 
 being tenants in common of the crop as it grows. The 
 exclusive possession and control as owner is not transferred 
 to the farmer.* But where a lease is made between them, 
 
 cupy the quantum of land required tends to reserve possession, dominion 
 
 for the advertising board. But that and ownership in himself, giving a 
 
 is true in every case of a license in- special privilege to the advertiser as 
 
 Tolving the use of some part of the occupier for that single purpose, 
 
 premises in a continuous way. 6. Roberts v. Lynn Ice Co., 187 
 
 In Jordan v. Indianapolis Water Mass. 403. 
 
 Co., 159 Ind. 337, the court held that The leasing of the exclusive privi- 
 
 the advertiser was a tenant for the lege of the public stenographer's of- 
 
 rcason that such a lease is equivalent flee in a hotel was held to create a 
 
 to a letting of the premises to the ad- license, not a tenancy, in Hess v. Rob- 
 
 vertiser, the landlord reserving the erts, 1S4 App. Div. (N. Y.) 328. 
 
 use of the premises for all other pur- 6. Taylor v. Bradley, 39 N. Y. 189, 
 
 poses. It is submitted that this ar- and cases discussed therein; Rawley 
 
 gument is unsound because the owner v. Brown, 71 N. Y. 85; Unglish v. 
 
 does not turn over the possession to Marvin, 128 N. Y. 380; Gray v. Rey- 
 
 the advertiser, making himself a 11- nolds, 67 N. J. Law 169; Warner v, 
 
 censee ' only with respect to every Abbey, 113 Mass. 355 ; McKeeby t. 
 
 other use of the premises. He in- Webster, 170 Pa. St. 634. 
 
 16 
 
242 Landloeb and Tenant. 
 
 words of letting in due form being employed, a share of the 
 crops to be rendered to the owner as rent, the general mle 
 is that the relation of landlord and tenant arises, such being 
 the expressed intention of the parties, which intention ia 
 not frustrated by the circumstance that instead of rent in 
 money a portion of the crop is to be given to the landlord/ 
 In New York, by the weight of authority, and in the New 
 England States, the use of words of letting in the written 
 agreement between the parties is not conclusive. Though 
 the instrument be in the form of a lease the courts hold that 
 the parties do not intend to create the relationship of land- 
 lord and tenant; that a contract for working the land on 
 shares is all that is intended, the possession of the farmer 
 being that of a licensee, the crops as they grow belonging to 
 both as tenants in common.* But where a lease in the ordi- 
 nary form is used containing expressions clearly and un- 
 equivocally declaring the intention of the parties that the 
 relationship of landlord and tenant shall arise, as where it 
 is agreed that the tenant shall deliver to the landlord a cer- 
 tain share of the products of the farm as rent, it being 
 clear that the exclusive possession and control of the entire 
 farm is to be in the tenant, with the right to grow such 
 crops as he pleases in the course of good husbandry, the 
 courts are forced, even in these jurisdictions, to hold that 
 tenancies are created.** The rule generally prevailing that 
 
 7. Reeves v. Harman, 65 N. J. Law 9. In Rawley v. Brown, 71 N. Y. 
 S49; Mundy v. Warner, 61 N. J. Law 85, at page 90, the court admirably 
 395; Rowland v. Voechting, 115 Wis. stated the three possible legal rela- 
 353; Sargent v. Courrier, 66 111. 245; tions which may arise out of this 
 Orcutt V. Moore, 134 Mass. 48; C. & situation as follows: "The relations 
 W. M. Ry. Co. V. Linard, 94 Ind. 319, that may exist under such circum- 
 328. stances are various and of frequent 
 
 8. Taylor V. Bradley, 39 N. y. lag ; occurence, and the title to the pro- 
 Caswell V. Districli, 15 Wend. (N. Y.) ducts of the farm and the labor are 
 379; Putnam v. Wise, 1 Hill (N. Y.) different in all, and in each may be 
 234 ; Griswold v. Cook, 46 Conn. 198-j varied by the convention of the par- 
 Lewis V. Lyman, 22 Pieh. (Mass.) ties The relation may be that of Ics- 
 ^^'^- see and lessor, with or without a lien 
 
CONTEACTS FOB BoAED AND LoDGING. 
 
 243 
 
 ■wliere a lease is made, words of letting used, and the in- 
 tention thereby expressed to create a tenancy, the relation 
 ■of landlord and tenant arises, is entirely sound. The strict 
 construction followed in New York and New England seems 
 not in accord with the principle that the intention of the 
 parties should govern. 
 
 § 147. Contracts for Board and Lodging. — A contract 
 for board and lodging is not a lease, and the relationship 
 •of landlord and tenant does not arise, since no estate in the 
 property is transferred to the lodger. He is not given the 
 
 in favor of the landlord upon the 
 crops for the rent; it may be that of 
 master and servant, the occupant be- 
 ing the laborer and hired servant of 
 the owner, and the naked custodian of 
 the products, his possession being 
 that of the owner; or the crop may be 
 raised for the joint benefit of both, 
 one contributing his labor and the 
 ■other giving up his land for their pro- 
 duction, each sharing in such propor- 
 tion as may be prescribed by the 
 agreement" The court held that in 
 the absence of evidence of a lease a 
 ■charge to the effect that the crops 
 presumptively belonged to the farmer 
 who worked the land was error. 
 
 In Colville v. Miles, 137 N. Y. 159, 
 Ihe court recognized a letting on 
 shares as creating the relationship 
 ■of landlord and tenant, holding that 
 the crops before division were the 
 «ole property of the tenant. 
 
 On the other hand in Taylor v. 
 Bradley, 39 N. Y. 139, after an admir- 
 able statement of the reasons why the 
 expressed intent of the parties should 
 control, the court said: "Notwith- 
 standing these suggestions, the bal- 
 ance of the authorities above cited 
 seems to be, that, notwithstar.dii g 
 
 the technical terms employed, such 
 an agreement does not amount to a 
 technical lease; that the relation of 
 landlord and tenant is not contem- 
 plated, and the portion of the crops 
 reserved to the owner is not rent, but 
 compensation for the use of tlie land, 
 while the other portion is compensa- 
 tion to the occupier for his work, 
 labor and services, etc.; and that the 
 legal possession of the land is in the 
 owner, and the two are tenants in 
 common of the crop." 
 
 In the above case, and in the other 
 cases cited in the preeeding not?, 
 words of letting were used, but in 
 other respects the instrument con- 
 tained the usual details of the custo- 
 mary agreement for working the land 
 on shares. If there had been an ex- 
 press agreement that the farmer 
 should occupy exclusively as tenant, 
 rendering a share of the crops to the 
 owner as rent, then, under the cases 
 above quoted from, the relationship 
 of landlord and tenant would cer- 
 tainly arise. To same effect, McCiel- 
 lan V. Whitney, 6S Vt. 510; Arcutt v. 
 Moore, 134 Mass. 48, and cases cited 
 in note 7, supra. 
 
244 Landloed akd Tbnawt. 
 
 exclusive possession of the room or apartment which he 
 occupies, as owner for the time being. He occupies as a li- 
 censee, with no right to exclude the owner, or to hold the 
 owner in trespass in case he enters. The ownership and 
 possession is retained by the owner, the rights of the lodger 
 being strictly in personam under his contract, and not in 
 rem}° But a lease in the usual form, with words of letting, 
 transferring to the tenant an interest or estate in the room 
 or apartment for a definite term, creates the relationship 
 of landlord and tenant though the lease may also contain a 
 contract for board, and for services in caring for the rooms. 
 If the intention to transfer an estate or interest in the room 
 or apartment is expressed, so that the tenant becomes owner 
 thereof, with the right to exclude all others, even the land- 
 lord, except as the landlord has reserved the right to enter 
 for stated purposes, the relation of landlord and tenant 
 arises.^ But if the usual agreement for board and lodging 
 is all that is expressed the lodger occupies as a licensee, not 
 as a tenant.^ 
 
 § 148. Form of Lease. — Before the enactment of the 
 Statute of Frauds during the reign of Charles II, leases 
 creating tenancies for a term of years, no matter how long 
 the term might be, were valid though not in writing. As 
 a tenant for years was not seised, livery of seisin was not 
 required in creating his estate, which, as we have seen, is 
 a chattel interest, and therefore may be created by parol 
 or in writing without a seal, a deed not being required.^ 
 The creating of an easement, profit, franchise, or other in- 
 corporeal interest for a term of years required a deed under 
 seal since these interests lay " in grant " and not in livery. 
 
 The Statute of Frauds (29 Car. 2, ch. 3, § 1) enacted in 
 
 10. Wilson V. Martin, 1 Denio (N. 1. Oliver v. Moore, 53 Hun 472 j 
 
 Y.) 602; Oliver V. Moore, 53 Hun (N. affirmed without opinion, 131 N. Y. 
 
 Y.) 472; Wliite V. Maynard, 111 58:1 ; Porter v. Merrill, 124 Mass. 534 
 
 Mriss. 350; Cochran t. Tuttle, 75 111. 2. See case in note 10, supra. 
 
 361- 3. Litt., § 60; Co. Litt, 9a, 491). 
 
FoEM OF Lease. 245 
 
 1677, provided that all leases, estates, interests of freehold 
 or terms of years, in, or out of lands, tenements or heredita- 
 ments, not in writing and signed by the party or parties 
 making or creating the same or their agents thereunto law- 
 fully authorized by writing, should have the effect of es- 
 tates at wUl only, excepting " 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 least of the full improved value of the 
 thing demised." Under the statute, followed in several 
 states, leases of over three years must be in writing signed 
 by the lessor or by his agent duly authorized in writing.* 
 
 In New York and a majority of the states every lease for 
 over a year must be in writing, signed by the lessor or his 
 agent duly authorized in writing." 
 
 A lease for a year or less to arise in futuro need not be 
 in writing under the New York and similar statutes, as the 
 expression " from the making thereof," which appears in 
 the Statute of Frauds, has been omitted from such statutes. 
 Upon the making of the parol lease the tenant immediately 
 becomes the owner of an estate for a year in the premises, 
 the lease operating as a conveyance to that effect, though 
 the estate will not vest in possession until a later date. 
 
 4. 2 Gen. St. N. J. pi. 602, § 1; The statute, 8 and 9 Vict. eh. 106, 
 
 South Car. Civ. Code of 1903, § 3416; § 33, requires a seal on all leases for 
 
 Missouri Rev. St. of 1899, § 3414; over three years. In Mass. a seal is 
 
 Pennsylvania Act Mar. 21, 1773. The required on leases for 7 years or over, 
 
 provision as to rent equal to two- New Jersey, 3 years, Virginia, 5 
 
 thirds the improved value of thing years. -See Stim. Am. St. L., § 1471. 
 
 demised has been omitted in the New 6. N. Y. Real Prop. Law, § 342. 
 
 Jersey Statute. A lease for less than a year with 
 
 In Maine, Vermont, New Hamp- option to renew for another year need 
 
 shire, Massachusetts and Ohio all not be in writing under the N. Y. 
 
 leases for a term must be in writing. Statute. Ward v. Hasbrouck, 169 N. 
 
 parol leases having the force and Y. 407. It would seem clear, how- 
 
 cfl'sct of tenancies at will only. Me. ever, that if the renewed period is 
 
 Rev. St. of 1903, oh. 75, § 13; Vt. for more than one year, the provision 
 
 Pub. St. of 1906, § 3583; Mass. Rev. for such renewal would be void ua- 
 
 taws of 1903, eh. 127, § 3. less in writing. 
 
246 
 
 Landloed and Tenant. 
 
 Therefore it does not come within the provision of the- 
 Statute of Frauds which requires that a contract not to be 
 performed within a year must be in writing. The lease as 
 a conveyance operates at once, and in so far as a transfer of 
 the term is concerned the lease is performed as soon as 
 made.^ Some authorities take the opposite view, losit^ 
 sight of this characteristic of a lease as a conveyance.'^ 
 
 A contract to make a lease, as distinguished from a lease, 
 had to be in writing under the fourth section of the Statute 
 of Frauds, since it is a contract to transfer an interest in 
 lands. Under the New York and similar statutes such a 
 contract has to be in writing only when the lease which is 
 to be made is to be for over one year.* It would seem that 
 this contract would come under the provision of the statute 
 relating to agreements not to be performed within a year 
 
 6. Becar v. Flues, 64 N. Y. 518 
 Ward V. Hasbrouck, 169 N. Y. 407 
 Crane v. Powell, 139 N. Y. 379, 389 
 Seymour v. Warren, 59 App. Div. (N. 
 Y.) 120; Birokhead v. CumminB, 33 
 N, J. Law. 44. 
 
 In Oliver v. Moore, 53 Hun (N. Y.) 
 472, a contract for board and lodging 
 to extend beyond a year was void by 
 parol, because not to be performed 
 within a year. If the relation of 
 landlord and tenant had arisen the 
 eta lute would not have applied. 
 
 7. Delano v. Montague, 58 Mass. 
 42; Larkiu v. Avery 23 Conn, 304; 
 Wlieeler v. Frankenthal, 78 111. 124; 
 Matthews v. Carlton, 189 Mass. 285. 
 
 8. N. Y. Real Prop. Law, § 259. 
 A contract for the leasing for a long- 
 er period than one year, or for the 
 sale, of any real property, or an in- 
 terest therein, is void, unless the con- 
 tract, or some note or memorandum 
 thereof, expressing the consideration, 
 is in writing, subscribed by the lessor 
 
 or grantor, or by his lawfully author- 
 ized agent. Czermak v. Wetzel, 114 
 App. Div. (N. Y.) 816. The author- 
 ity of the agent to execute a contract 
 to lease or sell land need not be ia 
 writing. Moody v. Smith, 70 i<. Y. 
 598; Tallman v. Franklin, 14 N. Y. 
 5S4. An agent's authority to execute 
 a lease for over a year or a convey- 
 ance must be in writing by the ex- 
 press provision of § 242 of the N. V, 
 Real Property Law. 
 
 A contract to make a lease as dis- 
 tinguished from a lease, transfers no 
 estate to the person who is to be 
 Tenant; he receives only a personal 
 right in contract for the breach of 
 which he may recover damages, and 
 he may usually enforce the specific 
 performance thereof in equity. Mayer 
 V. McCreary, 119 N. Y. 434; Bene- 
 dict V. Pincus, 191 N. Y. 377; Pitta- 
 burgh Amusement Co. v. Ferguson, 
 100 App. Div. (N. Y.) 453, 115 App. 
 Div. 241. 
 
Eenewal of Lease. 247 
 
 in cases where by tlie terms of tte coBtract the actual lease 
 is not to be made within a year from the making of the 
 contract.^ 
 
 § 149. Renewal of Lease. — A covenant to renew the lease 
 at the end of the term calls for the making of a new lease 
 between the parties. It is a covenant which runs with the 
 land so that it may be enforced by an assignee of the lease, 
 and against a grantee of the reversion, and it may be en- 
 forced by specific performance, if valid, in equity.^" Of 
 course this covenant gives no right to a second or further 
 renewal at the end of the first renewed term unless such 
 right is expressly provided for.^ 
 
 A provision that the tenant may extend the term for an 
 additional period, or that the tenant " shall have the op- 
 tion " of one or two more years, or other period, on the 
 same terms and conditions, provided he give a notice to that 
 effect at a stated time before the expiration of the original 
 term, is not a covenant to make a new lease. On the giving 
 of the notice provided for, the original term is at once ex- 
 tended for the further term without the making of a new 
 lease. The original lease creates the extended term upon 
 the giving of the required notice, and the holding of the 
 tenant is under the original lease, not under a new lease 
 made at the expiration of the original term.^ 
 
 9. See cases in notes 6 and 7, opinion that the defendant held the 
 evpra. premises after May 1st, 1903, not by 
 
 10. Van Buren v. Wotherspoon, virtue of any new agreement, express 
 164 N. y. 368 ; Kolasky v. Michaels, or implied, but under the original let- 
 120 N. Y. 635. ting. The provision of the lease ia 
 
 1. Winslow V. Baltimore, 188 U. S. not tliat the tenant may require a 
 646; Pflum v. Spencer, 123 App. Div. new lease from tlie landlord, but that 
 (N. Y.) 743. he may extend the original lease for 
 
 2. In Swan v. Inderlied, 187 N. Y. as additional term of one or two 
 372, where the tenant was given the years. In other words, the demised 
 privilege to extend the lease for one term was for one, two or three years, 
 or two years upon the same terms, as the tenant might elect." The court 
 etc., the court said: "We are of held that the assignment ot rent 
 
248 
 
 Landloed aistd Tenant. 
 
 B. — Tenancies from Year to Tear, from Month to Month, etc. 
 
 § 150. Nature and History. — Tenancies from year to year, 
 from quarter to quarter, from month to month and from 
 week to week differ from tenancies for years in that they 
 are tenancies of indefinite duration, continuing indefinitely 
 by the year, quarter, month or week until brought to an 
 end by notice given by landlord to tenant or by tenant to 
 landlord. They differ from tenancies at will in that they 
 cannot be brought to an end at any time, during any year 
 or month, but only at the end of one of the .periods by which 
 they are held. Thus a tenancy from year to year can be 
 terminated by either party only at the end of some succeed- 
 ing year, and a tenancy from month to month at the end 
 of some succeeding month. All the incidents of tenancies 
 for years apply to these tenancies, the one difference being 
 in their duration.' These tenancies developed originally 
 
 under the original lease carried the 
 rent for the period of renewal- 
 
 In Probst v. Rochester Steam Laun- 
 dry Co., 171 N. Y. 584, the holding 
 over and payment of rent by a ten- 
 ant holding under such provision for 
 rxlension, was held to be an election 
 by the tenant to hold for. the extend- 
 ed term, tliough no express notice of 
 such election was given, and that the 
 assignee of the tenant as bound ex- 
 actly as the tenant vifould have been. 
 See, also, Pflum v. Spencer, 123 App. 
 Div. (N. Y.) 742; Cunningham v. 
 Tattee, 99 Mass. 248. 
 
 3. Some question has been raised as 
 tcj whether tenancies from year to 
 year, from month to month, etc., are 
 subject to waste, it having been sug- 
 gested, and held in one case, that 
 they are tenancies at will, except for 
 the purpose of termination, and there- 
 fore such tenants, like tonants at will, 
 are not liable for permissive waste. 
 
 and may be held in trespass for acta 
 of voluntary waste. Phillips v. Co- 
 vert, 7 Johns. (N. Y.) 1. It is sub- 
 mitted that such tenancies are in 
 every respect like tenancies for years 
 except for their indefinite duration, 
 and that they differ radically from 
 tenancies at will in that the tenancy 
 must certainly continue for a year or 
 a month, as the case may be. A ten- 
 ant at will is liable in trespass for 
 an act of voluntary waste because his 
 tenancy may be ended at any time, 
 and the hostile act of waste termi- 
 nateo the estate, and such tenant is 
 not liable for permissive waste be- 
 cause of the slight character of his 
 interest, the statutes of Marlbridge 
 End Gloucester being construed on 
 this account as not applying to ten- 
 ancies at will. Tenancies from year 
 to year, from montli to month, etc., 
 are not subject to such termination and 
 are clearly within the terms ot ilie 
 
Natuke and Histoet. 249 
 
 from tenancies at will. Early in tlie Mstory of tlie law of 
 landlord and tenant it was recognized that an indefinite 
 tenancy by the year, month, etc., rent being reserved and 
 paid by the year, quarter, month or week, differed radically 
 from ordinary tenancies at will, in which the holding was 
 merely indefinite, and not so measured by periods, and that 
 such tenancies should not be subject to termination without 
 notice during one of the periods for which rent was paid. 
 It was at first held that reasonable notice should be given 
 by or to such tenants in order to terminate the tenancy, and 
 that the tenancy could be so ended by notice only at the end 
 of one of the succeeding periods. As a matter of custom 
 between landlords and tenants, finally accepted by the 
 courts and adopted as law in all cases, it was settled that a 
 tenancy from year to year could be terminated only by the 
 giving of six months' notice by the landlord to the tenant 
 or by the tenant to the landlord, as the case might be, such 
 notice being given at least six months before the date on 
 which the tenancy was to end, such date being the end of 
 one of the yearly periods, and corresponding to the day of 
 original letting.* Thus in the case of a tenancy from year 
 to year beginning on May 1st of any year, the notice to 
 terminate must be given at least six months before the first 
 of May of some succeeding year, the notice specifying that 
 the tenancy shall end on the first of May of that year. A 
 notice to quit on any other day, as on May 2d or April 29th 
 
 Blatutes in question. The prevailing Jackson v. Wilsey, 9 Johns. (N. Y.) 
 
 and sound view is that such tenants 267. 
 
 are liable for both voluntary and "This kind of a lease was in use as 
 
 permissive waste, like tenants for long ago as the reign of Henry Vf II." 
 
 years. Brown v. Newbold, 44 N. J. 2 BI. Com. 147, Note, citing Year 
 
 L. 266; Moore v. Townshend, 33 N. J. Book T. 13, Henry VIII, 15, 16. That 
 
 L. 284; Ferguson v. , 2 Esp. six months' notice was required as 
 
 690. early as the time of Henry VIII was 
 
 4. 2 Bl. Com. 147, Chitty's Notes ; ttated by Lord Ellenborough in Doe d. 
 
 Right V. Darby, 1 Term E. 159 ; Doe Strickland v. Spence, 6 East 120. Se^ 
 
 d. Strickland v. Spence, 6 East 120; also, cases cited under § 151-153, post. 
 Steffins V. Earl, 40 N. J. L. 128; 
 
250 Landloed and Tenant. 
 
 of the year would be void.' The same rules were subse- 
 quently applied by the courts to tenancies from quarter to 
 quarter, from month to month and from week to week, ex- 
 cept that reasonable notice in these cases was fixed as a 
 matter of law to be notice equal to the period, viz., three 
 months' notice in tenancies from quarter to quarter, a 
 month's notice in tenancies from month to month, and a 
 week's notice in tenancies from week to week.* 
 
 These tenancies arise in three different ways: 1. By a 
 holding over on the part of a tenant at the expiration of 
 a fixed term, whether for one or more years or for less than 
 a year, followed by the acceptance of rent by the landlord 
 on the terms of the expired lease, or by an election on the 
 landlord's part to treat the tenant as such and not as a 
 wrongdoer. 2. By an express agreement between the par- 
 ties creating an indefinite tenancy by the year, month, etc., 
 including cases where the parties designate the tenancy as 
 a tenancy from year to year or from month to month, etc., 
 and also including all cases of indefinite lettings in which 
 rent is reserved by the year, month, etc. 3. By entry and 
 payment of rent under a parol lease void under the Statute 
 of Frauds, rent being paid in accordance with the terms of 
 the void lease. 
 
 § 151. Tenancies Created by Holding Over, etc. — The 
 
 holding over by a tenant at the end of a fixed term of years, 
 followed by the payment of rent to the landlord on the terms 
 of the lease just expired, creates a tenancy from year to 
 year when rent was reserved by the year under the ex- 
 pired lease, and a tenancy from month to month when such 
 rent was reserved by the month.'' Though the rent be pay- 
 
 5. See preceding note. Dougal v. McCarthy, 1 Q. B. 736; 2 
 
 6. See sote 4, supra, also, Peacock Bl. Com. 147, Chitty's i;ote; Condon 
 V. RufFun, 6 Esp. 4; Prindle v. Ander- v. Barr, 47 N. J. L. 113; Berstein v. 
 Boii, 19 Wend. (N. Y.) 381; 23 Wend. Demmert, 73 N. J. L. 118; Streit v. 
 61^^- Fay, 230 111. 319; Sanson v. Ba:<hvin, 
 
 7. Eight V. Darby, 1 Term E. 159; 93 Mich. 217. In Maine and Massu.- 
 
Tenaitcies Ceeated bt Holding Ovee, etc. 251 
 
 able in monthly installments, nevertheless if the rent is 
 reserved by the year the tenancy arising from a holding 
 over and payment of rent after such a lease is a tenancy 
 from year to year.® The tenancy is implied from the hold- 
 ing over and the payment of the former rental. It is clear 
 the parties do not intend a tenancy at will in such case, de- 
 terminable at any time. There is no expressed intention to 
 create a tenancy for a year certain or a month certain. 
 There exists an implied general letting by the year or 
 by the month, as the case may be, not limited to a 
 year or a month certain; in other words it is a tenancy of 
 indefinite duration by the year or by the month. Whether 
 the original tenancy be for one or five or more years, there 
 would seem to be nothing in that circumstance to infer a 
 tenancy for a year certain as arising by implication from 
 the holding over and payment of rent. 
 
 When the tenant holds over he becomes a tenant by suf- 
 ferance, as we shall see.^ The landlord has the right to 
 elect whether he will hold the tenant as a wrongdoer, hold- 
 ing over wrongfully, or as tenant from year to year.^" His 
 accepting rent is, of course, an unqualified election to accept 
 him as tenant. Any other unequivocal action on his part, 
 as the starting of an action to recover rent from the tenant, 
 will have the same effect. The tenancy which the law im- 
 plies from such holding over and election does not depend 
 on any actual contract, express or implied, between the 
 landlord and tenant, because the tenant is liable for the 
 rent at the landlord's election though he held over avowedly 
 as a wrongdoer, expressly stating to the landlord that he 
 had no intention to hold or become liable as tenant. In 
 
 chusetts, under the statutes, only a fins v. Earl, 40 N. J. L. 128; Berstein 
 
 tenancy at will arises. Franklin, etc. v. Demmert, 73 N. J. L. 118 (infer- 
 
 Oo. V. Card, 84 Me. 528; Perry v. entially to that eflfect). 
 
 Rockland, etc. Co., 94 Me. 325 ; Wal- 9. See § 158, post. 
 
 ker Ice Co. v. American, etc. Co., 185 10. See cases in notes 7 and 8, ante, 
 
 Mass. 463. and in note S, post. 
 8. Peacock v. Ruffin, 6 Esp. 4; Stef- 
 
252 Landloed and Tenant. 
 
 sucli case the law imposes tliis obligation on the tenant as 
 an incident of the relation of landlord and tenant and as a 
 penalty for wrongfully holding over. But whether the ten- 
 ant intends to bind himself or not, the tenancy that results 
 from the landlord's acceptance of rent or election to hold 
 him must be of exactly the same nature. It is a tenancy 
 of indefinite duration by the year or month, as the case 
 may be, and not a tenancy for a year or a month certain. 
 The weight of authority as well as the principle involved 
 sustain this view.* 
 
 In New York, however, the courts hold that the tenancy 
 arising from a holding over and acceptance of rent, or from' 
 a holding over and an election to hold the tenant for the 
 rent on the part of the landlord, is a tenancy for a year cer- 
 tain or a month certain as the case may be. The reasons 
 for this holding are not obvious and are not expressed by 
 the cases so deciding. The rule probably grew out of loose 
 statements in some of the earlier opinions that a tenancy 
 for a year or a month arose in such case, the court evidently 
 meaning that the tenancy arising was for at least a year or 
 a month as the case might be since it could not be brought 
 to an end before the end of the current year or month. 
 From these statements, followed in later cases, the rule has 
 become settled, more by accident, perhaps, than by design,, 
 that a tenancy for a year or a month certain arises in such 
 case, which ends at the end of each succeeding year or 
 month without notice. Though the New York courts speak 
 of it as a tenancy from year to year or from month to month, 
 it is very evident that it is nothing of the kind, but a ten- 
 ancy for a fixed period.* 
 
 1. See oases in note 7, ante. weather, 1 Denio (N. Y.) 113; Cole 
 
 2. Kennedy v. City of New York, v. Sanford, 77 Hun 198; Sullivan v. 
 19S N. Y. 19; Schuyler v. Smith, 51 Eingler, 59 App. Div. (N. Y.) 184; 
 N. Y. 309; Haynes v. Aldrich, 133 N. Baylies v. Ingram, 84 App. Div. 360. 
 Y. 287; Herter v. Mullen, 159 N. Y. In Despard v. Walbridge, 15 N. Y. 
 JT- Adams v. City of Cohoes, 127 274, where the tenant held over at 
 N. Y. 175 (dicta); Conway v. Stark- the end of his term after being noti- 
 
Tenancies Ckeated by Holding Ovbe, Era 253 
 
 The terms of tte original lease including the rent, the 
 making of repairs and restrictions and conditions of all 
 kinds provided for in the lease under which the tenant held, 
 are carried over and become terms of the implied tenancy 
 arising from the holding over by the tenant and election 
 by the landlord. This is true whether the tenancy so aris- 
 ing is a tenancy from year to year or from month to month, 
 the prevailing rule, or a tenancy for a year or a month 
 certain, as in New York.® 
 
 In England a holding over does not create a further 
 tenancy against the will of the tenant at the landlord's 
 option. Circumstances showing an actual agreement fairly 
 to be implied therefrom must be proved in order to estab- 
 lish such a tenancy.* In the United States where the 
 harsher rule that the tenant may be held at the landlord 's 
 election in case of a holding over, even though the tenant 
 has expressly disclaimed any intention to be bound for a 
 further period, a willful holding over for even a day rend- 
 ers the tenant liable for another year 's or month 's rent, as 
 the case may be, at the election of the landlord. But where 
 his holding over is not wrongful, as where the landlord 
 expressly or impliedly gives him permission to remain for 
 a time,^ or where he is forced to remain in possession 
 through illness of himself or some member of his family, 
 the tenant will not be punished by the application of thi,:. 
 rule ; he is liable in such case only for the reasonable value 
 of the use of the premises during the period of his holding 
 over.® But where the failure of the tenant to move on time 
 
 ficd that his rent would be increased, 6. Herter v. Mullen, 159 N. Y. 28; 
 
 he- was held for the higher rent. Regan v. Fosdick, 19 Misc. (N. Y.) 
 
 3. See eases cited in preceding notes 489; Brennau v. City of New York, 
 under this section, particularly Bay- 80 App. Div. 251, and cases cited and 
 lies V. Ingram, 84 App. Div. 3G0. discussed therein (holding that acci- 
 
 4. Ibbs V. Richardson, 9 Adol. & E. dental retention of the keys and leav- 
 849 ; Waring v. King, 8 Mees & W. ing of two old stoves on premises did 
 571; Dougal V. McCarthy, 1 Q. B. 437. not constitute a holding over). A 
 
 5. Eosenburg v. Lastgarten, 41 St. holding over by a tenant in common 
 Eep. (N. Y.) 623. occupying under a lease from his co- 
 
254 
 
 Lakdloed and Tenant. 
 
 is due to difficulty in getting trucks, or rests on any other 
 difficulty which the tenant might have provided against 
 in advance, he is liable, as above explained, at the landlord 's 
 election^ 
 
 § 152. Same — Created by Express Agreement. — The 
 
 parties may by express agreement create a tenancy from 
 year to year, from month to month, etc. Where, by express 
 terms the lease provides that the tenant shall hold indefi- 
 nitely from year to year or from month to month, the ten- 
 ancy will be subject to all the rules heretofore discussed 
 governing such tenancies.® 
 
 tenant, does not make him liable as a 
 hold over tenant. He has the riglit to 
 possession by virtue of his interest as 
 tenant in common. Valentine v. 
 Healy, 178 N. Y. 391. 
 
 7. Hayes v. Aldrich, 133 N. Y. 287, 
 and cases cited therein. In this case 
 the lease ending May 1st, the tenant 
 held over till May 4th. May 1st was 
 a holiday, and the court said he had 
 possi.bly till noon of May 2d, in 
 ■which to surrender possession. But 
 on May 2d he could not secure truclcs 
 and on May 3d a sick boarder could 
 not safely be removed. The court 
 held t'liat the holding over to May 3d 
 made the tenant liable for another 
 year's rent. The court also said 
 (dicta) that the excuse of the iLness 
 of the boarder could not be used be- 
 cause the subletting of the premises 
 to a boarding house keeper and the 
 use of the premises for that purpose 
 was contrary to the terms of the 
 lease, and the tenant should not be 
 permitted to set up the consequences 
 of one wrong as an excuse for an- 
 other. It is probable that this dicta 
 would not be followed, as the landlord 
 has his action for any breach of con- 
 
 dition or covenant by the tenant, and 
 there seems to be no valid reason why 
 he should be subjected to further pun- 
 ishment by making him liable as hold- 
 over tenant because of so remote a 
 consequence of the breach of condi- 
 tion as the illness of the boarder in 
 this case. 
 
 In jurisdictions holding that a ten- 
 ancy from year to year or from 
 month to month arises from such 
 holding over, the common law notice 
 of six months and one month respect- 
 ively must be given, as in any other 
 case of such tenancies arising by ex- 
 press agreement or otherwise. In 
 New York all the principles and rules 
 applying to such tenancies apply to 
 tenancies for a year or a month which 
 arise from a holding over in that 
 state, except that no notice is re- 
 quired to terminate them. See cases 
 in preceding notes under this section. 
 
 8. Doe v. Green, 9 Ad. & E. 658; 
 Pugsley V. Aikin, 11 N. Y. 494; Stef- 
 fins V. Earl, 40 N. J. L. 128 ; Herrell 
 V. Sizeland, 81 111. 457 (notice of 60 
 days provided for by statute in Illi- 
 nois) ; Fox V. Nathans, 32 Conn. 351; 
 Dix V. Atkins, 130 Mass. 171 (hold- 
 
Tenancies Created by Expeess Ageeement. 255 
 
 A tenancy, which by the express or implied terms of the 
 letting is to continue for an indefinite period at an annual 
 or monthly rental is a tenancy from year to year or from 
 month to month by express agreement as truly as in those 
 cases where the terms " from year to year " or " from 
 month to month ' ' are used. Originally such holdings were 
 tenancies at will, and it is probably true that tenancies from 
 year to year, etc., were first developed and recognized in 
 these cases. It is clear that in these cases the parties do not 
 intend that the tenancy may be terminated at any time, but 
 only at the end of one of the succeeding periods. The par- 
 ties therefore intend an indefinite tenancy by the year or 
 month, which is an exact definition of tenancies from year 
 to year or from month to month.' 
 
 These tenancies are subject to the same rules applying 
 to tenancies from year to year and from month to month, 
 etc., created in other ways, requiring the same notice to 
 terminate them, of six months and one month respectively, 
 and terminable only at the end of one of the succeeding 
 periods as heretofore explained. In New York there can 
 be no doubt under the cases that these tenancies are genuine 
 tenancies from year to year or from month to month, and 
 not tenancies for a year or a month certain, and therefore 
 that they require the regular common law notice to termi- 
 nate them, viz., six months' notice in tenancies from year 
 to year and a month's notice in tenancies from month to 
 month.^° The few cases where the contrary has been sug- 
 
 ing that such tenancies may be ere- M & W. 682; StefBns v. Earl, 40 N. 
 
 ated by express agreement, though a J. L. 128; Williams v. Apothecaries 
 
 tenancy at will only arises in the Hall Co., 80 Conn. 503; Hey v. Mc- 
 
 other cases of such tenancies at com- Grath, 81 Pa. St. 310; Hollia y. 
 
 mon law) ; Finkelstein v. Herson, 55 Burns, 100 Pa. St. 206. See, also. 
 
 N J. L. 217; Hetfield v. Lawton, 108 New York cases cited in following 
 
 App. Div. 113. See, also, New York note. 
 
 case cited in note 10, post. 10. Pugsley v. ."Viken, 11 N. Y. 494 
 
 9. Richardson v. Langridge, 4 (tenancy ''for the term of one year 
 
 Taunt. 128; Doe d. Hull v. Wood, 14 and an iiidofiiiite period thereafter," 
 
256 
 
 Landloed and Tenant. 
 
 gested are either cases of so-called monthly tenancies, viz., 
 tenancies for a month certain followed by holding over and 
 payment of rent creating tenancies for another month, and 
 so on indefinitely, which include most of the cases suggest- 
 ing a doubt as to the requirement of notice, or they are cases 
 in which inferior courts have misconstrued the law laid 
 down by the Court of Appeals.^ A statute applying only to 
 New York City and Brooklyn requires the giving of five 
 day's notice by the landlord to any monthly tenant five 
 days before the end of the month, except on May 1st, as a 
 condition precedent to the ousting of the tenant by dis- 
 possess proceedings.^ It is clear that this statute applies 
 
 the court saying: "To terminate the 
 tenancy, the lessee must have given 
 six months' previously, notice or his 
 intention to do so" • • ) ; Hetiield 
 V. Lawton, 108 App. Div. 113 (ten- 
 ancy "for the term of one year • • • 
 with the privil^e of continuing the 
 same from year to year" * *, the 
 court saying: "The defendant un- 
 doubtedly under the terms o f his 
 lease became a tenant from year to 
 year"); Anderson v. Prindlo, 23 
 Wend. 619; Wilson v. Taylor, 8 IJaly 
 253; Geiger v. Braun, (5 Daly 506; 
 People V. Darlinp;, 47 N. Y. ("Gfi; 
 Hoffman v. VanAllen, 3 Misc. (N, Y.) 
 99 (letting "from month to month 
 so long as the rent was paid" held to 
 require a, month's notice) Klingen- 
 stein V. Goldwasser, 27 Misc. 536 
 (tenancy "for as long as you will 
 stay and pay the rent" at a monthly 
 rental — held an indefinite tenancy 
 from month to month requiring a 
 month's notice to end it) ; Rybicki v. 
 Kalish, 58 Misc. 219 (an indefinite 
 tenancy by the month requiring a 
 month's notice, Appellate Term, Gil- 
 dersleeve J.) Jackann v. Wilsey, 9 
 Johns. 267; Htmgerford v. Wagoner, 
 S App. Div. 690. 
 
 1. In Gibbons v. Dayton, 4 Hun 
 453, and Thompson v. Chick, 92 Hun 
 610, the tenancy was for one month 
 certain, renewed at the end of each 
 month for another month imder the 
 New York rule as to holamg bver 
 discussed in § 151, ante, the tenancy 
 could be terminated at the end of any 
 month without notice. Such con- 
 fusion as has arisen in New York in 
 these cases has arisen in using the 
 term "yearly tenancy" as applying to 
 a tenancy from year to year or from 
 month to month, and visa versa. In 
 Luddington v. Garlock, 29 St. Kepr. 
 607, the court found from the special 
 facts of that case that the parties 
 had agreed that a month's notice 
 should not be required, but only rea- 
 sonable notice. The court recognized 
 the rule that a month's notice is 
 usually necessary. People v. Goelet, 
 64 Barb. 476, and Park v. Castle, 19 
 How. Pr. 29 are contra, and must he 
 regarded as of no weight against tl;e 
 many cases cited in the preceding 
 note.. 
 
 2. L. of 1882, ch. 303, am'd by L. 
 of 1899, ch. 357, § 1. 'TSTo monthly 
 tenant shall hereafter be removed 
 from any lands or tenements in the 
 
Indefinite Tenancies Undbe Void Lease. 267 
 
 only to tenancies for a montli certain, with successive hold- 
 ings over commonly called monthly tenancies, which is the 
 usual tenure of tenants holding by the month in New York 
 <3ity, and that it does not apply or affect tenancies from 
 month to month which require a month's notice from tenant 
 to landlord as well as from landlord to tenant in order that 
 the party giving the notice may end the tenancy.' 
 
 § 153. Indefinite Tenancies Arising Under Void Lease 
 for Years. — Entry by a tenant under a parol lease void 
 under the Statute of Frauds, followed by the acceptance of 
 rent by the landlord, or any other unequivocal act on his 
 part by which he recognizes the tenant as holding under 
 the terms of the void lease, gives rise to a tenancy from 
 year to year or from month to month, dependent upon 
 whether the void lease reserved rent by the year or by the 
 month. The parol lease is, of course, void, the tenancy 
 arising by such entry and payment of rent being implied 
 from those facts, in the absence of proof of a different agree- 
 ment between the parties, the reasonable inference being 
 that the parties intended an indefinite tenancy by the year 
 or month, as the case may be, on the terms of the void parol 
 lease.* All the terms and condi+ions of the void lease are 
 
 €ity of New York or in the City of monthly tenancies provided for by the 
 
 Broolclyn on the grounds of liolding statute. 
 
 ever his term (except when the same In Hoske v. Gentzlinger, 87 Hun 3; 
 expires on the 1st day of May." im- Iledden v. Nederburg, 25 Misc. 722, 
 Itss five days before the expiration and Foley v. Shalow, 16 N. Y. Supp. 
 *.f the term the landlord serve notice 942, the tenancy in each case was for 
 upon the tenant terminating the ten- a month certain, requiring no notice 
 ancy. except the five day notice specified 
 3. See cases cited in note 10, supra, by the statute. In the Hoske case it 
 The caes of Simpson v. Masson, 11 appeared that the tenant had given a 
 Misc. 351, decided that a tenancy for raontli's notice. This was held to re- 
 one month and from month to month lieve the landlord from the duty of 
 thereafter could be terminated on five giving five days* notice under th« 
 days' notice undor the statute, a clear statute. 
 
 illustration of the confusing of ten- 4. Clayton v. Blakey, 8 Durf. & E. 
 
 ancies from month to month with the 3 ; Dog dem. Tilt v. Stratton, 4 Bing. 
 
 17 
 
258 
 
 Landloed and Tenant. 
 
 carried over into the implied letting except the duration of 
 the lease, and even its duration is carried over to this ex- 
 tent, that when the end of the term provided for in the void 
 lease has been reached the implied tenancy from year to 
 year or from month to month ends without notice,' though 
 at the end of any other j^ear six months or a month's notice, 
 as the case may be, would be required to bring it to an end.* 
 In New York the sort of tenancy which arises in such a 
 case is not clearly settled. Where the void lease reserves 
 rent by the year, there is dicta which has been accepted as 
 law by text writers that a tenancy for a year certain arises 
 from such an entry and the payment of rent, the holding 
 over at the end of each year thereafter creating a tenancy 
 for another year, no notice being required, therefore, to 
 terminate the tenancy at the end of any year. This seems 
 to be based on the idea that in entering and paying rent on 
 a yearly basis the parties intend a holding for the longest 
 time permitted under a parol lease, viz., a year.'^ In the 
 
 446; Reeder v. Sayre, 70 N. Y. 180 
 Longhran v. Smith, 75 N. Y. 205 
 Lounsbery T. Snyder, 31 N. Y. 514 
 Coudert v. Cohn, 118 N. Y. 309 
 Talamo v. Spitzmiller, 120 N. Y. 37 
 Huntington v. Parkhurst, 87 Mich, 
 36; Koplitz v. Gustavus, 48 Wis. 48 
 and caaea cited; Hollis v. Burns, 100 
 Fa. St. 206, and cases cited in fol- 
 lowing notes under this section. 
 
 5. The cases in note 4, supra. On 
 the point th t no notice is required to 
 terminate at end of term provided 
 for in parol lease, see Doe dera. Tilt 
 ■w. Stratton, 4 Bing. 446; Reeder v. 
 Sayre, 70 N. Y. 180; Coudert v. Cohn, 
 118 N. Y. 309. That covenants of 
 ■void lease are carried over, see, also, 
 Kernoohan v. Wilkens, 3 App. Div. 
 (N. Y.) 596; Larkin v. Avery, 23 
 Crnn. 304 (holding that in Connecti- 
 cut statutory notice of thirty days 
 
 has taken the place of common law 
 six months' notice ) . 
 
 6. See cases in notes 4 and 5 pre- 
 ceding. 
 
 7. Adams v. City of Cohoes, 127 
 K. Y. 175. In this case, after stating 
 that the tenancy is one which may be 
 ended without notice at the end of 
 any year, like the tenancy arising 
 from a holding over, the court point- 
 ed out that more than six months' 
 notice had actually been given 
 through the tenant's quitting the 
 premises and tendering them to the 
 landlord on August 1st, hiring and 
 occupying other premises, and refus- 
 ing to pay rent thereafter, the cur- 
 rent year expiring on May Ist, there- 
 after. Therefore the position taken 
 that no notice was necessary was not 
 required for the decision of the case- 
 and was dicta. 
 
Indefinite Tenancies TJndeb Void Lease. 
 
 259 
 
 case of an entry under such a void lease in which, rent was 
 reserved by the month, however, the tenancy has been held 
 to be a tenancy from month to month, requiring a month's 
 notice to end it as at common law.^ These cases are clearly 
 sound, since it is irapossible reasonably to infer a tenancy 
 for a month certain or a year certain from such an entry 
 under a void parol lease reserving rent by the month. The 
 dicta above referred to that entry and payment of rent 
 under a void lease reserving rent by the year creates a 
 tenancy for a year certain has little to sustain it on prin- 
 ciple, is opposed to the rule laid down in like cases where 
 rent is reserved by the month, and is opposed to statements 
 contained in other cases decided by the Court of Appeals 
 to the effect that a tenancy from year to year arises under 
 such circumstances.* This question must be still regarded 
 
 McAflam and Chaplin on Landlord 
 and Tenant accept this case as law. 
 
 8. People V. Darling, 47 N. Y. 666; 
 Anderson v. Prindle, 19 Wend. 391; 
 23 Wend. 619; Geiger v. Braun, 6 
 Daly 506. 
 
 9. In Lounsbery y. Snyder, 31 N. 
 Y 514, the court holds that a tenancy 
 from year to year arose from an entry 
 and payment of rent under a parol 
 lease for five years, which might have 
 been terminated at the end of any 
 year by a proper notice. The court 
 does not state what a proper notice 
 would be, but clearly some notice was 
 held to be necessary, the fair infer- 
 ence being that the court had in mind 
 the usual notice of six months. 
 
 In Reeder v. Sayre, 70 N. Y. 180, 
 the court held that a tenancy from 
 year to year arose under a parol leaae 
 for two years, and that notice to 
 quit given to the tenant by a vendee 
 under a contract to purchase from 
 the landlord was not suflicient to end 
 the tenancy. It must be given by the 
 
 owner of the legal estate, the holder 
 of the record title. This case is clear- 
 ly authority for the rule that notice 
 is necessary to terminate the tenancy 
 at the end of any given year, and 
 that no notice need be given at the 
 end of the term fixed by the parol 
 lease, though there is no explicit 
 reference to a notice of six months. 
 In Longhran v. Smith, 75 N. Y. 205. 
 an entry and payment of rent under 
 5 lease for five years was held explicit- 
 ly to create a, tenancy from year to 
 year. The court said: "In some cases 
 it has been said that a parol lease 
 for a longer period than a year is 
 good as a lease for a year, but if by 
 tl'.at is meant that a contract which 
 the statute declares void, may never- 
 theless take efl'ect, and be enforced as 
 if the term specified had been a year 
 only, it is difficult to see how tl;e 
 proposition can be maintained con- 
 sistently with the statute. (Thomas 
 V Nelson, 69 N. Y. 161) ' • *. 
 By the entry, occupation and pay. 
 
260 Landioed and TbnaiTT. 
 
 as an open one in New York with, the weight of authority 
 and of principle in favor of the rule that a tenancy from 
 year to year or from month to month arises, as at common 
 law, requiring the regular notice of six months and one 
 -month respectively to terminate them. The parties actually 
 intended a tenancy which will continue for the period 
 agreed upon in the void parol lease. This intent is defeated 
 by the invalidity of the parol lease. It is clear that from 
 the entry and payment of rent under the void lease, there- 
 fore, the parties do not intend a tenancy limited to one year, 
 but a tenancy which is to continue indefinitely by the year, 
 the terms of the void lease being impliedly agreed upon ns 
 the terms of this implied letting, except for the duration 
 of the term.^" 
 
 Mere entry under such a lease creates at most a tenancy 
 at will. In order that a tenancy from year to year or from 
 month to month shall arise there must be the acceptance of 
 rent by the landlord or some other unequivocal act by which 
 a tenancy in accordance with the terms of the void lease is 
 recognized by both parties as existing between them.^ 
 
 G. — Tenancies at Will. 
 § 154. Nature and Characteristics. — A tenancy for no 
 
 ment of rent they became tenants from In Coudert v. Cohn, 118 N. Y. 309, 
 
 year to year, with the right to termi- entry and payment of rent under a 
 
 nate the lease on the 30th day of parol lease for two years and five 
 
 April of any year on giving due months at a yearly rental was held to 
 
 notice (Braythwayte v. Hitchcock, 10 create a tenancy from year to year. 
 
 M. & W. 494)." The court held that The court recognizes the rule that the 
 
 the tenant having quit on August 1st tenancy would terminate at the end 
 
 could not avoid payment of rent for of the parol term without notice, 
 
 the balance of the year. No question which necessarily involves recognition 
 
 of notice was, therefore, involved, but of the rule that the tenancy could not 
 
 the court clearly takes the position be terminated at the end of any other 
 
 that a tenancy from year to year year except by notice of six months, 
 
 arose, requiring due notice (or six 10. See cases in notes 8 and 9, 
 
 months' notice, an English case to supra. 
 
 that effect being cited) to terminate 1. Talamo v. SpitzmlUer, 120 N. 
 
 it Y 37. 
 
Natuee and Ohakacteristics. 261 
 
 fixed period, nor for life or in fee, whicli is held at the will 
 of both the landlord and the tenant and may be terminated 
 by either at any time, is a tenancy at will.^ The tenant at 
 will has no estate or interest for any fixed period, as in the 
 case of a tenant for years, nor has he an interest which will 
 continue to the end of a succeeding month or year, as in the 
 case of a tenancy from month to month or from year to 
 year. His tenancy, apart from statute, may be ended by 
 his landlord or by himself at any time without notice.^ A 
 tenancy of indefinite duration expressly made at the will of 
 the landlord is a tenancy at will, and is therefore held at 
 the will of the tenant, and a tenancy held at the will of the 
 tenant is also held at the will of the landlord.* It is clear 
 that a tenancy for a fixed term of years is not a tenancy at 
 will, though it be made subject to termination at the will 
 of either party, or of both, since an estate for a fixed term 
 is created, subject to be brought to an end by either party 
 at any time. Unless brought to an end by affirmative action 
 on the part of either the landlord or the tenant, it will con- 
 tinue for the full term provided for, unaffected by the death 
 of either party, or by the conveyance or assignment of the 
 
 S. "Tenant at will is, where lands will of both parties, and therefore 
 
 or tenements are let by one man to when the lease is made, to have and 
 
 another, to have and to hold to him to hold at the will of the lessor, the 
 
 at the will of the lessor, by force of law implyeth it to be at the will of 
 
 wliich lease the lessee is in posses- the lessee also; for it cannot be only 
 
 Bion." Litt., § 68. To same effect, at the will of the lessor; but it must 
 
 8 Bl. Com. 145. See notes immedi- be at the will of the lessee also. And 
 
 ately following, and discussion, par- so it is when the lease is made to have 
 
 ticularly with reference to tenancies snd to hold at the will of the lessee, 
 
 for years . or for life or in fee, ex- this must be also at the will of the 
 
 pressly determinable at the will of lessor; and so are all the books tliat 
 
 one or both of the parties. seem prima facie to differ, clearly 
 
 3. Litt., § 68; 2 Bl. Com. 145-347; reconciled." Co. Litt., 65a; Doe dem. 
 Harris v. Frink, 49 N. Y. 24; Doe Bastow v. Cox, 11 Ad. & El. N. S. 
 dera. Bastow v. Cox, 11 Ad. & Eh N. 122; Western Transp. Co. v. Lansing, 
 S. 122, and cases in following notes. 49 N. Y. 499; Cheever v. Pearson, 33 
 
 4. "It is regularly true that every Mass. 266; Knight v. Indiana, etc. 
 lease at will must in law be at the Co., 47 Ind. 105. 
 
262 
 
 Lau'dloed and Tenant. 
 
 interest of either." It ia also clear that if the instmment 
 creating the tenancy is sufficient to create a freehold estate, 
 either for life or in fee, and the intention to create such an 
 estate is sufficiently expressed, a tenancy at will does not 
 arise, since a tenancy at will is a mere chattel interest in 
 land of the lowest nature. Such an estate is not a tenancy 
 at will merely because it may, in terms, be ended by one 
 party or the other at any time. It is a tenancy for life or in 
 fee subject to termination at the option of either party in 
 accordance with the terms of the instrument creating the 
 estate.* 
 Though the tenant's interest be of the slightest nature, 
 
 5. Leases for a definite term, ter- 
 minable on notice or by surrender; 
 can be terminated only by compliance 
 with the terms of the lease relating 
 to each surrender or termination. 
 Goelet V. Spofford, 55 N. Y. 647; 
 Eeich V. McCrea, 37 N. Y. St. Eep. 
 620; Dierig v. Callahan, 35 Misc. (N. 
 Y. ) 30 ; Woodbridge Co. v. Hires Co., 
 19 App. Div. (N. Y.) 128; Hendry v. 
 Squier, 126 Ind. 19; Hooks v. Forst, 
 165 Pa. St. 23S; Pratt v. Paine, 119 
 Mass. 439. 
 
 G. Gilmore v. Hamilton, 83 Ind. 
 196; Ely V. Randall, 68 Minn. 177. 
 Some misapprehension of the passage 
 quoted from Coke's Littleton in note 
 4, supra, has developed in the cases. 
 It is clear that in referring to ten- 
 ancies terminable at the will of one 
 party as being also terminable at the 
 will of the other, the author "■•r>forved 
 to tenancies at will, of indefinite 
 duration, and not to tenancies for 
 years or for life or in fee terminable 
 at the will of either landlord or ten- 
 ant. 
 
 "All that the passage cited from 
 Coke means is that if there is a de- 
 mise with no term fixed between the 
 
 parties except the will of the lessor, 
 then it is implied by law to be also 
 at the will of the tenant." Cotton, 
 L. J. in In re Threlfall, 16 Ch. Div. 
 264. 
 
 A lease of certain premises at an 
 annual rent so long as the premises 
 are used for the purposes of manu- 
 facturing cheese created an estate for 
 life, not a tenancy at will, since it is 
 clear that it was not to be ended by 
 either party at any time, but only on 
 the stated contingency. Warner v. 
 Tanner, 38 Oh. St. 118. For the 
 same reason a grant reserving an an- 
 nual rent of property "so long as the 
 salt works are improved or stand on 
 said land," etc., Hurd v. Cusliing, 7 
 Pick. (24 Mass.) 169, and a lease for 
 so long as the tenant should keep 
 furnaces on the premises, Cook v. 
 Bisbee, 35 Mass. 527, created estates 
 for life, not at will. 
 
 But a contract to "let, lease and 
 give possession" without stating the 
 term in any way, the intention being 
 to create a leasehold interest, not a 
 freehold estate, created at most a 
 tenancy at will. Gardner v. Hazle- 
 ton, 131 Mass. 494. 
 
Oeeation of Tewanoies at Will. 263 
 
 aevertheless the relation of landlord and tenant exists and 
 the leased premises belong to the tenant while the tenancy 
 at will is permitted to continue, so that he may maintain 
 trespass against a stranger who has made a wrongful entry j'^ 
 and ejectment against a stranger wrongfully ousting him 
 therefrom.^ He is also, as we have stated in a preceding 
 chapter, entitled to emblements.® He is not liable for per- 
 missive waste, his interest being so slight that the courts 
 construed the Statute of Marlbridge and Gloucester as not 
 applying to tenancies at will." An act of voluntary waste 
 on his part, being an act of hostility to the landlord, ter- 
 minates the tenancy by ending the concurrence of the two 
 wills essential to the existence of the estate, and the tenant 
 is liable therefor to his landlord in trespass." 
 
 § 155. Creation of Tenancies at Will. — To create a ten- 
 ancy at will the leased premises must be transferred to the 
 tenant as temporary owner, as in all other cases where the 
 
 7. Hamilton v. Dennison, 56 Conn. 8 Covert v. Morrison, 49 Mieh. 
 
 859; Foley v. Wyeth, 84 Mass. 135; 133, and authorities therein cited and 
 
 Goodwin v. Clover, 91 Minn. 438. discussed. As a tenant at will has an 
 
 If the trespasser commits a perma- estate, giving him the right of ex- 
 
 nent injury to the premises, doing in- elusive possession and enjoyment 
 
 jury to the landlord's interest in re- against the world until the estate be 
 
 version, the landlord may also sue terminated, his right to maintain 
 
 him in trespass. Starr v. Jackson, 11 ejectment is clear, though there is 
 
 Mass. 519 ; Davis v. Nash, 32 Me. 411. little authority on the question. See 
 
 Since tenants at will are not sulv Tiffany, Landlord and Tenant, Vol. 
 
 ject to an action of waste, but are II, ch. 33. 
 
 liable in trespass for their own acts 9. Co. Litt. 55a; 3 Bl. Com. 145- 
 
 of voluntary waste (See notes 10 and 147; Harris v. Frink, 49 N. Y. 24; 
 
 11, post), this is the only remedy Brown v. Thurston, 56 Me. 126. See 
 
 which the landlord has for permanent §§ 31-35, ante. 
 
 injury done by a stranger. When 10. Co. Litt. 57a; Phillips v. Co- 
 
 the trespasser does no permanent in- vert, 7 Johns. (N. Y.) 1; Moore v. 
 
 jury, injuring only the possession and Townshend, 33 N. J. L. 284; Lothrop 
 
 right of enjoyment of the tenant at v. Thayer, 138 Mass. 466. Sea 
 
 T\'ill, the landlord cannot maintain an Waste, § 60, et seq, ante. 
 
 action against the trespasser. French 11. Chalmers v. Smith, 152 Mas». 
 
 ▼ Fuller, 40 Mass. 104. 561, and cases in preceding note. 
 
264 Landloed aitd Tenant. 
 
 relationship of landlord and tenant is created. Therefore 
 possession by a trespasser with the knowledge of the owner, 
 or possession by a licensee for a stated purpose, does not 
 create a tenancy at will. The relationship of landlord and 
 tenant mnst arise.^ A tenancy at will may arise (a) by ex- 
 press agreement as in any case where a tenancy for no 
 stated term is expressly made at the will of both parties or 
 at the Avill of either one.^ This class includes tenancies of 
 indefinite duration in which rent is reserved by the month 
 or year, or the like, as well as cases in which there is no 
 such reservation of rent, provided the tenancy be expressly 
 made at the will of the parties, or either of them.^ (b) Ten- 
 ancies at will most frequently arise in cases of a general 
 letting for an indefinite period without reservation of a 
 rent by periods, and without an express provision for a 
 holding at will. If rent be reserved by the year, month, etc., 
 a tenancy from year to year or from month to month, etc., 
 arises, as we have seen.* But if there be no reservation of 
 rent by such periods the tenancy is necessarily terminable 
 by either party at any time, and is therefore a tenancy at 
 
 1. Osgood V. Dewey, 13 Johna. (R. and the forbearance by the owner aro 
 
 Y.) 340. See § 144, ante, as to dis- sucb as to indicate a holding by 
 
 tinction between tenancy and license, mutual consent, it is a question of 
 
 That mere silence on the owner's fact for the jury or the court as to 
 
 part does not change the wrongful whether a tenancy at will has arisen, 
 
 possession of a trespasser or of a the tenancy existing if such mutual 
 
 licensee holding in violation of his consent be found as a fact. Zilch v. 
 
 license into a tenancy at will, that a Young, 184 111. 333; Jennings v. Mc- 
 
 kase or demise in some form, express Carthy, 40 N. Y. St. Eep. 678 (em- 
 
 or implied, is necessary, see Ley v. ployer holding over six months after 
 
 Peter, 3 Hurl. & N. 101; Moore v. termination of employment presumed 
 
 Smith, 56 N. J. Law, 446 (hold-over to hold at will of employer), 
 tenant is tenant by sufferance only 2. Doe dem. Bastow v. Cox, 11 Ad. 
 
 until by some affirmative act the land- & El. (N. S.) 123; Burns v. Bryant, 
 
 lord elects to hold him as tenant 31 N. Y. 453. 
 
 under the terms of the former lease) ; 3. Doe dem. Bastow v. Cox, 11 Ad. 
 
 Bodwell Granite Co. v. Lane, 83 Me. & El. (N. S.) 123. 
 168; Blum v. Robertson, 24 Cal. 137. 4. §8 150, 163, ante. 
 
 If the facts attending the holdin" 
 
Ceeation of Tenancies at Will. 265 
 
 will.^ Certain special cases of this class of tenancies at 
 will should be specially considered. A vendor, let into 
 possession of real property before the closing of title, is 
 a tenant at will, both at law and in equity in cases where 
 the contract to sell is void and unenforceable because not 
 in writing, or for any other cause, and at law only when the 
 contract is valid and enforceable by specific performance.® 
 In this latter case, however, the vendor in possession is, in 
 equity, owner of the property in question.^ A tenant who 
 holds over with the consent of his landlord for an indefinite 
 period and for a stated purpose, is a tenant at will, no rent 
 being agreed upon, the parties expressly or impliedly agree- 
 ing that the tenant shall not be liable as a holdover tenant 
 from year to year or from month to month. This tenancy 
 is at the will of both parties for an indefinite period.* Entry 
 under a void lease, void under the Statute of Frauds or for 
 any other reason, creates a tenancy at will pending the time 
 of its conversion into a tenancy from year to year or from 
 month to month by the acceptance of rent by the landlord. 
 It is a tenancy of indefinite duration which may be ended 
 by either party at any time, the tenant entering as such 
 with the consent of the landlord.' A parol gift of real 
 property, void because not by deed, creates a tenancy at 
 will upon entry. The tenant occupies as owner at the will 
 of the maker of the gift.^" 
 
 5. Richardson v. Langridge, 4 Taut. 7. Brighton Beach E. Ass'n v. 
 138; Burns v. Bryant, 31 N. Y. 453; Home Ins. Co., 113 App. Div. (N. 
 Larned v. Hudson, 60 jST. Y. 103, and Y.) 536, and cases therein cited 
 cases in following notes. (Aff'd 189 N. Y. 536). 
 
 6. Doe d. Tomes v. Chamberlaine, 8. Emmons v. Scudder, 115 Mass. 
 5 M. & W. 14; Harris v. Frink, 49 367; see § 151, ante. 
 
 N. Y. 24 ; Freeman v. Headley, 33 N 9. Talamo v. Spitzmiller, 120 N. Y. 
 
 J. L. 533; Washburn v. White, 197 37. 
 
 Mass. 540. Such vendee is not liable 10. Jackson v. Rogers, 1 Johns. 
 
 for rent or for use and occupation, Cas. (N. Y.) 33, cited in Harris v. 
 
 since by express or implied agreement Frink, 49 N. Y. 34. 
 
 he is to pay nothing for the use of 
 
 the premises. 
 
266 
 
 Lattdloed and Tenant. 
 
 § 156. Termination of Estates atWill.— As we have seen, 
 
 a tenancy at will may be brought to an end by either party 
 at any time without notice.^ Statutes have been enacted 
 in many states requiring the giving of notice.^ In New York 
 and several other states, the landlord is required to give 
 a tenant at will thirty days' notice, though no notice is re- 
 quired from the tenant to the landlord, the tenant having 
 the right to terminate the tenancy at any time without 
 notice.^ 
 
 Since the tenancy depends upon the mutual concurrence 
 of the will of landlord and tenant, anything which breaks 
 that concurrence terminates the tenancy. Thus the death 
 of either landlord or tenant ends the tenancy at will.* A 
 conveyance by the landlord of the property occupied by the 
 tenant terminates the tenancy for the same reason.^ An 
 
 1. See § 154, ante. A demand or 
 other act showing an intent to termi- 
 nate the tenancy by the landlord 
 must be proved before ejectment or 
 dispossess proceedings can be started. 
 2,ilch V. Young, 184 111. 333. But the 
 starting if an ejectment suit -which 
 fails or is discontinued will terminate 
 the tenancy so that a later suit may 
 be maintained against the tenant. 
 Chamberlain v. Donahue, 45 Vt. 50. 
 
 The tenant can terminate the ten- 
 ancy only by relinquishing possession. 
 A mere notice to that effect without 
 giving up possession does not affect 
 the tenancy. Chandler v. Thurston, 
 27 Mass. 205 ; Shaw v. Hill, 79 Mich. 
 86; Bartlett v. Robinson, 52 Neb. 
 735. 
 
 2. In New Jersey, Massachusetts, 
 Michigan, Minnesota and some other 
 states notice of tliree months must be 
 given by landlord to tenant or by 
 tenant to landlord. N. J. Acts 1903, 
 c 13, § 3; Mass. Rev. Laws, 1902, l-. 
 189, § 12; Mich. Comp. L., 1897, 
 
 § 9257; Minn. Rev. L. 1905, §3332. 
 
 3. N. Y. Real Prop. L., § 228 ; Cal. 
 Civ. Code, § 789 (1 month); Burns 
 Statutes, Indiana, 1901, § 7088 (1 
 month). In Maine, Iowa, and some 
 other states 30 days' notice is re- 
 quired from tenant to landlord as 
 well as from landlord to tenant. 
 
 These statutes do not apply to ter- 
 mination by conveyance by landlord 
 or attempted assignment by tenant or 
 by death or either party, no notice 
 being required in such cases. Howard 
 V Merriam, 59 Mass. 563; Curtis v. 
 Galvin, 83 Mass. 215; Cooper v. 
 Adams, 60 Mass. 87. 
 
 4. Co. Litt. 57b; 2 Bl. Com. 146. 
 
 5. Curtis V. Galvin, 83 Mass. 215: 
 Emmes v. Feeley, 132 Mass. 346 
 (Conveyance of part of premises 
 terminates tenancy ; taking of ease- 
 ment for public street, without evic- 
 tion of tenant, does not end tenancy) ; 
 Lash V. Ames, 171 Mass. 487; Mars- 
 ters V. Cling, 163 Mass. 477 (sale 
 imdcr execution of landlord's interest 
 
Teemiitatioit of Estates at Will. 267 
 
 attempted assignment by the tenant of his interest is void, 
 and the attempt results only in bringing the tenancy at 
 will to an end.^ If the landlord permits the assignee in 
 such case to occupy the premises on the same terms, a new 
 tenancy at will arises; it is in no respect a continuance of 
 the former tenancy^ 
 
 On the termination of his estate a tenant at will is given 
 a reasonable time in which to move his goods and chattels 
 from the premises.® 
 
 In New York § 232 of the Real Property Law provides 
 that an agreement for the occupation of real property in the 
 City of New York, which shall not particularly specify the 
 duration of the occupation, shall be deemed to continue 
 until the first day of May thereafter. The courts have held 
 that this section does not apply to a tenancy from year to 
 year or to a monthly tenancy, as distinguished from a ten- 
 ancy from month to month, since the duration of a tenancy 
 for a month, and then for another month by holding over, 
 is definitely stated, and a tenancy from year to year is to 
 c.mtinue for a full year at least, or beyond May 1st after the 
 tenancy arises.^ The statute in question does apply to a 
 
 ends tenancy) ; Mentzer v. Hudson ant for breach of the covenant of 
 
 Sav. B., 197 Mass. 338 (lease by quiet enjoyment) ; Austin v. Thomp- 
 
 landlord has same effect) ; Cofran v. son, 45 N. H. 113. 
 
 Sheppard, 148 Mass. 583 (conveyance 8. Litt., § 69; Lash v. Ames, 171 
 
 of undivided interest by tenant in Mass. 487 (holding that if the tenant 
 
 common, same result). fails to remove his effects within rea- 
 
 6. Co. Litt. 57a; Eeckhow v. sonable time landlord may remove 
 Schanok, 43 N. Y. 448 ; Landon v. them and store them at his expense 
 Townsend, 139 N. Y. 166; Cooper v. and risk) ; Livingston v. Tanner, 14 
 Adams, 60 Mass. 87. N Y. 64; Moore v. Boyd, 34 Me. 342. 
 
 7. Landon v. Townsend, 139 N. Y. 9. Olson v. Schlevoritz, 91 App. 
 166. Div. (N. Y.) 405; Schloss v. Huber, 
 
 A sublease made by a tenant at 31 Misc. 38; Gilfoyle v. Cahill, 18 
 
 will is binding as between the tenant Misc. 68. In the last case cited the 
 
 and subtenant. Holbrook v. Young, court erroneously treated a tenancy 
 
 108 Mass. 85 (holding that the ten- from month to month arising by entry 
 
 ant at will was liable to his subten- and payment of rent under a void 
 
268 Landloed and Tenant. 
 
 tenancy from month to montli, since it is an indefinite ten- 
 ancy by the month, the duration of which is not specified. 
 Such tenancy may be terminated by a month's notice at the 
 end of any month, the only effect of the statute being that 
 on May 1st after the tenancy arises it comes to an end 
 without notice." The statute would seem to apply to a 
 tenancy at will, resulting in the termination of the tenancy 
 without notice on the May 1st after the tenancy arises. It 
 has been held, however, that the statute does not apply to a 
 tenancy at will.^^ 
 
 D. — Tenancies at Sufferancee. 
 
 § 157. Nature and Characteristics. — A tenancy at suf- 
 ferance arises in any case when a tenant for years, from 
 year to year, from month to month, etc., a tenant at will, 
 or a tenant jmr autre vie, or other tenant rightfully in pos- 
 session, holds over after his tenancy has been brought to an 
 end. He is in no proper sense a tenant, and the relation of 
 landlord and tenant does not exist between Mm and the 
 owner of the land in reversion or remainder.^ All that the 
 
 lease as a monthly tenancy, viz.: foi- was the situation in tlie case above 
 
 a month certain, and held that the cited, it clearly comes within the 
 
 statute did not apply. statute, and what would otherwise be 
 
 10. Spies V. Voss, 16 Daly 171; a tenancy at will becomes a tenancy 
 Bernstein V. Lightstone, 36 Misc. 193; until May 1st thereafter which 
 Galensky v. Applebaum, 32 Misc. 203. neither party can terminate before 
 
 11. Jennings v. McCarthy, 40 N. Y. that date. It is diiRcult to see i'ow 
 St. Rep. 67S. the court can justify its position that 
 
 It is clear that if the tenancy is such a letting specifies its duration. 
 expressly at the will of the parties it 1. "A tenancy at sufferance is he 
 may be ended at any time before May that at the first came in by lawful 
 1st by either party, and if the statute- demise and after his estate ended con- 
 applies it changes the tenancy at will tinueth in possession and wrongfully 
 into a tenancy till May 1st thereafter holdeth over," Co. Litt. 57b. To same 
 which may be ended at the will of effect, 2 Bl. Com. 150. 
 either party. If the tenancy is simply A tenant for years holding over is 
 an indefinite holding consented to by a tenant nt sufferance. Jackson v. 
 the landlord, and not expressly ter- Parkhurst, 5 Johns. (N. Y.) 128; 
 minable by either party at will, which Moore v. Smith, 56 N. J. L. 446; 
 
Tenancies at Suffebajscb. 269 
 
 so-called tenancy at sufferance amounts to is this — that 
 the tenant is not a disseisor, not having made a wrongful 
 entry, and therefore is not liahle as a trespasser until the 
 landlord regains possession by entry or by ejectment, when, 
 by relation, the so-called tenant becomes a trespasser from 
 the beginning of his wrongful holding over, and may be held 
 liable as such,^ and that his possession is not adverse to the 
 landlord, and he cannot acquire title by twenty years of 
 such possession, unless it appears that he avowedly holds 
 adversely to the landlord under some pretended title other 
 than such as arises from his holding over.'' The reasons 
 underlying these tenancies show exactly their nature and 
 limitations, and turn entirely on the doctrine of disseisin 
 as related to the action of ejectment and to title by adverse 
 possession. A mere wrongdoer who enters upon the land of 
 another and takes exclusive possession as owner, whether 
 under pretended claim of title or not, is a disseisor, and 
 becomes seised of the property, of his own wrong, but never- 
 
 Poole V. Engelke, 61 N. J. L. 124; the original term, was held to be a 
 
 Edwards v. Hale, 91 Mass. 463; trespasser. The action was ejeet- 
 
 Devine v. Lord, 175 Mass. 384. ment, and it is evident that the court 
 
 Tenant at will holding over after in stating that they were all tres- 
 
 termination of Ms estate by notice, passers meant that they were tres- 
 
 conveyance, etc., is tenant by suffer- passers at the election of the land- 
 
 ance. Marsters v. Cling, 163 Mass. lord, which election was shown by the 
 
 477; Emmes v. Feeley, 133 Mass. 346. ejectment suit. 
 
 The assignee of a tenant at will, in 2. 1 Tiffany Landl. & Ten., 145, 
 possession as such assignee, is a mere 146; 3 Bl. Com., 310; Jackson v. 
 trespasser, not a tenant by sufferance, Cairns, 20 Johns. (N. Y.) 301; Leland 
 since he enters as a wrongdoer, the v. Tonsey, 6 Hill (TST. Y.) 328; Dor- 
 attempted assignment terminating rell v. Johnson, 34 Mass. 263; Rising 
 the tenancy at will. Reckhow v. v. Stannard, 17 Mass. 282. 
 Schank, 43 N. Y. 448. Though before entry by the land- 
 Lessee of tenant for life holding lord trespass will not lie against a 
 after the death of the life tenant is a tenant by sufferance, yet case will lie 
 tenant at sufferance. Doe d. Thomas for injuries done by tenant before 
 V. Roberts, 16 M. & W. 780; Manning entry by the landlord. Russell v. 
 V. Brown, 47 Md. 506. Fabyan, 34 N. H. 318. 
 
 In Pearce v. Ferris, 10 N. Y. 380, 3. Jackson v. Cairns, 20 Johns. (N. 
 
 a subtenant of a tenant for years, Y.) 301; Leport v. Todd, 32 N. J. L. 
 
 holding over after the expiration of 124. 
 
270 Landloed and Tenant. 
 
 theless seised, so that in an action of trespass brought by 
 the record owner he can be held only for the wrongful entry, 
 but no damages may be recovered in the trespass suit for 
 the wrongful withholding of the property. The record 
 owner must recover his possession, either by peaceful entry 
 or by ejectment, before he can hold the wrongdoer in 
 damages for si:icli wrongful withholding of the land; the 
 owner then being entitled to recover what are termed the 
 mesne profits from the wrongdoer.* Since a tenant by suf- 
 ferance has made no wrongful entry, but merely fails to 
 move out when his tenancy expires, he is not guilty of a 
 disseisin, and therefore cannot be held in trespass. Since he 
 continues to hold possession of the land against the right 
 of the record owner, such owner must enter or maintain 
 ejectment before he can hold the tenant for mesne profits, 
 as in the case of the mere wrongdoer. The tenant's pos- 
 session being thus ended, and having been clearly wrongful, 
 by relation he becomes liable as trespasser for the mesne 
 profits from the beginning of his holding over.^ His hold- 
 ing over is not adverse within the meaning of the law of 
 title by adverse possession because there has been no dis- 
 seisin, and the holding is prima facie a continuance of Ms 
 former tenure, and therefore not theoretically under claim 
 of title adverse to the landlord, though actually hostile.^ 
 
 § 158. Tenancies at Sufferance Under Statute.— By 
 
 statute in New York and several other states tenancies at 
 sufferance are classed with tenancies at will, and the same 
 
 4. See note 2, supra, particularly holding is regarded as adverse under 
 the thorough treatment of this ques- the statute of limitations. There is 
 tion in 1 Tiffany's Landl. & Ten.. 145, no inference that he continues to hold 
 140; Bigelow on Torts (7th ed.), by the same tenure, since tne remain- 
 §§ 469, 470. derraan or reversioner is a stranger to 
 
 5. See note 3, supra. him, differing radically from a hold- 
 
 6. See note 3, supra. iug over by a tenant for years, from 
 A tenant pur autre vie, holding year to year, or at vi'ill. See I Tiffany 
 
 ever after the death of the cestui que Landl. & Ten. 148, et sea. 
 vie, is a tenant at sufferance, but his 
 
Tenancies at Stjffeeanoe. 271 
 
 notice is required to bring them to an end, thirty days in 
 New York and some other states, one month or three months 
 in other statesJ These statutes were enacted in apparent 
 ignorance of the nature of tenancies at sufferance, and 
 without any conception of the result which would follow 
 the literal application of the provision. Every tenant could, 
 by merely holding over without right, become a tenant by 
 sufferance and thereby extend his term thirty days or three 
 months, as the case might be, without the consent of the 
 landlord under these statutes literally applied. Of course 
 no such result was intended, and the courts have corrected 
 the bungling error of the lawmakers by -a bit of judicial 
 legislation, holding that the tenancy at sufferance intended 
 by the statute is a tenancy in which the tenant has held 
 over so long as to give rise to the implication that the land- 
 lord is actually suffering or consenting to his holding, in 
 effect a tenancy at will.^ The idea of laches on the part of 
 the landlord seems to be involved, the courts stating that 
 the holding over must be so long continued as to amount 
 to laches on the landlord's part. A holding over of about 
 three months has been held not sufficient to create such 
 a tenancy within the meaning of the statute.® Of course 
 the ordinary tenancy at sufferance may be ended by entry 
 without notice as at common law.^" 
 
 7. N. Y. Eeal Prop. L., § 338; Mis- Acts of 1903, e. 13, providing that 
 
 souri Rev. St. 1899, § 4110; Wiacon- "any lessee or tenant at will or by 
 
 sin Rev. St. 1898, § 1383. See, also, sufferance" may be removed by the 
 
 statutes of Michigan and Oregon, re- District Court when any such person 
 
 quiring three months' notice. See sliall hold over after the tenancy ex- 
 
 § 15-6, notes 3 and 3, ante, for the pi res and after demand and notice in 
 
 statutes requiring notice for tenan- writing for delivery of possession to 
 
 cies at will- the landlord. 
 
 In Guvenator v. Morris, 60 N. J. L. 8. Smith v. Littlefield, 51 N. Y. 
 
 114, the court held that the statute 539; Rowan v. Lytle, 11 Wend. (N. 
 
 (Acts 1898, e. 328, § 109) requiring Y.) 617; Meno v. Hoeffel, 46 Wis. 
 
 three months' notice by landlords to 3S3; Irvine v. Scott, 65 Ky. 360. 
 terminate a tenancy by sufferance, 9. See cases in preceding note, 
 
 was repealed by Acts 1901, c. 39, and 10. See note 8, supra. 
 
272 Landlord and Tenant. 
 
 E. — Covenants in Leases, 
 
 § 159. Nature and Effect.— A lease, as we have seen, is 
 
 primarily a conveyance or transfer of an estate from the 
 landlord to the tenant. Though it need not be a contract, 
 as a practical matter nearly every lease is also a contract, 
 expressing the terms and conditions nnder which 4he es- 
 tate transferred by the lease is held and enjoyed by the ten- 
 ant. The express covenants of the lease, so called whether 
 the lease be by parol or in writing, with or without a seal, 
 are the promises made by the tenant to the landlord, as the 
 covenant to pay rent, to make repairs, not to assign or sub- 
 let, and the like, and the promises made by the landlord to 
 the tenant, as an express covenant of quiet enjoyment, cov- 
 enant to repair, to renew the lease, etc. These covenants 
 limit and define the relation of landlord and tenant be- 
 tween the parties, and therefore when that relationship is 
 transferred to others, through an assignment of his lease- 
 hold interest by the tenant, or by a conveyance of the prop- 
 erty subject to the lease by the landlord, the new landlord 
 and the new tenant are bound by these covenants so limit- 
 ing and defining the relationship, and the rights and obliga- 
 tions of the tenant under the lease. These covenants, there- 
 fore, " run with the land," which means simply that they 
 are the terms under which the leasehold estate was created 
 and is held, and when the leasehold estate is assigned the 
 assignee necessarily takes the term subject to the same cove- 
 nants, and the grantee of the landlord necessarily takes the 
 reversion subject to them as the terms of the tenure under 
 which the tenant holds.^ 
 
 Implied covenants do not arise out of any contract, ex- 
 press or implied in fact, but are rather incidents of the 
 relation of landlord and tenant imposed by law. They also 
 " run with the land," since they are binding incidents of 
 the relationship of landlord and tenant which will bind the 
 
 1. See cases cited in notes following. 
 
Implied Covenant of Quiet Enjoyment. 2Y3 
 
 assignee of the tenant and tlie grantee of the landlord, as 
 the old tenancy or term continues between the new parties. 
 This question is more fully defined and illustrated in the dis- 
 cussion of Assignment and Subletting.^ 
 
 § 160. Implied Covenant of Quiet Enjoyment. — This is a 
 covenant implied in law that the tenant shall not be dis- 
 turbed in his quiet enjoyment of the leased property by any 
 wrongful act of the landlord or of his successors in inter- 
 est, or by the enforcement of any title superior to that of 
 the landlord.* Under the old cases it was held to be implied 
 from the words ' ' demisi " or " concessi, ' ' or their equiva- 
 lents, " demise " or " grant." * Under later cases words of 
 letting of any kind were held sufficient, and the modern rule 
 now prevailing in England, New York, and in nearly all 
 the states is that the covenant will be implied from the 
 mere relationship of landlord and tenant, no matter how 
 that relationship arises or by what means it was created." 
 The wrongful act of the landlord must amount to an evic- 
 tion to give a cause of action for violation of this covenant. 
 A mere trespass, however it may disturb the tenant, is not 
 a breach unless it results in ousting the tenant from the 
 
 2. See Assignment and Subletting, 6. Mayor, etc. of N. Y. v. ilabie, 
 post. 13 N. Y. 360; Mack v. Patehin, 43 N. 
 
 3. As this covenant does not arise Y. 167; Dunclclee v. Webber, 15t 
 from any agreement, express or im- Mass. 403; Budd-Scott v. Daniel, 3 
 plied, between the parties, it follows K. B. 351; Stott v. Rutherford, 93 
 that it is in no true sense a covenant, U. S. 107. 
 
 but rather an arbitrary rule of law In New Jersey and New Hamp- 
 
 sttaching to the status of landlord shire the purely technical rule that 
 
 and tenant. It follows that the rela- the covenant will be implied only in 
 
 tionship of landlord and tenant alone, leases containing the words '■demisV 
 
 irrespective of the words used in the or "concessi" or their equivalents, and 
 
 lease creating it, or whether such not from the mere relationship of 
 
 lease be by parol or in writing, is landlord and tenant still prevails, 
 
 sufficient to give rise to this so-called Mershon v. Williams, 63 N. J. L. 398 
 
 •'covenant." Gano v. Vanderveer, 34 N. J. L. S93 
 
 4. Andrew's case, Cro. Eliz. 214: Levering v. Lovering, 13 N. H. 513. 
 Spencer's Case, r^ Coke 16. 
 
 18 
 
274 Laitdloed and Teitant. 
 
 •whole or some part of tlie premises leased.* A nuisance 
 maintained by the landlord on adjoining property, and for 
 which he is responsible, will constitute a breach of this 
 covenant if the the tenant is so disturbed and interfered with 
 in his enjoyment of the premises that he is forced to quit. 
 He has been evicted by the wrongful act of the landlord.'' 
 If he remains in possession, however, he can maintain no 
 action or counterclaim for breach of this covenant, since 
 he has not been evicted, his only remedy being an action 
 for damages in tort based on the nuisance.* If the nuisance 
 is maintained or trespass committed by a stranger the 
 landlord is not responsible for it, as there is no eviction 
 by the landlord, even though the tenant has been forced to 
 quit the premises. His only remedy is against the stranger.' 
 The landlord in such case has done nothing to disturb his 
 quiet enjoyment. If the tenant is forced to quit the premises 
 because the landlord has failed to supply heat in the case of 
 a steam-heated apartment or office, heated by a central plant 
 under the control of the landlord, the landlord is liable for 
 breach of the implied covenant of quiet enjoyment, though 
 he cannot be held in damages if the tenant remains in 
 possession." 
 
 6. Snow V. Pulitzer, 142 N. Y. 2G3; 281; Borecl >'. Lawton, 90 N. Y. 293. 
 Boreel v. La-wton, 90 N. Y. 293; 8. See preceding note. 
 
 Kdgerton v. Page, 20 N. Y. 281; In- 9. Gilhooley v. Washington, 4 N. 
 
 ternational Trust Co. v. Schumann, Y. 217; Gardner v. Keteltas, 3 Hill 
 
 158 Mass. 281; Roth v. Adams, 185 (N. Y.) 330; Hyde v. Wihuore, 14 
 
 Mass. 341; Sherman v. Williams, 113 Misc. (N. Y.) 340: Kimball v. Grand 
 
 Mass. 481, and cases in preceding Lodge, etc., 131 Mass. 59. 
 
 note, AVhere the landlord induced a 10. Jackson v. Paterno, 128 App. 
 
 third party to start proceedings to Div. (N. Y.) 473; affirming, 58 Mise. 
 
 restrain the tenant from using the aoi. The court held that in the ab- 
 
 pemises for the purpose for which sence of any express covenant on the 
 
 they were leased (skating rink) re- part of the landlord to supply heat, 
 
 suiting in the tenant's, ouster, the none would be implied in fact from 
 
 landlord was liable. Williams v. Get- the fact that the apartment was not 
 
 man, 114 App. Div. (N. Y.) 282. provided with means for heating ex- 
 
 7. Dyett v. Pendleton, 8 Cowen (N. cept by radiators connected with a 
 i'. ) 727 ; Edgerton v. Page, 30 N, Y. heating system under the sole control 
 
FuETHEE Incidents of Covenant, etc. 
 
 275 
 
 § 161. Further Incidents of Covenant of Quiet Enjoy- 
 ment; Covenant of Power to Demise. — Ousting of a tenant 
 tlirougli the assertion of a title paramount to the landlord's 
 is a breach of the implied covenant of quiet enjoyment, this 
 covenant including an implied covenant of power to demise 
 on the part of the landlord.^ An express covenant that the 
 tenant shall not be disturbed by acts of the lessor or those 
 claiming through him takes the place of the implied coven- 
 ant, and by implication excludes the implied covenant of 
 title or power to demise, so that under a lease containing 
 such a covenant the tenant cannot maintain an action for 
 an eviction resulting from the enforcement of a paramount 
 title.^ The parties may prevent the implied covenant from 
 arising by a stipulation to that effect,^ or they may modify 
 
 of the landlord ; but as the furnishing 
 of such heat by the landlord was es- 
 sential to the enjoyment of the apart- 
 ment, his failure to furnish adequate 
 lieat, rendering the apartment unfit 
 for occupancy, would justify the ten- 
 ant in moving out, anionntincj to an 
 eviction though the wrongful default 
 of the landlord, for which he would be 
 liable; as the tenant did not move 
 out, the court held that no action 
 would lie. It is hard to see how the 
 failure of the landlord to supply heat 
 could amount to a, default or wrong- 
 ful act unless he had contracted, ex- 
 pressly or impliedly, to furnish heat. 
 It seems clear that a contract to sup- 
 ply heat should be implied in such 
 case from the facts; it is impossible 
 to escape from the conclusion that the 
 parties, as reasonable men, could 
 have intended nothing else. 
 
 1. Mayer, etc., of N. Y. v. Mabie, 
 13 N. Y. 151 ; Mack v. Patchin, 42 N 
 T. 167 ; Holbrook v. Young, 108 Mass. 
 83 ; King v. Bird, 148 Mass. 573. 
 
 In New Jersey the rule that the 
 
 covenant of power to demise will be 
 implied only from the words "demisV 
 or "concessi" or their equivalents, laid 
 down in Gano v. Vanderveer, 34 N. J. 
 L. S93, would seem to be only part of 
 the broader rule, still the law in that 
 slate that the covenant of quiet en- 
 joyment will be implied only where 
 such words are used. Mershon v. 
 Williams, 63 N. J. L. 398. 
 
 2. An express covenant of quiet en- 
 joyment "without molestation or dis- 
 turbance from the lessor, his succes- 
 sors or assigns" was held to exclude 
 the usual implied covenant, so that 
 the landlord was not liable when the 
 tfnant was ousted through foreclosure 
 of a prior mortgage, in Burr v. Sten- 
 tcn, 43 N. Y. 463. 
 
 In England the implied covenant of 
 quiet enjoyment is a covenant against 
 acts of the landlord and those claim- 
 ing through him, and does not in- 
 clude ouster through failure of title. 
 Jones V. Lavington, 1 K. B. 253. 
 
 3. Haider v. Carondelet, 26 Mo. 
 113. 
 
2Y6 Landloed and Tenant. 
 
 the implied covenant in any way they please, by express 
 provision. An express covenant against eviction by the 
 wrongful acts of the landlord is snch a modification, and ex- 
 cludes by implication the implied covenant of title which 
 would otherwise form part of the covenant of quiet en- 
 joyment.* 
 
 The tenant cannot maintain an action for breach of the 
 covenant of quiet enjoyment arising out of the landlord's 
 failure of title until he has been evicted. He may be evicted 
 within this rule either by an actual ouster as the result of an 
 ejectment suit, or by attorning to the superior owner as his 
 tenant, or by peacefully yielding possession to him, and 
 he may so attorn or yield possession without waiting for the 
 commencement or prosecution of a suit, in case such adverse 
 title is really paramount to that of the landlord.** In either 
 case the eviction of the tenant from his interest under the 
 original lease is complete. 
 
 The eviction of the tenant from the use and enjojnnent of 
 an incorporeal right in the nature of an easement given him 
 expressly or impliedly as part of the thing leased, is a 
 breach of this covenant for which an action will lie. Thus 
 the tenant of an office or apartment with windows opening 
 on an open court or back yard or alley, part of the lot on 
 which the building stands, acquires under his lease the 
 right to light and air from such open space, and may assert 
 an eviction if such open space is built upon or enclosed so 
 as to shut off light and air. The tenant is deprived of part 
 of the thing leased, and may hold the landlord for breach 
 of this covenant.* The same result follows where the land- 
 
 4. Burr v. Stenton, 43 N. Y. 462. Case v. Minot, 158 Mass. 577. In 
 
 6. King V. Bird, 148 Mass. 573; Brown v. Holyoke Water Power Co, 
 
 Morse v. Goddard, 13 Mete. (Mass.) 152 Mass. 463, the cutting oflf of water 
 
 177; Lawrence v. French, 25 Wend, power which the landlord agreed to 
 
 (N. Y.) 443. furnish was held to be an eviction 
 
 6. Doyle v. Lord, 64 N. Y. 432; from part of the thing leased; the 
 
 Myers v. Gemmel, 10 Barb. (N. Y.) contract to furnish power was treated 
 
 537; Morgan v. Smith, 5 Hun (N. Y.) as an incorporeal right granted with 
 
 820; Story v. Iden, 12 Mass. 157; the premises. 
 
Ftjethbe Incidents of Covenant, etc. 277 
 
 lord in such cases prevents the tenant from using the halls 
 or elevators, and if the tenant is in this way deprived of 
 access to the rooms leased the eviction is entire^ But the 
 leasing of stores or apartments in a building creates no 
 right to light and air from an adjoining parcel of land not 
 appropriated to the building, though it belong to the land- 
 lord, since no easement of light and air arises by implied 
 grant in favor of a grantee or tenant of a building over ad- 
 joining land of the grantor or landlord not conveyed or 
 leased with the building.® The taking of the leased premises 
 under the power of eminent domain is not a violation of the 
 covenant, since there is no wrongful act on the part of the 
 landlord nor any failure of his title. The tenant is entitled 
 to compensation for his interest in the proceedings for con- 
 demnation, in connection with which the value of the inter- 
 est of each having an estate in the property is determined 
 and a proper award made.^ 
 
 When, under the police power of the state, a leased 
 building is torn down as unsafe, the tenant has no action 
 for breach of the covenant of quiet enjoyment, there being 
 no wrongful act or failure of title on the part of the land- 
 lord.^" But if the building is condemned because of the 
 failure of the landlord to make it safe under an ordinance 
 requiring him to do so, he is liable for breach of this coven- 
 ant since the eviction is the proximate result of his de- 
 fault.ii 
 
 7. Hall V. N. Trvin, 78 App. Div. implied grant. Ware v. Chew, 43 N. 
 (N. Y.) 107; Esehman v. Atkinson, J. Eq. 493. 
 
 91 N. Y. Supp. 319; Stevens v. Sal- 9. Folts v. Huntley, 7 Wend. (N. 
 
 mon, 39 Misc. (N. Y.) 159. See oasea Y.) SIO; Ellis v. Welch, 6 Mass. 346; 
 
 in preceding note, involving same Goodyear Co. v. Boston Terminal Co., 
 
 principle, also Jackson v. Paterno, 58 176 Mass. 115. 
 
 Misc. (N. Y.) 201. 10. Connor v. Bernheimer, 6 Daly 
 
 8. Myers v. Gemmel, 10 Barb. (N. (N. Y.) 295; Burke v. Tindale, 13 
 Y.) 537, and cases cited. Misc. 31, 32, afif'd. 155 N. Y. 673. 
 
 In New Jersey, following the Eng- 11. Lindwell v. May, 111 App. Diy. 
 
 lifih rule, such an easement arises by (N. Y.) 457; Kansas Inv. Co. ▼. 
 
 Carter, 160 Mass. 421. 
 
278 Landloed and Tenant. 
 
 The landlord is bound to prevent foreclosure of a prior 
 mortgage or other lien affecting the premises at the time the 
 lease was made. The question of whether the ouster of 
 the tenant by foreclosure of such a prior lien is the result 
 of the wrongful act or default of the landlord, or arises from 
 the enforcement of a paramount title, is a close and inter- 
 esting one, but whichever view is taken the result is the 
 same — the landlord is liable for breach of the covenant of 
 quiet enjoyment.^^ It is submitted that in case of an ex- 
 press covenant against acts of the landlord and his suc- 
 cessors in interest, excluding the implied covenant of power 
 to demise by implication, the landlord would also be liable,- 
 because the ouster of the tenant results from his failure to 
 protect the tenant by preventing foreclosure, in violation 
 of his duty under the lease. He clearly has power to demise 
 the premises, and therefore there would seem to be no breach 
 of his covenant of power to demise.^* 
 
 The covenant of quiet enjoyment, being an incident of 
 the relationship of landlord and tenant, continues only so 
 long as the relationship continues, and therefore comes- 
 
 13. Mack V. Patchin, 43 N. Y. 167; his successors or assigns," excludes- 
 
 Duncklee v. Webber, 151 Mass. 408; eviction through failure of title, so 
 
 I'itchburg Mfg. Corp. v. Melven, 15 that the landlord was not liable for 
 
 Mass. 268. the ousting of a tenant by foreclosure 
 
 The landlord is bound to pay inter- of a prior mortgage. On the other 
 est on mortgages and other incum- hand, in Mack v. Patchin, 42 N. Y. 
 branceg, taxes and assessments, so 167, though the court refers to such 
 that the tenant may not be interfered ouster as resulting from a faihire 
 with in his possession and enjoyment. in the landlord's title, the landlord 
 Mayer V. Cashman, 10 Johns. (N. Y.) -nas held liable in full damages be- 
 16; Darcey v. Steger, 23 Misc. (N. cs/usc of his wrongful default in not 
 Y.) 145. The tenant may pay such preventing foreclosure, and not mere- 
 charges and hold the landlord tliere- ly for rent advanced and mesne pro- 
 fore. Watson V. Home, 7 B. & C. fits which the tenant is liable to pay 
 ®^^- over, which is the measure of damages 
 
 13. In Burr v. Stenton, 43 N. Y. in cases where the tenant is ousted 
 
 462, the court takes the position, through the enforcement of a para- 
 
 however, that such express covenant mount title without willful wrong on 
 
 of quiet enjoyment "without molesta- the part of the landlord, 
 tiou or disturbance from the lessor. 
 
Damages foe Beeach op Covenant. 27& 
 
 to an end, if the landlord has a limited estate, on the ter- 
 mination of the landlord's estate. Thus if the landlord 
 is a life tenant, on his death the tenant's estate ends, pro- 
 vided the lease was made by the life tenant, as the term 
 for years cannot be greater than the life estate out of which 
 it was created. As the tenant for life had a sufficient es- 
 tate to create and transfer a term of years, it follows that 
 there is no breach of the implied covenant of power to 
 demise. The covenant of quiet enjoyment ends with the 
 life estate, the termination of which brings to an end the 
 relation of landlord and tenant between the parties.^* Un- 
 der an express covenant, however, the estate of the deceased 
 life tenant would be liable in such case.^^ 
 
 § 162. Damages for Breach of Covenant of Quiet Enjoy- 
 ment. — In the usual case of eviction by wrongful act of the 
 landlord the tenant may recover all damages proximately 
 resulting, including the full value of the unexpired term.* 
 
 14. Swan v. Stranshaiil, 3 Dyer's the happening of the contingency on 
 Reps. 257, A; Baynes & Co. v. JAoyd which it depends. If his estate be 
 & Sons, 1 Q. B. 820; Woodhouse v. upon condition, and is forfeited for 
 Jenkins, 9 Bing. 4ai (no breach, ten- breach thereof by the landlord, or by 
 anoy ended by termination of land- the enforcement of a mortgage or 
 lord's estate tail). There is no im- other lien, the tenant is ousted 
 plied covenant that the landlord's through the wrongful act of the land- 
 title is in fee simple, free from limi- lord, who is liable in full damages, as 
 tation or condition, mortgage or other wt have seen. See notes 13 and 13, 
 lien. The implied covenant of power svpra. See, also, Stevenson v. Powell, 
 to demise included within the implied 1 Bulet. 182, in which case reentry 
 covenant of quiet enjoyment is merely by superior landlord because of under- 
 that the landlord has sufficient title lessor's default in payment of rent 
 to make the lease in question, not was held to be a breach. For the 
 that his estate is free of any limita- ssme reasons a tenant from year to 
 tion, condition or lien which may year has no action against his lessor, 
 bring the tenancy to an end before a tenant for years, on the expiration 
 the expiration of the term. It would of the lessor's term. Penfield v. 
 seem to follow, in the absence of an Abbott, 32 L. J. Q. B. 67. 
 express covenant, that the landlord 15. See cases in note preceding, 
 would not be liable if his estate be 1. Lock v. Furze, L. E. 1 C. P. 441 ; 
 upon limitation or conditional limi- Dester v. Manley, 4 Cush. (Mass.) 
 tation, and is brought to an end by 14; Snow v. Pulitzer, 142 N. Y. 263. 
 
280 Landloed and Tenant. 
 
 In case the tenant is ousted by the enforcement of a para- 
 mount title, the rule which generaly prevails is the same, 
 viz.: full damages including the value of the term over and 
 above the rent reserved.^ In New York, Ohio and Pennsyl- 
 vania, however, the rule is established that if the paramount 
 title is enforced without wrong toward the tenant on the 
 landlord's part, he having made the lease in good faith with 
 reason to believe his title good, he will be liable only for 
 rent advanced and for the mesne profits which the tenant 
 may be compelled to pay over to the owner of the para- 
 mount title, excluding the value of the leasehold estate.' 
 This rule follows the rule established in England and in 
 several states that an innocent vendee of realty who finds 
 that he cannot transfer a good title because of some hidden 
 defect, cannot be held for the value of the contract, but only 
 for such part of the purchase price as has been advanced to 
 him by the purchaser, the expense of making a search and 
 closing the contract of sale thus putting the parties in statu 
 quo.* 
 
 § 163. Implied Covenant to Give Possession. — On the 
 
 making of a lease, whether by parol or in writing, the 
 landlord impliedly covenants to permit the tenant to take 
 possession at the time fixed for the beginning of the term. 
 The failure of the landlord to give possession, either 
 through his wilful exclusion of the tenant or by failure of 
 
 Loss of prospective profits cannot sublessee got a further lease from the 
 
 bo recovered, as being too indefinite, original landlord. Held sublessor not 
 
 Dennison v. Ford, 10 Daly (N. Y.) liable because the sublessee made it 
 
 413; Cleveland, etc. E. Co. v. impossible for him to get a renewal 
 
 Mitchell, 84 111. App. 206. See § 163, from the original landlord. 
 
 post, and cases cited. 3. Matter of Strasburger, 132 N. Y. 
 
 2. Look V. Furze, L. R. 1 C. P. 128; Mack v. Patchin, 42 N. Y. 167; 
 441; Dester v. Manley, 4 Gush, 14; Lanigan v. Kille, 97 Pa. St. 120; Mo- 
 Dobbins V. Duquid, 65 111. 464. In Alpin v. Woodruff, 11 Oh. St. 120. 
 Maas V. Kramer, 53 Misc. (N. Y.) 4. See Mack v. Patohin, 43 N. Y. 
 151, the sublessor made a sublease 167, and cases cited therein, 
 extending beyond his own term; the 
 
Implied Covenant to Give Possession. 
 
 281 
 
 his title, is treated in most cases as a breacli of the cove- 
 nant of quiet enjojrment, though no actual eviction is in- 
 volved.^ These eases are sound since the keeping of the 
 tenant out of possession amounts to an eviction, as in the 
 case of joint tenants and tenants in common, it being held 
 that the keeping of one tenant out of possession by his 
 cotenant in those cases amounts to an eviction.* The ten- 
 ant is not bound to take possession later, or to sue the land- 
 lord in ejectn nt, but may treat the lease as at an end and 
 may sue the landlord for breach of the implied covenant.^ 
 The measure of damages is the value of the term, viz.: the 
 value of the leasehold interest over and above the rent re- 
 served, together with any rent paid in advance. To this 
 is added such loss arising from reasonable preparation made 
 by the tenant to take possession and other damages proxi- 
 mately resulting from the breach, exclusive of expected 
 
 S. Friedlander v. Myers, 139 N. Y. 
 432; Garrison v. Huttin, 118 App. 
 DJv. (N. Y.) 455; Edelsheimer v. 
 Quackenbush, 68 Hun (N. Y.) 427; 
 Riley v. Hale, 158 Mass. 240; Ber- 
 rington v. Casey, 78 III. 317. 
 
 The nature of the tenant's interest 
 before entry and before the beginning 
 of his term under the lease, called 
 the tenant's interesse termini, is not 
 clearly expressed in the authorities. 
 It is clear that he has a future estate, 
 a vested chattel interest to vest in 
 possession on the day iixed for the 
 beginning of the term. This future 
 interest gives him an absolute right 
 to the property when the first day of 
 his term is reached, as m the case of 
 a remainder after a life estate, or any 
 other vested future estate. He may, 
 therefore, recover the property from 
 the landlord if the landlord wrong- 
 fully withholds possession (Trull v. 
 Granger, 8 N. Y. 115; Becar v. Flukes, 
 
 64 N. Y. 518) but he is not obliged tO' 
 do bo; he may sue for breach of the 
 covenant of quiet enjoyment, treating 
 the lease as at an end. (See cases 
 cited above.) 
 
 The landlord is bound to keep the- 
 premises in repair, or to rebuild in 
 case buildings are destroyed during 
 the interval before the term arises, and 
 must give possession of the property 
 to the tenant in substantially the 
 condition in which it was at tlie time 
 the lease was made. Wood v. Hub- 
 bell, 10 N. Y. 480, 487; Meeks v. 
 Ring, 51 Hun (N. Y.) 329 (dicta). 
 See, also, Edwards v. MoClain, 122 IC. 
 Y. 302. 
 
 6. See § 214, post. 
 
 7. See cases in note 5, supra; also 
 to same effect, Rothman v. Kosower, 
 43 Misc. (N. Y.) 538; Goerl v. Dam- 
 rauer, 27 Misc. (N. Y.)55S; Bernhard 
 V. Curtis, 75 Conn. 476. 
 
282 Laitdloed and Tenant. 
 
 profits as the parties miglit reasonably expect to follow 
 from such a breach by the landlord.* 
 
 The landlord is not obliged to oust a stranger who may 
 have taken possession wrongfully during the time inter- 
 vening before the beginning of the leasehold estate, nor a 
 tenant who holds over wrongfully. The tenant may re- 
 cover the leased property in either case, since his owner- 
 ship of the property by virtue of the lease gives him the 
 right to recover and retain possession against any person 
 wrongfully holding the property, including the landlord. 
 The act of the stranger or the tenant wrongfully holding 
 over is not the landlord's act, nor is there any failure of 
 his title, so that the tenant cannot hold him on the implied 
 covenant of quiet enjojonent.* 
 
 § 164. Implied Covenant to Repair. — The matter of re- 
 pairs is usually covered by an express covenant, so that 
 cases involving the duty of the tenant to repair, in the ab- 
 sence of express covenant, are not numerous. We have 
 
 8. Friedlander v. Myers, 139 N. Y. eision depends on whether the 
 432, and cases therein cited. monthly tenant holds over as a mat- 
 
 9. Gardner v. Keteltas, 3 Hill (N. ter of right as tenant for anotlier 
 Y.) 330; Sullivan v. Schmidt, 93 App. month, when the notice of five days 
 Div. (N. Y.) 469. has not been given, and the case 
 
 In New York city, by statute a would seem to be an authority, by 
 
 monthly tenant cannot be ousted ex- necessary implication, for that propo- 
 
 cept on notice of five days given be- sition. The statute requires such 
 
 fore the end of the month (except notice only as a condition precedent 
 
 where month ends on May 1st). In to dispossess proceedings. The ten- 
 
 a case where the landlord failed to ant's interest, being for a month cer- 
 
 give this notice and therefore failed tain, comes to an end at the end of 
 
 to oust the tenant until over a month the month, though no notice be given, 
 
 had elapsed from the time the lease to and the tenant liolds over as a wrong- 
 
 the plaintiff was to take effect, the doer, and should be liable as such to 
 
 plaintiff recovered against the land- the landlord, or new tenant, either of 
 
 lord for breach of the implied coven- whom could maintain ejectment, 
 
 ant, the landlord having failed to give though barred from summary proceed- 
 
 the required notice to the former ten- ings because of the failure to giv« 
 
 ant. Goerl v. Damrauer, 27 Misc. (N. notice. 
 Y.) 555. The soundness of this de- 
 
Implied Covenant to Give Possession. 283 
 
 seen heretofore that tenants for years and from year to 
 year, from month to month, etc., are liable for permissive 
 "waste.^ In the absence of express covenant the law im- 
 plies a covenant on the part of every tenant not to commit 
 permissive waste and his implied covenant to repair is there- 
 fore merely a promise implied by law that he Y>ill make 
 such repairs as will prevent the premises from falling to 
 ruin and decay, reasonable repairs which will keep the prem- 
 ises wind and water tight, and which will preserve the prop- 
 erty substantially in the condition it was in when the ten- 
 ancy arose, depreciation from ordinary wear and tear dur- 
 ing the term being excepted. A tenant is therefore re- 
 quired to repair or replace broken windows or doors, re- 
 pair leaking roofs, restore boards or other side covering in 
 any case where such siding has been destroyed or removed 
 so as to leave the frame and interior of the building unpro- 
 tected.^ He is also required to keep in tenable or work- 
 ing condition the plumbing, heating plant, and any other 
 part of the thing demised.^ In the absence of express cove- 
 nant he is not obliged to rebuild or restore a building de- 
 stroyed by fire, or by storm or the public enemy, or a build- 
 ing which has become so ruinous from ordinary wear and 
 tear and the gradual action of the weather, in spite of the 
 making of the reasonable repairs required of the tenant, 
 that it is not capable of further repairs as such, but can 
 only be rebuilt.* The same rule applies to any substantial 
 
 1. See § 66, ante. 3. Russell v. Rush, 2 Pittsh. Rep. 
 
 2. Co. Litt., 53a; Suydam v. Jack- (Pa.) 134. See, also, Thalheimer v. 
 son, 54 N. Y. 450; United States v. Lempert, 17 N. Y. State Repr. 346, 
 Bostwick, 94 U. S. 53; Moore v. holding that the tenant need not 
 Townshend, 33 N. J. L. 284; Newbold make such repairs of the plumbing 
 V. Brown, 44 N. J. L. 266; Kearmes v. and heating outfit out of repair when 
 CuUen, 183 Mass. 398; Earle v. Ar- the lease began. 
 
 bogast, 180 Pa. St. 409; Junction 4. Ferguson v. , 3 Esp. 590 
 
 Min. Co. V. Springfield, etc. Co., 322 Suydam v. Jackson, 54 N. Y. 450 
 
 111. 600; Lynch v. Sauer, 16 Misc. (N. Earle v. Arbogast, 180 Pa. St. 409 
 
 Y.) 1; Forrester v. O'Rourke Eng. Junction Min. Co. v. Springfield, etc, 
 
 Co., 48 Misc. 390; Hatch v. Stamper, Co., 233 111. 600. 
 42 Conn. 38. 
 
284 Lajstdloed and Tenant. 
 
 part of a building, such as the roof, or a side wall. If after 
 making ordinary repairs by patching the roof or side walls 
 it becomes in course of time from inevitable deterioration 
 in such bad condition that nothing can be reasonably or 
 successfully done except to rebuild or restore the roof or 
 wall, by a new covering of shingles, boards, concrete, or the 
 like, a tenant is not required so to restore or rebuild, in the 
 absence of an express covenant.^ 
 
 A tenant is bound to repaint only so far as such re- 
 painting is required to preserve the building from deteri- 
 oration through action of the weather, not to preserve it& 
 appearance and market value as of the time when the lease 
 arose.^ Under the implied covenant as well as under the 
 general express covenant to repair, a tenant is bound merely 
 to maintain the premises in the condition in which he 
 finds them, reasonable wear and tear excepted; he is not 
 obliged to correct defects existing when the lease begins, 
 nor is he responsible for permanent damages to the building 
 resulting therefrom.'' 
 
 Under this implied covenant a tenant of agricultural 
 lands is bound to use them in a husbandlike manner so as 
 to maintain their fertility, and to repair and maintain 
 fences. The measure of his duty is that he shall not be 
 guilty of waste with respect to these matters.* 
 
 5. See cases in preceding note, also for years in New Jersejf it is out of 
 Street v. Central Brewing Co., 101 accord with the rule generally pre- 
 App. Div. (N. y.) 3, and May x. Gil- vailing. 
 
 les, 169 N. Y. 330, applying the same 7. Thalkheimer v. Lempert, 17 N. 
 
 rule to express covenants to repair. Y. St. Repr. 346; White v. Albany R. 
 
 6. Monck V. Noyes, 1 Car. & P. a65. Co., 17 Hun (N. Y.) 98, holding that 
 In New Jersey it is stated that a the same rule applies to express gen- 
 life tenant must make all repairs re- eral covenants for repairs. Steefel v. 
 quired, not excepting ordinary wear Rothohild, 64 App. Div. S93 (reversed 
 and tear; if a new roof is needed he on another point). 
 
 is bound to put it on; if paint wears 8. Siarles v. Sarles, 3 Sandf. Ch. 
 
 off he is bound to repaint. Matter of (N. Y.) 601; Whitfield v. W^eedon, 3 
 
 Steele, 19 N. J. Eq. 120. If this ex- Ohitty 685. See " Waste," ante. 
 presses the rule applying to tenants 
 
ExPEESS Covenants to Repair. 285 
 
 It is quite immaterial what the cause of the defective 
 condition requiring repairs may be, whether the act of a 
 stranger, of storm or tempest, or the wrongful or negligent 
 act of the tenant. In each case he is bound to repair if such 
 repairs are necessary to prevent deterioration and decay 
 not resulting from ordinary wear and tear. 
 
 § 165. Express Covenants to Repair. — ^A general covenant 
 by the tenant to make all necessary repairs and to return 
 the premises to the landlord at the end of the term in as 
 good condition as when the lease was made, reasonable 
 wear and tear excepted, requires the tenant to make all re- 
 pairs necessary to maintain the premises in the same state 
 of repair as at the beginning of the term. He is not re- 
 quired to put the premises in repair at the beginning of 
 the term, nor to make repairs at any time which will put 
 the premises in a better state of repair than when the ten- 
 ancy arose.^ 
 
 But if the tenant also covenants to put the premises in 
 good repair, and maintain them in good repair during the 
 term, all repairs must be made by the tenant necessary to 
 accomplish this result.^ A covenant to keep the premises 
 in good repair is construed as necessarily involving 
 a covenant to put them in good repair if such is not their 
 condition at the beginning of the term, since they cannot 
 be maintained in good repair unless they are first put in 
 ihat condition.^ 
 
 1. Wiilker V. Hatton, 10 M. & W. than they were in when leased, must 
 
 •258; White v. Albany E. Co., 17 Hun be express and clear, as contrary to 
 
 (N. Y.) 98; Lockrow v. Horgan, 58 the usual intent. 
 
 N. y. 635, and cases in following 2. Lockrow v. Horgan, 58 N. Y. 
 
 -notes. In the White Case, supra, the 635; Street v. Central Brew. Co., 101 
 
 •court said that the parties intend to App. Div. (N. Y.) 3; Markham v. 
 
 lease the buildings as they are, and David Stephenson Brewing Co., 104 
 
 Tent is fixed on that basis; that a App. Div. 420. 
 
 ■covenant to put in repair so as to re- 3. Sauer v. Belton 7 Ch. Div. 81S; 
 
 store the premises in letter repair Appleton v. JIarx, 117 App. Div. (N. 
 
286 
 
 Landloed and Tenant. 
 
 The English rule, followed in several states, is that a co- 
 venant to repair requires the tenant to rebuild the whole or 
 any part of a building on the leased premises which has been 
 destroyed in whole or in part by fire, storm, or m any other 
 way, whether through inevitable accident, the act of a 
 stranger, or by the tenant's wrongful act or default.* In 
 New York, however, and some other states the courts con- 
 strue the covenant to make repairs as not extending to 
 the rebuilding of a structure or of a substantial part thereof, 
 such as a side wall, or a roof; that such rebuilding does not 
 come within the meaning of the term " repairs " as used 
 in the tenant's covenant.^ 
 
 The tenant's duty to make repairs, whether under the 
 express or the implied covenant is in no way affected by 
 the causes that ma'ke repairs necessary, whether by fiure, 
 
 Y.) 206; Lehmaier v. Jones, 100 App. 
 Div. 495; Myers v. Burns, 35 N. Y. 
 371. 
 
 Such a covenant does not, of course, 
 require the making of improvements, 
 as the erecting of new buildings. 
 Naye v. Noezel, 50 N. J. L. 523, or 
 the putting in of a new electric ele- 
 vator instead of an old hydraulic ele- 
 vator capable of repair. Appleton v. 
 Marx, 117 App. Div. 206. 
 
 4. Bullock y. Dommitt, 6 Term. R. 
 650; Ely v. Ely, 80 111. 532; Leavitt 
 V. Fletcher, 92 Mass. 119, the court 
 saying: "The express covenant to 
 repair binds the covenantor to make 
 good any injury which human power 
 can remedy, even if caused by storm, 
 flood, fire, inevitable accident or the 
 act of a, stranger." See, also, Gettys- 
 burg Elec. R. Oo. V. Electric Light, 
 etc. CJo., SOO Pa. St. 373; Beach v. 
 Crain, 2 N. Y. 87; School Trustees of 
 Trenton v. Bennett, 27 N. J. Eq. 513. 
 
 6. May v. Gilles, 169 N. Y. 330; 
 
 Street v. Central Brewing Co., 101 
 App. Div. (N. Y.) 3; Ducker v Del 
 G^novese, 93 App. Div. 575 (in which 
 case the court held that an express 
 covenant made in the strongest form 
 to cover all repairs did not requre a 
 tenant to rebuild a building which 
 collapsed because of a structural de- 
 fect. But see Beach v. Crain, 2 N. Y. 
 87, contra). Wattles v. South Omaha, 
 etc. Co., 50 Neb. 851. 
 
 In the absence of an express coven- 
 ant or agreement covering tlie matter, 
 changes or improvements required by 
 public authorities, such as drains, 
 sewers, paving, removal of encroach- 
 ing stoops, etc., must be made at the 
 expense of the landlord, not coming 
 within a covenant to repair and to 
 comply with orders of the health, 
 building or other city departments. 
 Lindwall v. May, 111 App. Div. (N. 
 Y.) 457; City of N. Y. v. U. S. Tru.st 
 Co., 116 App. Div. 349. 
 
ExPEESs Covenants to Eepaie. 287 
 
 storm, inevitable accident, or the tenant's wrongful act or 
 neglect, or the act of. a stranger .^ 
 
 In New York and some other states statutes have been 
 enacted providing that if the leased premises are destroyed 
 or rendered uninhabitable by fire or other action of the 
 elements or from any other cause the tenant may at his 
 election quit the premises and end the lease. Under the 
 statute, in the absence of an express covenant, if the leased 
 building is destroyed by fire or by storm or by some sudden 
 and unusual action of the elements in the nature of a 
 catastrophe, the tenant is not only not bound to rebuild or 
 restore the building, but he may end the term by moving 
 out and thus free himself from the obligation of paying 
 any further rentJ If the untenantable condition results 
 from the tenant's failure to make the repairs which he is 
 required by law to make, he cannot claim the benefits of this 
 statute.* 
 
 Express covenants to repair, or to put in repair or keep 
 in good repair by the landlord bind the landlord just as 
 similar covenants by a tenant bind the tenant, and are gov- 
 erned by the same general rules.* Since the tenant is in 
 possession and in a position to discover the need of repairs, 
 the landlord's liability is subject to a condition precedent 
 that the tenant give him notice of the need of repairs.^" If 
 
 6. Leavitt v. Fletcher, 9a Mass. the statute applied, and the tenant 
 ■519; Lookrow v. Ho gan, 5S N. Y. was freed from the obligation to pay 
 635; Ashby v. Ashby, 59 N. J. Eq. rent and was not requ'red to repair. 
 347. 8. See eases in preceding note. 
 
 7. Syndham v. Jackson, 54 N. Y. 9. Torrena v. Walker, 2 Ch. 166; 
 »50; May v. Gilles, 169 N. Y. 330; Myers v. Burns, 35 N. Y. 269. Wi ere 
 Messerole v. Hoyt, 161 N. Y. 59; the landlord has not agreed to make 
 Hatch V. Stamper, 43 Conn. 28. repairs the mere fact that he has 
 
 In May v. Gilles, supra, part of the made certain repairs voluntarily does 
 
 ^•lass roof of an extension to the main not bind mm to make other repairs, 
 
 building gave way because of a heavy Galvin v, Beals, 187 Mass. 250. 
 
 fall of snow, and twenty-five feet of 10. Thomas v. Kingsland, 108 N. Y. 
 
 the extension had to be taken down 616; Gergeb'Xik v. Lord, 33 N. J. L. 
 
 because unsafe. The court held that 340; Marley v. Wheelright, 173 Mass. 
 
288 
 
 Lan"dloe:d and Tenant. 
 
 after sncli notice the landlord fail within a reasonable time 
 to make the repairs, the tenant may make them and recover 
 the cost thereof from the Injadlord." The tenant may, how- 
 ever, refuse to make such repairs where extensive repairs 
 are required, and hold the landlord for damages, which are 
 measured by the difference between the rental value of the 
 premises in repair and the rental value as out of repair.^* 
 It is well settled that the tenant cannot recover for personal 
 injuries to himself or a member of his family arising from 
 a defective condition of th'S! premises due to the landlord's 
 failure to repair under his covenant, since such damages 
 do not proximately result from the breach.^* The same 
 rule applies to damages to goods or chattels of the tenant 
 injured because of such defects." If the tenant con- 
 
 .530; Hutchinson v. Cummings, i.Ji 
 Mass. &39. 
 
 Where the landlord knew of the 
 need of repairs, having created 
 through his unjustified use of the 
 roof the defective condition wlx"e£i 
 made them necessary, notice was not 
 required since he knew or should 
 have known that repairs were neces- 
 sary. Pratt, Hurst & Co. v. Tailar, 
 186 N. Y. 417. 
 
 11. Markham v. David Stevenson 
 Brew. Co., Ill App. Div. (N. Y.) 178. 
 Here the tenant covenanted to repair, 
 and the landlord made repairs afber 
 default by the tenant, and. recovered 
 the cost thereof. 
 
 12. Thompson-Houston Elec. Co. v. 
 Durant, etc. Co., 144 N. Y. 34 ; Myer* 
 V. Burns, 35 N. Y. 369; Hexter v. 
 Knox, 63 N. Y. 561. 
 
 13. Tuttle V. Gilbert Mfg. Co., 145 
 Mass. 169; Schick v. Fleischhauer, 36 
 App. Div. (ISr. Y.) 210; Golob v. 
 Pnsinsky, 73 App. Div. 176; Frank v. 
 Mandel, 76 App. Div. 413; Van Tas- 
 
 .eel V. Read, 35 App. Div. 539. 
 
 14. Cook V. Soule, 56 N. Y. 430; 
 Reiner v. Jones, 38 App. Div. 441; 
 Weinberg v. Ely, 114 App. Div. 857. 
 
 In Pratt, Hurst & Co. v. Tailer, 188 
 N". Y. 417, the lease provided that the 
 landlord should not be liable for dam- 
 ages from leaks until a reasonable time 
 after receiving notice of the need of 
 repairs, clearly implying that the 
 landlord assumed such liability in 
 case of his failure to repair under his 
 covenant. The landlord's liability for 
 damages to the tenant's goods in case 
 the giving of notice was not required 
 seems to have been conceded on bo'h 
 sides and this question of damages 
 was not discussed, the court holding 
 that notice to the landlord was not re- 
 quired since he knew of the defective 
 condition of the roof, having used tlie 
 roof in an improper way, causing the 
 defects which required repairs. It is 
 not an authority that damages for 
 loss of goods can be recovered for 
 breach of the usual covenant to re- 
 pair on the part of the landlord. 
 
 In Rauth v. Davenport, 60 Hun (N. 
 
ExPKESS COVEITANTS TO EePAIE. 289 
 
 tracted with some carpenter or general contractor to make 
 all necessary repairs, it is clear that damage to the ten- 
 ant's person or property would not be included as damages 
 proximately resulting from a breach of the contract to make 
 repairs. It is submitted that as the landlord is under no 
 duty to repair apart from his contract, the situation is ex- 
 actly analogous, and the landlord should not be held liable 
 for such damages arising from injuries to the person or 
 property of the tenant resulting from the defective condi- 
 tion Aviiich the landlord failed to repair, since such damages 
 are not the proximate result of the breach of contract, or 
 contemplated as possible damages when the contract was 
 made. It is clear that, for like reasons, the landlord can- 
 not be held under this coveBant for damages which the ten- 
 ant may have been compelled to pay to a third person for 
 injuries resulting from sacfd defective condition.^* Loss of 
 profits by the tenant because of failure to repair is not re- 
 coverable, because too speculative and not proximately re- 
 
 y.) 70; Levy v. Roosevelt, 131 App. promised to make such repairs. In 
 Div. (N. Y.) 11; Phillips V. Ehrmann, any case the tenant cannot recover 
 8 Misc. (N. y.) 39, and Valentine v. damages if he wilfully or negligently 
 Woods, 59 Misc. 471, the damages to exposes his goods to a danger, such 
 the tenant's goods resulted from a as from leakage of a roof, vrhich he 
 defective condition of the roof or could reasonably have avoided, 
 other part of the premises retained Where the defects are in the prem- 
 by the landlord and for the condition ises leased and can be repaired wl+h 
 of which he was responsible, the ten- little trouble and expense, the tenant 
 ant having leased only a part of the should reduce damages by making the 
 building. Such damages, resulting needed repairs, and the measure of 
 from the failure of the landlord to damages would be the cost of the re- 
 maintain the part of the premises re- pairs, whether actually made by the 
 taio.ed by him in safe condition, the tenant or not. For dicta sustaining 
 ienant Jiaving no right or power to this rule, which is manifestly sound, 
 fliake the repairs himself, may be re- see Cook v. Sonle, 56 N. Y. 420; cit- 
 ^overed from the landlord, since they ing Miller v. Mariner's Church, 7 
 are the proximate result of the land- Green 57; Laker v. Damon, 17 Pick, 
 lord's failure to use due care in the S84. See, also, Weinberg T. Ely, 114 
 maintaining of his property in safe App. Div. (IT. y.) 857. 
 tondition, whfther or not he has 15. See § 173. post. 
 
 19 
 
R<>0 Landloeb and Tenant. 
 
 ftulting,'* but an exception is made where a hotel, boarding 
 bt»U5e or the like is leased to be operated as a hotel or board- 
 ing house; damages resulting from inability to get lodgers 
 or guests on account of the landlord's failure to repair 
 under his covenant may be recovered against him as dam- 
 ages proximately resulting from the breach.^'^ 
 
 § 166. No Implied Covenant of Fitness for Use. — The law 
 gives rise to no covenant that the leasehold premises are 
 reasonably fit for the uses for which they were rented. A 
 tenant is the purchaser of an estate in the land. The general 
 rule of caveat emptor applies to him as it applies to pur- 
 chasers of land for life or in fee. In the absence of an ex- 
 press warranty of the condition of the premises the tenant 
 takes them as they are, assuming all the risk as to their 
 fitness for his puropses.* Of course if he has been led into 
 taking the lease by false statements of fact as to the condi- 
 tion of the property made by the landlord with knowledge 
 of their falsity, actual or implied, the tenant may rescind on 
 
 16. Drag© v. ^cad, 30 App. Div. justified in leaving the premises and 
 (N. Y.) 258; Dcrwin v. Potior, 5 rescinding the lease, the premises be- 
 Denio (N. Y.) 306. ing uninhabitable because of bugs. 
 
 17. Gulliver v. Fowler, 64 Conn. This rule is limited in England to 
 656; Myers v. Burns, 35 N. Y. 269; leases of furnished houses or apart- 
 Hexter v. Knox, 63 N. Y. 561. ments for short terms. Hart v. Wind- 
 
 1. Hart V. Windsor, 12 M. & W. 68; sor, 12 M. & W. 68; Wilson v. Flnely- 
 
 Naumberg v. Young, 44 N. J. L. 331; Hatten, 2 Exch. Div. 33«; Smith v. 
 
 Stevens V. Pierce, 151 Mass. 207; Jaffe Marrable was followed in Massachu- 
 
 v. Harteau, 56 N. Y. 398; Casey v. setts. Ingalls v. Hubbs, 156 Mass. 
 
 Kreizer, 26 Misc. (N. Y.) 755; Daly 348. 
 
 V. Wise, 132 N." Y. 306 ; Franklin v. In the other states the rule laid 
 
 Brown, 118 N. Y. 110, and cases cited down in Smith v. Jlarrable has been 
 
 therein. In Smith v. Marrable, 11 M. i-°Dudiated or criticized. It has been 
 
 t W. 5, it was held that under a lease adopted in no state other than Massa- 
 
 ef a furnished dwellinc; for six weeks chusetta. Franklin v. Brown, 113 
 
 ut the sea shore, a covenant would be N. Y. 110; Daly v. Wise, 132 N. Y. 
 
 implied that the premises were in a 306; Murray v. Albertson, 60 N. J. L, 
 
 hahitahle state. The tenant was held 167. 
 
ITo Implied Covenant of Fitness for Usb- 'i'/f I 
 
 the ground of fraud, and may recover any damages he rnny 
 have sustained as a result, or both.^ 
 
 It is well settled that the concealing by the landlord of 
 hidden defects ■which he ought in good faith to disclose' 
 to the tenant, and of which he has knowledge or ought to 
 have knowledge, will make him liable in fraud to the tenant 
 for any damages proximately resulting,^ and by the weight 
 of authority failure to disclose to the tenant a hidden defect 
 dangerous to the tenant is actionable negligence provided 
 the landlord knew or ought to have known of the existence 
 of the defect.* It would seem that the action of fraud suf- 
 ficiently covers the situation, and provides the tenant with 
 an adequate remedy. A willful concealment by the landlord 
 is, of course, a wilful fraud. A negligent failure to dis- 
 close the defect, of which the landlord has actual or con- 
 structive knowledge, is also fraud for which he is liable, 
 since it is a concealment of a fact which he is in good 
 faith bound to disclose, and he is liable in an action of 
 fraud and deceit whether his failure resulted from forget- 
 fullness, negligence or was deliberately intended. The 
 
 2. See cases in preceding note, also, held liable for failure to disclose to 
 Meyers r Rosenback, 5 Misc. (N. Y.) tenant dangerous condition of build- 
 337; Miller v. Thorndike, 103 Mass. ing which caused public authorities to 
 383. condemn it shortly after tenant's en- 
 
 Though the tenant stay in posses- try, measure of damages being rent 
 
 Bion, afHrming the lease, he can still paid in advance and cost of moving 
 
 maintain an action for damages in fixtures, stock, etc.).; Simaaack v. 
 
 tort arising out of the fraud. Whit- Morey, 196 111. 569; Boggard v. Gale, 
 
 tiey V. Allaire, 1 N. Y. 305; Harring- 205 111. 511; Maywood v. Logan, 78 
 
 ton V. Douglas, 181 Mass. 178; Clogs- Mich. 135. 
 ton V. Martin, 182 Mass. 469. 4. See Massachusetts and Illinoia 
 
 3. Caesar v. Karuty, 60 N. Y. 229 ; cases in preceding notes. In New- 
 Minor V. Sharon, 112 Mass. 477; Cut- York and some of the other states the 
 ler V. Hamlin, 147 Mass. 471 (in three principle of negligence as applying to 
 preceding cases the hidden defect tliese cases has not been clearly rccog- 
 was infection of premises with con- nized, the cases turning on the land- 
 tagious disease. Landlord held liable lord's fraudulent concealment. On 
 for personal injuries, resulting through either theory the landlord's liability 
 contracting of disease) ; Steefel ▼. is undoubted. 
 
 Rothchild, 179 N. Y. 273 (landlord 
 
292 LAND1.0ED AWD TeNATTT. 
 
 theory of negligence is based on the principle applying 
 to a vendor of a tool or other chattel in dangerous condition 
 because of a hidden defect of which the vendor has knowl- 
 edge. The principle applying to each case is clearly the 
 same, and therefore the tenant should be allowed a recovery 
 on either theory, since the liability of the landlord may 
 be established on the basis of both fraud and negligence.^^ 
 
 The defect must be one which the tenant could not dis- 
 cover on reasonable inspection. If it is open to such in- 
 spection so that the tenant as an average man should have 
 discovered it, he cannot recover on either theory, in fraud 
 because he should not have been misled, and in negligence 
 because he has been guilty of contributory negligence.' 
 The tenant cannot recover for personal iniuries arising 
 therefrom after the discovery of the defect, since he should 
 then repair it at the landlord's expense, personal injuries 
 thereafter arising not resulting proximately from the land- 
 lord's negligence or fraudulent concealment, but from the 
 tenant's failure to remove the danger.'' 
 
 § 167. Express Covenants; Covenant to Pay Rent. — 
 
 Eent is a return issuing out of the land and payable by 
 the tenant to his landlord as an incident of the estate held 
 by the tenant of the landlord. No covenant or agreement 
 to pay rent is necessary; any words which reserve a pay- 
 ment of rent such as " yielding and paying " or " provided 
 the tenant shall pay " or the like, creates a rent charge 
 against the estate of the tenant, his successors and assigns, 
 whether he holds for years, for life or in fee. The proper 
 remedy for recovery of rent is an action of debt. If the 
 tenant has bound himself by covenant or promise, express or 
 implied in fact, either debt or an action in covenant or in 
 
 6. See cases in preceding notes. 7. See oases above cited, also § 173, 
 
 6. See cases in notes 9, 10 and 11 post. 
 
 svpra, particularly Boggard v. Gale, 
 205 III. 511. 
 
ExPEESs Covenants. 293 
 
 assumpsit on the promise will lie, though in the absence 
 thereof debt alone can be maintained. In the absence of 
 a promise or covenant, express or implied in fact, the ten- 
 ant is liable only by virtue of his " privity of estate " with 
 the landlord, that is by virtue of his holding the estate as 
 tenant from the landlord, for rent accruing while the rela- 
 tionship of landlord and tenant continues.^ Upon his as- 
 signing the term he is not liable for rent thereafter accruing, 
 since he is no longer tenant.^ Under an express covenant, 
 binding him personally by his personal promise, or ' * privity 
 of contract " he remains liable for rent subsequently accru- 
 ing for the entire term.® Of course a covenant or prora- 
 ise to pay rent will in every case amount to a reservation of 
 rent chargeable on the estate of the tenant for which debt 
 will lie as well as covenant or assumpsit.* 
 
 In the absence of words of express promise a covenant or 
 promise to pay rent will be implied as a matter of fact if 
 the words reserving rent together with the other terms of 
 the lease reasonably import an actual promise to pay rent.^ 
 Such promise is implied as a matter of fact from the words 
 used as expressing the actual intent of the parties, not as 
 a matter of law.® 
 
 An action in assumpsit for lose and occupation could not 
 be maintained at common law in the absence of an express 
 promise to pay rent or a reasonable compensation.'' The 
 English Statute (Geo. 11, ch. 19, § 14), which provides for a 
 recovery of the reasonable value of the use and occupation 
 under demises not by deed, has been followed in New York 
 
 1. Co. Litt., 47a, 141b, 2 Bl. Com. 4. Drake v. Mundy, Cro. Car. 207; 
 41; Walker's Case, 3 Coke, 22a; Anonymous, 13 Mod. 73. 
 
 Auriol V. Mills, 4 Term. E. 94; Wall 5. Webb v. Eussell, 3 Term. R. 402; 
 
 V. Hinds, 70 Mass. 256. See Holmes Hallett v. Wylie, 3 John's (N. Y.) 
 
 Common Law, 253, 264; Ames Hist. 44; Bussman v. Ganster, 72 Pa. St. 
 
 of Assumpsit, 2 Harvard L. Eev. 55. 285. 
 
 2. See §§ 176, 177, post, under As- 6. See Tiflfany Landl. & Ten. 1033. 
 signment and Subletting. 7. Ames "Assumpsit for Use and 
 
 3. See preceding note. Occupation,'' 2 Harv. L. Eev. 377. 
 
294 LAIfDLOED AND TeNANT. 
 
 and many of the states by similiar statutes.* No such action 
 will lie where by express agreement the tenant is to hold 
 rent free, or where such agreement can reasonably be im- 
 plied.^ By the terms of the statute the action lies though a 
 rental be expressly reserved, evidence of the rent being re- 
 ceived in determining the reasonable value of the use and 
 occupation, recovery being limited to the rent so reserved. 
 The relation of landlord and tenant must exist in order that 
 this action may be maintained. The proper action against 
 a trespasser in possession is ejectment followed by an action 
 for the mesne profits during the period of wrongful occupa- 
 tion.^** The right to waive the tort and sue in assumpsit in 
 case of unjust enrichment does not exist in cases of wrong- 
 ful possession or disseisin by a trespasser .^^ A tenant hold- 
 ing over at the end of his term, thereby becoming a tenant 
 at sufferance, may be held liable in an action for use and 
 occupation." Though this rule is accepted by the courts 
 generally, it would seem to be clearly inconsistent with the 
 rule generally prevailing that such a tenant is a wrongdoer, 
 and may be held as such for the mesne profits during the 
 entire period of his wrongful holding over, the landlord 
 having elected to treat him as a trespasser, having brought 
 
 8. N. Y. Real Prop. L. § 330; 2 Gen. Mass. 235, and cases in preceding 
 Statutes N. J., § 1915; Kurd's Rev. rote. 
 
 Statutes, 111., 1905, c. SO, § 1. See 11. 2 Harv. L. Rev. 380; Keener 
 
 similar statutes in Arkansas, Dela- Quasi Contracts, 191. 
 
 ware, Florida, Virginia, West Vlr- 12. Osgood v. Dewey, 13 Jolins (N. 
 
 ginia, Wisconsin and Missouri. Y.) 340 (a tenancy by the year arose, 
 
 9. CoUyer v. Collyer, 113 N. Y. 442; tenant holding over for three years. 
 Lamb v. Lamb, 146 N. Y. 317; Bcclcer Landlord had right to sue for rent or 
 V. Davis, 87 N. Y. Supp. 433; Middle- for use and occupation) ; Schwoebel 
 ton's Exrs. v. Middleton, 35 N. J. Eq. v. Engelke, 61 N. J. L. 124; Stuart v. 
 141 ; Oakes v. Cakes, 16 111. 106. Hamilton. 66 111. 353 ; Williams v. 
 
 10. Preston v. Hawley, 101 N. Y. Leden, 171 Pa. St. 369; Bacon v. 
 586; Biglow v. Biglow, 75 App. Div. Brown, 9 Conn. 334 (in which case 
 (N. Y.) 98; Hurd v. Miller, 2 Hilt, tenancy for anotlier year by holding 
 (N. Y.) 540; Allen v. Thayer, 17 over arose); Tiffany" Landl. & Tea!, 
 Mass. 299; Kittredge v. Peaslee, 85 pp. 1492, 1870, 1871. 
 
ExPBBss Covenants. 
 
 295 
 
 the tenancy at sufferance to an end by entry or otherwise." 
 Entry and actual possession by the tenant is necessary in 
 order that this action may be maintained.^* He will be 
 liable in this action after such entry, however, for the full 
 term fixed by the lease, though he quit the premises before 
 the term expires.^ "* 
 
 The burden of proving that the relation of landlord and 
 tenant exists is on the landlord in an action for use and oc- 
 cupation.^® The relation having been found to exist, the 
 law presumes a promise on the part of the tenant to pay the 
 reasonable value of the use and occupation," which, aa 
 we have seen, may be rebutted. ^^ 
 
 13. Tiffany Landl. & Ten., 1872 ; In 
 Coleman v. Fitzgerald Bros. Brewing 
 Co., 39 Misc. (N. Y.) 349, and Maek- 
 lin V. McNetton, 30 Misc. 749, the 
 court held that a tenant holding over 
 cannot be held for rent or use and oc- 
 cupation during the period of his 
 holding over, since the landlord has 
 an election to treat him as a tenant 
 for another month or another year as 
 the case may be, or as a trespasser, 
 excluding any other alternative. It 
 may be possible to sustain the action 
 for such use and occupation on the 
 ground that the landlord may at hia 
 election treat the holdover tenant as 
 actually a tenant during the period 
 of his occupation only, a third altern- 
 ative, instead of as a trespasser. But 
 aa against this theory it has been held 
 that where the landlord has brought 
 ejectment against the tenant lie can- 
 not hold him for use and occupation. 
 but only for mesne profits as a tres- 
 passer, since he cannot be treated aa 
 a wrongdoer and in rightful posses- 
 sion at the same time. Birch v. 
 Wright, 1 Term. Eep. 378. That a 
 tenant at sufferance may be held for 
 mesne profits as a trespasser, see 
 
 § 157, ante. Osgood v. Dewey, 13 
 Johns. (N. y.) 340, is not inconsist- 
 ent with the N Y. cases above re- 
 ferred to. The tenant held over for 
 three years and the landlord having 
 elected to hold him as tenant could 
 sue either for the rent or for use and 
 occupation. 
 
 14. Wood V. Wilcox, 1 Denio (N. 
 y.) 37; Kendall v. Garland, 59 Mass. 
 74; Lewis v. Havens, 40 Conn. 363; 
 Franklin Tel. Co. y. Pewtress, 43 
 Conn. 167. 
 
 15. Hall V. Western, etc. Co., 34 N. 
 Y. 284; Walker v. Furbush, 65 Mass. 
 366 (tenant at will quit without giv- 
 ing notice required in Mass. by stat- 
 ute). Lockwood V. Lockwood, 23 
 Conn. 425. 
 
 16. Preston v. Hawley, 101 N. Y. 
 586. 
 
 The rule stated in some cases that 
 the relation of landlord and tenant 
 will be presumed to exist from mere 
 occupation by one person of land be- 
 longing to another is clearly against 
 the general rule that possession is 
 prima facie evidence of ownership. 
 Tiffany Landl. & Ten. 1S86, note 207. 
 
 17. Preston v. Hawley, 139 N. Y. 
 
296 Landlokd and Tenant. 
 
 § 168. Other Express Covenants. — The parties may, as 
 heretofore stated, bind themselves and limit and define the 
 estate of the tenant by any other covenants or agreements 
 they please, and if they relate to the term, and tend to de- 
 fine, restrict, or add to the rights of the tenant as holder 
 of the term they run with the land and constitute terms of 
 the relation of landlord and tenant, binding on their heirs, 
 successors or assigns as the case may be, subject to the 
 rules and principles hereafter discussed under " Assign- 
 ment and Subletting. ' ' ^ 
 
 Covenants restricting the use of the leased premises, as 
 that the premises shall be used only for a stated purpose, 
 or shall not be used for a stated purpose or purposes, are 
 common.^ 
 
 Covenants not to use the premises for the purposes of 
 trade or business, but only for the purposes of a residence, 
 covenants not to carry on particular kinds of business, 
 covenants not to commit or allow acts to the annoyance 
 of the lessor or their neighbors, covenants against nuisances, 
 covenants against the use of the premises as a boarding 
 house, and the like, are illustrations.* For breach of re- 
 strictive negative covenants or promises of this kind an ac- 
 tion for damages at law will lie, but as such remedy is 
 usually inadequate the usual course is to sue in equity 
 for an injunction forbidding further breaches, in this way 
 enforcing their specific performance.^ 
 
 Covenants by the tenant not to commit waste, not to 
 assign or sublet without the consent of the landlord, not 
 
 396, saO; Carpenter v. U. S., 84 U. S. 3. Weil v. Abrahams, 53 App. Dir. 
 
 489; Watson v. Brainard, 33 Vt. 88; (N. Y.) 313; Orvia v. Bank, 81 App. 
 
 Tiflfany, Landl. & Ten. 1887. See Div. 631; Ledlinsky v. Budweiser 
 
 cases in note 9, supra. Brew. Co., 17 App. Div. 470; Chautau- 
 
 18. See note 9, supra. qua Assembly v. Ailing, 46 Hun (N. 
 
 1. § 174 et seg., post. Y.) 582, and cases in preceding note. 
 
 2. Hall V. Gould, 13 N. Y. 127; 4. Waldorf Astoria Segar Co. y. 
 Waldorf Astoria Segar Co. v. Salo- Salomon, 109 App. Div. 651; Orvis V, 
 men, 109 App. Div. 651, Aff'd 184 N The Bank, 81 App. Div. 631. 
 
 Y. 584, 
 
Duty of Landlobd to Pat Taxes, etc. 297 
 
 to display signs without such consent, covenants to pay 
 taxes; and on the part of the landlord covenants to re- 
 build within a reasonable time after notice in case of de- 
 struction of the whole or part of the leasehold premises 
 by fire or other unusual action of the elements, are other 
 of the more usual express covenants not heretofore dis- 
 cussed.' Each covenant or agreement is subject to the gen- 
 eral principles of contract, and each must be interpreted and 
 enforced in accordance with the intention of the parties, 
 and the rules of interpretation applying to contracts gen- 
 erally. 
 
 F. — Incidents of the Relation of Landlord and Tenant Apart 
 from Covenants, Express or Implied. 
 
 § 169. Duty of Landlord to Pay Taxes, Assessments for 
 Permanent Improvements and to Make Changes and Altera- 
 tions Required by Law. — Since the landlord is entitled to 
 rent, when reserved, or to the reasonable value of the use 
 and occupation, taxes must be paid by him. The rent 
 represents the profits or income from the land, the tenant's 
 profits being the result of his labor and industry, which 
 distinguishes this situation from that of a tenant for life, 
 who receives the profits from the land, and therefore must 
 pay taxes.* Improvements made by the tenant which he has 
 the right to remove or to be paid for at the end of the term 
 are taxable against the tenant, not the landlord,'^ but if such 
 buildings or other improvements are to become the land- 
 lord 's property, the tenant having no right to remove them 
 or claim compensation for them, they are taxable against 
 the landlord.^ The tenant may pay the taxes to protect hia 
 
 5. Skidmore v. Hart, 13 Hun (N. Hart v. Hart, 117 Wis. 639; State v. 
 
 Y.) 441; Wilkinson v. Libbey, 83 Blundell, 24 N. J. L. 402, and cases 
 
 Mass. 375. See "Assignment and Sub- in following notes, 
 
 letting," and " iJestruotion of Leased 7. People v. Bldyn Board of Assea- 
 
 Premises 'by Fire," etc., post. Bors, 93 N. Y. 308. 
 
 e. Sanford's Appeal, 75 Conn. 590; 8. People T. Barker, 153 N. Y. 98. 
 
298 Laitdloed and Tenant. 
 
 own interest in the land, in case the landlord fails to pay 
 them, and recover the amount from the landlord.® In many 
 states the assessment may be against the owner (landlord) 
 or the occupier (tenant), but if the tenant is so assessed 
 he may, under the statute, deduct it from the next payment 
 of rent, in the absence of an express covenant on his part 
 to pay the taxes as part of his rent.^" For the same reasons,, 
 applying with even greater force, the landlord must pay all 
 assessments for permanent improvements and must make 
 all changes, alterations and improvements required by 
 boards of health, building and other municipal depart- 
 ments or by ordinance or state law.^^ An express covenant 
 on the part of the tenant to pay any of these charges, will, 
 of course, bind him, so that as between himself and the 
 landlord the burden will fall on the tenant.^' 
 
 § 170. Tenant Cannot Dispute Landlord's Title and Must 
 Give Landlord Notice of Adverse Action. — In an action for 
 rent the tenant cannot assert as a defense that the landlord's 
 title is defective unless he has been ousted through the en- 
 forcement of the superior title.* The rule that the tenant 
 cannot dispute the landlord's title amounts to this only, that 
 
 9. Williams v. Towl, 65 Mich. 204: man v. Johnson, 104 Mass. 491, and 
 I 78 N. Y. Tax Law. cases in preceding note. 
 
 10. Mass. Rev. Laws, 1902, c. 18, Under a covenant to pay taxes a 
 §§ 15, 20; Gen. St. N. J., 554, § 449; tenant is not required to pay taxes 
 New York Tax Law, § 78; Tiffany, assessed before the term or those as- 
 I<andl. & Ten. 840. sessed or accruing after the term. 
 
 11. De Clerq v. Barber Asphalt Co., Skidmore v. Hart, 13 Hun (N. Y.) 
 167 111. 315; Street v. Central Brew- 441; Wilkinson v. Llbbey, 83 Mass. 
 ing Co., 101 App, Div 3 ; Lindwell v. 375 ; Ogden v. Getty, 100 App. Div. 
 May, 111 App. Div. 457; City of New (N. Y.) 430. 
 
 York V. U. S. Trust Co., 116 App. Div. 1. Vernam v. Smith, 15 N. T. 827, 
 
 349; McVicar Gaillard R. Co. v. and cases therein cited; Moore v. Gair, 
 
 Garth, 111 App. Div. 934. ]08 App. Div. (N. Y.) 23; Prevot v. 
 
 12. Oswald V. Gilfert, 11 Johns. (N. Lawrence, 61 N. Y. 219; Tilyou v. 
 y.)443; Markham v. David Stevenson Reynolds, 108 N. Y. 558, 563; Mackin 
 Prewing Co., 104 App. Div. 430; Cod- v. Haven, 187 111. 480; Longfellow t. 
 
 Longfellow, 54 Me. 3^0. 
 
Tenant Cannot Dispute Landlord's Title, Etc. 299 
 
 for the period during wMcli the tenant has occupied tlie 
 premises under the lease he must pay the agreed rent. As 
 we shall see later, as soon as the tenant is evicted by a para- 
 mount title, either by being actually ousted or by taking a 
 lease from the true owner, rent is extinguished, so that he 
 is not liable for rent from that time.^ If he has been evicted 
 he may sue the landlord, or counterclaim in an action for 
 rent, for breach of the covenant of quiet enjoyment, and his 
 damages will include the amount which he has paid or for 
 which he is liable to the owner of the superior title on ac- 
 count of mesne profits during his wrongful occupation under 
 the lease.' 
 
 In an action for use and occupation the tenant is not 
 permitted to set up the invalidity of his landlord's title 
 as a defense, since he received that for which he has ex- 
 pressly or impliedly promised to pay the reasonable value.* 
 
 It is generally stated that the tenant is estopped from 
 denying the landlord's title. No element of estoppel in 
 pais exists, however, in a case of this kind. The tenant has 
 enjoyed the premises under a lease from the lessee, and there 
 having been no ouster he must pay the rent agreed upon in 
 accordance with his contract, the law refusing to take tlie 
 position that a defect in the landlord's title shall be a de- 
 fense for rent during the time the tenant has actually en- 
 joyed the premises. An appeal to the doctrine of equitaule 
 estoppel would seem to be entirely unnecessary.^ 
 
 In actions of ejectment brought by landlord's against 
 tenants at the end of the term or during the term to enforce 
 a forfeiture arising out of a breach of condition, the ten- 
 ant is estopped from denying his landlord's title. Since 
 he was let into possession on his express agreement to hold 
 the premises of the landlord as his tenant, he is clearly 
 estopped from asserting a right superior to that of his 
 
 8. See § 183, post. Vernam v. Smith, 15 N. Y. 327; Dolby 
 
 3. § 161, ante. v. Ilea, 11 Adol. & Ellis, 235. 
 
 4. Cobb V. Arnold, 49 Mass. 398; 5. See note 1, supra. 
 
300 Landlokd and Tenant. 
 
 landlord arising solely out of such possession. To permit 
 the tenant to defend his possession as against his landlord 
 by asserting the invalidity of his landlord's title would 
 be manifestly in bad faith and contrary to sound policy.^ 
 'Notice of the starting of an action against the tenant to 
 recover the property by one claiming a superior title must 
 be promptly given by the tenant to the landlord or he sub- 
 jects himself to the penalty of paying additional rent as 
 provided by statute^ 
 
 § 171. Responsibility for Dangerous Condition of Prem- 
 ises to Third Persons. — As the tenant is the owner of the 
 premises during his term, he and not the landlord is liable 
 to third persons rightfully on the premises who may be in- 
 jured because of a dangerous condition existing there. We 
 have seen that the landlord is not liable to the tenant for 
 damages arising out of a dangerous condition existing at the 
 time the lease was made except in the case of a hidden defect 
 or danger known to the landlord and which he failed to 
 disclose to the tenant, in which case he may be held liable 
 in an action based on his fraud or on his negligence.^ It is 
 clear that the landlord owes no greater duty, with refer- 
 ence to the condition of the premises, to the world generally 
 than he owes to his tenant, and therefore, apart from the 
 exceptional cases hereafter considered, the landlord is not 
 liable for damages resulting from a dangerous condition 
 existing at the time of the demise, which he neither negli- 
 gently nor fraudulently concealed from the tenant.^ That 
 
 6. Peyton v. Stith, 30 U. S. 485; York statute is the forfeiture of three 
 Valletta v. Bilinski, 68 111. App. 361; years' rent to the landlord. 
 Thomas v. Young, 79 Conn. 493 ; Bar- 1. § 166, ante. 
 
 ton V. Leonard, 26 Vt. 192. See 2. JafTe v. Harteau, 56 N. Y. 39S; 
 
 Smith's Leading Cas. (8th Am. ed.) Folsom v. Parker, 31 Miac. (N. Y.) 
 
 note, p. 902. 348; Jones v. Brumme, 120 App. Div. 
 
 7. N. Y. Real Prop. L., § 225; 8 494; Clyne v. Holmes, 61 N. .T.L. 35S; 
 Geo. II, ch. 19, § 12. O'Malley v. Twenty-five Associates, 
 
 The penalty imposed by tlie New 178 Mass. 555, and eases in other 
 
Kespoksibility foe Dangeeous Condition, etc. 301 
 
 tlie tenant alone is liable for damages resulting from a dan- 
 gerous condition arising after the letting is settled beyond 
 question.^ The premises are the property of the tenant for 
 the time being, the landlord having no present right of 
 ownership or enjoyment until the expiration of the term. 
 
 The willful or negligent concealment of a hidden dang- 
 erous condition by the landlord from the tenant when the 
 lease is made, makes him, as we have seen, liable to the ten- 
 ant in an action of fraud or negligence.* In such case 
 the landlord is liable to any member of the tenant's family 
 or household, or to any stranger rightfully on the premises 
 at the invitation of the tenant.^ The damage proximately 
 results from the negligence of the landlord, since accidents 
 to such persons should reasonably be expected by the aver- 
 age person in the landlord's position. If the defect be an 
 open one of which the tenant has had or should have had 
 notice, or if the defect has been disclosed to the tenant, we 
 have seen that the tenant cannot maintain an action for 
 damages resulting therefrom, as there has been no negli- 
 gence or fraud on the landlord's part." It follows that in 
 such case no third person could maintain an action in such 
 case against the landlord for the same reason, viz.: there 
 has been no wrong on the landlord's part, since there is 
 nothing to prevent him from letting the premises to a ten- 
 ant while they are in a dilapidated condition any more than 
 there is a bar to his selling the premises outright while 
 in that condition, there being no fraudulent concealment in 
 either case.^ 
 
 notes under this and following sec- 155 Mass. 381; Shute v. Bills, 191 
 
 ticn. Hass. 433. 
 
 3. Clancy v. Byrne, 56 N. Y. 129; 5. § 166 ante, and cases in preced- 
 
 Jennings v. Van Schaick, 108 N. Y. ing notes. 
 
 530; Curran v. Flamraer, 49 App. Div. 6. § 166 ante; O'Brien v. Capewcll, 
 
 (N. Y.) 393; Leaiix V. New York, 87 59 Barb. (N. Y.) 497; Akcrly v. 
 
 App. Div. 398; Dalton v. Gibson, 192 White, 58 Hun (N. Y.) 362; Jordan 
 
 1. V. Sullivan, 181 Mass. 348. 
 
 4. § 166 ante; Martin v. Richards, 7. Cases in preceding note. 
 
802 Lai^dloed and Tenant. 
 
 If the tenant discovers the dangerous condition before 
 any harm results, and has ample time to correct it by re- 
 pairs before the accident to himself, it is clear that he can- 
 not recover. Damages arising from his own personal in- 
 juries would not proximately result from the landlord's 
 fraudulent or negligent concealment but from his own fail- 
 ure to repair. The principle here involved seems to be 
 clearly established in the analogous cases on measure of 
 damage for breach of the covenant to repair, whether the 
 covenant be made and broken by landlord or tenant.^ There 
 is no question but that the tenant is liable in such case to 
 a third person rightfully on the premises who is injured 
 because of the defective condition after the tenant has 
 discovered it and has failed to remedy it, since ownership 
 and control is in the tenant and he is responsible as owner.' 
 Is the landlord also responsible in such case? The answer 
 turns on the nature of the duty owed by the landlord, at the 
 time the lease is made, to such third persons. It is negli- 
 gence on his part to lease the premises knowing of a secret 
 defect without disclosing it to the tenant, the specific 
 negligence being the failure to disclose. Damage to third 
 persons resulting from the dangerous condition proximately 
 results from this negligent failure to disclose, since as a 
 reasonable man he should expect such damage to follow. 
 But he is not liable if he discloses the condition to the ten- 
 ant or if the tenant discovered it before the lease was made. 
 The irresistible conclusion would seem to follow that he is 
 not liable where the accidental injury to a third person hap- 
 pens after the tenant discovers the defect and has failed 
 to remedy it, the negligence of the tenant being in such 
 case the proximate cause of the accident, the failure to 
 disclose the defect on the part of the landlord having no 
 longer anything to do with the situation.^"* 
 
 8. § 165, ante. of these cases decides the exact point 
 
 9. Cases in preceding notes. here involved, this conclusion follows 
 
 10. See cases cited under this and irresistibly from the principles estab- 
 th« following section. Though none lished by thes«" cases. 
 
Peemises Leased with Nuisance Theeeon. 303 
 
 § 172. Premises Leased with Nuisance Thereon. — If the 
 
 landlord creates a nuisance or permits one to exist on the 
 premises, and leases them in that condition, he is liable to 
 a third person who is injured as a result of the nuisance.^ 
 The tenant is also liable provided notice to the tenant of 
 the existence of the nuisance and the elapsing of a reason- 
 able time after such notice in which the tenant should have 
 removed it are established.^ The tenant alone, and not the 
 landlord, is liable for nuisances arising during the term.^ 
 
 A nuisance is any unreasonable use by the wrongdoer of 
 his property which unreasonably interferes with the right 
 of another to enjoy his own property in a reasonable way, 
 or an interference with an incorporeal property right, such 
 as an easement, private or public. It is clear that a mere 
 dangerous condition of private property dangerous only to 
 those who cr^me upon the premises is not a nuisance, though 
 it is sometimes erroneously referred to as such. The duty 
 which the owner of property owes to third persons right- 
 fully on the premises who are not mere licensees is merely 
 a duty to use reasonable care toward them, and the liability 
 arising because of a dangerous condition existing on the 
 
 1. Timlin v. Standard Oil Co., 136 471 (accumulation of snow on roof in 
 N. Y. 514; Irvine v. Wood, 51 N. Y. dangerous quantities could have been 
 224; Jorgensen v. Squiers, 144 N. Y. prevented by tenant. Steep roof with- 
 280; Swords v. Edgar, 59 N. Y. 38; out a guard to prevent snow from 
 Daley v. Savage, 145 Mass. 38; Hoflf- sliding on passersby in street not 
 enberth v. Myers, 43 App. Div. (JT. nuisance for which landlord is liable) ; 
 Y.) 183, and cases in notes following. Ryan v. Wilson, 87 N. Y. 47 (no Ha- 
 lf the nuisance arises out of the bility on landlord for leasing prem- 
 way the premises are used by the t«n- ises with a machine unguarded. Ten- 
 ant, they being ca,pable ol use reason- ant should have put in guard), 
 ably so as not to constitute a nuis- 2. Irvine v. Wood, 51 K. Y. 224, 
 ance, the tenant alone, and not the and other cases in preceding note, 
 landlord, is liable. Lufkin v. Zane, 3. Lufkin v. Zane, 157 Mass. 117: 
 157 Mass. 117 (tanks for disposal of Wolf. v. Kilpatrick, 101 N. "5c. 143. 
 urine of horses in livery stable, which See, also, the other cases cited under 
 C(>uld have been used by the tenant so this section, most of them stating th« 
 as not to constitute a nuisance) ; Clif- lule of the text either by way of de- 
 ford V. Am. Cotton Mills, 146 Mass. cision or dictum. 
 
804 Landloed and Tenant. 
 
 premises is based solely^ upon the negligence of such owner, 
 he not having used reasonable care in maintaining the prem- 
 ises in a safe condition, and having invited others to come 
 upon his premises while in a dangerous condition. The 
 rights and responsibilities of the different parties under 
 such circumstances are discussed in the preceding section. 
 The more common cases of nuisance resulting in injuries to 
 third persons for which the landlord has been held liable are 
 coalhole, sidewalk-grating, area, and cellar door cases,^ in 
 which the thing complained of is in the public street or im- 
 mediately connected therewith, so that its dangerous condi- 
 tion renders the sidewalk dangerous to the public. The 
 interference with the right to use the sidewalk, being an 
 interference with an easement, is clearly a nuisance, and 
 the rules above stated apply.* The existence of a dang- 
 erous wall or structure which is apt to topple into the 
 street or upon a neighbor's property has been generally 
 treated as a nuisance for which the landlord is liable in 
 
 4. Wolf V. Kilpatrick, 101 N. Y. A mere licensee is one who enters 
 
 146; Irvine v. Wood, 51 N. Y. 224; \^■ithout express or implied invitation, 
 
 Jorgensen v. Squiers, 144 N. Y. 280; but whose entry, because of general 
 
 Durant v. Palmer, 29 N. J. L. 544; usage, is not a trespass, as entry by 
 
 Daley v. Savage, 145 Mass. 38; a neighbor or social caller or by one 
 
 Frischberg v. Hunter, 173 Mass. 22. seeking to sell goods or to do business 
 
 In Canandaigua v. Foster, 156 N. with the owner at his own initiative 
 
 Y. 354, the landlord leased the lower and not at the invitation of the 
 
 ftoor to a tenant, and retained or owner. The keeping open of a store, 
 
 leased to other tenants the rest of the office or other place of business is an 
 
 building. The court held that the invitation to the public to enter, and 
 
 landlord was liable for the condition u, person so entering is a licensee by 
 
 of a grating which was imcler control invitation and not a mere licensee. A 
 
 of the tenant and which got in bad mere licensee cannot recover against 
 
 condition during the tenancy, the either landlord or tenant for injuries 
 
 court stating that public policj' re- arising out of a nuisance or other 
 
 quired that the landlord be held liable dangerous condition, except where it 
 
 where he retained any control of the constitutes something in the nature 
 
 building though not of the grating, of a trap against which he could not 
 
 In Curran v. Flammer, 49 App. Div. reasonably guard himself. Sterger v. 
 
 293, on exactly similar facts the court Van Sicklen, 1S2 X. Y. 499, ana casea 
 
 held that the landlord was not liable, cited. 
 
Peemises Leased with Nuisance Thbeeoit. 305 
 
 case it falls and does damage, if the premises were leased 
 in tliat condition.^ Defective plumbing on the leased 
 premises, such as a loft or apartment, resulting in leaks 
 doing damage to other tenants on lower floors is another 
 illustration.'' In any such case the letting of the premises 
 in that condition makes the landlord liable, he having 
 created the nuisance, or having permitted it to exist, and 
 having leased the premises in that condition. The landlord 
 is liable though the tenant knew of the existence of the 
 nuisance and failed to repair it. The landlord becomes 
 a party to it since he impliedly authorizes the continued use 
 of the premises in the condition existing at the time the 
 lease is made, the tenant being under no obligation to the 
 landlord to repair the defect. Since the tenant is owner and 
 therefore responsible for the condition of premises during 
 the term, he is liable to third parties provided he knew 
 or ought to have known of the nuisance, and permitted it to 
 continue. Of course the landlord is not liable for nuisances 
 arising during the term, as he is in no way responsible for 
 them.^ If, however, he renews the lease for a further term 
 after the nuisance has come into existence, he becomes a 
 party to it and will be liable to a third person subsequently 
 injured because of it.* 
 
 Why should the landlord be liable to third persons for 
 a nuisance existing when the lease is made and of which the 
 tenant has knowledge, when no liability arises out of a de- 
 fective condition not amounting to a nuisance of which the 
 tenant has knowledge? This rule can be justified only on 
 the theory that the landlord becomes a party to it by im- 
 
 5. Timlin v. Standard Oil Co., 120 Euckman, 37 Is. Y. 568; mill wheel so 
 N. Y. 514; Hoffenberth v. Myers, 42 placed as to frighten horses in street.. 
 App. Div. 283. House v. Metcalf, 27 Conn. 631. 
 
 6. Igwersen v. Rankin, 47 N. J. L. 7. See cases in note 3, supra. 
 
 18. Other instances of nuisance for 8, Timlin v. Standard Oil Co., 126 
 
 which the landlord may be held liable N. Y. 514; Ig^versen v. Rankin, 47 
 
 ■re: Dangerous condition of a pas- N. J. L. 18. 
 ■age from the street, Davenport v. 
 
 20 
 
306 Landloed and Tenant. 
 
 pliedly authorizing the tenant to continue the premises in 
 the same condition, receiving a rent, viz.: a profit from 
 the land, for the use of the land in that condition. The 
 rule cannot be based on the theory of the landlord's negli- 
 gence, as the letting of the premises in a dangerous con- 
 dition to the knowledge of the tenant is no more negligence 
 in the one case than in the other. Furthermore the act of 
 letting, if wrong, is wilfully wrong, not negligently wrong.^ 
 A line of cases involving the principle on which cases 
 of nuisance turn are leases of public halls or other places 
 for the express purpose of using them for public entertain- 
 ments or the like. If the landlord leases premises for such 
 a purpose knowing of a dangerous condition existing 
 thereon, whether it amounts technically to a nuisance or not, 
 and whether the tenant knows of it or not, he is liable to any 
 third person rightfully on the premises who may be injured 
 as a result thereof." Many of these cases present no diffi- 
 culty because the so-called lease is really a license, the 
 owner remaining responsible for the condition of his prop- 
 erty throughout. But it is well settled that the rule applies 
 where a tenancy exists, and the reason underlying the rule 
 is the same one on which the nuisance cases turn: having 
 let the premises for public use, and having authorized their 
 use for such purpose, the landlord becomes a party to their 
 use for such purpose, and is therefore liable to any third 
 person rightfully on the premises who is injured because of 
 a condition which makes them dangerous for use by the 
 public. 
 
 § 173. Eflfect of Covenant to Repair by Landlord. — There 
 is some authority for the proposition that if the landlord 
 has covenanted to make necessary repairs he may be held 
 liable by a third person injured because of a dangerous 
 condition arising during the term. This ruling is based 
 on the premise that the tenant may recover from the land- 
 
 9. See caaes in preceding notes under this section. 
 
Effect of Covenant to Eepaib. 
 
 307 
 
 lord whatever amount lie may be compelled to pay to the 
 person injured in an action for breach of the landlord's 
 covenant to repair, and to avoid circuity of action the per- 
 son injured is permitted to sue the landlord directly, it be- 
 ing admitted that the landlord owes no duty to repair ex- 
 cept under his covenant, and that he is liable for breach 
 of such covenant only to the tenant.^ The better rule, set- 
 tled in most jurisdictions by the great weight of authority, 
 is that the landlord cannot be held because the tenant can- 
 not include in his recovery from the landlord for breach of 
 his covenant to repair any sum which he may have been 
 compelled to pay to the person injured in such case, the 
 measure of damages being the cost of making the repairs 
 himself, the theory being that the tenant should make the 
 repairs himself where they are not extensive in character 
 and charge the same to the landlord.^ Where the repairs 
 
 10. Swords V. Edgar, 59 N. Y. 2S 
 (pier) ; Clancy v. Byrne, 56 N. Y. 129 
 (pier) ; Fox v. Buffalo Park, 31 4pp. 
 Div. 331, aff'd 163 N. Y. 559 (collaps- 
 ing of grandstand) ; Camp v. Wood, 
 76 N. y. 92 (hall let for entertain- 
 ment) ; Barrett v. Lake Ontario 
 Beach Imp. Co. (defective toboggan 
 slide used regularly by guests of pub- 
 lic bathing establishment). See dic- 
 tum by Gaynor, J., in Folsom v. 
 Parker, 31 Misc. (N. Y.) 348; Eck- 
 man v. Atlantic Lodge, 68 N. J. L. 10 
 (tenant in such case liable only for 
 such defects as he knows of or could 
 discover by reasonable inspection) ; 
 Oxford V. Leathe, 165 Mass. 354. 
 
 1. Inhabitants of Milford v. Hol- 
 brook, 91 Mass. 17; City of Lowell v. 
 f paulding, 58 Mass. 377 (dicta) : 
 Gridley v. Bloomington, 68 111. 47 
 (dicta) ; Boyce v. Tallerman. 183 111. 
 115, at 123 (dicta). See, also, dicta 
 in Ahearn v. Steele, 115 N. Y. 203, 
 and the clearly erroneous dicta in 
 
 May V. Ennis, 78 App. Div. 553 in 
 which ease the court refers to the fail- 
 ure of the landlord to repair accord- 
 ing to his covenant as negligence. 
 
 The authority of the earlier Massa- 
 chusetts cases is badly shaken by tho 
 case of Miles v. Janvrin, 196 Mass. 
 431, the court stating that the land- 
 lord's liability to third persona under 
 a covenant to repair arises only where 
 he has expressly undertaken the duty 
 of maintaining the premises in safe 
 c-0]idition in any event and where no 
 notice by the tenant of the need of 
 repairs is required. In the usual case 
 where such notice is required the 
 landlord is not liable to third per- 
 sons. 
 
 2. Frank v. Mandel, 76 App. Div. 
 (N. Y.) 413; Sterger v. Van Sicklen, 
 132 N. Y. 499; Stelz v. Van Deusen, 
 93 App. Div. 358; Slierloek v. Rush- 
 more, 99 App. Div. 598; Folsom v, 
 Parker, 31 Misc. (N. Y.) 348; Clyna 
 v. Helmes, 61 N. J. L. 358. 
 
308 Landlord and Tenant. 
 
 are extensive the measure of damages, as we have seen, 
 is the difference in valne of the leasehold estate with 
 the premises out of repair and its value with the premises in 
 repair,* It is clear that damages for injuries to third per- 
 sons are no more the proximate result of failure to repair 
 by the landlord than they would be in the case of a failure 
 to repair by any carpenter or other general contractor who 
 might enter into a contract with a tenant to make the re- 
 pairs in any case. As the doctrine of circuity of action 
 cannot be sustained, and it is clear that the landlord owes 
 no duty to anyone with reference to the condition of the 
 property except under his covenant to repair, it follows 
 that there is no principle on which he can be held liable by 
 a third person under the circumstances here discussed.* 
 
 Where the landlord leases apartments, offices, stores, lofts, 
 or other parts of the premises to different tenants, re- 
 taining possession of the halls, elevators, stairways, roofs, 
 area-ways, etc., it is clear that he is liable for the condi- 
 tion of the parts so retained within his control and pos- 
 session, and must answer in damages to a tenant or third 
 person rightfully on the premises for injuries arising out of 
 a dangerous condition therein of which he has actual or 
 constructive notice.^ 
 
 G. — Assignment and Subletting. 
 
 § 174. Assignment and Subletting Distinguished. — An 
 
 assignment is a transfer or conveyance by the tenant of 
 his entire interest or estate in the leasehold premises, or 
 part thereof, to the assignee. The tenant's interest in the 
 land covered by the assignment ends, and the assignee be- 
 comes the owner of the land under the lease, taking the place 
 of the tenant, and having the same interest or estate in the 
 
 3. See § 165, ante. Idel v. Mitchell, 158 N. Y. 134; Caleb 
 
 4. See cases in note 3, supra. v. Pisirsky, 178 N. Y. 458; Lynch ▼, 
 6. Peil V. Reinliart, 127 N. Y. 381; Swan, 167 Mass. 560. 
 
 Dullard v. Roberta, 130 N. Y. 269; 
 
ASSIGNMEITT AND SuBLETTIITG DISTINGUISHED. 309 
 
 land that the tenant had before the assignment, as defined 
 and limited by the terms of the lease. A subletting is a 
 letting of the leasehold premises to a subtenant for a part 
 of the original term, the tenant or sublessor retaining a 
 part of the term under the original lease. The subletting 
 creates a new relationship of landlord and tenant between 
 the sublessor and sublessee, the sublessee's interest being 
 a new estate carved out of the estate of the original tenant, 
 or sublessor. The reservation of any reversionary interest 
 whatever makes the transaction a subletting, though in the 
 form of an assignment, while a transaction in the form of 
 a subletting for the entire balance of the term, without the 
 reservation of a reversion of any kind, is an assignment.* 
 Where no reversion has been reserved, and the tenant has 
 thorefore transferred his entire estate, the transaction can- 
 not be a subletting because the assignee has stepped into the 
 place of the assignor and becomes bound by the covenants 
 and reservations of the lease running with the land. He 
 holds from the original landlord under the terms of the 
 original lease, and not from the assignor. No new rela- 
 tionship of landlord -and tenant between the assignor and 
 assignee has arisen. For like reasons where a reversion 
 has been reserved, the transaction cannot be an assignment. 
 A new relationship of landlord and tenant has arisen be- 
 tween the sublessor and the sublessee. There is no trans- 
 fer of the original relationship, since a reversion has been 
 reserved, and therefore the sublessee cannot hold under the 
 original lease from the original landlord.^ It has been sug- 
 gested in one case that a transaction in the form of a sub- 
 lease for the entire balance of the term, though an assign- 
 ment of the term rendering the so-called subtenant liable 
 as assignee under the original lease, may at the same time 
 
 1. Bedford v. Terhune, 30 N. Y. 36 N. Y. 569; Firth v. Eowe, 53 N. J. 
 
 453; Woodhull v. Rosenthal, 61 N. Y. Eq. 530; Field v. Mills, 33 N. J. L. 
 
 383; Stewart v. Long Island R. R. 254, and cases in notes immediately 
 
 Co., 103 N. Y. 601; Davis v. Morris, following. 
 
310 Landloed akd Tenant. 
 
 be given effect as a sublease between the immediate parties, 
 a different rental being reserved in the so-called sublease.® 
 As tbe two positions are absolutely inconsistent it seems 
 clear that all the court means is that the assignee will be 
 bound by any promises which he may have made in con- 
 nection with the assignment. If he has promised to pay a 
 higher rent, after paying the rent reserved in the original 
 lease he must pay to the assignor the excess amount agreed 
 upon.^ 
 
 A right to enter for breach of condition is not a reversion, 
 and a reservation of such a right does not change an assign- 
 ment into a subletting.* The assignor may make the assign- 
 ment subject to forfeiture for breach of condition, just as 
 a grantor for life or in fee may do the same thing, but in 
 neither case is the possible right to enter for breach of the 
 condition a reversion. The entire estate passes in each 
 case, subject to the condition.^ A right to enter at the end 
 of the term reserved by the original tenant, the surrender 
 of the premises to the original landlord to be made by him, 
 makes the transaction a subletting if such be the intention 
 of the parties. Here a reversion is reserved, since the taking 
 of the premises at the end of the term and the surrendering 
 
 2. Stewart v. Long Island E. E. Co., 129 III. 318, and eases in note pre- 
 102 N. Y. 601. ceding. 
 
 In Drake v. Laeoe, 157 Pa. St. 17, 4. WoodhuU v. Eosenthal, 61 N. Y. 
 a lease for the entire balance of the 382; Herzig v. Blumenkrohn, 122 
 term at a different rental is treated App. Div. (N. Y.) 756. 
 as a subletting. It is clear that such In Massachusetts where the rule is 
 a letting is an assignment, on prin- established that a right to enter for 
 ciple and by the great weight of au- breach of condition can be devised, it 
 thority, and therefore the reservation is held to be an estate, constituting a 
 of a different rental cannot make the reversion, and therefore renders a let- 
 transaction a subletting also, since it ting upon condition for the entire 
 must be one or the other — it cannot balance of the term a subletting, 
 be both at the same time. Firth v. Dunlap v. BuUard, 131 Mass. 161. 
 Rowe, 63 N. J. Eq. 520; Field v. 3'his illustrates how one error leads 
 Mills, 33 N. J. L. 254. to others. 
 
 3. Sexton v. Chicago Storage Co., 6. See chapter on Estates upon Con- 
 
 dition, post. 
 
Kequisites of Assignments and Subleases. 311 
 
 of them by the original tenant to his landlord necessarily in- 
 volves some few moments of time during which the tenant is 
 entitled to the possesion just before the expiration of the 
 original term. A new tenure, and therefore a new relation- 
 ship of landlord and tenant between tenant and subtenant, 
 is created in such case.® 
 
 Possession during the term by a third party gives rise to 
 a presumption that the tenant assigned the term to him, 
 and the burden is cast on such third person to introduce 
 evidence explaining his possession in order to overthrow 
 this presumption.'^ Payment of rent under the lease to the 
 landlord is prima facie evidence of a valid assignment. An 
 assignment of part of the leasehold premises for the balance 
 of the term is an assignment pro tanto, not a subletting, the 
 assignee being chargeable with so much of the rent as may 
 have been reserved in the lease for the part of the premises 
 assigned, or the rent will be apportioned.^ 
 
 § 175. Formal Requisites of Assignments and Subleases. 
 — By the English Statute of Frauds no assignments are 
 valid unless in writing, signed by the assignor or his agent 
 duly authorized in writing, or by act and operation of law.^ 
 Substantially the same provisions have been enacted in 
 Massachusetts, New Jersey, and some other states.^ In 
 
 6. Ganson v. TifFt, 71 N. Y. 4S; If the lease contains a covenant or 
 Post V. Kearney, 3 N. Y. 394 ; Mar- condition not to assign no assignment 
 tin V. O'Connor, 43 Barb. (N. Y.) will be presumed. Dey v. Greene- 
 523; Koppel v. Tilyou, 70 N. Y. Supp. baum, 82 Hun (N. Y.) 533. 
 
 910; Sexton v. Chicago Storage Co., 8. Woodhull v. Rosenthal, 61 N. Y. 
 
 339 111. 31S. Where the surrender is 382; Stover v. Chasse, 6 Misc. (N. 
 
 to be made to the original lessor by Y.) 394; Hollywood v. First Parish, 
 
 the subtenant, the sublease in form is Brockton, 193 Mass. 369. 
 
 legally an assignment. Herzig v. 1. 39 Car. 3, c. 3, § 3. 
 
 Bluinenkronn, 123 App. Div. 756. 2. Mass. Rev. Laws, c. 137, § 3; 
 
 7. Bedford v. Terhune, 30 N. Y'. N. J. Gen. Stat., p. 1603. § 3. See 
 453; Poster v. Oldham, 8 Misc. 331; Tiffany, Landl. & Ten., p. 953, note. 
 Frank t. N. Y. & L. E. & W. R. Co., 
 
 182 N. Y. 197. 
 
312 Landloed and Tenant. 
 
 New York assignments of leasehold estates of over a year 
 must be in writing, signed by the assignor or his agent duly 
 authorized in writing.^ Many other states have enacted 
 statutes with substantially the same provisions.* Though 
 the lease be under seal the assignment need not, since the 
 lease as an instrument is not assigned, but rather the estate 
 for years created by the instrument.^ Subleases are gov- 
 erned by statutes applying to leases generally. 
 
 § 176. Effects of Assignment; Liabilities of Assignee. — 
 Since the assignment transfers the relation existing between 
 the landlord and tenant to the assignee, it follows that the 
 assignee becomes liable on all covenants, promises, reserva- 
 tions and conditions contained in the lease which tend in 
 any way to define, limit or qualify the estate created by 
 the lease. These express the terms of the tenure under 
 which the land is held of the landlord. The covenants or 
 contracts therein contained relating to the tenancy are said 
 to " run with the land," and are said to bind the assignee 
 for that reason. In so far as the relation of landlord and 
 tenant is concerned this means only that these covenants 
 express the terms under which the tenant holds, and they 
 become binding upon any of his successors in interest, as 
 incidents of the term to which they have succeeded. The 
 covenant or promise to pay rent, or reservation of rent, the 
 express covenant not to commit waste, to repair, to pay 
 taxes, to renew the lease, not to assign without the land- 
 lord's consent, not to use the property for stated forbidden 
 purposes, and the like are the more usual covenants which 
 run with the land and bind the assignee or may be enforced 
 by him, as the case may be.^ Covenants or promises purely 
 
 3. N. Y. R. Prop. L. § 242. 5. Sanders v. Partridge, 108 Mass, 
 
 4. See Statutes of Kansas, Mich., 556. 
 
 Minn., Mont., Nev., Neb., Utah and 6. Spencer's Case, 6 Coke, 16a; 
 
 Wisconsin cited in Tiffany Landl. & Crawford v. Witherbee, 77 Wis. 419 j 
 Ten., p. 953, note. Bedford v. Terhune, 30 N. Y. 453; 
 
Effects of Assignmbitt. 
 
 313 
 
 personal in their nature, in no way relating to the tenancy 
 or defining the terms under which the land shall be held, 
 do not bind the assignee/ The assignee is liable only by 
 virtue of his privity of estate with the landlord, the holding 
 or tenure of the leasehold estate from him, not because of 
 any personal promise or covenant. There is no personal obli- 
 gation arising out Qf any promise or contract made by the as- 
 signee since he makes none. Therefore if he assigns to another 
 he is not liable for any breach of these covenants that may 
 be conmiitted by the second or subsequent assignees, but 
 only for such breaches as may have been committed by him- 
 self. On assigning in turn to another the privity of estate 
 on which his liability depends passes on to that other,^ 
 and he becomes a stranger to the term.* Entry on the part 
 of any assignee is not necessary to render him liable for 
 
 Astor V. Hoyt, 5 Wend. (N. Y.) 603; 
 Dananbeig v. Eheinheimer, 34 Misc. 
 (N. Y.) 712. That the assignee is not 
 liable for breaches committed before 
 the aBsignment, there is, of course, no 
 question. A breach committed before 
 the assignment gives rise to a cause 
 of action for damages against the 
 tenant personal to him which does 
 not run with the land so as to bind 
 the assignee by privity of estate. As- 
 tor V. Hoyt, 5 Wend. 603, and cases 
 above cited. The assignee is not li- 
 able, therefore, for rent due in ad- 
 vance before assignment, though cov- 
 ering a period elapsing after the as- 
 signment was made. Wolf v. Gluck, 
 24 Misc. (N. Y.) 763. See also Town- 
 send V. Scholey, 43 N. Y. 18; Wash- 
 ington Natural Gas Co', v. Johnson, 
 133 Pa. St. 576. In New York one in 
 possession holding under a contract 
 by the tenant to assign is liable as 
 assignee, he being regarded as the 
 owner of the term in everything ex- 
 cept the bare legal title. Mead > 
 
 Madden, 85 App. Div. 10. Possession 
 under the tenant unexplained i» 
 prima facie evidence of an assignment 
 which renders the person in posses- 
 sion liable. See § 174, note 7, supra/ 
 also Hatch v. Van Dervoort, 54 N. J. 
 Eq. 511; Noble v. Thayer, 19 App. 
 Div. (N. Y.) 446. 
 
 7. See cases in preceding note. 
 
 8. Durand v. Curtis, 57 N. Y. 7; 
 Clark V. Aldrich, 4 App. Div. N. Y. 
 523 ; Dassori v. Zarek, 73 N. Y. Supp. 
 841; Simmons v. Turner, 120 Mass. 
 328 ; Bell v. Am. Protection League, 
 163 Mass. 558. 
 
 The assignor, of course, remains lia- 
 ble for breaches committed by him bs- 
 fore assignment made by him. Cons. 
 Coal Co. V. Peers. 150 111. 344; 
 Quackenboss v. Clark, 12 Wend. 55. 
 The reassignment is effectivr to re- 
 lieve the first assignee from liability 
 for subsequent breaches though in 
 violation of a covenant not to assign. 
 TMnald-'on v. Strong. 195 Miiss. 429. 
 
314 Lawdloed and Teitant. 
 
 rent or for breach, of any of the covenants of the lease. 
 Some authority exists based on the old cases, and the old 
 doctrine of seisin and livery of seisin, to the effect that 
 entry by the assignee is necessary before he becomes liable, 
 but the prevailing view is that such entry is now unneces- 
 sary. Since delivery of possession is no longer essential to 
 a conveyance, and since an estate for life or in fee may be 
 transferred by deed without entry so as to vest title and 
 seisin in the grantee, it is clear that delivery of possession 
 is not necessary in the case of the assignment of a term to 
 make the assignment effective and complete as a transfer 
 of the tenant's estate for aU purposes. This applies to 
 any reassignment as well as to the first assignment." 
 
 If the assignee expressly assumes the performance of the 
 covenants of the lease, promising to perform them, he 
 becomes personally liable to the landlord thereon by 
 virtue of the covenant or promise of assumption. This 
 personal obligation renders him liable after a reassign- 
 ment to another, for breaches subsequently committed, his 
 liability being that of surety, and therefore giving him 
 the right to hold the second or subsequent assignee actually 
 guilty of the breach, for the amount which he may be com- 
 pelled to pay.^" The assumption by the assignee must be 
 in express terms. An assignment of the lease, " with all its 
 
 9. Collins V. Pratt, 181 Mass. 345, the failure to relinquish possession 
 
 distinguishing Sanders v. Partridge, by the assignee upon making a reas- 
 
 108 Mass. 656; Benedict v. Everard, signment is material only in determ- 
 
 73 Conn. 157; Fennell v. GuflFey, 155 ining whether a real assignment was 
 
 Pa. St. 38; Babcock v. Scoville, 56 111. made, or only a colorable or pre- 
 
 *61- tended one, which latter would not 
 
 The rule in New York is in accord- free the assignee from such Tability. 
 
 ance with the general rule, though in Tate v. McCormick, 23 Hun (N. Y.) 
 
 one or two cases the court has spoken 218; Durand v. Curtis, 57 N Y. 7; 
 
 of a reassignment by the assignee and Clark v. Aldrioh, 4 App. Div. {N. Y.) 
 
 the relinquishment of possession by 523. 
 
 him as freeing him from liability for 10. Springer v. DeWolf, 194 HI. 
 
 rent thereafter accruing. A careful 218; Dickinson Oo. v. Fitterling, 73 
 
 examination of the cases shows that Minn. 483 
 
Liability op Oeiginal Assionob. 816 
 
 covenants, terms and conditions " or " subject to the rents, 
 covenants, conditions and provisions " does not amount in 
 either case to a covenant of assumption, since the accept- 
 ance of the assignment subject to the terms of the lease 
 involves merely the obligations arising out of the privity 
 of estate created by the transfer, not any personal liability 
 arising out of express contract.** 
 
 When the lease provides for a renewal of the lease, or 
 for an extension of the term at the option of the tenant 
 upon his giving a stated notice, the exercise of the option in 
 either case by an assignee makes him personally liable in 
 contract on the covenants of the lease for the renewed or 
 extended term, he becoming the original tenant for the ex- 
 tended term by his exercise of the option. ^^ 
 
 § 177. Liability of Original Assignor. — The original as- 
 signor remains personally liable on his express covenants or 
 promises contained in the lease, not only for breaches com- 
 mitted before the assignment by the assignor himself, but 
 also for all breaches committed by his assignee or any sub- 
 sequent assignee. This personal liability arising out of his 
 express contract is, of course, in no way discharged or 
 released by an assignment in the absence of a release by the 
 landlord or the acceptance by the landlord of the express 
 covenant or promise of assumption made by the assigiiee 
 in discharge of the original assignor's liability by way of 
 novation.* Covenants implied by law, or duties imposed 
 by law upon the tenant as incidents of the relation of land- 
 lord and tenant, bind him only as long as he continues to 
 hold the land as tenant, and upon assigning the term and 
 quitting the premises he is not liable for breaches of these 
 covenants or duties thereafter committed by the assignee 
 or his successors.^ Thus he is not liable, in the absence of 
 
 11. Consolidated Coal Co. v. Peers, 12. Probst v. Rochester Steam 
 
 166 111. 361; Dassori v. Zarek, 71 Laundry Co., 171 N. Y. 584. 
 App. Div. (N. Y.) 538. 1. Wall v. Hinds, 70 Mass. 356; 
 
316 Lawdloed and Tenant. 
 
 express covenant, for the assignee's failure to repair, for 
 waste committed by tlie assignee, or for a wrongful denial 
 of the landlord's title, or failure to give notice of an ad- 
 p-erse action started by a stranger on tlie part of the assignee. 
 These duties do not depend on any express promise, but 
 upon the privity of estate, the relationship of landlord 
 and tenant, as in the case of the liability of an assignee 
 upon the covenants of the lease. 
 
 As to the assignee the liability of the original assignor 
 upon express covenants or promises of the lease is that of 
 surety, and if he is compelled to pay the rent or to answer 
 for -breach of any other covenant or promise on the part 
 of the assignee, or any of his successors in interest, he may 
 recover the amount so paid in an action against the assignee 
 or his successor actually guilty of the breach.^ 
 
 § 178. Sublessor and Sublessee. — As already stated a 
 subtenant is a stranger to the original landlord, incurring n& 
 liability on the covenants contained in the lease arising out 
 of either privity of contract or privity of estate. The sub- 
 tenant holds from the sublessor or original tenant, and is- 
 bound to him alone, and only by the covenants and prom- 
 ises of the sublease.* But anything which defeats the sub- 
 lessor's estate will necessarily destroy the estate of the 
 subtenant, and therefore the landlord may enter against 
 both tenant and subtenant for breach of condition contained 
 in the original lease.^ If the sublessor fails to pay the 
 
 Jackson v. Brownson, 7 Johns. (N. 3. Farrington v. Kim'call, 126 
 
 Y.) 227; Croveling v. De Hart, 54 N. Mass. 313; Collins v. Pratt, 181 Mass. 
 
 J. L. 338; Hartz v. Eddy, 140 Mich. 345; Crowley v. Gormley, 59 Appr 
 
 479; Consolidated Coal Co. v. Peers, Div. (N. Y.) 356; McKeon v. Wen- 
 
 166 111. 361; Rector v. Hartford De- delken, 25 Misc. 711. 
 
 posit Co., 190 111. 3S0; Washington 4. Martin v. O'Connor, 43 Barb. 
 
 Nat. Gas Co. V. Johnson, 123 Pa. St. {N. Y.) 514; Field v. Mills, 33 N. J. 
 
 576; Jordan v. Indianapolis Water L. 354; Du;ilap v. Bullaid, 131 Mass. 
 
 Co., 159 Ind. 337. 161. 
 
 2. Consolidated Coal Co. v. Peers, 6. See Ch. XII, post, Conditional 
 
 166 m. 361; Wnll v. Hinds, 70 Mass. Estates. 
 S56 
 
Kesteiotions Upost Assigning and Subletting. 317 
 
 rent reserved in the original lease and the landlord has the 
 right to terminate the lease on that account, the subtenant 
 may pay the rent to the original landlord and set off the 
 amount against the rent due the sublessor under the sub- 
 lease, or may recover it in an action against the sublessor 
 for money paid to his use. The subtenant is not a volun- 
 teer in such case; the payment is made in order to protect 
 his interest from possible destruction through the ending 
 of the tenant's term, and he need not wait till the landlord 
 takes action before making such payment.* 
 
 The making of a sublease works no change in the rela- 
 tion existing- between the original landlord and tenant, 
 their rights and liabilities remaining as before. This fol- 
 lows obviously from the fact that a sublease gives rise 
 to a new relationship of landlord and tenant between the 
 tenant and subtenant to which the original landlord is a 
 stranger, in no way transferring the term or affecting the 
 xelationship of the parties to the original lease. 
 
 As between sublessor and sublessee, the relationship of 
 landlord and tenant exists, subject, in general, to all the 
 incidents attaching to that relationship. 
 
 § 179. Eestrictions Upon Assigning and Subletting. — 
 Since a term of years is an estate in the land, it follows 
 that like other estates it may be transferred by the ten- 
 ant at his pleasure in the absence of restrictions in the lease. 
 As we have seen, a transfer of his entire interest in all 
 ■or a part of the land is an assignment, while a transfer of 
 part of his interest, for a part of the term, is a subletting. 
 Leases usually contain a covenant on the part of the tenant 
 binding him not to assign or sublet without the consent of 
 the landlord, and reserving a right to enter and terminate 
 the tenant's interest for breach of the covenant. The 
 
 6. Peck V. Ingersoll, 7 N. Y. 538; 
 Raubitscheek v. Semken, 4 Abb. N. C. 
 305. note. 
 
318 Landioed and Tenant. 
 
 restriction sometimes takes the form of a covenant not to 
 assign, or a covenant not to sublet, or a covenant not to 
 assign or sublet, without any provision as to the consent of 
 the landlord. Since provisions of this kind are restraints 
 upon the free alienation of estates in land the courts do not 
 favor them, and they are very strictly construed. Therefore 
 a covenant or condition against assigning does not prevent 
 subletting, and a sublease without the landlord's consent 
 is not a violation of such provision.^ For the same reason 
 an assignment is not a violation of a covenant or condition 
 not to sublet.^ An assignment of a part of the leased prem- 
 ises is not a violation of a general covenant not to assign, 
 the courts construing such a covenant as forbidding assign- 
 ments of the tenant's interest in the entire premises, not a 
 part thereof.' Therefore, to protect landlords against such 
 assignments it is necessary to provide that the tenant shall 
 not assign his term in the whole or any part of the leased 
 premises. 
 
 These restrictions have no application to licenses in 
 any form, where a third party is permitted to occupy the 
 premises or some part thereof as a licensee for certain 
 stated purposes. Therefore the putting of a caretaker 
 in possession,* the letting of a room to a lodger under a 
 contract for board and lodging,^ the so-called " leasing " 
 of a wall for advertising display* and the like, are not 
 violations of these restrictions, since no exclusive possession 
 of the premises is given in such cases to the licensee. 
 
 Transfers by will, or by operation of law, are not in 
 violation of these restrictions. A general restriction upon 
 
 1. Stephenson v. Silvernail, 17 254. See cases in preceding note. 
 Johna. (N. Y.) 378; Riggs v. Purcell, See dicta contra. Den d. Bockover 
 66 N. Y. at p. 201, and cases there v. Post, 25 N. J. L. 285. 
 
 cited; Den d. Bockover v. Post, 25 N. 3. Roosevelt t. Hnpkins, 33 N. Y. 
 
 J. L. 285; Moore v. Guardian Trust 81; Randol v. Scott, 110 Cal. 590. 
 
 Co., 173 Mo. 218. See contra, Boston C. & M. R. Co. v. 
 
 2. Lynde v. Hough, 27 Barb. (N. Po«t( n & Lowell R. Co., 65 N. H. 373. 
 Y.) 415; Field v. Mills, 33 N. J. L. at 432; Emery v. Hill, 67 N. H. 830. 
 
Kemedies foe Beeaoh of Covenant, etc. 819 
 
 assigning and subletting is construed as applying only to 
 voluntary acts of tlie tenant or his successors in interost 
 inter vivos, and therefore it does not prevent the passing 
 of the tenant's interest to his next of Irin on his death, or 
 to his legatee by willJ For the same reason, in the absence 
 of an express provision in restriction thereof, an assign- 
 ment in bankruptcy or an assignment for the benefit of 
 creditors,^ or a sale of the term under execution or under 
 foreclosure of a mortgage of the term,^ are not in violation 
 of a general covenant not to assign or sublet. The mortgag- 
 ing of the term is not a violation, since it results in creating 
 a lien only on the term, subject to which the tenant's inter- 
 est continues in him as before."* 
 
 § 180. Remedies for Breach of Covenant Not to Assign or 
 Sublet. — If the lease contains a covenant not to assign or 
 sublet, without reservation of a right of entry or of forfeit- 
 ure in case of a breach, an assignment or sublease made in 
 violation of the covenant is valid. The landlord cannot 
 enforce a forfeiture, since the covenant was not also made 
 a condition by reserving the right to enter. His remedy is 
 
 4. Preaby v. Benjamin, 169 N. Y. 70 N. J. L. 233, a mortgage followed 
 
 377. by a sale under foreclosure amounted 
 
 6. Peaks v. Cobb, 197 Mass. 554. to a breach of the covenant not to 
 
 6. Lowell V. Strahan, 145 Mass. 1. assign; the mortgage alone was not a 
 
 7. Jackson v. Silvernail, 15 Johns, breach, creating a lien, but it was a 
 (N. Y.) 278; Farnum v. Hefner, 79 voluntary act, and when followed ly 
 Cal. 575. a sale under foreclosure the assign- 
 
 8. Bemis v. Wilder, 100 Mass. 446; ment was completed as a result of 
 In re Bush, 136 Fed. 878. A volun- the voluntary act of the tenant. In 
 tary assignment for benefit of cred- the New York cases above cited tl,e 
 itors was held to be a voluntary act, court holds that the foreclosure sale 
 and therefore not by operation of law, is a transfer by operation of law as 
 and was held to be a violarion in truly as a sale under execution, the 
 Medinah Temple Co. v. Currey, 163 one being no more the voluntary act 
 111. 441. of the tenant than the other. 
 
 9. Riggs V. Puroell, 66 N. Y. 193; 10. See cases in preceding note, also, 
 Dunlop V. Mulry, 85 App Div. 49S. Barry v. Hamburg-Bremen Fire Ins. 
 
 In West Shore R. Co. v. Wenner. Co., 110 N. Y. 1. 
 
320 Landlord and Tbnant. 
 
 to sue the tenant for damages arising ont of the breach 
 of the covenant. 1 Whether he can get an injunction in 
 equity to restrain a threatened breach, or to prevent the 
 assignee from occupying the premises, is a question which 
 will be discussed hereafter. Where a right to enter or 
 to enforce a forfeiture of the term because of a breach of 
 the covenant is reserved in the lease, the landlord may re- 
 cover damages for breach of the covenant and also oust the 
 tenant for breach of condition.^ In any event the assign- 
 ment or sublease is valid and binding as between the tenant 
 and assignee or the tenant and subtenant. It is valid for 
 all purposes at law, subject to the landlord's right to enforce 
 a forfeiture for breach of condition.* But by ousting the 
 tenant the landlord puts an end to the term, ending at the 
 same time his right to recover rent thereafter accruing. Is 
 the landlord forced in every case of this kind to the alterna- 
 tive of either waiving the breach and accepting rent from 
 the assignee, with the right to hold the original tenant for 
 any damages arising out of the assignment, or of ousting 
 tenant and assignee or subtenant for breach of condition, 
 thereby losing his right to recover rent from the tenant 
 for the balance of the term, and having only his action 
 for damages for breach of covenant? Why should he 
 not have the right to insist on the specific performance of 
 the negative covenant, just as he would have the right to 
 the specific performance of negative covenants restricting 
 the tenant in the use of the leased premises? Where the 
 assignment or subletting involves a use of the premises 
 contrary to the uses for which they were leased, it is clear 
 that an injunction restraining such occupation and user by 
 the assignee or subtenant will be granted.* But where no 
 
 1. See Ch. XII, post. son, 67 Mass. 332; Sexton v. Chicago 
 
 2. See Ch. XII, post. Storage Co., 139 111. 318; Putney 
 S. Sayres v. Kerr, 4 App. Div. (N. Bros. Co. v. Milwaukee Light, etc. Co., 
 
 Y.) 150; Broadway, etc. Co. v. Myers, 134 Wis. 379. 
 
 •49 Misc. (N". Y.) 531; Bemis v. Wil- 4. Godfrey r. Black, 39 Kan. 193 j 
 
 >der, 100 Mass. 44'6; Blake v. Sander- IMoEacliorn v. Cotton, Appeal Coae*, 
 
Remedies foe Beeach of Covenant, eto. 321 
 
 such forbidden user is involved the question seems to be 
 an open one. On the one hand it may be said that equity 
 should be slow to specifically enforce contracts in restraint 
 of alienation, since the free alienation of interests in land 
 is desirable and in accordance with the public interest. On 
 the other hand, the law recognizes such restraints as valid, 
 and as a practical matter they are necessary to the pro- 
 tection of the interests of landlords. The landlord's remedy 
 at law is inadequate, since he is compelled at law either to 
 enforce a forfeiture and give up his right to hold the tenant 
 for rent thereafter accruing, or to waive the breach, ac- 
 quiescing in the assignment or subletting, and having only 
 an action for damages for breach of the covenant. It would 
 seem, therefore, that in the usual case he should have the 
 further remedy of an injunction restraining a threatened 
 assignment or subletting, or if the breach has been com- 
 mitted, restraining the assignee or subtenant from occupy- 
 ing the premises as tenant, without in any way affecting hia 
 right to hold the original tenant for rent accruing during 
 the balance of the term." 
 
 A covenant not to assign or to sublet runs with the land 
 and is binding on the tenant's personal representatives and 
 assigns.® On principal this is true in all cases whether the 
 term " assigns " be used or not in the covenant. In some 
 cases, however, it has been decided that a covenant on the 
 part of a tenant, simply, not to assign, with no provision 
 to the effect that the assignees of the tenant shall not as- 
 sign, was not intended to bind assignees of the tenant, and 
 therefore where he has assigned with the landlord's con- 
 sent, or where the landlord subsequently accepts the assign- 
 ment, waiving the breach, the assignee may assign in 
 turn as he pleases, since the covenant or condition was 
 not intended to apply to him, but only to the original ten^ 
 
 104; Koepker v. Redel, 116 Mo. App. 5. See cases in preceding note. 
 63, at p. 69 (dicta) ; aillian v. Nor- 6. Williams v. Earle, L. E. 3 Q. a 
 
 ton, S3 Hon. Pr. (N. Y.) 37.3 (dicta). 739. 
 
 21 
 
322 Landloed and Tenant. 
 
 ant, and was therefore capable of only a single breach, 
 •wbicli was consented to or waived by tbe landlord, tlius 
 putting an end to tlie condition altogether^ This is another 
 example of the rules of strict construction applied to these 
 restrictions. It is clear that these covenants touch and 
 affect the land, and are highly important terms of the ten- 
 ure under which the tenant holds, and therefore it is clear 
 that they should bind the assignee when such tenure ia 
 transferred to him by assignment. 
 
 § 181. Transfer of the Reversion. — The landlord, being 
 owner of the fee subject to the term of years, may convey 
 his interest, transferring to the grantee exactly the same 
 estate in the land which he had theretofore held, and 
 subject to exactly the same incidents. As between the ten- 
 ant and the landlord's grantee, exactly the same tenure 
 exists as existed before the conveyance of the reversion, the 
 grantee stepping into the landlord's place under the lease, 
 being chargeable with and having the right to enforce all 
 covenants in the lease relating to the land and affecting the 
 tenure under which it is held. The principles applying to the 
 enforcement of such covenants as between an assignee of 
 the tenant and the landlord apply also to cases where the 
 landlord has conveyed his estate. It is probable that this 
 was the common law rule before the enactment of the 
 statute, 32 Henry Vlli, c. 34, the better opinion being that 
 the statute in question was in the main declaratory of the 
 common law rule.* That statute, in any event, enacted the 
 above rule of liability both in the case of transfers of the 
 term by assignment on the part of the tenant and in the 
 case of conveyances of the reversion by the landlord. Thia 
 statute has either been followed by statutes in substantially 
 
 7. Bally v. Wclla, 3 Wils 25 ; Kohler Dumpor's ease as applying to this 
 
 T, Brady, 78 Hun (N. Y.) 443; Mur- situation, see Oh. XII, post. 
 
 ray v. Harway, 56 N. Y. 337. 8. See Sims, Covenants which Run 
 
 For a discussion ol the rule in with the Land, pp. 60, 77, 80 
 
Eviction. 323 
 
 the same form in the different states, or it has been adopted 
 as part of the common law of the state in those states where 
 no such statute has been enacted.® 
 
 H. — Suspension and Extinguishment of Rent; Eviction, Talc- 
 ing by Eminent Domain, Surrender, Forfeiture, Merger 
 and Destruction of Leased Premises. 
 
 § 182. Eviction. — An eviction of a tenant is the ousting 
 of him from the whole or some part of the leased premises 
 either by the act of the landlord or by the enforcement of 
 a title by a stranger which is superior or paramount to that 
 of the landlord. The putting of the tenant out of posses- 
 sion by the act of a stranger without title is not an eviction, 
 and in no way affects the landlord's right to hold the tenant 
 for rent. An eviction by act of the landlord may be either 
 the forceful ousting or exclusion of the tenant by the land- 
 lord's direct act, or it may be the forcing of the tenant to 
 quit the premises because of the maintenance of a nuisance 
 on adjoining premises by the landlord of such a nature that 
 the premises are rendered unfit for occupancy, or which so 
 interferes with the tenant's enjoyment that he is forced, act- 
 ing as a reasonable man, to quit the premises, or where the 
 tenant is so forced to quit because of a failure on 
 the part of the landlord to discharge a duty which he owes 
 to the tenant. Evictions of this kind are frequently called 
 constructive. These various kinds of ouster and their effect 
 on the tenant's obligation to pay rent will be separately 
 considered.* 
 
 9. § 323, N. Y. Real Prop. L. See liable for rent. See § 163, ante. 
 
 statutes in the various states. Mechanics' & Traders' Fire Ins. Co. v. 
 
 1. In this connection it should be Scctt, 2 Hilton (N. Y.) 550; Duncan 
 rememibered that if the tenant is not v. Maloney, 115 111. App. 522. In 
 permitted to take possession at the Brandt v. Phillippl, 82 Cal. 63, ther« 
 beginning of his term because of the is dicta to the effect that the landlord 
 act or fault of the landlord, or be- must give possession, and cannot re- 
 cause of a paramount title, he may cover rent if the tenant is kept out 
 repudiate the lease and will not be by a "tranger without right, though 
 
824 
 
 Landloed and Tenant. 
 
 § 182-a. Eviction by Act of the Landlord; Effect on Eent. 
 
 — To constitute an eviction there must be an ouster of the 
 tenant by which he is deprived of the possession and en- 
 joyment of some part of the thing demised. An entry and 
 trespass committed by the landlord, without depriving the 
 tenant of the possession and enjoyment of the premises, is 
 not an eviction. Thus an entry of a contractor engaged in 
 making an excavation immediately adjoining the building 
 leased to the tenant, for the purpose of strengthening and 
 supporting the walls of the building, under a statute requir- 
 ing this to be done where excavations beyond a certain 
 depth are to be made, upon securing the consent of the 
 owner of the building, is not such an interference as would 
 
 the general rule is contra, the tenant 
 being bound in such case to recover 
 the premises from the stranger. See 
 cases above cited, also Ward v. Ede- 
 sheimer, 43 N. Y. St. Eepr. 138; Mc- 
 Kinney v. Holt, 8 Hun (N. Y.) 336. 
 
 In Harris v. Greenberger, 50 App. 
 DiVi (N. Y.) 439, a. provision in the 
 lease that rent was to be paid "be- 
 fore possession is delivered " to the 
 tenant, and that the tenant should 
 be permitted to store goods on the 
 premises before the beginning of the 
 term, imported an express contract on 
 the landlord's part to give possession, 
 and the tenant having been kept out 
 by a third party without right, the 
 landlord could not recover rent. 
 
 Keeping the tenant out of part of 
 the premises has the same result. 
 Smith V. Barber, 96 App. Div. (N. 
 Y.) 236, and O'Brien v. Smith, 37 N. 
 Y. St. Repr. 41, the court stating in 
 both cases that if the tenant takes 
 possession of part of the premises ha 
 waives the landlord's breach of condi- 
 tion in failing to give possession to 
 all, and is liable for the entire rent, 
 
 with the right to counterelaini or set- 
 off for such partial exclusion. It 
 would seem on principle that the en- 
 tire rent should be suspended in such 
 ease where the tenant is excluded by 
 act of the landlord, and pro tanto 
 when he is excluded by paramount 
 title, as in the case of eviction after 
 entry, he not receiving the land out 
 of which the rent issues because of 
 the fault OP failure of title of the 
 landlord. Such is the general rule. 
 Moore v. Mansfield, 182 M«£8. 302; 
 McClurg V. Price, 69 Pa. St. 420. 
 Contra, supporting the theory of 
 waiver by the tenant, Prior v. Kiso, 
 81 Mo. 241. See, also, Eeed v. Rey- 
 nolds, 37 Conn. 469, holding that if 
 the tenant consents to the holding of 
 part of the premises by the landlord 
 such holding is no defense to an ac- 
 tion for rent. 
 
 The tenant must demand posses- 
 sion; the holding of possession by the 
 landlord until such demand is not a 
 defense to the action for reiit. Jill- 
 lie Iron M. Co. v. Thalman, 34 App. 
 Div. (N. Y.) 281. 
 
Eviction by Act of the Landlobd. 325 
 
 amount to an eviction, though authorized by the landlord.* 
 If the tenant refuses such consent, thereby freeing the con- 
 tractor from any duty of strengthening or supporting the 
 walls of the building, and the making of the excavation so 
 damages the walls as to render the building uninhabitable, 
 the tenant is not freed from the obligation of paying rent 
 as he otherwise would be — because by his refusal he is re- 
 sponsible for the condition so created.' 
 
 The effect of an eviction of the tenant by act of the 
 landlord, whether the eviction is from the whole or only 
 a part of the leased premises, is to suspend the entire rent 
 as long as the eviction continues.* It is presumed that the 
 eviction has continued during the entire balance of the term 
 unless the landlord shows affirmatively that he has restored 
 the premises to the tenant." In such case the tenant may 
 quit the premises altogether, refusing to return, but if he 
 does return, and the premises are restored to him, rent is 
 no longer suspended, and he must pay rent accruing there- 
 after in accordance with the terms of the lease." The rea- 
 son why rent is suspended by an eviction in any of its 
 forms is that the rent issues from the land, and if the tenant 
 is deprived of the land by the landlord, the landlord shall 
 not be entitled to any rent whUe such deprivation con- 
 tinues.^ Though the tenant is oused from only a part of 
 the premises, retaining possession of the balance, the en- 
 
 S. McKenzie v. Hatton, 141 N. Y. 423; Bennett v. Bittle, 4 Eawle (Pa.) 
 
 «■ JohnBon v. Oppenheim, 55 N. Y. 339. 
 
 280. 6- Co- Litt., 319a; Smith v. McEn- 
 
 3. Johnson v. Oppenheim, 55 N. Y. any, 170 Mass. 26 (in case of partial 
 280. eviction, tenant remaining in posses- 
 
 4. Cases in preceding notes; also, sion, covenant to repair or the other 
 Christopher v. Austin, 11 N. Y. 216; incidents of the lease are not aiTeeted; 
 Roy«e V. Guggenheim, 106 Mass. 201; rent alone is suspended) ; Tillj' v. 
 Sioiith V. MisEnany, 170 Mass. 86; Meyers, 43 Pa. St. 404 (rent already 
 Tilly T. MJoyers, 43 Pa. St. 404; due is not affected). 
 
 Wright V. liatlin, 38 111. 297, and 7. See cases cited in preceding 
 eases in notes following. notes. 
 
 •. Lewis V. Payn, 4 Wend. (N. T.) 
 
326 Laitdloed and Tenant. 
 
 tire rent is suspended, and no action for use and occupar 
 tion can be maintained, the courts refusing to make an ai>- 
 portionment for tlie benefit of a wrongdoer.* Where the 
 landlord has not committed an act of ouster, but the tenant 
 is ousted from a part of the premises only because of an 
 outstanding paramount title, or in other words, because 
 of a defect in the landlord's title, if the tenant continues 
 in possession of the rest of the leasehold premises he will 
 be required to pay a proportionate part of the rent, because 
 in such case the landlord is not a wrongdoer, and an ap- 
 portionment of the rent will be made for his benefit.' 
 
 Cases of so-called constructive eviction arise where the 
 tenant is forced to quit the premises because of a wrong- 
 ful act of the landlord's such as the maintenance of a nuis- 
 ance on adjoining property, or the breach of some duty 
 owed by the landlord to the tenant which so interferes 
 with his possession and enjoyment as to force him, acting as 
 a reasonable man, to move from the premises.^" It is nec- 
 
 8. Christopher v. Austin, 11 N. Y. commits or snffere acts, or fails to 
 816, and cases in preceding notes. perform a duty owed to the tenant, 
 
 9. See § 183 and cases thereunder, making the premises untenantable 
 
 10. Edgerton v. Page, 30 N. Y. 281 and the tenant moves, an eviction has 
 (nuisance maintained hy landlord on taken place) ; Krausi v. Fife, 120 
 upper floor retained hy him, defective App. Div. (N. Y.) 490; (nuisance, 
 water pipes leading to sewer. Not plumbing of apartment house out of 
 breach of covenant of quiet enjoy- repair — waste water from other 
 ment, as tenant remained in posses- apartments emptied into fixtures in 
 sion. Action for nuisance could not defendant's apartment) ; Snow v. 
 be counterclaimed, in action for rent, Pulitzer, 143 N. Y. 2-63 (tenant forced 
 under New York Code). Dyett v. to move by tearing down of wall be- 
 Pendleton, 8 Cow. (N. Y.) 737, and tween adjoining building and build- 
 4 id. 581 (maintenance of house of ill ing leased) ; Skally t. Shute, 133 
 fame by landlord on adjoining prem- Mass. 367 (nuisance). 
 
 ises forcing tenant to move) ; Tall- Other oases illustrating evictiona of 
 
 man v. Murphy, 130 N. Y. 345 this character are Stewart v. Forst, 
 
 (nuisance forcing tenant to move, 15 Misc. (N. Y.) 621; Sully v. 
 
 consisting of gas escaping into ten- Schmidt, 147 N. Y. 248; Mndwell v. 
 
 lint's rooms through flues, violent ex- May, 111 App. Div. 457; Brown v. 
 
 plosions caused by water tank on roof, Holyoke Water P. Oo., 153 Mass. 
 
 the court holding that if the landlord 463; Miles v. Janvrin, 196 Mass. 431, 
 
Eviction bt Aot of the Landloed. 327 
 
 essary that the tenant move out; if he remains in possession 
 that fact proves conclusively that he has not been forced 
 out by the landlord's wrong, and his only remedy will be in 
 an action based on the nuisance, or breach of covenant, as 
 the case may be." 
 
 It is stated in some of the cases that the intent of the 
 landlord to oust the tenant must appear, but that such in- 
 tent will ordinarily be inferred from the act of ouster.** 
 As far as this rule has any significance it can only mean 
 that the landlord is responsible for the natural consequences 
 of his acts. The ouster must result from the wrongful act 
 or default of the landlord; if the wrongful act or default is 
 his, he is responsible for it, and rent is suspended. 
 
 Eviction, whether in whole or in part, has no effect on 
 rent which has become due before the eviction, even though 
 it was payable in advance, and the eviction took place the 
 day after the eviction or during the period for which the 
 rent was so payable.*^ Eent is not suspended until the 
 eviction, and as it has already accrued, it is clear that the 
 subsequent eviction cannot cause its suspension. The ten- 
 ant may, however, counterclaim or set off breach of the 
 covenant of quiet enjoyment against the claim for rent, 
 which amounts to the same thing in practical result.** 
 
 See § 160, ante, on breach of the 370; Stein v. Kice, 23 Misc. (N. Y.) 
 covenant of quiet enjoyment, an eric- 348; Gugel v. Isaacs, 21 App. Div. 
 tion amounting in each case to a (N. Y.) 503 (land taken by condem- 
 breach of that covenant. Failure to nation proceedings after rent payable 
 supply steam heat, in a steam-heated in advance had accrued, and during 
 apartment, was held to amount to an quarter for which rent was so pay- 
 eviction, the tenant being forced to able. Liability to pay not affected) ; 
 move, in Jackson v. Paterno, 138 App. Hunter v. Reiley, 43 N. J. L. 480. 
 Div. (N. Y.) 434. In Sutton v. Goodman, 194 Mass. 389, 
 
 11. Edgerton v. Page, SO N. Y. and Hall v. Middleby, 197 Mass. 488, 
 281; Boreel v. Lawton, 90 N. Y. 293; the court held that such rent could 
 DeWitt V. Pierson, 113 Mass. 8, and not be collected, in the latter case 
 cases in preceding note. giving failure of consideration as the 
 
 12. Skally v. Shute, 132 Mass. 367. reason. 
 
 13. Grilss V. Comstock, 4 If. 'K 14. See oases in preceding note. 
 
828 Landlord and Tenant. 
 
 § 183. Eviction by Paramount Title.— Total eviction by 
 
 one having a title paramount to the landlord's suspends 
 tlie entire rent, exactly as in cases of eviction by wrong- 
 ful act or default.* But in the case of partial eviction by 
 paramount title rent is apportioned, provided the tenant 
 continue in possession of the part to which his landlord 
 has good title, the rent being suspended only to the extent 
 of an amount proportioned to the rental value of the part of 
 the premises of which the tenant has been deprived.* Aa 
 stated heretofore, failure of title is not regarded as an af- 
 firmatively wrongful act; the landlord is therefore not 
 treated as a wrongdoer and is not subjected to the penalty 
 of losing the entire rent, but only a proportionate part, the 
 tenant continuing to pay a proportionate rental for the part 
 of the premises which he actually possesses and enjoys. 
 The tenant is not obliged, however, to continue in posses- 
 sion of only a part; he may quit the premises, thus freeing 
 himself from all obligation for rent accruing thereafter.* 
 
 When the tenant discovers that his landlord has no title 
 and that a third person is the owner of the leased prem- 
 ises, he need not wait to be actually ousted by legal pro- 
 ceedings; he may accept a lease from the true owner, hold- 
 ing under him, the transaction amounting to an eviction 
 exactly as though he had been ousted as the result of an 
 action at law, and had thereafter rented the premises from 
 the true owner. In such case, however, he acts at his 
 peril, there being no eviction unless the third person whom 
 
 1. Morse r. Goddard, 13 Met. In Blair v. Caaxton, 18 N. Y. 629, 
 (Mass.) 177. See cases under § 182. the lease covering lands and water 
 
 2. Fillebrown v. Hoar, 124 Mass. rights, deprivation of water rights on 
 680; Morse v. Goddard, 13 Met. the part of the tenant waa held to en* 
 
 (Mass.) 177; Home Life Ins. C!o. v. title him to a proportionate reduction 
 
 Sherman, 46 N. Y. 370; Carter v. of rent. 
 
 Burr, 39 Barb. (N. Y.) 59; Lawrence S. Sea)brook t. Moyer, 88 Pa. St. 
 
 V. French, 25 Wend. (N. Y.) 445; 417; Smith v. McEnany, 170 iSam. 
 
 Chrietopher y. Austin, 11 N. Y. 216. 26, and cases in preceding notes. 
 
Takikq of Leasehold Fbemises. 329 
 
 he so accepts as landlord is in fact the real owner of the 
 premises.* 
 
 § 184. Taking of Leasehold Premises by Eminent Do- 
 main. — The taking of the leasehold premises for a public 
 nse imder the power of eminent domain, and the consequent 
 ending of the term, is in no sense an eviction for which 
 the landlord is responsible, and therefore he is not liable 
 to the tenant for breach of the covenant of quiet enjoyment. 
 The tenant is ousted through no wrongful act or default or 
 failure of title on his part." But where the entire premises 
 are taken the leasehold estate is ended, and the rent issuing 
 therefrom necessarily comes to an end at the same time. 
 Therefore where the entire premises are so taken the tenant 
 is freed from the obligation of paying rent thereafter fall- 
 ing due.** In cases where only part of the premises are taken, 
 the tenant remaining in possession of the rest, there is au- 
 thority for the rule that the rent is not suspended in part, 
 but continues unaffected, the tenant being compensated 
 by the award made to him in the condemnation proceed- 
 ings incident to the taking of the land.^ Indeed, one case 
 holds that the same principle applies in cases where the 
 entire premises are taken.^ The difficulty with this view 
 is that the tenancy is at an end, just as in the case of a 
 merger or surrender of the term, the term merging with the 
 fee in the state, city or other body corporate which has ac- 
 quired title by eminent domain. Eent is necessarily ex- 
 tinguished with the ending of the term to which it is inci- 
 
 4. Morse v. Goddard, 13 Met. Mass. 29; Dyer v. Wightman, 66 Pa. 
 (Mass.) 177; Moflfatt v. Strong, 9 St. 4^5 ; Uhler v. Cowen, 192 Pa. St. 
 Bosw. (N. Y.) 57. 443; Corrigan v. Chicago, 144 IlL 
 
 5. Folts V. Huntley, 7 Wend. (N. 637. 
 
 Y.) 310; Patterson v. City of Boston, 7. StubbinB V. Bvanston, 136 111. 
 
 20 Pick. (Mass.) 159, and cases cited 37; Corrigan v. Chicago, 144 111. 537; 
 
 in following notes under this section. Patterson v. Boston, 37 Mass. 169. 
 
 e. Lodge v. Martin, 31 App. Div. 8. Folts r. Huntley, 7 Wend. (K. 
 
 (N. Y.) 13; O'Brien t. Ball, 119 Y.) 810. 
 
330 Landlord and Tenant. 
 
 dent. Furthermore such a rule is practically trnjust in that 
 the award paid to the tenant, in so far as it would include 
 the rent for the balance of the term, might never be actually 
 paid to the landlord, who would be put to the trouble of col- 
 lecting it from the tenant as it would accrue under the 
 lease, with the danger of being able to collect nothing in 
 case of the tenant's insolvency. By making the award on 
 the basis of the tenancy terminating on the taking of the 
 land, each party gets exactly what he is entitled to, with 
 no further obligation to pay rent thereafter. This is the 
 modern rule, by statute in some cases, and by decision in 
 others. On principle there is no basis for any other view.* 
 Where the land is not taken absolutely, but an easement 
 for a street or highway is acquired, the landlord and tenant 
 retaining their interests subject to the easement, there is 
 the theoretical objection that the tenancy is not ended, and 
 therefore rent is not extinguished. As a practical matter 
 such ownership subject to the easement is valueless, and the 
 tenancy, is so far as the land taken is concerned, is ended. 
 The rent should, therefore, be treated as extinguished to 
 an extent corresponding to the value of the land taken. 
 Even the theoretical objection to this ride disappears, as 
 pointed out in a recent work, if it is made to apply as of 
 the time the tenant is actually dispossessed of the part so 
 taken. In such case he is legally deprived of part of the 
 land out of which the rent issues, not by any failure of 
 title on the part of the landlord, but by a superior right in 
 the state, and as in the case of an eviction, the rent should 
 
 9. Eiig. Land Clauses Act, 1845, §§ For decisions to the effect that the 
 
 115-118; § 996 of the charter of the rent will be apportioned in the case of 
 
 city of New York provides that the a taking of part of the leasehold 
 
 lease in such case is terminated either premises, see Uhler v. Covren, 193 
 
 entirely or pro tanto, as the case may Pa. St. 443; City of Baltimore v. 
 
 be, rent being extinguished entirely Latrobe, 101 Md. 631,' Biddle v. 
 
 or in proportion to the value of the Hussman, 23 Mo. 597; Kingsland T. 
 
 part of the land talten. See Matter Ckirk, 34 Mo. 34. 
 of Daly, 39 App. Div. 386; Lodge t. 
 Martin, 31 App. Div. 13. 
 
Subeendee; Effect on- Eent. 331 
 
 be extinguished in part since the tenant is deprived of part 
 of the thing out of which the rent issues.^" 
 
 The tenancy ends when the proceedings in condemna- 
 tion are complete, viz. : when the report of the commissioners 
 has been confirmed." 
 
 The taking of the lease expressly subject to the taking 
 of the land by eminent domain,*^ and a provision that the 
 tenancy shall end upon the taking of the property in whole 
 or in part by condemnation proceedings," are construed 
 as depriving th« tenant of any part of the award, tho ten- 
 ancy ending at once, and the award for the entire fee going 
 to the landlord. 
 
 As in the case of eviction, such ending of the term does not 
 affect rent already due, even though it be payable in ad- 
 vance, and the land is taken during the period for which 
 the rent is payable." 
 
 § 185. Surrender; Effect on Rent. — A surrender is a con- 
 veyance or transfer of an estate for life or for years to the 
 holder of the first estate in reversion or remainder.^ The 
 nature and use of a surrender as a conveyance will be dis- 
 
 10. Tiflfany, Landlord and Tenant, Hudson Co. Brd. etc. v. Emmerick, 57 
 pp. 1186, 1187. See Emmes v. Feeley, N. J. Eq. 575. But see cases cited in 
 132 Mass. 346; Devine v. Lord, 175 note 10, supra. 
 
 Mass. 384. 14. Giles v. Comstock, 4 N. Y. 270; 
 
 11. Edmonds v. Boston, 108 Mass. Gugel v. Isaacs, 21 App. Div. (N. Y.) 
 638. 503. 
 
 12. Matter of the Mayor of New 1. Co. Litt., 378a; Schieffelin T. 
 York, 168 N. Y. 254. Carpenter, 15 Wend. (N. Y.) 400, in 
 
 13. Goodyear Shoe Mach. Co. v. which case it is stated, "A surrender 
 Boston Terminal Co., 176 Mass. 115. is defined to be a yielding up of an 
 
 The tenant need not wait till ae- estate for life or years to him who 
 
 tually dispossessed. He may quit the hath the immediate estate in rever- 
 
 premises and be freed from liability sion or remainder wherein the estate 
 
 for rent as soon as title has been for life or years may drown by mu- 
 
 taken by the city or state, as he may tual agreement." See oases cited ia 
 
 then be ousted at any time. Payne v, notes under this and following sec- 
 
 Bohallhamer, 30 Misc. (N. Y.) 755; tions. 
 
332 Landlokd and Tenant. 
 
 cussed in another connection.* As affecting the law of 
 landlord and tenant, a surrender is the giving up by a ten- 
 ant of his term to his landlord, the term merging with the 
 landlord's reversion. Eent necessarily ends when the term 
 out of which it issues is thus brought to an end.' As in 
 the case of eviction, a surrender does not affect rent which 
 has accrued before the surrender takes place, though pay- 
 able in advance for a rental period which has not elapsed at 
 the time of the surrender.* 
 
 § 186. Express Surrender. — A surrender by voluntary 
 
 act of the parties is an express surrender. Before the statute 
 of frauds a surrender by parol was valid and effectual since 
 it involved the giving up and conveyance to the reversioner 
 or remainderman of a present estate transferable by livery 
 rather than by grant. The statute of frauds, however, pro- 
 vided that no freehold estate or estate for a term of years, 
 or any uncertain interest in lands, tenements or heredita- 
 ments could be assigned, granted or surrendered except by 
 deed or note in writing signed by the person conveying, 
 assigning a surrendering or by his agent duly authorized 
 in writing, or by act or operation of law.^ Thereafter, un- 
 der this provision every surrender expressly intended to 
 operate as such by the parties required a writing, whether 
 of a life estate or a term of years, including leasehold es- 
 
 2. See under Deeds and Convey- Supp. 797; Barkley v. McCue, 25 
 ances, § 313, post. Misc. 738. 
 
 3. Underbill v. Collins, 133 N. Y. For like reasons the landlord caji- 
 269 ; Aniorj v. Kannoffsky, 117 Mass. not recover any part of tlie rent pa^ - 
 351; Miller v. Dennis, 68 N. J. L. able at the end of a period when the 
 320, and cases cited under this and surrender takes place during the 
 following sections relating to sur- period, in the absence of an express 
 render. provision for such apportionment. 
 
 4. Sperry v. Miller, 8 N. Y. 336; Ourtiss v. Miller, 17 Barb. (N. Y.) 
 Sammis v. Day, 48 Misc. (N. Y.) 477; Cameron v. Little, 62 Me. 550. 
 337; Learned v. Ryder, 61 Barb. (N. 6. 29 Car. 2, o. 3, i 3. 
 
 Y.) 553; Stem v. Murphy, 102 N. Y. 
 
EXPEESS SUEEENDEK. 333 
 
 tates for three years or less, though such leaseholds could 
 be created by parol.* 
 
 Surrenders by act or operation of law were expressly 
 excepted from the operation of the statute. As distinguished 
 from an express surrender intended to operate as such by 
 the parties, a surrender by act or operation of law is ac- 
 complished as a legal result following from the acts of the 
 parties, the law declaring a surrender to have been made 
 as the legal result of conduct on their part necessarily in- 
 consistent with the continuance of the term, whether the 
 parties intended a surrender or not.^ 
 
 In the United States the English statute has been sub- 
 stantially followed by similar statutes in several states.^ 
 In New York, § 242 of the Real Property Law provides that 
 an estate or interest in real property, other than a lease for 
 a term not exceeding one year, can not be created, granted, 
 assigned, surrendered or declared, unless by act or opera- 
 tion of law, or by a deed or conveyance in writing sub- 
 scribed by the person so granting, assigning or surrender- 
 ing, or by his agent duly authorized in writing. Under this 
 statute a lease for a year or less may be surrendered or 
 assigned, as well as created, by parol.® In several states 
 the provisions of the New York statute have been followed 
 in substantially the same form." 
 
 A surrender of a term involves something more than the 
 surrender, destruction or cancellation of the lease by which 
 
 6. Rowan v. Lytle, 11 Wend. (N. pired term of a year or less may be 
 Y.) 616, and cases in notes immcdi- surrendered by parol. 
 
 ately following. 10. Mich. Comp. L. 1897, § 9509; 
 
 7. See § 187, post. Wis. Eev. St. 1898, § 8302; M'inn. 
 
 8. Mass. Rev. St. 1902, e. 127, § 3 ; Rev. L. 1905, § 3487. See, also, stat- 
 N. H. Pub. St. 1901, c. 137, § 12; Vt. utes to same effect of Nebraska, Mou' 
 Pub. St. 1906, § 2583; N. J. Oen. St. tana, Nevada and Utah. For refer- 
 p. 1602, § 2; Pa. Act, Mar. 21, 1772. ences to and discussion of statutory 
 See, also, statutes of Missouri, Arkan- provisions on this point in other 
 sas and Florida. states, see 2 Tiffany l.anr!l & Ton.. 
 
 9. Smith V. Devlin, 23 N. Y. 363, 1314. 
 holding that a lease with an unex- 
 
334: Landloed and Tenant. 
 
 it was created. It involves a reconveyance of the term to 
 the landlord, either by a writing under the statute if an ex- 
 press formal surrender is intended, or by such conduct by 
 the parties as will amount to a surrender by act of the law 
 irrespective of their intent. The lease, as we have seen, 
 is primarily and necessarily a conveyance by which an es- 
 tate has been created and transferred to the tenant, and a 
 mere surrender, destruction or cancellation of it cannot 
 amount to a reconveyance of the estate under the statutes re- 
 quiring that an express surrender shall be in writing." It 
 should be noted, however, that a permanent abandonment 
 of possession by the tenant and the resumption thereof by 
 the landlord on his own account is such conduct as amounts 
 to a surrender by act and operation of law, whether the 
 parties intend a surrender or not, and therefore such sur- 
 render and resumption of possession, without a writing, 
 is a perfectly effectual means of accomplishing a surrender, 
 though it be, in effect, a surrender by parol, the parties in- 
 tending it to operate as such. So by purposely taking the 
 steps which result in a surrender by act and operation of 
 law the parties may voluntarily accomplish a surrender 
 without a writing, narrowing the statute in its practical 
 application to the exceptional case where there is no giving 
 up and resumption of possession accompanying the sur- 
 render, or other act or acts of the parties amounting to a 
 surrender by operation of law.^^ It follows that the giving 
 up of possession is not essential to a valid express surren- 
 der made in writing pursuant to the statute.^' 
 
 The effect of an express surrender upon a subtenant who 
 
 11. Rowan v. Lytle, 11 Wend. (N. thorizes a finding of an express sur« 
 
 Y.) 616; Smith v. McGowan, 3 Barb, render as a matter of fact. Brewer v. 
 
 (N. Y.) 304; Hatch v. Hatch, 9 Mass. Nat. Bid. Ass'n, 166 111. 221. 
 
 807. 12. See sections following on Sur- 
 
 In absence of a statute requiring a render by Operation of Law. 
 
 writing, a cancellation together with 13. Co. Litt. 57; Shep's Touchttone, 
 
 the conduct of the parties showing in- 307. 
 tent to effect a surrender thereby, au- 
 
SUBEENDEE BY AoT OK OpEEATION OF LaW. 335 
 
 is not a party thereto is to make Mm tenant of the original 
 landlord, his rights otherwise continuing as before,^* 
 
 § 187. Surrender by Act or Operation of Law. — Where 
 both landlord and tenant take some action with relation to 
 the land covered by the lease which is necessarily incon- 
 aistent with the continuing of the term, so that the term 
 cannot continue to exist at the same time with the new 
 relation or estate created as a result of their acts, a sur- 
 render by act and operation of law results.^ As the expres- 
 sion indicates, this result does not depend on whether they 
 intend an actual surrender or not, the law declaring that 
 such result follows from their acts irrespective of their 
 intent. Those cases which assert that the surrender in such 
 case depends upon the mutual agreement of the parties are 
 necessarily erroneous, arising out of a failure to under- 
 stand the distinction between an express surrender, which 
 requires a writing under the statute, and a surrender by 
 act and operation of law. If their acts are not sufficient to 
 amount to such a surrender, their intent to accomplish that 
 result must be ineffectual because an express surrender can 
 be made only by writing under the statute. On the other 
 hand if a surrender results by law from certain acts on 
 their part creating an inconsistent situation, their intent 
 that no surrender shall result must be ineffectual, since the 
 surrender results automatically by operation of law, not by 
 voluntary, and therefore express, acts of surrender on their 
 part.^ The principle of estoppel is more usually assigned 
 as the basis of surrender by operation of law.* It is clear 
 that the requisites of equitable estoppel are absent, since 
 
 14. Stat. 4, Geo. II, ch. 28, § 6; N. 2. See cases cited in notes foUow- 
 Y. Real Pi op. L., § 336; Eten v. Luy- ing illustrating specific cases of Bur- 
 ster, 60 N. Y. 253. render by operation of law under S 
 
 1. Gray v. Kau'man Dairy Co., 163 188, and cases under § 186 on exprest 
 
 N. Y. 388; Crane v. Edwards, 80 App. surrenders. 
 
 Div. (N. Y.) 333; Amory v. KannofF- 3. See § 188. 
 sky, 117 Mass. 351, and cases cited in 
 notes under § 188. 
 
836 Landloed and Tenant. 
 
 neither party is misled by the position taken by the other, 
 both knowing all the facts; furthermore the surrender re- 
 sults from their mutual action. In the usual case no ques- 
 tion of estoppel by deed can arise. It is better to treat it 
 as an independent rule of law attaching to the status of 
 landlord and tenant, that where the parties have by their 
 joint act in actual fact destroyed the term by creating 
 another interest necessarily inconsistent with it, or by actual 
 relinquishment of possession permanently by the tenant and 
 acceptance thereof by the landlord, the term has in fact 
 been merged with the reversion, both parties are boimd 
 by what they have done, and neither one will be permitted 
 thereafter to change his position by asserting that the lease- 
 hold term still continues. 
 
 § 188. Cases in Which Surrender by Act or Operation of 
 Law Takes Place. — The making of a new lease between the 
 same parties to take effect before the expiration of the ori- 
 ginal term works a surrender by operation of law, since the 
 new lease is necessarily inconsistent with the continuing of 
 the original term.* The new lease results in a surrender 
 though it be by parol and the original lease is in writing 
 under seal, since the term created by it is necessarily in- 
 consistent with the term created by the first lease." Some 
 confusion in the cases has resulted from regarding such a 
 lease as an instrument in revocation of the prior instru- 
 ment under seal, it having been held that such an instrument 
 could be revolved only by an instrument under seaL* It is, 
 
 4. Ives Case, 5 Coke 11a; Schief- Wend. 400; Smith v. Kerr, 108 N. Y. 
 
 flin V. Carpenter, 15 Wend. (N. Y.) 31; Chamberlain v. Dunlop, 136 N. 
 
 400; Smith v. Kerr, 108 N. Y. 31; Y. 45. 
 
 Chamberlain v. Dunlop, 136 N. Y. 45. 6. Leavitt v. Stern, 159 111. 526 
 
 Where the new leaae is to take (dicta, since the new lease given bj 
 
 effect only on the expiration of the parol for six years was void under 
 
 first lease there is, of course, no sur- the statute and therefore could not 
 
 render. Tracy v. Albany Etch. Co., amount to a surrender by operation 
 
 T N. Y. 473. of law). 
 
 6. Sohieffelin v. Carpenter, 16 
 
SuitEEinjEB BY AoT OE Opeeatton ov Law, 837 
 
 of course, obvious that a surrender in no way involves the 
 revocation or cancellation of the original lease; it involves 
 the reconveyance of the term created by the lease, such 
 reconveyance resulting by operation of law from the creat- 
 ing of a new lease covering the same term in whole or in 
 part, the new lease being valid only on the basis of a retrans- 
 f er of the original term to the landlord.^ 
 
 Where, under the first lease, the tenant is entitled to the 
 value of buildings or other improvements, it is held that 
 the making of a new lease including the balance of the un- 
 expired term does not amount to surrender so as to de- 
 prive the tenant of his right to compensation for the im- 
 provements, since under the circumstances the tenant could 
 not have intended a merger of the old term with the new 
 which would have that effect. There are several cases of 
 this nature apparently laying down the principle that no 
 surrender results through the new lease unless the parties so 
 intended.® In each case, however, the result reached by 
 the court is quite consistent with the holding that a sur- 
 render necessarily results, irrespective of the parties' in- 
 tent, if a new lease different in its terms and not merely in 
 substitution for the old lease as a matter of form, is en- 
 tered into between the parties covering the unexpired por- 
 tion of the original term. In the case first above referred 
 to ® the surrender of the original term should not be held 
 
 7. See cases in notes 4 and 5, supra, taken out for the balance of the old 
 
 8. Van Rensselaer's Heirs v. Pen- term, for a special purpose, but with- 
 nimann, 6 Wend. (N. Y.) 569; Wit- out any purpose of changing the 
 mark v. N. Y. El. R. Co., 76 Hun (N. rights of the parties under the orig- 
 Y.) 303; Smith v. Kerr, 108 N. Y. inal term. This was in no true sense 
 31 (dicta as to intent as a requisite, the creating of a new relationship of 
 The new lease was void because by landlord and tenant, so as to deprive 
 parol, and therefore no surrender re- the tenant of his right to damages 
 suited). against the defendant arising out of 
 
 9. Van Rensselaer's Heirs v. Pen- the building of an elevated railroad 
 nimann, 6 Wend. (N. Y.) 669. structure after the old lease was 
 
 In Witmark v. N. Y. El. R. Co., 76 made, but before the new leases were 
 Hon OS. Y.) 569, the new leases were executed. The old term was con- 
 
 22 
 
338 Landloed asv Tenant. 
 
 to release the landlord from Hs obligation to pay for im- 
 provements made by the tenant during the term, though 
 the new lease contained no such provision. The mere end- 
 ing of the term by surrender could not have the effect of 
 discharging the landlord from a contractual obligation 
 arising under the terms of the lease which created the 
 term. Such a surrender ends the estate of the tenant in 
 the land; it does not end his right to hold the landlord on 
 any covenant or promise contained in the lease, nor should 
 it deprive the tenant of his right to take away any fixture 
 erected by him, which was removable by him before the 
 end of the term, though the weight of authority is that the 
 tenant has no right to remove such fixtures under a new 
 lease which is to take effect on the expiration of the original 
 term.^" 
 
 If the new lease is void for any reason, as because it is not 
 in writing as required by the statute, no surrender results, 
 since no estate inconsistent with the original term is cre- 
 ated.i^ So, if the tenant does not receive under the new 
 lease the term which he bargained for, as where an out- 
 standing claim of dower exists, or the share of an infant or 
 other tenant in common in the property is not included in 
 the lease, the tenant may repudiate it, and insist upon the 
 original tenancy as continuing unaffected by the new lease." 
 
 tinned in another form under the new might set up fraud in inducing the 
 leases, and whether a surrender re- second lease as an equitable counter- 
 suited or not, the liability of the rail- claim, equity cancelling the second 
 road was in no way affected by the lease and restoring the first because 
 making of the new leases. of the fraud. 
 
 10. See § 58, ante. A contract to sell the leased prem- 
 
 11. Schieflfelin v. Carpenter, 15 ises to the tenant amounts to sur- 
 Wend. (N. Y.) 400; Coe v. Hobby, 72 render by operation of law, the ten- 
 N. Y. 141; Smith v. Kerr, 108 N. Y. ant's possession being presumptively 
 31. that of a vendee in possession, in eq- 
 
 12. Chamberlain v. Dunlop, 126 JT. uity the owner of the property. Lewis 
 Y. 45; Powell v. F. C. Lynde Co., 49 v. Augermiller, 89 Hun (N. Y.) 65; 
 App Div. (N. Y.) 286 (in this case Burnett v. Scribner, 16 Barb. (N. Y.) 
 the court held tl at the defendant 621. In Bostwick v. Frankfleld, 74 
 
SUEEENDEK BY AoT OE OpBEATION OF LaW. 339 
 
 The permanent relinquisliment of possession by the ten- 
 ant to the landlord, who enters and occupies for himself, is 
 a state of facts so inconsistent with the term as to amount 
 to a surrender by operation of law.** Whatever may be 
 said of the soundness and expediency of this rule, it is well 
 established as part of the law. As pointed out in a preced- 
 ing section, this rule renders the statute requiring a writing 
 for express surrenders of narrow application, since an in- 
 tentional parol surrender is effectuated by the tenant's 
 quitting the premises with the permanent intention of giv- 
 ing them up, and the landlord 's resuming possession on his 
 own account. To amount to a surrender the tenant must 
 quit the premises permanently; if he leaves the premises 
 unoccupied, going elsewhere for some temporary purpose, 
 there is no surrender, the landlord having no right to re- 
 sume possession.^* The landlord must take possession for 
 himself; if he enters merely to care for the property, to 
 make repairs, or the like, or if he take possession solely in 
 behalf of the tenant, refusing his proffered relinquishment 
 thereof, no surrender takes place.*^ The intent of the par- 
 ties is important and essential here, in order to deter- 
 mine whether the tenant has relinquished possession per- 
 manently, and whether the landlord has accepted such re- 
 linquishment in extinguishment of the term. Many of the 
 cases speak of such a transaction as a " surrender " made 
 voluntarily by the tenant and accepted by the landlord. It 
 is, of course, not a surrender in the technical sense, since a 
 
 N. Y. 207, the tenant continued to 451 (the question of whether a per- 
 
 pay rent, and the court held that no manent abandonment has taken place 
 
 surrender resulted, it being clear that or not is for the jury) ; Hough v. 
 
 the tenant continued in possession as Brown, 104 Mich. 109. 
 
 tenant, not as vendee in possession. 15. Witmark v. N. Y. El. R. Co., 
 
 13. Talbot V. Whipple, 96 Mass. 76 Hun 303, aiT'd 149 N. Y. 393; 
 177 ; Dennis v. MuUer, 68 TST. J. L. Requa v. Domestic Pub. Co., 11 Miso. 
 330, and cases cited in following (N. Y.) 333; Miller v. Becker, 96 Pa. 
 note3_ St. 182; Chandler v. Hinds, 135 Wis. 
 
 14. Larkin v. Avery, 23 Conn. 304; 43; Meeker v. Spalsburg, 66 N. J. L. 
 Ayr. V. Philadelphia Co., 193 Pa. St. 60. 
 
340 Landloed and Tenant. 
 
 voluntary surrender must be in writing; it is rather tlie sur- 
 render of possession and acceptance thereof with the in- 
 tent of ending the term to which the courts refer, the sur- 
 render arising by operation of law from the result, inconsis- 
 tent with the term, which the parties have created by their 
 acts. The sending of the keys to the landlord and the ac- 
 ceptance thereof by him, though evidence of a surrender 
 which would be conclusive if the landlord takes possession, 
 and uses the premises on his own account for his own inter- 
 est, is not of itself conclusive, and will not amount to a sur- 
 render when the landlord at the time expressly refuses to 
 accept possession on his own account, but takes charge of 
 the premises in behalf of the tenant, informing the tenant, 
 expressly or impliedly, that he will be held for the entire 
 rent.^* Under such circumstances an attempt to lease or 
 to sell the premises will not amount to a surrender, the 
 landlord having only attempted to accomplish that, which 
 if successful would result in a surrender by operation of 
 law.^^ 
 
 The permanent relinquishment of the premises by the 
 tenant followed by an entry and reletting by the landlord, 
 of itself amounts to a surrender, unless the tenant was 
 notified that the premises would be relet in his behalf, and 
 that he would be held for the rent less the amount received 
 from the reletting.^* It is clear that the new term is nec- 
 
 16. Reeves v. MoComeskey, 168 Pa. amount to a surrender by act or oper- 
 St. 671; Underhill v. Collins, 133 N. ation of law. Bedford v. Terhune, 30 
 Y. 269; Dorrance v. Bonesteel, 51 N. Y. 461; Gray v. Kauflfman, etc. 
 App. Div. (N. Y.) 139; Joslin v. Mc- Co., 163 N. Y. 388; Auer v. Pcan, 99 
 Lean, 99 Mich. 480. Pa. St. 370; Welcome v. Hess, 90 Cal. 
 
 17. Dorrance v. Bonesteel, 61 App. 507; Dagett v. Champney, 122 App. 
 Div. (N. Y.) 129; Miller v. Becker, Div. (N. Y.) 854. 
 
 »6 Pa. St. 183; Beeves v. McComes- 18. Goldsmith v. Schrocder, 93 App. 
 
 key, 168 Pa. St. 571. Div. (N. Y.) 206; Gulman c. Conway, 
 
 Acceptance of keys, together with 45 Misc. (N. Y.) 363; Dagett v. 
 
 other facts showing that the landlord Champney, 133 App. Div. (N. Y.) 
 
 has resumed possession on his own 354; Brown v. Cairns, 107 la. 727; 
 
 account in exclusion of any right of Hesseltinc v. Leavey, 16 Me. 212. 
 the tenant to resume possession will 
 
SUEEHNDES BY AoT OE OpEEATIOIT OF LaW. 341 
 
 essarily inconsistent with the old term, and must result in 
 a sxurender by act and operation of law unless the reletting 
 is with the express or implied consent of the tenant. In 
 some cases it seems to be settled that the landlord may 
 relet and hold the tenant for the difference in rent where 
 the tenant has moved out, tendered the keys, and has made 
 clear his intent to abandon all interest in the property and 
 to repudiate his obligation to pay rent thereafter accruing, 
 whether notice be given him or not, provided it appear that 
 the landlord had resumed possession and had relet in order 
 to reduce the liability for rent on the tenant's part.** The 
 principle on which these cases depend seems to be that in 
 such case of open repudiation of further liability the land- 
 lord is not compelled to submit to the alternative of leaving 
 the premises without a tenant or releasing the tenant from 
 his obligation; that the law will in such case presume that 
 the tenant consents, or more accurately, that irrespective of 
 the consent of a tenant repudiating his obligation, the 
 landlord may relet and still hold the tenant for the differ- 
 ence, a principle that squares with common sense, and also 
 with the technical aspects of the situation when it is re- 
 membered that a surrender by operation of law is an arbi- 
 trary rule created by the courts to work out justice, based 
 on principles akin to estoppel. There is no question that 
 the tenant's course amounts to a surrender if the land- 
 lord chooses to accept it as such, but in view of the situa- 
 tion created by the tenant in repudiating his obligation it 
 is highly technical to say that the act of the landlord in 
 reletting the premises to reduce the tenant's liability for 
 rent may be taken advantage of as a surrender by the tenant 
 whose wrongful conduct has created the situation. Though 
 technically the new lease is inconsistent with the old lease,^"* 
 since the necessity for it has been created by the tenant's 
 
 19. Auer v. Penn, 99 Pa. St. 370; Clothing Co., 184 111. 421; Aner v. 
 Humiston, K. & Co. v. Wheeler, 175 Hoffman, 133 Wis. 6S0. 
 m. 514 ; Marshall v. John Gobs 20. Welcome v. Hess, 90 Cal. 507. 
 
342 Landlokd and Tenant. 
 
 repudiation of his obligation, justice requires that he be 
 estopped from setting up the new lease as a surrender by 
 operation of law rather than that the landlord be estopped 
 from setting up the old lease because of the new one. On 
 this aspect of the case notice to the tenant would be im- 
 material in any case where he has quit the premises in 
 repudiation, express or implied, of his obligations under the 
 lease. 
 
 In New York it has been held that consent on the part 
 of the tenant to the making of a new lease must be shown, 
 otherwise the new lease is a surrender, and such consent 
 will not be inferred from the sending of a written notice to 
 the tenant that the premises will be relet at his risk, the 
 tenant not having replied,** though such consent would, 
 apparently, be implied if such notice had been given by 
 parol to the tenant in person, provided he made no objec- 
 tion.^* It is submitted that this position is highly techni- 
 cal in that it is based on the application of the rule of 
 surrender by operation of law without regard to its mani- 
 fest spirit and purpose. The rule itself, as we have seen, 
 is arbitrary, and so far as it is based on any legal or 
 equitable principle it is founded on estoppel. As pointed 
 out above, the tenant repudiating his obligations should be 
 estopped from asserting a failure to give his consent to 
 the reletting. There is no reason why in equity or common 
 sense the landlord should be prevented from asserting the 
 old lease merely because he has sought to reduce the tenant's 
 repudiated obligation thereunder.** 
 
 21. Gray v. Kaufman Dairy Co., operation of law, the reletting not 
 162 N. Y. 388. being in behalf of the tenant. In Has- 
 
 22. Underbill v. Collins, 133 N. Y. seltine v. Seavey, 16 Me. 812; Dagetk 
 269. V. Champney, 123 App. Div. (N. Y.) 
 
 23. See note 19, supra. In Welocane 354, and Witman v. Watry, 31 Wla. 
 V. Hess, 90 Cal. 507, the reletting 638, the reletting was without notice 
 was for a term extending beyond the to the tenant, and though the court 
 term of the original lease, and there- does not state that notice to the ten- 
 fore amounted to a surrender by ant would have prevented the relet- 
 
SUEEENDEE BY AcT OE OpEEATION OF LaW. 343 
 
 Notice to the tenant should be material only as showing 
 abandonment of the premises and repudiation of the lease, 
 and as showing that the reletting was actually on account 
 of the tenant. When these facts are admitted or are proved 
 by other evidence, notice to the tenant should be held to 
 be immaterial. 
 
 In summary, the cases are agreed generally that in case of 
 permanent abandonment by the tenant and reletting by the 
 landlord a surrender by operation of law takes place unless 
 the landlord proves that the reletting was in behalf of the 
 tenant, and not in acceptance of the tenant's abandonment 
 nor in discharge of the rent, and the burden is upon the 
 landlord to prove this. The weight of authority is that 
 this can be proved and the landlord's action explained 
 only by proof of his giving notice to that effect to the ten- 
 ant, though some cases hold that if the landlord proves that 
 in fact he relet the premises in behalf of the tenant, who 
 had abandoned the premises in repudiation of his obliga- 
 tions under the lease, such reletting being made to reduce 
 the rent for which the tenant would be liable, there is no 
 surrender though no such notice was given. On principle 
 this view is sound, and is more in accord with justice and 
 practical good sense. In New York the tenant's affirma- 
 tive consent to the reletting seems to be necessary according 
 to the Gray case, or his silence under circumstances amount- 
 ing to such consent. This view does not seem to have been 
 
 ting from amounting to a surrender der, though tlie lettiig was for the 
 
 in each case, on the other hand these purpose of reducing the rent for 
 
 cases are not authority that such which the tenant was liable, and was 
 
 notice would not prevent that result, not actually intended as a discharge 
 
 They merely stand for the general of the tenant from such liability. See 
 
 mle, which is sound, that such relet cases cited in note 18, supra, also 
 
 ting unexplained amounts to a sur- Gutman v. Conway, 45 Misc. (N. Y.) 
 
 render by operation of law. The 363; Biggs v. Stueler, 93 Md. 100; 
 
 weight of authority undoubtedly is Reeves v. McComeskey, 168 Pa. St. 
 
 that unless the tenant be given notice fi71. 
 the letting amounts to such surren- 
 
344 Landloed and Tenant. 
 
 taken elsewhere, and is opposed to several cases decided by 
 the lower courts of that state. 
 
 § 188-a. Express Provision Permitting Reletting.— If the 
 
 lease contains an express provision that the landlord may 
 relet the premises in behalf of the tenant, and that the ten- 
 ant shall continue liable for the deficiency in the rent after 
 abandonment of the premises by him, the landlord may, 
 of course, relet in such case and hold the tenant for any 
 deficiency. The tenant would clearly be liable under the 
 express terms of his contract, though the landlord take 
 possession and relet in acceptance of the tenant's abandon- 
 ment. Though a surrender of the term take place by act and 
 operation of law, the tenant has bound himself for the de- 
 ficiency in the rent by the express terms of the lease.' 
 
 § 189. Forfeiture for Breach of Condition. — Tenancies 
 for years, like estates for life and in fee, may be created 
 subject to conditions subsequent, and are subject to the 
 rules of law governing conditional estates which are dis- 
 cussed in detail in another chapter.^ Breach of condition 
 by the tenant does not ipso facto terminate the tenancy. 
 It gives to the landlord the right to enforce the forfeiture 
 either by an entry or by the starting of an action of eject- 
 ment at common law, or by summary dispossess proceed- 
 ings under the provisions of statutes enacted quite generally 
 in the different states. If the landlord elects to waive the 
 
 1. Hurley v. Sehring, 43 N. Y. St. the express agreement of the parties, 
 
 Eepr. 340; Jones v. Rushmore, 67 N. the landlord being bound to enter and 
 
 J. L. 157; McElroy's Eat. v. Brooke, to relet in such case for what he can 
 
 104 III. App. 220. get, and if he does not do so the tea- 
 
 In such case It is clear that the ant must be credited with suck 
 
 general rule that a landlord is not ob- amount as the landlord might rcaaon- 
 
 liged to re-ente'r or relet the premises ably have obtained. Bowditch v. 
 
 so as to relieve the tenant pro tanto Raymond, 146 Mass. 109; Intema- 
 
 in case of abandonment by the ten- tional Trust Co. t. Wedcs, 203 U. t, 
 
 ant (Becar v. Flues, 64 N. Y. 518, 364. 
 
 { 143, note 1, (mte) , is modified by 2. See Ch. XU, port. 
 
FOEFEITUEB FOE BeBAOH OF CONDITION. S45 
 
 breach by some overt act by wMch. he recognizes the ten- 
 ancy as continuing, his right to enforce the forfeiture is 
 gone.' On the other hand, if he elects to enforce the for- 
 feiture either by an entry, the starting of a suit in eject- 
 ment, or by summary dispossess proceedings under the 
 statute, the tenancy is brought to an end at that moment, 
 and rent which would otherwise accrue thereafter is ex- 
 tinguished, since rent ends with the tenancy.* The ac- 
 ceptance of rent after breach of the condition is a waiver 
 of the breach,"* but if the forfeiture be enforced in any of 
 the ways above stated the landlord may thereafter sue to 
 recover rent which accrued after the breach but before 
 forfeiture was so enforced, since the tenancy does not end 
 until the landlord has elected to enforce the forfeiture by 
 entry or the starting of ejectment or summary proceedings.* 
 If the lease provides that in case of forfeiture the land- 
 lord may relet the premises, the tenant agreeing to pay any 
 deficiency in the rent over and above the amount received 
 as a result of such reletting, the tenant is liable for the 
 deficiency under the express terms of his contract.'^ This 
 is not rent, which necessarily ends with the tenancy, but an 
 amount by way of indemnity against loss which the tenant 
 binds himself by his contract to pay.* In such case the 
 
 3. Id. 147 111. 634, and cases cited in notes 
 
 4. Jones v. Carter, 15 Mees. & W. following. 
 
 718; Johnson v. Oppenheim, 55 N. Y. 8. McCready v. Lindenborn, 172 N. 
 
 280; Grommes t. St. Paul Trust Co., Y. 400; Edmands v. Bust & R. Drug 
 
 147 ni. 634; Sutton v. Goodman, 194 Co., 191 Mass. 123; Slater t. Von 
 
 Mass. 389; Isom v. Rex Crude Oil Chorus, 120 App. Div. (N. Y.) 16. 
 Co., 147 Cal. 6S9, and cases in follow- In Michaels v. Fishel, 169 N. Y. 
 
 ing notes. 381, under a general clause in tlie 
 
 5. See Oh. XII, post. lease providing that the landlord 
 
 6. See note 4, supra. should relet, etc., in case of entry by 
 
 7. Way V. Reed, 88 Mass. 864; Mo- him, the court construes the expres- 
 Cready v. Lindenborn, 173 N. Y. 400; sion as applying only to entry in the 
 Harding v. Austin, 93 App. Div. 564; common law sense, actual entries for 
 Lewis T. Stafford, 24 Misc. (N. Y.) breach of condition or the like and the 
 717; Grommes v. St. Paul Trust Co., recovery of possession by ejectment, 
 
346 Landloed and Tekant. 
 
 landlord must make an honest and reasonable attempt to 
 relet tlie premises as a condition precedent to the tenant's 
 liability, otherwise the tenant is not liable under this pro- 
 vision.* 
 
 Eent payable in advance, though for a period which has 
 not elapsed when the forfeiture is enforced and the ten- 
 ancy ended, must be paid by the tenant." In a case, for in- 
 stance, where the rent is payable on the first of each month 
 in advance, and the forfeiture is enforced on the second or 
 any subsequent day of the month, the tenant would be com- 
 pelled to pay the rent for that month in spite of the forfei- 
 ture. A different position has been taken in one state, the 
 court holding that the tenant was relieved because of fail- 
 ure of consideration.^^ In the case of an estate for life or 
 in fee upon condition there is no question but that for- 
 feiture of the estate would not give the tenant upon condi- 
 tion the right to recover back part of the purchase price or 
 a defense to an action to recover the balance of the pur- 
 chase price which may not have been paid by him before 
 the forfeiture.^* It is clear in any case of an estate upon 
 condition lost through forfeiture that there has been no fail- 
 excluding the recovery of possession S. 364; MeCready v. Lindenborn, 172 
 by summary proceedings as not in- N. Y. 400; £dmands v. Rust & R. 
 eluded within the provision of the Drug Co., 191 Mass. 123. 
 lease. This was an extremely narrow, 10. Ellis v. Rowhotham, 1 Q. B. 
 
 technical interpretation of the lease 740; Manning v. Ferrier, 27 Misc. (N. 
 in question, depending on the peculiar Y.) 533, and cases cited; Bernstein 
 language of that particular lease, and v. Heinemann, 23 Misc. 464. 
 cannot be regarded as establishing a 11. Sutton v. Goodman, 194 Mass. 
 
 general rule. The general rule was 389; HaU v. Middleby, 197 Mass. 485 
 held to apply in the following New (case of evictioa by landlord which 
 York cases in which forfeiture was raises a different question, the land- 
 enforced by summary proceedings un- lord being the wrongdoer, not the ten- 
 der the statute. Slater v. Von ant). 
 
 Caiorus, 120 App. Div. 16; Slater v. In Wreford v. Kenrick. 107 Mich. 
 
 Bonfiglio, 56 Misc. 385; MoNulty v. 389, the same conclusion was reached 
 Duffy, 39 N. Y. Supp. 593; Manning though no reason therefore is stated. 
 V. Ferrier, 37 Misc. 523. 12. See EsUtes upon Condition, Ch. 
 
 9. Int. Trust Co. v. Weeks, 303 U. XII, poat. 
 
Desteuotion of Leasehold Premises by Fiee. 347 
 
 ure of consideration. The loss of Ms estate is due to the 
 tenant 's own wrongful act or default in breaking the condi- 
 tion subject to which he held the property. 
 
 On the other hand, the landlord can recover no rental for 
 the part of the rental period which has elapsed before the 
 forfeiture, in a case where the rent is not payable in ad- 
 vance. In neither case will any apportionment be 
 allowed.** 
 
 In case of breach of condition for nonpayment of rent or 
 of ta^ses, the breach involving only the nonpayment of 
 money," or breach of condition arising in other ways 
 through accident, fraud or mistake where no harm has re- 
 sulted to the landlord, and where the tenant stands ready 
 to correct the error and to comply with the condition so 
 far as it may be done after the breach, equity will relieve 
 the tenant from the forfeiture, the court intervening on 
 well settled principles of equity.*' 
 
 Where the tenant has redeemed the tenancy from a for- 
 feiture by subsequent payment of the rent or by action in 
 equity, his rights against his subtenant are restored though 
 the subtenant has attorned to the head landlord after the 
 tenant's breach of condition. The effect of the redemption 
 is to restore all parties to their original position,*^ 
 
 § 190. Destruction of Leasehold Premises by Fire or 
 Other Casualty. — As stated heretofore in discussing the 
 nature of the relation of landlord and tenant * the destruc- 
 tion of buildings or other parts of the leasehold premises 
 by fire or other action of the elements has no effect upon the 
 tenancy or the tenant's obligation to pay rent, provided 
 the tenant's estate extends to the land and is not confined 
 to the building or part thereof which is destroyed.^ The 
 
 13. Hall V. Middleby, 197 Mass. 16. Wilson v. Jones, 64 Ky. 17S. 
 485. 1. See § 342, ante, and notes 9 and 
 
 14. Giles V. Austin, 62 N. Y. 486. 10, thereunder. 
 
 15. Mactier v. Osborn, 146 Mass. 2. Fowler v. Bott, 6 Mass. 63; Rob- 
 399. See Ch. XII, post. erts v. Lynn Ice Co., 187 Mass. 403 
 
848 Lais'dloed and Tenant. 
 
 tenant is the owner of the premises for the term; the rent 
 is the purchase price which he has agreed to pay in install- 
 ments for the estate transferred to him by the lease; his in- 
 terest like that of the landlord may be insured by him. 
 Apart from statute there is no reason why a loss of this 
 nature should not affect his interest and fall upon him just 
 as it also affects the interest of a life tenant, or the interest 
 of the landlord in reversion or remainder. 
 
 In New York and many other states, however, it has been 
 found expedient to enact a statute changing the common 
 law rule on this point. The New York statute,* followed 
 in several other states * provides that where any building 
 leased or occupied is destroyed, or so injured by the ele- 
 ments, or any other cause as to be untenantable and unfit 
 for occupancy, and no express agreement to the contrary 
 has been made in writing, the lessee or occupant may, if the 
 destruction or injury occurred without his fault or neglect,, 
 quit and surrender possession to the landlord, and he is not 
 liable for rent for the time subsequent to the surrender. 
 This statute recognizes the fact that rent is fixed between 
 the parties and is paid on the basis of the value of the use 
 and enjoyment of the premises from day to day to the ten- 
 ant, whatever the technical aspects of the case may be, that 
 the premises are essentially the landlord's in that he securea 
 in rent the value of their use and enjoyment, and therefore 
 in justice and fairness the loss should fall on him rather 
 than on the tenant. The statute does not apply to a case 
 where the untenantable condition is caused by the tenant '& 
 failure to make repairs, and therefore a tenant is not justi- 
 
 (if license only had been created the man v. Ganster, 72 Pa. St. 285; Wo- 
 
 licensee would have been relieved of mack v. McQuarrie, 28 Ind. 103. 
 
 obligation to make further pay- 3. N. Y. Real Prop. L., § 227, ori- 
 
 ments) ; Hurmston, etc. Co. v. ginally enacted, ch. 345, Laws of 
 
 Wheeler, 175 111. 514; Kingsbury v. 1860. 
 
 Weatfall, 61 N. Y. 356 (case arising 4. Wis. Acts 1903, ch. 306; Ohio 
 
 before entictment of statute); Buss- Rev. St. 1906, § 4113; Minn. Rev. 
 
 Laws, 1905, § 3331. 
 
Desteuotioh of Leasehold Peemises by Fibe. 
 
 349 
 
 fied in surrendering tlie premises where a building becomes 
 untenantable througli gradual wear and decay whicb ordi- 
 nary repairs by tbe tenant would correct.' The extent of 
 the tenant's duty to make repairs, either in the absence 
 of or under an express covenant to repair, has been here- 
 tofore discussed.' The immediate purpose of the statute 
 was undoubtedly to relieve the tenant from liability for rent 
 on his electing to surrender in case, of destruction of a build- 
 ing by some sudden casualty, such as fire or tempest, and 
 statements limiting the application of the statute to such 
 instances appear in several cases.'' It is clear, however, that 
 the language of the statute includes any destruction, how- 
 ever caused, which renders the premises untenantable dur- 
 ing the term, provided the condition has not been caused 
 by the act or default of the tenant.* Therefore if the un- 
 tenantable condition has resulted from the gradual deteri- 
 oration caused by action of the elements in spite of repairs 
 
 5. Syndham v. Jacksoix, j4 H. Y. 
 450; Lockrow v. Horgan, 58 N. Y. 
 635; Markman v. David Stevenson 
 Brew. Co., 104 App. Div. (N. Y.) 
 420; Thomas v. Nelson, 69 N. Y. 118; 
 Goldberg v. Lloyd, 110 N. Y. Supp. 
 530; Crawford v. Redding, 8 Mise. 
 (N. Y.) 306; Gulliver v. Fowler, 64 
 Conn. 556. 
 
 See, also. May v. Giles, 169 N. Y. 
 330, and Street v. Central Brew. Co., 
 101 App. Div. (N. Y.) 3. The con- 
 clusion to be drawn from the cases is 
 that the statute does not apply to a 
 case where the failure to make re- 
 pairs by the tenant in violation of 
 his duty to his landlord was the cause 
 of the untenantable condition, but 
 that the statute does apply where 
 there has been no such failure, but 
 the premises have nevertheless become 
 untenantable either through sudden 
 action of the elements, as by fire. 
 
 flood or storm, or through gradual 
 decay. 
 
 6. See §§ 164, 165, ante. 
 
 7. Syndham v. Jackson, 54 N. Y. 
 450; Edwards v. McLean, 132 N. Y. 
 303; Lansing v. Thompson, 8 App. 
 Div. (N. Y.) 54; Billiard v. Gaa 
 Coal Co., 41 Oh. St. 662; Hatch v. 
 Stamper, 43 Conn. 38 (under some- 
 what different statute, see above sec- 
 tion, post). 
 
 8. If caused by the negligent or 
 other wrongful act of the tenant the 
 statute, by its own terms, has no 
 application. Johnson v. Oppenheim, 
 55 N. Y. 380 (tenant refused to per- 
 mit excavator to enter to shore up 
 building under statute requiring 
 such shoring, damage to building re- 
 sulting) ; Dorr v. Hotehkiss, 49 N. 
 J. L. 571 (negligence of tenant caus- 
 ing fire.) 
 
350 Landloed and Tenant. 
 
 made by the tenant, lie having made all repairs required of 
 him under his lease, the statute covers the case and the ten- 
 ant may end the term by surrendering the premises.* The 
 statute, however, does not apply to defective conditions 
 existing at the time the lease was made.** As we have 
 seen heretofore ** the maxim " caveat emptor " applies, 
 and in the absence of fraud on the landlord's part, or of an 
 express covenant that the premises are tenantable or fit for 
 the use intended, the tenant is liable for the rent reserved and 
 cannot avoid such liability by surrendering the premises 
 because they were untenantable or unfit for occupacny when 
 the lease was made. However expedient it might be to 
 cover such case by a similar statutory provision, no such 
 statute has been enacted, and the common law rule still pre- 
 vails. 
 
 The statute under discussion does not apply where the 
 premises are rendered untenantable by the act of some third 
 person in maintaining a nuisance on adjoining property. 
 The tenant may protect himself by securing an injunction 
 restraining the continuance of tha nuisance, and therefore 
 the premises are not rendered untenantable within the mean- 
 ing of the statute, as the tenant's failure to act in his own 
 defense would be a contributing cause.^^ It is clear, how- 
 ever, that the statute covers cases where the untenantable 
 condition is caused by acts of strangers or neighbors not 
 amounting to a nuisance, giving rise to conditions which 
 the tenant cannot prevent by injunction. There can be no 
 doubt, for instance, that the destruction, total or partial, by 
 
 9. See note (5) swpra, also. Tall- v. Tousey, 93 App. Div. (N. Y.) 507; 
 man v. Murphy, 130 N. Y. 345; Mea- Daly v. Wise, 132 N. Y. 306 (no dia- 
 Berole v. Hoyt, 161 N. Y. 59; Vann cussion of statute in question.) 
 
 V. Rouse, 94 N. Y. 401. 11. See § 166, ante. 
 
 10. Edwards v. McLean, 122 N. Y. 12. Floyd-Jones v Schaan, 109 N. 
 302 (scarlet fever in family of for- Y. Supp. 362; Brick v. Favilla, 51 
 met tenant, statute did not apply. Misc. (N. Y.) 550. See also § 166 
 though tenant could not enter) ; Mea- ante, and cases thereunder. 
 
 serole v. Hoyt, 161 N. Y. 59; Prabar 
 
DaSTEUOTIOH OB- LEASEHOLD PeEMISBS BY FlEE. 351 
 
 fire caused by the wilful or negligent act of a stranger would 
 relieve the tenant from liability under the statute. So, also 
 the grading of adjoining land in such way as to cause sur- 
 face waters to fiow upon the leased premises and into the 
 cellar of the house occupied by the tenant, rendering it so 
 damp as to make it unJ&t for occupancy, would be a case 
 coming within the application of the statute, the grading 
 not amounting to a nuisance. 
 
 It is dear, therefore, that the statute applies to any case 
 where the premises are rendered unfit for occupancy from 
 any cause arising during the tenancy and not due to the 
 wrongful act or default of the tenant or to a nuisance main- 
 tained by a stranger on adjoining property. Thus where 
 at the occurrence of heavy rains the cellar became flooded, 
 and the premises were rendered damp and malarial,i^ and 
 where a damp and dangerous condition was caused by the 
 flow of water and drainage from the land adjoining ** the 
 court held that the statute applied, the jury having found 
 as a fact that the premises had been rendered untenantable 
 and unfit for occupancy. The fact that the cellar walls and 
 arrangements for drainage were the same as at the time the 
 lease was made seems to have been regarded in these cases 
 as immaterial, since the condition complained of actually 
 arose as a result of additional causes occurring during the 
 term. The question of whether the premises were in fact 
 rendered untenantable and unfit for occupancy is for the 
 jury to determine, as a question of fact." 
 
 By the terms of the Connecticut statute " the tenant is 
 relieved from rent so long as the premises are unfit for oc- 
 cupancy, and he may remain in possession during that time, 
 
 13. Messerole v. Hoyt, 161 N. Y jury is slight, involving a small 
 69. amount for repairs, the tenant will 
 
 14. Vann v. Rouse, 94 N. Y. 401. not be justified in surrendering tha 
 16. Messerole v. Hoyt, 161 N. Y premises. Wampler v. Weinmann, 58 
 
 89. See the other cases cited under Minn. 1. 
 
 this section most of which involve 16. Gen. St. 1902 § 4045. 
 
 the same proposition. Where the in- 
 
352 Landloed and Tenant. 
 
 Ms liability for rent again arising as soon as the premises 
 are made fit for occnpancy.*^ In New Jersey," in the ab- 
 sence of an agreement to the contrary, in case of injury by 
 fire without the tenant's fault the landlord shall make re- 
 pairs as speedily as possible, otherwise rent ceases until 
 such repairs are made, while in case of total destruction of 
 the buildings rent is payable only to the time of their de- 
 struction, the tenancy then ending. In several other states 
 somewhat similar statutes have been enacted, modifying 
 the common law rule.'* In states without such statutes the 
 common law rule generally prevails, though in a few scat- 
 tered cases it is held that the tenant may regard the ten- 
 ancy as ended in case of destruction of the premises, though 
 no statute so provides.*" 
 
 § 191. Miscellaneous Questions Arising Under Statutes 
 Relating to Destruction of Leased Premises. — If the lease 
 " otherwise expressly provides " the statute in New York 
 and most of the other states having similar statutes has no 
 application, by the express provision of the statute itself. 
 Either an express provision that the statute shall not ap- 
 ply, or a provision necessarily inconsistent with the applica- 
 tion of the statute must appear in the lease in order to pre- 
 vent its application. Thus a provision that in case of fire 
 the landlord should repair immediately, and if he should 
 decide to rebuild the tenancy would cease was held to ex- 
 clude the statute.' So also a provision that the lease should 
 terminate on a total destruction of the building; ' where the 
 
 17. Gulliver v. Fowler, 64 Conn. 20. Wattles v. South Omalia lc« 
 S56; Miller v. Benton, 55 Conn. 529. Co., 50 Neb. 26. 
 
 A sudden act of the elements alone See also dicta in Witaker v. Haw- 
 is contemplated by statute, Hatch v. ley, 85 Kan. 674. 
 Stamper, 43 Conn. 28. 1. Roman v. Taylor, 93 App. Dir. 
 
 18. a Gen. St. 1923; Booraem t. (N. Y.) 449. 
 
 Morris, 74 N. J. L. 95. 8. Tocoi v. Powell, Appi Diy. 883 
 
 19. See Tiffany, Landlord & Ten., 
 pp. 1211-1213. 
 
QuBSTiOBTS Relating to Desteuotion of Pebmisbs. 353 
 
 parties made express stipulations covering rebuilding and 
 insurance in case of fire; * wliere it was agreed tliere should 
 be no reduction in rent during repairs except wlien neces- 
 sitated by fire, rent to be suspended until tbe damage was 
 repaired only in case the premises became wholly untenant- 
 able,* it was held that the parties having expressly provided 
 for the contingency covered by the statute, they necessarily 
 excluded the statute by express agreement. Where, how- 
 ever, the situation provided for by express agreement did 
 not arise, so that the agreement of the parties had no appli- 
 cation, the statute was held to apply if the premises had 
 become untenantable and the other requirements of the 
 statute were present" 
 
 The agreement of the parties governs in any case in which 
 they have expressly provided for the contingency of destruc- 
 tion or damage to the premises by fire or otherwise.* If by 
 such agreement rent is to be suspended merely while repairs 
 are being made or buildings rebuilt it will be revived when 
 the repairs or rebuilding are completed.'' Where the land- 
 lord has covenanted to repair or rebuild in such case and 
 fails to do so within a reasonable time, or within the time 
 provided by the lease, the tenant may quit the premises, 
 treating the term as ended, and rent is extinguished.^ 
 
 3. Lehmeyer v. Moses, 69 App. Div. e. Wood v. Hubbell, 10 N. Y. 479; 
 631. Gary v. Whiting 118 Mass, 363; N. 
 
 4. Butler v. Kidder, 87 N. Y. 98. Y. Real Est Co. v. Motley, 3 Misc. 
 6. N. Y. Real Est. Co. v. Motley, (N. Y.) 232. 
 
 143 N. Y. 156, in which case the lease 7. Rogers v. Snow, 118 Mass. 118 j 
 
 provided that in case of injury by Smith v. McLean, 123 111. 210; Ein< 
 
 fire the lessee should pay rent for only stein v. Levy, 25 App. Div. (N. Y.) 
 
 Buch part as he could occupy during 565. 
 
 the time required for repair, anci in 8. Nimmo v. Harvey, 23 Misc. (N, 
 
 case rebuilding was required the ten- Y.) 136; Bacon v. Albany etc Co.. 
 
 ancy should end, and it appearing that 22 Misc. 592. 
 
 the premises were made wholly un- The tenant may use part of the 
 
 tenantable, but did not require re- premises for storage or the like while 
 
 building, the court held that the the damages are being repaired by the 
 
 statute applied. landlord under such a, stipulation, 
 
 23 
 
354 Landlokd and Tethaist. 
 
 The tenant must surrender possession witMn a reason- 
 able time after the premises become untenantable to be re- 
 lieved from Ms obligation to pay rent under tbe statute. 
 "What is a reasonable time will depend upon the facts of each 
 case. He is given a sufficient time to remove his personal 
 property from the premises, and to adjust insurance claims 
 in case of damage to such property by fire.' If he actually 
 give up possession notice thereof to the landlord is not nec- 
 essary.^" 
 
 Eent payable in advance which has actually become due 
 before destruction of a building on the premises takes place 
 must be paid by the tenant, the statute in no way freeing 
 him from his liability already accrued, though the destruc- 
 tion take place early in the period for which the rent is so 
 payable." 
 
 § 191-a. Destruction of Building When Tenant Has no 
 Interest in Land. — When the lease gives the tenant an in- 
 terest in an apartment, store, loft, or other part of a build- 
 ing, no interest being given to the tenant in the land on 
 which the building stands except to have the building sup- 
 ported thereby, the destruction of the building brings the 
 tenancy to an end since the subject matter of the lease is 
 completely destroyed, and all obligation to pay rent 
 thereafter accruing immediately comes to an end.* 
 As the tenant's interest is limited to the building, or part 
 
 without subjecting himself to liability 11. Craig v. Butler, 156 N. Y. 672; 
 
 for rent during that time, the prem- Werner v. Padula, 167 N. Y. 611. 
 
 isea being in fact untenantable. Kip 1. Graves v. Berdan, 26 N. Y. 498; 
 
 V. Merwin, 52 N. Y. 543; Smith v. Stockwell v. Hunter, 52 Mass. 448; 
 
 McLean, 123 111. 210. Shawmut Nat. Bank v. Boston, 118 
 
 9. Smith V. Kerr, 108 N. Y. 31; Mass. 125; Womack v. McQuarrie, 88 
 Fleisohman v. Toplitz, 134 N. Y. 349; Ind. 103. (In ease of destruetion, 
 Johnson v. Oppenheim, 55 N. Y. 280; lease extending to the entire premisM, 
 Eoach V. Peterson, 47 Minn. 291. the common law rule prevaila in In- 
 
 10. Fleiflchman r. Toplitz, 134 N. diana in the absence of expreu ppo- 
 ^' 3*". vision in the lease) ; Humiston, K. 
 
 * Co T ^Vheeler. 175 IlL 61i. 
 
When Tenant Has no Inteeest in Land. 355 
 
 thereof leased to Mm, he has no right to make use of the 
 land to build upon it or for any other purpose. The thing 
 out of which rent issues being entirely destroyed, rent nec- 
 essarily ends with it. On the same principle if lands covered 
 by a lease are taken by action of the sea or other public 
 navigable waters, so that it becomes public lands belong- 
 ing to the state as land under public waters, rent is ex- 
 tinguished entirely or pro rata as the case may be, the ten- 
 ant being completely deprived of the whole or part of the 
 thing leased. But if the waters in question are not the sea 
 or public navigable waters, rent is not affected, since the 
 tenant remains exclusively the owner thereof, though it may 
 be of less value to him than before.* 
 
 a. 1 BoUe Abr. 836; Graves y. Berdan, 86 K. Y. 498 (dicta). 
 
366 Equitable Estates j Uses and Teusts. 
 
 CHAPTER vrn. 
 
 Equitable Estates; Uses and Tkusts. 
 
 A. — Uses Before the Statute of Uses. 
 
 § 192. Nature and Origin of Equitable Estates. — An 
 
 'Equitable estate, as has sufficiently appeared in cormection 
 with the discussion of the foregoing topics in this work, in- 
 volves in every case the holding of the legal title to the land 
 by a trustee who has no beneficial interest of Ms own, but 
 who holds solely for the benefit of the beneficial or equitable 
 owner, called the cestui que trust. The real ownership, in- 
 volving every right to the possession and enjoyment of the 
 land, subject only to the restrictions of the trust, is in this 
 beneficial owner. The origin of equitable estates goes back 
 to the ancient custom of owners transferring their lands to 
 friends upon whom they could rely, with directions to hold 
 and use the land for the benefit of the owner or his family, 
 or to convey to others, where the result sought could not be 
 accomplished under the forms and rules of law then prevail- 
 ing.^ In many cases the purpose of transferring the legal 
 title to a third party, retaining the beneficial interest in the 
 transferor, was undoubtedly to avoid incidents and burdens 
 attaching to legal ownership. This third party was alone 
 recognized as the owner of the land by courts of law, and if 
 he was a man who could be relied upon to follow the trans- 
 feror 's instructions, the transferor would retain the bene- 
 fits of ownership without its burdens. Thus men transfer- 
 red their land in this way in order to put it beyond the 
 reach of their creditors, or to delay actions brought to re- 
 cover the lands involved, as they do to-day.^ This device 
 
 1. Williams R. P. (17th Int. ed.), 2. Digby Hist. L. of Real Property 
 
 199; article by Mr. Justice Holraea, (5th ed.), 318; Williams R. P. (17th 
 
 Law Quarterly Review, Vol. I, p. 162; ed.), 199. 
 4 Kent Comra. 290, et seq. 
 
Natuee and Oeigin of Equitable Estates. 357 
 
 was used also for a short time to avoid the statute of mort- 
 main, title being taken in the names of individuals for the 
 use of ecclesiastical corporations. Such conveyances in 
 fraud of creditors were declared void by the statute, 50 Edw. 
 m, c. 6, and conveyances so made to avoid the statute of 
 mortmain were restrained by the statute 15 Rich II, c. 5.* 
 During the civil wars in England those engaged in treason- 
 able enterprises frequently conveyed their lands to others 
 not so involved to be held to their use, so as to escape for- 
 feiture of their lands for treason.* It is probable, however, 
 that uses originated and developed to a considerable extent 
 to accomplish purposes which were legitimate and laudable. 
 Before the development of equity jurisdiction, and theref ore 
 before uses could be enforced by any proceeding at law or 
 equity, it is probable that they were employed to accomp- 
 lish many of the purposes for which trusts are employed 
 to-day, as well as to obtain results impossible under the rules 
 of law then existing. 
 
 Under the technical rules of law which grew out of feud- 
 alism, real property could not be disposed of by will nor 
 could future estates be created in land except by way of re- 
 mainder, greatly hampering owners in the disposition of 
 their property. How uses were employed to overcome these 
 difficulties will be discussed hereafter.^ As we will see in 
 the following section, while the employment of uses for 
 these purposes was developing as a matter of custom, there 
 was growing up at the same time the jurisdiction of chan- 
 cery, through which the rights of the beneficiary, or cestui 
 
 3. Digby, id. 319. beneficial interest, or use, was not 
 
 4. This device pf putting land in subject to tlie incidents of fciirial ten- 
 tbe possession of a trustee who alone ure or to dower, and creditors could 
 was recognized as owner at law, all not reach these interests to satisfy 
 benefits of ownership being retained their claims, equity refusing to follow 
 by the transferor, was also used to the law in applying these incidents 
 avoid the burdens of feudal tenure, to uses. See Williams R. Property 
 the incidents of relief, wardslip and (17th ed.), 200. 
 
 marriage to which the overlord was 5. See § 194, note 16, post. 
 entitled, and to avoid dower. The 
 
358 Equitable Estates j Uses and Trusts. 
 
 ■que use, came to be recognized and enforced against the 
 trustee to uses. The ways in which uses were employed to 
 accomplish these various purposes may best be explained 
 and understood in connection with a consideration of the 
 ways in which chancery recognized and enforced the rights 
 of beneficiaries of uses, as detailed in the following sec- 
 tions. 
 
 § 193. Nature and Origin of Equitable Estates; Uses. — 
 This transfer of the land to a third party to be held or con- 
 veyed by him in accordance with the wishes of the trans- 
 feror resulted in making the third party absolute owner of 
 the land at law. There was no way by which he could be 
 compelled, by law, to carry out the wishes of the transferor. 
 There was, however, a moral obligation to hold, use and 
 convey the land in accordance with the uses for which it 
 was transferred to him. At first there was no way to com- 
 pel him to carry out the transferor's wishes except by ap- 
 peal to his conscience, and by the influences of religion. 
 There was no legal obligation at all, merely a moral one.^ 
 At the time these practices of conveying lands to friends 
 in confidence to be held to uses were developing in England 
 the jurisdiction of the Chancellor or the jurisdiction of 
 Equity, was beginning to take form. The understanding of 
 equitable estates necessarily involves some knowledge of 
 the origin and nature of equity jurisdiction. 
 
 Under the early system of English law the king was re- 
 garded as the source of all justice within the realm and the 
 common law courts derived their authority from him. As 
 to all matters not falling within the powers of the courts as 
 delegated to them by the king, and particularly in cases 
 where no sufficient remedy existed in the courts, petitions 
 were made directly to the king, or to his council, for the 
 redress of wrongs and the granting of relief where justice re- 
 quired it.2 During the reign of Edward I the king usually 
 
 1. Digby Hist. L. Real Prop. (5th 2. Digby, id. 321, 322; Williams 
 
 ed.), 320, 321. Real Prop. (17th ed.), 194. 
 
Nature and Oeigiit of Equitable Estates; TJsEa. 359 
 
 referred sucli petitions made directly to himself to tlie 
 Chancellor. During the twenty-second year of the reign of 
 Edward III an ordinance was made directing that petitions 
 relating to matters of special grace should be referred to 
 the Chancellor or to the keeper of the Privy Seal.^ There- 
 after petitions were made directly to the Chancellor who 
 by virtue of the power delegated to him by the king heard 
 the parties and granted or withheld relief as justice re- 
 quired. The court of chancery, or of equity, thus formed, 
 gave relief in all cases where the law courts gave no remedy 
 or where the remedy at law was inadequate. The princi- 
 ples under which equity would give relief gradually be- 
 came as clearly settled and defined, by precedent, as the 
 rules of the common law. In this way two systems of law 
 developed, the one supplementing the other.* 
 
 Upon the presentation of a petition the Chancellor would 
 order a writ to issue commanding the party complained 
 against to appear and answer and submit himself to the 
 order of the court. The writ issued in the name of the king 
 and was called a writ of subpoena. If the defendant re- 
 fused or failed to obey the chancellor's decree his obed- 
 ience was compelled by his arrost and imprisonment for con- 
 tempt of court. The jurisdiction of equity is over the per- 
 son, and its decrees are enforced by compelling the defend- 
 ant to do the things ordered by the court, or to refrain 
 from doing those things which the court may have enjoined 
 him from doing.^ 
 
 As we have seen, the law gave no relief against a feoffee 
 to uses, or trustee, in case he refused to carry out the terms 
 of the use for which the land was conveyed to him. The 
 practice of conveying lands to uses had grown into a custom 
 widely used and recognized. Justice required that the ob- 
 ligation in conscience imposed on the trustee should be en- 
 
 3. Digby, id. 323; Williams, id., 4. Digby, id. 323-334; Williams, id., 
 194. 194-197. 
 
 5. See preceding note. 
 
360 Equitable Estates ; Uses and Teusts. 
 
 forced. The court of chancery had the power and the ma- 
 chinery to accomplish this. Petitions were presented to 
 the chancellor complaining of a breach of trust on the part 
 of a trustee to uses, a writ of subpoena would thereupon 
 issue, and the trustee would be compelled to appear and 
 answer, and to obey the decree of the court ordering him 
 to carry out the terms of the use, such obedience being en- 
 forced, if necessary, by imprisonment for contempt of court. 
 The earliest recorded petition of this kind was made dur- 
 ing the reign of Richard II, but the Chancellor's court seems 
 to have been little used for this purpose until during the 
 reigns of Henry VI and Edward IV, when petitions against 
 trustees to uses became more usual, and the rules under 
 which Chancery gave relief became somewhat systematized. 
 Chancery would restrain the trustee to uses from conveying 
 or encumbering the land so held by him, from wasting or 
 destroying it, and from doing any other act in violation of 
 his trust. It would also compel him to hold the land for the 
 benefit of the cestui que use, or beneficiary, permit him to 
 occupy the land and to take the rents and profits, convey it 
 to him at his direction, or to his heir, or to a person named 
 in his will, or to a third party to whom the beneficiary may 
 have sold his interest. At first this obligation was a purely 
 personal one between the trustee and the beneficiary, bind- 
 ing only on the trustee, but not binding on his heir or on a 
 purchaser for a valuable consideration with notice of the 
 use. Later, however, and by the reign of Edw. IV, courts of 
 chancery held that the heir of the trustee took title subject 
 to the same trust, as also did a purchaser with notice. There- 
 after the interest of the cestui qus use, or beneficiary, be- 
 came something more than a right against the trustee to 
 uses personally; it became an estate in the land itself, giving 
 to him all beneficial rights of possession, enjoyment and 
 disposition, subject only to the restrictions of the terms of 
 the use. His interest became an estate enforceable, gener- 
 ally speaking, against the trustee or any person taking 
 
CitEATION AND INCIDENTS OV UsES. 861 
 
 title from the trustee not a pnrcliaser for value without 
 notice of the use. His interest, however, did not exist out- 
 side of the chancery court. At law the trustee, as holder 
 of the legal title, was owner of the land, alone recognized as 
 such, the beneficiary not being recognized as having any 
 interest whatever. Since the estate of the beneficiary was 
 a mere equity, it followed that it could not be enforced 
 against a purchaser for value from the trustee without 
 notice of the use; the rule having been early established in 
 equity that the legal title to property will not be disturbed 
 by a court of equity in any case where it has been con- 
 veyed to a purchaser for value who has taken title and paid 
 such value without notice of the prior equity, which is thus 
 cut off.® 
 
 In this way the practice of conveying lands to a friend 
 on trust for various purposes, acquiring the force of a gen- 
 eral custom, developed finally into a great system of estates, 
 recognized and enforced in equity. This system developed 
 out of the customs, and therefore out of the needs of the 
 people. Though attempts have been made to connect them 
 with certain alleged analogous doctrines and institutions 
 of the Roman law, the analogy in each case is slight, or 
 fails altogether, and there is nothing but conjecture on 
 which to base the conclusion that these doctrines had any 
 influence whatever upon the development of equitable es- 
 tates as part of the English law.'^ 
 
 § 194. Creation and Incidents of Uses Before the Statute 
 of Uses. — We have seen that uses as equitable estates, de- 
 veloping from customary transfers made in trust and con- 
 fidence for stated purposes, grew for the most part out of 
 
 8. For one of the best accounts of (17th ed.), 201-203. For examples of 
 
 the assumption of jurisdiction over early cases in Chancery Involving tha 
 
 uses by the Chancellor, see Digby enforcement of uses, see Digby, id., 
 
 Hist. L. Real Prop. (5th ed.), pp. 324- pp. 334-343 
 
 327. See, also, Williams Real Prop. 7. Digby, id. 316-318. 
 
362 Equitable Estates ; Uses and Tetjst8. 
 
 actual need for sucli estates, 1st, to fulfill the purposes for 
 which trusts are employed today, that property might be 
 held by those who were able and trustworthy for the use of 
 beneficiaries who might be unable or unfit to manage the 
 property themselves, and 2nd, to provide for the legitimate 
 and laudable disposition of property in ways which were 
 made impossible by the technical and unreasonable rules 
 that feudalism had fixed upon the common law; that to a 
 less degree they were used for unlawful purposes in order 
 to escape obligations and burdens attaching to ownership 
 of land. As a result of the combined causes or occasions 
 for these interests, the greater part of the land of England 
 came to be held subject to uses, and this situation existed for 
 a considerable time before the enactment of the Statute of 
 Uses hereafter discussed.^ 
 
 Uses were created either (a) by transmutation of posses- 
 sion, viz. : by conveyance to a third party as trustee to uses, 
 either by f oeff ment with livery of seisin, fine or recovery, or 
 by lease and release,^ and (b) without transmutation of 
 possession, the owner retaining title and seisin in himself, 
 but holding for the use of the beneficiary. In case of a 
 conveyance without the recital of a consideration, there 
 being no relationship of blood between the grantor and 
 grantee, the chancellor's court would presume an intention 
 on the part of the grantor that the grantee should hold, not 
 for his own benefit, but for the use of the grantor, because 
 of the apparent lack of motive to convey outright. The 
 mere recital of money consideration was sufficient, how- 
 ever, to prevent this result, though no consideration was 
 actually paid, since the motive of the grantor to convey 
 the estate outright would then be sufficiently expressed.* 
 The two methods of creating a use without transmutation 
 of possession, were by bargain and sale, and by conveant 
 
 1. See 2 Bl. Com. 137. Eagle Fire Co. of N. Y., 9 Wend. (N. 
 
 2. Digby, id. 328, 329; Rogers T. Y.) 611. 
 
 3. Id. 
 
Ceeatioit and Incidents of Uses. 363 
 
 to stand seized. A bargain and sale arose in any case -where 
 the owner made a bargain to sell his land to another, who 
 paid or agreed to pay as a consideration therefore, some- 
 thing of value. Equity regarded the vendor as at once hold- 
 ing the legal title for the benefit of the bargainee, who at 
 once became the equitable owner of the land.* A covenant 
 to stand seised was a covenant on the part of the owner to 
 stand seised for the benefit of the beneficiary named; if the 
 beneficiary was a blood relative of the covenantor equity 
 would enforce the covenant because of the consideration 
 of blood, and the covenantor would hold as trustee to the 
 use of the beneficiary. If there was a money consideration, 
 or a consideration of value, the covenant was effective as a 
 bargain and sale. If no consideration at all either of blood 
 or value existed, the covenant was void.' 
 
 The interest or estate of the cestui que use or beneficiary 
 could be transferred freely and without formality of any 
 kind, no deed or writing being required, and he could dis- 
 pose of his interest by will. This follows from the fact that 
 the trustee to uses was bound to obey the directions of the 
 beneficiary in all respects. The beneficiary was entitled to 
 the possession of the land, though at law his possesion was 
 regarded as that of a tenant at will only, holding from the 
 trustee as legal owner .^ 
 
 By means of uses enforceable in equity, estates impossible 
 at law could be freely created. At law a future estate could 
 be created only as a remainder limited after a precedent 
 estate for life or for years. A future estate to arise on 
 the death of the transferor, or on the happening of a sub- 
 sequent event, was void unless a life estate or an estate for 
 years was created at the same time, which would fill the 
 gap intervening until the taking effect of the future estate. 
 The reason for this was the feudal rule that the seisin could 
 
 4. Digby, id. 330; Rogers v. Eagle G. Digby, id. 338; Williams '» P. 
 Fire Co. of N. Y., 9 Wend. 611. (17th ed.), 203. 
 
 5. Id. 
 
364 Equitable Estates; Uses aitd Tettsts. 
 
 never be in abeyance. Since tlie person seised was the feudal 
 tenant answerable for all fedual dues and services incident to 
 Ms tenure, and since it was essential to feudalism tbat some 
 person be at all times seised, it followed tbat any future 
 estate wbich. would result in leaving seisin in abeyance was 
 void in its creation. A conveyance to take effect at a future 
 day put seisin in abeyance, because the feoffor parted with 
 Ms seisin in making livery of seisin or its equivalent, wMch 
 was required for the conveyance of any present freehold es- 
 tate. By the terms of the feoffment the feoffee would not be- 
 come seised until the taking effect of his future estate. Dur- 
 ing the iiitfrval therefore, no one would be seised.'' Such 
 an estate, however, would be recognized and enforced in 
 equity if created by way of use. Thus an estate to arise 
 on the death of the transferor, or on his marriage, or on the 
 marriage of the beneficiary, or on the happening of any fu- 
 ture event, could be created by conveying to a third person 
 to hold as trustee to uses for the beneficiary on the happen- 
 ing of the contingency, in the meantime holding for the 
 benefit of the transferor. Since seisin would be in the 
 trustee throughout it would never be in abeyance and the 
 common law rule would not be violated. The same result 
 would be accomplished by a covenant to stand seised, or by 
 a bargain and sale for the benefit of the beneficiary on the 
 happening of the future event, seisin remaining in the 
 transferor until the happening of the event, on which he 
 would be compelled by a court of equity to transfer to the 
 beneficiary provided there was consideration of value or of 
 blood to support the covenant or bargain.* 
 
 A second illustration of a future estate void at law but 
 good when created as a use in equity, was a future estate 
 limited to take effect a day or a year or any other period 
 after the ending of a prior life estate. Thus where land 
 was conveyed to A for life, and one year after A's death to 
 
 7. See Ch. XIII, post, on subject of 8. Digby, id. 332, 333; Rogers ▼. 
 
 remainders. Eagle Fire Co. of N. Y., 9 Wend. 611. 
 
Cebation aitd Incidents or Uses. 365 
 
 B in fee, tlie estate given to B was void, since it would put 
 the seisin in abeyance during the year following A's death.® 
 But by conveying to X as trustee to the use of A for life, 
 and one year after A's death to the use of B in fee, a valid 
 equitable estate in favor of B was created, since the seisiu 
 remained in X as holder of the legal title, there being no 
 abeyance thereof during the year following A's death, and 
 the moral obligation on X's part to hold for B a year after 
 A's death was in all respects the same as his obligation to 
 hold for A during A's life, and would be enforced by equity 
 accordingly.*" 
 
 In exactly the same way and for the same reasons a fu- 
 ture contingent interest limited to take effect after an es- 
 tate for years would be valid in equity when created by 
 way of use. Such contingent remainder was void at law, no 
 one being seised, since the tenant for years could not be 
 seised, having only a chattel interest, and the contingent 
 remainderman could not be seized, having only a possible 
 interest; therefore such a remainder so limited would cause 
 a suspension of the seisin until the happening of the con- 
 tingency on which the remainder depended.^^ When created 
 by way of use the seisin of the trustee continuing through- 
 out, and his moral obligation also continuing in favor of 
 the remainderman, the interest created was perfectly valid 
 in equity.*^ 
 
 At common law a fee limited after a fee was void, the 
 second fee not being a remainder, the first fee embracing 
 the entire estate.*^ But in equity where land was con- 
 veyed, for instance, to A as trustee for the use of X in fee, 
 but if X should die without issue surviving him then for the 
 use of Y in fee, there was no reason why the moral obliga- 
 tion imposed upon A to hold for X should not also bind 
 him to hold for Y on X's death without issue, the purely 
 
 9. See Ch. XIII, post. 12. See note 8, supra, 
 
 10. See note 8, supra. 13. See Ch. XIII, post. 
 
 11. See Ch. XIII, post. 
 
S66 Equitable Estates; Uses and Teusts. 
 
 teclinical common law rule having no application to tte 
 trustee's moral duty. Therefore equity would compel him 
 to hold, first for A, and after A's death without issue, or on 
 the happening of any other condition provided for by the 
 original owner, for the benefit of B in fee.^* In the same 
 way, and for the same reasons an estate in fee could be 
 created by way of use to arise on the happening of a con- 
 tingency which would operate to abridge or terminate a 
 precedent estate for life. Such an estate was void at law 
 because not created by way of remainder, it being a future 
 contingent interest in no sense the remainder of the fee over 
 and above the particular estate.^^ 
 
 So also equity would compel the trustee to carry out the 
 uses provided for in the transferor's will, when the land 
 had been conveyed to him subject to such uses as might be 
 named in such will,!'' gj^^ ^q hold for the sole and separate 
 use of the transferor's wife, or to convey to the transferor 
 and his wife jointly, where the land had been conveyed 
 to the trustee for that purpose.^'' 
 
 14. See note 8, supra. by conveying to a trustee to hold the 
 
 15. See Ch. XIII, post. property subject to such uses as 
 
 16. There seems to be no doubt that might be provided in the transferor'a 
 vrills of land as well as of personal vpill, ovraers of land could in equity 
 property were valid during the Saxon effectually dispose of it by will, the 
 period. But with the establishment Chancellor compelling the trustee to 
 of feudalism following the Norman distribute the property in accordance 
 conquest wills of real property became with the provisions of the will, 
 invalid, since it was regarded as in- Digby Hist. L. Real Prop. (5th ed.), 
 consistent with the feudal system 330, 331. 
 
 that the vassal be permitted to inter- 17. Digby, id., 331. Here, also, the 
 
 fere with the inheritance of the es- Chancellor refused to be bound by the 
 
 tate by his heir by means of a devise teclinical common law rule that a 
 
 to a stranger. Therefore from the married woman could not hold Bepar- 
 
 time feudalism had become estab- ate property, and compelled the trus- 
 
 lislied until the Statute of Wills, en- tee to hold the property for her bene- 
 
 acted shortly after the enactment of fit in accordance with the terras of 
 
 the Statute of Uses, wills of real the use under which it was conveyed 
 
 property were void, though wills of to him. 
 personal property were valid. But 
 
Naiuee aitd Pxjkpose of the Statute. &67 
 
 In the main, equity followed the law in applying to this 
 new class of estates rules governing their duration and 
 devolution to heirs in case of intestacy. Equity did not 
 follow the law hy applying technical rules which had be- 
 come engrafted on the comon law through feudalism, to 
 escape from which uses were frequently employed. There- 
 fore the sharp differences brought out in the various illus- 
 trations given above arose from the fact that the applica- 
 tion of these rules would largely defeat the purposes for 
 which uses were employed, and would in each case interfere 
 with the administering of justice and equity in their en- 
 forcement. An estate in equity was either for years, for life, 
 in fee simple or in fee tail, depending on the same rules gov- 
 erning estates at law. So also in case the owner died in- 
 testate his equitable estate descended to his heir subject to 
 the rules governing legal estates.^® But the wife or hus- 
 band of the beneficiary was not entitled to dower or curtesy 
 in the equitable estate; the right of escheat on failure of 
 heirs did not exist in favor of the overlord, and the creditor 
 of the beneficiary could not take the lands on execution.^" 
 
 B. — The Statute of Uses and Its Effect. 
 
 § 195. Nature and Purpose of the Statute. — As we have 
 seen, most of the land of England had, for reasons detailed 
 in the preceding sections, become subject to uses, so that 
 it was subject to two sets of owners, one at law, another in 
 equity, causing great confusion and much injustice, since 
 creditors were deprived of their right to enforce their claims 
 against the property of their debtors, the overlord was de- 
 prived of his right of escheat, wives were deprived of dower, 
 and the king of his right of forfeiture. The Statute of Uses, 
 enacted during the 27th year of the reign of Henry VTTT, 
 had for its object the wiping out of equitable estates in all 
 cases where no active duty was imposed upon the trustee, 
 
 18. Digby, id. 337, 338. 19. Id. 
 
368 Equitable Estates ; Uses akd Teusts. 
 
 by declaring that the legal and beneficial ownersMp should 
 be united in the owner of the use. The statute provided 
 that thereafter all uses then existing should be changed into 
 legal estates, and that on the creation of any use thereafter 
 the legal title as well as the beneficial interest should vest 
 immediately in the beneficial owner, or cestui que use, the 
 trustee to uses taking nothing. Therefore on the enactment 
 of the statute, all existing uses were changed into legal 
 estates of the same duration and extent, and all uses there- 
 after created were operated upon by the statute and changed 
 at the moment of their creation into legal estates corres- 
 ponding in all respects as to duration, extent, conditions and 
 limitations with the equitable estate which would other- 
 wise have arisen.* 
 
 § 196. Effect of the Statute of Uses; Trusts.— It was 
 probably never the purpose of Parliament to do away with 
 equitable estates altogether, but only to destroy bare or 
 naked uses, where no active duty was imposed on the trus- 
 tee, and where he was to act as a mere conduit or reposi- 
 tory of the legal title. In any event the courts construed 
 the statute as not applying to trusts where an active duty 
 was imposed on the trustee, to manage and care for the 
 property and turn over the income to the beneficiary, to 
 sell .or mortgage the property for stated purposes, or the 
 like. In these cases there was a good reason in each case 
 for the existence of the trust, and the courts held that the 
 statute in on way affected them, they continuing as equit- 
 able estates, thereafter being called trusts.^ 
 
 The courts also held that the statute did not apply to 
 a use for a term of years where the land was given to a 
 trustee for a term of years only to hold for stated uses. 
 The statute related only to freehold estates to uses. There- 
 fore uses for a term of years were unaffected by the statute 
 
 I. St. 27 Henry Vm. c. 10; Digby, 9. Digby, id. 369, 370; 2 Bl. Cora, 
 
 id. 344-347. 336. 
 
Effect of the Statute of Uses; TEtrsTS. 369 
 
 and survived as trusts. It should be noted, however, that 
 this does not apply to a transfer in fee or for life to a trus- 
 tee to hold to the use, for instance, of A for ten years, and 
 then for the use of B for life, remainder for the use of C in 
 fee. In such case the statute operated, changing the term 
 of years as well as the life estate and the remainder into 
 legal estates in A, B and C respectively. The case referred 
 to is illustrated by a devise of land to X as trustee for 
 twenty years to hold to the use of A. Since X as trustee 
 took only a term of years, and since the statute referred 
 only to freehold estates transferred to a trustee to uses, it 
 followed that it in no way affected a term of years so trans- 
 ferred to a trustee. Therefore interests of this kind con- 
 tinued to exist as equitable estates, called trusts after the 
 statute.' 
 
 Finally, the courts decided that where land was conveyed 
 to A, to the use of B, to the use of C, the statute operated on 
 the first use in favor of B changing it into a legal estate in 
 B, who, however, held subject to the use in favor of C un- 
 affected by the statute. There seems to have been no rea- 
 son for this holding capable of intelligible expression to-day. 
 The result, however, was to leave unaffected by the statute 
 the second use in every case of a use upon a use, which 
 survived in each case as an estate in equity, called, as in 
 the other cases unaffected by the statute, a trust. There- 
 fore after the statute all that was required to create an 
 equitable estate in every way similar to uses before the 
 statute, was to introduce a third person as the first trustee, 
 the deed or will providing that he should hold to the use 
 of the person intended to be the real trustee, who in turn 
 should hold for the person designed as the real benefi- 
 ciary. Thus if it was desired to convey, or devise land to 
 A in trust for B, though no active duty of any sort was to 
 be imposed on the trustee, who was to be a mere repository 
 af the legal title, the very situation sought to be prevented 
 
 S. Digby, id. 370; 4 Kent Com. 290-313, 11 Trusts; 2 Bl. Com. 338. 
 24 
 
370 Equitable Estates ; Uses and Tettsts. 
 
 by the statute, all tliat was necessary was to convey or 
 devise to X to the use of A to the use of B. X would take 
 nothing since the statute operating on the use in A would at 
 once change it into a legal estate. But since the statute 
 could not operate on the second use, as the courts viewed 
 the matter, A held the legal title in trust for B, the so-called 
 trust estate being in every respect the same as a use before 
 the statute. After this doctrine had become established, 
 therefore, the statute no longer had any substantial effect 
 in preventing the creation of mere dry or naked equitable 
 estates, involving the mere holding of the legal title by the 
 trustee, without any active duty on his part. Thus it failed 
 completely to accomplish its chief purpose.* 
 
 In this way the modern law of trusts originated. As we 
 have seen trusts are made up of uses in which an active 
 duty was imposed upon the trustee, sometimes referred to 
 as trusts before the Statute of Uses, for a term of years only 
 as above explained, and of mere passive uses created in the 
 form of a use upon a use. These trusts are equitable estates 
 of exactly the same nature as uses before the statute, except 
 thfit by means of statutes and decisions the principal 
 grounds for objection to them which gave rise to the Statute 
 of Uses have been removed. Broadly speaking, the inci- 
 dents attaching to legal estates apply to trusts, the rule being 
 general that equity follows the law in applying legal inci- 
 dents to equitable estates. Estates for life, in tail and in 
 fee simple, future estates in remainder and future execu- 
 
 4. This doctrine was established by way based on the intention of the 
 
 Tyrrell's Case, Dyer's Reps., 155a, parties or on any rational rule of 
 
 printed in Digby, id. 375. See, also, ownership. Since the s end use was 
 
 preceding note. The courts held that left by the courts of law as an obli- 
 
 a use upon a use was void, the stat- gation in conscience only, unaffected 
 
 ute having operateu once on the first by the statute, a situation was pre- 
 
 use, converting it into a legal estate, sented which required the affirmative 
 
 was exhausted, and could not again action of the Chancellor, exactly as 
 
 operate on the second use, this arising in the case of uses created before the 
 
 out of some mysterious and unintel- statute, 
 ligible quality in the use itself, in no 
 
Effect op the Statute of Uses; Trusts. 371 
 
 tory interests may be created as trusts subject to tbe same 
 rules that govern legal estates. They may be taken to 
 pay the debts of the owner, and are subject to the incidents 
 of escheat, curtesy, and more recently by statute in Eng- 
 land and by statute and decision in the United States to 
 dower.^ 
 
 Though the Statute of Uses failed to accomplish its main 
 purpose, as recited in its preamble, it had an effect upon 
 the law of conveyancing that was revolutionary. We have 
 seen that before the statute a future executory estate to 
 spring up in the grantee on a future day, or on the happening 
 of a contingency in the future, could be created as a use in 
 equ,ity, and that a fee upon a fee, or a fee limited after a 
 life estate on a contingency in derogation or destruction of 
 the prior life estate could also be created in equity as a 
 shifting use.^ The statute did not prevent or limit in any 
 way the creating of uses. It merely provided that such 
 uses, at the moment of their creation, should be changed 
 into legal estates. Thus after the statute, an estate to 
 arise on the death of the transferor, or on the marriage of 
 the transferee, or on the happening of any future event, 
 could be created as a use either by a conveyance to a trus- 
 tee to uses for the beneficiary on the happening of the con- 
 tingency, or by a covenant to stand seised or a bargain and 
 sale by virtue of which the covenantor or bargainor would 
 hold the legal title as trustee to uses for the beneficiary 
 on the happening of the contingency provided for. The 
 statute, operating instantly and automatically on the use, 
 
 5. Digby, id. 372, 373; see | 99, seised at all times, satisfying the 
 
 ante. As pointed out by Mr. Digby, legal requirement, and therefore re- 
 
 p. 373, note, the doctrine that seisin mainders or future executory estates 
 
 could never be put in abeyance by an in trust are valid though void at law. 
 
 executory future interest without a Under the modern statutes this differ, 
 
 precedent estate to support it, or by ence is also removed, since such es- 
 
 u contingent remainder limited after tates may now be created at law as 
 
 a terra of years, has no application to well as in equity. See Ch. XIII, post. 
 
 a trust estate because the trustee is 6. See S 19*, notes 7-11 inc., ante. 
 
372 Equitable Estates ; Uses and Tetists. 
 
 would convert it into a legal estate, making tke beneficiary 
 of the use the owner of a legal estate in the land, of exactly 
 the same duration and with the same qualities generally as 
 the equitable estate or use would have had before the 
 statute. In this way the beneficiary of the use would be- 
 come immediately the owner of a future contingent estate 
 at law, not created as a remainder, not dependent on the 
 termination of a precedent estate, which would spring up 
 in him in actual possession and enjoyment on the happen- 
 ing of the future contingency provided for. After the 
 Statute of Uses, the legal estate thus created was called a 
 (springing use.'' Such an estate was void at common law 
 before the statute, since it would put seisin in abeyance as 
 heretofore explained.* 
 
 A fee upon a fee, or a fee limited after a life estate in 
 derogation thereof, void at law, but valid by way of use in 
 equity as explained heretofore, could be created under the 
 Statute of Uses in exactly the same way as a shifting use. 
 Thus if land is conveyed to a trustee to uses for the benefit 
 of A and his heirs, but if A should die without issue sur- 
 viving then for the benefit of B and his heirs, the estate 
 created in B would be a valid future executory estate at law, 
 the use in his favor being executed and changed immed- 
 iately into a legal estate by operation of the statute.* 
 
 Uses created as remainders as in the case of a use created 
 as a contingent remainder limited after a term of years are 
 subject to rules differing radically from those applying to 
 shifting and springing uses. As we have seen, a contingent 
 use limited after a term of years was good in equity be- 
 fore the statute for the same reasons that rendered springing 
 uses valid, seisin not being in abeyance since the trustee 
 to uses was seised during the interval until the happening 
 
 7. Digby, id. 359, 360; 4 Kent 9. See § 194, ante; see preceding 
 Com. 390-312. note. 
 
 8. See § 194, ante. 
 
Efiteot of the Statute of Uses; Tetjsts. 373 
 
 of the contingency on which the remainder would become 
 vested.^" There is no reason why the statute shonld not 
 operate here as in the other cases so as to convert the use 
 into a legal estate, thus permitting the creating of a con- 
 tingent remainder on a term of years at law as well as in 
 equity. It was settled, however, in a line of cases, that 
 if the future estate was created in the form of a remainder 
 by deed under the Statute of Uses it must stand or fall as 
 such, and therefore if limited after a term of years it was 
 void because such a remainder was void at common law, the 
 courts entirely losing sight of the fact that such remainder 
 M^as valid as a use in equity before the statute, and should 
 therefore be regarded as a valid legal estate by virtue of 
 the operation of the statute." Under the modem statutes 
 permitting the creation of a contingent remainder after a 
 term of years at law, this distinction is no longer of any 
 importance.*^ 
 
 Thus we see that by virtue of the Statute of Uses it be- 
 came possible to create by deed as well as by will, at law as 
 well as in equity, the different future executory estates 
 which were void under the common law, the common law 
 permitting the creating of future estates only by way of 
 remainder to take effect on the expiration of prior estates 
 for life or for years. Furthermore the old cumbersome 
 methods of conveying land by feoffment with livery of 
 seisin, or by fine or common recovery were displaced by this 
 new and simple method, the deed of bargain and sale under 
 the statute operating to convey the title and seisin without 
 entry by the grantee, since title and seisin were automati- 
 cally transferred by operation of the statute from the gran- 
 tor to the grantee. Deeds of bargain and sale were gen- 
 erally used in creating and transferring estates under the 
 statute, the recital of the bargain and sale, supported by a 
 consideration of value, recited ia the deed, operating to 
 
 10. See § 1S4, ante. 18. See Ch. XIII, post. 
 
 11. Uigby, id. 361, 363. 
 
374 Equitable Estates ; Uses and Tkusts. 
 
 create a use in the bargainee, the bargainor holding the legal 
 title for his benefit, and the statute immediately operating 
 upon this use so as to convert it into a legal estate, the 
 result being that the legal title held by the bargainor to 
 the use of the bargainee for a moment, passed by operation 
 of the statute to the bargainee or grantee. This deed in- 
 volved no transmutation of possession to a third person as 
 trustee to uses, and was the most convenient form of con- 
 veyance under the statute." Deeds of lease and release were 
 also used, as explained in a subsequent chapter on Deeda 
 and Conveyances. 
 
 C— Trusts, 
 
 § 197. Equitable Estates After the Statute of Uses. — ^In 
 
 the preceding section we have seen how the statute failed 
 in its purpose to do away with estates in equity by changing 
 equitable estates into estates at law in the person named 
 as beneficiary. By means of a use upon a use, after Tyrell's 
 case, an estate in equity could be created in any case and for 
 any purpose where a use could have been employed before 
 the statute. The term "trust?" was employed after the stat- 
 ute to designate all equitable estates thereafter created 
 while the term "use" was limited to estates at law created 
 by the statute through the changing of uses into legal es- 
 tates.^ 
 
 The statute, however, did have one important effect on 
 equitable estates — it caused courts of equity to apply to 
 these interests nearly all the incidents attaching to estates 
 at law, in this way removing the chief objections to estates 
 in equity, rendering further legislation in destruction of 
 these interests unnecessary. The doctrine that " equity 
 follows the law " in applying to trusts the incidents of legal 
 estates became well established. Thus trusts might be 
 
 13. See Ch. XIII, post, for a fuller veyances under the Statute of Useiu 
 
 treatment of the creation of future 1. See section preceding and au- 
 
 estates by way of shifting and spring- thorities cited, 
 ing use, and Ch. XXI, post, on con- 
 
Equitable Estates After the Statute of Uses. 375 
 
 created for a term of years, for life, in tail, or in fee, sub- 
 ject to the rules governing the creation of similar legal 
 estates, except that the technical rule of the common law 
 requiring the use of the word " heirs " in deeds creating 
 estates in fee was not followed, courts of equity construing 
 the instrument in accordance with the expressed intent of 
 the creator of the trust, whether the technical word "heirs'* 
 was used or not. Trust estates, like estates at law, could 
 be sold to pay the debts of their owners, through the proper 
 proceeding in equity. They were also subject to the same 
 laws of inheritance.^ The incident of curtesy attached to 
 trusts of inheritance, as to legal estates, except where it 
 was excluded by the express terms of the trust.' Equity 
 refused, however, to recognize dower as an incident of 
 trust estates, this being the one conspicuous exception to 
 the general rule that equity follows the law as above stated. 
 By modern statutes and decisions, however, this has been 
 corrected, so that the right of dower now exists in trust 
 estates of inheritance provided the husband die the owner 
 thereof, dower not attaching as an inchoate right during 
 the husband's life.* The right of escheat was also recog- 
 nized as applying to trusts.® 
 
 The purely technical rules governing the creation of fu- 
 ture estates at law before the statute, discussed in the 
 sections on uses immediately preceding, had no application 
 to trusts, because seisin was never in abeyance through the 
 creation of future estates as trusts unsupported by pre- 
 cedent particular estates, since the seisin was always in the 
 trustee in whom the legal title was vested. For this reason 
 a contingent remainder in trust limited after a term of 
 years was good, though bad at law, even under the Statute 
 
 S. Williams Real Prop. (17th ed.), 3. See preceding note, also § 139, 
 213, 314; Digby Hist. Law R. Prop, ante, in Chapter on Curtesy. 
 (5th ed.), 373, 373; 4 Kent Comm., 4. See note 3, supra, also § 99, ante, 
 290-313, II Trusts. ' in Chapter on Dower. 
 
 6. Note 2, supra. 
 
876 Equitable Estates ; Uses and Tbusts. 
 
 of Uses, as heretofore explained, and a contingent remainder 
 in trust was not defeated by the destruction or termina- 
 tion of a prior life estate.' A fee upon a fee by way of 
 trust was valid for the same reason that a use upon a use 
 was valid before the statute. In each of these cases the 
 estate involved could be created at law by deed under the 
 Statute of Uses, except in the one case of a contingent re- 
 mainder after a term of years.'^ 
 
 Trusts have gradually developed in equity into a great 
 system of estates. The law of trusts has grown into a 
 separate and distinct branch of the law, applying to per- 
 sonal as well as to real property, a detailed treatment of 
 which is manifestly outside the scope of this work. The 
 application of the rules of the law of property to trusts is 
 treated in connection with the treatment of the different 
 topics in this treatise. A brief summary of the character- 
 istics of the different kinds of trusts in land, and of the 
 more important incidents attaching to them, follows. 
 
 § 198. Express Trusts. — Trusts created by act of the 
 parties with the expressed intent of creating a trust, are 
 express. Though the language used be uncertain or indef- 
 inite nevertheless the trust is express if the courts construe 
 the language as expressing an actual intent to create a trust. 
 Implied or resulting trusts are those which courts of equity 
 imply from the facts of the case, where no intention to 
 create a trust has been expressed, but where justice re- 
 quires that equity declare a trust to exist so that the rights 
 of the parties iuvolved may be worked out accordingly.* 
 
 Express trusts are either active or passive. An active 
 express trust calls for the performance of some active duty 
 on the part of the trustee, such as to manage the trust prop- 
 erty, and to turn over the income to the cestui que trust, or 
 to mortgage, sell or lease the property and apply the pro- 
 
 e. Abbiss V. Burney, 17 Ch. Div. 1. Bispham's Equity, § 78. See I 
 811. 201, post. 
 
 7. See § 194, ante. 
 
ExPEEss Teusts. 877 
 
 ceeds to some stated purpose, to accumulate the income 
 from the property involved for the benefit of minors, and 
 the like. A passive trust exists in any case where no active 
 duty is imposed on the trustee, but where he merely holds 
 the legal title, permitting the beneficiary to possess and en- 
 joy the land, collect the rents and profits, and enjoy all the 
 usual incidents of ownership. The trustee of a passive 
 trust must convey to the beneficiary or to another at the 
 beneficiary's direction. He is a mere receptacle of the legal 
 title. These trusts correspond to uses before the Statute 
 of Uses in which no active duty was imposed on the trustee. 
 After the statute they had to be created in the form of a 
 use upon a use as explained in the preceding section. In 
 many of the states statutes have been enacted which pro- 
 vide that trusts of this kind are void as such, but that the 
 legal title shall vest in the person named as cestui gtte 
 trust, exactly as though the land had been conveyed by 
 the ordinary deed directly to the cestui." These statutes 
 in effect abrogate the rule in Tyrrell's case, that a use upon 
 a use survives as a trust, the second use, or trust, being 
 changed into a legal estate by virtue of the modern statute 
 exactly as the first use was so changed by the Statute of 
 Uses. It may be regarded as the rule generally prevail- 
 ing in the United States that merely passive trusts are void 
 as trusts, the legal title passing to the person named as 
 beneficiary.* 
 
 2. N. Y. Real Prop. L., §§ 92, 93; See Price v. Sisson, 13 N. J. Eq. 168, 
 Ind Rev. St. Ch. 28; 1 Stim. Am. St. 173, in wliieh case the court recognizes 
 L. §§ 1701, 1703; Wendt v. Walsh, a use upon a use as the usual form 
 164 N. Y. 154; 3 Pom. Eq. Jur. §§ in which a trust is created. The 
 1003, 1004; Chaplin Exp. Trusts, § court, however, recognizes the rule 
 518. that where no active duty is imposed 
 
 3. Greenl. Cruise Dig. tit. XIT, c. 1, upon the trustee, who is simply to 
 § 4, note; 1 Reeves Real Prop. 461. permit the cestui to receive the rents 
 
 In a few states the rule of Tyrrell's and profits, no trust arises, the stat- 
 
 Case is recognized as law, a passive ute executing the use so as to vest th« 
 
 trust ariBing in the case of a use upon legal title in the cestui. 
 a use. Quest v. Farley, 19 Mo. 147. 
 
S78 Equitable Estates; Uses aot) Teusts. 
 
 In New York and several other states when an active 
 trust becomes passive, the trustee having performed all 
 the duties imposed by the trust, and having become the 
 mere receptacle of the bare legal title, the trust as such 
 immediately comes to an end, the legal title at once vest- 
 ing in the beneficiary.* The rule generally prevailing in 
 England and the United States, however, is that the trust 
 will not cease and the legal title will not pass to the bene- 
 ficiaries in a case where a final conveyance by the trustee 
 is directed by the terms of the trust, though all active duties 
 imposed on the trustee by the trust have been fully dis- 
 charged and are at an end. Thus where land is given to A 
 as trustee to apply the income to the education and support 
 of the testator's children until the youngest attain the age 
 of 21 years, and thereupon the trustee shall convey the 
 land to such children, the trust does not cease nor does the 
 legal title vest in the children, until such conveyance is 
 made," though in New York, and the few other states above 
 referred to, the trust on becoming passive would immedi- 
 ately cease, the legal title vesting in the children without 
 conveyance to them. If, however, in the above case the 
 testator had made no provision for a conveyance by the 
 trustee to the children, it is generally held that the trust 
 ceases, its purposes having been performed, the legal title 
 vesting in the children at the moment the youngest attained 
 the age of 21.^ 
 
 A tmst created for the purpose of charity is a form of 
 express trust requiring special consideration. A charity 
 
 4. N. Y. Real Prop. L., §§ 93, 93; joyed the property for several yearg, 
 S Mich. Comp. L. (1857), p. 824; Hop- a presumption arises that the trustee 
 kins V. Kent, 145 N. Y. 363. has conveyed as directed by the trust. 
 
 5. England v. Slade, 4 T. E. 682; Jackson v. Moore, 13 Johns. (N. Y.) 
 Obert V. Bodine, 30 N. J. L. 394; 1 513 (decided before the enactment o£ 
 Reeves Real Prop., 462. the statute above referred to) ; Eng- 
 
 Where, after the time when the land v. Slade, 4 T. R. 682. 
 conveyance should have been made, 6. 1 Perry on Trusts, ch. 17. 
 the beneficiary has occupied and en- 
 
ExpKEsa Teusts. 379 
 
 is a gift to be applied to tlie benefit of an indefinite number 
 of unascertained persons, either by bringing to them tbe 
 influences of religion or education, or by relieving tbem 
 from disease or physical suffering, or by assisting them to 
 establish themselves in life, or by erecting or maintaining 
 public buildings or works, or otherwise lessening the bur- 
 dens of government.'' A gift to be a charity, therefore, 
 must have for its object some public benevolence, which 
 will generally be either religious, educational, eleemosynary 
 or governmental; it must be given for the benefit of an indef- 
 inite class of persons, for the public, or some portion of the 
 general public, not limited to the benefit of any definite in- 
 dividuals, or class of individuals. In other words it must 
 be a public as distinguished from a private benefaction. A 
 gift for any general charitable or benevolent purpose which 
 is public and not private is a charity in the legal sense.* The 
 indefiniteness of the beneficiaries, and the charitable or 
 benevolent purpose are the distinguishing characteristics 
 of a charitable trust. Thus a trust to establish and maintain 
 a school for the benefit of persons named and of their families 
 is not a charity because private; if given to maintain a 
 school for the benefit of all persons who may be admitted to 
 the school it is a charity because for the benefit of an indef- 
 inite and unascertained part of the general public. For 
 the same reason a fund raised by an association by collect- 
 ing dues from its members to be used for their mutual bene- 
 fit in case of illness, death or disability of any member is 
 not a charity, though the members of the association may 
 constitute a considerable percentage of the public, since the 
 benefits are limited to definitely ascertained individuals.® 
 
 Laws governing the enforcement of charitable trusts, 
 the removal and appointment of trustees, questions arising 
 
 7. Jackson v. Phillips, 96 Mass. 539, Alcock, 108 N. Y. 312; BuUard v. 
 656; Meighan v. Stevens, 203 N. Y. Chandler, 149 Mass. 532. 
 
 380. 9. Coe v. Washington Mills, 149 
 
 8. Perry on Trusts, § 710 ; Russel Mass. 543 ; Perry on Trusts, § 732. 
 T. Allen, 107 U. S. 163; Holland v. 
 
380 
 
 Equitable Estates; Uses and Teusts. 
 
 with reference to tlie indefiniteness or uncertainty of the 
 class of persons or charitable institution to be benefited, 
 and the like, belong to the subject of trusts, and cannot be 
 adequately treated in a general treatise of this character. 
 That charities are not subject to the rule against perpetui- 
 ties wiU appear in a subsequent chapter dealing with that 
 topic." 
 
 10. S«e Ch. XIV, post. 
 
 In Kew York charitable trusts are 
 one of the five classes of express 
 trusts permitted by the statutes of 
 that state. See § 113 of the K. Y. 
 Real Property Law. For the com- 
 plete act regulating charitable trusts 
 of both real and personal property. 
 See laws of 1901, ch. S91, amending 
 laws of 1893, ch. 701. 
 
 Before the enactment of this stat- 
 ute it had been finally decided that 
 the English system of charitable 
 trusts did not exist in New York. A 
 gift to a charity in New York, to be 
 valid in perpetuity, involred a gift to 
 a corporation organized for the pur- 
 poses of charity, the charitable cor- 
 poration taking outright, subject to 
 its duty to the state as a quasi-pub- 
 lic corporation to use the gift for the 
 charitable purposes for which it was 
 intended. No charitable trust at all 
 arose in such case. Therefore a gift 
 for the purposes of charity failed if 
 not given to some corporation or- 
 ganized, or to be organized in the 
 future within two lives, for some 
 charitable purpose or purposes. Til- 
 den V. Green, 130 N. Y. 89; Bird v. 
 Merklee, 144 N. Y. 544; Matter of 
 IngersoH, 131 N. Y. 573. The Tilden 
 trust failed because after providing 
 for the incorporation of a corpora- 
 tion to be kno^^•n as the Tilden Trust 
 within the lives of two persons in be- 
 
 ing, to which the gift of $3,000,000- 
 was then to be transferred by Mr. Til- 
 den's executors for the purpose of a 
 public library in New York City, he 
 provided that the executors might, in 
 their discretion, use any part or all 
 of the gift for such other charitable 
 purposes as would be, in their judg- 
 ment, " most widely beneficial to the 
 interests of mankind." The court 
 construed this as authorizing the ex- 
 ecutors to apply the gift to any char- 
 ity, which might or might not be the 
 corporation so provided for. As a 
 trust it failed, since not permitted by 
 the statutes, and as a power in trust 
 because of the indefiniteness of the 
 beneficiaries. The statute above re- 
 ferred to (L. of 1893, ch. 701, as- 
 amended by L. of 1901, ch. 291), 
 changed the law in New York by re- 
 storing charitable trusts as they ex- 
 ist in England and the difi'erent 
 states, and providing further that no 
 such trust shall be demed invalid by 
 reason of the indefiniteness or uncer- 
 tainty of the beneficiaries. Therefore 
 the general rules stated in the text 
 as governing charitable trusts apply 
 to such trusts in New York, and 
 while under the law generally prevail- 
 ing a charitable trust will fail when 
 the class of persons who are to be 
 the beneficiaries are not designated 
 in any way, and no trustee is ap- 
 pointed having the power to deaig- 
 
Cebation of ExpitEss Teusts. 381 
 
 § 199. Creation of Express Trusts. — Before the Statute 
 ■of Frauds trusts could be created by parol, without special 
 formality of any kind, except, perhaps, that trusts in those 
 interests which required deeds of grant for their creation 
 and transfer, could be created only by similar grants.^ The 
 seventh section of the statute provided that "all declarations 
 or creations of tmsts, or confidences of any lands, tene- 
 ments or hereditaments, shall be manifested and proved by 
 some writing " signed by the person creating the trust, or 
 by his will, otherwise they' were void. All implied trusts 
 were expressly excepted by the eighth section of the statute. 
 The ninth section provided that grants or assignments of 
 trust estates must bo in writing, signed by the grantor or 
 assignor.^ The statute does not apply to trusts in personal 
 property, though trusts for a term of years in land are in- 
 cluded within its terms.^ The English statute has been 
 generally followed in the United States.* The statute does 
 not require that the trust be created by a writing — it need 
 only be manifested and proved by a writing made some time 
 after the trust has been created. This writing need not be in 
 the formal shape of a deed in trust, but may take any form 
 such as letters, loose memoranda or the like, signed by 
 
 nate such class, in New York tlie converted the land to personalty, the 
 
 courts will appoint such a trustee trust then being a trust in personal 
 
 whose duty it will be, subject to the property unaffected by the Statute, 
 
 supervision of the court, to decide to Bork v. Martin 133 N. Y. 880; In re 
 
 what specific charitable purposes and Simond's Est., 801 Pa. St. 413, 417. 
 
 institutions the gift shall be applied. 4. N. Y. Eeal Prop. Law § 843; 
 
 See Reeves Real Prop., § 337; Meighan Ind. Rev. Stat. (1881) § 2969; 1 
 
 T. Stevens, 303 N. Y. 380. Ames Caa. Trusts, 176; 1 Stim. Am. 
 
 1. 2 Sand Uses & Trusts, 1-8; 1 St. L. S 1710; Blodgett v. Hildreth, 
 Perry, Trusts, § 75. 103 Mass. 484, 486; (writing insuffi- 
 
 2. 39 Car. II Ch. 3, §§ 7, 8 and 9. cient, failing to identify property and 
 
 3. Matter of Carpenter, 131 N. Y. to state terms of trust) ; Eegole v. 
 86; Hirsh v. Auer, 146 N. Y. 13, 19; Hazzard, 81 Wis. 274 (parol trust 
 1 Perry, Trusts, § 86. voidable only at election of trustee) ; 
 
 A parol trust of realty though void Hirrie v. Ingraham, 125 111. 198; 
 as such, will be enforceable if the Perry, Trusts, § 75. 
 trustees, pursuant to the trust, have 
 
382 Equitable Estates ; Uses aud Teusts. 
 
 the person who created the trust, provided it contain a suf- 
 ficient statement of the terms of the trust, a description of 
 the property affected, and a statement of the beneficiaries 
 and of their respective interests." The assignment of a trust 
 is governed by the same rules, a parol assignment being 
 good if followed by a sufficient writing as evidence thereof.* 
 
 Technical words are not required in creating an express 
 trust. If the intention to create a trust is clearly expressed, 
 the subject matter of the trust clearly indicated, and the 
 beneficiary of the trust named with certainty, a trust arises 
 whatever form the instrument may take and whether ex- 
 press words of trust are used or not. The legal title may 
 be conveyed by one instrument and the declaration of trust 
 which must be executed and delivered at the same time,'' 
 may be in an entirely different instrument.* The declara- 
 tion of trust may be contained in several distinct papers, 
 provided they refer to one another so that they may be 
 construed together.® 
 
 The more usual express trust is created by a conveyance 
 or devise of the legal title to a third party as trustee for 
 purposes expressed in the deed or will. No consideration is 
 required, equity recognizing and enforcing the trust be- 
 cause the legal title has been transferred to the trustee for 
 the purposes of the trust." But in a case where, instead 
 of a completed transfer of the legal title there is only a 
 promise to transfer the property to a trustee to hold in trust 
 for another, equity will not enforce the promise if there be 
 
 6. 1 Ames Cas. Trusts 178; Finley 7. 1 Perry, Trusts § 77. 
 
 T. laett, 154 U. S. 561; Hutchins v. g. Wood v. Cox, 2 Myl. & Cr. 684. 
 
 Van Vechten, 140 N. Y. 115; Urann g jj^^^n-j,^ ^ ^tj^j^ ,,, jj „ 
 
 V. Coates, 109 Mass. 581; Leslie v. -,„■,,., , ^ , ,_, U „. 
 
 T V ., XT T Ti- 0,1= -Kt T7 313; MoAuley's Est. 184 Pa. St. 124; 
 
 Leslie, 53 N. J. Eq. 275; McVay v. ■^. , „ ., ^,, 
 
 ■K/r tT tn-KT r ■<:• A„ r> X. ^ A Kingsbury V. Burnside, 58 IlL 310; 
 
 McVay, 43 N. J. Eq. 47 ; Roberts App., „ ox ,«» ^, „. 
 
 oo T> ot .rnir TT- V Tj Urann v. Coates, 109 Mass. 581; 
 
 92 Pa. St. 407; Kingsbury v. Burn- „ ^ ^v ^ - ^ . 
 
 •J Ko Tu o,n T> T i <. o» Gamsey t. Gothard, 90 Cal. 603. 
 Bide, 58 111. 310; Perry Trusts S§ 83, 
 
 84^ 85. ^°- P«"7' Trusts, §§ 96-M; 1 Ames 
 
 1 Wright V. Wright, 1 Ves. Sr. ^"■*- trusts, 125. 
 '■" ; 1 Spence Eq. Jur. 506. 
 
Ceeation of Expeess Teusts. 883 
 
 no consideration to support it. Therefore a mere voluntary 
 agreement to transfer or devise property in trust is void. 
 But in any case wliere the promise is supported by a valid 
 consideration, as where the owner has promised to convey 
 land in trust for another in consideration of the payment 
 or the return of something of value, or of the promise 
 thereof, or in consideration of a marriage to be consum- 
 mated, or the like, equity will enforce the executory promise, 
 declaring and enforcing the trust in favor of the benefici- 
 ary.^* The rule is the same whether the instrument con- 
 taining the promise is under seal or not." Consideration 
 of blood or marriage is not enough to cause equity to en- 
 force an executory agreement of this kind.^^ In a few states, 
 however, the view is taken that such an agreement in favor 
 of a wife or child will be enforced by equity, though entirely 
 without consideration other than the relationship existing." 
 Trusts are also frequently created by a declaration of 
 trust on the part of the owner in favor of another, without 
 any conveyance to a third person as trustee, the owner be- 
 coming trustee for the beneficiary by virtue of his declara- 
 tion of trust. Here, also, the transaction is completed, not 
 executory, and no consideration is necessary.*" In case of 
 a mere executory promise to become trustee for the bene- 
 ficiary at some future date a consideration is necessary, as 
 in the case of a promise to convey to a third party as trus- 
 
 11. 1 Ames Cas. Trusts, 125; Mer- interfere in favor of mere volunteers, 
 rill V. Peaslee, 14.6 Mass. 460; Young virhether it be upon a voluntary con- 
 V. Young, 80 N. Y. 422; Padfield v. tract or a settlement, however meri- 
 Padfield, 68 111. 210; 72 HI. 322; 1 torious may be the consideration, and 
 Perry Trusts, § 95, et seq.; S Pom. Eq. although they stand in the relation 
 Jur. §5 996-999. of a wife or child." To the same 
 
 12. Hall V. Lamb, 2 Eden 292, 294; effect, CampbeH's Est., 7 Pa. St. 100. 
 Dennig v. Ware, 22 Beav. 184. See 14. Landon v. Hutton, 50 N. J. Eq. 
 1 Perry, Trusts, § 111. SOO; Leper v. Taylor, 111 Mo. 312. 
 
 13. Matter of James, 146 N. Y. 78, 15. Onlbertson v. Witbecfc, 127 U. 
 the court saying (p. 93): "The gen- S. 326; James v. Palk, 50 N. J. Eq. 
 •ral principle ia established that in 468; Lewin, Trusts (9th od.), M{ 
 no case whatever will courts of equity Perry, Trusts, § 38. 
 
384 Equitable Estates; Uses akd Teusts. 
 
 tee, and what was said above in that connection applies 
 equally to this situation. The prevailing view is that an 
 executed declaration of trust must be delivered to the bene- 
 ficiary or to a third person for him before it becomes bind- 
 ing." There is, however, considerable authority to the 
 effect that the declaration of trust need not be delivered, 
 it appearing that it was executed with the intention of 
 making it immediately operative without delivery.*^ 
 
 If the deed or wUl contains words of prayer, request, hope, 
 expectation or desire that the devisee or grantee use the 
 property for certain stated purposes, the modem rule is 
 that such words convey a mere request, and not an obliga- 
 tion of any sort cither at law or in equity. Therefore in 
 the usual case no trust arises from the use of such expres- 
 sions.** But in any particular case, if it appears from all 
 the circumstances that the words were used in the sense 
 of a direction or command expressed in the form of a re- 
 quest or prayer, they will be so construed, and equity will 
 recognize and enforce the trust thus created.** 
 
 § 200. Statutory Changes Affecting Express Trusts. — In 
 the preceding section it is explained how passive or inactive 
 trusts are void as such and take effect as actual conveyances 
 or devises of the legal title to the person named as bene- 
 ficiary of the attempted trust, either by express statutory 
 
 16. Wadd V. Hazelton, 137 N. Y. et seq.; ffill v. Hill, 1 Q. B. 483; Ctol- 
 315; Govin v. De Miranda, 76 Hun ton v. Colton, 127 U. S. 300; Collister 
 N. Y. 414. See Tarbox v. Grant, 56 v. Fassitt, 163 N. Y. 281; Clay v. 
 N. J. Eq. 199, holding that a deed dla- Wood, 153 N. Y. 134; Murphy's Est., 
 posing of a trust estate as a family 184 Pa. St. 310, 314; Dexter v. Evans, 
 settlement -was good without actual 63 Conn. 68; Eberhardt v. Porolin, 49 
 delivery. N. J. Eq. 670; Aldrich t. Aldrich, 178 
 
 17. davering v. Clavering, 2 Vem. Mass. 101. 
 
 473; Smith's Estate, 144 Pa. St. 428. 19. Ames Gas. Trusts, 78; 1 PWry, 
 
 See Chaplin on Express Trusts and Trusts, 112-116; In re Adams and 
 
 Powers, § 78. Kensington Vestry, L. R. 27 Ch. Mt. 
 
 18. Ames Cas. Trusts, 85-106; 2 394, and cases in preceding note. 
 White & T. Lead. Cas. Eq., 1859, 
 
Statutoey Changes Atfboting Expeess Teusts. 385 
 
 provision or by decision in most of the states, while in New 
 York and several other states such a trust is impossible, 
 since an active trust ceases as soon as it ceases to be active, 
 the legal title vesting at once in the ultimate beneficiaries 
 without a conveyance to them from the trustee. In Eng- 
 land and most of the States express active trusts may be 
 created for any purpose not contrary to public policy, pro- 
 vided the trust does not violate the rule against perpetui- 
 ties. In New York, however, express trusts can be created 
 for only five purposes, as provided by statute.* 
 
 1. Sec. 96 of the N. Y. Real Prop- 
 erty Law permits the creation of 
 trusts for the following purposes, all 
 others, except charitahle trusts being 
 prohibited. (1) To sell real property 
 for the benefit of creditors. Assign- 
 ments by insolvents to a trustee for 
 the benefit of creditors are the usual 
 cases of trusts under this division. 
 See N. Y. Gen. Assignment Act, Laws 
 of 1877, ch. 466. (2) To sell mort- 
 gages or lease real property for the 
 benefit of annuitants or other lega- 
 tees, or for the purpose of satisfying 
 any charge thereon (3) to receive the 
 rents and profits of real property and 
 apply them to the use of any person, 
 during the life of that person, or for 
 any shorter term, subject to the pro- 
 visions of law relating thereto. 
 
 These are the usual active trusts to 
 control and manage the property and 
 to turn over the income. They are 
 limited in New York to the life of 
 the beneficiary. They may be created 
 for the benefit of two or more per- 
 sons, but the trust must come to an 
 end at the expiration of the lives of 
 two designated persons in being at 
 the time the trust is created, since 
 these trusts suspend the absolute 
 power of alienation, and the statute 
 
 25 
 
 in New York permits such suspen- 
 sion for two lives only. See Ch. XVI, 
 post, i 103, of the N. y. Keal Prop- 
 erty Law provides that the benefici- 
 ary of this form of trust cannot 
 transfer his interest under the trust, 
 hence the absolute power of aliena- 
 tion is suspended since the property 
 affected can be conveyed only subject 
 to the trust, though the beneficiary 
 join in the conveyance vsrith all others 
 interested. By § 98 of the same stat- 
 ute creditors of the beneficiary of a 
 trust of this kind may in equity nach 
 only so much of the rents and profits 
 as are not required for the education 
 and support of the beneficiary. Thia 
 provision also applies to trusts to ac- 
 cumulate, or the fourth class of ex- 
 press trusts provided for by § 96. 
 Thus spendthrift trusts, to this ex- 
 tent, are expressly authorized. It is 
 obvious that this rule does not apply 
 to a trust created for the benefit of 
 the man creating it, directing that the 
 Income be paid to him during his life. 
 The entire interest of such a bene- 
 ficiary may be reached by hia cred- 
 itors, a Rev. St. 13S PL; Young v. 
 Heermans, 66 N. Y. 374; Schenck v. 
 Barnes, 166 N. Y. 316. See Fowler's 
 Real Prop. Law (3d ed.), 479. Similar 
 
386 Equitable Estates ; Uses aito Teusts. 
 
 An attempted trust created for any other lawful purpose 
 is void as a trust, and no title vests in tlie trustee, but if it 
 is an attempted trust to mortgage or to sell real property, 
 or to accomplisli any other lawful purpose not included 
 within the five express trusts which are permitted by the 
 statute, it will be valid as a power in trust, if it is of such 
 character that it can be given effect and enforced as a 
 power. The legal title passes to the heir or residuary de- 
 visee of the testator, or to those who would take if no trust 
 had been attempted, subject, however, to the power, which 
 exists in the person named as trustee and which he 
 must exercise for their benefit in accordance with the 
 terms of the void trust, which is thus actually enforced 
 and given effect as a power, the beneficiaries receiving the 
 practical benefits of the provision as effectually and com- 
 pletely as though the trust were valid. The legal title, how- 
 ever, does not pass to the so-called trustee, but remains ia 
 those who would be the owners of the property had no trust 
 been attempted to be created, subject to the power in 
 trust as above explained.^ A few other states have similar 
 
 statutes have been enacted in other the beneficiaries or any of them are 
 
 states. N. J. Gen. Stat., p. 1424, not in being, it must be limited to be- 
 
 § 43 (all incomes over $4,000 may be gin within the period of two lives in 
 
 reached by creditors of the cestui) ; being. Hascall v. King, 162 N. Y. 
 
 Linn v. Davis, 58 N. J. L. 29; Spring 134; Smith v. Parsons, 146 N. Y. 116, 
 
 V. Randall, 107 Mich. 103. (4) 120; Cook v. Lowry, 95 N. Y. 103. 
 
 To receive the rents and profits (5) In addition to these four classes 
 
 of real property and to accumulate of express trusts, trusts for "relig- 
 
 the same for the purposes, and within lous, educational, charitable or benevo- 
 
 the limits, prescribed by law. By § lent uses " are now expressly provided 
 
 61, accumulations are valid only dur- for by § 113 of the N. Y. Real Prop- 
 
 ing the minority of each of the bene- erty Law. Charitable trusts in New 
 
 ficiarles, each beneficiary receiving the York are briefly discussed in Election 
 
 accumulated incomes upon his attain- 198 preceding, note 10. 
 
 Ing the age of 21, any direction for a 2. N. Y. Real Prop. L., §§ 97, 99; 
 
 further accumulation being void as to Lent v. Howard, 89 N. Y. 169 ; Towns- 
 
 the excess, the accumulation being hend v. Frommer, 125 N. Y. 446, 459: 
 
 good up to the time each beneficiary Coann v. Culver, 188 N. Y. 9; Van 
 
 attains that age. The accumulation Norden Trust Co. v. O'Donohuc, 122 
 
 must begin during minority and, if App. Div. (N. Y.) 51. 
 
Implied Tbusts; Eesultiitg and Constkuctivb. 38Y 
 
 statutory provisions.' These statutes, in so far as they 
 limit the purposes for which trusts may be created, do not 
 apply to trusts in personal property, such trusts being per- 
 mitted as before for any lawful purpose, provided the rule 
 against perpetuities is, not violated.* 
 
 § 201. Implied Trusts; Resulting and Constructive. — 
 
 Trusts which are implied by equity in order that justice 
 may be done between the parties, there being no expressed 
 intent to create a trust, are called implied trusts. They 
 are generally divided for the purposes of discussion into 
 resulting and constructive trusts, those implied by equity 
 because the parties may fairly be presumed to have intended 
 the trust, though they have failed to express it in any form, 
 being generally classed as resulting trusts, while those 
 arising without attendant circumstances from which such 
 intent may be presumed, but implied by equity in order that 
 justice may be done between the parties are called con- 
 structive. All these trusts depend on the same funda- 
 mental principles, and this classification is of value only 
 for purposes of discussion, and is not always recognized by 
 the courts. The equitable rights and liabilities of the 
 parties do not in any way depend on this classification, the 
 existence of the trust depending on the facts of each case 
 — whether those facts present a case for the interposition 
 of a court of equity in order that adequate relief may be 
 given and justice done, the trust in both classes of cases 
 being created by the court and not by the parties.* 
 The most important case of a resulting trust arises where 
 
 3. See similar statutes in Michigan It should be remembered that the 
 and Wisconsin. Statute of Frauds, and equivalent 
 
 4. Cochrane v. Schell, 140 N. Y. statutes in the different states, ex- 
 616, 534; Russell v. Hilton, 80 App. pressly except trusts implied by law 
 Div. (N. Y.) 178, 187. from their operation, so that no writ- 
 
 1. 1 Perry, Trusts, §§ 85, 86, 124, Ing is necessary In the creating of the 
 166. See cases in notes under this trusts now under consideration. 
 and the following sections. 
 
388 Equitable Estates; Uses and Teusts. 
 
 the legal title is taken by one man while the consideration 
 is paid by another. At law the man who paid the purchase 
 price would have no interest in the land. In equity, how- 
 ever, he is regarded as the owner, the presumption being 
 that no gift was intended, and justice requiring that he 
 who paid for the land should have the beneficial ownership. 
 Therefore equity accomplishes the result which justice re- 
 quires by implying a trust, the taker of the legal title hold- 
 ing as trustee for the benefit of the man who paid for the 
 property." 
 
 No such trust will be implied, since obviously justice 
 would not require it, in any case where it appears that the 
 parties intended a result inconsistent with a trust. There- 
 fore if a gift of the purchase money or a loan thereof was 
 intended, or where an express trust with different terms is 
 expressed in writing, no trust will be implied.* For the 
 same reason, if the person supplying the purchase money 
 is the husband or father of the one taking title no trust is 
 implied, since the obligation to support or care for the wife 
 or child in such case may be taken as the reasonable pur- 
 pose of the purchase, and justice does not require the inter- 
 ference of equity.* If it appears, however, by affirmative 
 evidence, that a gift was not intended, but the purchase was 
 in fact for the benefit of the husband or father, a trust will 
 
 2. 1 Perry, Trusts, § 126; 1 White Beealey, 159 HI. 120, 125; Bayles v. 
 & T. Lead. Cas. Eq. 314, and notes; Baxter, 32 Cal. 575; 1 Perry, Trusts, 
 Dyer v. Dyer, 3 Cox 93; Boyd v. Mc- §§ 133, 139, 140. 
 
 Lean, 1 Johns. Ch. (N. Y.) 582; Mc- 4. 1 Perry, Trusts, § 143; Dyer v. 
 
 Gowan v. McGowan, 14 Gray (Mass.) Dyer, 2 Cox 93; Goelz v. Goelz, 157 
 
 119; Bermger v. Lutz, 183 Pa. St. 111. 33; Kem v. Howell, ISO Pa. St. 
 
 364; Jacksonville Nat. Bank v. Bees- 315; Bowser v. Bowser, 82 Pa. St. 
 
 ley, 159 111. 130; Champlin v. Champ- 67; Hallenback v. Rogers, 57 N. J. Eq. 
 
 lin, 136 111. 309 (semhie). 199. 
 
 3. Walsh V. McBride, 72 Md. 45; As between brothers or other rola- 
 fitrimpfler v. Roberts, 18 Pa. St. 283; tives, there being no duty on the part 
 Wheeler v. Kirtland, 23 N. J. Eq. 13, of one to provide for the other, a 
 33; White v. Carpenter, 2 Paige (N. trust wiU be Implied. Edwards' v. 
 Y.) 817; Jacksonville Nat. Bank t. Edwards, 89 Pa. St. 369. 
 
Impujsd Teusts; Eesulting and Constsuctivb. 389 
 
 be implied," In case of a conveyance to a third party in 
 order to hinder, delay or defraud the creditors of the man 
 who paid for the property, though a trust may be implied 
 in favor of the creditors because of the fraud, equity will 
 refuse to imply and enforce a trust in favor of the fraudu- 
 lent debtor, since equity will refuse to act in favor of a 
 wrongdoer in order to save him from the legal effects of his 
 own wrongful act.® 
 
 In New York and many of the states this implied trust 
 has been modified by statute providing that in such case 
 no trust shall result except for the benefit of the creditors 
 of the man paying the purchase price to the extent of their 
 demands in case an intent to defraud them is not disproved, 
 and except that a trust will result as before in any case 
 where the legal title is taken by the third person without 
 the knowledge of the principal or in violation of some 
 trusts The courts, however, have construed this statute as 
 applying to cases where no additional facts appear other 
 than the bare purchase and payment of the consideration by 
 the principal and the taking of title by the third person. 
 If additional facts appear requiring relief in equity in order 
 that justice may be done a trust will be implied because of 
 such additional facts, the statute not applying. Thus where 
 real property is purchased with partnership funds for 
 partnership purposes, the legal title being taken in the name 
 of one partner only, or in the name of any stranger, a trust 
 is implied in favor of the firm, the statute not applying 
 because of the additional fact that the property was ac- 
 quired for the firm, to be held by the partner or stranger for 
 
 6. Smithsonian Inst. v. Meech, 169 Y.) 434; Baldwin v. Campfield, i 
 
 U. S. 398; Jackson v. Matsdorf, 11 Halst. (N. J.) 891; Cutler v. Tuttle, 
 
 Johns. (N. Y.) 91; Jaquith v. Mass. 19 N. J. Eq. 549, 563. 
 
 Baptist Conv., 173 Mass. 439; Per- 7. N. Y. Real Prop. Law, § 94; 1 
 
 kins V. Nichols, 11 Allen (Mass.) 543; Stim. Am. St. L., § 1706; Tiflfany v. 
 
 Corr's App., 68 Conn. 403, and cases Tiffany, 110 Mich. 219; Toney T. 
 
 in preceding note. Wondling, 138 Ind. 338; Haaven T. 
 
 8. Prosens v. Molntyrc, 5 Barb. (N. Hoaas, 60 Minn. 313. 
 
390 Equitable Estates; Uses and Trusts. 
 
 firm purposes.* On the same principle, in any case in which 
 the third party taking title does so under an express prom- 
 ise, in writing or by parol, to convey the property to the 
 principal who paid the purchase price, or at his direction, 
 equity will specifically enforce the contract to convey though 
 it be by parol, and therefore unenforceable at law under 
 the Staute of Frauds. Since the contract has been executed 
 on one side, the position of the principal has been changed 
 by his paying over the purchase money, and justice requires 
 that it be specifically carried out on the part of the third 
 party who has taken title.® In other words a trust is im- 
 plied from the agreement to convey not merely from the 
 payment of the consideration, and the statute in question 
 does not apply. Such an agreement may be, and generally 
 is, implied from the facts in the usual " dummy " trans- 
 action, so called in general practice, where title is taken in 
 the name of a third person who is neither wife or child of 
 the principal, and where the transaction is not in fraud of 
 his creditors.^" The statute, therefore, in actual practice, 
 has a very limited application. 
 
 A resulting trust also arises where property is given to a 
 trustee as such, but the intended express trust fails be- 
 cause not properly declared, or because its purpose is illegal 
 or in violation of some rule of law, or because the bene- 
 ficiary is not named or dies before the testator.^ ^ Such a 
 trust is also implied where, after the trust has been ad- 
 ministered by the trustee, part of the trust property re- 
 mains undisposed of, since not required for the purpose of 
 the trust, as where land is given to a trustee to pay debts, 
 
 8. Fairchild v. Fairchild, 64 N. Y. Perry, Trusts, §§ 150-160; 1 White 
 *'!'l' & T. Lead. Cas. Eq. 1171, notes; 
 
 9. McKinley v. Hessen, 303 N. Y. O'Connor v. Gifford, 117 N. Y. 275, 
 24; Smith v. Baleora, 24 App. Div. 281; Mosher v. Funk, 194 lU. 351; 
 437; Bobbins v. Eobbins, 89 N. Y. Nichols v. Allen, 130 Mass. 211; Roy 
 251; Wood V. Rabe, 96 N. Y. 414, 435. v. Munroe, 47 N. J. Eq. 356; Phillips 
 
 10. See preceding note. v. Ferguson, 83 ■"&. 509. 
 
 11. Hill on Trustees, 113. 114; 1 
 
Implied Teusts; Eesulting and Consteuctivb. 391 
 
 and only part of the proceeds from its sale are required for 
 that pnrpose.^^ In these cases equity implies a trust as re- 
 sulting in favor of the grantor or his heirs, or the heirs of 
 the testator or his residuary devisee, as the case may be, 
 it being apparent that no beneficial interest was given to the 
 trustee, justice therefore requiring that he should hold in 
 trust for the person or persons who would be entitled to the 
 property had no trust been created, in accordance with the 
 presumed intent of the creator of the trust. If any consid- 
 eration is paid or recited in the instrument conveying the 
 land no such trust results, since the intent to make the gran- 
 tee beneficial owner would be manifest.^ ^ The essential 
 feature is that the conveyance or devise be made to one who 
 is to hold in trust and not for his own benefit. 
 
 A conveyance to a third party without consideration 
 either paid or recited in the deed, or without a considera- 
 tion of blood, resulted in a use in favor of the grantor be- 
 fore the Statute of TJses.^* The effect of the statute on such 
 a use was to convert it into a legal estate, the feoffor re- 
 maining the owner, the attempted conveyance, therefore, 
 having no effect after the statute. Since the enactment of 
 the statute, though a trust would be implied in favor of the 
 grantor in such case according to the older cases, where a 
 common law conveyance was used, it is clear that no such 
 result could follow a conveyance by deed of bargain and 
 sale or other conveyance under the Statute of Uses, the use 
 in favor of the grantee being always expressly declared in 
 such conveyances.^* Under the modem cases no trust re- 
 sults from mere absence of consideration, the obvious in- 
 tent to make a gift, completed by the conveyance, being 
 recognized and given effect.^^ Additional affirmative evi- 
 ls. Morice v. Bishop of Durham, 9 Anderson v. Blood, 153 N. Y. 285. 
 Ves. 399, 10 Ves. 5S3; McElroy v. Mc- 14. See § 194, ante. 
 
 Elroy, 113 Mass. 509; Hopkins v. 15. 1 Perry, Trusts, § 162; Coffey 
 
 Grimshaw, 165 U. S. 343; Schles- v. Sullivan, 63 N. J. Eq. 29«. See 
 singer v. Mallard, 70 Cal. 336. oases in note following. 
 
 13. Brown T. Jones, 1 Atk. 188; 16. Goldsmith v. Goldsmith. 145 N. 
 
392 
 
 Equitable Estates ; Uses and Teusts. 
 
 dence that a gift was not intended will, however, give rise 
 to a resulting trust.* ^ Another class of resulting trusts 
 arises where a trustee or other fiduciary purchases land with 
 trust funds held by him for another. Here it is quite im- 
 material what the intent of the fiduciary was, whether to 
 purchase for himself in violation of his duty to his principal, 
 or in trust for him. In either case justice requires that the 
 property be held by him in trust for his principal whose 
 funds were used in paying for the land.** In any case where 
 a fiduciary, such as a trustee, guardian, executor, director 
 or other officer of a corporation, and the like, or an agent, 
 clerk or other employee, takes title to land in his own name, 
 using his principal's or employer's money in paying there- 
 for, a trust results in favor of the employer or principal.** 
 
 Y. 313 (but if fraud is shown a re- 
 Bulting trust arises) ; Rogers v. N. Y. 
 & Tex. L. Co., 134 N. Y. 197 (when 
 no gift intended slight evidence suffi- 
 cient to prove a trust) ; Fitzgerald v. 
 Fitzgerald, 168 Mass. 488; Gould v. 
 Lynde, 114 Mass. 366; Lovett v. Tay- 
 lor, 54 N. J. Eq. 311; Osbom v. Os- 
 born, 29 N. J. Eq. 38S; Stevenson v. 
 Crapnell, 114 111. 19; Moore v. Hors- 
 ley, 156 Dl. 36. 
 
 That the presumption is the other 
 way seems to be still the law in some 
 states, and also in England under the 
 later cases. Griffen v. Taylor, 139 
 Ind. 573; Bowler v. Curler, 21 Nev. 
 158; In re Duke of Marlborough, 2 
 Ch. 133. See Lewin, Trusts (9th ed.), 
 151; Story Eq. Jur., § 1197. 
 
 The old rule that a use resulted 
 from a common law conveyance with 
 no consideration given or reciteJ un- 
 doubtedly grew out of the fact that 
 such conveyances to secret uses were 
 so frequent and general that the only 
 reasonable presumption to be drawn 
 from a conveyance made without con- 
 
 sideration was that the parties in- 
 tended a conveyance to u.=es and not 
 a gift. The situation is entirely dif- 
 ferent to-day. The conveyance of the 
 bare legal title to a trustee with no 
 active duty to discharge would be 
 void to-day if so made in express 
 terms. Such a conveyance is seldom 
 if ever made. Therefore the reason 
 for the old rule no longer exists, and 
 the modern rule that such a convey- 
 ance is a gift or will be recognized 
 and enforced as such, unless it appear 
 affirmatively that the parties intended 
 a trust, is in accord with the situa- 
 tion now existing. 
 
 17. Hill on Trustees, 170; Claver- 
 ing V. Clavering, 2 Vern. 473. 
 
 18. 1 Perry on Trusts, § 127; 
 Holmes v. Gilman, 138 N. Y. 369 (be- 
 tween partners) ; Warren v. Union 
 Bank, 157 N. Y. 259 (guardian and 
 ward) ; Union Stock Yds. v. Gillespie, 
 137 U. S. 411; Standish v. Babcock, 
 52 N. J. Eq. 628; Preston v Preston, 
 202 P.a. St. 515. 
 
 19. Day v. Roth, 18 N. Y. 448 
 
CONSTBTTOTIVB TeUSTS. 393 
 
 Even where the property is acquired with stolen funds a 
 trust results in favor of the person whose funds were thus 
 used, against the thief or against a subsequent purchaser 
 from the thief, provided he purchased with notice of how 
 the thief acquired his title.^" 
 
 § 202. Constructive Trusts. — Constructive trusts are 
 those implied by equity in order that adequate relief may 
 be given and justice done, though no intent on the part of 
 the person holding title as trustee to subject himself to any 
 such responsibility can be inferred or presumed. When by 
 fraudulent representations, or fraud in any form, a wrong- 
 doer induces the conveyance of the legal title to himself 
 equity will compel him to hold the property as constructive 
 trustee for the person defrauded, equity setting aside the 
 conveyance because of the fraud and compelling him to ac- 
 count as trustee for the property during the time the title 
 was vested in him.^ All the elements of legal fraud must 
 be present, viz.: a false representation of material fact, 
 knowingly made with intent to deceive, which the party 
 defrauded had reasonably a right to rely upon and which 
 he did ia fact rely and act upon to his damage. 
 
 Where conveyances or devises of land are prevented by 
 fraud equity declares constructive trusts in favor of those 
 to whom the property would have gone had there been no 
 fraud. This is illustrated by heirs or devisees fraudulently 
 inducing a testator to refrain from making devises or 
 charging the land devised with legacies. They will take 
 the land as trustees for those persons to whom the testator 
 would otherwise have given the property, or subject to the 
 legacies which he would otherwise have charged against it.* 
 
 (agent and principal) ; Union Nat. B. property into hands of taker with 
 
 V. Goetz, 138 III. 127; Kennedy v. notice). 
 
 ATcCIoskey, 170 Pa. St. 354; Church 1. Bacon v. Bronson, 7 Johns. Ch. 
 
 V. Sterling, 16 Conn. 388; Burling v. (K. Y.) 194; Ahrens v. Jones, 169 N. 
 
 Hammar, 20 N. J. Eq. 230. Y. 555; Henschel v. Mamero, 120 DL 
 
 iJO. Newton v. Porter, 69 N. Y. 133 660; Huxley v. Eice, 40 Mich. 73. 
 
 (right to follow proceeds of stolen 2. Dyer v. Dyer, 1 White & T. 
 
894 Equitable Estates ; Uses and Teusts. 
 
 Constructive trusts also arise in cases of any acquisition 
 of property from a cestui que trust or principal by a trustee, 
 agent or other fiduciary, unless it appear ttat tlie trans- 
 action was made in good faith. He is bound by Ms fiduciary 
 position to exercise the highest good faith in dealings with 
 his principal, and in any case in which he secures title to 
 his principal's land the transaction will be closely scrutin- 
 ized, and unless it appear that the transaction was in entire 
 good faith without injury to the principal the fiduciary 
 will be charged with the property as trustee. He is not 
 permitted to take any advantage of his principal or client 
 by means of the fiduciary relation resulting in benefit to 
 himself and damage to them.* 
 
 Fraudulent conveyances made to hinder, delay and de- 
 fraud creditors, or made to defraud a subsequent purchaser 
 of the same land, made without consideration or to one 
 having notice of the fraudulent purpose, is another situa- 
 tion in which equity will construct a trust to give an ade- 
 quate remedy to the defrauded parties, the fraudulent pur- 
 chaser holding in trust for them,* In general, equity will 
 construct a trust in any case where the title of the pur- 
 chaser is tainted with fraud, and where in equity and good 
 conscience the property should be turned over to another or 
 
 Lead. Cas. Eq. 352 ; Oliflfe v. Wells, v. Mackreth, 1 White & T. Lead. Cas. 
 
 130 Mass. 231, 224; Williams v. Vree- Eq. 188, and notes; Adams v. Cowen, 
 
 land, 29 N. J. Eq. 417. 177 U. S. 471, 484; Bernard v. Gantz, 
 
 So if the devise or bequest is se- 140 N. Y. 249; Hammell v. Hyatt, 59 
 cured on a promise to hold in trust for N. J. Eq. 17i{ Trotter v. Smith, 59 
 a third person, the trust will be de- HI. 340; Herr v. Payson, 157 111. 244 j 
 Glared and enforced accordingly. Boyer v. East, 161 N. Y. 580; N. Y. 
 Dowd V. Tucker, 41 Conn. 197; Hoge Code Civ. Pro., § 1679; McClellan v. 
 V. Hoge, 1 Watts (Pa.) 163, 213; Kine Grant, 83 App. Dlv. (N. Y.) 599. 
 V. Farrell, 71 App. Div. (N. Y.) 219 4. Ellison v. Ellison, 1 White & T. 
 (agreement not to change a, vcill en- Lead. Cas. Eq. 245, and notes; Met- 
 forced as trust) ; Amherst College v. calf v. Moses, 161 N. Y. 587 : Stewart 
 Rich, 151 N. Y. 383; Fairchild y. Ed- v. Exch. Bank, 55 N. J. Eq. 795; Fid- 
 son, 154 N. Y. 199; Edson v. Parsons, ler v. John. 178 Pa. St. 112; Carr ▼. 
 155 N. Y. 555. Briggs, 156 Mass. 78; Bump, Fraudu- 
 
 3. 1 Perry, Trusts, §§ 194-210; Fox lent Conv. 197. 
 
CONSTEUOTIVE Tetjsts. 395 
 
 applied to tte satisfaction of his claims. Tlie details of 
 the law applying to these questions belong to the subject of 
 equity jurisdiction rather than to the law of land and its 
 ownership. 
 
 A contract for the sale of real property enforceable by 
 specific performance gives rise to a trust created by equity 
 in order to give the purchaser adequate relief, the vendor 
 holding the legal title, pending the actual conveyance, as 
 trustee for the purchaser. The money damage which the 
 purchaser could recover at law for breach of contract is 
 not an adequate remedy, since he is entitled to the specific 
 thing, the land, for which he contracted. Therefore equity 
 will compel specific performance of the contract, ordering 
 the vendor to convey the land in accordance with the terms 
 of the contract of sale. For this purpose and for the purpose 
 of restraining the vendor from any act of destruction pend- 
 ing the conveyance which would cause permanent damage 
 to the property, the vendor holds as trustee for the vendee." 
 The vendor occupies as owner in his own right, however, 
 in so far as the rents and profits and right to enjoy the prop- 
 erty are concerned during the time intervening between the 
 contract and the conveyance.* Nevertherless in most juris- 
 dictions it is settled that the vendee is so far the owner of 
 the land during this interval that in case of damage or de- 
 struction of buildings or other improvements on the prem- 
 ises the loss falls on the vendee, who is bound to accept the 
 property in its damaged condition without any deduction 
 from the purchase price, provided such damage or destruc- 
 tion is not due to the wrongful act or negligence of the 
 vendor .'' The reason given for this rule, that " equity re- 
 
 5. 1 Perry on Trusts, § 231; Wil- D. 1; Castellain v. Preston, L. E. 11, 
 liams V. Haddock, 145 N. Y. 144; Mat- Q. B. Div. 380; Home Mut. Ins. Co. v. 
 ter of Davis, 43 App. Div. (N. Y.) Tompkies & Co., 30 Tex. Civ. App. 
 331; Keep v. Miller, 43 N. J. Eq. 404. 
 
 100; Pelch V. Hooper, 119 Mass. 53; 7. Lewin, Trusts, 148; Sewell y. 
 
 Lombard v. Chicago Sinai Cong., 64 Underbill, 197 N. Y. 168; Reed v. 
 
 111. 477. Lukens, 44 Pa. St. 200; Lombard r. 
 
 6. Baynor v. Preston, L. R. 18. Ch. Chicaf;o Sinai Cong., 64 111. 477. 
 
396 Equitable Estates ; Uses aitd Tetists. 
 
 gards tliat as done which ought to be done," has no applica- 
 tion, since during this interval there is nothing under the 
 contract which either party ought to do. The vendor is 
 bound to convey only when the date for closing of title as 
 fixed by the contract is reached, and the purchase money is 
 not payable until then. After breach of the contract the 
 action for specific performance accrues, and there is at that 
 time sound reason for declaring a constructive trust to exist 
 in favor of the purchaser. But before that time no action 
 for specific performance has arisen, nor has any wrong been 
 committed by the vendor. He is still the owner of the prop- 
 erty, and the vendee is the owner of a contractual right 
 only. There is no reasonable ground for implying or pre- 
 suming that the parties intended a trust, since the vendor 
 is to continue in the possession and enjoyment of the prop- 
 erty as owner, without any duty to account for the rents 
 and profits. Nevertheless for the purposes other than the 
 enjoyment of the property and the receipt of the rents and 
 profits a trust is constructed by equity between them, so 
 that the purchaser is so far owner that his interest will de- 
 scend to his heirs on his death during this interval, and 
 his widow in entitled to dower therein; * and on the death 
 of the vendor his heir inherits the legal title only as trus- 
 tee, and must convey to the purchaser his heirs or assigns.* 
 A purchaser with notice also takes subject to the trust.^** 
 
 § 203. Purchase for Value Without Notice. — Implied 
 trusts, whether resulting or constructive, usually do not 
 appear as a matter of record in the title to land, and there- 
 fore if the legal title is conveyed by the trustee to one who 
 
 8. Young V. Young, 45 N. J. Eq. 27 ; 10. Champion v. Brown, 6 Johns. 
 Owen V. Robbins, 19 111. 545; Wil- Ch. (N. Y.) 403; Glover v. Fisher, 
 Hams V. Kinney, 43 Hun (N. Y.) 1. 11 111. 666; Linscott v. Buek, 33 M«. 
 
 9. Thomson v. Smith, 63 N. Y. 301; 530; Borie v. SlatterthwaKe, 180 P». 
 Matter of Davis, 43 App. Div. (N. Y.) St. 542. 
 
 331; Morgan's Heirs v. Morgan, 2 
 Wheat. (U. S.) 290. 
 
Purchase foe Valttb Without Notice. 397 
 
 pays value for the property and who takes it without notice 
 of the trust, the equitable right existing in the beneficiary 
 is gone, since the equity of such a purchaser is equal at 
 least to the equity of such beneficiary, and a court of equity 
 in such a case will not disturb the legal title.* This doc- 
 trine applies to equitable rights of all descriptions, whether 
 a trust exist or not, such equitable rights being cut off or de- 
 stroyed by a conveyance to a purchaser for value without 
 notice of the equities involved in the case. The same doc- 
 trine applies to express trusts, but as such trusts must be in 
 writing, and as instruments creating or declaring them 
 miist usually be recorded to be valid as against a subsequent 
 purchaser for value and without notice, occasions for the 
 application of the doctrine to express trusts seldom arise.* 
 If the purchaser has actual notice of the existence of the 
 trust he takes title subject thereto, and holds as did the 
 trustee, irrespective of the source of the notice or the means 
 by which it was given him.' If he has no direct and posi- 
 tive notice of the trust as such, but has notice of facts which 
 would arouse the suspicions of the average man and cause 
 him to make inquiry as to the existence of rights to the 
 property in the cestui que trust, he is a purchaser with no- 
 tice,* as he is when the trust appears as a matter of record in 
 
 1. Le Neve v. Le Neve, 3 Whfte & conveyance or other act of the trua- 
 T. Lead. Cas. Eq. 35; Ten Eyck v. tee in contravention of the trust, ex- 
 Witbeck, 135 N. Y. 40. See, also, cept as provided in this section, shall 
 cases in notes following under this be absolutely void." 
 
 section. 3. Le Neve v. Le Neve, 3 Lead. Cas. 
 
 2. N. Y. Real Prop. Law, § 95, pro- Eq. 35, notes; Denton v. Ont. Co. Nat. 
 vides that an implied or resulting Bank, 150 N. Y. 126. 
 
 trust shall not be alleged or estab- 4. Ten Eyck v. Witbeck, 135 N. Y. 
 
 lished to defeat or prejudice the title 40; Anderson v. Blood, 153 N. Y. 285; 
 
 of a purchaser for a valuable con- Cornell v. Maltby, 165 N. Y. 557; 
 
 eideration without notice of the trust. Westinghouse v. Ger. Nat. Bk., 188 
 
 % 105 provides that if the trust (ex- Pa. St. 630; Swasey v. Emerson, 168 
 
 press) "'is expressed in the instru- Mass. 118; Macon v. Mullaby, 145 
 
 menft creating the estate, every sale, HI. 383. 
 
398 Equitable Estates; Uses and Teusts. 
 
 the title to tlie land involved,' and lie takes as trustee, sub- 
 ject to the terms of the trust. To be a purchaser for value he 
 must have actually parted with something of value before 
 receiving notice of the trust. A merely nominal consideration 
 is not enough, since if no more is paid the transaction is 
 essentially a gift, and equity looks to the real nature of the 
 transaction, not its mere form.® A conveyance made in 
 satisfaction of an existing indebtedness is not value, since 
 the purchaser is in no way harmed, the indebtedness re- 
 maining unaffected after discovery of the fact that the 
 grantor had no beneficial interest to concey.'^ Decisions to 
 the contrary in some states are clearly contrary to the 
 principle on which this doctrine depends.^ Blood rela- 
 tionship or relationship of marriage is not value within the 
 meaning of this rule. 
 
 § 204. Further Incidents of Trusts. — It follows from 
 what has been said that the trustee may convey the legal 
 title, except where statutes forbid it, or make the conveyance 
 void, as in New York and a few states heretofore referred 
 to, the grantee taking subject to the trust except where he 
 is a purchaser for value without notice thereof, and except 
 where the conveyance is made in due performance of the 
 trust. The trustee may devise the legal estate, and it will 
 
 5. Carpenter v. Dexter, 75 U. S. The conveyance must have been 
 513, 532; Tucker v. Shaw, 158 111. made and delivered and the considera- 
 336. tion wholly paid before receiving 
 
 6. Ten Eyck v. Witbeck, 135 N. Y. notice in order that the grantee take 
 40 (ten dollars actually paid not value free of the trust. If only part of the 
 within this rule; must be fair equiva- consideration is paid before notice 
 lent for property purchased). he has an equitable lien on the prop- 
 
 7. Kodgers v. Bonner, 45 N. Y. erty to that amount which is superior 
 379; Amer. Sugar R. Co. v. Francher, to the trust or other equity, but he 
 145 N. Y. 552; Schloss v. Feltus, 103 is not a purchaser for value without 
 Mich. 525. notice. Murray v. Ballou, 1 Johns. 
 
 8. Bughman v. Central Bk., 159 Pa. Ch. (N. Y.) 666: Hangwout v. Mur- 
 Bt. 94; Nat. Revere Bk. v. Morse, 163 phy, 81 N. J. Eq. 118; Weaver v, 
 Mass. 383. Barden, 49 N. Y. 286. 
 
FuETHEB Incidents op Teusts. 399 
 
 pass to Ms heirs if he die intestate, the devisee or heirs tak- 
 ing subject to the trust.^ In New York and a few other 
 states statutes provide that on the death of the trustee the 
 trust vests in the court which will appoint a new trustee on 
 motion made by any of the parties interested on notice to 
 the others.^ The interest of the cestui may, of course, al- 
 ways be transferred by him, except where such alienation is 
 prevented by some valid provision of the trust,^ or by statute 
 as in New York and some other states where the interest of 
 the beneficiaries of a trust to collect and apply the rents and 
 profits cannot be transferred.* 
 
 1. 1 Perry, Trusts, §§ 334-340; 1 2. N. Y. Real Prop. Law, § 111; 1 
 
 Ames Cas. Trusts, 345; Jackson v. Perry, Trusts, § 341. 
 Dela-acy, 13 Johns. (N. Y.) 537; 3. 1 I'erry, Trusts, 3S6a; Lewis v. 
 
 Zabriskie v. Morris & E. R. Co., 33 Hawkins, 23 Wall (U. S.) 119. 
 N. J. £q. 92. 4. N. ¥. Eeal Prop. Lav, | 103. 
 
400 JoiKT Tbnaitoies and Tenanoies in Coiocov. 
 
 CHAPTER IX. 
 
 Joint Tenancies and Tenancies in C!ommon. 
 
 § 205. Nature of Joint Tenancies. — An estate conveyed 
 or devised to two or more persons, either in fee, in tail, for 
 life or for years, created a joint tenancy at common law, 
 in the absence of words expressing an inti^nt to create a 
 tenancy in common.* By statute in most states it is now 
 provided that a tenancy in common will arise in such case, 
 unless expressly declared to be a joint tenancy.^ The es- 
 sence of a joint tenancy is that the joint tenants take and 
 hold as though they together constituted one person. Un- 
 der the feudal tyslem they held jointly by a single holding 
 or tenure from the overlord, and in the absence of express 
 words to the contrary a conveyance to two or more persons 
 was presumed to be in joint tenancy, it being the presumed 
 intent that they should hold a single estate by a single 
 tenure as though they were together only one person in so 
 far as their relation with the overlord was concerned. The 
 four unities of (1) time — that they acquire their interests 
 at the same moment, (2) title— that they acquire their inter- 
 ests by the same deed or will, (3) interest — that each have 
 an interest indentical with the interest of each of the other 
 cotenants, and (4) possession — that they each be entitled 
 
 1. S Bl. Com. 180; WilliamB R. P. termarriage being entitled to inherit 
 
 (17th ed.), 164. See, also, cases in on the death of the survivor. But if 
 
 notes following. they are persona who cannot inter- 
 
 A joint tenancy for life continues marry, as brother and sister, or two 
 
 until the death of the survivor, the males or two females, they take as 
 
 entire property passing to the Bur- Joint tenants for life, but with separ- 
 
 vivor for his life, on the death of the ate inheritances, so that on the death 
 
 other tenant or tenants. of the survivor the heirs of the body 
 
 If real property is conveyed or de- of each will receive an undivided one- 
 vised to A and B and the heirs of half in tail. Williams Real Prop. 
 their two bodies, and A and B are (17th ed.), 164, 165. 
 persons who may possibly many, 8. See note 7 immediately foUow- 
 they take an estate in tail special, ing. 
 only children resulting from their in- 
 
Natuee op Joint TBNANcrES. 401 
 
 to the common possession of tlie entire property, grow out 
 of this one essential, the fictitious unity of the tenants, 
 they holding together as though they were one. Since they 
 take as one person they must take at the same instant of 
 time and by the same instrument of title; the title of one 
 must be identical with the title of every other, and must 
 have been acquired at the same moment. Since each tenant 
 has an interest in the property only as a member of this 
 fictitious unity, it follows that his interest must be, and 
 continue to be, identical in every respect with the inter- 
 est of every cotenant, each as member or part of the unity 
 being the owner of the entire property, with the right to 
 possess and enjoy it all, subject to the right of the coten- 
 ants or co-members of the unity to the same ownership, 
 possession and enjoyment. The entire property is owned, 
 possessed and enjoyed by the fictitious person, the unity, 
 of which each tenant is a component part.* One tenant, 
 therefore, cannot take as life tenant, the other in fee; one 
 cannot have an undivided one-half interest, the other an 
 undivided one-fourth. In fact, if the deed or will creating 
 the estate give them separate and distinct shares or por- 
 tions, though equal in every respect, they take as tenants 
 in common, the intention being to give them separate and 
 distinct interests as individuals, not as members of a unity.* 
 
 3. Williama Real Prop. (17th ed.)t ferent times. See Williams E. Prop. 
 
 164-167; 2 Bl. Com. 180-194. (17th ed.), 167; Co. Litt. 188a; 2 
 
 Exceptions to the requirement of Bl. Com. 181. 
 
 unity of time have been made in the On the necessity of the four uni- 
 
 case of estates created by deed under ties to joint tenancies see cases here- 
 
 the statute of uses and estates created after cited in this and the following 
 
 by will. If the intention is to create sections. 
 
 H, joint estate in the tenants, though 4. Shattuck v. Wall, 174 Mass. 167 ; 
 
 Eome of them are to acquire their in- Stevenson v. Lesley, 70 N. Y. 512, at 
 
 terests at a later date than the 515, 516; Fornherger v. Miller, 28 
 
 others, a joint tenancy, nevertheless, App. Div. (N. Y.) 199, aff. 163 N. Y. 
 
 •rises, the intention of the testator 578; Griswold v. Johnson, 5 Conn. 
 
 or grantor being given effect in these SGr.; Via^on v. Method. Epis. Church, 
 
 eases though the parties take at d:f- 27 N'. .). Kq. 47. 
 
 26 
 
402 Joint TEiTAisrciES and Tenancies in Commos. 
 
 The doctrine of survivorship, that on the death of any 
 tenant his interest survives to his cotenants instead of 
 passing to his heirs, is based on the same principle. On 
 the death of a tenant those who survive continue to be 
 this fictitious person who holds the land of the overlord. 
 There is nothing to pass to the heirs or devisees of the de- 
 ceased tenant, since the property belongs to the unity which 
 continues in the surviving tenants or tenant.' In addition 
 to the four unities as essentials to a joint tenancy it is 
 necessary that it be created by purchase, that is, by deed 
 or will. Where land descends to heirs by inheritance 
 through operation of law and not by action of the owner 
 by deed or will, they take as tenants in common.' 
 
 It is clear that joint tenancies are of feudal origin, it 
 being to the advantage of the overlord that the joint hold- 
 ing should be a single distinct tenure, continuing in the 
 survivors without the interposition of the heirs of the ten- 
 ants first dying. Of course this advantage disappeared 
 with feudalism. Under modern statutes a tenancy in com- 
 mon is created unless the grantor or devisor has expressly 
 declared in the deed or will creating the estate that the co- 
 tenants shall hold in joint tenancy .'' 
 
 6. Williams Real Prop. {17th ed.), was a sufiScient acquisition of title by 
 
 164-166; 3 Bl. Com. 183; Morris v. purchase to make them joint tenants, 
 
 McCarty, 158 Mass. 11. in so far as they had title at all. 
 
 The right of survivorship does not 7. N. Y. Real Prop. L., § 66; Mat- 
 extend to annual crops planted by the ter of Russell, 168 N. Y. 169 • Case 
 deceased tenant and growing in the v. Owen, 139 Ind. 23; Miller v. Mil- 
 land or harvested by him, but still ler, 16 Mass. 58 ; Morris v. McCarthy, 
 on the premises. They are his per- 158 Mass. 11; Berden v. Van Ripen, 
 sonal property and pass as such to 16 N. J. Law 7; The Boston Frank- 
 his personal representatives. Prit- Unite Co. v. Condit, 19 N. J. Eq. 394; 
 chard v. Walker, 33 111. App. 286, Slater v. Gruger, 165 111.329; Fair ▼! 
 aff. 121 111. 221. Grand Lodge, etc., 83 Wis. 446; Allen 
 
 e. 2 Bl. Com. 180; Bassler t. v. Allen, 114 Wis. 615; Blumenthal 
 Rewodlinaki, 130 Wis. 26; Putnny v. Bros. v. Culver, 116 la. 386. In Over- 
 Dresser, 2 Mete. (Mass.) 583. In heiser v. Lackey, 307 N. Y. 239, a 
 this case the court held that joint devise to two daughters "jointly" 
 adverse possession by two wrongdoers was held to create a tenancy in com 
 
Natuee of Joint TsNAirciEa. 403 
 
 Trustees and executors have always held as joint tenants, 
 title surviving to the survivors or survivor in order that 
 the administration of the trust may go on without inter- 
 ruption or interference on the part of the heirs of any 
 trustee, in case of his death. This has continued to be the 
 law, either by express statutory provision, or by decision, 
 the courts holding that statutes changing joint tenancies 
 into tenancies in common were not intended to affect estates 
 held by trustees as such.* 
 
 These statutes do not apply to conveyances or devises 
 to husband and wife, and therefore estates in entirety are 
 in no way affcted by them,^ The statutes generally apply 
 to joint estates already existing at the time of their enact- 
 ment, as well as to those thereafter created, changing joint 
 tenancies then existing into tenancies in common unless the 
 intent to create a joint tenancy was expressed in the instru- 
 ment creating the joint estate. The constitutionality of 
 this provision has generally been sustained, on the ground 
 that the change in no way impairs a vested estate, since the 
 estate of the tenant is made more valuable by the change, 
 the interest of a tenant in common being more valuable 
 
 mon, the word not having been used 73 Mass. 428; Jones v. Cable, 114 Pa. 
 
 in its technical sense. St. 586; Saunders v. Sehmaelzle, 49 
 
 In some states statutes expressly Cal. 59; Franklin Sav. Inst. v. Peo- 
 
 do away with the incident of sur- pie's Sav. Bk., 14 E. I. 633. 
 vivorship, unless survivorship is ex- In Boston P. Co. v. Condit, 19 N. 
 
 pressly reserved in the instrument J. Eq. 394, the court held, in the ab- 
 
 creating the joint estate. Eedemp- sence of a provision in the statute 
 
 torist Fathers v. Lawler, 305 Pa. St. excepting trustees and executors from 
 
 24 (Act of Mar. 31, 1812) ; Rowland its operation, that they take as ten- 
 
 V. Rowland, 93 N. C. 314 (Act of ants in common under the statute in 
 
 1784 applies to joint tenancies in fee, case there is no express provision in 
 
 in no way affecting a joint tenancy the deed or will that they take aa 
 
 for life) ; Lockhart v. Van Dyke, 97 joint tenants. 
 
 Va. 356. See Phelps v. Jepson, 1 9. Chandler v. Cheney, 37 Ind. 391; 
 
 Root (Conn.) 48 (the court refusing Johnson v. Johnson, 173 Mo. 91 ; Farr 
 
 to recognize or apply the doctrine of v. Grand Lodge, etc., 83 Wis. 446; 
 
 survivorship). Price v. Pestka, 54 App. Div. (N. Y.) 
 
 8. See preceding note, also 4 Kent S9. 
 Com. 361 ; Webster v. Van Deventer, 
 
404 Joint Tenancies and Tenancies in Common. 
 
 than that of a joint tenant because of its certainty and 
 definiteness." Li a few states, however, it has been held 
 that the statute is unconstitutional in so far as it purports 
 to change joint tenancies already existing into tenancies in 
 common." 
 
 The better view is that the statutes apply to transfers 
 of personalty as well as realty, a tenancy in common arising 
 unless expressly made in joint tenancy.^^ In some juris- 
 dictions, however, it is stated that joint tenancies of per- 
 sonal property arise as at common law where all the uni- 
 ties are present, imaffected by the statute.^' 
 
 § 206. The Individual Interest of Each Joint Tenant.— 
 
 The interest of each tenant is his right as a member or part 
 of the unity to occupy and enjoy the property during his life, 
 with the possibility of becoming sole owner by survivor- 
 ship, subject to a similar right in each of his cotenants. 
 Since his interest ends on his death before the death of the 
 other cotenants, it follows that individually he has no es- 
 tate of inheritance, nothing passes to his heirs on his death,* 
 he has no interest which he can devise by will,* and his 
 wife or widow has no dower right, either inchoate or con- 
 sumnfate.* The incidents of dower and curtesy do not 
 attach to joint tenancies since the individual interest of 
 any joint tenant is not an estate of inheritance. 
 
 But the tenant's interest is nevertheless a separate and 
 distinct property right which he holds as an individual 
 
 10. Miller v. Miller, 16 Mass. 58; 13. See Farr v. Grand Lodge, etc., 
 Bambraugh v. Bambraugh, 11 Searg. 83 Wis. 446 (dicta); Emerson v. Cut- 
 & E. (Pa.) 191. See note 6, supra. ler, 14 Pick. (Mass.) 108 (semble). 
 
 11. Den ex Dem. Berden v. Van 1. Williams E. Prop. (17th ed.). 
 Ripen, 16 N. J. L. 7; The Boston P. Co. 168; 2 Bl. Com. 182; Babbitt v. Day, 
 V. Condit, 19 N. J. Eq. 39+; Greer v. 41 N. J. Eq. 392. 
 
 Blauchar, 40 Cal. 194 (dicta). 2. See last preceding note, also 
 
 12. Bliven v. Seymour, 88 N. Y. Duncan v. Forrer. (5 Binney (Pa.) 193. 
 469 ; Matter of Kimberly, 150 N. Y. 3. Babbitt v. Day, 41 N. J. Eq. 393. 
 
 90. 
 
 See, also, note 1, supra. 
 
Individual Intekest of Each Joint Tenant. 405 
 
 against his cotenants and all the world. This interest he 
 may convey to a stranger or to one or more of his cotenants. 
 As a vested interest in land it may be conveyed, irrespective 
 of the effect of such conveyance on tlie joint tenancy. This 
 effect is necessarily to destroy the joint tenancy in so far 
 as the interest conveyed is concerned, as the grantee takes 
 this interest at a different time by a different instrument 
 of title, destroying the unities of time and title which, as 
 we have seen, are essential to the existence of the joint 
 tenancy.* The stranger as grantee cannot hold as a mem- 
 ber of the fictitious unity without the joint action of all 
 the tenants," and if the conveyance is made to one of the 
 other tenants he must necessarily hold as tenant in common, 
 since he acquires the additional share by a different convey- 
 ance at a different time, and has as a result a greater interest 
 than his cotenants. As far as this share is concerned he is 
 not a member of the unity owning the property by com- 
 munity of interest with the others. If there are three or 
 more joint tenants, and one conveys his interest to a stranger 
 or to one of his cotenants, the two or more remaining ten- 
 ants will continue to hold their original shares as joint 
 tenants, the unity continjing in them in so far as the uni- 
 ties of time and title have not been broken. Therefore if 
 
 4. See note 1, supra, and cases interest as joint tenant at the same 
 cited in notes that follow. moment that the third person ac- 
 
 5. In Colson v. Baker, 42 Misc. (N. quired his interest as cotenant, 
 y.) 407, the court held that a joint and by the same instrument, 
 tenancy arose where two tenants in The court cites Murphy v. Wliit- 
 common conveyed their interest by ney, 145 N. Y. 541, which case 
 joint deed to one of them and a third held that a parol agreement between 
 person, the grantees to hold " as joint tenants in common that they hold 
 tenants and not as tenants in com- as joint tenants, carried out on one 
 men." Tile unities are here all pres- side, is valid and will be specifically 
 ent, the interest of the tenant in com- enforced in accordance with the gen- 
 mon being changed into a joint ten- eral rule applying to parol contracts 
 ancy as effectually as thourjh the con- for the conveyance of land, performed 
 veyance had been through another in part by one party, justice requir- 
 person. Though he held as tenant in ing that they be performed by tha 
 common before, he acquired his new other party as welL 
 
406 Joint Teitancies and Tenancies in Common. 
 
 A, B, C and D are joint tenants, and A conveys Ms interest 
 to X, the remaining tenants, B, C and D, will hold as joint 
 tenants subject to survivorship, as to the three-fourths un- 
 divided interest remaining with them, the other one-fourth 
 belonging to X as tenant in common. The same result 
 would follow a conveyance by A to B, in which case B would 
 hold a one-fourth interest as tenant in common and a one- 
 fourth interest as joint tenant with C and D, each of whom 
 would also hold their original one-fourth subject to sur- 
 vivorship) as between B, C and D.^ 
 
 Since the joint tenancy may be broken up at pleasure by 
 a conveyance by each tenant to a third person, or by sep- 
 arate conveyances to one another, it follows that the same 
 result may be accomplished by mutual deeds among the 
 tenants by which each takes an undivided interest as ten- 
 ant in common. Such a transaction is a conveyance by the 
 unity to each of the tenants of his undivided portion/ 
 
 The mortgaging of a joint tenant's interest breaks the 
 unities and converts the interest mortgaged into a tenancy 
 in common exactly as would a conveyance. As far as the 
 legal title is concerned the mortgage is a conveyance, by 
 way of security in equity, and the unities of time and title 
 are broken as soon as the mortgage is delivered.^ In some 
 jurisdictions a mortgage is said to create a lien only in 
 favor of the mortgagee, the legal title remaining unaf- 
 fected. It may be argued, in these states, that the mort- 
 gage does not destroy the joint tenancy since the unities 
 are not broken. One of two positions must be taken, either 
 that the mortgage is a mere lien, like a judgment lien, in 
 which case it is subject to be defeated by survivorship in 
 case the mortgagor die before his cotenants, or else the 
 
 8. Litt. §§ 293,294; SBl. Com. 186; (N. Y.) 407, discussed in note 5, 
 
 Williams E. Prop. (17tli ed.), 168, and supra. 
 
 cases in notes tliat follow. 8. York v. Stone, 1 Salk. 158 (1 
 
 7. See preceding notes under tliis Eq. Cas. Abr. 393) ; Lessee of Simpson 
 
 section. See Colson v. Baker, 43 Misc. v. Amnions, 1 Binney, 175, 
 
Individual Interest of Each Joint Tenant. 407 
 
 teciinical legal title passes under a mortgage, tlie -unities 
 are broken, and tlie joint tenancy is at an end in so far 
 as th.e interest mortgaged is concerned. The latter view 
 is sound, while the former view is impracticable and illogi- 
 cal. The middle view, taken in one case,® that the mort- 
 gage does not destroy the joint tenancy, and that the mort- 
 gage, though only a lien, attaches to the interest of the 
 mortgagor after it passes by survivorship to his cotenant, 
 is simply impossible and unthinkable. If the mortgage 
 is a mere lien it attaches to the interest of the tenant mort- 
 gagor, and any rights acquired under it can be no greater 
 than those of the tenant who has made the mortgage. As- 
 suming the joint tenancy to continue, the tenant's interest 
 ceases on his death, his cotenants becoming owners by sur- 
 vivorship as the surviving members of the unity. The mort- 
 gagee 's interest under his mortgage necessarily ends on the 
 death of the tenant mortgagor, assuming the joint tenancy 
 to continue. But assuming such a result to be possible, 
 what becomes of the unity of interest of the tenants? Sup- 
 pose A and B are joint tenants, A mortgages his interest for 
 nine-tenths of its value. Assuming the joint tenancy as 
 continuing, unaffected by survivorship on the death of 
 A, the situation would be grossly unfair to B, and abso- 
 lutely hostile to the principle underlying joint tenancies. 
 Before A's death A would have a chance of survivorship to 
 B's unincumbered share, while B's chance of survivorship 
 is worth only one-tenth as much, as he would take A's share 
 encumbered by a mortgage up to nine-tenths of its value. 
 The position taken by this case is unreasonable and unjust, 
 and cannot be supported. It is submitted that in New York 
 and the other states holding that a mortgage creates a lien 
 only the view must be taken that the making and delivery of 
 the mortgage in such case breaks the unities and converts 
 the share mortgaged into a tenancy in common. The effect 
 
 9. Wilkins v. Young, 144 Ind. 1. 
 
408 Joint Tenancies and Tenancies in Couuotx. 
 
 of the mortgage on a teclmical legal estate is involved here, 
 unaffected by the equitable doctrines which apply to mort- 
 gages. In these states the view that the mortgagor remains 
 owner, the mortgagee having the right to enforce the mort- 
 gage by way of security only, is the result of the merger 
 of law and equity in the courts, a court of law at trial 
 term being a court of equity for the purpose of applying 
 the equitable doctrine of mortgages above stated wherever 
 and whenever any question involving a mortgage may arise. 
 But the effect on a joint tenancy of the mortgaging of a 
 tenant's interest therein involves no question of equity. 
 A court of equity has nothing to do with it. It is a purely 
 legal question, involving a technical legal estate. A mort- 
 gage is now, as it always has been, in form at least, a con- 
 veyance of the legal title to the land, with the usual words 
 of conveyance, description of the property, and other parts 
 of the ordinary deed. The net result of applying the rules 
 of law and equity taken together is that the mortgagor 
 remains owner, the mortgagee having a right in the land 
 by way of security only. But in this case where a question 
 of the technical legal title only is involved, the courts are 
 bound to hold, it is submitted, that the mortgage does trans- 
 fer the technical legal title as it purports to do, the uni- 
 ties are therefore broken, and the joint tenancy is at an 
 end so far as the interest mortgaged is concerned. Why 
 should equity be resorted to for the purpose of preventing 
 a joint tenancy from being converted into a tenancy in com- 
 mon by a breaking of the unities? 
 
 This is made clearer by a consideration of the other al- 
 ternative. If a mortgage in this case is to operate as a 
 mere lien, like a judgment lien, it will be defeated by sur- 
 vivorship in case the tenant mortgagor dies leaving any 
 cotenant surviving. The practical effect would be that joint 
 tenants, though they may convey their interests as they 
 please, could not mortgage them, since no one would ao- 
 
Tenants in Common. 40& 
 
 eept snch precarions security, dependent as it would be 
 on tlie mortgagor's surviving his cotenants.*" 
 
 The leasing of his interest by a joint tenant for a term 
 of years is a severance during the term only, the parties 
 continuing as joint tenants of the reversion, subject to the 
 term, which is therefore unaffected by survivorship." 
 
 § 207. Tenants in Common. — A tenant in common has a 
 distinct undivided interest which he may dispose of by deed 
 or will, which descends to his heirs in case of his death in- 
 testate, in which his wife or widow is entitled to dower, 
 inchoate or consummate as the case may be, since his inter- 
 est is an estate of inheritance, and to which curtesy at- 
 taches when the tenant is a married woman. The only 
 unity essential to a tenancy in common is the unity of pos- 
 session, as such tenants may acquire their interests at dif- 
 ferent times by different instruments of title, and their 
 interests need not be equal. The four unities may all be 
 present in a tenancy in common, and all except the imity of 
 possession may be absent.^ They must all be present in a 
 joint tenancy. 
 
 Under the common law a conveyance or devise to two or 
 more persons created a joint tenancy unless the intent to 
 create a tenancy in common was expressed in some form in 
 the instrument creating the estate.^ A gift to two or more 
 persons of separate and distinct, though equal, shares cre- 
 ated a tenancy in common, the fact that each was given a 
 distinct share indicating an intention that each tenant 
 should take a separate and distinct interest as tenant in 
 common, rather that they should all hold together as one 
 
 10. See last two preceding notes. 169; 2 Bl. Com. 190-194; Putnam v. 
 
 11. Litt. 304; 2 Bl. Com. 186; Ritchie, 6 Paige (N. Y.) 390; Chit- 
 Oould V. Kemp, 8 M. & K. 310; Cleric tenden v. Gates, 18 App. Biv. (N. Y.) 
 ▼. Clerk, 8 Vom. 333. 169. 
 
 1. WilUams Real Prop. (17tli ed.). 2. See § 205, ant& 
 
410 Joint Tenancies and Tenancies in Common. 
 
 person in joint tenancy.' For the same reason tlie convey- 
 ance to two or more persons of equal interests by separate 
 simultaneous instruments created a tenancy in common.* 
 As before stated, by statute in most states a conveyance or 
 devise to two or more persons now creates a tenancy in 
 common unless expressly made to tbem jointly or as joint 
 tenants.^ 
 
 A grant or devise to two or more persons as tenants in 
 common creates equal undivided interests in the tenants in 
 the absence of a provision making their shares unequal.* 
 The incidents of co-ownership as between both tenants in 
 common and joint tenants are discussed hereafter.'' 
 
 § 208. Estates in Coparceny. — An estate in coparceny 
 arises under the common law in England where in default 
 of male heirs the inheritance passes by descent to two or 
 more female heirs, and where, by local custom, the inheri- 
 tance descends to two or more male heirs, instead of under 
 the law of primogeniture which generally prevails in Eng- 
 land.i 
 
 Estates in coparceny were the only joint estates in which 
 the right of compulsory partition existed without the aid 
 of equity or statutes, and the term " coparency " or " par- 
 ceny," as the estate is sometimes called, is said to be de- 
 rived from that fact.* 
 
 3. Stevenson v. Lesley, 70 N. Y. 1. Williams Real Prop. (ITth ed.), 
 512; Hornberger v. Miller, 23 App. 257, 258; 3 BI. Com. 187. As to the 
 Div. 199 (dicta) ; Sliattuck v. Wall, law of primogeniture in England, see 
 174 Mass. 169; Mason v. Methodist Williams R. P., id. 257; Digby Hist. 
 Epis. Ch., S7 N. J. Eq. 47; Griswold L. Real Prop. (Sth ed.), 431; Owen v. 
 V. Johnson, 5 Conn. 363. Gibbons, 1 Ch. 636. 
 
 4. Howard V. Chase, 104 Mass. 249; 2. Williams R. P., id. 258; Litt. § 
 Welsh V. Sackett, 12 Wis. 243. 241; 2 Bl. Com. 189. Partition of 
 
 6. See § 205, ante. these estates is now controlled by 
 
 6. Baumann v. Guion. 21 Misc. (N. statutes governing partition of joint 
 Y.) 120; Edwards v. Edwards, 39 Pa. tenancies and tenancies in common, 
 St. 369; Campau V. Campau, 44 Mich. partition having been extended to 
 31. cover these estates. 
 
 7. Spe Ch. XI, post. 
 
Pabtneeship Estates. 411 
 
 As to strangers they hold jointly, so that in any action 
 concerning the entire property so held by them they may 
 sue or be sned jointly.* Each holds, for every purpose, a 
 distinct and separate interest in no way different from 
 the interest of a tenant in common, which may be conveyed 
 or devised by will, and which will descend to the heirs of 
 the coparcener, entirely free of the incident of survivor- 
 ship.* In most of the states coparceny does not exist, since 
 the law of primogeniture is not recognized here. Prop- 
 erty in this country passing by inheritance to two or more 
 heirs, male or female or both, is held by them as tenants in 
 common.'* 
 
 § 209. Partnership Estates. — Partnership real property 
 acquired by the firm for firm purposes, is usually held by the 
 partners as tenants in common, they holding as trustees 
 for the firm so far as it is required for partnership pur- 
 poses.® There is no such thing, therefore, as a partnership 
 estate at law. The firm is not recognized at law as an en- 
 tity or person distinct from the partners as individuals, 
 and therefore the firm cannot take title to its land in the 
 firm name. A conveyance to the firm as such is a convey- 
 ance to those partners as tenants in common whose names 
 appear in the firm name. Equity, however, recognizes 
 the firm as a distinct entity, and whether the legal title be 
 held by all the partners, or by any two or more, or by only 
 one of them, equity implies a trust in favor of the firm, the 
 partner or partners having the legal title being compelled 
 in equity to hold and account for the property as trustees 
 in so far as it is needed for firm purposes.^ Therefore while 
 
 8. S Bl. Com. 188. Riddle v. Whithill, 135 U. S. 561 
 
 4. Litt. 380; 3 Bl. Com. 188, 189, Shearer v. Shearer, 98 Mass. 107 
 
 191. Galbraith v. Tracy, 153 111 54 
 
 6. See i 305, ante. Kruschke v. Stefan, 83 Wis. 373, 385, 
 
 6. See cases in notes following. 386; Foster's App., 74 Pa. St. 391 
 
 7. Fairchild v. Fairchild, 64 N. Y. Buffum v. Bufifum, 49 Me. 108 
 471; Darrow v. Calkins, 154 N. Y. Campbell v. Campbell, 30 N". .J. Eq. 
 603; Buckley v. Doig, 188 N. Y. 338; 41S. 
 
412 Joint Tenancies and Tenancies in Common. 
 
 the firm is a going concern the partners as members of 
 the firm may sell and convey the land without their wives 
 joining, since such sale and conveyance is made by them 
 as trustees for the firm, their separate individual interests 
 being subject to the right of the firm to dispose of the 
 property, and the derivative right of dower of the wife of 
 each of them being subject to the same right. In so far as 
 they hold as trustees their wives have no right of dower, 
 and when, as such trustees they convey the land for the 
 firm, their wives' right of dower is defeated.* 
 
 When the partnership is dissolved and is in course of 
 dissolution the partners as such trustees must apply the 
 land to the payment of firm debts and to the adjusting of 
 equities between the partners in case there is not sufficient 
 personal property for the purpose. Any parcels of firm 
 lands held by the partners as tenants in common after all 
 such debts are paid and equities settled, belong to them 
 as tenants in common in their own right free of the implied 
 trust, subject to dower, partition, and the other incidents 
 of such estates.' Any balance of the proceeds of parcels 
 sold for the purpose of paying such debts or settling such 
 equities which is not required for those purposes, is re- 
 garded as though it were still the land through the sale of 
 which it was secured, and the wife or widow of each partner 
 is entitled to dower in her husband's share of such pro- 
 ceeds.^" 
 
 The courts generally apply the doctrine of equitable con- 
 version to all these cases, holding that the realty is con- 
 verted into personalty to the extent that it is required to 
 settle firm debts and equities between the parties, the part- 
 ners being compelled to hold the legal title thereto as above 
 stated." Necessarily the trust must be implied in any event, 
 
 8. Dawson v. Parsons, 10 Misc. (N. 9. Woodward -Holmes Co. v. Nudd, 
 
 Y.) 428; Hauftman v. Hauftman, 91 58 Minn. 236, and cases in note 3, 
 
 App. DiY. (N. Y.) 197. See, also, supra, 
 
 dicta in Greenwood v. Marvin, 111 N. 10. See § 102, ante. 
 
 Y. 42n, 436. See, al?o. Woodward- 11. See cases cited in note 3, supr*. 
 Ilnlmps Co. V. Nudd, 58 Minn. 236. 
 
Paetneeship Estates. 413 
 
 since the legal title is in tlie partners as individuals. Tlie 
 application of tlie doctrine of equitable conversion to these 
 cases, it is submitted, is entirely unnecessary, adds abso- 
 lutely nothing, is purely artificial, and tends to make the 
 law on the subject more complicated. 
 
 When the partners expressly agree, or where such agree- 
 ment should be inferred from the facts, that whenever the 
 firm is dissolved its real property shall be sold and the 
 proceeds distributed as personalty, the doctrine of equit- 
 able conversion properly applies. Equity regarding that 
 as done which ought to be done, treats the land as converted 
 into personal property for all purposes as between the part- 
 ners and those claiming through them, so that on the dis- 
 solution of the firm its real property is treated and admin- 
 istered exactly as is its personalty, is sold and the proceeds 
 used in paying debts, the balance being distributed among 
 the partners as personalty. As it is personal property by 
 •equitable conversion it follows that the wife or widow of 
 each partner has no right of dower therein, nor does the 
 deceased partner's interest descend to his heir.^^ In Eng- 
 land such an agreement is implied in all cases, firm real 
 property being treated as personalty for all purposes of 
 •distribution, the right of dower never attaching.!^ In this 
 country this doctrine is followed only in case of an express 
 agreement to that effect, which may be in writing or by 
 parol, incorporated in the original partnership agreement 
 or subsequently made, or in case of such agreement implied 
 in fact." It will be implied where the partnership is 
 organized to buy and sell real estate for profit, it being 
 clear in such case that the parties did not intend in any 
 sense to become landed proprietors individually, the land 
 being purchased in the regular course of the firm's busi- 
 ness for the express purpose of selling it at a profit.^^ 
 
 12. Buckly V. Doig, 188 N. Y. 238; Eng. Partnership Law, 53 & 54 Vict. 
 Darrow v. Calkins, 154 N. Y. 503. ch. 39, §§ 20-23. 
 
 13. Darby v. Darby, 3 Drewry 495; 14. See note 8, supra. 
 
 15. Buckly T. Doig, 188 N. Y. 238. 
 
4:14 Estates vh Ektieett. 
 
 CHAPTER X. 
 
 Estates in Entirety. 
 
 § 210. Nature of Estates in Entirety. — A conveyance or 
 devise of real property to two persons wlio are married to 
 each other at the time of the conveyance creates an estate 
 in entirety. The conveyance is to the unity of husband 
 and wife. They hold as one person, each being entitled to the 
 equal enjoyment and possession of the property with the 
 other as a member of the unity.^ The four unities of time, 
 title, interest and possession must be present, as in the 
 case of a joint tenancy, and in both classes of estates they 
 must take by purchase, viz.: by deed or will, and not by 
 inheritance.^ The right of survivorship exists between 
 them, since the estate belongs to the unity, and therefore 
 continues in the survivor as the surviving member of the 
 unity.* These estates differ from joint tenancies in that 
 the right of survivorship cannot be defeated by any con- 
 veyance which either party may make. The reason for this 
 rule is that neither party has an interest that can be con- 
 veyed. The estate is held by the legal unity absolutely, 
 and therefore neither party has any individual interest 
 other than the right to a share in the possession and the 
 rents and profits. If the husband conveys or mortgages 
 his interest it will be valid only as covering his share of 
 
 1. Co. Litt. 187b; Miner v. Brown, ciple that any estate held by husband 
 133 N. Y. 308; Buttlar v. Rosenblath, and wife together must be held by the 
 42 N. J. Eq. 651, and cases In notes entirety, it was held that where the 
 following. parents inherited land from a de- 
 
 2. Knapp v. Windsor, 60 Mass. 156, ceased child they took by the en- 
 expressing the general rule, recog- tirety. Hilliam's Exrs. v. Dixon, 65 
 nized expressly or impliedly in the Pa. St. 395. 
 
 eases cited under this and the fol- 3. See cases in last two notes and 
 
 lowing section. in notes following under this and the 
 
 In Pennsylvania, following the prin- following section. 
 
Natueb of Estates in Entieett. 415 
 
 the rents and profits during the joint lives of himself and 
 his wife. If the husband die first his deed or mortgage is 
 void as against the wife, who becomes sole owner by sur- 
 vivorship. But if the husband survives he is estopped from 
 denying the validity of the deed or mortgage as against 
 his grantee or mortgagee who has paid him for the prop- 
 erty, or has loaned him money on the land as security, and 
 the deed or mortgage becomes good and enforceable by 
 estoppel against the entire property, not merely against an 
 undivided one-half interest therein.* 
 
 K the land be conveyed to two persons who are about 
 to marry, though the deed expressly provide that they hold 
 as tenants in entirety, they cannot so hold, but take as 
 tenants in common or joint tenants; the existence of the 
 marital relation at the time of the delivery of the deed is 
 essential, the conveyance being to the unity in all cases 
 of these estates."* A conveyance or devise made to hus- 
 band and wife expressly as tenants in common or joint 
 tenants is valid, and they take as so provided. Though 
 the law declares that husband and wife are one, their unity 
 exists for certain well defined purposes, in no way pre- 
 venting the wife from owning property in her own right. 
 
 4. 2 Bl. Com. 183; Hiles v. Fislier, Carty, 158 Mass. 11 (could not take 
 144 N. Y. 306; Buttlar v. Eosenblath, as tenants in entirety since the mar- 
 42 N. J. Eq. 651; Wyckoflf v. Gardner, riage between them was void; they 
 20 N. J. L. 556; Pray v. Stebbins, 141 took as joint tenants, the intent that 
 Mass. 219; Chandler v. Cheney, 37 they should hold jointly being ex- 
 Ind. 391; Shinn v. Shinn, 43 Kan. 1. pressed) ; Messing v. Messing, 64 App. 
 
 In Pennsylvania it is held that the Div. (N. Y.) 125; Hardenberg v. 
 purchaser of the husband's interest is Hardenberg, 10 N. J. L. 42. In Ban- 
 not entitled to the possession during zer v. Banzer, 10 Misc. (N. Y.) 24, 
 the life of the wife, the income or the court held that a, conveyance to 
 present enjoyment being held by the the wife by a cotenant of the hus- 
 entirety in that state, contrary to band made the wife tenant in com- 
 the general rule under the Married mon with her liusband, not tenant by 
 Women's Acts. McCurdy v. Canning, the entirety, since the conveyance 
 64 Pa. St. 39. was not to the unity. 
 
 5. Co. Litt 187b; Morris v. Mc- 6. McDermott v. French, 15 N. J 
 
416 
 
 Estates in Entiebtt. 
 
 Therefore she may hold an undivided interest in land as 
 tenant in common or joint tenant with her husband.® 
 
 "Where land is conveyed to husband and wife and to 
 others, the husband and wife together count as only one 
 person and receive only one share or portion, wiich they 
 hold as between themselves as tenants in entirety. Thus 
 if lands be conveyed or devised to A, B, C and D, and A and 
 B are husband and wife, they will together receive one- 
 third as tenants in entirety between themselves, but to- 
 gether holding as a tenant in common with C and D, who 
 each receive one-third.'^ Of course if it appear aflSrma- 
 tively in the deed or will that the husband and wife are 
 to take as tenants in common or joint tenants, not only 
 with the others but also as between themselves, each will 
 
 Eq. 78 ; Fulper v. Fulper, 54 N. J. Eq. 
 431; Hiles v. Fisher, 144 N. Y. 313 
 (dicta) ; Jooss v. Fay, 129 N. Y. 17; 
 Miner v. Brown, 133 N. Y. 312 (here 
 the court, by a strained construction, 
 found that a tenancy in common was 
 intended in order to avoid holding 
 tliat the entire interest in the rents 
 and profits passed on an execution 
 sale to satisfy a debt of the husband. 
 This was unnecessary, as only the 
 husband's share of the rents and 
 profits would pass in any event under 
 the sale, subject to the wife's right 
 of survivorship, leaving the wife's in- 
 terest entirely unaffected) ; Thorn- 
 ton V. Wiggins, 135 Ind. 178; Wil- 
 kins V. Young, 144 Ind. 1. 
 
 In Young's E=tate, 166 Pa. St. 645, 
 the court reaffirms the doctrine that 
 husband and wife cannot hold as ten- 
 ants in common or joint tenants, 
 even though the deed or will ex- 
 pressly so provides, as laid down in 
 Stuckey v. Keefe's Exr's, 26 Pa. St. 
 397, and again reaffirmed in Hetzel 
 V. Lincoln, 216 Pa. St. 60. That these 
 
 cases are not sound law seems clear, 
 the court having lost sight of the fact 
 that husband and wife must hold as 
 tenants in common or joint tenants if 
 they held as such tenants before their 
 marriage, and that the estate in en- 
 tirety depends on the intent to con- 
 vey or devise to the unity, which in- 
 tent is absent in the above cases, a 
 contrary intent being expressed. 
 
 In Eaak Lumber Co. v. Crothers, 
 146 Mich. 575, where the wife joined 
 with her husband in a deed of his in- 
 dividual property given to secure a 
 loan only, and on repayment of the 
 loan the land was conveyed back to 
 husband and wife, no estate in en- 
 tirety was created, the intent of the 
 reconveyance being to discharge the 
 mortgage only, the first deed having 
 in equity the force and effect of a 
 mortgage. 
 
 7. Jupp V. Buckwell, 39 Ch. Div. 
 148; Barber v. Harris, IS Wend. (N. 
 Y.) 615; Hardenberg v. Hardoiberg, 
 10 N. J. Law 43. 
 
Effect of Statutes on Estate in Entirety. 
 
 417 
 
 take a full portion in accordance with the expressed in- 
 tend.* 
 
 § 211. Effect of Statutes on Estate in Entirety.— The 
 statutes enacted in the different states that a conveyance 
 or devise to two or more persons creates a tenancy in com- 
 mon unless expressly made in joint tenancy do not apply 
 to conveyances to husband and wife, and therefore do not 
 alfect estates in entirety. The conveyance or devise to 
 husband and wife is to the unity, not to them as individuals.* 
 
 8. The rule that they take as one 
 person is a mere rule of construction 
 with very little in its favor, and sup- 
 ported in this country by very slender 
 authority. The more reasonable con- 
 struction of such a grant or devise 
 would seem to be that the parties 
 were intended to take in equal shares, 
 the fact of marriage between two of 
 them making no difference. The fic- 
 tion of the unity of husband and wife 
 existed even under the old common 
 law for certain well defined purposes 
 only, and outside of those purposes 
 it had no existence, the parties being 
 recognized as in fact two persons. 
 This fiction for the most part has dis- 
 appeared, and it seems quite absurd 
 for courts to hold as a matter of law 
 that a testator or grantor in the case 
 referred to intended to treat the hus- 
 band and wife as only one person, 
 they to take between them only one 
 share, in the absence of an express 
 provision to that effect in the deed 
 or will. That this is a mere rule of 
 ronstruction, see In re March, 37 Ch. 
 Div. 166, and Jupp v. Buckwell, 39 
 Oh. Div. 148, the latter case, however, 
 confirming the old rule as law at the 
 present time in spite of the Married 
 Woman's Acts. 
 
 Tn some states it is held that an 
 
 27 
 
 estate in entirety does not arise out 
 of a transfer of personalty to husband 
 and wife, they taking personalty as 
 separate individuals and therefore 
 as tenants in common. Matter of Al- 
 brecht, 136 N. Y. 91; Baumann v. 
 Guion, 81 Misc. (N. Y.) 120; Wait v. 
 Bovee, 35 Mich. 425. Contra, Bram- 
 berry's Est^ 156 Pa. St. 628; John- 
 stone v. Johnstone, 173 Mo. 91. 
 
 1. Hardenberg v. Hardenberg, 10 N. 
 J. L. 43; Diver v. Diver, 66 Pa. St. 
 106 J Hills V. Fisher, 144 N. Y. 306. 
 
 In Massachusetts and several other 
 states husband and wife take as ten- 
 ants in common by the express terms 
 of the statute unless the deed or will 
 provide that they take by the en- 
 tirety or as joint tenants. Mass. Rev. 
 L. Ch. 134, § 6 (L. 1885, c. 237); 
 Pease v. Inhabitants of Whitman, 
 182 Mass. 363; Pray v. Stebbins, 141 
 Mass. 219; Wilson v. Wilson, 43 
 Minn. 398; Hoffman v. Stigers, 28 la. 
 302 (in last two cases statute in the 
 usual form was held to apply to es- 
 tates in entirety, changing them to 
 tenancies in common unless expressly 
 created in entirety) ; McNeely v. 
 South Pa. Oil Co., 52 W. Va. 616 
 (survivorship done away with and 
 therefore husband and wife hold as 
 tenants in common in all cases). 
 
418 Estates m Entieett. 
 
 Tlie Married Woman's Property Acts, enacted in the dif- 
 ferent states, whicli give to married women control over 
 their individual property as though unmarried, were not 
 intended to change the nature or character of estates held 
 by married women. The purpose of these statutes is to take 
 away from the husband the estate by the marital right given 
 him by the law in all of his wife's property, by virtue of 
 which he was entitled to the rents, profits, possession and 
 enjoyment of all her real property during their joint lives, 
 whether owned by her outright, or as tenant in common 
 or joint tenant, or as tenant in entirety. The husband's 
 common law right to the entire income from land held by 
 them as tenants in entirety, therefore, was an incident of 
 the estate by the marital right, the same right extending 
 to all estates in land of which the wife was the owner, and 
 was in no sense an incident of estates in entirety. The 
 only effect of these statutes upon estates in entirety, there- 
 fore, is to give to the wife her one-half of the rents and 
 profits, the husband being now limited to his one-half in- 
 terest therein. Each may convey this one-half interest in 
 the rents and profits for their joint lives. Therefore a 
 deed of the husband conveying his interest in property 
 held in entirety transfers to the grantee the husband's share 
 of the rents and profits during the joint lives of husband 
 and wife. As explained in the preceding section, such a 
 conveyance or a mortgage of the husband's interest operates 
 by estoppel in case the husband survives the wife, giving the 
 grantee or purchaser on foreclosure of the mortgage the 
 entire property, not an undivided one-half share, and of 
 course the same results would follow a conveyance or mort- 
 gage made by the wife of her interest.^ 
 
 2. Buttlar v. Eosenblath, 42 N. J. be sold by the husband, or on ex«CB- 
 
 Eq. 651; Hiles v. Fisher, 144 N. Y tion for his debts). See note 4 nn- 
 
 306; Pierce v. Chace, 108 Mass. 258, der preceding section. 
 
 McCurdy v. Canning, 64 Pa. St. 39 In some states the Married Wo« 
 
 (holding that not even an undivided man's Acts have been construed as 
 
 interest in the rents and profits can destroying; estates in entirelar, the 
 
Teeminatioh of the Estate. 419 
 
 Since neither husband nor wife has any interest, other 
 than this one-half share of the rents and profits, that can 
 be conveyed, it follows that their creditors cannot sell the 
 interest of either one on execution to satisfy their individ- 
 ual debts.^ The right of each in the rents and profits may 
 be conveyed, and therefore may be sold on execution in 
 behalf of creditors.* The purchaser of a one-half interest 
 in the rents and profits becomes entitled to the common 
 possession and enjoyment of the property and of the rents 
 and profits, exactly as though he were tenant in common 
 with the other tenant, his interest, however, coming to an 
 end on the death of the tenant whose interest he had pur- 
 chased, being defeated by the right of survivorship of the 
 other tenant.^ 
 
 § 212. Termination of the Estate. — Partition will not lie 
 between tenants in entirety.^ Under the modern statutes 
 they may divide the property by mutual deeds, and in any 
 event partition by deed could be accomplished by convey- 
 ance to a third person and reconveyance in portions back 
 to the husband and wife as individuals. The entire fee 
 may be conveyed by their joining in a conveyance to a 
 third person, since the unity in such case conveys the prop- 
 erty. Under the modern statutes which enable a married 
 
 parties holding as tenants in common. 3. Shinn v. Shinn, 42 Kan. 1; 
 
 Cooper V. Cooper, 76 111. 57 (holding Chandler v. Cheeiiy, 37 Ind. 391. 
 
 tl:at the reason for the rule that they i. Miner v. Brown, 133 N. Y. 312. 
 
 take by the entirety ceased on the See, also, cases in note 2, supra, also 
 
 taking effect of the Married Woman's note 4 under preceding section. 
 
 Acts); Robinson's Appeal, 88 Me. 17; 5. Hiles v. Fisher, 144 N. Y. 313; 
 
 Clark V. Clark, 56 N. H. 105; Done- Ketcham v. Walsworth, 5 Wis. 95, 
 
 gan V. Donegan, 103 Ala. 488 (dicta, and cases in note 2, supra. 
 
 as a divorce was subsequently se- 6. Chandler v. Cheney, 37 Ind. 391 
 
 cuied) ; Bassler v. Eewodlinski, 130 (dicta); Ketcham v. Walsworth, 5 
 
 Wis. 26 (Stat, of 1878 abolished es- Wis. 95; N. Y. Stat. L. 1896, ch. 372, 
 
 states in entirety, parties taking as § 86, permits voluntary partition, but 
 
 joint tenants — wife could not defeat not by action. 
 survivorship by devise). 
 
420 Estates in Entieett. 
 
 woman to convey or receive conveyances of land as though 
 unmarried, mutnal deeds of partition are valid, the unity 
 conveying to each a definite portion of the property by 
 metes and bounds. 
 
 Divorce terminates the estate, since the continued ex- 
 istence of the unity, and therefore of the marital relation, 
 is essential to the continued existence of an estate in en- 
 tirety. The parties thereafter hold as tenants in common 
 under statutes providing that a tenancy in common arises 
 unless an estate in joint tenancy be expressly created.'' 
 
 7. Stelz V. Shreck, 128 N. Y. 263; In a few states it Is held that the 
 
 Harrer v. Wallner, 80 HI. 197; En- tenancy by the entirety continues 
 
 yeart v. Keppler, 118 Ind. 34 (36) after the divorce. Alles v. Lyon, 219 
 
 (dicta); Donegan t. Donegan, 103 Pa. St. 604; Lewis' App., 85 MSe^ 
 
 Ala. 488. 8Mi 
 
Conveyances bt Metes and Bounds. 421 
 
 CHAPTER XL 
 
 Incidents of Co-ownbeship. 
 
 § 213. Conveyances by Metes and Bounds. — The nature 
 of a joint tenancy or tenancy in common makes it impos- 
 sible for any tenant to convey or mortgage his interest in 
 any specific part of the land held jointly or in common. If 
 each tenant were permitted to divide up the common prop- 
 erty in tracts as he pleased, conveying or mortgaging his 
 interest in each tract to different persons, the result would 
 be utter confusion. Thus A and B, holding as tenants in 
 common or joint tenants, might each decide to divide the 
 land in different parcels, the lines of division made by A 
 and those made by B coinciding at no point. If A should 
 then convey his interest in each subdivision as laid out by 
 him, and B should in the same way convey his interest in 
 the entirety different subdivisions to different persons, the 
 confusion resulting in the interests of the purchasers from 
 A and B may be better imagined than described. Though 
 only a single division is sought to be made by A, no division 
 being contemplated by B, the rights of B would be violated, 
 since he should not be compelled to accept a portion of each 
 of the parcels resulting from A*s division in a partition of 
 the property, which would be necessary if A's conveyance 
 be given effect against him. It is contrary to the nature of 
 the tenancy that one tenant be compelled to accept two or 
 more physically unconnected parcels in the final partition 
 of the land. Therefore any such conveyance or mortgage 
 is void in every respect except as it may be rendered valid 
 in equity against the grantor or mortgagor by estoppel.^ 
 
 I. Bartlett v. Harlo-w, 13 Mass. common was declared void, the court 
 
 348 (in which case a sale under exe- stating (dicta) that if on partition 
 
 cution of the tenant's interest in a this portion should be set off to the 
 
 part only of the 60 acre tract hM 'n tenant the sale under execution would 
 
422 Incidents op Co-owneeship. 
 
 The same principle applies to several cotenants taking 
 by inheritance or grant several distinct parcels of land 
 which they hold jointly or in common. Since in an action 
 of partition one lot may be assigned to one in severalty, 
 and another lot to another, each tenant cannot interfere 
 with this possible right by selling his interest in any one 
 parcel to a stranger.^ 
 
 In equity, however, such a deed or mortgage is good by 
 estoppel against the tenant who executed it. Therefore in 
 an action of partition the part so conveyed will be set off 
 to the tenant who made the conveyance if this can be done 
 without in any way prejudicing the rights of his cotenant 
 or cotenants.^ Whenever as a result of partition the 
 part so conveyed or mortgaged, or sold under execution, 
 is allotted to this tenant, the purchaser's or mortgagee's 
 title is good by estoppel, the tenant being estopped from 
 denying the validity of the deed or mortgage, he having 
 received the purchase price, or the loan for which the mort- 
 gage was given as security.* 
 
 be good by estoppel exactly as in the The free alienation of the tenant'i 
 case of a voluntary conveyance by interest in a distinct parcel of land 
 the tenant) ; Varnum v. Abbott, 12 should not be interfered with unless 
 Mass. 474 (the court holding that a it would result, in the particular case, 
 sale under execution on a judgment in depriving the other tenant of a sub- 
 worked an estoppel as suggested by stantial right in partition, and there- 
 the dicta in the preceding case) . See, fore if a fair partition may be made 
 also, cases in notes following, also without injustice to such other ten- 
 Tainter v. Cole, 130 Mass. 163, hold- ant in any other way than by as- 
 ing that a lease made by one tenant signin'g liim the entire parcel in ques- 
 in common was void as to the others, tion, the conveyance of the tenant's 
 2. Baines v. Lynch, 131 Mass. 510. interest therein should be sustained, 
 In Markoe v. Wakeman, 107 111. 251, there being nothing in the nature of 
 while deciding that a conveyance of co-ownership of the parcel, other 
 his interest in a part of a single tract than tliis possible right in partition, 
 by one tenant in common was void which would be inconsistent with 
 as to his cotenant, contains dicta to such conveyance. 
 
 the effect that a conveyance of the 3. Emeric v. Alvarado, 90 Cal. 444, 
 
 tenant's interest in the entire parcel and eases in following note. 
 
 would be geod for all purposes, 4. Varnum v. Abbott, 13 Mass. 474; 
 
 though they hold other parcels as ten- Holcomb v. Coryell, 11 N. J. Eq. 548} 
 
 ants in common. Emerio v. Alvarado, 90 Cal. 444. In 
 
Otjstee of One Cotenant bt Anothee. 423 
 
 For like reasons one cotenant cannot create an ease- 
 ment •wMch will bind the other cotenants, either by grant 
 or by such use of adjoining property belonging to him in 
 severalty as would be sufficient as against a stranger to 
 create an easement by prescription.'' 
 
 § 214. Ouster of One Cotenant by Another. — An ouster 
 takes place where one or more of the tenants either forces 
 another cotenant out of the possession of the whole or any 
 substantial part of the premises held by them jointly, or 
 prevents him from entering and enjoying the possession, 
 the right to which is common to all. The ouster may be 
 accomplished by forceful means or indirectly by so using 
 the premises as to prevent such common enjoyment and 
 possession.^ The tenant ousted may maintain ejectment 
 against the tenant or tenants who ousted him, the result of 
 the action if he succeeds being a judgment restoring him 
 to the possession in common with the others, not in an actual 
 ejectment of the defendants.* They are ejected only in the 
 sense that they are forced to give up the exclusive posses- 
 sion by receiving the plaintiff and admitting him to the 
 possession in common with themselves. Such an ouster 
 amounts also to a technical trespass upon the ousted ten- 
 
 Crook V. Van Devoort, 13 Neb. 505, N. Y. 51, 57; Stevens v. Wait, 113 
 
 the purchaser of a cotenant's interest 111. 544, and cases in notes following, 
 
 in part of the land held in common It is submitted that the exclusive 
 
 was permitted to maintain ejectment occupation of part of the premises re- 
 
 against a mere disseisor, the recovery fusing to permit the cotenant to oc- 
 
 inuring to the benefit of all the ten- cupy that part will not amount to an 
 
 ants in common, recognizing the pur- ouster where the reasonable enjoy- 
 
 chaser's title as valid against all but ment of the premises by both tenants 
 
 the other tenants. requires that each have exclusive pos- 
 
 5. Palmer v. Palmer, 150 N. Y. 139 ; session of a part. For example, sleep- 
 
 Crippen v. Morss, 49 N. Y. 63; Ben- ing rooms in a dwelling owned and 
 
 jamin v. Am. Tel. & Teleg. Co., 196 occupied by tenants in common. 
 
 Mass. 454; Holcomb v. Coryell, 11 N. 2. See cases in preceding note, also 
 
 J. Eq. 548. Clay v. Field, 115 U. S. 260; Carpen- 
 
 1. Trustees, etc. v. Johnson, 66 ter v. Thayer, 15 Vt. 553, and cases 
 
 Barb. (N. Y.) 119; Zapp v. Miller, 109 in following notes under this sectio*. 
 
424 Incidents of Co-owneeship. 
 
 ant's interest, and trespass will also lie on his part against 
 them. If they are tenants in common of a mere incorporeal 
 right, as a right of fishery, trespass will not lie since no 
 corporeal interest is involved, but an action of trespass on 
 the case will lie, as where an incorporeal property right is 
 violated by a stranger.^ In the action of trespass the tenant 
 can recover for the ouster only, not for the continued exclu- 
 sive possession wrongfully maintained by the tenant or 
 tenants guilty of the ouster. An action for mesne profits, 
 the technical action brought against any disseisor in wrong- 
 ful adverse possession, is the proper action for the ousted 
 tenant to bring in order to recover damages for the wrong- 
 ful exclusive possession maintained by the cotenant or co- 
 tenants in violation of his right.* At common law it was 
 necessary that this action be preceded by a successful eject- 
 ment suit, or the recovery in some other lawful way of the 
 common possession, but now in New York and most states 
 the recovery of mesne profits, or an accounting for the 
 wrongful exclusive occupation, may be had in the ejectment 
 suit, thus dispensing with the need of another action after 
 the conclusion of the suit in ejectment.** 
 
 If an ouster is committed, so that ejectment may be main- 
 tained, the tenant who committed the ouster is in adverse 
 possession as against the tenant ousted, provided it be 
 proved that such tenant had notice thereof, and if continued 
 for the period provided by the Statute of Limitations as 
 
 3. Duncan v. Sylvester, 24 Me. 482. that a tenant who makes exclusive 
 The destruction of the thing owned use of the lands must account for his 
 
 in common, as a tree on a boundary cotenant's just share of the profits 
 
 line, gives rise to an action of tres- therefrom, though there be no ouster, 
 
 pass for the damage done to the He is not, however, required to ao- 
 
 plaintiff's interest. Dubois v. Beaver, count for the sole possession of • 
 
 25 N. Y. 123. house held in common, in the absence 
 
 4. Fenton v. Miller, 116 Mich. 45; of proof of ouster. Buckelew v. 
 Izard V. Bodine, 11 N. J. Eq. 403; Snedeker, 27 N. J. Eq. 82; Edsall t. 
 Zapp V. Miller, 109 N. Y. 51; Badger Merrill, 37 N. J. Eq. 114. 
 
 V. Holmes, 70 Mass. 118. 6. Clay v. Field, 115 U. S. 2«0| 
 
 In New Jersey the view is taken Zapp v. Miller. 109 N. Y. 51. 
 
Odstbe of Owe Cotenant by Anothee. 
 
 425 
 
 applied to actions in ejectment, usually 20 years, he becomes 
 sole owner, the cotenant's right in ejectment being barred 
 by the statute.* Mere exclusive possession and the receipt 
 of all the rents and profits is not adverse possession, as in 
 the case of such holding by a disseisor against an owner in 
 severalty.'^ At most it is evidence of an ouster and conse- 
 quent adverse possession, insufficient without proof of some 
 positive act of exclusive ownership in denial of the coten- 
 ant's right, of which the cotenant has notice, express or im- 
 plied.^ The presumption is that the tenant occupies of his 
 own right and not adversely to his cotenant. A conveyance 
 by a cotenant which purports to convey the property in 
 severalty, followed by possession by the grantee, is an 
 ouster, and the grantee is in adverse possession to the other 
 tenant. Such a conveyance without change of possession is 
 not enough to create adverse possession.* 
 
 6. Millard v. McMHlin, 68 N. Y. 
 345 ; Donason v. Barbero, 330 111. 138 ; 
 Stevens v. Wait, 112 111. 544; In- 
 galls V. Newhall, 139 Mass. 268; Susq. 
 & W. V. R. etc. Co. V. Quick, 61 Pa. 
 St. 338; Unger v. Mooney, 63 Cal. 
 586; Kellmer v. Wuchner, 74 la. 359. 
 
 7. Co. Litt. 199b; 4 Kent Com. 370; 
 Ingalls V. Newhall, 139 Mass. 268; 
 Van Bibber v. Ferdinand, 17 Md. 436 ; 
 Wass V. Bucknam, 38 Me. 356; Tul- 
 !oek V. Worrall, 49 Pa. St. 133, and 
 cases in preceding note. 
 
 8. Some positive act of hostility to 
 the cotenant's title, notice of which 
 is brought home to him, must be pres- 
 ent to make exclusive possession 
 amount to adverse possession. There 
 must be legal ouster with notice 
 thereof brought home to the tenant 
 ousted. Donason v. Barbero, 330 III. 
 138; Loranger v. Carpenter, 148 
 Mich. 549 (assertion of title by the 
 
 tenant to a stranger not communis 
 cated to the cotenant was not admis- 
 sible to prove ouster) ; Culver v. 
 Rhodes, 87 N. Y. 348; Tarplee v. 
 Sonn, 109 App. Div. (N. Y.) S41, and 
 cases in last two preceding notes, and 
 following note. 
 
 9. Unger v. Mooney, 63 Cal. 586; 
 King V. Carmichael, 136 Ind. 20; Par- 
 ker V. Proprietors, etc., 44 Mass. 91; 
 Jackson v. Smith, 13 Johns (N. Y.) 
 406; Sanford v. Safiford, 99 Minn. 380. 
 
 Of course the forceful putting or 
 keeping of the tenant out of posses- 
 sion, refusing to permit him to oc- 
 cupy and enjoy the property, is the 
 most satisfactory evidence of ad- 
 verse possession. Newell v. Wood- 
 ruff, 30 Conn. 492; Siglar v. Van 
 Riper, 10 Wend. (N. Y.) 414. 
 
 As to ouster from part of the prem- 
 ises, see Carpenter v. Webster, 27 
 Cal. 534. 
 
426 IlTOIDENTS OS Co-OWNEESHIP. 
 
 § 215. Liability of Tenant in Possession to Tenant out of 
 Possession for Rents and Profits, Use and Occupation. — Tlie 
 
 tenant in sole possession, without denying Ms cotenant'a 
 rights and without excluding him in any way from the com- 
 mon possession and enjoyment of the premises, is not liable 
 to the tenant out of possession for the use and occupation 
 which he has enjoyed, nor is he liable to account for the 
 crops or other benefits derived by him from his own in- 
 dustry in the use and enjoyment of the common property. 
 It is his to occupy and enjoy, as it is his cotenant's, and so 
 long as he is guUty of no ouster of his cotenant he is in no 
 sense a wrongdoer in occupying, using and enjoying his 
 property.^ Before the Statute of Anne * he was not liable 
 to account to his cotenant for rents collected by him from 
 tenants for years to whom the land may have been let, nor 
 for profits derived from the sale of timber, minerals or other 
 corporeal part of the land itself, but by that statute he is 
 required to account as bailiff for what he has received be- 
 yond his share. This statute has been followed by similar 
 statutes in many of the states, and in others it has been 
 recognized as part of the law.' In England it is strictly 
 construed as applying only to rents received from tenants 
 for years, not to profits derived from the sale of timber, 
 minerals or the like, the sale of which permanently di- 
 minishes the value of the freehold.* In this country it is 
 
 1. Le Barron v. Babcoek, 1S3 N. Y. Brown v. Wellington, 106 Mass. 318; 
 153 ; Peck v. Carpenter, 73 Mass. 233 ; Flack v. Gosnell, 76 Md. 88 ; Enter- 
 Badgar v. Holmes, 70 Mass. 118, and prise Oil & Gas Co. v. Nat. Transit 
 cases cited in notes 4 and 5 follow- Co., 173 Pa. St. 431; Holmes v. Best, 
 ing. 58 Vt. 547; 3 Sharswood & B. Lead. 
 
 2. St. 4 and 5 Anne, ch. 16, § 87, Cas. 98. 
 
 requiring the tenant as bailiff to ac- A Pennsylvania statute relates only 
 
 count to his cotenant or cotenants for to accounting by tenants in commoD 
 
 their just share and proportion re- of mineral lands as to proceeds of 
 
 ceived by him. minerals taken from the land. Ful- 
 
 3. N. Y. Code Civ. Pro., § 1666; mer's App., 128 Pa. St. 24. 
 Gedney V. Gedney, 160 N. y. 471, 476; 4. Henderson v. Eason, 17 Q. B. 
 Joslyn V. Joslyn, 8 Hun (N. Y.) 388; 701; Job v. Patton, L. R. SO Bq. 84. 
 
Liability of Tenant is PossbssioU. 
 
 427 
 
 generally construed as applying to such profits as well as 
 to rents, such being unquestionably the more liberal and 
 reasonable interpretation of its very meagre provisions.^ In 
 this country as well as in England the courts are generally 
 agreed that the statute has no application to crops grown 
 by the labor and industry of the tenant in possession, nor 
 to their proceeds, nor does it render the tenant liable to 
 account for the use and occupation of the premises for 
 residential, business or other purpose.^ In several states 
 the tenant out of possession may recover his share of the 
 profits derived by the cotenant from his sole use and enjoy- 
 ment of the land, though no ouster has occurred, the statute 
 in several eases so expressly providing.^ 
 
 5. See cases cited in note 3, supra, 
 also Zapp V. Miller. 109 N. Y. 51; 
 Hayden v. Merrill, 44 Vt. 336 ; Adams 
 V. Bristol, 126 App. Div. (N. Y.) 660; 
 Everts v. Beach, 31 Mich. 136; Kean 
 T. Connelly, 25 Minn. 222. 
 
 In New Jersey, while the tenant is 
 not liable for use and occupation, as 
 the statute is construed in that state 
 (Barrel! v. Barrell, 25 N. J. Eq. 173), 
 he is liable for the profits derived 
 from the exclusive working of the 
 land, though there be no ouster. 
 Buckelow V. Snedeker, 27 N. J. Eq. 
 82; Edsall v. Merrill, 37 N. J. Eq. 
 114 (dicta, as tenant was compelled 
 to account for the net profits from 
 the mining of mica, in entire accord 
 with the general view). 
 
 In Cosgriff v. Dewey, 164 N. Y. 1, 
 and Abbey v. Wheeler, 170 N. Y. 122, 
 the tenant was compelled to account 
 for his cotenant's share of the net 
 profits, in the first ease derived from 
 working a quarry, and in the second 
 case from working a mine. Though 
 the court speaks of the tenant's lia- 
 bility as for waste, these decisions 
 Rrere based on tlie tenant's liability to 
 
 account for profits under the statute. 
 In the first case the court said, re- 
 ferring to the stone quarried : " It 
 was not, in any proper sense, the pro- 
 duct of the land, but was part of tho 
 land itself. It did not represent the 
 use of the land or the rents and 
 pofits, but to the extent that it was 
 taken by the defendant operated as 
 a diminution of the estate. If the 
 defendant had taken valuable timber 
 from the land and sold it or con- 
 verted it into lumber, there is no 
 doubt, we think, that he would be 
 liable to account for its value to Iiis 
 cotenants." That the working of the 
 quarry or mine was not waste is 
 clear. Even a tenant for years would 
 have the right to do so, the property 
 having been appropriated to that 
 use. A tenant in common or joint 
 tenant does not commit waste unless 
 his act constitutes wanton or unrea- 
 sonable injury inconsistent with the 
 exercise of prudent ownership. See 
 § 218, post. 
 
 6. See eases in last three notes. 
 
 7. Wooley v. Schrader, 116 111. 99 
 (the statute in Illinois so providing); 
 
428 Incidents op Co-owneeship. 
 
 There is nothing to prevent the tenants from contracting 
 in any way they please concerning the exclusive use of the 
 premises by one of them, and any such contract will be 
 enforced in accordance with the rules of law governing con- 
 tracts. One tenant may let his interest to his cotenant at 
 a stated rental, the lease determining their rights. But at 
 the end of the term the tenant in exclusive possession under 
 the lease does not render himself liable as a holdover tenant 
 by remaining in possession. His possession at the expira- 
 tion of the lease is that of cotenant, not of a tenant under a 
 lease wrongfully holding over. As tenant in common or 
 joint tenant he has the right to remain in possession.^ 
 
 Where both tenants are in possession they are co-owners 
 of any crop they may produce, and of any perennial crop, 
 such as hay or fruit, which may be produced on the prem- 
 ises. A tenant in sole possession is exclusively the owner 
 of any annual crop sowed or planted and cared for by him, 
 and of so much of a perennial crop, as of hay, which he has 
 harvested. Hay cut and ready for removal is his, his co- 
 tenant having no right to enter and take part of it.* 
 
 § 216. Liability Between Cotenants for Services, for 
 Taxes, Interest on Mortgages and Other Carrying Charges, 
 and for Repairs. — In the absence of an express contract to 
 that effect between the parties a tenant in possession can 
 recover nothing for his own services in managing and caring 
 for the common property. As the work is done in taking 
 
 Cutler V. Currier, 54 Me. 81 (statute McPherson, 33 N. C. 391. There 
 of 1848 changed common law rule and would seem to be little reason and 
 to extent stated modified tlie EnslisB less justice in requiring a tenant to 
 statute) ; Knowles v. Harris, 5 E. I. account for the results of his use of 
 402 (holding that the tenant must pay his own property enjoyed without in- 
 fer exclusive use of the premises for jury or wrong to his cotenant. 
 manufacturing purposes one-half the 8. Dresser v. Dresser, 40 Earb. (N. 
 fair rental value). See. also, Ward Y.) 634; McKay v. Mumford, 10 
 V. Ward's Heirs, 40 W. Va. 611; West Wond. (N. Y.) 351. 
 V. Weyer, 46 Oh. St. 6R; White v. 9. Le Barron v. Babcock, 128 N. T. 
 Stewart, 76 Va. 546; McPherson v. 153. 
 
Liability Between Cotenants fob Sbevices, etc. 429 
 
 care of Ms own property, he is held to have acted for him- 
 self, and therefore there is no basis for a quasi-contractual 
 obligation on the part of the other tenant or tenants to pay 
 for such services.^ 
 
 Taxes, interest on a mortgage to which the joint estate is 
 subject, and other carrying charges, which must be paid to 
 prevent sale for taxes or under foreclosure, fall upon each 
 tenant in proportion to his interest in the property. If one 
 of them pays the entire amount he may compel the others 
 to contribute their shares by an action in equity for contri- 
 bution, based on the maxim that equality is equity. The 
 same duty to pay such charges is imposed on all, and there- 
 fore it is equitable that if one pays the entire amount, the 
 others contribute their proportionate shares.^ "Where one 
 tenant pays off a mortgage or other encumbrance which has 
 fallen due he is subrogated to the position of the mortgagee 
 or other encumbrancer, and may enforce contribution by 
 enforcing the encumbrance against the cotenant's interest 
 in the property.' 
 
 This doctrine of contribution has not been extended to 
 cover the cost of necessary repairs made by one of the ten- 
 ants as against the others. Under the ancient common 
 law if a house or a mill held by tenants in common or joint 
 tenants became out of repair, one of them could compel the 
 others to join in the making of necessary repairs by means 
 of the old writ de reparatione facienda, the court determin- 
 ing what repairs were required, and directing and superin- 
 tending their making. By order of the court the tenants 
 were compelled to join in the making of the repairs. There 
 
 1. Myers v. Bolton, 157 N. Y. 393. 3. Sawyer v. Lyon, 10 Johns. (N. 
 
 2. Eads V. Rutherford, 114 Ind. Y.) 33; Cornell v. Prescott, 3 Barb. 
 373; Campbell v. Meiser, 4 Jolina. (N. (N. Y.) 16; Dickinson v. Williams, 11 
 Y.) 337; Clark v. Lindsey, 47 Oh. St. Cush. (Mass.) 258 (liolding thst as- 
 437; Stewart V. Stewart, 90 Wis. 516; sumpsit -will lie to recover a shatre 
 Pewing V. Dewing, 165 Mass. 230; of amount paid in clearing off com- 
 Cbiekering v. Faill, 38 111. 342; Wal- mon encumbrance); Titsworth v, 
 kins V. Eaton, 30 Me. 539. Stout, 49 111. 78. 
 
430 
 
 Incidents of Co-owneeship. 
 
 was notliing under the old law by which a tenant could 
 make the repairs himseH and thereafter compel his coten- 
 ants to contribute toward their cost.* There are dicta ia 
 several cases that an action on the case or in implied as- 
 sumpsit will lie against a cotenant after the repairs are 
 made, provided a request to join in their making and a re- 
 fusal to do so are proved against the defendant cotenant, 
 such action being regarded as a substitute for the old writ 
 above referred to, which has admittedly become obsolete.' 
 The better view, however, is that no such action will lie in 
 the absence of express contract.* Such expenditures, like 
 
 4. Co. Litt. 200b, Sib; Bowles 
 Case, 11 Co. 83; Calvert v. Aldrich, 99 
 Mass. 74. 
 
 5. Doane v. Badger, 12 Mass. 65; 
 Mumford v. Brown, 6 Cowen (N. Y.) 
 475; Taylor v. Baldwin, 10 Barb. (N. 
 y.) 58; Denman v. Prince, 40 Barb. 
 213 (in last two oases cotenants had 
 expressly contracted to share the re- 
 pairs. Such a contract runs with the 
 land so as to bind grantees of either) ; 
 Stevens v. Thompson, 17 N. H. 103 
 (the court considers it very doubtful 
 r.s to whether such action would lie) ; 
 Farrand v. Gleason, 56 Vt. 633 (ex- 
 press agreement here) ; Fowler v. 
 Fowler, 50 Conn. 256; teaty v. Bord- 
 well, 91 Pa. St. 4"8; Ward v. Ward's 
 Heirs, 40 W. Va. 611. 
 
 6. Calvert v. Aldrich, 99 Mass. 74, 
 the court saying, " The difficulty in 
 the way of awarding damages in 
 favor of one tenant in common 
 against his cotenant for neglecting to 
 repair is, that both parties are 
 equally bound to make the repairs, 
 and neither is more in default than 
 the other for a failure to do so. * * * 
 Between tenants in common partition 
 ia the natural and usually the ade- 
 quate remedy in every case of con- 
 
 troversy. This is the probable ex- 
 planation of the few authorities in 
 the books, and of the obscurity in 
 which we have found the whole sub- 
 ject involved." 
 
 The dicta contained in the cases in 
 the preceding note are in each case a 
 statement that an action in assump- 
 sit or on tlie case might lie as a sub- 
 stitute for the old writ of the com- 
 mon law, provided notice to join in 
 the making of the repairs was first 
 given to the cotenant. As pointed 
 out in Calvert v. Aldrich, supra, the 
 old writ provided for a hearing first 
 as to whether the repairs were neces- 
 sary or not, and if found necessary 
 they were ordered by the court, and 
 were made subject to the court's su- 
 pervision and control. This writ, lit- 
 tle used and finally becoming obso- 
 lete, in no way provided for the re- 
 covery of damages for failure to re- 
 pair, or for contribution after repairi 
 were made. The loose and ill-con- 
 sidered dicta of the cases cited may 
 be safely regarded as overthrown by 
 the law as laid down in Calvert t. 
 Aldrich, supported by the sound rea- 
 soning of that case. 
 
Liability Between Cotenants foe Seevicbs, etc. 431 
 
 personal services of the tenant in possession, are incurred 
 in taking care of his own property. One tenant is as much 
 bound to repair as the other. Therefore there is no basis 
 for an action in implied assumpsit, there being no unjust 
 enrichment or other reason for implying a quasi-contractual 
 obligation. It might be urged with some reason that neces- 
 sary repairs are as essential to the preservation of the prop- 
 erty for the benefit of all the tenants as the payment of taxes 
 and interest on a mortgage, and therefore equity should 
 compel contribution for repairs as well as for such charges, 
 but equity has never extended the remedy of contribution 
 beyond cases of common liability for fixed charges about 
 which there is no indefiniteness or uncertainty. It is clear 
 that each case involving contribution for such repairs would 
 involve the question of whether the repairs were necessary 
 or expedient, whether the amount expended was reasonable 
 or unreasonable, and whether in justice and equity a tenant 
 should be compelled against his will to share the expense 
 of repairing property where there may be no compensating 
 advantage to him. Even under the old writ de reparatione 
 facienda the remedy was limited to houses and mills, not 
 extending to fences or other erections.'^ It must be remem- 
 bered that if tenants in common or joint tenants are hostile 
 to one another it would be practically impossible for the 
 law to so regulate their use and enjoyment of the property 
 in every detail as to do entire justice between them. Their 
 remedy in case they cannot agree is partition which may 
 be had in all cases at any time.^ 
 
 In the action under the statute for an accounting for rents 
 and profits, discussed in the preceding section, the tenant 
 so compelled to account will be allowed to deduct the cost 
 of necessary repairs as an expense required for the main- 
 ienance of the property from which the rents and profits 
 
 7. Kidder v. Rixford, 16 Vt. 169; 8. Calvert v. Aldrich, 99 Mass. 74; 
 
 Ward V. Ward's Heirs, 40 W. Va, 611, Bee note 6, supra, also § 831, post, aa 
 and cases in note 5, supra. to partition. 
 
432 Incidents of Co-owneeship. 
 
 are derived. The action for sncli accounting is in eqtdty, 
 and the accounting must be made in accordance with justice 
 and equity.® In New York and the other states in which 
 the statute permits an action in assumpsit as well as in 
 account, the recovery will be the same irrespective of the 
 form of the action, the amount recoverable being the plain- 
 tifif's share in the net amount of the rents and profits after 
 deducting the cost of necessary repairs and other necessary 
 charges such as payments for taxes and interest on mort- 
 gages. In the action of partition any inequalities between 
 the parties growing out of the cost of repairs, taxes and 
 other carrying charges are finally adjusted in the division 
 of the proceeds of sale on partition.^" 
 
 § 217. Improvements. — Where one tenant has expended 
 money for an improvement of the common property under 
 an agreement, express or implied, on the part of the coten- 
 ant to share in the cost thereof, the contract is, of course, 
 valid and may be enforced between the parties.* But in the 
 absence of contract express or implied a tenant in common 
 or joint tenant can recover nothing from his cotenant for an 
 improvement of the common property either in any form of 
 direct action therefor, or as an allo'w ice in an action of 
 accounting brought by his cotenant for rents and profits.^ 
 Such improvements are entirely voluntary, not necessary 
 to the preservation of the common property, and there is no 
 reason or justice in compelling the cotenant to pay for them 
 against his will. It would be a serious injustice to require 
 
 9. Pickering v. Pickering, 63 N. H. 87; Louvalle v. Menard, 6 HI. 39; 
 468; Deck's App., 57 Fa. St. 467. Stevena v. Thompson, 17 N. H. 103, 
 
 10. See §§ 217, 221, post. and caaes cited in notes folio-wing. 
 
 1. Taylor v. Baldwin, 10 Barb. (N. Contra, under special statute in 
 Y.) 58; Putnam v. Eichy, 6 Paige (N. Mass., Husband v. Aldrich, 135 Mass. 
 Y.) 380; Baird v. Jackson, 98 111. 78; 317, the statute providing for com- 
 Reed v. Jones, 8 Wis. 421 (reprint, pensation when the tenant has made 
 P- 216). improvements believing he is owner 
 
 2. Walter v. Greenwood, 29 Minn, in severalty. 
 
Impbovements. 433 
 
 such payment or allowance out of the rents and profits, since 
 the cotenant might in this way be deprived against his will 
 of much or all the income from the property for years. 
 
 In the action of partition, however, the land on which 
 the improvements were made will be set off to the tenant 
 who made the improvements, provided such a division can 
 be made in entire fairness and justice to the other tenant 
 or tenants, each other tenant receiving his full share of the 
 land as though the improvements in question had not been 
 made. In this way the tenant who made the improvements 
 gets them with his share of the land, while the other tenants 
 get all they are fairly entitled to, — their share of the land 
 exclusive of the improvements to the making of which they 
 have not contributed.* 
 
 If an actual division cannot be made in this way without 
 injustice to one or more of the cotenants the court will order 
 a sale of the premises and a division of the proceeds, allow- 
 ing to the tenant who has created improvements on the 
 property the additional amount which the property sells for 
 because of the improvements. It is clear that this addi- 
 tional amount is produced entirely by the improvements to 
 which the other tenant or tenants have contributed nothing. 
 It would, therefore, be extremely inequitable in any case to 
 permit any part of such amount to be distributed among 
 the other tenants, who receive all that they are fairly en- 
 titled to on receiving their share of the proceeds of the land 
 without the improvements. Of course the amount allowed 
 the tenant who created the improvements is not their cost; 
 his cotenants cannot be compelled to contribute to the cost 
 of the improvements indirectly in the partition action any 
 more than by a direct action therefor. It is limited to the 
 additional amount which the property brings because of 
 
 8. Hall V. Piddock, 21 N. J. Eq. Va. 611; Clapp v. Nichols, 31 App 
 311; Green v. Putnam, 1 Barb. (N. Div. (N. Y.) 531. 
 jr.) 500; Ward v. Ward's Heirs, 40 W. 
 
 28 
 
4:34 Incidents of Co-owneeship. 
 
 the improvements so made, such amount being determined 
 as a matter of fact in each case.* 
 
 In New York the law on this subject has been made some- 
 what uncertain and obscure by the case of Cosgriff v. Foss." 
 In that case the defendant, Dewey, who occupied a trap 
 rock quarry originally as tenant for a term of years, the 
 lease providing that he might remove improvements erected 
 by him at any time during the term, acquired an interest 
 therein as tenant in common, and thereafter he occupied 
 and worked the quarry as tenant in common. He made im- 
 provements as such tenant in common which cost $9,672.40, 
 and which increased the value of the premises. The Court 
 of Appeals held that Dewey should be allowed nothing on 
 account of such improvements, and a judgment directing a 
 sale and distributiqn without any allowance therefore was 
 affirmed. The court seems to have failed completely to 
 apprehend the principle laid down in the earlier New York 
 cases and in the cases in the other states heretofore cited, 
 deciding that each case must turn on its own facts, and if 
 in view of those facts the court should regard an allowance 
 for improvements as equitable it should be made, otherwise 
 
 4. Hall V. Piddock, 21 N. J. Eq. 311; tition. It is clear that if the tenant 
 
 Green t. Putnam, 1 Barb. (N. Y.) is allowed only the additional amount 
 
 500 ; Foi 1 V. Knapp, 102 N. Y. 135 ; which the property brings on parti- 
 
 Kelsey's Appeal, 113 Pa. St. 119; tion because of the improvements he 
 
 Fenton r. Miller, 116 Mich. 45; Kill- should also receive the additional ren- 
 
 ner v. Wuchner, 79 Iowa 732 ; Mar- tal which the improvements have pro- 
 
 tindale v. Alexander, 26 Ind. 104; duced, or in the alternative, he should 
 
 Stewart v. Stewart, 90 Wis. 516; be allowed the cost of the improve- 
 
 Ward V. Ward's Heirs, 40 W. Va. ments as stated in Fenton v. Miller. 
 
 611- Under statutes requiring a tenant 
 
 In Fenton v. Miller, 116 Mich. 45, to account to his cotenants for the 
 
 the court held that if additional ren- exclusive occupation of the premises 
 
 tals are secured because of the im- he will not be compelled to account 
 
 provements which are divided equally for the rental value of improvement* 
 
 among all the tenants, the one who made by him during such occupation. 
 
 made the improvements should be Hannah v. Carver, 121 Ind. 278; 
 
 allowed their actual cost, not their Worthington v. Hiss, 70 Md. 17«. 
 
 depreciated value at the time of par- 5. 152 N. Y. 104. 
 
Impeovements. 435 
 
 not. No allowance was made to Dewey because lie liad 
 made tlie improvements as a business venture, in order to 
 be enabled to take more trap rook from the quarry for his 
 own individual profit, not for the common advantage of his 
 cotenants. The weight of this reason is very much lessened 
 by a later case appearently between the same parties in 
 which Dewey was compelled to account for the trap rock 
 taken by him while tenant in common, the court adding 
 insult to injury by calling it waste.® The case may be dis- 
 tinguished and in a measure supported by the fact, set forth 
 toward the end of the opinion, that it did not appear " un- 
 less inferentially, that they (the premises) would sell for 
 any more on account of the improvements." In any event 
 Dewey should not have been allowed the cost of the im- 
 provements, but only such part of the proceeds of the sale 
 as would have been derived from the improvements, viz. : the 
 additional amount which the premises would bring because 
 •of the improvements. This could not be determined until 
 after the sale. The judgment should have provided that 
 after the sale the referee should determine this amount; 
 subject to confirmation by the court, and that this amount 
 should be deducted pro rata from the share of the others 
 and added to his share of the entire proceeds. The judg- 
 ment should also have provided, in case the other tenants 
 had so requested, that Dewey account for the net amount 
 received by him from the sale of trap rock, after deducting 
 the expenses of operating the quarry, the amount found due 
 to his cotenants to be deducted from his share and added 
 to theirs. It did appear clearly enough, at least inferenti- 
 ally, that the quarry would sell for more because of the im- 
 provements, and it is obviously unconscionable that the 
 other cotenants should share in this additional amount, 
 secured entirely by improvements to which they had con- 
 tributed nothing.'' 
 
 6. Cosgriff V. Dewey, 164 N. Y. 1. 7. An examination of tlie earlier 
 See discussion of this case in section New York cases will show that this 
 following. case does not establish irreparably 
 
136 
 
 Incidents of Co-owNEESHrp. 
 
 § 218. Waste Between Cotenants. — We have seen that 
 waste is a permanent injury to the inheritance committed 
 by a tenant for life or for years as against the reversioner 
 
 the rule for which it stands, a rule 
 which leaves every such case uncer- 
 tain until determined by the court of 
 last resort, each case finally turning 
 nn whether the highest court -will re- 
 ;4ard it as equitable to make an al- 
 lowance for improvements, making it 
 impossible for lawyers to advise their 
 ilients on the point with any degree 
 (^f accuracy. In Green v. Putnam, 1 
 Barb. 500, the rule as stated in the 
 text and supported by decisions in 
 England and the other states, is fully 
 and clearly stated and applied, with- 
 out any suggestion of the limitation 
 of the rule expressed in Cosgriff v. 
 Foss. In Ford v. Knapp, 102 N. Y. 
 135, the court said; "If the redeem- 
 ing creditors (of one of the tenants) 
 get the full one-half of the value of 
 the property as that value exists, un- 
 increased by the improvements, they 
 get every dollar to which they have 
 a ju=t and equitable right. The rule 
 whidi takes from one cotenant the 
 fruit of his thrift and enterprise and 
 adds it to the unthrift and neglect of 
 the other; which loads upon industry 
 and ablity the losses and burdens of 
 idleness or ill fortune; which ties up 
 property from improvement and looks 
 contented upon rot and decay, is a 
 rule which sometimes the rigid and 
 inelastic jurisdiction of a court of law 
 may adopt from necessity, but is 
 without excuse in a court of equity 
 in which this action is pending." 
 Finch, J., at p. 140. 
 
 The ease of Scott v. Guernsey, 48 
 N. Y. 106, is the basis for the deci- 
 eion in Cosgriff v. Fobs. There the 
 
 remainder in fee, subject to a life es- 
 tate belonged to several persons as 
 tenants in common. By agreement 
 with the life tenant some of the re- 
 maindermen erected improvements 
 during the continuance of the life es- 
 tate, taking the rents derived there- 
 from, which at the life tenant's death 
 greatly exceeded the cost of the im- 
 provements with interest. The build- 
 ings added only a few hundred dol- 
 lars to the value of the property, 
 they were erected during the continu- 
 ance of the life estate and before the 
 remainder had vested in possession in 
 the cotenants, and the court was con- 
 vinced that they were erected without 
 a thought of improving the property 
 for the benefit of all the remainder- 
 men, but solely for the benefit of the 
 cotenants erecting them, and an al- 
 lowance for their value was not al- 
 lowed. It is clear that this case pre- 
 sents a very different situation from 
 that which arose in Cosgriff v. Foss. 
 Even in this case it is difiicult to see 
 why these tenants were not allowed 
 the additional amount the property 
 was worth because of the buildings 
 which they had erected and to which 
 their cotenants had contributed noth- 
 ing. The only cases where such al- 
 lowance should not be made is indi- 
 cated in Hall v. Piddock, 31 N. j, Eq, 
 311, the court saying " The only good 
 faith required in such improvements 
 is that they should be made honestly 
 for the purpose of improving the 
 property, and not for embarrassing 
 his cotenants. or enoumbering their 
 estate, or hindering partition." 
 
Waste Between Cotenants. 437 
 
 or remainderman, that the remedy existed nnder the ancient 
 common law only in cases of estates in dower, curtesy and 
 chivalry, and that it was extended by the Statutes of Marl- 
 bridge and Gloucester to tenancies for life and for years of 
 every kind.^ Owners in fee are not capable of committing 
 legal waste, since they are owners of the inheritance and 
 may do with it as they please. Apart from statute, there- 
 fore, tenants in common or joint tenants in fee are incapable 
 of committing waste. But by the Statute of "Westminster 
 n (13 Edw. 1, ch. 22) the action of waste was provided for 
 between cotenants, and similar statutes have been enacted 
 in many states.^ Neither the English statute nor the stat- 
 utes in the different states in any way attempt to define 
 waste or to provide what acts shall be waste as between 
 cotenants. Under the cases, however, in a rough way, and 
 without any careful thought on the subject, acts which 
 would be waste if committed by a tenant for life or for 
 years are held to be waste as between cotenants.* There is 
 some authority, based on sounder reason, that any act of a 
 cotenant in the prudent and reasonable exercise of owner- 
 
 1. See § 61, ante. would not be waste in case of a ten- 
 
 2. Co. Litt. 200a, 200b; Wilkinson ant for life or for years, but tenant 
 V. Haygarth, 12 Q. B. 837; N. Y. Code was held liable to account) ; Irwin v. 
 Civ. Pro., § 1655 (providing for an ac- Covell, 24 Pa. St. 162; Benedict v. 
 tion of wp.ste between cotenants, and Torrent, 83 Mich. 181 (dicta, holding 
 the recovery of treble damages). For that grant of a cotenant's interest in 
 similar statutes in other states, see trees not good as against the other 
 cases in notes following. cotenant, this result being sound quite 
 
 3. Elwell V. Burnside, 44 Barb. (N. apart from the question of waste) ; 
 Y.) 447 (cutting of trees from land Cecil v. Clark, 47 W. Va. 402 (mining 
 purchased by the parties solely for and sale of coal held waste, tenant 
 the timber, held waste. In other held liable to account. In cases such 
 words it was held waste to use the as this the tenant is not really held 
 land for the one purpose for which for waste, but for profits under stat- 
 it was purchased, viz.: to realize a ute for sale of part of the corpus of 
 profit on the timber) ; McCord v. the land) ; Johnson's Adm'r v. John- 
 Oakland, etc. Min. Co., 64 Cal. 134 son, 2 Hills Eq. (S. C.) 2T7; Jlorri- 
 (working of a quick silver mine al- son v. Morrison, 123 N". C. 598. See, 
 ready opened not waste, since it also, Murray v. Haverty, 70 111. 318. 
 
438 
 
 Incidents of Co-owneeship. 
 
 ship is not waste as between co tenants in fee; that it is not 
 waste for such cotenants to cut timber which is fit for cut- 
 ting, to open mines where the common property is mineral 
 lands, and the like, since such are acts of the reasonably 
 prudent owner in fee in the exercise of his ownership. Any 
 act of wanton destruction of buildings, the cutting of shade 
 trees, or of trees not yet large enough for use as timber, and 
 the like, are waste as between cotenants in fee, since they 
 are not acts of prudent ownership, but tend to the waste and 
 destruction of the common property.* We have seen that 
 the tenant cutting timber or working a mine or quarry must 
 account to his cotenants for their share of the net profits.' 
 If such acts are in the exercise of reasonable and prudent 
 ownership there is no sound reason why the tenant should 
 be compelled to respond in treble damages for waste under 
 the various statutes.* 
 
 4. Martyn v. Knollya, 8 Term Rep. 
 145 ; Maxwell v. Maxwell, 31 Me. 184 
 (dicta) ; McCord v. Oakland, etc. Min. 
 Co., 64 Cal. 134 (the court saying, 
 " The word ' waste ' is not an arbitr- 
 ary term to be applied inflexibly with- 
 out regard to the quantity or quality 
 of the estate, the nature and species 
 of the property, or the relation to it 
 of the person charged to have com- 
 mitted the wrong ") ; Russell v. Mer- 
 chants' Bank, etc., 47 Minn. 286; Ed- 
 sall V. Merrill, 37 N. J. Eq. 114. 
 
 5. See § 215, ante. 
 
 G. There seems to be little author- 
 ity, apart from dicta, on either side 
 of this question, which may fairly be 
 regarded as still open and unsettled. 
 In Cosgriflf v. Dewey, 164 N. Y. 1, the 
 court compelled the defendant, tenant 
 in common, to account for trap rock 
 taken from a quarry which had been 
 opened and worked before he acquired 
 his interest aa tenant in common, and 
 
 which he worked as tenant in common' 
 after acquiring his interest. The court 
 held that he was liable for waste, but 
 compelled him to account for his co- 
 tenant's share of the rock so taken. 
 He was not required to pay treble 
 damages in accordance with the pro- 
 visions of § 1656 of the Code, tc 
 which the court refers as authority 
 for the proposition that the defend- 
 ant was liable in waste. The court 
 said that he could not be compelled to- 
 account for the use of the premises- 
 nor for rents and profits, there being 
 no ouster. Nevertheless, though they 
 declared his act to be waste, they 
 compelled him to account exactly as 
 though he were accounting for profits 
 lawfully derived from the reasonable 
 use of the property. To say that the 
 working of this quarry was waste, in 
 view of the fact that it had been 
 opened and operated as such before 
 the defendant acquired his interest, 
 
Waste Between Cotewants. 
 
 439 
 
 An injunction to stay waste will not be granted in equity 
 in favor of one cotenant and against another unless it ap- 
 pears that the injury threatened will jeopardize the coten- 
 ant 's interest, or unless the waste is malicious in character 
 or so unusual or unreasonable as to constitute a wanton 
 destruction of the estate^ 
 
 and of the further fact that the prop- 
 erty was valueless except for use and 
 operation as a stone quarry, is in vio- 
 lation of precedent and reason. If 
 he were a mere tenant for years it 
 would not be waste under such cir- 
 cumstances. If a cotenant cannot be 
 held liable to account for profits de- 
 rived from the sale of minerals in 
 such case under the Statute of Anne 
 and like statutes in the different 
 states, then there is no remedy, since 
 it is preposterous to assert that the 
 working of an opened mine or quarry 
 by a tenant in common is waste for 
 which he may be held in treble dam- 
 ages. Furthermore, if the sole or 
 principal value of the common prop- 
 erty lies in its use for quarrying or 
 mining purposes, it is unreasonable 
 and contrary to rules of ownership to 
 hold that neither tenant shall be per- 
 mitted to open up the quarry or 
 mines and make use of the property 
 in the one way in which it is capable 
 of beneficial use, except on penalty 
 of treble damages. The opening of a 
 mine or quarry in any such case is 
 strictly in accord with the reasonable 
 use and development of the property, 
 not in wasting of it. Nevertheless 
 the Court of Appeals again held, Ab- 
 bey v. Wheeler, 170 N. Y. 122, that 
 the taking by a cotenant of minerals 
 from mining land was waste. This 
 
 anomalous situation demands early 
 correction. 
 
 In each of the cases cited in this 
 and the preceding notes where the 
 tenant was compelled to account for 
 minerals or timber, exactly the same 
 result would be reached by compelling 
 him to account therefor as for profits 
 received by him as a result of a sale 
 of part of the corpus of the land un- 
 der the Statute of Anne. In some 
 cases the tenant was required to ac- 
 count, though the working of the 
 mine was held not to be waste. It 
 is true that the highest court in Eng- 
 land has decided that the Statute of 
 Anne is to be limited to rents re- 
 ceived by the tenant, not applying to 
 profits from a sale of timber or the 
 like. But this narrow view is not 
 generally taken in this country, 
 where in these cases the tenant is 
 compelled to account. Why call it 
 waste, when it is not waste? A rea- 
 sonable interpretation of the Statute 
 of Anne and similar statutes fully 
 justify the compelling of an account- 
 ing in all such cases. Where waste 
 and destruction of the cotenant's in- 
 terest is really committed, then let 
 the offending tenant be held therefor 
 in waste, not in account. 
 
 7. Mott V. Underwood, 148 N. Y. 
 463; Obert v. Obert, 5 N. J. Eq. 397; 
 McCord V. Oakland, etc. Min. Co., 64 
 Cal. 134. 
 
440 Ih-cidents of Co-owneeship. 
 
 § 219. Purchase of Outstanding Title by Gotenant.— 
 
 Where cotenants acquire their interests at the same time 
 from the same source, as where they take by the same deed 
 or will, or by inheritance from a common ancestor, their 
 relationship is of so close a character, involving mutual 
 trust and confidence between them, that in equity the pur- 
 chase of an outstanding superior title by one of them will 
 be regarded as for the benefit of all, the others contributing 
 their share toward the cost thereof within a reasonable 
 time. The purchasing tenant cannot set up such a title and 
 oust his cotenants from the common property, but must let 
 them have their proportionate share of the benefits there- 
 from upon their contributing their proportionate share of 
 the cost.^ If they fail within a reasonable time to make 
 such contribution, they lose this equitable right and the 
 title so acquired is good against them.* 
 
 This rule excludes cotenants who acquire their interests 
 at different times from different sources. Such tenants are 
 strangers to each other without any particular community 
 of interest that would justify such a rule. Though many 
 of the cases state the rule without this qualification, the 
 unities existed as a matter of fact, and there was no occa- 
 sion to go into the question.* 
 
 The rule does not apply where the cotenancy is ended by 
 adverse possession or by sale for taxes after the period of 
 redemption has expired. Each tenant may then buy the 
 
 1. Van Home t. Fonda, 5 Johns. 25 Tex. 728; Moon v. Jennings, 119 
 Ch. (N. Y.) 389; Carpenter v. Car- Ind. 130; Stevens v. Reynolds, 143 
 penter, 131 N. Y. 101; Roberts v. Ind. 457; Burr v. Mueller, 65 111. 258 
 Thorn, 25 Tex 728; Boyd v. Boyd, (dicta, but see Bracken v. Cooper, 80 
 176 111. 40; Stevens v. Reynolds, 143 111. 221). In the other eases cited is 
 Ind. 467; Frentz v. Klotscli, 28 Wis. notes 1 and 2, supra, it appeared that 
 312, and eases in notes folIowiTig. the unities were present, and there- 
 
 2. Mandeville v. Solomon, 39 Cal. fore they contain nothing necessarily 
 135, and cases in preceding note. inconsistent with this limitation of 
 
 3. Van Home v. Fonda, 8 Johns, the rule. 
 Ch. (N. Y.) 389; Roberts v. Thorn, 
 
PUECHASE OF OUTSTANDING TiTLE BT CoTENANT. 44:1 
 
 property as he pleases witliout regard to the others.* So 
 where the interest of one is sold under execution, the other 
 may bid at the sale." Here there is no conceivable violation 
 of any duty, legal or moral. The cotenant's bidding at the 
 sale only serves to increase the price which is realized for 
 the interest of the other tenant. A cotenant for life or for 
 years may purchase the remainder or reversion without 
 regard to his cotenants, since the title he acquires is in no 
 sense adverse or hostile.* 
 
 The rule applies to titles acquired by purchase at a 
 sale on foreclosure of a mortgage affecting the entire prop- 
 erty, to which the interest of all the tenants are subject, the 
 others having the right to share in the benefits of the pur- 
 chase provided they contribute their share toward the cost 
 within a reasonable time.^ There would seem to be no 
 reason for this if all are adults and parties to the fore- 
 closure, having equal opportunities to bid in the property 
 at the sale, and it is submitted that the rule would not ap- 
 ply in such case. In the cases above cited the foreclosure 
 was brought about by one or more of the cotenants to de- 
 feat the interests of others who were infants, involving ele- 
 ments of fraud which would be quite sufficient to give rise 
 to a constructive trust in favor of the cotenants sought to 
 be excluded. 
 
 It is the duty of each cotenant to pay taxes assessed 
 against the property, of one as much as of any other. There- 
 fore one of them cannot take advantage of his own wrong 
 
 4. Freeman Coten., §§ 161, 162; Al- 5. Gunter v. Laffan, 7 Cal. 588; 
 
 exander v. Sully, 50 Iowa 192; Wat- Burr v. Mueller, 65 111. 258; Elston T. 
 
 kins V. Eaton, 30 Me. 589. Piggott, 94 Ind. 14. 
 
 Where a tenant in common is hold- 6. Kamberg t. Wahlstrom, 140 111. 
 
 ing adversely claiming title in sever- 182. 
 
 alty, the rule does not apply, the ten- 7. Carpenter v. Carpenter, 131 N. 
 
 ants being in a position of hostility Y. 101; Knolls v. Barnliart, 71 N. Y. 
 
 with reference to the title. Wells v. 474; Smith v. Osborn, 86 111. 606; 
 Chapman, 4 Sandf. Ch. (N. Y.) 312; \ Gibson v. Winslow, 46 Pa. St. 380. 
 Wright v. Sperry, 21 Wis. 336. 
 
442 InCIDEITTS op Co-OWIfBESHIP. 
 
 and purchase the property at a tax sale to the esclnsion of 
 Ms cotenants. For the same reason he cannot purchase an 
 outstanding tax title before the period of redemption (usu- 
 ally three years) has expired, and set it up against his co- 
 tenants. In either case he is really paying the taxes, free- 
 ing the property from the lien, and he is entitled to contribu- 
 tion from the others toward the cost.^ But after the period 
 of redemption has expired and the tax title has become 
 absolute, terminating the cotenancy, any cotenant may pur- 
 chase it without incurring any duty toward his former co- 
 tenants.* 
 
 § 220. Voluntary Partition. — Tenants in common, joint 
 tenants and coparceners have always been able to partition 
 the common property among themselves by mutnal deeds.* 
 As between joint tenants a deed of release is the more ap- 
 propriate form, though a deed of grant will serve the same 
 purpose. Since each joint tenant is seised of the entire 
 property as a member of the unity, he becomes sole owner 
 of the part assigned to him on the partition by a mere re- 
 lease of his cotenant 's interest therein, the technical word 
 " heirs " not being required, since he is already seised of 
 the fee.^ In the case of tenants in common, however, deeds 
 of grant are necessary, as was the word ' * heirs ' ' under the 
 common law, since each is seised of a separate and distinct 
 estate in fee which must be conveyed from one to the other 
 as to each portion on the partition of the property between 
 them.* 
 
 8. Hurley V. Hurley, 148 Mass. 444 ; Pa. St. 139; Watklns v. Eaton, 30 
 Page V. Webster, 8 Mich. 263; Goral- Me. 539; Hurley v. Hurley, 148 Mas*. 
 ski V. Kostuski, 179 111. 177; Tanney 444. 
 
 V. Tanney, 159 Pa. St. 277; Clark v. 1. See notes following. 
 
 Lindsay, 47 Oh. St. 437; Conn v. 2. Rector v. Wangh, 17 Mo. IS; 
 
 Conn, 58 Iowa 747; Easton v. Scofield, Litt., § 304; 2 Bl. Com. 185. See § 81, 
 
 66 Minn. 435. note 5, ante. 
 
 9. Alexander v. Sully, 50 Iowa 192; 3. Woodhull v. Longstreet, 18 N. J, 
 Remboth v. Zebe Run Imp. Co., 29 L. 405; Porter y. Hill, 9 Mass. 34, 35; 
 
VOLUNTAET PaETITION. 443 
 
 Before the Statute of Frauds oral partition followed by 
 exclusive possession by each tenant of the part set off to 
 him was effective without written conveyance in all cases 
 of joint estates in possession except estates in entirety, the 
 transfer by livery of seisin being sufficient. Since the Stat- 
 ute of Frauds, however, a conveyance in writing sufficient 
 to satisfy the statute is necessary, since every voluntary 
 partition necessarily involves the transfer of an interest in 
 land, each tenant conveying to his cotenant his interest in 
 that part of the land set off to his cotenant.* In equity if 
 after parol partition and the taking of exclusive possession 
 by each of the tenants of the part assigned to him, one of 
 the tenants improves his part, expending money and other- 
 wise changing his position so that an injustice would result 
 to him should the parol partition be rescinded, the other 
 tenants will be estopped from denying the validity of the 
 partition as made, and it will be declared valid and binding.* 
 There is some authority, principally dicta, that even at law 
 a mere parol partition followed by exclusive possession is 
 effective, in spite of the Statute of Frauds, because the 
 breaking of the unity of possession by such parol partition 
 necessarily terminates the tenancy in common, joint tenancy 
 or coparceny between the parties.* The only tenable view 
 
 rnllau V. Hill, 47 N. H. 347; Rector Osgood, 113 Ind. 360; Tomlin v. Hil- 
 
 V. Waugh, 17 Mo. 13; Litt., § 304; yard, 43 III. 300; Brown v. Wheeler, 
 
 2 Bl. Com. 186. 17 Conn. 345; TuflFree v. Polhemu3, 
 
 4. Cases in preceding note. 108 Cal. 670. 
 
 5. Wood V. Fleet, 36 N. Y. 499; 6. Wood v. Fleet, 36 N. Y. 499 
 Markoe v. Wakeman, 107 111. 251 (dicta, since a clear case of equitable 
 (holding that in case of long con- partition by estoppel existed here, 
 
 tinned possession of separate portions tenant having made extensive im- 
 
 partition by deed if necessary would provements) ; Byers v. Byers, 183 Pa. 
 
 be presumed) ; Buzzell v. Gallagher, St. 509 (on the ground that cotenants 
 
 28 Wis. 678 ; Horgan v. Bickerton, 17 are already owners in possession, and 
 
 E. I. 483; Byers v. Byers, 183 Pa. St. a partition between them is not 
 
 509 (holds that such partition is good within the mischief sought to ht 
 
 ftt law as well as in equity) ; Hank guarded against by the etatnte). 
 T. McComas, 98 Ind. 460; Bruce v. In Taylor T. Millard, 118 N. Y. 344, 
 
444: Incideitts of Co-owneeship. 
 
 is, of course, that an instrument in writing sufficient to 
 satisfy the statute is necessary, in order that a valid parti- 
 tion at law be made, leaving to a court of equity to deter- 
 mine whether the facts are sufficient to establish an equi- 
 table partition by estoppel in each case.'' 
 
 At common law estates in entirety could not be parti- 
 tioned, because of the disabilities of the wife. Under the 
 Married Woman's Acts in most states such partition may 
 now be effected either by mutual deeds between them in 
 those states where a conveyance by one to the other is per- 
 mitted or by a conveyance to a third party and by him to 
 the husband and wife of separate portions of the land, or 
 by sale of the property and a division of the proceeds.® 
 
 A voluntary partition between eotenants is binding on 
 their wives in the absence of proof of fraud and collusion 
 as against the wife of either party, so that the wife's in- 
 choate right of dower is limited to the part which her hus- 
 band receives in severalty, though the partition be effected 
 without her knowledge or consent.® But in such case the 
 lien of a mortgagee, judgment creditor or other encum- 
 brancer of a cotenant's interest is not affected, the partition 
 being void as to him, subject to the power of the court to 
 confirm the partition in equity, provided no wrong has been 
 done the lienor or encumbrancer.^'' 
 
 the court held that though a parol 10. Emaon v. Polhemus, 28 N. J. 
 
 partition was good, a parol provision Eq. 439. 
 
 that one tenant should have the right Even if the undivided interest of 
 
 to enter and to pick apples from an the cotenant in the entire tract should 
 
 orchard situated on the other's por- he sold in the enforcement of the 
 
 tion of the farm was void as an at- mortgage or other lien, the purchaser, 
 
 tempt to create a profit a prendre, a in enforcing partition, would in most 
 
 deed being necessary for the purpose, cases receive the part assigned to the 
 
 7. See cases in note 5, supra. cotenant in the voluntary partition, 
 
 8. See § 213, ante. it appearing that the eotenants had 
 
 9. Potter v. Wheeler, 13 Mass. 604; entered on their several portions in 
 Totton V. Stuyvesant, 3 Edw. Ch. (N. severalty, the partition being fair 
 Y.) 527; Lloyd v. Conover. 25 N. J. and without prejudice to the right* 
 L- 47. of the lienors of either. 
 
luVOLUNTAET PaETITION. 445 
 
 § 221. Involuntary Partition. — Originally at common law 
 the only joint estates subject to involuntary or compulsory 
 partition were estates in coparceny.^ By statutes enacted 
 about 1540 compulsory partition between joint tenants and 
 tenants in common was provided for.^ But partition at law 
 under these statutes was cumbersome and rigid, and had to 
 be made without consideration of special circumstances and 
 equities affecting the cotenants, so that at an early date 
 equity assumed jurisdiction to the practical exclusion of 
 partition at law. In 1833 a statute was enacted in England 
 giving to equity exclusive jurisdiction in actions of parti- 
 tion.^ In this country also partition at law is obsolete, the 
 action always being brought in equity. We have seen how 
 in equity justice may be done between the parties on parti- 
 tion where one of them has made improvements or paid 
 more than his share of interest, taxes or other charges.* So, 
 also, if one tenant owned land in severalty adjoining the 
 common property it might be greatly to his advantage to 
 have the part adjoining his land assigned to him on parti- 
 tion. This a court of equity would do if it could be done 
 without injury to the other tenant or tenants. These things 
 would be impossible in partition at law.® Similarly it might 
 be that physical partition could not be made without injury 
 or injustice to one or all the tenants. In such case equity 
 would order a sale and division of the proceeds among the 
 tenants. Today it is uniformly the rule that a sale will be 
 ordered where actual corporeal partition cannot fairly be 
 made, or where the best interest of all require a sale and 
 the division of the proceeds rather than an actual physical 
 partition.^ 
 
 1. See § 308, note 2, ante. 311; Freeman, Cotenancy, § 483. 
 
 2. St. .31 Henry VIII, ch. 1, and 32 6. Preceding note; also Freeman, 
 Henry VIII, ch. 32. Cotenancy, ch. 28 ; N. Y. Code Civ. 
 
 3. St. 3 and 4 William IV, ch. 27, Pro., §§ 1546, 1550, 1573-1579 (coa- 
 S 36. taining provisions for tlie sah of th* 
 
 4. See § 217, ante. premises by a referee appointed for 
 
 5. See § 217, ante, and cases tliere the purpose, and the distribution of 
 cited; Hall v. Piddock, 21 N. J. Eq. the proceeds). 
 
446 Incidents of Co-owweeship. 
 
 § 222. Parties to Action of Partition. — The rule both at 
 
 law and in equity, except as modified by statute, is that the 
 plaintiff in a partition suit must be a joint tenant or tenant 
 in common in possession or having an immediate right to 
 the possession.' If he has a right of entry only, as for a 
 breach of condition or as against another holding the prop- 
 erty in adverse possession, he must recover possession by a 
 lawful entry or by ejectment before he can sue in partition.* 
 The general rule, apart from statute, is that disputed ques- 
 tions of title cannot be litigated in the partition suit, which 
 must wait until the dispute has been settled by an action 
 at law. But by statute in some states such questions of 
 title may be litigated and determined in the partition suit, 
 and partition has become a favorite means of settling ques- 
 tions of this kind, particularly where they turn on the con- 
 struction of a will, and the validity or invalidity of de- 
 vises.^ Under these statutes a tenant in common who has 
 been disseised may sue in partition, and the person in ad- 
 verse possession or claiming a hostile title may be made a 
 party defendant, the question of title being determined in 
 the suit." Under these statutes the heir may start a parti- 
 tion suit, joining the other heirs and also the devisee under 
 the ancestor's will, provided he allege and prove that the 
 
 7. Co. Litt. 167a; Evans v. Bag- 9. N. Y. Code Civ. Pro., § 1543 
 shaw, 8 Eq. 469, and cases in notes Wallace v. McEcliron, 176 N. Y. 424 
 following. Satterlee v. Kobbe, 173 N. Y. 91 
 
 8. Bonvier v. B. & O. R. Co., 67 N. Weston v. Stoddard, 137 N. Y. 119 
 J. L. 381; Slockbovper v. Kanouse, 50 Marshall v. Crehon, 13 Met. 463; Pil 
 N. J. Eq. 481; Fenton v. Steere, 76 low v. Southurst. etc. Co., 93 Va. 144 
 Mich. 405; Pierce v. Oliver, 13 Mass. Gage v. Bissell, 119 111. 398; Martin 
 211 (dicta). v. Walker, 58 Cal. 590 (holding that 
 
 In Bacon v. Fay, 63 N. J. Eq. 411, tenant ousted by cotenant may sue 
 
 the court held that where an equit- in partition, question of cotenant's 
 
 able title alone was involved tl e claim to sole ownership being settled 
 
 question would be determined in the in the partition action), 
 partition suit without the aid of any 10. Satterlee v. Kobbe, 173 N. T. 
 
 statute, equity having sole jurisdic- 91 ; Wallace v. McEchron, 176 N. Y. 
 
 tioB over the question. 434; Martin v. Walker, 58 Cal. 690. 
 
Paeties to Action of Paetition. 447 
 
 devise was void. K th.e will is found to be valid the action 
 in partition is defeated.^ 
 
 In the absence of statutory provision a reversioner or 
 remainderman subject to a precedent life estate cannot 
 maintain partition against his cotenant remaindermen, nor 
 can the life tenant maintain partition against the remainder- 
 men.* By statute in several states it is provided that parti- 
 tion may be maintained as between reversioners and vested 
 remaindermen who are cotenants in reversion or remainder. 
 The partition must be made subject to the prior life estate, 
 and the premises cannot be sold outright in such case with- 
 out the written consent of the life tenant, proved and certi- 
 fied as a deed to be recorded.* 
 
 All other persons having an interest or estate in the prop- 
 erty, including other cotenants, owners of prior particular 
 estate for life or for years, a husband entitled to curtesy or 
 a wife entitled to dower must be made parties defendant.* 
 Encumbrancers and lienors should also be joined in order 
 that their liens may be bound by the partition, attaching 
 in each case to the part set off to the cotenant whose un- 
 divided interest was affected by the lien. If the property 
 is sold the amount due on said liens will be paid out of the 
 
 1. N. Y. Code Civ. Pro., § 1537; As to parties plaintiff generally in 
 Ellerson v. Westcott, 148 N. Y. 149. New York, see Code Civ. Pro., §§ 
 
 2. Seiders v. Giles, 141 Pa. St. 93; 1533-1538. 
 
 Hodgkins's Petition, 13 Pick. (Mass.) 4. N. Y. Code Civ. Pro., § 1538 
 
 374; Jameson v. Hayward, 106 Cal. (providing that every person having 
 
 683. an inchoate right of dower In an un- 
 
 3. N. Y. Code Civ. Pro., § 1533 divided share or in any part of the 
 (this section also provides that where property must be made a party. The 
 Buch sale cannot be made without weight of authority, apart from stat- 
 great prejudice to the owners the ute, is that the wife need not be 
 complaint must be dismissed with- joined, her right of dower being sub- 
 out prejudice to bring the action ject to the partition of the property, 
 again on the termination of the par- and being limited to the part set-off 
 ticular estate) ; Campbell v. Stokes, to the husband on the partition. Pot- 
 143 N. Y. 33; Smith v. Gaines, 38 N. ter v. Wheeler, 13 Mass. 504; Motley 
 J. Eq. 65; Deshong v. Deshong, 186 v. Blake, 13 Mass. 280; Totten T. 
 Pa. St. 321. Stuyvesant, 3 Edw. Ch. (N. Y.) 587. 
 
448 I^rCEDENTS OF CO-OWNEKSHIP. 
 
 proceeds and charged against the cotenant against whose 
 interest the lien existed.® Vested and contingent remainder- 
 men must also be joined in order to bind them by the parti- 
 tion. In the case of contingent remaindermen the court 
 will direct that the proceeds of their interests be invested 
 for whoever may eventually become entitled thereto on the 
 subsequent happening of the contingency on which the re- 
 mainder depends. If these persons are not joined their 
 interests are not affected by the judgment in partition.' 
 
 § 223. Judgment on Partition. — An interlocutory judg- 
 ment is first secured, preceded by a reference in which is 
 determined the respective shares of the cotenants, the liens 
 on their shares, whether or not the property is capable of 
 actual partition, or should be sold, whether allowance should 
 be made to any cotenant for improvements, repairs or the 
 like, and all other matters of fact set forth in the pleadings.'' 
 If actual partition is to be made by metes and bounds a 
 referee or commissioners are appointed for the purpose, 
 or it is turned over to the sheriff's jury, who proceed to 
 
 5. N. Y. Code Civ. Pro., 5 1540. ment creditor of one of the cotenants 
 
 Thig section provides that lienors may did not affect his lien. 
 
 be joined, and that whether they be S. N. Y. Code Civ. Pro., | 1539; 
 
 joined or not their liens attach to Monarque v. Monarque, 80 N. Y. 320 
 
 such share as is assigned the tenant (holding that the interests of unborn 
 
 on the partition. children of the life tenant to whom 
 
 Though encumbrancers seem not to the property was given in remainder 
 
 be necessary parties as a matter of are not barred by partition nnless 
 
 law they are proper parties, and the their interests are set forth in the 
 
 court may require that they be pleadings and enough of the proceeds 
 
 joined in order that a final disposi- of sale are set apart to protect their 
 
 tion he made of the property and its interests in case of their subsequent 
 
 proceeds and a, final' determination of birth). For provisions relating to 
 
 all matters in controversy he reached, parties defendant generally, see N. Y. 
 
 Stewart v. Alleghany Nat. B., 101 Pa. Code, §§ 1538-1541. 
 
 St. 342 ; Low V. Holmes, 17 N. J. Eq. 7. N. Y. Code Civ. Pro., |§ 1545, 
 
 148. See Emson v. Poldhemus, 28 N. 1561; Freeman, Cotenancy, |§ 521, 
 
 J. Eq. 439, holding that a voluntary 534; Kungay T. Lackey, 148 N. Y. 
 
 partition not consented to by a judf- 449. 
 
Judgment on Paetition. 449 
 
 make the division and report to the court. The final judg- 
 ment confirms the partition as so made and reported, the 
 statutes now rendering the judgment sufficient for the pur- 
 pose without requiring conveyances between the tenants, as 
 formerly required in equity in the absence of statute, equity 
 acting in personam, never in rem.^ Where actual physical 
 partition cannot be made without injustice or serious loss 
 to the tenants, or to some of them, a sale is ordered, a referee 
 being appointed to sell and to report a division of the pro- 
 ceeds in accordance with the interests of the tenants and 
 their equities as found in the interlocutory judgment. The 
 final judgment confirms the sale so made and directs dis- 
 tribution of the proceeds.' 
 
 The effect of the judgment is simply to determine all 
 questions arising in the litigation with reference to the 
 division of such interests in the property as the cotenants 
 have, and to settle such disputed questions of title claimed 
 by others as have been litigated in the action. If the title 
 of the cotenants is defective for any reason the partition 
 suit in no way corrects such defect, nor does it prevent a 
 stranger from subsequently enforcing a superior title, he 
 not having been joined in the action of partition.^*' 
 
 8. N. Y. Code Civ. Pro., §§ 1549- 477; McCaudleag App., 98 Pa. St. 489; 
 
 1559; WoodliuU v. Little, 103 N. Y. Hall v. Piddock, 21 N. J. Eq. 311 
 
 167; Swett V. Swett, 49 N. H. 264; (dicta). 
 
 Freeman, Cotenancy, § 527. 9. N. Y. Code Civ. Pro., §§ 1546, 
 
 If on actual physical partition one 1550, 1573-1579; Fisher v. Hershey, 
 
 receives necessarily more than hia 78 N. Y. 387; Smith v. Trustees, 36 
 
 »hare the court will require the pay- App. Div. (N. Y.) 388. 
 
 ment of a sum, called owelty, to the 10. Greenlief v. Brooklyn, etc. X. 
 
 others, to equalize the partition. Co., 141 N. Y. 395. 
 Smith V. Smith, 10 Paige (N. Y.) 470, 
 
 29 
 
450 Conditional Estates. 
 
 CHAPTEE Xn. 
 Conditional Estates. 
 
 § 224. Nature of Conditional Estates. — Any estate, 
 
 whether it be for years, for life or in fee, which is subject 
 to forfeiture for the breach of a condition contained in the 
 instrument creating it, is an estate on condition. For- 
 feiture enforced by entry or by the bringing of an action 
 of ejectment or equivalent action is the distinguishing char- 
 acteristic of these estates. The mere breach of the condition 
 does not, ipso facto, end the estate. It continues exactly 
 as before until the person having the right to enforce the 
 forfeiture elects to do so either by entry on the land ex- 
 pressly for that purpose, or more commonly, by starting an 
 action of ejectment to recover the property because of the 
 breach. The estate then comes to an end as completely as 
 though it had never existed, the title revesting in the gran- 
 tor or his heirs or the heirs of the devisor, or in the landlord, 
 as the case may be, as completely as though the conditional 
 estate had never been created.^ All mortgages or judg- 
 
 1. Co. Litt. 214b, 218a; 2 Bl. Com. York, 173 N. Y. 38. Where the con- 
 
 155; United States v. Loughrey, 173 ditional property right is incorporeal. 
 
 U. S. 206; Nicoll v. N. Y. & Erie E. which cannot be created by livery, 
 
 Co., 12 N. Y. 121; Cornelius v. Xvins, nor terminated by entry, since entry 
 
 26 N. J. L. 376; Osgood v. Abbott, 58 is impossible, a claim of forfeiture 
 
 Me. 73, and cases in notes following, duly made by the person entitled to 
 
 Entry was necessary in the case of enforce the forfeiture is sufficient- 
 forfeiture of freehold estates on con- Co. Litt. 218a; Ellis T. Town of Pel- 
 dition, because such estates, requiring ham, 106 App. Div. (N. Y.) 145 
 livery of seisin in their creation, (easement). Entry was never neces- 
 could be brought to an end only by sary to terminate a tenancy for years 
 an act of equal solemnity. Co. Litt. for breach of condition, since not 
 814a, 218b. The entry must be made created by livery of seisin, being an 
 with intent to accomplish a forfei- estate less than freehold. Co. Litt. 
 ture expressed or evinced in some 214b. A forfeiture of a tenancy for 
 overt way. Bowen v. Bowen, 18 Conn, years is onforced by an ejectment 
 535; Trustees, etc. v. City of New suit or by the starting of summaiy 
 
Judgment on Partition. 
 
 451 
 
 ment or other liens created thereon during the existence of 
 the conditional estate are brought to an end at the same time 
 since they all attach subject to the condition.^ For the same 
 reason any tenancy for years, subtenancy, life estate, or 
 other estate created by the tenant on condition out of his 
 interest are destroyed by the enforcement of the forfeiture 
 
 proceedings of ouster provided for by 
 statute in most states. Quinn v. Mc- 
 Carty, 81 Pa. St. 475; Whitwell v. 
 Harris, 106 Mass. 533; Conger v. 
 Duryee, 90 N. Y. 594. 
 
 The starting of an ejectment suit is 
 the equivalent of an entry, an actual 
 entry being no longer necessary after 
 the introduction of the fictions in 
 ejectment suits involving an admis- 
 sion of entry by the plaintiff or his 
 fictitious tenant, alleged to have been 
 wrongfully ousted by the defendant. 
 An entirely sufficient and more satis- 
 factory reason for the modem rule 
 that the starting of ejectment is suf- 
 ficient without formal entry is that 
 estates on condition are no longer 
 created with livery of seisin, and 
 therefore the reason for the old rule 
 requiring a formal entry no longer 
 exists. By statute in most states 
 ejectment may now be maintained 
 without a prior entry, a right to en- 
 ter only being required, the old fic- 
 tions in ejectment suits being dis- 
 pensed with. Jones v. Carter, 15 
 Mees. & W. 718; Jaclison v. Crysler, 
 1 Johns. Cas. (N. Y.) 125; Nicoll v. 
 N. Y. & Erie R. Co., 12 N. Y. 121; 
 Cornelius v. Ivins, 26 N. J. L. 376, 
 and cases therein cited; Plumb v. 
 Tubbs, 41 N. Y. 442; Schlesinger v. 
 Kansas City R. Co., 153 U. S. 444. 
 
 That the formality of entry is not 
 required since statutes have dispensed 
 with the need of entry either actual 
 
 or fictitious as a prerequisite of eject- 
 ment, see Austin v. Cambridgeport 
 Parish, 21 Pick. (Mass.) 215; Sioux 
 City, etc. R. Co. v. Singer, 49 Minn. 
 301; Ellis V. Kyger, 90 Mo. 600. 
 
 If the person entitled to enforce 
 forfeiture is already in possession, 
 entry is, of course, not required. The 
 expressed intent to enforce the for- 
 feiture and to hold the property ac- 
 cordingly is sufficient. Lincoln, etc. 
 Bank v. Drummond, 5 Mass. 321; 
 Andrews v. Senter, 32 Me 394; Co. 
 Litt. 218a. 
 
 It should be remembered that an 
 action in ejectment, by which breach 
 of the condition and forfeiture are es- 
 tablished judicially as a matter of 
 record, is in every way the most sat- 
 isfactory way to enforce forfeiture, 
 establishing the title of the plaintiff 
 as a matter of record, avoiding the 
 uncertainty involved in an entry 
 without anything of record to estab- 
 lish the forfeiture. 
 
 2. Moore v. Pitts, 53 N. Y. 85 (lien 
 of judgment recovered against owner 
 of conditional estate destroyed by the 
 forfeiture) ; Schlesinger v. Kansas 
 City R. Co., 152 U. S. 144; Carnegie 
 Nat. Gas Co. v. Philadelphia Co., 158 
 Pa. St. 317; 'Williams v. Vanderbilt, 
 145 ni. 238 (mechanic's lien) ; Tliomag 
 V. Record, 47 Me. 500 (lien of judg- 
 ment creditor) ; Sioux City, etc. R. Go. 
 v. Singer, 49 Minn. 301. 
 
452 Conditional Estates. 
 
 whicli destroys tlie estate out of whicli they were created. 
 No matter how many times the estate on condition may have 
 passed by conveyance, devise or descent, it always remains 
 subject to the condition, each succeeding owner being bound 
 by it exactly as was the original owner. 
 
 A covenant in a deed is either a purely personal contract 
 between the grantor and grantee in no way affecting the 
 estate, or it is a restrictive covenant in the nature of an 
 easement for the benefit of property retained by the grantor. 
 In no case does a mere breach of covenant affect the dura- 
 tion of the estate conveyed by the deed. In case of breach 
 the covenantee may sue for damages, and in all cases of 
 negative restrictive covenants he may also secure an in- 
 junction restraining any further breach.* If a right of en- 
 try is reserved for breach of covenant, such reservation 
 makes the covenant a condition as well, so that the covenan- 
 tee may enforce it by recovering damages for a breach or by 
 injunction in equity or by enforcing forfeiture for breach 
 of condition. In leases the covenants therein contained 
 are generally made conditions in this way by reserving a 
 right to enter for their breach.* 
 
 Estates upon limitation, as distinguished from conditional 
 estates, are created to continue up to the happening of some 
 future contingent event, and come to an end on the happen- 
 ing of the limitation ipso facto, without entry. Words of 
 duration are employed in their creation, such as " while," 
 " during," " as long as," " until " and the like. They 
 are more fully discussed hereafter.* 
 
 Conditional estates, as discussed in this chapter, are es- 
 tates upon condition subsequent, title vesting in the tenant 
 on condition subject to forfeiture for breach of the condition. 
 
 3. Woodruff V. Trenton Water 4. Jackson v. Brownson, 7 Johns. 
 
 Power Co., 10 N. J. Eq. 489, at 508 (N. Y.) 237; Quinn v. McCarty, 81 
 
 (good discussion of distinction be- Pa. St. 475. See § 189, ante, under 
 
 twen covenants and conditions) ; landlord and tenant. 
 
 Spear v. Fuller, 8 N. H. 174; Graves 6. See 3 234, pott, 
 T. Deterling, 130 N. Y. 447. 
 
Creation of Conditional Estates. 453 
 
 Estates on condition precedent are discussed under future 
 estates. In case of a condition precedent the estate does 
 not vest until the happening of the condition. Every con- 
 tingent remainder and every future executory contingent 
 estate is an estate on condition precedent.® The law favors 
 the vesting of estates, and therefore in case of doubt the 
 courts hold that an estate on condition subsequent arises, 
 the estate vesting at once subject to being divested, not an 
 estate on condition precedent.''^ Where the condition calls 
 for the improving of the property by the erection of build- 
 ings, the building of a railroad, or the like, it is clear that 
 a condition subsequent is intended, since title is to vest at 
 once in order that the grantee may proceed with the making 
 of the improvements required.* 
 
 § 225. Creation of Conditional Estates. — The law does 
 not favor forfeiture, and therefore if the language used in 
 a deed or will may reasonably be construed as creating a 
 covenant, an equitable charge or trust, or an easement, the 
 courts refuse to find that an estate upon condition involv- 
 ing a forfeiture was intended, but will enforce the provision 
 as a covenant, easement, charge or trust. The terms usually 
 employed to create a conditional estate are " on condition 
 that," " provided that," or other appropriate language of 
 condition. No set form is necessary. If a reasonable in- 
 terpretation of the instrument requires that the estate 
 created be given effect as an estate on condition the courts 
 will so decide though the usual terms of condition are not 
 employed.^ On the other hand, as stated above, the courts 
 
 6. See Ch. XIII, post. King's Lessee, 3 Pet. (U. S.) 346; Don- 
 
 7. 4 Kent Com. 139 ; Nicoll v. N. Y. nelly v. Estes, 94 Wia. 390. 
 
 & Erie E. Co., 13 N. Y. 131; Upping- 8. Underhill v. Saratoga R. Co., 30 
 
 ton V. Corrigan, 151 N. Y. 143; Cor- Barb. (N. Y.) 455; Jones v. C. & 0. 
 
 melius v. Ivina, 36 N. J. L. 376; Hay- R. Co., 14 W. Va. 514, and eases in 
 
 den V. Inhabitants of Stougbton, 5 preceding note. 
 
 Pick. (Mass.) 528; U. S. v. Tenn. C. 1. 1 Shars & B. Lead. Cas. 123-136. 
 & I. Co., 176 U. S. 242; Finlay v. 
 
454 Conditional Estates. 
 
 "will construe the language as creating a covenant, easement, 
 charge or trust, even though, express terms of condition 
 are employed, if it appear that the real purpose of the par- 
 ties was not to create an estate subject to forfeiture, but 
 an estate subject to a covenant, easement, charge or trust 
 capable of specific enforcement as such.^ An express clause 
 of forfeiture in case of breach, as where it is provided that 
 the grantor shall have a right to enter, or that the estate 
 shall cease, determine and become void in case of a breach, 
 is conclusive in all cases leaving no room for interpretation. 
 The intention in such cases can only be to create an estate 
 on condition.^ But in a case of a deed having no forfeiture 
 clause but providing " that these presents are upon this 
 express condition, that the aforesaid premises shall not 
 • * * be at any time hereafter used or occupied as a 
 tavern or public house of any kind," the court held that 
 this provision should be construed as a restrictive covenant 
 running with the land for the benefit of the adjoining estate 
 belonging to the grantor, enforceable by injunction in case 
 of a breach, not by forfeiture, the grantor's purpose being 
 to protect his adjoining property, fully accomplished by 
 construing the provision as a covenant, a breach of which 
 would be enjoined, and not requiring the drastic remedy of 
 forfeiture.* In another case the grant was " upon the ex- 
 press condition that the said railroad company shall, at all 
 times, maintain an opening into the premises hereby con- 
 veyed opposite to the Exchange Hotel, for the convenient 
 access of passengers and their baggage." The court held 
 
 2. Graves v. Deterling, 130 N. Y. v. Primas, 163 III. 653, and cases 
 
 447; Post V. Weil, 115 N. Y. 361; cited in notes following. 
 
 Avery v. N. Y. C. etc. E. Co., 106 N. 3. Cornelius v. Ivins, 26 N. J. L. 
 
 Y. 142; Cunningham v. Parker, 146 376; Walters v. Bredin, 70 Pa. St. 
 
 N. Y. 29; Hapgood v. Houghton, 82 235; Kew v. Trainor, 150 111. 150; 
 
 Pick. (Mass.) 480; Sohier v. Trinity Atty. Gen. v. Merrimack Mfg. Co., 14 
 
 Church, 109 Mass 1; Scovill v. Mc- Gray (Mass.) 612; Warner v. Ben- 
 
 Mahon, 63 Conn. 378; Mills v. Davi- nett, 31 Conn. 468. 
 
 fion, 54 N. J. Eq. 659; Star Brew. Co. 4. Post v. Weil, 115 N. Y. 361. 
 
Oeeation or Conditional Estates. 455 
 
 that the provision was intended as a covenant creating an 
 easement of way over the land conveyed from the hotel to 
 the station for the benefit of the hotel property which the 
 railroad company would be restrained from closing. What 
 the grantor wanted was the maintenance of the way, not a 
 forfeiture in case of a breach, there being no express clause 
 of forfeiture.* In any case of a devise or bequest of prop- 
 erty on condition that the devisee or legatee pay stated sums 
 to other persons named within a stated time or within a 
 reasonable time if no fixed time is stated, the courts hold 
 that the provision creates an equitable charge which will be 
 enforced by a sale of so much of the property devised as 
 may be necessary to make the payments called for, not a 
 condition enforceable by forfeiture which would mean that 
 the heirs would take the property and the testator's ex- 
 pressed intent would be defeated. In a case of this kind it 
 is obvious that a forfeiture was not intended as it would 
 defeat the testator's expressed purpose." A conveyance 
 to a bishop " on condition that it be forever held for the 
 use of the Protestant Episcopal Church " was held to create 
 a trust, the bishop holding in trust for the church, not a 
 defeasible estate on condition.'^ Other illustrations appear 
 in the notes.* 
 
 5. Avery v. N. Y. C. etc. K. Co., 106 enforced a forfeiture for a failure to 
 N. Y. 143. pay one of the legacies as provided. 
 
 6. Cunningham v. Parker, 146 N. The result was that David lost his 
 Y. 29; Woodruff v. Walling, 31 Iowa share of the residuary estate, and 
 533; Will V. Simmonds, 55 Wis. 637; the daughters, instead of getting 
 Gray, Perpetuities, § 283, note. $300 each as intended, received an 
 
 See contra, Wheeler v. Walker, 2 undivided share as though the testa- 
 Conn. 196, illustrating clearly how tor had died intestate. By giving 
 giving effect to such a provision as a effect to the provision as a charge on 
 condition defeats the testator's inten- the residue given to the two sons the 
 tions. Here the residuary estate was testator's will would be carried out 
 given to David and Nathan " they exactly as he intended, each of the 
 jointly and severally paying to my daughters receiving the legacy of 
 two daughters • • • the sum of $300, and the sons taking the balanct 
 three hundred dollars each, within one of the residue. 
 
 year after my decease." The court 7. Neely v. Hoskins, 84 Me. 386; 
 
456 
 
 Conditional Estates. 
 
 The mere statement of the use to which the land is to be 
 put, or the purpose of the conveyance or devise does not 
 create an estate on condition. A forfeiture will never be 
 implied. It must be provided for by the deed or will in such 
 way that it cannot reasonably be avoided in order to create 
 an estate on condition.^ 
 
 Nevertheless where the intent of the testator or grantor 
 cannot effectually be caried out except by giving effect 
 to the gift as an estate on condition, it will be so construed, 
 though no express provision for forfeiture appear in the 
 instrument.^" Therefore where it is clear that a trust was 
 not intended, and where the provision is incapable of en- 
 
 Mills V. Davison, 54 N. J. Eq. 659; 
 Sohier v. Trinity Church, 109 Mass. 
 1. 
 
 8. In Skinner v. Shepard, 130 
 Mass. 180, the grant was " subject to 
 the condition that no building shall 
 ever be placed on that part of the 
 same lying within twenty-five feet of 
 said street." This was construed as 
 a restrictive covenant, no forfeiture 
 being provided for. It was merely 
 personal since the grantor was not 
 the owner of any adjoining land for 
 the benefit of which the restriction 
 was made. It therefore ceased on 
 the grantor's death. In Woodruff v. 
 Woodruff, 44 N. J. Eq. 349, the deed 
 was on condition that the grantor 
 should have the right to repurchase 
 after the grantee's death for an 
 amount to be fixed by appraisal. 
 This, obviously, was a covenant to 
 reconvey, not a condition involving 
 forfeiture. 
 
 In addition to the cases heretofore 
 cited on this question of construc- 
 tion, see Paschall v. Passmore, 15 Pa. 
 St. 895, 307; Sumner v. Darnell, 128 
 Ind. 38. 
 
 9. Stuart v. Easton, 170 tJ. S. 383; 
 
 Sumner v. Darnell, 128 Ind. 38; 
 Farnham v. Thompson, 34 Minn. 330. 
 
 10. In Horner v. Chicago, etc. R. 
 Co., 38 Wis. 165, where the land was 
 conveyed " only for depot and for 
 other railroad purposes," the court 
 held that a conditional estate was ' 
 intended, the grantor owning ad- 
 joining lands which would be in- 
 creased in value by the improvements 
 for which the land was conveyed, the 
 provision being otherwise ineffective. 
 
 In any case where the condition is 
 that improvements shall be made, as 
 the building of a railroad, erection 
 of a school or church, the provision 
 being unenforceable as a covenant 
 and a trust not being intended, it 
 will be given effect as a condition, 
 language of condition being em- 
 ployed. This is true in any case 
 wliere the provision would be ineffect- 
 ive as a covenant, easement, trust or 
 charge, though there be no express 
 clause of forfeiture. NicoU v. N. Y. 
 & Erie R. Co., 12 N. Y. 121; Upping- 
 ton V. Corrigan, 151 N. Y. 143 ; Hay- 
 den V. Inhabitants of Stoughton, 5 
 Pick. (Mass.) 528; Cornelius v, 
 Ivins, 26 N. J. Eq. 376 (dicta). 
 
KlGHT OF EntEY foe BkEACH OF OoNDITIOIT. 
 
 457 
 
 f orcement as an easement or a covenant or as a charge, lan- 
 guage of condition will always be effective as creating an 
 estate on condition, thongli there be no express reservation 
 of a right of entry or other forfeiture provision." 
 
 § 226. The Right of Entry for Breach of Condition.— 
 Where an estate in fee on condition is created by deed or 
 will all that remains in the grantor or in the heirs of the 
 devisor is a possible right of entry in case the condition 
 is broken. This is a mere possibility, not amounting to an 
 estate, which cannot be assigned, conveyed or devised. On 
 the death of the grantor it passes to his heirs, not by in- 
 heritance, but to the heirs as the representatives of the 
 grantor as to his realty.^ Since it is not an estate it is not 
 rendered alienable or devisable by statutes providing that 
 contingent remainders and other future contingent execu- 
 tory estates may be conveyed and devised.^ After breach 
 
 11. See preceding note. 
 
 1. Co. Litt. ai4a, ai4b; NiooU v. 
 N. Y. & Erie K. Co., 13 N. Y. 121; 
 Uppington V. Corrigan, 151 N. Y. 
 143; Eice v. Best. & W. E. Corp., 18 
 Allen (Mass.) 141; Merritt v. Har- 
 ris, 103 Mass. 336. 
 
 The right of entry probably origin- 
 ated in the feudal right of the over- 
 lord to enter in case the vassal failed 
 to render feudal services, the right 
 of entry being reserved in the grant. 
 Co. Litt. 201a, Butler's note. 
 
 The reason for the rule that the 
 right of entry, either before or after 
 breach of condition, could not be as- 
 signed was the prevention of main- 
 tenance. As expressed by Coke, the 
 reason for this rule was that "" under 
 color thereof pretended titles might 
 be granted to great men whereby 
 right might be trodden down, and the 
 weak oppressed, which the common 
 
 law forbiddeth, as men to grant be- 
 fore they be in possession." Co. 
 Litt. § 347. 
 
 " It is a maxim of law, that noth- 
 ing which lies in action, entry or re- 
 entry, can be granted over, in order 
 to discourage maintenance." 1 
 Greenlief's Cruise Eeal Prop., tit. 13, 
 ch. 1, § 15. 
 
 That the right of entry passes to 
 the heirs of the grantor or other per- 
 son entitled to enforce the conditiou 
 by representation and not by descent, 
 see 4 Kent Com. 17; Gray's Per- 
 petuities, §§ 33-41; Uppington v. 
 Corrigan, 151 N. Y. 143. 
 
 2. Uppington v. Corrigan, 151 N. 
 Y. 143, and cases in preceding note. 
 
 By statute in England and in 
 some of the states rights of entry be- 
 fore or after breach of condition may 
 now be assigned or devised by th« 
 owner. 8 and 9 Vict., ch. 106, § 6, 
 
458 
 
 Conditional Estates. 
 
 of the condition the right of entry, which was a mere pos- 
 sible right before, becomes a vested right of entry and of 
 action, by virtue of which the grantor or his heirs or the 
 heirs of the devisor may enter or maintain ejectment, bring- 
 ing the conditional estate to an end. This right of action 
 or entry cannot be assigned or transferred any more than 
 could the possible right before breach, and for the same 
 reasons.^ An attempt to convey or assign this possible 
 right of entry, either in express term or by a conveyance of 
 the interest of the grantor in the land already conveyed in 
 fee on condition, results at common law in a loss of the right, 
 the original grantee holding thereafter free of the condi- 
 tion.* The Statute 32 Henry YIII, c. 9, expressly prohibited 
 
 and 1 Vict. cli. 26, § 3, enacted in 
 1843 and 1837, respectively; Cornel- 
 ius V. Ivins, 26 N. J. L. 376, and 
 Soutiiard v. Central E. Co., 26 N. 
 J. L. 13, construing statute of March 
 14, 1851 (providing for transfer by 
 deed or will of the right of entry for 
 breach of condition, as well as other 
 future estates or interests in expect- 
 ancy) ; Hoyt T. Ketcham, 54 Conn. 
 60 (referring to a similar Connecti- 
 cut statute). 
 
 In Hayden v. Inhabitants of 
 Btoughton, 5 Pick. (Mass.) 528, the 
 court held that when a conditional 
 estate created by will was subject to 
 forfeiture for breach of condition, 
 the residuary devisee under the same 
 will was entitled to enforce the for- 
 feiture, not the heirs of the testator, 
 the court arguing that the residuary 
 clause included the right of entry as 
 part of the testator's residuary es- 
 tate, as effectually as though it had 
 been specifically devised over on 
 breach of the condition as a condi- 
 tional limitation. It is true the tes- 
 tator could have granted the prop- 
 
 erty over to another on breach of the 
 condition, but he did not do so. He 
 created a conditional estate, one of 
 the incidents of which is that his 
 heirs alone have the right to enter. 
 The case is, therefore, wrongly de- 
 cided. 
 
 See Austin v. Cambridgeport, 21 
 Pick. 215, holding that the right of 
 entry may be devised, on the author- 
 ity of Hayden v. Stoughton, supra, 
 but extending the error in that case 
 to include the power to devise a right 
 of entry created by a prior deed, a 
 good example of the way in which er- 
 ror will beget further error. 
 
 3. Fowler v. Coates, 201 N. Y. 251. 
 In Bouvier v. Bait., etc., E. Co., 67 
 
 N. J. L. 281, the court held that af- 
 ter breach of condition the right of 
 entry could be transferred quite in- 
 dependent of the New Jersey statute, 
 since the policy of the law in that 
 regard to avoid maintenance was not 
 in force in New Jersey. 
 
 4. Eice V. Boston, etc R. Co., 13 
 Allen (Mass.) 141; Hooper t. Cum- 
 mings, 45 Me. 359. 
 
Eight of Entry foe Breach of Conditiok. 459 ■ 
 
 the granting or taking of any such right or interest under 
 penalty of forfeiture of the interest granted. It may well 
 be doubted today whether any such drastic penalty would 
 be applied to modern conditions. It would seem to be quite 
 sufScient to hold the attempted assignment of the right 
 void without enforcing a forfeiture. Certainly the at- 
 tempted assignment of a personal action in tort, or other 
 unassignable chose in action, does not result in its for- 
 feiture. The tendency of the modern law is to discard rules 
 of the ancient common law providing for forfeitures, as in 
 the case of the forfeiture incurred at common law by a 
 life tenant through an attempt to convey by feoffment with 
 livery a fee in the land held by him for life. There is little 
 modern authority sustaining this rule, and what there is 
 is based on the old authorities without the expression of 
 any reason for the rule other than precedent. It is a rule 
 which might well be regarded as obsolete because of the 
 changed conditions of modern times.^ 
 
 Under the ancient common law rights of entry reserved 
 against tenants for years or for life on condition, were in- 
 capable of assignment with the reversion or remainder, so 
 that a conveyance of the property subject to the term or the 
 life estate destroyed the condition, the grantor having no 
 
 5. In North v. Graham, 235 111. tion, and the grantor had subsc- 
 
 178, holding that a quit claim deed quently conveyed the farm subject 
 
 executed by the grantor purporting to the right of way, it being claimed 
 
 to convey the same property did not that the right of entry passed in 
 
 pass a possibility of reverter in the each case, the courts in holding that 
 
 case of an estate upon limitation, the right of entry could not be con 
 
 there is no suggestion that the at- veyed do not suggest in any way that 
 
 tempted conveyance worked a for- such attempted conveyance would re- 
 
 feiture, and in NicoU v. N. Y. & suit in a forfeiture of the right, 
 
 Erie R. Co., 13 N. Y. 121 ; Boone v. though such a ruling would be decis- 
 
 Clark, 129 111. 466, and Paul v. Con- ivc of each case, assuming there wasi 
 
 nersville, etc. E. Co., 51 Ind. 527, in an attempt to convey the right of 
 
 each of which cases land had been entry in each case, which there was 
 
 conveyed to a railroad company for not. 
 its right of way, subject to a condi- 
 
460 Conditional Estates. 
 
 right to enforce a forfeiture in case of breacli, having parted 
 with, the reversion, and the grantee of the reversion not 
 having that right, since it could not be assigned.^ By stat- 
 ute 32 Henry VIII, ch. 34, the law was changed in this re- 
 spect, the statute providing that the right of entry in such 
 case should pass with the reversion. Similar statutes have 
 been enacted in many states, and in the others the statute 
 is expressly or tacitly recognized as law. Therefore in the 
 case of any estate for life or for years on condition, the 
 right to enter for breach passes with the reversion as an 
 inseparable incident thereof, to any grantee, devisee or heir 
 to whom the reversion may pass, subject to the term or life 
 estate. Therefore, on a conveyance of the reversion, the new 
 landlord or owner subject to the life estate or term of years 
 may enter to enforce a forfeiture incurred by the life ten- 
 ant or tenant for years for breach of condition.'' In New 
 York this extends to a lease or grant in fee upon condition 
 reserving a perpetual rent. The rent charge carries with it 
 as an incident the right to enter for any breach of condi- 
 tion committed by the tenant to whomsoever it may be as- 
 signed or devised.^ 
 
 § 227. What Constitutes Breach of Condition. — Since the 
 courts do not favor forfeitures the act constituting a breach 
 for which a forfeiture will be enforced must be substantial 
 
 6. See casea in note 1, supra, also the premises for breach of condition 
 Nicoll V. N. Y. & Erie R. Co., 13 N. will not be enforced. This rule does 
 Y. 121. not apply where the division is mado 
 
 7. N. Y. Real Prop. L., § 223 (as by operation of law when the rever- 
 to tenancies for years and leases or sion descends to heirs as tenants in 
 grants in fee reserving rents) ; Nic- common, nor when the conditional 
 oil V. N. Y. & Erie E. Co., 12 N. Y. term was created in contemplation of 
 131. See § 189, ante, under landlord a subsequent division. Co. Litt 
 and tenant. 215a; Cruger v. McLaury, 41 N. Y. 
 
 It appears to be settled that the 219; Tinkham v. Erie R. Co., 5'i 
 
 grantee of part of the reversion can- Barb. (N. Y.) 593. 
 
 not enforce a forfeiture for breach 8. N. Y. Real Prop. Law, 8 223 j 
 
 of condition against a tenant for Nicoll v. N. Y. & Erie R. Co., 13 N. 
 
 years, since a forfeiture of part of Y. 131. 
 
What Constitutes Beeach of Condition. 461 
 
 as distinguislied from a merely teclmical breach; it must 
 be in violation of the true purpose and intent of the condi- 
 tion. Substantial compliance with tbe condition is all that 
 is required.^ Thus a grant of vacant property with the con- 
 dition that it forever remain open as a public highway or 
 square was not broken by the erection of a building which 
 encroached a few inches on the land so granted, the encroach- 
 ment not having been intentional.^ The mortgaging of a 
 leasehold is not a breach of a condition not to assign.^ 
 Where land was conveyed subject to the condition that it be 
 used for the purposes of a meeting house, which was duly 
 erected, the ceasing to use the meeting house for a few 
 years followed by the repair and subsequent use thereof for 
 some time before the action was brought, was not a breach 
 of the condition giving the right to enforce a forfeiture.* 
 
 Where no time is stated for compliance with a condition 
 requiring affirmative action, such as the erection of a church, 
 schoolhouse, or other public building, the grantee or devisee 
 of the conditional estate has a reasonable time to comply 
 with the condition. What is a reasonable time will depend 
 on the facts of each case. Failure for more than ten years 
 
 1. Eose V. Hawley, 141 N. Y. 366; signment or reconveyance the estate 
 Eiggs V. Purcell, 66 N. Y. 193: or term is freed from the condition. 
 Woodworth v. Payne, 74 N. Y. 196; Emerson v. Simpson, 43 N. H. 475: 
 Osgood V. Abbott, 58 Me. 73 ; Mills V. Gannett v. Albree, 103 Mass. 373; 
 Evansville Sem., 58 Wis. 135; Car- Murray v. Harway, 56 N. Y. 337. 
 ter V. Branson, 79 Ind. 14. These cases are extreme. Unless th» 
 
 2. Eose V. Hawley, 141 N. Y. 366. condition is expressly made personal 
 
 3. Eiggs V. Purcell, 66 N. Y. 193. to the grantee or tenant, in express 
 
 4. Osgood V. Abbott, 58 Me. 73. terms binding him alone, the estate 
 In some cases where the condition created by the deed or lease is af- 
 
 is made in terms applicable to the fected by the condition as long as it 
 grantee or tenant and not to his as- lasts and to whomsoever's hands it 
 signs the courts, following this rule may be transferred. Most of the 
 of strict construction against for- cases cited under this chapter stand 
 feiture, construe the condition as expressly or impliedly for this prop- 
 binding the grantee or tenant, but osition. 
 not his assignee, bo that after as- 
 
462 Conditional Estates. 
 
 to erect such a building as required by the condition has 
 been held to be a breach as a matter of law."* 
 
 § 228. Waiver of Breach of Condition. — On the breach 
 of a condition the person having the right to enter may 
 elect between enforcing the forfeiture, thereby terminating 
 the conditional estate, and waiving the breach, thereby 
 continuing and confirming the conditional estate as though 
 the breach waived had not taken place. The effect of the 
 waiver of a breach is to destroy the right to enter for that 
 particular breach, without affecting in any way the pos- 
 sible right of entry for any subsequent breach of the condi- 
 tion. The grantor, landlord, or other person having the 
 right to enter, cannot after a waiver change his mind and 
 elect to enforce a forfeiture for the breach so waived.' On 
 the other hand, if he has elected to enforce the forfeiture 
 by making an entry or by starting a suit in ejectment, he 
 cannot then restore the tenancy or estate by a waiver of the 
 breach. The estate or tenancy on condition is then at an 
 end, and another grant or lease wUl be required, creating 
 a new estate, to restore the property to the tenant.'' There- 
 fore, where a landlord started ejectment against a tenant 
 for a breach of condition actually committed, and subse- 
 quently discontinued the action, he could not thereafter 
 maintain an action against the tenant for rent under the 
 lease accruing several months after the starting of the eject- 
 ment suit, though the tenant had remained in possession, 
 
 5. Uppington v. Corrigan, 151 N. Har. R. Co., 12 Barb. (N. Y.) 440: 
 Y. 143; Trustees of Union College v. Conger v. Duryee, 90 N. Y. 5&4; 
 City of New York, 173 N. Y. 38; Moses v. Loomis, 156 111. 392; 
 Hayden v. Inhabitants of Stoughton, Sharon Iron Co. v. Erie, 41 Pa. St. 
 5 Pick. (Mass.) 528; Allen V. Howe, 341; Chippewa L. Co. v. Tremper. 
 105 Mass. 241; Pierce v. Brown 75 Mich. 36; Griggs v. Landis, 21 
 University, 21 E. I. 392. N. J. Eq. 494; Hubbard v. Hubbard, 
 
 6. Goodright v. Davids, Cowp. 97 Mass. 188. 
 
 803; Davenport v. The Queen, 3 7. Jones v. Carter, 15 Mees A W. 
 
 App. Cas. 115; Jones v. Carter, 15 718. 
 Mfca & W. 718; Ludlow v. N. Y. * 
 
Waivee of Beeach of Condition. 463 
 
 since tlie starting of the action in ejectment ended the ten- 
 ancy, and with it all liability for rent under the lease.^ 
 Having elected either by a waiver or by entry or action of 
 ejectment, the grantor, landlord, or other person having 
 the right to enter is bound by his election, and cannot 
 then take the other position. 
 
 A waiver may be express, where the breach is waived in 
 express terms, or, more usually, it may be implied from 
 some act of the landlord or grantor which amounts to an un- 
 equivocal recognition of the tenancy or estate on condition 
 as continuing after the breach. The person waiving must 
 have knowledge of the breach at the time, and his act must 
 be inconsistent with the enforcing of a forfeiture, impliedly 
 recognizing the tenancy as continuing after the breach and 
 in spite of it. Thus the acceptance of rent falling due after 
 the breach of the condition by the landlord with knowledge 
 of the breach is a waiver thereof, since the taking of such 
 rent is necessarily a recognition of the tenancy as continu- 
 ing after the breach, and an expression of the landlord's 
 election to permit the tenancy to continue as though no 
 breach had been committed.^ The landlord must have 
 knowledge of the breach, since he cannot waive that of 
 which he knows nothing, and the rent must have accrued 
 after the breach was committed. If it became due before the 
 breach its acceptance thereafter is not a waiver, it being 
 entirely consistent with the enforcement of a forfeiture 
 that the landlord collect rent falling due before the breach. 
 He could unquestionably enforce the forfeiture and en- 
 force the collection of rent due before the breach at the 
 same time.^** 
 
 8. See preceding note. yee, 90 N. Y. 594; Miller v. Prescott^ 
 
 9. Goodright v. Davids, Cowp. 803 ; 163 Mass. 12 ; Medinah, etc. Co. v. 
 Davenport v. The Queen, 3 A,pp. Currey, 163 111. 441, and cases in 
 Cas. 115; Jackson v. Allen, 3 Cow. notes following. 
 
 CS. y.) 220; Hunter v. Osterhoudt, 10. Jackson v. Allen, 3 Cow. (N. 
 
 11 Barb. (N. Y.) 33; Conger v. Dur- Y.) 220; Hunter v. Osterhoudt, 11 
 
464 Conditional Estates. 
 
 It is clear that -when tlie forfeiture is enforced by entry 
 or ejectment the tenancy is ended as of the date of the entry 
 or the starting of the suit in ejectment, not as of the date of 
 the breach of condition, and therefore, if some time has 
 elapsed before forfeiture is enforced the tenancy continues 
 up to that time, and the landlord may recover rent accruing 
 after the breach and before the forfeiture, rent not being 
 extinguished until the tenancy is brought to an end." 
 There seems to be some conflict of authority on the question 
 of whether the landlord may accept rent accruing after 
 the breach reserving by express terms the right to enforce 
 the forfeiture thereafter. It is said that the acceptance of 
 rent is a recognition of the continuation of the estate after 
 the breach, and is necessarily a waiver, whether the land- 
 lord accepts without prejudice to his right of entry for the 
 prior breach or not.^^ This can only be on the ground that 
 the tenancy cannot continue after the breach subject to the 
 right of entry for the prior breach. But where some time 
 elapses before the forfeiture is enforced the landlord, after 
 enforcing the forfeiture, may collect rent accruing before 
 forfeiture and after the breach.^^ It would seem, therefore, 
 that there is nothing to prevent the parties from agreeing 
 that the tenancy shall continue and rent be payable subject 
 to the landlord's continuing right to enforce forfeiture 
 for a breach committed before the rent accrued. The cases 
 taking this view, that the conditional acceptance of rent or 
 other act which would otherwise amount to a waiver, shall 
 not be so construed, it being expressly stipulated that no 
 waiver shall result, are in accord with sound reason." 
 
 If the grantor or other person entitled to enforce the con- 
 dition makes compliance with the condition impossible, or 
 
 Barb. (N. Y.) 33; Miller v. Presoott, 18. Davenport v. The Queen, 3 App, 
 
 163 Mass. 12; Medinah, etc. Co. v. Cas. 115. 
 
 Currey, 162 111. 441. 13. See § 189, ante. 
 
 11. See § 189, cmto, under land- 14. Miller v. Prescotl, 183 Mass. 
 lord and tenant. 12; Medinah, etc. Co. t. Currey, 168 
 
 HI. 441. 
 
Waivee of Breach of Condition, 465 
 
 brings about the breach by his own act, he will not be per- 
 mitted to enforce a forfeiture because of the breach for 
 which he is himself responsible.^^ This is strictly an im- 
 plied license to break the condition since it precedes the 
 breach, rather than the waiver of a breach already com- 
 mitted. 
 
 Mere silence or inaction with knowledge of the breach on 
 the part of the person entitled to enforce forfeiture is not 
 enough to constitute a waiver. He may bring his action 
 in ejectment to enforce forfeiture at any time within the 
 period allowed by the Statute of Limitations, generally 
 twenty years.^* But if he stands by knowing of the breach, 
 and permits the tenant on condition to expend money on im- 
 provements and otherwise change his position, his silence 
 and failure to enforce the forfeiture under such circum- 
 stances will amount to a waiver. If in such case the rea- 
 sonably prudent or average man in the position of the ten- 
 ant would be justified in regarding his silence and inaction 
 as amounting to an election on his part not to enforce the 
 forfeiture, but to continue the tenancy, a waiver results as 
 a matter of law." Thus where a grant of a strip of land 
 for the tracks of a railroad was made on condition that the 
 road be completed to a certain point by a stated date, and 
 the railroad company failed to complete their road to the 
 point named by the date specified, the silence and inaction 
 of the grantor for a year and nine moths during which 
 time the road was completed to the designated point, fol- 
 lowed by silence and inaction for several years more while 
 the road was being extended beyond, depending on their 
 title to the part already built on the grantor's land, was 
 
 15. Baker v. Woman's Chr. Temp. College v. City of New York, 173 N. 
 Union, 57 App. Diy. (N. Y.) 290; Elk- Y. 38; Gray v. Blanchard, 8 Pick. 283 
 hart Car Works v. Ellis, 113 Tnd. 215; 17. Ludlow v. N. Y. & Har. E. Co., 
 Jones V. C. & 0. R. Co., 14 W. Va. 12 Barb. (N. Y.) 440; Hooper v. Cum- 
 514. mings, 45 Me. 359; Barrie v. Smith, 
 
 16. Jackson v. Crysler, 1 Johns. 47 Mich. 130. 
 Cas. (N. Y.) 125; Trustees Union 
 
 80 
 
466 OoiroiTiONAL Estates. 
 
 held to amount to a waiver of tlie breach. In that case the 
 court also found a waiver from the fact that after the breach 
 the grantor required the railroad company to repair their 
 fences along their railroad tracks in accordance with the 
 terms of the conveyance to them of the land in question, a 
 very good illustration of an implied waiver by acts unequi- 
 vocally in recognition of the conditional estate as continu- 
 ing after the breach.^ ^ 
 
 § 229. Continuing Cause of Forfeiture. — Conditions are 
 of three kinds: (a) Those calling for or forbidding a single 
 act, capable only of a single breach, such as a condition 
 that a schoolhouse be erected on the premises within five 
 years, or that the grantee shall not marry a certain person, 
 or the like. The waiver of the breach of such a condition 
 necessarily ends the condition since it cannot be broken 
 again, and there can be no further ground of forfeiture.^ 
 (b) Those calling for a succession of acts, such as a con- 
 dition that the tenant pay the rent reserved in the lease 
 each year, or that he pay the annual taxes, or forbidding 
 acts which may be repeated many times, as a condition not 
 
 18. Ludlow V. N. Y. & Har. E. Co., 1. Instances of such conditions ap- 
 
 12 Barb. (N. Y.) 440. pear in Ludlow v. N. Y. & Har. R. 
 
 If the expense incurred by the ten- Co., 13 Barbour (N. Y.) 440; Upping- 
 ant on condition is incurred by him ton v. Corrlgan, 151 N. Y. 143; Hay- 
 in doing the very thing forbidden, or den v. Inhabitants of Stoughton, 5 
 in preparation therefor, as in erect- Pick. (Mass.) 538. 
 ing a hotel and fitting out a bar room A condition that the tenant shall 
 preparing to violate the condition not not assign without the consent of the 
 to engage in the liquor business on landlord is construed as binding the 
 the premises, it is clear that there original tenant only, not his assignee 
 would be no waiver in the silence and after an assignment made with the 
 inaction of the grantor or landlord, landlord's consent, and is therefore 
 The tenant on condition is bound to capable of only a single breach. 
 know that what he is doing is a Koehler & Co. v. Brady, 78 Hun (N. 
 breach involving forfeiture, and to Y.) 443 ; Murray v. Harway, 56 N. Y. 
 require a warning from the landlord 337; Gannett v. Albree, 103 Man. 
 or grantor of that fact would be un- 373. 
 reasonable and absurd. 
 
CosTTiNiTiNO Cause of Foefeituee. 467 
 
 to make alterations, not to commit waste, and the like. 
 Such, conditions are capable of many successive breaches, 
 and the waiver of a breach simply destroys the right to 
 enter for that particular breach, without in any way af- 
 fecting the right to enforce a forfeiture for any breach 
 thereafter committed.^ (c) Conditions calling for the main- 
 tenance of the premises in some specified way, or for some 
 stated purpose, such as a condition to keep the buildings 
 on the premises insured, or in repair, or to use the premises 
 solely for the purposes of a private dwelling for the tenant 
 and his family. In these cases if the buildings are per- 
 mitted to remain uninsured or out of repair, or if the prem- 
 ises are used in a continuous way for business purposes there 
 is a continuing breach of condition or cause of forfeiture in 
 each case as long as the forbidden condition lasts. There- 
 fore in any such case if rent be accepted with knowledge 
 of the breach, or the breach be waived in any other way, 
 the waiver applies only to the continuing breach up to the 
 time of the waiver. It is not a license permitting a further 
 continuance of the forbidden condition for the balance of 
 the term. Therefore if after the payment of rent or other 
 ;act of waiver the tenant still fails to make repairs which 
 are needed, or to take out insurance, or continues to use 
 the premises for the purposes of business, he is guilty of a 
 further breach of condition which has not been waived or 
 consented to, and the landlord may enter or oust him for 
 breach of condition.^ 
 
 2. Conger v. Duryee, 90 N. Y. 594; Wend. (N. Y.) 530; Croker v. Old 
 Ireland v. Nichols, 46 N. Y. 413; South Soc, 106 Mass. 489; Jones v. 
 Bleecker v. Smith, 13 Wend. (N. Y.) Durrer, 96 Cal. 95. 
 
 -530; Croker v. Old South Soc, 106 In Conger v. Duryee, 90 N. Y. 594, 
 
 Mass. 489; Douglas v. Herms, 53 the court by way of dicta criticises 
 
 Minn. 204. See, also, cases cited, § this rule, or rather the form in which 
 
 •828, note 9, ante. it is expressed, stating that every 
 
 3. Ambler v. Woodbridge, 3 Barn & breach of such a condition necessarily 
 Cres. 376; Alexander v. Hodges, 41 involves some specific act or omission. 
 Mich. 691; Bleecker T. Smith, 13 The point was not involved, as the 
 
468 
 
 Conditional Estates. 
 
 § 230. License Permitting Breach of Condition. — A li- 
 cense is a consent in advance to commit a breach, of condi- 
 tion given by tlie landlord, grantor, or other person entitled 
 to enforce the condition, to the tenant or owner of the condi- 
 tional estate. The effect of it is exactly the same as the 
 effect of a waiver of a breach — ^no forfeiture can be enforced 
 for a breach of condition thus consented to.* Some con- 
 fusion was introduced into the law on this subject by the 
 celebrated Dumpor's Case,^ in which the court held that 
 
 breach in that case was the tenant's 
 specific failure to pay taxes for cer- 
 tain stated years, waived by the sub- 
 sequent acceptance of rent. The con- 
 tinued failure to comply with such 
 conditions as are referred to in the 
 text constitute a continuing breach 
 from day to day, forbearance and 
 waiver of forfeiture by the landlord 
 not amounting to a consent or license 
 that the tenant neglect the perform- 
 ance of the duty imposed upon him 
 by the condition thereafter. 
 
 In Smith v. Rector, etc. St. Philip's 
 Church, 107 N. Y. 610, land was leased 
 for a, term of twenty-one years sub- 
 ject to a condition not to assign or 
 sublet. The tenant erected an apart- 
 ment house for the express purpose of 
 subletting apartments to subtenants, 
 and rents were accepted for several 
 years by the landlord with notice of 
 the subletting of apartments. The 
 court regarded these sublettings es 
 not within the meaning of the condi- 
 tion, which seems to have related to 
 the land, and not to any building 
 erected thereon, the land having been 
 leased with the express purpose of 
 erecting the building, which was to be 
 appraised and paid for by the lessor 
 at the end of the term. But even if 
 these sublettings were in violation of 
 
 the covenant the court regarded the 
 acceptance of rent for years witJi 
 knowledge of the situation as a li- 
 cense to continue the subletting of 
 apartments for the balance of the 
 twenty-one year term. 
 
 In Thropp v. Field, 26 K. J. Eq. 82, 
 there is dicta to the effect that where 
 the landlord has habitually permited 
 the tenant to be remiss ^n the pay- 
 ment of rent it would be inequitable 
 to enforce a forfeiture for a subse- 
 quent failure to pay rent on time. 
 In any event the tenant is relieved 
 from the forfeiture on paying the full 
 amount of the rent, with interest. On 
 the other hand, in Douglass v. Herms, 
 53 Minn. 204, the court held that sub- 
 sequent breaches by failure to pay 
 rent and taxes were not affected by 
 the landlord's permitting the tenant 
 to be in default in former payments, 
 or by the landlord's paying the taxes 
 himself on former occasions. That 
 the waiver of former breaches will 
 not amount to license to repeat 
 breaches of the condition thereafter 
 is the general and sounder rale. Bos- 
 cowan V. Bliss, 4 Taut. 735. 
 
 4. See cases in notes following. 
 
 5. 4 Coke, Eep. 119, 1 Smith's Lead. 
 Cas. 47, 51 et seq. 
 
LicEisrsE Peemittiitg Breach of Coitdition. 469 
 
 where land had been leased to a tenant on condition that 
 neither the tenant nor his assigns should assign the term 
 without the consent of the landlord, the giving of such 
 consent to the tenant and his assignment thereunder de- 
 stroyed the condition altogether, so that the assignee and 
 subsequent assignees could assign at pleasure without the 
 landlord's consent. This surprising holding was based on 
 the alleged reason that a condition is indivisible, and there- 
 fore if a single breach is consented to the. condition is gone 
 altogether. That the reason on which the case is decided is 
 contrary to the fact is sufficiently apparent. Where the 
 condition is capable of successive breaches, or of a continu- 
 ing breach, we have already seen that each separate breach 
 may be waived without in any way afifecting the right of 
 forfeiture for further breaches committed after the waiver," 
 Such conditions are in no sense inseverable, and Dumpor's 
 Case never had any reason to support it. It became estab- 
 lished as law, however, by precedent, though the later 
 cases usually pointed out the fallacy of the reasoning on 
 which it was decided.'^ The rule in Dumpor's Case was ex- 
 pressly done away with by statute in England in 1851, and 
 it has been generally repudiated in most of the states of 
 this country in which the question has been raised.^ In a 
 few cases, however, the rule has been recognized here, though 
 for the most part by way of dicta.^ In New York there is 
 
 6. See § 229, nctes 2 and 3. 9. Sharon Iron Co. v. Erie, 41 Pa. 
 
 7. Brummel v. Macpherson, 14 Ves. St. 341 (the court holding that the 
 173, and cases in follo^YiIlg nctes. releasing of the plaintiff from a con- 
 
 8. 32 & 23 Vict. ch. 35, §§ 1-3; Kew dition to build a foundry on the land 
 V. Trainor, 150 111. 150. See notes in question, a bloomery to be built in- 
 after Dumpor's Case in 1 Smith's stead, destroyed the condition alto- 
 Lead. Gas. 47-51, containing a valu- gether, so that a forfeiture could not 
 able discussion of this point, and be enforced because of failure to build 
 showing that the rule has not been the bloomery, on the authority of 
 adopted in more than one or two Dumpor's Case) ; Pennock v. Lyons, 
 states, and has been either repudiated 118 Mass. 93 (referring without di»- 
 or ignored generally in the other cussion to Dumpor's Case, and decided 
 states in which the question has been on the authority of Gannett v. Al- 
 raised. bree, 103 Mass. 373, in both cases the 
 
470 
 
 Conditional Estates. 
 
 dicta that Dumper 's Case is still tlie law, dicta which was 
 entirely uncalled for in the decision of the cases in ques- 
 tion.^* Cases sometimes cited as sustaining the rule " are 
 cases in which the lease provided that the tenant should not 
 assign without the landlord's consent, not that the tenant 
 and his assigns should not so assign. Because of the ten- 
 dency of the courts to construe conditions most strongly 
 against forfeitures the courts have held, in New York and 
 
 condition being that the tenant should 
 not assign, the latter case being de- 
 cided expressly on the point that this 
 condition was not intended to bind 
 the assignee, and the first assignment 
 having been consented to, the condi- 
 tion was gone since it was capable 
 of but one breach, viz. : by the assign- 
 ment which had been consented to, so 
 that a further breach was impos- 
 sible) ; Eeid v. Weissner Brew. Ck)., 
 88 Md. 234, the condition being that 
 the tenant should not assign, there 
 being no restriction on assignments 
 by assignees). 
 
 10. In Dakin v. Williams, 17 Wend. 
 447, 458, in an action on a covenant 
 involving no question of conditions or 
 forfeiture, after criticising Dumpor's 
 Case the court said : " The law, how- 
 ever, of this case is well settled and 
 we do not intend to disturb it." In 
 Williams v. Dakin. 22 Wend. 201, 209, 
 there is another dictum of the same 
 kind. 
 
 11. In Murray v. Harway, 56 N. Y. 
 337, arid Kohler & Co. v. Brady, 78 
 Hun (N. Y.) 443, the condition was 
 that the tenant should not assign 
 without the landlord's consent, but 
 with no restriction on the assignee. 
 In holding that, the assignment hav- 
 ing been consented to before or after 
 it was made either by way of license 
 or waiver, the condition was at an 
 
 end, the court cites Dumpor's case 
 without a discussion of that decision 
 or of its application to these ca/Sess 
 As in the Massachusetts cases and the' 
 Maryland case, cited in the preced- 
 ing note, the condition in these cases 
 was susceptible of only a single- 
 breach — an assignment by the origi- 
 nal tenant — and that having been 
 consented to or waived, no further 
 breach was possible and the condition 
 was at an end. These cases must 
 have been decided on that ground, 
 since it is well settled by an abund- 
 ance of authority in New York and- 
 elsewhere that the waiver of a breach 
 of condition capable of many succes- 
 sive breaches has no effect on the- 
 right to enforce a forfeiture for a 
 subsequent breach. See cases cited in 
 § 229, notes 2 and 3, particularly Ire- 
 land v. Nichols, 46 N. Y. 413, and 
 Bleecker v. Smith, 13 Wend. 530, the 
 court holding in both cases that the 
 acceptance of rent waived breaches of 
 a condition not to sublet up to that 
 time, without any effect on the right 
 of forfeiture for further subletting. 
 That the sublessee in such eas» 
 would have no right to sublet in turn. 
 See Wertheimer v. Hosmer, S3 Mich, 
 56, this case, also citing Dumpor's 
 case, but being directly opposed to it 
 in its holding. 
 
Relief feom Fobfeitueb in Equity. 471 
 
 elsewhere, tliat tMs provision does not forbid assignments 
 by assignees, and therefore if the first assignment is con- 
 sented to, the term may be reassigned at pleasure, the lease 
 in no way forbidding assignments by assignees, since they 
 are not included in the prohibition. In other words the 
 condition is capable of only a single breach, and when that 
 is consented to the condition is gone, as explained in the 
 preceding section. Since Dumpor's Case never was sup- 
 ported by any valid reason, and has always been criticized 
 by the English courts even when they followed it, and since 
 it has been expressly repudiated by statute in England and 
 by statute or decision in most states in this country in 
 which the question has arisen, we may safely say that it is 
 not law in New York, though there be some dicta of slight 
 importance to support it. 
 
 § 231. Relief From Forfeiture in Equity.— Where the 
 condition calls simply for the payment of money or the giv- 
 ing of money's worth capable of exact computation, the evi- 
 dent purpose of the condition is to enforce the payment, and 
 if the landlord or grantor, after breach, receives the full 
 amount with interest during the period of delay, he receives 
 all that he is equitably entitled to, interest being com- 
 pensation for the delay. For this reason equity will relieve 
 a tenant from a forfeiture incurred by a failure to pay rent, 
 taxes or the like, the tenant tendering the amount due, with 
 interest to the date of tender, and keeping his tender good 
 by depositing the amount in court. In most jurisdictions 
 this may be set up as a defense to the landlord 's or grantor 's 
 action to enforce the forfeiture, or an action may be brought 
 by the tenant in equity for this relief. In these cases the 
 cause of the tenant's failure to pay on time is immaterial, 
 and mistake, fraud, duress or the like need not be shown, 
 the tenant being entitled to relief in any event, on the same 
 theory that a mortgagor is entitled to redeem his land 
 from a forfeiture incurred through failure to pay the mort- 
 
472 CoNDiTioifAL Estates. 
 
 gage debt when due, viz. : that the condition is held by way 
 of security to enforce the payment, and the landlord is en- 
 titled only to such payment in full, with interest as com- 
 pensation for the delay.^ 
 
 In other cases of conditions calling for the performance 
 of same act involving something more than the payment of a 
 sum of money, such as the keeping of the premises insured 
 for the benefit of the landlord, no relief will be granted 
 to the tenant or grantee unless it appear that a breach has 
 been innocently and unintentionally committed, without 
 any harm actually resulting to the landlord or grantor, the 
 breach being explained as arising out of accident, mistake, 
 fraud or surprise. In such case if the tenant on condition 
 subsequently performs the condition in so far as he can on 
 discovering the breach, no harm having resulted because of 
 the unintentional breach, equity will relieve him from the 
 forfeiture so incurred, though it call for an act not involv- 
 ing, or involving something more than, the payment of 
 money.2 
 
 § 232. Illegal and Impossible Conditions. — Conditions 
 impossible of performance or breach and conditions which 
 cr "' for the doing of some illegal act are simply void and of 
 no effect as conditions subsequent. The estate which vests in 
 a grantee, devisee or tenant for years subject to such a con- 
 dition is not, in fact, conditional, since the contingency on 
 which forfeiture may be incurred can never take place. If 
 compliance with the condition is impossible there can be 
 no breach or default on the part of the tenant. Thus if the 
 condition is that the grantee or devisee support a person 
 named, and the person so named dies before or after the 
 
 1. Gilea v. Austin, 62 N. Y. 486 
 Noyes v. Anderson, 134 N. Y. 175 
 Grigg V. Landis, 21 N. J. Eq. 494 
 Thropp V. Field, 26 N. J. Eq. 82 
 Walker v. Wlieeler, 2 Conn. 299 
 Eogan V. Walker, 1 Wis. 527; Sun' 
 
 day Min. Co. v. Wakefield, 73 Wis. 
 204; Donnelly v. Estes, 94 Wis. 390. 
 2. Mactier v. Osbom, 146 Mass. 
 399; Henry v. Tupper, 29 Vt. 368; 
 Story Equity Jurisdiction, § 1323. 
 
Illegal and Impossible Oonditiows. 473 
 
 deed or will takes effect, the grantee or devisee thereafter 
 holds an estate free of the condition, which was made im- 
 possible of performance by the death of the person to be 
 supported.^ The same result follows if the condition calls 
 for an act which is physically impossible, such as a condi- 
 tion that the grantee go to Eome within twenty-four hours, 
 that he marry a woman who dies, or the like.* The princi- 
 ples governing the enforcement of contracts impossible of 
 performance apply to conditions subsequent in deeds or 
 wills. A condition, like a contract, is not impossible if it 
 were possible to perform it or to comply with it when made, 
 but performance ia prevented in the specific case because of 
 labor strikes, destruction of a building by fire shortly be- 
 fore completion, the erection of which by a certain date is 
 required by the condition, or by financial reverses or other 
 happenings which render performance very difficult. The 
 contractor in such cases undertakes the performance of a 
 contract possible of performance, and he assumes the risk 
 of accidents or misfortunes which may render performance 
 by him on time very difficult or actually impossible.^ The 
 grantee or devisee takes the same risk. If he fails to per- 
 form a possible condition his estate is subject to forfeiture 
 no matter what accidents or misfortunes may have been 
 instrumental in preventing perf ormance.'^ But if the gran- 
 tor or other person entitled to enforce the condition is him- 
 self responsible for the failure to perform, he cannot en- 
 force a forfeiture on that account because the breach was 
 caused by his own act or fault. So where the condition 
 required the erection of a building by a given date, and 
 
 3. Parkrr v. Parker, 123 Mass. 584; that could have been intended, and 
 
 Reed v. Hatch, 55 N. H. 327; Hoss v. this question is not involved. 
 
 Hoss, 140 Ind. 651; Morse v. Hayden, 4. See examples given in Co. Litt. 
 
 62 Me. 337. In these cases where 206a; 2 Bl. Com. 156. 
 
 death of the person to be supported 5. Pollock, Contracts (6th ed.), 410^ 
 
 occurs after the estate lias arisen, the 418; Harmony v. Bingham, 12 N. Y, 
 
 supporting of such person until his 99. 
 
 death is complete performance, all 6. See notes 3 and 4, supra. 
 
474 
 
 CONDITIOITAL EsTATES. 
 
 the grantor wrongfully interrupted the erection of the 
 building, so that it was not erected on time, he could not 
 enforce a forfeiture. The grantor's wrongful act, however, 
 did not relieve the grantee from the necessity of erecting 
 the building, it merely extended the time for performing 
 the condition, giving to the grantee a reasonable time in 
 which to perform in view of the delay caused by the gran- 
 torJ 
 
 If a condition precedent be illegal or impossible no estate 
 passes, since the estate cannot vest until the performance 
 of the condition, which can never take place.® The condi- 
 tional estate in such case is absolutely void. 
 
 § 233. Illegal Conditions. — These include conditions 
 calling for the doing of some act expressly forbidden by law, 
 
 7. Baker v. Woman's Chr. Temp. 
 TJ., 57 App. Div. (N. Y.) 390. 
 
 In Davia v. Gray, 16 Wall (U. S.) 
 203, the existence of a state of war 
 in Texas due to the seceding of Texas 
 from the Union made performance of 
 the condition impossible temporarily, 
 but the court held that the tenant on 
 condition was required to perform 
 within a reasonable time after peace 
 was restored. 
 
 In Reed v. Hatch, 55 N. H. 327, the 
 condition was that a mill be main- 
 tained on the premises for manufac- 
 turing, the court held that on the 
 burning of the mill it should have 
 been rebuilt within a reasonable time. 
 
 8. C5o. Litt. 206a, 206b, 118a; 2 Bl. 
 Com. 156; Cassem v. Kennedy, li7 
 111. 660; City of Stoughton v. Weber, 
 98 Oal. 433. 
 
 Suppose a condition precedent is 
 made impossible of performance by 
 act of the grantor or other person en- 
 titled to the property in case the es- 
 tate on condition precedent should 
 fail. If the intent was that the es- 
 
 state should vest should performance 
 of the condition subsequently become 
 impossible, which seems to have been 
 the basis of the decision in Jones v. 
 Ghes. & C. E. Co., 14 W. Va. 514, 533, 
 the estate would take effect though 
 the condition had become impossible 
 of performance without fault on the 
 part of the person to whom the es- 
 tate had been given. But in the ab- 
 sence of such intent, in the case of a 
 gift by deed or will of a future con- 
 tingent estate, it ?s difficult to see 
 how the estate could ever vest un- 
 less the condition is complied with. 
 In the case of a conveyance of such 
 an estate for a consideration it is 
 clear that the grantor or one claim- 
 ing through him would be estopped 
 from setting up non-performance of 
 the condition which was caused by his 
 act. But in the absence of facts suf- 
 ficient to give rise to an equitable es- 
 toppel title cannot vest without per- 
 formance of the condition, that being 
 the expressed intention of the gran- 
 tor or testator. 
 
Illegal Conditions. 475 
 
 as the cominission of a crime,® or some act contrary to pub- 
 lic policy. Conditions in general restraint of marriage in 
 conveyances or devises of land are against public policy, 
 and are therefore void.^" But a condition in reasonable re- 
 straint of marriage is valid, such as a condition not to marry 
 until attaining the age of twenty-one or twenty-five, or a 
 condition not to marry a certain definite person, or a person 
 of a certain religion, or inferior race or the like.^^ A con- 
 dition restricting marriage generally until attaining the 
 age of fifty, or more, would be unreasonable and void, tend- 
 ing to defeat reproduction and therefore contrary to public 
 policy.^ ^ A condition restricting marriage without the con- 
 sent of the father, mother or guardian of the grantee or de- 
 visee is reasonable and therefore valid. ^^ A husband may 
 grant or devise property to his wife, and the wife to the 
 husband on condition that she or be, as the case may be, 
 do not remarry. It is not against public policy that provis- 
 ion for the surviving wife or husband cease upon remar- 
 riage." 
 
 An estate upon limitation to a grantee or devisee until 
 marriage, then over to others, is generally sustained, the 
 intention being to provide for the grantee or devisee until 
 marriage only.^® In such case there is no intent to prevent 
 
 9. Co. Litt. S06b, and cases in notes Eq. 229 (dicta) ; Phillips v. Medbury, 
 following. 7 Conn. 568. 
 
 10. Hogan v. Curtin, 88 N. Y. 162; It has also been held that the gen- 
 Randall V. Marble, 69 Me. 310; eral prohibition of a second marriage 
 Shackelford v. Hall, 19 111. 312 ; is reasonable and not contrary to pub- 
 Graydon's Exrs. v. Graydon, 23 N. J. lie policy though made by a parent 
 Eq. 229. or other person in his deed or will, 
 
 11. Hogan V. Curtin, 88 N. Y. 162; not by the husband or wife of the 
 Graydon's Exrs. v. Graydon, 23 N. J. grantee or devisee. Allen v. Jackson, 
 Eq. 229; Shackelford v. Hall, 19 III. 1 Oh. Div. 300; Herd v. Carton. 97 
 212; Phillips v. Ferguson, 85 Va. 609. Tenn. 662. 
 
 12. See cases in preceding note. 15. 4 Kent Com. 127; Moody v. 
 
 13. Hogan v. Curtin, 88 N. Y. 162. Rennoldson, S Hare 570; Parsons v. 
 
 14. Giles V. Little, 104 U. S. 291; Winalow, 6 Mass. 169, 181; Randall 
 Knight V. Mahoney, 153 Mass. 523; v. Marble, 69 Me. 310; Eoyt's Est., 
 Graydon's Exrs. v. Graydon, 33 N. J. 38 Pa. St. 433 (gift to son's wife or 
 
476 OoKDiTioNAi Estates. 
 
 marriage, and no restriction thereon, thougli as a practical 
 matter in a gift to a daughter by her father the distinction 
 is a shadowy one between a provision that her estate shall 
 be forfeited in case she remarry and a provision that she 
 shall take the property until her marriage. In each case 
 marriage ends or may end the estate if the provision be 
 given effect, and the temptation to refrain from marriage 
 would seem to be the same in both cases." A condition call- 
 ing for the separation of husband and wife, or that one live 
 apart from the other is manifestly void as against public 
 policy.^'' If the wife is already separated from her husband 
 provision for her " during her separation " is valid.^* 
 
 A condition in absolute restraint of alienation is void as 
 against public policy, and as being repugnant to the estate 
 granted.'* A partial restraint of alienation, preventing 
 alienation to specified persons or for specified purposes 
 will be valid. 
 
 A condition repugnant to the nature of the estate granted, 
 such as a condition that the grantee shall not use the prop- 
 erty or take profits therefrom is void as against public 
 policy,^" as is a condition in illegal restraint of trade.^' 
 
 ■widow until remarriage, then over to the wife's support during her separa- 
 
 others) ; Courter v. Stagg, 27 N. J. tion from her hushand, the court held 
 
 Eq. 305. that the wife could not become en- 
 
 16. If the limitation is intended to titled to it by wrongfully separating 
 imreasonahly restrain marriage it from her husband. As to whether she 
 should be held void, like a condition would be entitled in case of an inyol- 
 in the same case ; if intended as a pro- untary separation, quaere. It would 
 vision until marriage, not operating seem that in such latter case she 
 as an unreasonable restraint thereof would be entitled, the provision bein" 
 it is valid. Jones v. Jones, 1 Q. B. valid if construed as providing for 
 Div. 379. See 6 Gray's Cases Prop, her in case of a separation for which 
 23 note. she was not responsible, the limita- 
 
 17. Wilkinson v. Wilkinson, L. E. tion in no way tending to bring about 
 IS Eq. Cas. 604; Conrad v. Long, 33 a separation. 
 
 Mich. 78. 19. Gray Restraints on Alienation. 
 
 18. Cooper v. Remsen, 5 Johns. Ch. 20. Co. Litt. 206b; Cruise Dig. tit. 
 (N. Y.) 459. Xm, ch. 1, §§ SO, 21. 
 
 In Cooper v. Classon, 3 Johns. Ch. 21. Ci-uise Dig. id. g 19; United 
 
 »21, involving a similar provision for States v. Freight Ass'n, 166 U. S. 290. 
 
Ebtatbs Ubow Limitation and Conditionax, Limitation. 477 
 
 § 234. Estates Upon Limitation and Conditional Limita- 
 tion. — An estate upon limitation in fee arises where land 
 is conveyed or devised to a person and his heirs but subject 
 to a limitation which is future and contingent, on the hap- 
 pening of which the estate is to end by the express terms of 
 the instrument creating it. A grant or devise to A and his 
 heirs until B returns from Rome, so long as St. Paul's 
 Cathedral shall stand, until Gloversville is incorporated aa 
 a village, are illustrations. The estate is to continue only 
 until the happening of the contingent event which limits it; 
 it then comes to an end of itself because by the express 
 terms of the provision creating the estate it is to continue 
 only up to that time. The grantor in such case has what 
 is termed a possibility of reverter; if the contingency on 
 which the limitation depends happens the fee reverts back 
 to him as completely as though he had never conveyed it 
 away, without entry, the starting of ejectment or any other 
 act on his part. There is no forfeiture or destruction of the 
 estate as a penalty for breach of condition, as in the case 
 of conditional estates. An estate on limitation ends on the 
 happening of the limitation because its natural end, pro- 
 vided for in its creation, has been reached.^ 
 
 This possibility of reverter cannot be assigned or de- 
 vised any more than the possible right of entry for breach 
 of condition, and for the same reasons. It is in no sense a 
 reversion, is therefore not an estate either present or fu- 
 
 In Michigan and Wisconsin statutes or qualified fees by Blackstone and 
 
 have been enacted providing that other Vfriters, and they are still so 
 
 frivolous restrictions upon the use of designated occasionally. They are 
 
 land resulting in no benefit to any also called estates upon collateral 
 
 person or to the public are void, limitation by some authorities, 
 
 Corap. L. Mich. 8828 ; Wis. St. of though the word " collateral " seems 
 
 1898, § 3070; Barrie v. Smith, 47 to add nothing. Where on the hap- 
 
 Mich. 130. pening of the future contingent event 
 
 1. Co. Litt. 214b; 2 Bl. Com. 109; the fee is granted or devised over to 
 
 4 Kent Com. 127; Gray Perpetui- another the estate is called a coadi- 
 
 ties, § 13, and cases in notes follow- tional limitation. See i 235, post. 
 ing These estates were called base 
 
478 
 
 Conditional Estates. 
 
 ture, and is no more affected by statutes making future 
 contingent estates transferable and devisable than is tlie 
 possibility of entry for breach of condition.^ It passes on 
 the grantor's death to his heirs as does the possibility of 
 entry just referred to. 
 
 Estates upon limitation like conditional estates, may 
 also be in tail, for life or for years, as an estate during 
 widowhood, an estate for fifty years if the grantee lives 
 that long, an estate for the life of the grantor so long as 
 the premises are used for the manufacture of cheese, and the 
 like.^ On the happening of the limitation the estate in tail, 
 for life or for years ends at once, the property reverting 
 
 2. Challia Real Prop. (3d ed.), 73, 
 201; 1 Preston, EstateB, §§ 50-53; 2 
 Fearne's Cont. Rem., Smith's ed., §§ 
 153, 154; Gray Perpetuities, § 13; 
 North V. Graham, 235 111. 178. 
 
 That the possible right of entry 
 may be assigned is held in Slegel v. 
 Lauer, 148 Pa. St. 236. In England 
 and in those states providing by stat- 
 ute for the assignment of future con- 
 tingent interests of all kinds, includ- 
 ing possible rights of entry and of re- 
 verter, the possible right of reverter 
 may be assigned. See § 226, note 2, 
 ante. 
 
 There seems to be no good reason 
 ■why the statutes in the differert 
 states which provide that contingent 
 remainders and future executory in- 
 terests may be assigned, inherited or 
 devised should not apply to these pos- 
 sibilities of reverter. Assuming that 
 the grantor or devisor was allodial 
 owner of the property at the time 
 of the grant or devise, the possibilitv 
 of reverter remaining in him differs 
 in no material lespect from a future 
 executory interest created as a con- 
 ditional limitation in case the prop- 
 
 erty is limited over to a third person 
 on the happening of the contingency. 
 On the happening of the limitation 
 the property immediately vests in the 
 grantor or the heirs of the devisor 
 exactly as it would in the third per- 
 son if the estate were a fee upon con- 
 ditional limitation. The possibility 
 of reverter differs from a possible 
 right of entry for breach of condition, 
 the latter being a mere possible right 
 of action, not a contingent estate, the 
 property not reverting until entry or 
 the starting of ejectment. 
 
 3. Roseboom v. VanVechten, 5 
 D^nio (N. Y.) 414, 424; Hurd v. 
 Gushing, 7 Pick. (Mass.) 169; War- 
 ner V. Tanner, 38 Oh. St. 118. 
 
 Tenancies for years subject to ter- 
 mination at any time at the option of 
 either party on notice, or in case the 
 property should be sold, are illustra- 
 tions of tenancies for years upon lim- 
 itation. Pratt V. Paine, 119 Mass. 
 439; Miller v. Levi, 44 N. Y. 489; 
 Woodbridge v. Hires Co., 19 App, 
 Div. (N. Y.) 138; Johnston v. King, 
 83 Wis. 8; Taylor v. Frohock, 85 la 
 584. 
 
EsTATBs Upok Limitation and Conditional Limitation. 479 
 
 back to the grantor without entry or any other action on his 
 part, exactly as in the case of an estate upon limitation in 
 fee.* In these cases the grantor has a reversion, and a con- 
 veyance or devise of the reversion necessarily carries with 
 it the possibility of reverter in case the particular estate 
 upon limitation comes to an end through the happening of 
 the limitation. It may be added that on the conveyance or 
 assignment of the estate upon limitation, whether in fee, for 
 life or for years, the grantee or assignee takes it subject to 
 the limitation, since the tenant upon limitation can convey 
 no greater estate than is his to convey. 
 
 It has been asserted by Mr. Sanders, Prof. Gray, and 
 other writers of authority that there can be no such thing 
 as an estate in fee upon limitation and its attendant pos- 
 sibility of reverter because of the statute Quia Emptores, 
 which statute did away with subinfeudation, and therefore 
 with tenure as between grantor and grantee, the argument 
 being that the possibility of reverter is an incident of ten- 
 ure, that such right cannot exist without tenure, and as 
 tenure no longer exists between a grantor and grantee in 
 fee because of the statute, the attempted possibility of re- 
 verter is void and an absolute fee simple passes.** If we 
 admit the premise that tenure is essential to this estate 
 the conclusion arrived at in this argument cannot be 
 avoided, assuming that the statute should be construed as 
 including fees on limitation, or base fees, as well as estates 
 in fee simple absolute.* The weight of authority is over- 
 whelmingly against this position, most of the leading writers 
 on the law, ancient and modern, recognizing estates upon 
 limitation in fee, or base fees as valid estates, and the lead- 
 
 4. See preceding note. Law Quarterly Rev., to the effect that 
 
 5. Gray Perpetuitie8(2ded.)) §§ 30- the statute Quia Emptores, applying 
 43 (containing an able analysis of in terms to estates in fee simple only, 
 the cases and statutes bearing on was not intended to apply to base or 
 this question) ; 1 Sand. Uses, 5th ed., qualified fees, and in such cases tea- 
 208; 1 Leake, 36 and note (d). ure was not affected. 
 
 6. See article by Mr. Challis, 3 
 
480 Conditional Estates. 
 
 tag courts in this country taking tlie same view both by 
 way of decision of binding authority as well as by (iictumJ 
 On the other hand there seems to be no decision in this 
 country which sustains the principle that a limitation on a 
 fee is void because of the absence of tenure between the 
 grantor and grantee. 
 
 In England tenure still exists theoretically between the 
 king and the owner in fee. It does not exist between the 
 owner in fee and any private person because of the statute 
 Quia Emptores, except where such tenure existed before 
 1289, the date of the enactment of that statute, and the cases 
 in which such tenure can be established as existing prior to 
 that date in the predecessors in interest of the present owner 
 in fee of any parcel of real property are very few in number. 
 Even in England, therefore, as a practical matter, tenure 
 is of very slight significance at this time. In this country 
 either tenure does not exist because of provisions of state 
 constitutions or statutes, or it exists as a matter of theory 
 only between the state and the owner in fee. In those states 
 where it exists theoretically all incidents of tenure have 
 been abolished or have disappeared, so that the owner in 
 fee holds exactly as though he were the allodial owner, the 
 theoretical tenure referred to having no practical signifi- 
 cance whatever.* Therefore, no matter in what state the 
 question may arise, it should be decided on the basis that the 
 owner of the fee holds by allodial ownership. 
 
 In dealing with the allodial ownership of to-day we must 
 not be influenced by doctrines growing out of tenure and the 
 feudal relation. We must approach the problem as though 
 tenure and feudalism never existed. The fundamental law 
 of ownership is that the owner may do as he pleases with 
 
 r. Leonard v. Burr, 18 N. Y. 96; N. J. L. 13; Board of Education t. 
 
 First Universalist Soc. v. Boland, 155 Inhabitants of Van Wert, 18 Oh. St 
 
 Mass. 171; Slegel v. Lauer, 148 Pa. 21; 2 Bl. Com. 109; 4 Kent Con. 
 
 Bt. 236; Friedman v. Steiner, 107 111. 129, and note 1 supra. 
 
 :sri: North v. Graham, 235 111. 178; 8. See | 77 ante. 
 Morris Canal, etc. Co. v. Brown, 27 
 
Estates Upon Limitation and Conditional Limitation. 481 
 
 his property, subject to the rights of society, and among 
 other things he may convey his property as he pleases, his 
 intent controlling as expressed in his deed or will. His 
 intent should control in the case of an estate in fee upon 
 limitation as in others, and on the happening of the event 
 the estate should end in accordance with the terms of the 
 instrument creating it. Quite apart from tenure, it would 
 be in violation of every principle of ownership to hold that 
 the property would not then become his again. Certainly 
 the grantee caimot claim it, since the intent was clear that 
 his interest should cease on the happening of the limitation, 
 and no one else would have any basis of claim whatever. 
 
 The only practical reason for the rule contended for by 
 Prof. Gray is that it is necesary in order to prevent the 
 creation of future remote interests which may not become 
 vested for generations, since the limitation may be one 
 which may not happen for hundreds of years, it being set- 
 tled under the cases that the rule against perpetuities does 
 not apply to possibilities of reverter, because they existed 
 under the common law before the rule against perpetuities 
 developed. But contingent remainders were valid before 
 the rule against perpetuities arose, nevertheless they are 
 now subject to the rule.^ The possibility of reverter dif- 
 fers from a right of entry for breach of condition — it is 
 something more than a possible right of entry. On the hap- 
 pening of the limitation the estate immediately passes to the 
 grantor or his heirs, just as an estate upon conditional limi- 
 tation passes to the person to whom it is limited. In all 
 cases of allodial ownership, therefore, there is no valid rea- 
 son for denying the existence of estates upon limitation, 
 and no valid reason why the rule against perpetuities should 
 not apply to the possibility of reverter in the grantor. It 
 should be an interest which will certainly vest within lives 
 in being and twenty-one years, and the error in the cases 
 
 9. See Ch. XV, post. 
 32 
 
482 Conditional Estates. 
 
 arises in refusing to extend the rule against perpetuities to 
 these future contingent interests, not in recognizing their 
 existence. 
 
 § 235. Estates Upon Conditional Limitation. — A full 
 consideration of these estates, their creation and incidents, 
 belongs to the chapter on future estates.^ Where property 
 is conveyed or devised to A and his heirs, but if A should 
 die without issue, or should marry X, or on the happening 
 of any contingency in the future (subject to the rule against 
 perpetuities) then the property is granted or devised over 
 to B and his heirs, an estate upon conditional limitation 
 is created. The term applies to the estates of A and B in 
 this relation to one another, A's estate being subject to 
 termination on the happening of the contingency, and B's 
 estate being subject thereto as a condition precedent. As 
 we "Hrill see, this estate could not be created at common law 
 before the Statute of Uses and the Statute of Wills, both en- 
 acted during the reign of Henry VIII. Since those statutes 
 a conditional limitation has been valid as a legal estate 
 when created by will as an executory devise, or by deed 
 under the Statute of Uses as a shifting use.* 
 
 A distinction of some importance between estates upon 
 limitation, followed by a conditional limitation over to 
 another, and the usual estate upon conditional limitation, 
 should be considered here. If property be given to Bailey 
 in fee until Gloversville is incorporated as a village, then 
 over to Gloversville, Bailey's estate comes to an end, and 
 the property reverts to the heirs of the testator, the gift 
 to Gloversville being void, as violating the rule against 
 perpetuities, since Gloversville may not be incorporated as 
 a village for hundreds of years, so that its interest may 
 not vest within lives in being and twenty-one years, or 
 within two lives in being under the New York rule. If the 
 
 1. See Ch. XIII, post 2. See Ch. XIII. poMt. 
 
Estates Upon Conditional Limitation. 483 
 
 property had been devised to Bailey in fee, with the provi- 
 sion that on the incorporation of Gloversville as a village 
 the property should go over to Gloversville, Bailey would 
 have a fee absolute, since his estate could be defeated only 
 by the taking effect of the second fee as a valid estate, but 
 that being void, Bailey's estate could not be defeated and 
 would therefore be absolute. In the first case the language of 
 limitation used made Bailey's interest an estate upon limi- 
 tation which necessarily came to an end when its natural 
 end was reached on the incorporation of Glnv..'rsville, that 
 being the clear intent, irrespective of the invalidity of the 
 second fee.' 
 
 3. Leonard v. Burr, IS N. Y. 96; 
 First Universalist Soe., etc. v. Bo- 
 land, 155 Mass. 171. 
 
484 FuTUfeiB EsTAfES. 
 
 CELiPTER XCn. 
 
 PuTUKB Estates. 
 
 § 236. The Different Kinds of Future Estates. — An es- 
 tate wliich gives to its owner the present right to the future 
 possession and enjoyment of real property is a future es- 
 tate. The owner of land may divide his entire fee, which 
 will continue or may continue forever, into as many parts 
 as he pleases, transferring the different parts to different 
 persons as he may elect. Thus A, the owner in fee, may 
 lease his farm to B for ten years, and subject thereto he 
 may convey the farm to C for life, remainder to D for life, 
 remainder to E in fee tail, remainder to F in fee simple. 
 During the ten year term B is owner of the land, entitled 
 to its exclusive possession and control. All the others 
 have successive future estates in the farm, the balance of 
 the fee over and above the tenancy for years being divided 
 among them in the order stated. Each one is the present 
 owner of his future estate, an incorporeal interest since 
 it gives him no present ownership and control of the farm, it 
 being only an incorporeal right to the future possession 
 and control of the land. When the tenancy for years ends, 
 C, the owner of the first life estate becomes owner of the 
 farm, having the right to exclusive possession and enjoy- 
 ment thereof during his life. On his death D, the owner of 
 the second life estate, becomes owner of the farm, if he be 
 still alive. If D should die before the death of C his life 
 estate in remainder would end, so that he would never come 
 into the possession and enjoyment of the property. On the 
 death of C and D the ownership of the farm passes to E in 
 fee tail, his incorporeal future estate being changed into a 
 present estate in possession. If E or his descendants should 
 die without issue surviving the estate tail ends and F, the 
 final remainderman in fee simple, becomes absolute owner 
 
DiFFEEENT KiNDS OF FuTUEE ESTATES. 485 
 
 in possession and enjoyment. The actual ownership of the 
 land as a physical thing is always in the owner of the pres- 
 ent estate, those entitled in remainder being the owners of 
 future incorporeal estates in the land giving no present 
 ownership but only rights of future ownership.^ 
 
 If, in the above illustration, A retained the balance of 
 the fee in himself after creating any one or all of the pre- 
 cedent estates for years, for life, or in fee tail, the future 
 estate remaining in him is called a reversion. The dis- 
 tinguishing characteristics of reversions and remainders 
 are discussed in the sections following.^ 
 
 Future executory interests created to arise in possession 
 and enjoyment on the happening of a future event independ- 
 ent of any particular precedent estates are of the same 
 general nature. They give to their owners a present right 
 to the future possession and enjoyment of the property on 
 the happening of the event on which they are limited to 
 take effect in possession, intangible and incorporeal inter- 
 ests during the interval because they give no present right 
 of ownership in the land. An estate to A to arise on his mar- 
 riage, or on the death of B; an estate to B and his heirs, 
 but if B should die without issue then to A and his heirs, 
 are illustrations of such interests. Under the ancient com- 
 mon law tliey could not be created as they violated technical 
 rules which arose out of feudalism, but since the reign of 
 Henry VIII they have been valid when created by will or 
 by deed under the Statute of Uses. They will be discussed 
 in detail later.^ 
 
 Eights of entry for "breach of condition, actual or pos- 
 sible, are merely rights of action, not estates. Possibilities 
 of reverter after estates in fee upon limitation are also re- 
 garded as mere possibilities not amounting to estates. As 
 
 1. See discussion of ownership of 2. §§ 237, 238, et seq., post. 
 
 land, and of incorporeal interests 3. See §§ 250, 251, post. 
 
 therein in Chapter I, ante, also § 
 SS8, post. 
 
486 FuTUEE Estates. 
 
 pointed out lieretofore * there would seem to be no valid 
 Teason for applying different rules to possible rights of re- 
 verter from those which are applied to other future execu- 
 tory interests dependent upon the happening of some con- 
 tingent event. These interests are heretofore discussed in 
 detail* 
 
 § 237. Reversions. — Whenever the owner of an estate in 
 land creates therefrom and transfers to another a lesser 
 estate, the interest remaining in him is called a reversion. 
 It is called a reversion because by virtue of it the land 
 *' comes back " or reverts to the grantor or lessor on the 
 termination of the smaller estate so created in another.* 
 Thus where the owner in fee lets the land for a term of years, 
 or conveys it to another for life or in fee tail, the balance of 
 the fee undisposed of by him is a reversion, necessarily 
 remaining in him because not disposed of by him, arising 
 by operation of law from the creation of the particular es- 
 tate (so called because a particula, particle, of the fee) 
 rather than by his voluntary act. So, also, a tenant for 
 years who sublets for part of his term, and a tenant for life 
 who lets the premises for a term of years, retain as rever- 
 sions the balance of the term or life estate remaining in 
 them. A reversion is necessarily a vested interest, the 
 grantor or lessor remaining vested of so much of his estate 
 as he has not disposed of. A reversion, like any other vested 
 interest, may be conveyed or assigned, devised or inherited 
 as freely as an estate in possession.'^ 
 
 It should be remembered that where a final remainder in 
 fee is contingent the balance of the fee over and above the 
 precedent particular estates is in the grantor or the heirs of 
 
 4. Ch. XII, ante. Williams Real Prop. (17th ed.), 385, 
 
 6. Ch. XII, ante. ei seq. 
 
 6. 2 Bl. Com. 165; Digby Hist. 7. Co. Litt. 49a; 2 Bl. Com. 1T5, 
 
 li. Real Prop. (5th ed.), 359, 360; 317; 4 Kent Com. 354; Gray, Per- 
 petuities (2d ed.), § 113. 
 
Eemaindees. 487 
 
 the devisor as a reversion, subject to be divested by the 
 vesting of the remainder on the happening of the condition 
 on "which it depends.® A contingent remainder is a mere 
 possibility, not properly an estate. 
 
 § 238. Remainders. — Where after creating a particular 
 estate the balance of the fee or other estate of the grantor or 
 lessor is at the same time and by the same instrument con- 
 veyed or assigned over to another it is called a remainder. 
 Instead of coming back or reverting to the grantor or lessor 
 the property " remains out " in the remainderman on the 
 termination of the particular estate from which the term 
 " remainder " arises.^ If after the creating of the particu- 
 lar estate the grantor or lessor convey or assign the balance 
 of his estate to another by a separte instrument, the in- 
 terest so transferred is a reversion, not a remainder, be- 
 cause on the creating of the particular estate the grantor 
 or lessor becomes the owner of the reversion as a matter of 
 law, and the subsequent conveyance of this interest does 
 not change its character. Having come into existence as a 
 reversion by operation of law it continues a reversion no 
 matter how often transferred. 
 
 At common law before the enactment of the Statute of 
 Uses and the Statute of Wills during the reign of Henry 
 VIII, future frehold estates could arise only by way of re- 
 version or remainder, and the only future estates which 
 could be created in any person other than the owner were 
 remainders. A future freehold estate limited to arise at a 
 future time or on the happening of a contingency in the 
 future without a particular precedent estate for life or years 
 or in tail to support it was absolutely void. The reason 
 was that under feudalism the person answerable to the over- 
 lord for feudal dues and services was the person seised or 
 
 8. Gray, Perpetuities (3d ed.), § Mait. Hist. Eng. L., 21; Williama 
 11, and authorities cited. Real Prop. (17th ed.), 386; Digbjr 
 
 1. 2 BL Com. 163; 2 Poll. 8 Hist. L. Real Prop. (5th ed.), S63. 
 
488 jFutube Estates. 
 
 in possession of the property as freeholder. A freehold es- 
 tate conld be conveyed only by livery of seisin or its equiva- 
 lent, and therefore it was necessary that the grantor, or 
 feoffor as he was termed, part with his seisin in creating 
 any future estate for life or in fee. But the seisin could 
 not vest in the feoffee of the future interest, since by the 
 express terms of the feoffment the seisin or possession was 
 not to be his until the happening of the future event on 
 which his estate was to arise in possession and enjoyment. 
 The result would be, therefore, that if such future estate 
 should be given effect no one would be seised of the prop- 
 erty, and no one, therefore, would be answerable for feudal 
 dues and services during the interval elapsing before the 
 taking effect of the future estate. As this would be fatal 
 to the feudal relation it became settled as the invariable 
 rule of law that any future estate which would leave the 
 seisin in abeyance was absolutely void in its creation.^ It 
 was necessary that a precedent estate for life or for years 
 be created at the same time, and that the future estate be 
 limited to take effect in possession immediately on the 
 termination of the precedent particular estate, as a remain- 
 der. If the future estate was limited to take effect in pos- 
 session one day or a year or after any other interval fol- 
 lowing the termination of the precedent estate it was void, 
 since otherwise seisin would be in abeyance during such 
 interval.* 
 For the same reason a contingent remainder required a 
 
 2. Co. Litt. 217a; 2 Bl. Com. to his son would be void at common 
 165; 4 Kent Com. 259; Digby law because an attempt to create an 
 Hist. Law Real Prop. (5th ed.), 263; estate to spring up at a future day 
 Williams Real Prop. (17th ed.), 417; without a precedent estate to sup- 
 Buckler V. Hardy, Croke (Eliz.), 585. port it. Sabledowsky v. Arbuckle, 
 
 For this reason A could not re- 50 Minn. 475. 
 serve a life estate to himself and con- 3. Williams Real Prop. (17th ed.), 
 
 rey a remainder for life or in fee to 417; 2 Bl. Com. 166, 167; Digby, 
 
 his son, since he could not make liv- id. 263. 
 ery of seisin to himself. The estate 
 
Remaindees. 489 
 
 precedent freehold estate to support it. If limited after an 
 estate for years it was void, seisin otherwise being in abey- 
 ance until the happening of the condition precedent on 
 which the contingent remainder depended. A tenant for 
 years is never seised, since he is not the owner of a freehold 
 estate. His possession is that of the first freehold tenant 
 in remainder or reversion, and if the remainder limited 
 after a term of years is vested the remainderman is seised 
 by virtue of the possession of the tenant. But a contin- 
 gent remainderman cannot be seised because his right to the 
 future estate depends on some condition precedent which 
 must happen before his estate becomes certain and therefore 
 vested. Until it vests through the happening of the con- 
 tingency on which it depends it is a mere possibility, and the 
 possession of the tenant for years is not possession of the 
 contingent remainderman. Therefore a contingent remain- 
 der limited to take effect after a term of years was void at 
 common law, since giving effect to such remainders would 
 necessarily put seisin in abeyance until the happening of 
 the contingency on which the remainder depended.* 
 
 At common law a fee upon a fee, the second fee to take 
 effect on the happening of an event which would bring the 
 first fee to an end, was void, and the first estate in fee in 
 such case was absolute, in no way affected by the happen- 
 ing of the contingency on which it was to end. Thus if 
 land was conveyed to A and his heirs, with the provision 
 that if A should die without issue surviving then the land 
 should go to B and his heirs, B took nothing, the attempted 
 limitation to him being void. A took an estate in fee simple 
 absolute, in no way affected by his death without issue.' 
 
 4. Williams, id. 416, 417; Digby, could be created to arise in the fu- 
 
 id. 267. ture without any precedent estate to 
 
 Since a tenancy for years did not support it, the seisin remaining un- 
 
 require livery of seisin in its crea- disturbed. 
 
 ticn, such tenants never having seisin, 5. Digby, id. 363, 264; 1 Eq. Cas. 
 
 it follows that a tenancy for years Abr. 186; 8 Bl. C!om. 164; 4 Kent 
 
490 FuTUEE Estates. 
 
 Though a base or qualified fee, now called an estate upos 
 limitation, was valid at common law, the estate revertiag to 
 the grantor or his heirs on the happening of the limitation, 
 the possibility of reverter could not be assigned by him 
 to any one else, and an attempt to provide that on the hap- 
 pening of the limitation the estate should go over to another 
 was equally futile.* In such case as we have seen hereto- 
 fore, the first fee comes to an end on the happening of the 
 limitation, the land reverting back to the original grantor,'' 
 Where, however, the first fee is not a base or qualified fee, 
 no language of limitation being used, but is an estate in fee 
 simple, with a provision that on the happening of a future 
 event the fee should pass over to another, the first fee 
 can be defeated only by the taking effect of the second fee, 
 and as that is void the first fee is absolute.* 
 
 There was never any valid reason for the rule prevent- 
 ing the creation of a fee upon a fee. The seisin was not in 
 abeyance, siace the seisin of the first tenant in fee would 
 continue until the taking effect of the second fee. The 
 reason given for the rule was that when the entire fee was 
 given to the first tenant there was nothing left of the fee to 
 give to anyone else. The rule seems to be an application 
 in an arbitrary way of the rule that future estate could be 
 created only by way of remainder.^ This rule is sound from 
 the feudal standpoint where seisin would be put in abey- 
 ance by its violation, as in the cases above considered, but 
 there is no sound reason for its application in this instance. 
 
 Com. 300; Blanchard v. Brooks, 12 So, also, where the limitation over 
 
 Pick. (Mass.) 70; Hennessy v. Pat- is void as a future executory interest 
 
 terson, 85 N. Y. 91 (dicta). created by way of shifting use or ex- 
 
 6. Co. Litt. 18a; see Proprietors of ecutory devise the first fee is abso- 
 Chureh, etc. v. Grant, 3 Gray (Mass.) lute, since it can be defeated only by 
 142. See, also, § 235, ante. the taking effect of the second fee. 
 
 7. Where the limitation over is Proprietors of Church, etc. v. Grant, 
 void for any reason the estate reverts 3 Gray (Mass.) 142; Leonard ▼. 
 back to the original grantor or his Burr, 18 N. Y. 96; § 235, ante. 
 heirs. See § 235, ante. 9. See note 5, supra. 
 
 8. See notes 5 and 6, supra. 
 
Rbmaindees. 491 
 
 If it be argued that the second fee is a mere contingency, 
 and therefore should not be allowed, the answer is that a 
 contingent remainder is also a mere contingency, which is 
 nevertheless valid if it does not cause a suspension of the 
 seisin. 
 
 Of the same nature and based on the same reasoning 
 was the common law rule that a future estate could not be 
 limited to take effect on the happening of a contingency 
 abridging or determining the precedent estate before its 
 natural termination. Thus if land was conveyed to A for 
 life, with the provision that if A should marry B the estate 
 should go to C in fee, the provision in favor of C was void 
 since it would take effect only on the marriage of A with 
 B, which event would end A's life estate before its natural 
 termination on A's death. The attempted limitation to C 
 is not a remainder. It is not the balance of the fee on 
 the termination of A's life estate, since on A's death with- 
 out having married B, the estate of C would not arise. As 
 an attempted future executory interest not created by way 
 of remainder it was therefore void at common law.^" If 
 the estate had been granted to A for life until A's mar- 
 riage with B, remainder to in fee, C would have a valid 
 remainder, since it would take effect on the termination of 
 the preceding life estate either by A's death or by his mar- 
 riage with B. What was said above with reference to the 
 sufficiency of the reasons for the common law rule that a 
 fee upon a fee was void applies with equal force to the rea- 
 sons for this rule, the principle involved being the same 
 in both cases. 
 
 We shall see that after the enactment of the Statute of 
 Wills and the Statute of Uses, both enacted during the reign 
 of Henry VIII, any one of these interests, void when created 
 by common law conveyances, were good as executory de- 
 vises when created by will, or as springing or shifting uses 
 when created by deed under the Statute of Uses. A de- 
 
 10. Digby, id. 264, and note. 
 
492 EuTUEE Estates. 
 
 tailed consideration of these statutes and their eflfect be- 
 longs elsewhere.^ ^ It is sufficient at this time to understand 
 that after the enactment of these statutes there was no 
 longer any difficulty in creating any future executory in- 
 terest either by deed or will, without the creation of a 
 particular estate, and in violation of the technical rules 
 above considered. By the modern statutes in New York and 
 several other states each of these interests may now be 
 created by any deed as well as by will, the rules in ques- 
 tion being entirely swept away.^* In other states, since 
 conveyance by livery of seisin is obsolete, and since abey- 
 ance of seisin has been in no way material since the ter- 
 mination of feudalism centuries ago, the courts hold that 
 any of these future executory interests may be created by 
 any deed sufficient to convey a freehold estate, the techni- 
 cal rules of the old common law disappearing with the rea- 
 son for their existence." There is no sound season why 
 this position should not be taken in all jurisdictions where 
 these ancient rules of the common law have not been abol- 
 ished by statute. It is difficult to understand why the courts 
 of England or of any state have so long persisted in recog- 
 nizing these rules as continuing centuries after all reason 
 for them has ceased to exist. The general principle that 
 where the reason for a rule has ceased to exist the rule 
 itself should be regarded as at an end is generally recog- 
 nized, particularly, as in these cases, where the rule is an 
 arbitrary and senseless interference with the exercise of 
 the rights of ownership. Because these rules have persisted 
 
 11. See §§ 250, 251, post. age v. Lee, 90 N. C. 320; Sabledow- 
 
 12. N. Y. Real Prop. L., §§ 50, 53. sky v. Arbuclde, 50 Minn. 475 (the 
 See similar statutes in Mieliigan. court stating that such "executory in- 
 Wisconsin, Minnesota, Indiana, Vir- terests are valid irrespective of the 
 glnia and California, §§ 1421-1436, statute) ; Bunch v. Nicks, 50 Ark. 
 Stiin. Am. St. Law. See § 252, post. 367. See Boreland v. Marshall, 2 
 
 13. Gorliam v. Daniels, 23 Vt. 600; Oh. St. 308, 313, 314; Gray, Perpetu- 
 Abbott V. Holway, 73 Me. 298; Row- ities (2d. ed.), §§ 67, 68, 68a. See, 
 land V. Rowland, 93 N. C. 214; Sav- also, § 258, post. 
 
Vested and Contingent Eemaindeks. 493 
 
 BO long and are still recognized in many states, it is nec- 
 essary to treat separately future estates created by way of 
 remainder, vested and contingent, and future estates created 
 as executory interests by way of esecutory devise or spring- 
 ing or shifting uses. 
 
 § 239. Vested and Contingent Remainders. — A remain- 
 der is vested when given to a definite person or class of 
 persons who are ascertained and in whom the remainder 
 may vest, and where it is certain to take effect in pos- 
 session on the termination of the precedent estate. It is 
 contingent when the person or persons in whom or the event 
 on which it is to take effect remain uncertain. A con- 
 tingent remainder is an estate on condition precedent. The 
 right of the remainderman depends on the happening of a 
 contingency; before this contingency happens he has only a 
 possible right to the remainder on the termination of the 
 precedent estate; on the happening of the contingency his 
 right or estate is no longer uncertain, it is vested in him, 
 though the actual enjoyment of the property will be post- 
 poned until the precedent estate is ended and the remainder 
 vests in possession. A vested remainder is subject to no 
 uncertainty nor to any condition precedent. The right of 
 the remainderman is vested in him, since he is the present 
 owner of the balance of the fee over and above the particular 
 estate or estates, subject to no condition precedent. His 
 actual enjoyment alone is postponed until the precedent 
 estate ends. His present right or estate in the balance of 
 the fee is in no way uncertain.' 
 
 1. 2 Bl. Com. 168, 169; Gray Per- mainderman is in existence entitled 
 petuities (2d ed. ), § 101, et seq.; to take the estate In possession at 
 Williams Real Prop. (17th ed.), 415; any moment should the precedent es- 
 Digby Hist. L. Real Prop. (5th ed.), tate come to an end; nothing inter- 
 265, 266, and cases cited in notes fol- vening between him and his posses- 
 lowing, si on and enjoyment but the existence 
 
 It is generally stated that a re- of the precedent estate; but where a 
 
 jiaiuder is vested whenever the re- contingent event must happen in ad- 
 
494 
 
 FuTUEE Estates. 
 
 An estate to A in fee tail remainder to B in fee simple 
 is a good illustration of a vested remainder. The balance 
 of the fee over and above A's estate tail is vested in B, 
 subject to no uncertainty, and therefore subject to no con- 
 dition precedent. His present right to the future estate in 
 the property on the termination of the precedent estate 
 tail is certain and definite. His actual enjoyment of the 
 property "wUl be postponed until the termination of the 
 estate tail, through the failure of the lineal descedants of 
 the tenant in tail, which may not be until many genera- 
 tions have come and gone. Nevertheless his right is always 
 vested in him, his heirs or assigns, so that he or they will 
 be entitled to the property on the ending of the estate tail. 
 The right of the remainderman, not his actual possession 
 and enjoyment, must be certain and subject to no condition 
 precedent in every case of a vested remainder.^ 
 
 Where a testator devises property to his wife during 
 
 dition to the termination of the pre- 
 cedent estate the remainder is con- 
 tingent. This is correct, it being 
 taken for granted that the remain- 
 derman is a definite person concern- 
 ing whose identity as described in 
 the deed or will creating the estate 
 there is no uncertainty. It is to be 
 criticised, however, as being an arbi- 
 trary test having no direct connec- 
 tion and therefore not explaining the 
 essential characteristics of the two 
 kinds of remainders on which the dis- 
 tinction depends. Briefly, a vested 
 remainder or future estate of any 
 kind is one in which the estate of 
 the owner is certain, subject to no 
 condition precedent, while a contin- 
 gent remainder or other future inter- 
 est is merely a future possible estate, 
 the right of the remainderman being 
 uncertain and contingent, depending 
 on a. condition precedent. Tlie dan- 
 ger of error from following the above 
 
 arbitrary test rather than applying 
 the basic distinction In the nature of 
 the two classes of remainders is well 
 illustrated in the New York cases 
 hereafter discussed holding that a re- 
 mainder to the heirs of one to whom 
 a precedent life estate has been given 
 by the same instrument is vested. 
 See § 241, post. 
 
 2. Havens v. Sea Shore Land Co., 
 47 N. J. Eq. 365; Allen v. Trustees, 
 etc., 102 Mass. 263; Dorr v. Johnson, 
 170 Mass. 540; Taylor v. Taylor, 63 
 Pa. St. 481. 
 
 The N. y. Real Prop. Law, § 32, 
 clianging estates tail into estates in 
 fee simple provides that if a remain- 
 der in fee is limited after an at- 
 tempted estate tail it will take effect 
 as a conditional limitation in case 
 the first taker of the attempted es- 
 tate tail should die without issu* 
 surviving. 
 
Deeds oe Wills Ceeatinq Kemaindees. 495 
 
 widowhood, thereafter to his child in fee, the child's re- 
 mainder is vested. Whether the widow's life estate be ended 
 by her death or her remarriage, in either case the remainder 
 takes effect in possession. The entire balance of the fee, 
 over and above the life estate, is vested in the child from 
 the time the will takes effect; the child's right is subject 
 to no condition precedent which must happen before her 
 estate can vest; the only uncertainty is as to the time the 
 remainder will vest in possession and enjoyment, whether 
 on the remarriage or death of the widow. In either case 
 the daughter's right to the remainder is in no way uncer- 
 tain, and therefore her interest is vested.^ 
 
 § 240. Rules of Construction Applying to Deeds or Wills 
 Creating Remainders. — The law favors the vesting of es- 
 tates, and therefore in case it is doubtful whether the gran- 
 tor or devisor intended to create a vested remainder or 
 one which was contingent, the doubt will be resolved in fa- 
 vor of the immediate vesting of the estate, though the actual 
 enjoyment will be postponed until the termination of the 
 precedent estate. This is obviously not a presumption, 
 though sometimes so called; it is merely a rule of construc- 
 tion to be applied only in case of doubt. If it is clear that 
 a contingent remainder was intended, the right or estate of 
 the remainderman being subject to a condition precedent, 
 the court must give effect to the intent as expressed in the 
 deed or will. 
 
 Thus where land is given to A for life, and " on " or 
 " after " his death to B in fee, B takes a vested remainder, 
 the words " on " or " after " the death of A being con- 
 strued as referring to the time when the actual possession 
 and enjoyment shall vest in B, his right or estate in re- 
 mainder vesting in him at once when the deed or will takes 
 effect.* So where a grant or devise is made to A for life, 
 
 3. Green v. Hewitt, 97 111. 113. 496; Sawyer v. Cubby, 146 N. Y. 
 
 4. Clark v. Cammann, 160 N. Y. 192; Wright v. White, 136 Mass. 
 315; Corse v. Chapman, 154 N. Y. 470; Patterson's App., 88 Pa. St. 397. 
 
496 FuTTJEE Estates. 
 
 remainder to B if he lives to attain the age of twenty-one, 
 and in case he die before attaining that age then over to 
 others, or to revert back to the grantor or his heirs, the 
 courts construe the remainder as vesting in B at once, sub- 
 ject to be defeated by condition subseqiient and to go over 
 or to revert back as the case may be in case of his death 
 before attaining the age of twenty-one.* But a remainder 
 to the children of the life tenant who attain the age of 
 twenty-one or who survive the life tenant is contingent, 
 since the persons to whom the remainder is given are only 
 those children who attain the required age or those who 
 survive the life tenant. The contingency of their surviving 
 or attaining the required age is expressly made precedent 
 to their right, as the persons who are to take remain un- 
 certain until this contingency has happened.* 
 
 Where a gift is made to a class of persons on the death 
 of a precedent tenant for life, or on the happening of a 
 future contingency, it is a generally accepted rule of con- 
 struction that the persons who will be entitled to take 
 are the persons who are members of the class on the death 
 of the tenant for life, or on the happening of the future 
 event on which the future interest is to take effect.^ In 
 some cases the rule has been laid down that where a gift 
 is made to A for life, remainder to his children surviving. 
 
 6. Edwards v. Hammond, Levinz, 
 13" ; Boraston's Case, 3 Eep. 19 
 Clarke v. Cammann, 160 N. Y. 315 
 Matter of Brown, 154 N. Y. 313 
 Wardwell v. Hale, 161 Mass. 396 
 
 271 (discussed in note 4, § 241, fol- 
 lowing) ; Eudd V. Cornell, 171 N. Y. 
 114; Oluey v. Hull, 21 Pick. (Mass.) 
 311; Slack v. Bird, 23 N. J. Eq. 238; 
 Grimmer v. Friederich, 164 111. 245; 
 
 Nelson v. Pomeroy, 64 Conn. 257. Hill v. Rockingham Bank, 45 N. H. 
 
 6. Festing v. Allen, 12 M. & W. 270; Sinton v. Boyd, 19 Oh. St. 30; 
 279; Thompson v. Ludington, 104 Cheatham v. Gower, 94 Va. 383. In 
 Mass. 193; Robinson v. Palmer, 90 Grimmer v. Freiderich, supra, the re- 
 Me. 246 ; Hall v. La France Fire Eng. mainder was to the testator's surviv- 
 Co., 158 N. Y. 570; Paget v. Mel- ing children. It is, of course, quite 
 oher, 166 N. Y. 399; Strode v. McCor- obvious that the children surviving 
 mick, 158 111. 143. See, also, § 242, the testator were meant here, not the 
 post. children surviving the life tenant. 
 
 7. Matter of Cramer, 170 N. Y. 
 
Deeds ob "Wills Oeeating Rbmaindees. 
 
 497 
 
 the word " surviving " refers to those children of A who 
 survive the testator, not those who survive the life tenant." 
 These cases are against the great weight of authority, and 
 seem to have little to support them on principle. The fair 
 presumption is just to the contrary, the natural and obvi- 
 ous meaning of the term ' ' surviving children " of A, being 
 the children of A surviving him, not those surviving the 
 testator. In New York this rule, laid down in the earlier 
 cases, seems now to be done away with, it being limited in 
 the later cases to a gift in fee to A, but in case of his death, 
 to B in fee, the testator obviously meaning that in case A 
 should die before his own death a gift to B should be sub- 
 stituted, manifestly an entirely different situation.* 
 
 The various situations arising out of gifts to a class, dis- 
 cussed in a later section, illustrate the way in which the law 
 
 8. Moore v. Lyons, 35 Wend. (N. 
 y.) 119; Embury y. Sheldon, 68 N. 
 y. 887; Eoss v. Drake, 37 Pa. St. 383. 
 See cases in preceding note, contra. 
 
 9. In Lyons v. Ostrander, 167 N. 
 Y. 135, referring to this supposed 
 rule, the court said: "In MuUarky 
 V. Sullivan (136 N. Y. 337) it was 
 held that the rule that words of sur- 
 vivorship in a will refer to the time 
 of the testator's death applies only 
 to an absolute gift to one, and in case 
 of his death to another, and it has no 
 application in a case where the first 
 devisee or legatee takes a life estate. 
 In Fowler v. IngersoU (127 N. Y. 
 472) this court referring to the rule 
 that words of substitution usually 
 relate to the death of the testator, 
 said : ' But the reason of the rule 
 fails in the case of a life estate as in 
 such case the presumption would be 
 that the words of contingency refer- 
 red to the event which would deter- 
 mine the life estate.' In Matter of 
 Denton (137 N. Y. 433) the same 
 
 32 
 
 rule is discussed as follows: 'But 
 this rule has only a limited opera- 
 tion and cannot be extended to a case 
 where a point of time is mentioned 
 other than the death of the testator, 
 to which the contingency can be re- 
 ferred, or to a case where a life es- 
 tate intervenes, or where the context 
 of the will evinces a contrary intent.' 
 To the same effect is Matter of Baer, 
 147 N. Y. 348." 
 
 This would seem to leave very lit 
 tie of the rule as laid down in the 
 New York cases above cited. The 
 general rule undoubtedly is that the 
 class will be determined on the death 
 of the life tenant, not on the death of 
 the testator, and whether the re- 
 mainder be to the surviving children 
 of the life, tenant or to the surviving 
 children of some other person, the 
 reasonable inference is that the chil- 
 dren living when the remainder is to 
 vest in possession are the members 
 of the class intended. See S 243, 
 post. 
 
498 FuTUEE Estates. 
 
 will construe remainders to be vested where the language 
 is doubtful and capable of either construction. The role 
 of construction last referred to above is also discussed in the 
 
 same section.^" 
 
 § 241. Vested and Contingent Remainders; Remainders 
 to Unascertained Persons. — Where land is granted or de- 
 vised to A for life remainder to his heirs, or to his children 
 who survive him, the remainder is necessarily contingent 
 since there are no persons in existence before the life ten- 
 ant's death who answer the description of the deed or will 
 in whom the remainders can vest. It is self evident that a 
 remainder cannot be vested unless there is some person in 
 existence described as remainderman in the deed or will 
 in whom the remainder may vest.^ Before a man's death he 
 has no heirs. His heirs are the persons entitled under the 
 law of descent of real property to inherit his realty on his 
 death. If he dies leaving children surviving his children 
 are his heirs. If he dies leaving no child surviving, but sur- 
 vived by grandchildren, his grandchildren are his heirs. If 
 no children or grandchildren survive him his heir or heirs 
 may be his father, mother, brothers and sisters, nephews and 
 nieces, uncles and aunts, or cousins, in the order named. 
 His children will be his heirs only in case they survive him. 
 The persons, therefore, who may eventually become en- 
 titled to the remainder on his death under a deed or will 
 granting or devising the remainder to his heirs may be (1) 
 his children, or (2) his gradchildren, or (3) his father, or 
 (4) his mother, brothers and sisters, or (5) his nephews 
 and nieces, or (6) his uncles and aunts or their descendants. 
 It is sufficiently clear that the present interest of his pre- 
 sumptive heirs, or heirs apparent, is as uncertain as their 
 
 10. See 5 243, post. land, 7 Mete. 169 ; Bennett t. Morris, 
 
 1. Boraaton's Case, 3 Coke. 20a; 6 Rawle (Pa.), 9; Smith v. Colling. 
 
 Blanchard v. Blanehard, 1 Allen 17 E. I. 432; Wallace v. Minor. 86 
 
 (MaHB.) 223; Richardson v. Wheat- Va. 550. 
 
Remaindees to TJnasceetaiwed Peesoits. 499 
 
 chance of surviving him, as uncertain, for instance, as the 
 inchoate right of dower. 
 
 Nevertheless the New York Court of Appeals has decided 
 that the children of the life tenant in such case have vested 
 remainders, the court applying the statutory definition of 
 vested remainders in apparent disregard of the accompany- 
 ing definition of contingent remainders contained in the 
 same section.* The statute provides that a future estate 
 * ' is vested when there is a person in being who would have 
 an immediate right to the possession of the property, on the 
 determination of all the intermediate or precedent estates. ' ' 
 Since the children of the life tenant are persons in being 
 who would have such immediate right to the possession on 
 the death of the life tenant, they qualifying as his heirs at 
 the moment the life estate ends, the court holds that they 
 have vested remainders. But the same section goes on to 
 provide as follows : " It is contingent while the person to 
 whom or the event on which it is limited to take effect re- 
 mains uncertain." Nothing could be clearer than that the 
 class of persons named as remaindermen, the heirs, remains 
 uncertain until the life tenant's death. The section of the 
 statute referred to can be construed only in one way, viz., 
 
 "2. Moore v. Littel, 41 N. Y. 66: Tailirg opinion makes clear that tliis 
 
 House V. Jackson, 60 N. Y. 161. holding was unnecessary, since the 
 
 Both cases were based on the same interests of the children could ba 
 
 convcj ance by which the property in mortgaged and sold under foreclos- 
 
 question was conveyed to Jackson, re- ure with equal facility whether con- 
 
 maindcr to his heirs, Jackson having tingent or vested. In other words 
 
 subsequently conveyed his life estate there was no occasion to decide 
 
 to his children. In the Moore Case whether the remainders were vested 
 
 the question was whether good title or not, the title of the defendants un 
 
 was made through the foreclosure of der the foreclosure being good in 
 
 mortgages given by two of the chil- either case. In House v. Jackson 
 
 dren on the part of the property re- the point was necessarily involved, 
 
 ccived by them on a voluntary parti- however, and the court, following the 
 
 tion of the property among the chil- dictum in the Moore Case as thoush 
 
 dren of Jackson, the life tenant. The it were law, held that the rcmaindcn 
 
 court said that Jackson's childreTi in question were vested, 
 took vested remainders, but the pre- 
 
BOO FxjTUEE Estates. 
 
 that the remainder is vested when limited to persons who 
 are ascertained and who will he immediately entitled to 
 take on the termination of the preceding estate or estates. 
 It may be argued that in the cases above referred to their 
 remainders are vested subject to be defeated and to go over 
 to others by way of conditional limitation in case they do 
 not survive the life tenant. But there is nothing in such 
 a grant or devise which gives them any interest until they 
 qualify as heirs by surviving the life tenant. The trouble 
 is they are not named at all except as possible members of 
 the class to be ascertained on the life tenant's death. If the 
 deed or will can be construed in any case as a grant or 
 devise of the remainder to the life tenant's children, or to 
 his presumptive heirs, they take vested remainders if living 
 when the deed or will takes effect.' But any such construc- 
 tion was impossible in these cases, nor was it attempted by 
 the court. 
 
 Later cases in the same court questioning this rule have 
 created a serious doubt as to whether it is still law in New 
 York.* A manifest error of this sort ought to be corrected 
 
 3. Putnan v. Story, 132 Mass. 205; surviving." The court held that the 
 Haveratick's Appeal, 103 Pa. St. 394; reinainder was contingent since it 
 Alverson v. Randall, 13 K. I. 71; could not be determined who such 
 Wallace v. Minor, 86 Va. 550. heirs would be until her death. The 
 
 4. Hennessy v. Patterson, 85 N. Y. court said, very correctly, that t1if=e 
 
 91 (dicta strongly challenging the remainders came directly within tiie 
 rule laid down in Moore v. Littel and statutory definition of a contingent 
 House V. Jackson) ; Purdy v. Hayt, remainder, the persons to take re- 
 
 92 N. Y. 446, 454 (the court holding malning uncertain) ; Paget v. Mel- 
 tliat remainders limited to the chil- cher, 156 N. Y. 399 (here remainders 
 dren of the life tenant surviving her were given to the surviving children 
 were contingent, though children had of two cotenants for life. The court 
 been born to her who would be imme- held that the remainders to the chil- 
 diately entitled to take on their dren were contingent, since only those 
 mother's, the life tenant's, death); sui-vivirg would take); Matter at 
 Hall v. La France Fire Engine Co., Crane, 164 N." Y. 71 (here the re- 
 ISSN. Y. 570 (here a gift was made to mainder was limited to the brothers 
 a tenant for life, "and at her death and sisters of the testator and a 
 to the heir or heirs of her body her niece, all of whom were ascertained. 
 
Kemainuees to Unascertained Peksons. 
 
 501 
 
 in this as in other cases in which the highest court has cor- 
 rected earlier errors made by the same court in determining 
 laws of property.'* 
 
 On the death of any one of them 
 leaving issue during the continuance 
 01 the life estate, then the share of 
 the one so dying should be paid over 
 to their issue in equal shares. Be- 
 cause the direction was for a division 
 and distribution after the death of 
 the life tenant, the court held that 
 the brothers and sisters and niece 
 took contingent remainders, as the 
 testator intended that their surviving 
 the life tenant should be a condition 
 precedent to the vesting of their in- 
 terests ) . 
 
 On the other hand the Moore Case 
 las been commented on by way of 
 dicta with approval in several cases. 
 In Dougherty v. Thompson, 167 N. Y. 
 47S, the court after showing that the 
 interest limited to Stephen J. Thomp- 
 son was contingent since it depended 
 upon his surviving another person, 
 coming squarely within the statutory 
 definition of contingent remainders 
 (p. 486), proceeds on the following 
 page to swing directly about, stating 
 that the definition of vested remaind- 
 ers must be considered also, decides 
 that the remainder in question was 
 vested, subject to be divested by 
 failure to survive, citing the Moore 
 Case. The court failed to see that 
 the statutory definition of contingent 
 remainders, as explained in the text, 
 can he given no other Interpretation 
 than that such a remainder is contin- 
 gent, while the statutory definition of 
 vested remainders may he fairly in- 
 terpreted, as stated in the text, so as 
 to be entirely consistent with the defi> 
 nition of contingent remainders, and 
 
 what is more important, so as to be 
 entirely consistent with the funda- 
 mental nature of vested interests. 
 This was dicta, the court stating that 
 whether vested or contingent the re- 
 mainders were defeated by his failure 
 to survive. 
 
 In Losey v. Stanley, 147 N. Y. 560, 
 a trust for the benefit of A, on his 
 death to such of A's children as 
 would survive him, was created. The 
 remainders were called vested on au- 
 thority of the Moore Case, but this 
 was dicta, since the decision would 
 have been the same had the court de- 
 cided that the remainders were con- 
 tingent. 
 
 In Campbell v. Stokes, 142 N. Y. 
 231, and Byrnes v. Stilwell, 103 
 N. Y. 453, there are similar 
 dicta, not at all essential to the 
 decisions, but in general approval 
 of the Moore Case. The latter 
 case is the usual vested remainder to 
 children, subject to be divested in case 
 any child should die before the life 
 tenant, discussed in § 243. In Matter 
 of Cramer, 170 N. Y. 271, the gift was 
 to two grandchildren with the pro- 
 vision, as construed by the court, that 
 if either one should die without issue 
 the other should take if surviving. 
 Survivorship was a condition prece- 
 dent to the right of each to take tl:e 
 share of the other in case of death 
 without issue. 
 
 In this state of the authorities it 
 would seem to be clear that the court 
 is free to adopt the true rule, correct- 
 ing the error in the Moore Case. 
 5. For a case in which the same 
 
502 Ftjtuee Estates. 
 
 Where land is devised to A for life, remainder to sucli of 
 his children as survive him, the same question arises. It ia 
 clear that only such children as actually survive the life 
 tenant are named as remaindermen. The persons who are 
 to take remain uncertain until the life tenant's death, and 
 before that time his children have contingent remainders." 
 But if the remainder be given to the children of the life 
 tenant, with the further provision that if any child die, or 
 die without issue surviving, before the life tenant's death, 
 the shares of those so dying shall go over to the survivors, 
 the children take vested remainders, because they are 
 named or identified. Their vested interests are subject to 
 defeat in case they die during the life tenant's life, going 
 over to the survivors by way of conditional limitation.'^ 
 
 If a remainder be limited to the child or children of a 
 living person, and when the deed or will takes effect the 
 person named has no children, the remainder is necessarily 
 contingent on the birth of a child. Until then there is no 
 one in existence in whom the remainder may vest. On the 
 
 court corrected an earlier error, ant. The New York cases above cited 
 
 though it involved a rule of real prop- would seem to settle the law to the 
 
 erty law, see Rumsey v. N. Y. & N. effect that the rule laid down in 
 
 Eng. R. Co., 133 N. Y. 79. Moore v. Littel, does not apply to this 
 
 6. Blanchard v. Blanchard, 1 Allen situation. They in effect overrule the 
 
 (Mass.) 223; Smith V. Rice, 130 Mass. Moore Case since necessarily incon- 
 
 441; Paget v. Melcher, 156 N. Y. 399; sistent with it. See, however, cases 
 
 Hall V. I* France Fire Eng. Co., 158 cited in note 4, supra, as approving 
 
 N. Y. 570; Matter of Cramer, 170 N. the Moore Case some of which in- 
 
 Y. 271 (survivorship a condition pre- volved a remainder to surviving chil- 
 
 cedent) ; Matter of Crane, 164 N. Y. dren. As pointed out in the note they 
 
 71 (last four cases discussed under were dicta, the question whether the 
 
 note 4 supra) ; Rudd v. Cornell, 171 remainders were contingent or vested 
 
 N. Y. 114; Robinson v. Palmer, 90 Me. not being material. 
 
 246; Madison v. Larmon, 170 111. 65; 7. Blanchard v. Blanchard, 1 Allen 
 
 Strode v. McCormick, 158 111. 142; (Mass.) 223; Campbell v. Stokes. 142 
 
 Smith V. Block, 29 Oh. St. 488; Small N. Y. 231; Byrnes v. Stilwell, 103 N. 
 
 V. Small, 90 Md. 550. Y. 453; Moore v. Appleby, 108 N. Y. 
 
 There is no distinction on principle 237; Collins v. Collins, 40 Oh. St. 353; 
 
 between this case and the case of a Kemp v, Bradford. 61 Md. 330. See 
 
 remainder to the heirs of the life ten- cases in preceding rote. 
 
Eemaindees to a Class. 503 
 
 child's birth the remainder becomes vested in the child. 
 In all cases where the uncertainty to the remainderman's 
 right is removed by the happening of the condition prece- 
 dent on which his estate depends, his interest becomes 
 vested, though the actual enjoyment may be postponed for 
 a much longer time. A remainder to such person as may be 
 mayor of New York City on the death of the life tenant is 
 contingent for the same reason. Whenever the person who 
 is to take by way of remainder is uncertain the remainder 
 is contingent. 
 
 § 242. Vested and Contingent Remainders — Remainders 
 to a Class. — Where remainders after a life estate are given 
 to a class of persons, the remainders may be contingent or 
 vested, dependent on whether or not the persons constitut- 
 ing the class are, at the time the deed or will takes effect, 
 existing persons, concerning whose membership in the class 
 there is no dispute. If land be conveyed or devised to A 
 for life, remainder to his children, the remainders so created 
 are vested if at the time the deed or will takes effect A has 
 a child or children living, vesting in the child or children 
 then living. The presumed intention, however, is that all 
 the children of A shall take the remainder in equal shares. 
 Therefore if children are thereafter born to A, each child so 
 born shares equally in the remainders with the other chil- 
 dren, the remainder vesting in all of them equally at all 
 times, finally vesting in possession on the death of A. As 
 each child is born the vested remainders of the children 
 already in existence are defeated to the extent required to 
 admit the new-born child to an equal share.^ To that extent 
 
 8. Minnig V. Batlorff, 5 Pa. St. 503; applied in case of remainder to 
 Ross V. Drake, 37 Pa. St. 373; In re nephews and nieces of the testator); 
 Evans Est., 155 Pa. St. 646; Corse v. Dorr v. Levering, 147 Mass. 530; 
 Chapman. 153 N. Y. 466; Haug v. Lariverre v. Rains, 113 Mich. 276 (re- 
 Schumacher, 166 N. Y. 506; Haggerty mainder in children created by deed. 
 T. Harkenberry, 52 N, J. Eq. 354; No discussion of principle on which 
 Hills V. Simons, 125 Mass. 536 (rule the interest of subsequently bom 
 
504 Ftjtuee Estates. 
 
 we liave what is clearly a fee upon a fee, the fee in remain- 
 der in the children in existence being in part defeated, and 
 going over to the new-born child. Though the interests of 
 the children born after the deed or will take effect are called 
 remainders, which become certain and therefore vested as 
 each child is born, it is submitted that they are really execu- 
 tory interests which would not be valid under the ancient 
 common law rules. If land be given to A for life, remain- 
 der to B in fee, but if B die during the life of A then to C 
 in fee, B has a vested remainder, and C has an executory 
 interest, a fee upon a fee, good when created by will or by 
 deed under the Statute of Uses, but clearly void according 
 to the common law when created by common law convey- 
 ance. No real distinction can be drawn between that case 
 and the case under consideration. If the members of the 
 class actually in existence when the deed or will takes effect 
 are regarded as having vested remainders, the other mem- 
 bers subsequently qualifying as members of the class being 
 regarded as having future contingent executory interests, 
 not vested remainders, until their interests become vested 
 upon their becoming members of the class, some confusion 
 which has arisen in applying the rule against perpetuities 
 to these cases would disappear.* 
 
 children depended) ; Amos v. Amos, the interests of those who were alivo 
 
 117 Ind. 19; Field v. Peoples, 180 111. at the testator's death are subject (o 
 
 376. be increased in size by the death of 
 
 9. See Gray, Perpetuities (3d ed.), other members of the class before 
 
 §§ 110, 110a, 205a. The rule against final vestitii; in pos&ession takes place, 
 
 perpetuities undoubtedly applies to it is only this future possible added 
 
 these " vested " interests, if the class interest, not the original vested in- 
 
 may not be determined and their terest, which may violate the rule. 
 
 shares fixed within the period fixed In nearly all the cases in which 
 
 by the rule. See Ch. XV, post. But this question has arisen the interests 
 
 the vested interests of those living were created by will, and the implied 
 
 at the testator's death should not be provision in favor of subsequently 
 
 treated as violating the rule in any born children would therefore be effec- 
 
 case. Only the interests of those not tive as an executory devise. In most 
 
 yet born could violate the rule. If cases they would also b« good when 
 
Eemaiudees to a Class. 505 
 
 As explained in the preceding section, remainders to the 
 ■nrviving children of the life tenant are contingent, since 
 it cannot be determined what children of the life tenant will 
 survive him until his death. The remainder cannot vest in 
 his children living when the deed or will takes effect be- 
 cause those children may die and other children subse- 
 quently born to him may be the class to whom the remain- 
 der is given. They are not named in the will, as they are 
 not the surviving children of the life tenant until his death." 
 So in any case in which the members of the class of persons 
 who are to take can be determined only on the happening 
 of some future event, the remainders to such class are neces- 
 sarily contingent. 
 
 But where the remainder is limited to the children of the 
 life tenant, with the further provision that in case any child 
 should die before the life tenant or so die without issue 
 surviving, his share should then go over in equal shares to 
 the other children surviving him, the children of the life 
 tenant take vested remainders subject to bfe divested as to 
 each child in case he die before the life tenant. These chil- 
 dren are the class named as remaindermen in the will. 
 Their right to the remainder is not subject to any condition 
 
 created by deed, under the Statute of Sav. Bank v. Lees, 176 Pa. St. 402, 
 
 Uses, or under modern statutes per- the court held, in this vague way, 
 
 mitting the creating of a fee upon a that the entire remainder was vested, 
 
 fee by the ordinary deed as well as though the future interests of the 
 
 by deed under the statute of uses or children who might be born after the 
 
 by will. See § 250, post. In Lari- creating of the remainder were, of 
 
 verre v. Rains, 112 Mich. 276, the only course contingent, the point being di- 
 
 case of those cited in the preceding rectly involved in applying a, statute 
 
 note in which the limitation was by permitting the Orphan's Court to au- 
 
 deed, the point is not referred to. thorize a sale of property in the case 
 
 There seems to be a loose assumption of contingent interests in unaseer- 
 
 in the cases without analysis or state- tained persons, the court holding that 
 
 Bent of reason, that the remainder is in the case of a remainder of thi« 
 
 in some way vested throughout, kind the Orphan's Court had no juris* 
 
 though this is clearly unthinkable as diction, 
 
 to the interests of the members of the 10. See § 241, note 6. 
 class not yet born. In Anthracite 
 
506 Future Estates. 
 
 precedent. Ttey are entitled to take the property in posses^ 
 sion and enjoyment at any moment should the life tenant 
 die. The right of each is subject to be defeated, however, 
 by the taking effect of an executory interest, a fee upon a 
 fee called a conditional limitation, in favor of the others 
 in case of death before their parent, the life tenant.^ 
 
 For the sake of clearness, it should be understood at this 
 point that where a person grants or devises a present estate 
 in property to a class of persons, only those persons who are 
 members of the class at the time the deed or will takes effect 
 are entitled to take.* But when a future estate is given to 
 a class either by way of remainder after a precedent estate, 
 or by way of executory interest on the happening of a sub- 
 sequent contingency, the time in which membersMp in the 
 class is to be determined is taken as a rule of construction 
 to be the time of the termination of the precedent estate or 
 the happening of the contingency on which the future execu- 
 tory interest depends. The fair inference is that the persons 
 intended by the testator were those who would come withia 
 the class described when the precedent estate should end, 
 or when the contingency should happen on which the execu- 
 tory estate in the class should arise.' This is a mere rule 
 of construction, and therefore if the will expresses the in- 
 tent of the testator as limiting the class to those persona 
 who are members of it when the will takes effect at his 
 death, only those persons take, and in the absence of some 
 other contingency their interests are vested.* It is settled 
 as a rule of convenience that in the case of a gift to a class, 
 if one member of the class becomes entitled to the estate in 
 possession and enjoyment, the class is then closed, and chil- 
 dren born thereafter are excluded. Thus in the case of a 
 
 1. See § 241, note 7. 3. See cases cited in note 8, immedi- 
 
 2. Singleton v. Gilbert, 1 Bro. C. C. ately preceding, this being the pre- 
 543n; 1 Cox 68; Picken v. Matthews, cise point on which the cases there 
 10 Ch. Div. 364; Wilkinson v. Dun- cited were decided. See, also, § 240, 
 can, 30 Beavan 111, and cases cited note 7, ante. 
 
 in preceding notes under this section. 4. See § 240, notes 7 and 8, ante. 
 
Altehwative and Ceoss Eemaindebs. 507 
 
 gift to tlie children of A "who attain the age of twenty-five 
 and one of such children attains that age, so that he becomes 
 entitled to his interest in possession, the class is then closed, 
 and subsequently born children of A are excluded from the 
 class, the children of A then in existence being entitled each 
 to his share upon attaining the required age, provided the 
 rule against perpetuities is not violated." 
 
 § 243. Remainders in the Alternative and Gross Remain- 
 ders. — Where a gift is made to A for life, remainder to his 
 children surviving him in fee if he die leaving issue, but if 
 he die without issue then to B in fee, B and the children of 
 A have contingent remainders in the alternative, only one 
 of which can vest in the death of A. If A dies survived by 
 children the remainder then vests in the children; if he 
 dies without issue surviving the remainder vests in B.* 
 One remainder does not defeat the other. Only one of the 
 two remainders in the alternative can ever vest, and on the 
 vesting of one the others are not divested; they are defeated 
 through the failure of the condition precedent on which they 
 depended. They have always been valid, therefore, as re- 
 mainders at common law as well as at the present time. 
 They may take any form in which two or more remainders 
 are made to depend on some contingency, only one of which 
 is to become vested on the determining of the contingency, 
 the one which actually vests depending on the way in which 
 the contingency is determined.^ 
 
 If Moore v. Littel * is sound law, then in the above cases 
 the children of A have vested remainders during A's life, 
 
 5. Picken v. Matthews, 10 Ch. Div. terson, 85 N. Y. 91 ; Roosa v. Harring- 
 264; Stevenson v. Lesley, 70 N. Y. ton, 171 N. Y. 341. 
 
 512; Gray, Perpetuities (2d ed.), § 7. In addition to cases in preceding 
 
 379. note, see Buzby's Appeal, 61 Pa. St. 
 
 6. Loddington v. Kime, 1 Salkeld 111; Mieheau v. Crawford, 8 N. J. L. 
 234; Egerton v. Massey, 3 Com. 90; Demill v. Eeid, 71 Md. 175; Fur- 
 Bench (N. S.) 338; Hennessy v. Pat- rish v. Rogers, 154 111. 569. 
 
 8. 41 N. Y. 66. See § 241, ante. 
 
608 FuTUEB Estates. 
 
 since they stand ready to take the remainder in possession 
 and enjoyment immediately on A's death if it should occnr 
 at any moment. Their remainders being vested and subject 
 to be divested by their failure to survive A, the interest of 
 B is a conditional limitation, a fee upon a fee, which would 
 be void at common law. The fact that the New York cases 
 above cited in which this question has arisen have refused 
 to hold anything of the sort, holding that these interests are 
 all contingent remainders, goes far to establish that the rule 
 laid down in Moore v. Littel is not law. 
 
 Where a gift is made to A and B for life, they holding as 
 tenants in common of the same property, or each being 
 given a life estate in a separate parcel of land, with the pro- 
 vision that on the death of one the entire property shall go 
 to the other in fee or for life, A and B have cross remainders 
 which are necessarily contingent on the one surviving the 
 other. Survivorship is here a condition precedent to the 
 right of either one to the remainder in the entire property. 
 If A survives he takes the entire property, or both parcels, 
 as the case may be, in remainder. If B survives the remain- 
 der vests in him. The remainders are said to cross each 
 other, hence their name.' They are really an instance of 
 contingent remainders in the alternative, depending on ex- 
 actly the same principle, the remainder in the entire prop- 
 erty vesting in only one of them on the determination of 
 the contingency of survivorship between them. Apart from 
 statutory restrictions limiting the number of successive life 
 estates there may be any number of such cross remainders 
 between the same number of persons, remainder after the 
 life estate of any eotenant for life or cross-remainderman 
 passing on his death to the survivors for life, until finally 
 vesting in severalty in the last survivor, or in any other 
 
 9. Co. LItt. 195, Butler's note; Pmdy v. Hayt, 93 N. Y. 446, and 
 Dana v. Murray, 123 N. Y. 604; cases in note 11 following. 
 
Alteenative and Ceoss Kemaindbbs. 509 
 
 person on the death of the last survivor if so expressly 
 provided." 
 
 An important rule of construction in this connection 
 shoxild be noted. Where a devise or bequest is made to two 
 or more persons for their lives, remainder to some other 
 person on the death of the survivor of the life tenants, the 
 life tenants take cross-remainders for life, the ultimate 
 survivor taking the property in severalty for his life, that 
 being the presumed intent of the devisor in the absence of 
 an expression in the will of a contrary intent.*^ 
 
 By statute in New York and some other states, where a 
 remainder in fee is limited after more than two successive 
 life estates it vests in possession on the expiration of the 
 first two life estates, the subsequent life estates being void 
 in their creation. This necessarily limits cross-remainders 
 for life to two when followed by a remainder in fee.^^ There 
 appears to be nothing, however, to prevent the creating of 
 any number of successive life estates where the balance of 
 the fee is retained as a reversion ia the grantor or heirs of 
 the devisor, and in such case there is nothing to prevent the 
 creating of any number of cross-remaiaders for life." 
 
 10. Dow V. Doyle, 103 Mass. 489; life estate in the niece was void aa 
 Kerr v. Verner, 66 Pa. St. 3S6, Gray, to the undivided one-half interest of 
 Perpetuities (2d ed.), § 207. The rule the sister who died first, making the 
 against perpetuities is not violated third successive life estate, but as to 
 since the cross remainders must all the other undivided one-half interest 
 vest during lives in being, provided it was valid, being only the second 
 all the remaindermen are in existence life estate therein. 
 
 at the creation of the remainders. 13. This follows from the language 
 
 11. Dow V. Doyle, 103 Mass. 316; of § 43, N. Y. Real Prop. Law, pro- 
 •Glover v. Stillson, 56 Conn. 316; Kerr viding that "Successive estates for 
 V. Verner, 66 Pa. St. 326. life shall not be limited, except to per- 
 
 12. N. Y. Real Prop. L., § 43; Purdy sons dn being at the creation thereof; 
 V. Hayt, 93 N. Y. 446. In this case and where a remainder shall be 
 property was devised to two sisters, limited on more than two successive 
 Jane and Catherine, for life, with estates for life all the life estates sub- 
 cross remainders for the life of the sequent to those of the two persons 
 survivor, remainder to the testator's first entitled thereto shall be void, 
 niece for life, remainder over. The and on the death of those persona, the 
 
510 FuTUEE Estates. 
 
 § 244, Destruction of Contingent Remainders by Failure 
 to Vest Before Destruction or Termination of Precedent 
 Estate. — ^As we have seen, a contingent remainder was void 
 unless limited after a precedent freehold estate, either for 
 life or in fee tail, since otherwise the seisin would be in 
 abeyance until the happening of the condition precedent 
 on which the remainder depended.^ It was also necessary 
 that every contingent remainder should become vested by 
 the happening of the contingency on which it was created 
 before the termination of the precedent estate, either by its 
 natural termination through the death of the life tenant or 
 the death of the tenant in tail without issue surviving, or 
 by forfeiture, merger or other destruction of the precedent 
 estate before its natural termination. The seisin of the 
 precedent life tenant or tenant in tail was absolutely essen- 
 tial to the continued existence of the contingent remainder 
 limited thereon. If on the death of the life tenant the con- 
 dition precedent on which the remainder depended had not 
 as yet happened, the remainder became void, since to give 
 it effect would leave the seisin in abeyance until the hap- 
 pening of the contingency on which the remainder would 
 become vested.* For the same reason the destruction of the 
 life estate by forfeiture arising from the treason of the life 
 tenant, or from an attempt by the life tenant to convey by 
 feoffment an estate in fee, would immediately destroy any 
 contingent remainders limited thereafter, unless they had 
 already become vested by the happening of the condition 
 precedent on which they depended.^ If the precedent es- 
 
 remainder shall take effect, in tlie Prop. (17th cd.), 418; Digby Hist, 
 
 same manner as if no other life es- Law Real Prop. ( 5th ed. ) , 268. 
 
 tates had been created." If the re- 3. Authorities cited in preceding 
 
 mainder so limited is contingent it note, also Fearne Cent. Rem. 307, et 
 
 will not take effect until the happen- seq; 2 Bl. Com. 168; Harris v. How- 
 
 ing of the contingency on which it de- ell, 10 Barn & C. 191 ; Loddington v. 
 
 pends. Purdy v. Hayt, 92 N. Y. 446. Kime, 1 Salkeld, 224; Poor's Lessee 
 
 1. § 338, note 4, ante. v. Considine, 6 Wall (U. S.) 458; 
 
 2. Co. Litt. 378a; Williams Real Madison v. Larmon, 170 III. 65; 
 
DeSTKUCTION of CoNTIlirGENT Kemaindees. 511 
 
 tate was an estate tail, its natural termination by failure 
 of issue, or its destruction by fine or recovery destroyed 
 any contingent remainder limited after it for the same 
 reason.* 
 
 Destruction of the precedent life estate by merger with 
 the ultimate vested remainder in fee or reversion had the 
 same effect. Such merger was accomplished by the con- 
 veyance of the life estate to such remainderman or rever- 
 sioner, intermediate contingent remainders being thus de- 
 stroyed. The limiting of a life estate and the reversion or 
 vested remainder in fee to the same person by the original 
 grantor or devisor did not cause a reversion, that being 
 contrary to the evident intent of the donor, but a convey- 
 ance in such case by the life tenant to another, vesting his 
 entire interest in such other, accomplished a merger which 
 destroyed intervening contingent remainders dependent on 
 the life estate." By statute Lq England and by statute and 
 decision in most of the states the destruction of the prece- 
 dent life estate by forfeiture or merger no longer affects 
 the contingent remainder. It will take effect on the happen- 
 ing of the contingency as though the life estate still con- 
 tinued to exist.* The same is generally true where the life 
 
 Waddell v. Eattew, 5 Rawle (Pa.) 4. All remainders limited after 
 
 231; Jordan v. MeClure, 85 Pa. St estates tail were defeated by fine or 
 
 495. These rules have no application recovery by which the entail was 
 
 tu equitable contingent remainders, barred and the estate converted into 
 
 Since the seisin is always in the trus- an estate in fee simple. Digby (5th 
 
 tee, it is quite immaterial whether ed.), 254. See § 86, ante, as to fines 
 
 the life estate is ended or destroyed and recoveries barring entails, 
 before the vesting of the contingent 5. Fearne Cont. Kem. 341; Bowie's 
 
 remainder of the cestui que trust. Case, 11 Coke 80a; Egerton v. Mas- 
 
 Digby (5th ed.), 373, note; Abiss t. sey, 3 Com. B. (N. S.) 338; Ben- 
 
 Burney, 17 Ch. Div. 211. Destruo- nett v. Morris, S Eawle (Pa.) 9; 
 
 tion of precedent estate by forfeiture Jordan v. McClure, 85 Pa. St. 495. 
 for breach of condition destroys con- 6. 8 and 9 Vict., ch. 106, | 6 
 
 tingent remainders limited thereon at (1844) ; §§ 1423, 1426, Stim. Am. St. 
 
 common law. Fearne Cont. Eem. Law. Statutes to this effect have 
 
 383, Butler's note; Williams v. An- been enacted in New York (Beal 
 
 gell, 7 R. I. 146. Prop. L. § 57), Massachusetts, 
 
612 
 
 FuTUEE Estates. 
 
 estate ends naturally before tlie contingency on wHch the 
 remainder depends has happened^ The contingent remain- 
 der takes effect on the happening of the contingency on 
 which it depends irrespective of what has happened to the 
 precedent estate. The old rule was based on the necessity 
 of seisin to the feudal relation, and this reason has disap- 
 peared centuries ago with the disappearance of feudalism. 
 Even where there is no statute expressly doing away with 
 it, or decisions declaring it obsolete, it may be confidently 
 expected that the courts will hold that this rule of the com- 
 mon law no longer exists, aU reason for it having long siace 
 disappeared.* 
 
 In the case of contingent remainders after estates tail, 
 the statutes either doing away with estates tail, or permit- 
 ting them to be changed into estates in fee simple by con- 
 
 Maine, Michigan, Wisconsin, Indiana, 
 Minnesota, California, the Dakotas, 
 Virginia, West Virginia, Kentucky, 
 South Carolina, Alabama, Misais- 
 Bippi, Texas and probably in other 
 states. 
 
 In Harris v. McElroy, 45 Pa. St. 
 316, the court holds that the rule 
 tliat a contingent remainder is de- 
 troyed by the destruction of the pre- 
 cedent estate is not applicable to 
 our institutions and should, there- 
 fore, be rejected. 
 
 That this rule is still sometimes 
 recognized when not abolished by 
 statute, see Madison v. Larmon, 170 
 111. 65. 
 
 7. N. Y. Real Prop. L. § 58, which 
 provides that failure to vest before 
 death of the life tenant has no ef- 
 fect on the contingent remainder, 
 which will vest in possession there- 
 after on the happening of the event 
 on which it depends. That this is 
 the general rule, see statutes in the 
 different states referred to in th? 
 
 preceding note. This change in law 
 has not as yet been made in England. 
 See preceding note. 
 
 During the interval between the 
 termination of the life estate and the 
 vesting of the remainder the prop- 
 erty belongs to the grantor or heirs 
 of the devisor or other person en- 
 titled thereto subject to the contin- 
 gent remainder. This follows from 
 the rule, now well settled, that the 
 fee in reversion is in the grantor or 
 heirs of the devisor or vested re- 
 mainderman in fee until the contin- 
 gent remainder becomes vested, since 
 a contingent remainderman has, in 
 fact, no estate, only a future contin- 
 gent interest. Gray Perpetuities, § 
 11, and authorities there cited; Eger- 
 ton V. Massey, 3 Con>. B. (N. S.) 338. 
 
 8. Harris v. McElroy, 45 Pa. St. 
 316, discussed in note 6 above; but 
 see Madison v. Larmon, 170 111. 65, 
 which recognizes the old rule, though 
 all reason therefor has long ceased to 
 exist. 
 
Remaindeb, to Posthumous Childeen. 513 
 
 veyance, have either deslxoyed such remainders, vested or 
 contingent, or have provided for their destruotion by per- 
 mitting the changing of a fee tail estate into a fee simple 
 by conveyance in fee simple to a third person.* 
 
 § 245. Remainders to Posthumous Children. — Where a 
 remainder was limited to the children of a life tenant, and 
 he died without issue, but a posthumous child was there 
 after bom to him at common law the child would not be 
 entitled to take, his remainder being contingent on his birth 
 and not having vested before the termination of his father's 
 precedent life estate. The seisin would be in abeyance 
 during the interval between his father's death and his own 
 birth." By statute in England," and by statute or de- 
 cision in the United States, posthumous children take, in 
 these cases as in all others in which their right to property 
 may be involved, exactly as though they were in existence 
 before their father's death. ^* 
 
 § 246. Transfer and Inhstitance or Vested and Contingent 
 Remainders. — Vested remainders, being certain and defi- 
 nite estates in land, may be conveyed, devised or inherited 
 as freely as estates in possession. The appropriate method 
 of conveyance was by deed of grant, not by livery of seisin, 
 
 9. See § 87, ante, as to statutes mary thereof in Stimson Am. St. L., 
 abolishing or modifying estates tail. §§ 1413, 2844, 6005. See 2 Shars. 4 
 
 10. Williams R. Prop. (17th ed.), B. Lead. Cas. 356. 
 
 418. See, also, Nicoll v. Nicoll, 3 Johns. 
 
 11. 10 & 11 William III, ch. 16 Cas. 18, the same result being reached 
 (1699). indepondent of statute, no statute 
 
 12. N. Y. Real Prop. L., § 56, having been enacted at that time In 
 which further provides that " a fu- New York, the court holding that the 
 ture estate dependent on the con- reason for the common law rule hav- 
 tingency of the death of a person ing disappeared, the rule itself would 
 without heirs, or issue, or children, not be recognized in New York, a 
 ehall be defeated by the birth of a principle very applicable tvi many 
 posthumous child of such person, other situations discussed in this 
 capable of taking by descent." See chapter. Barker v. Pearct, 30 P». 
 etatutea in different states, and sum- St. 173. 
 
514 FuTTJEE Estates. 
 
 these interests being future incorporeal estates without 
 right of present enjoyment or possession of the land.^ Con- 
 tingent remainders pass to the heirs of the remainderman 
 on his death intestate, or under his will as the case may be. 
 This was the rule at common law as well as at the present 
 time.^ But they could not be conveyed inter vivos, the 
 reason generally given being that no interest which is a 
 mere possibility can be conveyed, the conveyance of such 
 interests being against public policy as tending to promote 
 litigation.^ But a release of the remainder to the present 
 owner of the land was always valid, since it removed the 
 remainder altogether, ending a possible source of litigation.* 
 Where a contingent remainder was conveyed by deed with 
 warranty, if the grantor's interest subsequently vested 
 through the happening of the condition on which it de- 
 pended, the deed became valid and effectual by estoppel.' 
 If the conveyance was supported by a good consideration 
 equity treated it as an executory promise to convey the re- 
 mainder upon its vesting in the grantor, which would there- 
 upon be specifically enforced.* 
 
 Contingent remainders, in common with other contingent 
 future interests, may now be conveyed as freely as vested 
 remainders by virtue of statutes enacted in England and 
 
 1. Williams R. Prop. (17th ed.), v. Pendell, 19 Conn. 107, and pre- 
 397; 1 Preston Estates, 75; Glidden ceding note. 
 
 V. Blodgett, 38 N. H. 74. 5. Authorities in note 3, supra, 
 
 2. Williams Real Prop. (17th ed.), also Stewart v. Neely, 139 Pa. St 
 422, 423; Digby (5th ed.), 269; Ken- 309; Smith v. Pendell, 19 Conn. 107; 
 yon V. See, 94 N. Y. 563; Winslow v. Hannon v. Christopher, 34 N. J. Eq. 
 Goodwin, 48 Mass. 363; Chess' App. 459 (here equity enforced the deed 
 87 Pa. St. 362. as an executory contract which 
 
 3. Digby (5th ed.), 269; Williams should be speciacally performed, tha 
 Real Prop. 422, 433 ; 4 Kent Com. deed containing no covenants of war- 
 860; Hopper v. Demarest, 21 N. J. L. ranty). 
 
 525; Striker v. Mott, 28 N. Y. 83; 6. Higden v. Williamson, 3 P. 
 
 Hall V. Chaffee, 14 N. H. 215, and Wms. 133; Hannon v. Christopher. 
 
 eases in notes following. 34 N. j. Eq. 459; Mudge v. Hammill, 
 
 4. Williams v. Esten, 179 111. 267; 21 R. I. 283, and authorities cited in 
 Miller v. Emans, 19 N. Y. 384; Smith note 3, suvra. 
 
Tkanspee and Inheritance Remainders. 515 
 
 many of the states, provided ttere is a remainderman to 
 make the conveyance^ Where a remainder is limited to 
 unborn children it cannot be conveyed until the birth of the 
 children who are to take, there being no one in existence 
 to make a conveyance. The same is true of a remainder 
 limited to a person or persons not as yet ascertained, as a 
 remainder to such person as may be mayor of New York 
 City on the death of the life tenant. But where a remainder 
 is limited to the surviving children of a life tenant, or to his 
 heirs, the children of the life tenant are contingent remain- 
 dermen during his life, and may convey their contingent 
 interests to others, the grantees taking, of course, subject 
 to the contingency of the grantors surviving the life tenant.* 
 In any similar case, though the remainder is limited to a 
 class the membership of which wUl not be determined until 
 the happening of some event in the future, those who will 
 be members of the class in case they survive until the hap- 
 pening of that event are just as truly contingent remain- 
 dermen, and therefore may convey or release their interests, 
 as contingent remaindermen who are specifically named and 
 identified.^ 
 
 7. 8 and 9 Vict., ch. 106, § 6; N. Y. the remainder is limited to his heirs. 
 Real Prop. Law, § 59; N. J. Gen. St. the contingent interest of any child 
 (1895), 881, § 138; Defrcese v. will, of course, be defeated by the 
 Lake, 109 Mich. 415; Young v. death of the child before the life 
 Young, 89 Va. 675; Belcher v. Bur- tenant, whether the child has con- 
 nett, 126 Mass. 230; Hennessy v. veyed his interest or not, and as tho 
 Patterson, 85 N. Y. 91; 2 Shars. & interest of the child has ceased to ex- 
 B. Lead. Cas., 370, and cases in fol- ist, it cannot pass to the child's heirs 
 lowing note. or under his will. Hall v. La France 
 
 8. Moore v. Littel, 41 N. Y. 66; Fire Eng. Co., 158 N. Y. 570 (Ian- 
 Putnam V. Story, 132 Mass. 205; guage in the opinion in this case to 
 Belcher v. Burnett, 126 Mass. 230; the effect that the children as pre- 
 Gormon v. Simmons, 113 Mo. 122. sumptive heirs had a mere contin- 
 
 9. See cases in preceding note. gent interest which could not be con- 
 Where surviving the life tenant is veyed, etc., was dicta, the interests 
 
 made a condition precedent to the re- involved being defeated through fail- 
 mainder limited to his children, ure to survive. See the Moore case 
 which must always be the case when and the Hennessy case, supra) ; Pa- 
 
516 FuTUEE Estates. 
 
 § 247. The Present Law of Remainders. — Tlie effect of 
 the modern statutes has been to remove most of the practi- 
 cal differences between vested and contingent remainders. 
 Contingent remainders no longer depend on a prcedent life 
 estate and may be limited after tenancies for years. They 
 are no longer in any way affected by the destruction or 
 termination of the precedent estate, and they eventually 
 take effect in possession on the happening of the condition 
 precedent on which they depend, though the precedent life 
 estate has ended long before. They may be conveyed, de- 
 vised and inherited as freely as vested estates. In most 
 of the cases cited and discussed in the foregoing sections 
 the question of whether the remainders were vested or con- 
 tingent was quite immaterial, the courts having discussed 
 at great length and with much labor, questions which had 
 nothing to do with the decision of the question involved. 
 In Moore v. Littel, for instance, the title made under the 
 mortgages was perfectly good whether the remainders in 
 the children of Jackson, the life tenant, were contingent or 
 vested.^ In Hennessey v. Patterson ^ it was quite imma- 
 
 get V. Melcher, 156 N. Y. 399; Teets through the foreclosure of these 
 V. Weise, 4Y N. J. L. 154; Bates v. mortgages was perfectly good, 
 Gillett, 133 111. 287. whether the remainders were vested 
 1. 41 N. Y. 66. Here land was or contingent. No matter what . the 
 conveyed to Jackson for life, re- remainders were held to be the re- 
 mainder to his heirs, Jackson subse- suit would have been the same, 
 quently conveying his life estate to 2. 85 N. Y. 91. This was the or- 
 his children, and a partition among dinary case of remainders in the al- 
 the children following. The validity ternative after .a life estate. A Ufe 
 and effect of mortgages made by two estate was given to Mrs. Foley and 
 of these children were involved, the her daughter; the daughter having 
 contention being that mortgages were survived her mother, on her death 
 void in so far as they purported tc the property was to go to her diil- 
 cover the future estates limited to dren if she died leaving any surviv- 
 the lieirs. As the children of Jack- ing, if she died without issue then 
 eon, his presumptive heirs, were in the property was to go to the testa- 
 existence, they had remainders, either tor's nephew, John Foley. There 
 vested or contingent, which they had was absolutely nothing to indicate 
 a perfect right to mortgage, and title tliat John Foley's suryiying the 
 
The Pkesent Law of Kemaindees. 
 
 517 
 
 terial whether the remainder limited to Foley was conting- 
 ent or vested; in either case it would pass to his heirs on 
 his death, the only question really involved being whether 
 Foley's surviving the life tenant was a condition precedent 
 to his estate, he having died before the life tenant. In 
 several other cases in which the court discussed the ques- 
 tion of whether the remainder was vested or contingent in 
 the light of the supposed doctrine that the annexing of 
 futurity to the gift makes remainders contingent, the one 
 question really was whether or not survivorship of the life 
 tenant by the remainderman was a condition precedent to 
 his remainder.® In all of these cases it was quite imma- 
 
 daughter was an additional condition 
 precedent to the taking effect of his 
 remainder, and the court correctly 
 decided that his contingent interest 
 passed to his heirs, he having died 
 before the daugliter, who subse- 
 quently died without issue surviving. 
 3. A number of cases lay stress on 
 whether words of gift are used in 
 creating the remainder, or whether 
 the language used directs a distribu- 
 tion at some future time, futurity 
 being annexed to and made the es- 
 sence of the gift. In these cases the 
 one simple question above referred to 
 was alone involved, viz. : Was the sur- 
 viving of the remainderman until the 
 future time specified expressly made 
 a condition precedent to the gift in 
 remainder? Thus in Matter of 
 Crane, 164 N. Y. 71, the will pro- 
 vided " Upon the decease of my said 
 wife, I order and direct that my es- 
 tate be divided as follows, viz.: 
 Equally between my brothers and sis- 
 ters and my niece. Flora W. Buckley, 
 each to take one equal share thereof. 
 Provided, further, that if any of my 
 said brothers and sisters and niece 
 
 shall depart this life before my said 
 wife, leaving lawful issue him or her 
 surviving, then the share of the one 
 so dying shall be paid over to their 
 issue in equal shares." Here tho 
 court decided that the class who were 
 to take was determined on the deatli 
 of the wife, and consisted of the 
 brothers and sisters and niece tlieii 
 living, and the descendants of those 
 who had died, so that the interest of 
 each was contingent until the death 
 of the wife. But what difference did 
 it make whether these interests were 
 contingent or vested subject to be di- 
 vested? Those entitled to take would 
 be the same in eitlier case, viz. : The 
 surviving brotliers and sisters and 
 niece, and the descendants of those 
 who had died. These interests in 
 either case could be conveyed, subject 
 to defeat in case the grantor failed to 
 survive the life tenant. 
 
 In Roosa v. Harrington, 171 N. Y. 
 341, there was a gift for life to the 
 testators son', Charles, with remain- 
 ders in the alternative either to 
 Charles' issue if he died leaving chil- 
 dren, or if he did not, then to his eon 
 
518 
 
 Ftttttee Estates. 
 
 terial whether the remainders involved were contingent or 
 vested. In either event they would pass by conveyance, 
 devise or inheritance as the case might be and would be 
 unaffected by the death of the remainderman, unless his 
 surviving was expressly made a condition precedent to the 
 remainder. In other words the one question in all these 
 cases is this: What are the conditions on which the re- 
 mainder depends, and have they happned? If they have, 
 then the remainder takes effect on the termination of the 
 precedent estate, whether it be called vested or contingent, 
 either in the remainderman or his assigns if he is alive, or 
 in his heirs, devisees or assigns if he is dead. The one ma- 
 terial question is, have the conditions precedent to the es- 
 tate of the remainderman, if any, happened or not? 
 
 The modern law of remainders is, therefore, very simple 
 if the courts and legal writers would only accept it as it is, 
 
 and daughter. William and Sarah. 
 There was nothing to show, as there 
 was in the preceding case, that their 
 surviving the life tenant was a con- 
 dition, whether precedent or subse- 
 quent, to the gift in remainder, the 
 court therefore holding that they took 
 contingent remainders not in any way 
 dependent on their surviving, tiut de- 
 pendent only on the contingency of 
 Charles' death without issue surviv- 
 ing him which remainders could be 
 conveyed, inherited or devised. Here 
 again the sole question was whether 
 the remainder was subject to be de- 
 feated by their failure to survive the 
 life tenant, and the question of 
 whether the condition of survivorship, 
 if it had been found to exist, was pre- 
 cedent or subsequent was quite im- 
 material, the result being the same in 
 either case. 
 
 In determining the question of fact 
 whether survivorship is made a con- 
 dition of the remainder, whetlier pre- 
 
 cedent or subsequent, the rule of con- 
 struction above referred to, that 
 where no language of present gift is 
 used, but a direction for distribution 
 at some later time, survivorship un- 
 til that time will be taken to be a 
 condition of the gift. Is of very little 
 value. It runs counter to the rule of 
 construction that in case of doubt a 
 remainder will be construed to be 
 vested rather than contingent. In de- 
 termining whether only surviving 
 members of the class are to take on 
 the final division at the end of the 
 life estate this rule of interpretation 
 is of no value except, perhaps in case 
 of a question of serious doubt, there 
 being other circumstances, as in the 
 Matter of Crane, supra, indicating an 
 intent to make survivorship a condi- 
 tion precedent. See Paget v. Melcher, 
 156 N. Y. 399; Rudd v. Cornell, 17X 
 N. Y. 114; Corse r. Chapman, 163 N. 
 Y. 466. 
 
The Present Law of Remainders. 519 
 
 discarding the empty verbiage of tlie past, and no longer 
 encumbering tbeir opinions or writings with, the discussion 
 of rules which have ceased to have any application what- 
 ever, since they are no longer in existence. Apart from the 
 Eule against Perpetuities what question can arise with 
 reference to remanders except the one question of whether 
 or not the remainder is subject to a condition precedent or 
 subsequent, and whether the interest of the remainderman, 
 his heirs, devisees or assigns, has been changed into a present 
 estate in possession or has been finally defeated, as the case 
 may be, by the happening or failure to happen of the con- 
 tingency or contingencies on which the remainder depends, 
 if such are found to exist? If these contingencies are con- 
 ditions precedent, and they have happened, the estate 
 takes effect exactly as though vested from the beginning. 
 "Whether the remainder be vested or contingent, if it is de- 
 termined in such way that the estate cannot vest in posses- 
 sion the remainder is defeated whether it be called vested 
 or contingent. It is quite immaterial whether the precedent 
 estate has come to an end some time before the vesting in 
 possession of the remainder. The remainder passes by 
 grant, devise or inheritance exactly in the same way, 
 whether contingent or vested. Of course, if survivorship 
 is a condition precedent to the remainder it is absolutely 
 defeated by the death of the remainderman before the time 
 fixed, since failure to survive until after such time is the 
 failure of the condition precedent on which the remainder 
 depended. If failure to survive is a condition subsequent, 
 the remainder, though vested, is just as effectually defeated 
 so that it cannot vest in possession on the termination of 
 the precedent estate or estates. Apart from this one ques- 
 tion there is little left of the law of remainders except the 
 application of the Rule against Perpetuities, which will be 
 considered in a later chapter.* 
 
 4. See Ch. XV and Ch. XVI, post. 
 
520 FuTUEE Estates. 
 
 § 248. The Rule in Shelley's Case. — The law of contingent 
 
 remainders as heretofore discussed is subject to one import- 
 ant modification. Where land is given to A for life, re- 
 mainder to his heirs or to the heirs of his body, he takes an 
 estate in fee simple or in fee tail, the courts construing the 
 grant or devise as a limitation to A and his heirs, or to A 
 and the heirs of his body, as the case may be. The explana- 
 tion of this rule of construction, known as the rule in 
 Shelley's case, is as follows: Originally the owner of a fee 
 could convey only with the consent of his lord; until the 
 Statute of Wills he could not devise it by will. It was not 
 an easy matter to defeat the right of inheritance of his heir, 
 which in nearly all cases would take effect on his death. It 
 was quite natural, therefore, at this early time, before the 
 right to convey estates in fee had become fully established 
 by the Statute Quia Emptores, that a gift to A for life, re- 
 mainder to his heirs, should be regarded as substantially 
 the same thing as a gift to A and his heirs.** The word 
 " heirs " signified not only the heir of the donee, but the 
 heir of such heir and thereafter in succession for all time. 
 The limitation to the heirs of the donee, therefore, could not 
 be construed as a gift to a definite person or class of persons 
 the heir or heirs, but a gift to the entire line of decent, direct 
 or collateral, in other wOrds this limitation signified and 
 expressed the duration of the estate granted to A, since it 
 was unreasonable to suppose that the grantor intended so 
 impossible a limitation as a series of life estates to the heirs 
 in succession for all time. The language was, therefore, 
 construed as words of limitation, defining the duration and 
 character of the estate given to A, rather than words of 
 purchase giving a definite future estate to individuals or a 
 succession of individuals who would qualify as heir or heirs, 
 generation after generation in the line of descent of A, 
 
 5. Williams Real Prop. (17th ed.l, long before Shelley's Case. Year Book, 
 898, 399; Shelley's Case, 1 Rep. 94, 18 Edw. 11, 677, Williams 398, note. 
 104. The rule had been established 
 
The Eule its Shelley's Case. 521 
 
 direct or collateral. This is made very clear by considering 
 a limitation to A for life, remainder to Ms heir. The rule 
 has no application in this ease, A taking a life estate and 
 his heir apparent a contingent remainder, since a definite 
 person is described as remainderman, the intention being to 
 create in him a remainder for life or in fee as the case may 
 be.® So when it appears from the entire instrument that 
 the word " heirs " were used as meaning children, or those 
 persons only who would be the immediate heirs of the donee 
 on his death, this rule of construction is overcome, the donee 
 taking a life estate, and his children or presumptive heirs 
 taking remainders in accordance with the rules heretofore 
 discussed.^ But where the word " heirs " is used in its 
 technical sense as indicating the line of descent forever, the 
 rule applies no matter how clearly the instrument creating 
 the estate may express a contrary intent.^ Thus a devise 
 to the testator's daughter for life, and after her death to 
 the heirs of her body, and for want of such issue to his 
 grandson, " It being my will and meaning that my daughter 
 should have only an estate for life in the said premises, and 
 that after the decease of my wife and daughter the said 
 premises should go to and vest in the heirs of the body of 
 my said daughter * * * and that my daughter should 
 
 6. Archer's Case, 1 Rep. 63b ; Evans 334; Roe dem. Thong v. Bedford, 4 
 
 V. Evans, S Ch. 173. The rule of M. & S. 363; Belshay v. Engel, 107 
 
 primogeniture, that the eldest son 111. 182, 188; Millett v. Ford, 109 Ind. 
 
 alone inherits aa heir, undoubtedly 159; Pierce v. Hubbard, 153 Pa. St. 
 
 had much to do with the continued ex- 18. 
 
 istence of the rule in Shelley's case, 8. Roe, dem. Thong v. Bedford, 4 
 
 since a limitation to "heirs" could M. & S. 363; De Vaughn v. Hutchin- 
 
 not reasonably be construed as refer- son, 165 U. S. 566; Carpenter y. Van 
 
 ring to the heir as an individual, and Olinder, 127 HI. 43; Silva v. Hopkin- 
 
 to him alone. Cases where famale son, 158 HI. 386; Trumbull v. Trum- 
 
 heirs would inherit as coparceners, bull, 149 Mass. 300; Shimer v. Mann, 
 
 would, of course, come within the 99 Ind. 190; Taney v. Fahuley, 136 
 
 term "heirs," but it is manifest that Ind. 88; Grimes v. Shirk, 169 P». St, 
 
 the donor would not have them in 74; Martling v. Martling, 65 N. J. 
 
 mind in using the word " heirs." Eq. 771. 
 
 V. Loddington v. Kime, 1 Salkeld, 
 
522 FuTUEE Estates. 
 
 not have any power to defeat my intent and meaning in this 
 respect," it was held, nevertheless, that the daughter' took 
 an estate tail, which could be converted into a fee simple 
 and the entail in favor of the heirs of the body of the daugh- 
 ter defeated, it being clear that the expression " heirs of 
 the body " was used to indicate the direct line of descent as 
 long as it would last.* 
 
 The ride applies also to cases in which one or more life 
 estates or other particular estates in remainder are created 
 to take effect after the death of the first donee, remainder 
 to the first donee's heirs. Thus where land is granted or 
 devised to A for life, remainder to B for life, remainder to 
 C for life, remainder to the heirs of A, A takes an estate in 
 fee subject to the life estates of B and 0. A has, therefore, 
 a present life estate in possession, and a vested remainder 
 in fee after the life estates of B and C, which he may convey 
 as he pleases, defeating the chance of inheritance of his 
 heirs. ^^ 
 
 § 249. The Rule in Shelley's Case in the United States.— 
 In many of the states this rule has been abolished altogether 
 by statute, the donee taking a life estate and his heirs tak- 
 ing the remainder as purchasers in accordance with the 
 language of the deed or will.^ In several states the rule has 
 been abolished in the case of wills but retained in the case 
 of deeds.^ In many states it is still retained as part of the 
 
 9. Eoe, dem. Thong v. Bedford, 4 Dakotas, to the same effect. See, also, 
 M. & S. 363. 1 Stim. Am. St. Law, § 1406. 
 
 10. Williams Real Prop. (17th ed.), 2. See statutes of New Jersey, New 
 400, 401; Digby (5th ed.), 369. Hampshire, Kansas and Oregon; 1 
 
 1. N. Y. Real Prop. L., § 54; Mass. Stim. Am. St. Law, § 1406. 
 
 Pub. St. Ch. 136, § 4; 3 Howell's In Lippeneott v. Davis, 59 N. J. 
 
 Annot. Stat. (Michigan), § 5544; Va. Law 341, the court, construing the 
 
 Code, § 3433; Cal. Civ. Code, § 779; New Jersey statute, held that the 
 
 Conn. Gen. St. (1888), § 3953. See, statute does not apply, and therefore 
 
 also, statutes of Minnesota, Wiscon- the rule continues, where the devise* 
 
 sin. West Virginia, Mississippi, the dies without issue leaving only c*l- 
 
The Rule in Shelley's Case in the United States. 523 
 
 law, and in some instances it has been defended as still 
 aceomplisliing useful results, but the general tenor of de- 
 cisions in those states still retaining the rule is hostile to 
 it, since it defeats the actual intent of the grantor or devisor 
 in most cases.^ In those states in which the use of the word 
 " heirs " is no longer necessary to create a fee, the entire 
 estate of the donor passing in the absence of an expressed 
 intent to pass a lesser estate, it is difficult to see how the 
 rule can be longer recognized, though there be no statute 
 abolishing it.* This change in the law sweeps away every 
 reason that ever existed for it. In these states a grant or 
 devise to A for life, remainder to his heirs cannot possibly 
 be construed except as a remainder in fee to those persons 
 who will be A's heirs on his death. If language be con- 
 strued in its usual sense it is impossible reasonably to say 
 that the heirs of A get nothing. It is true, as stated in a 
 Pennsylvania case ^ that the donor cannot create a life es- 
 tate and make it at the same time an estate of inheritance 
 which will pass to his heirs and to the heirs of such heirs by 
 inheritance, but there is no reason why a remainder may 
 not be limited to a definite class in fee to take effect on the 
 death of the life tenant, and there is no reason why the 
 clearly expressed intent to make such a limitation to the 
 heirs of the life tenant should not be given effect. A rule 
 of construction which defeats the expressed intent of the 
 donor is an anomaly which should no longer be tolerated. 
 
 lateral relations. If he dies leaving is- Bonslaugli, 13 Pa. St. 344. See criti- 
 Bue surviving he is held to have only clsms of the rule in SiceloiT v. Red- 
 it life estate, remainder to such issue. man's Adms., 26 Ind. 251, 259; Bel- 
 
 3. Connor v. Gardner, 230 111. 258; shay v. Engel, 107 111. 182, 186. 
 
 Garver v. Clouser, 318 Pa. St. 611; 4. See § 83, ante, as to change in 
 
 Thomas v. Higgins, 47 Md. 439, 450; the law requiring the word "heirs" 
 
 Brooks V. Evetts, 33 Tex. 733. See, in deeds. 
 
 also, cases in note 8, under § 348. 5. Hillman T. Bonslaugh, 13 P». St. 
 
 See defense of the rule in Hillman v. 344. 
 
524 FuTUEE Estates. 
 
 § 250. Future Executory Estates; Executory Devises. — 
 
 "We have seen that future estates at common law could orig- 
 inally be created only by way of remainder. The different 
 kinds of attempted future interests which were void under 
 the common law were, (a) estates to arise at a future day 
 created without any precedent particular estate; (b) a 
 future estate to take effect sqme time after the termination 
 of a precedent particular estate, as an estate to A for life, 
 and one day or one year after his death to B in fee; (c) a 
 contingent remainder limited on a precedent estate for 
 years; (d) a fee limited upon a fee on a contingency destroy- 
 ing the first fee and causing the second to immediately take 
 effect; (e) a future estate limited after a life estate to take 
 effect only on a contingency destroying the precedent estate 
 before its natural termination, as an estate to A for life, 
 but if A should marry B the property to go over to C in fee. 
 In the first three cases the attempted limitation was void 
 because in each case it would put seisin in abeyance as here- 
 tofore explained; in the last two cases the courts decided 
 that having created an estate in fee or for life, a provision 
 that on the happening of a contingency the estate should 
 be defeated and the property go over to another was void 
 as repugnant to the estate first created, the attempt being 
 to create a future interest which was not a remainder, but 
 a future executory interest involving the destruction of the 
 precedent estate before its natural termination.^ 
 
 After the enactment of the Statute of Wills each and every 
 one of these future interests could be created as valid legal 
 estates by will, and after the Statute of Uses they could be 
 created, with one possible exception, as springing or shift- 
 ing uses under that statute. When created by will they are 
 called executory devises; when created by deed under the 
 Statute of Uses they are called springing or shifting uses, 
 which will be discussed in the following section. 
 
 L See § 838, ante, and authoritica cited. 
 
EUTUEE EXEOUTOET E STATES ; ExEOUTOEY DeVISES. 525 
 
 How did it happen that the courts which refused to recog- 
 nize any of these future executory interests as valid when 
 attempted to be created by common law deed, gave trdl 
 effect to them as valid legal interests when created by willf 
 The reason was that at the time of the enactment of the 
 Statute of Wills feudalism as a system had greatly declined, 
 and the tendency of the people and of the courts was to 
 escape from the restraints which the narrow technical rules 
 of feudalism had imposed upon the disposition of property. 
 Before the statute, wills of real property were void, having 
 been regarded as inconsistent with the feudal relation. 
 Therefore, after wills of realty were expressly provided for 
 by the Statute of Wills, the courts were free to establish 
 such rules for the interpretation and enforcement of wills 
 as the best interests of society then seemed to demand. 
 They were not hampered by precedents, since theretofore 
 wills of real property had not been allowed at all, precedents 
 arising out of the interpretation and enforcement of con- 
 veyances having no necessary application to this new situa- 
 tion. They decided, therefore, that the technical rules 
 growing out of seisin in its relation to feudalism should not 
 apply to estates created by will; that the intent of the testa- 
 tor should be given effect and carried out in each case, as 
 expressed in the will, though the interest created would 
 be in violation of any one of the common law rules as here- 
 tofore explained, had the interest in question been created, 
 by deed. Therefore in each of the cases above enumerated 
 the future executory interest is valid and will be enforced 
 in accordance with the expressed intent of the testator when 
 created by will.^ 
 
 2. 3 Bl. Com. 172-175; Williams Livery of seisin not being required 
 Real Prop. (17th ed.), 456, 457; Wad- to transfer or create a freehold inter- 
 dell V. Rattew, 5 Rawle (37 Pa. Sup. est by will, there was nothing to pre- 
 Ct.), 231; Harris v. Howell, 10 B. & vent the creating of a future execii- 
 C. 191; Hopkins v. Hopkins, Cas. tory interest by will, since the seisin 
 Temp. Talbot 44 (equity 1734). would remain in the heirs of the de- 
 
626 FuTUEE Estates. 
 
 Before the enactment of the Statute of Uses, uses, which 
 were then purely equitable estates, could be freely created 
 as future executory interests in any of the cases above re- 
 ferred to in which similar limitations by deed at law would 
 be void, and they could also be freely devised, the trustee 
 being compelled to hold for the devisee of the use after the 
 death of the cestui que use. Furthermore legal estates could 
 be conveyed to a trustee subject to such uses as might be 
 subsequently provided for in the will of the donor on his 
 death, and since the legal seisin would be at all times in the 
 trustee, these future executory interests could be created 
 and take effect as uses after the donor's death as so pro- 
 vided in his will. The changing of uses into legal estates 
 by the Statute of Uses made wills of uses void, and was the 
 immediate cause of the enactment of the Statute of Wills 
 shortly afterwards. It would have been highly technical 
 and unreasonable for the courts to apply to wills of realty 
 the technical rules which applied to deeds, as that would 
 have made void and ineffective all the progress which had 
 been accomplished by means of uses. The broad purpose 
 of both statutes was to permit the creating of all interests 
 as legal estates which could be created only as uses before 
 these statutes were enacted. Therefore the courts were 
 bound to hold, as they did, that these future executory in- 
 terests could be created by will, after the statute, as legal 
 estates, just as they could be created as uses by deed or will 
 before the statute.^ 
 
 visor until the taking effect of tl'o as to conveyances to uses to be pro- 
 future interest in tlie devisee. Tliis, vided for in donor's will. These con- 
 however, does not explain a fee upon siderations explain the forces acting 
 a fee created by w'll. The true rea- on the courts which brought about 
 son, therefore, is tbe more liberal at- the more liberal interpretation of 
 titude of the courts in construing wills. They were free to adopt the 
 wills, they being unhampered by pre- rule that the testator's expressed in- 
 cedcnts as explained in the text. tent should be given effect, the pre- 
 3. Williams Real Prop. (ITth ed.), cedents arising from the constructioa 
 456, 457; Digby Hist. L. Renl Prop, of deeds not applying. 
 (5th ed.),3Sl, 3S3. See Cli. VIII, an*e, 
 
I'UTUBE ExECUTOEY EsTATES J EzECUTOET DeVISES. 527 
 
 Th.e term " executory devise " is applied only to those 
 future executory interests created by will which would be 
 void if created by deed under the common law. If the estate 
 created by will is a remainder so that it would have been 
 valid as such if created by deed, it is not an executory 
 devise, but a remainder, subject to all the rules of law apply- 
 ing to remainders. If the will creates a valid contingent 
 remainder supported by a precedent life estate, it must 
 stand or fall as a remainder. If, thereafter, the life tenant 
 should die before the happening of the contingency on 
 which the remainder depends, the remainder is defeated, 
 exactly as though it had been created by deed. It will not 
 then become an executory devise to prevent its destruction. 
 Thus if land be devised to A for life, remainder to B upon 
 his marriage, B takes a contingent remainder, A taking a 
 life estate on the testator 's death, and if A should die before 
 B's marriage, B's contingent remainder would be defeated 
 since it would have failed to vest before the ending of the 
 precedent life estate. On the other hand if A had died be- 
 fore the testator, so that at the time the will took effect on 
 the testator's death there was no life estate to support the 
 future contingent interest in B, B's interest would take 
 effect on his subsequent marriage as an executory devise, 
 it being in such ease a future contingent interest without a 
 precedent estate to support it which would be void if created 
 by deed at common law, but which for that very reason is 
 good as an executory devise.* 
 
 4. Doe d. Harris v. Howell, 10 Barn, power to convey or devise in the life 
 
 & Ores. 191; Hopkins v. Hopkins, tenant will not be given effect as an 
 
 Cas. Temp. Talbot 44; Waddell v. executory devise in order to defeat 
 
 Battew, 5 Rawle (Pa.), 231; Morton the power). 
 
 V. Funk, 6 Pa., St. 483 ; Blanchard v. Contingent remainders to a class of 
 
 Blanchard, 1 Allen (Mass.) 223; persons to be ascertained in the future 
 
 Wolfe V. Van Nostrand, 2 N. Y. 436; are not executory devises when crea- 
 
 Demil] v. Reid, 71 Md. 175; Burleigh ted by will, but must stand or fall 
 
 r. Clough, 52 N. H. 267 (vested re- as contingent remainders. Gray Per- 
 
 mainder subject to be defea^ted by a petuities, § 60; see, also, § 242, ant*. 
 
628 FuTUEB Estates. 
 
 But an executory devise may be changed by snbseqnent 
 events into a contingent remainder. Thus if land be devised 
 to A for life, remainder to B in fee, but if B should die dur- 
 ing the life of A, then to C in fee upon his marriage, the 
 limitation to C would be valid as an executory devise, it 
 being a fee upon a fee. If B should die during A's life the 
 interest of C would then become a contingent remainder, 
 supported by the life estate of A, subject to the rules gov- 
 erning contingent remainders, and therefore liable to be 
 defeated by a fine or a common recovery under the old law, 
 or by the destruction or termination of the precedent life 
 estate before the happening of the contingency on which 
 the remainder depended." 
 
 Where a devise is made to A and his heirs, but if A die 
 without issue, then to B and his heirs, at common law A took 
 an estate tail with a vested remainder in B, the language 
 being construed as equivalent to a gift to A and his issue, 
 or heirs of his body, remainder to B in fee.* Under statutes 
 changing estates tail into estates in fee simple the limitation 
 over to B is void as violating the rule against perpetuities, 
 it depending on an indefinite failure of issue of A, which 
 may not happen for many generations, should the direct 
 line of succession of A's issue continue unbroken for a long 
 time, it being possible that B's interest will not vest for 
 many generations.''' But if it appear, either expressly or 
 by the context of the will, that definite failure of issue on the 
 
 5. Doe d. Harris v. Howell, 10 Barn, fee which makes the interests of B 
 
 & Crea. 191. & C executory devises disappears, B 
 
 Where two executory devises to taking a life estate and C a remainder 
 
 take effect in succession are created, in fee. Gray Perpetuities, § 114, 
 
 and one of them vests in possession note. 
 
 as a life estate, the other then be- 6. Holden v. Wells, 18 R. I. 802; 
 
 comes a remainder automatically, Miller's Est., 145 Pa. St. 561; Parker 
 
 since it is supported by the life es- v. Parker, 5 Met. (Mass.) 134, 139; 
 
 *ate. For instance, a devise to A in 3 Jarman Wills (5th ed.), 94-98, and 
 
 fee, but if A die without issue to B oases cited. 
 
 for life, and on Ws death to C in fee. 7. See C!h. XV, post, and note fol- 
 
 On A's death without i«sue the first lowing. 
 
ExEccTOEY Estates ; Springing and Shieting TJse3. 529 
 
 deatli of A is intended, then the limitation to B is a valid 
 fee upon a fee created as an executory devise.* By statute 
 in England, New York and several other states the common 
 law rule of construction is changed, it being provided that 
 such limitation shall be construed as meaning definite fail- 
 ure of issue on the death of the first taker, the limitation 
 over being valid, therefore, as an executory devise neces- 
 sarily vesting within one life.' 
 
 § 251. Executory Estates; Springing and Shifting Uses. 
 — ^We have seen how equitable estates, called uses, devel- 
 oped as part of the growth of equity jurisdiction, the trus- 
 tee to uses holding the legal title to the use of the benefi- 
 ciary, or successive beneficiaries, as provided by the terms 
 of the use.^ The technical rules of feudalism arising out 
 of suspension pf seisin, as discussed in preceding sections,^ 
 had no application to uses, since the trustee was seised 
 throughout. Therefore where land was conveyed to B as 
 trustee to the use of C on his marriage, or on the death of 
 the grantor, or the like, the legal title having been conveyed 
 to B in fee, seisin was never in abeyance, since B would 
 always be seised, as holder of the legal title, the only person 
 recognized as owner of the property at law. Equity, how- 
 ever, would compel B to execute his trust, requiring him 
 to hold the property, first for the benefit of the grantor, and 
 then, on the happening of the event specified, for the benefit 
 of C. In the same way a conveyance to A and his heirs, to 
 the use of B and his heirs, but if B should die without issue 
 
 8. Dorr v. Johnson, 170 Mass. 540; devise over in ease the first taker dies 
 
 Lawler v. Holohan, 70 Conn. 87; Mil- without issue means a substitution 
 
 ler's Est., 145 Pa. St. 561; Moore v. of another in case the first taker so 
 
 Gary, 149 Ind. 51; Summers v. Smith, dies during the life of the testator. 
 
 127 IH. 645. The courts will quickly 9. N. Y. Real Prop. L., § 48 ; 1 Vict, 
 
 grasp at any circumstance indicating ch. 26, § 295; 1 Stim. Am. St. L., 
 
 a definite failure of issue in order to § 1415; Condict v. King, 13 N. J. Eq. 
 
 support the devise. 375. 
 
 In Moore v. Gary, and Lawler v. 1. See §§ 193, 193, ante. 
 
 Holohan, aupra, it was held that the 2. See § 250 and § 238, ante. 
 84 
 
530 FuTTJEE Estates. 
 
 surviving, then to tlie nse of C and his heirs, was valid and 
 enforceable in equity, there being a fee in A, the trus- 
 tee, satisfying every requirement at law, and in equity 
 the trustee being bound in conscience and good faith to hold 
 first for the benefit of B, and then on the happening of the 
 contingency bringing the first fee to an end, for the benefit 
 of C. Thus future equitable estates by way of use could 
 be created in each of the five cases enumerated in the pre- 
 ceding section where the same interest would be void if 
 created as a legal estate before the enactment of the Statute 
 of Uses and the Statute of Wills.^ It has already been 
 pointed out in a preceding chapter that one of the reasons 
 giving rise to uses was the desire to make gifts of this sort, 
 which were impossible at law.* 
 
 The Statute of Uses ^ changed all existing uses and all 
 those subsequently created (with certain exceptions hereto- 
 fore noted) into legal estates of the same nature and dura- 
 tion as the equitable estate before the change.® The result 
 was that all one had to do to create a future interest at law 
 to spring up at a future day without a precedent estate, or 
 a fee upon a fee, or a fee on a contingency in derogation of 
 a precedent life estate, was to convey to a trustee to the use 
 of another on the happening of a future event, or to the use 
 of Ainfee, and upon his death without issue surviving to the 
 use of B in fee. The use in favor of the beneficiary in each 
 instance was changed by the statute instantly on its creation 
 into a legal estate or interest to spring up, or to shift over, 
 as the case might be, on the happening of the contingency 
 in question. Where the future interest is to spring up on 
 the happening of some future event without an intervening 
 precedent estate to arise at the same time, it is called a 
 springing use; if it is a fee upon a fee, the estate shifting 
 
 3. See § 196, notes 6-13, ante, and 6. See § 195, ante. The uses not 
 authorities there cited. affected by the statute which snr- 
 
 4, See § 193, ante. vived as trusts are discussed in § 197, 
 6. 27 Henry VIII, 10 (1535). ante. 
 
ExECUTOEY Estates ; Speingiitg and Shiftiitg Uses. 531 
 
 over from one person to another on the happening of the 
 event, it is called a shifting useJ The term " use " is em- 
 ployed as designating those legal estates created in this way 
 by operation of the Statute of Uses upon inactive equitable 
 estates. The term " trust " is now applied to those uses 
 which survived the statute and continue to this day as 
 equitable estates.^ 
 
 The usual practice after the statute was to create a use 
 by a bargain and sale or covenant to stand seised, the 
 grantor as convenantor or bargainer becoming for the mo- 
 ment trustee to uses for the benefit of the beneficiary or bene- 
 ficiaries named, his legal estate being defeated by the 
 operation of the statute which instantly put the legal estate 
 into the person named as beneficiary of the use. Thus, if A 
 made a deed of bargain and sale and delivered it to B, for 
 a moment A became trustee to uses for B, the statute operat- 
 ing at once to transfer the legal title to B. If B's interest 
 was to arise on A's death, A remained the owner until his 
 death, when the property would go over to B, his heirs, de- 
 visees or assigns. In the same way a fee upon a fee could 
 be created by way of shifting use by a deed of bargain and 
 sale. This method was preferred to conveyances to a third 
 party as trustee, as it was much simpler, eliminating a 
 third party to the transaction, and became the recognized 
 mode of conveyance under the Statute of Uses.^ 
 
 If no valuable consideration was recited in the deed of 
 bargain and sale, and no consideration was actually paid, 
 the deed would be given effect as a covenant to stand seised, 
 provided a relationship of blood existed between the parties ; 
 if there was no such relationship, and no valuable considera- 
 tion was either recited or paid (the mere recital without 
 actual payment was enough to make it valid as a bargain 
 and sale) the deed was void. In any case of a common law 
 
 7. See § 196, ante, and authorities 9. Digby Hist. Law Real Prop. 
 cited. (5th ed.), 354-360; Rogers v. Eagle 
 
 8. See § 197, ante. Fire Co., 9 Wend. (N. Y.) 611. 
 
532 FiTTrrEE Estates. 
 
 deed, in which an attempt was made to create one of the 
 future estates void at common law as enumerated in the pre- 
 ceding section, the deed was given effect as a deed of bargain 
 and sale if any consideration was recited therein, whether 
 actually paid or not, or where a consideration was actually 
 paid, though not recited in the deed. Anything of value, 
 though nominal, was a sufficient consideration for this pur- 
 pose. If there was no such valuable consideration, but a 
 blood relationship existed between the parties, such com- 
 mon law deed was given effect as a covenant to stand seised, 
 and the future interest created therein was vaUd. The 
 courts regarded such a deed, though void as a common law 
 conveyance, as being at least a covenant on the part of the 
 grantor to stand seised of or to hold the property for the 
 grantee, which creates a use in equity if supported by a 
 sufficient consideration, either of value or of blood, such 
 use being operated on by the statute and converted into a 
 legal estate.^" 
 
 The one possible exception, clearly contrary to the funda- 
 mental principles involved, arises in the case of a contin- 
 gent remainder after a term of years created by bargain 
 and sale, or other deed under the Statute of Uses. If the 
 language used is language'of remainder it has been held that 
 it must stand or fall as a legal remainder, subject to the 
 rules of the common law governing contingent remainders, 
 and if limited after a term of years it will be void, exactly 
 as it would if created by deed at common law.^^ It is very 
 clear that such a limitation differs in no respect, in so fai' 
 
 10. Wyman v. Brown, 50 Me. 139; that the cases holding that a contin- 
 Shackelton v. Sebree, 86 111. 616 gent remainder by way of use lim- 
 (dicta, the court holding that execu- ited after a term of years have been 
 tory estates may be created by deed in effect overruled by the later cases 
 as well as by will). See preceding which settle beyond doubt that such 
 note; also Gray Perpetuities (2d ed./, a limitation contained in a will is 
 pp. 55, 56, and cases there cited. good as an executory devise, the 
 
 11. Digby Hist. etc. (5th ed.), 361, principle involved being the same in 
 362; Gray Perpetuities (2d ed.), §§ both cases. 
 
 68-60, the conclusion being reached 
 
ExECUTOBT Estates; Spehtginq and Shifting Ubes. 533 
 
 as this question is concerned, from other limitations which 
 would be void at common law, but are rendered valid when 
 created by deed under the Statute of Uses, such as a future 
 executory interest created by way of springing use, or a 
 fee upon a fee created as a shifting use. 
 
 Remainders, contingent and vested, could be created by 
 deed under the Statute of Uses, as well as present estates 
 in possession, and when so created they were subject to the 
 .iame rules as though created by common law deed. Deeds 
 of bargain and sale became the usual and accepted means of 
 conveying land, together with the deed of lease and re- 
 loase, feoffments with livery of seisin becoming obsolete at 
 an early day.^^ 
 
 From what has been said it is quite apparent that the 
 law of conveyancing was revolutionized by the Statute of 
 Uses and the Statute of Wills. Not only could future execu- 
 tory interests of all kinds be created by will, but they 
 could also be created by deed under the Statute of Uses. 
 Furthermore in every case of a common law deed in which a 
 valuable consideration was recited, or was paid in coimec- 
 tion with the transaction, or a relationship of blood ex- 
 isted, the deed was given effect as a covenant to stand 
 seised or a deed of bargain and sale. The only deeds, there- 
 fore, in which such executory interests would be void, were 
 those made and delivered to one who was not a blood re- 
 lative by way of gift without any consideration actually 
 paid, and without a recital of a consideration, a situation of 
 comparatively rare occurrence. Therefore in the great ma- 
 jority of cases of deeds made in the old common law form, 
 they will be given effect as deeds under the Statute of 
 Uses where that is necessary in order to give effect to a 
 future executory interest provided for by the terms of the 
 
 12. See § 314, post. Contingent created by common law deeds, and 
 
 and vested remainders created by were subject to exactly the same 
 
 deed under the Statutu of Uses dif- rules, like remainders created by will 
 fcred in no respect from remainders 
 
5<34 FuTtTEE Estates. 
 
 deed. Since the reign of Henry Vm executory interests 
 have been valid at law as well as in equity whether created 
 by will or by deed in any form, except in the rare cases 
 of common law deeds witliout consideration either recited or 
 paid, or without a blood relationship between the grantor 
 and grantee. 
 
 The nature of future executory interests, as distinguished 
 from remainders, is discussed in the section following. 
 
 § 252. The Modern Law of Future Executory Estates. — 
 It is now provided by statute in New York, Indiana, Michi- 
 gan, Wisconsin, Iowa, California, and a majority of the 
 other states, that each and every one of the executory in- 
 terests discussed in the last two sections may be created 
 by the ordinary deed, as well as by will or by deed of bar- 
 gain and sale or other deed under the Statute of Uses. In 
 other words the distinctions between remainders on the 
 one side, and executory devises and springing and shifting 
 uses on the other, have been swept away, the technical com- 
 mon law rules forbidding the creating of an estate which 
 would put seisin in abeyance, and forbidding the creating 
 of a fee upon a fee, or a future estate in derogation or a 
 precedent life estate being at last expressly abolished by 
 statute.^ 
 
 In several states the courts have arrived at the same 
 result without the aid of any statute, the reason for the 
 technical rules of the common law having ceased to exist 
 hundreds of years ago with the disappearance of feudalism.^ 
 
 1. N. Y. Real Prop. L. §§ 50, 63; Abbott v. Holway, 72 Me. 398; Gor- 
 Btim. Am. St. L., §s 1421, 1426. See ham v. Daniels, 33 Vt. 600; Sbackel- 
 Btatutea to this effect in Indiana, ton v. Sebree, 86 111. 616; Sabledow- 
 Miohigan, Wisconsin, Iowa, Minne- sky v. Arbuckle, 50 Minn. 475; Bor- 
 Bota, Nebraska, N. Dakota, S. Da- land v. Marshall, 3 Oh. St. 308. In 
 kota, California, Virginia, W. Vir- these cases it is held that as convey- 
 ginia, Kentucky, Mississippi, Texas ance by livery of seisin has been 
 tind Alabama. abolished or has become obsolete, the 
 
 2. Wyman v. Brown, 50 Me. 139; technical rules growing out of sua- 
 
The Modeen Law of Futtjee Executoet Estates. 535. 
 
 That the courts have persisted during the centuries that 
 have elapsed since the enactment of the Statute of Uses 
 and the Statute of Wills in continuing in life these rules, 
 which soon became obsolete after these statutes were en- 
 acted, since they would apply, as we have seen, only in 
 cases rarely occurring, and which were fetters upon the dis- 
 position of property from which the people were trying 
 to escape, is as severe an indictment of the reasonable- 
 ness and good sense of the courts as can be found anywhere 
 in the law. The principle of stare decisin does not make 
 the common law an unchanging immutable system, irre- 
 spective of the needs of a changing and developing society 
 from which no relief can be had except by way of statute, 
 though in the case of future estates the courts have made 
 it that and worse. Nothing is better settled than the princi- 
 ple that the common law has within itself the continuing 
 power of readjustment to new conditions, and that when a 
 rule of law becomes obsolete, the reasons for it having ceased 
 to exist, the rule itself must be declared at an end (parti- 
 cularly when the rule in question is hostile to the new condi- 
 tions which have arisen) and that the broad principles of 
 the common law will be extended to cover new situations 
 and needs as they arise in a way that is consistent with 
 established social progress. Yet in the case of future es- 
 tates these technical rules which, as we have seen, never 
 had any reason for their existence other than the narrow 
 and peculiar requirements of the feudal relation, have been 
 continued in existence hundreds of years after feudalism 
 had forever disappeared as part of the social system, and 
 after all possible reason for their existence had long since 
 ceased. It may, therefore, be asserted with confidence that 
 in those states in which these rules have not as yet been 
 
 pension of seisin have no longer any created by the statutory deed gener- 
 
 application, and estates to arise in ally provided for in the different 
 
 the future without any precedent es- states. 
 tate to support them may be freely 
 
536 FuTTTEE Estates. 
 
 expressly abolished by statute tlie courts either have de- 
 clared these rules as no lon'ger in existence because of 
 changed conditions, or will so declare when the question is 
 raised in the future.* 
 
 The net result, therefore, is that no real distinction now 
 exists, or should be recognized as existing, between re- 
 mainders and executory future estates. Whether the future 
 estate be a remainder or a future executory interest, it is 
 valid and will vest in possession at the time and in the 
 manner provided for by the grantor or devisor, provided it 
 does not violate the rule against perpetuities and involves 
 no condition precedent which is illegal or impossible. The 
 one question which arises, is the question discussed in a 
 preceding section with reference to the present law of re- 
 mainders, viz. : Have all conditions precedent on which the 
 future estate depends happened, or if the conditions are 
 subsequent, has the future estate been defeated by the haj)- 
 pening of a condition subsequent, on which the future in- 
 terest was to go over to another or to revert back to the 
 grantor or heirs of the devisor? What was said with refer- 
 ence to the present law of remainders * applies with equal 
 
 3. See last two preceding notes, even in these cases, seems to have 
 
 The only cases to which these rules been very inexpedient as well aa un- 
 
 would apply in any event after the reasonable. The maintaining of the 
 
 enactment of the Statute of Uses and distinction between remainders and 
 
 the Statute of Wills, were the rare executory interests had this impor- 
 
 cases of deeds by way of gift con- tant basis, that executory interests 
 
 taining no recital of even a nominal could not be destroyed by destruction 
 
 consideration to a person as grantee of precedent interests or by fine or 
 
 who was not a blood relative. To recovery, as contingent remainders 
 
 have developed and kept alive the could. But, as we have seen, these 
 
 mass of technical law involving dis- distinctions have been done away 
 
 tinctions between future estates ere- with, contingent remainders being 
 
 ated by way of executory devise and no longer subject to defeat in any 
 
 springing and shifting use, on the way except by failure of the contin- 
 
 one hand, and remainders on the genoy on which they depend, and 
 
 other hand, in order to preserve these fines and recoveries having been 
 
 technical rules in this rarely occur- abolished. See § 246, ante. 
 Ting class of cases, the reason for 4. See g 247, ante. 
 
 these rules having ceased to exist 
 
The Modeen Law of Futusb Exeoittoet Estates. 537 
 
 force to future executory interests which are not technically 
 remainders. They are future estates of the same nature, 
 and under the statutes referred to in a preceding section 
 as making future contingent interests in land inheritable, 
 devisable and alienable as estates in possession^ future 
 executory interests may be inherited, devised and con- 
 veyed whether they are contingent or vested. 
 
 The adherence of the courts to the technical rules limit- 
 ing the creating of future estates led to this peculiar re- 
 sult, viz.: that executory estates created by way of execu- 
 tory devise or springing or shifting use were regarded as 
 mere executory interests, not estates, and were therefore 
 never vested. For instance, a conveyance by way of spring- 
 ing use made by A to B in fee to take effect on the death 
 of A, or on the death of X, or ten years from the date of the 
 grant, or on any other event sure to happen, did not create a 
 vested interest in B, though it depended on no contingency, 
 the entire fee being regarded as continuing in A until his 
 death or the death of X, as the case might be, and then 
 springing up in B by operation of the Statute of Uses.^ The 
 owner of such executory future interest could not be seised, 
 therefore, so as to give rise to the right of dower or cur- 
 tesy,'^ and he could not sue the grantor or prior holder for 
 waste at law, his remedy being in equity by action for an in- 
 junction.* It is submitted, however, that under the modern 
 law as established by the statutes and decisions above re- 
 ferred to, this distinction between remainders and execu- 
 tory estate is no longer tenable. They may be and are 
 vested or contingent exactly as are remainders, and de- 
 pendent on exactly the same principles. They are usually 
 contingent, since they usually depend on a condition pre- 
 
 6. See § 246, ante, note 7. Talb., 44; Morton v. Funk, 6 Pa. St. 
 
 6. Fearne Cont. Eem. 1, Butler's 483. 
 ■ote; Gray Perpetuities (2d ed.), § 7. 2 Scribner Dower, 702-704. 
 
 114; Hopkins v. Hopkins, Cas. temp. 8. Co. Litt., 218b; Turner T. 
 
 Wright, 3 De G. F. & J., 234. 
 
538 FuTUEE Estates. 
 
 cedent, but they may be vested where the event on which 
 the future interest is to take effect is sure to happen, as in 
 the cases given above. Where land is conveyed to B to 
 take effect on the death of A, the grantor, it is highly 
 technical and unreasonable to say that the entire fee is in 
 A, B having only an executory interest, not amounting to 
 an estate. He is the present owner of the balance of the fee 
 over and above an estate continuing in A for his life only, of 
 exactly the same nature in all respects as if A had first 
 conveyed the fee to X who thereupon had reconveyed the 
 property to A for life, remainder to B.' It is high time that 
 empty technicalities of this kind be recognized for what 
 they really are, and that a mere difference in name without 
 any difference in substance no longer be permitted to con- 
 fuse and mislead lawyers and judges in the application of 
 the law on this subject. 
 
 The New York statutory scheme, followed substantially 
 in many states, does away with all distinction, even in name, 
 between remainders and executory estates, all being classed 
 as remainders as distinguished from reversions, and made 
 subject to the same rules of law.^" In snbstance the same 
 result has been accomplsihed in the other jurisdictions 
 above referred to, it being quite immaterial whether the 
 
 9. Wyman v. Brown, 50 Me. 139; the modern law, however, there is no 
 Acliorn v. Jackson, 86 Me. 315; reason whatever why he cannot re- 
 Brewer V. Hardy, 32 Pick. (Mass.) serve in himself a life estate or term 
 376; Steel v. Steel, 4 Allen (Mass.) of years, granting the balance of the 
 417; Graves V. Atwood, 52 Conn. 512; fee over to another as a vested fu- 
 Bissell V. Grant, 35 Conn. 388; ture estate. Whether it be called .-x 
 Hurst V. Hurst, 7 W. Va. 339. In remainder or an executory interest 
 most of these cases, particularly in is a mere matter of name, the infer- 
 tile three last cited, the court treats est being the same. It is the balance 
 such a limitation as a life estate re- of the fee in any event, belonging to 
 served in the grantor, remainder the grantee as a future estate, ex- 
 over. Technically the future interest actly like, in all respects, a vested 
 is an executory estate, since the remainder. 
 
 grantor cannot convey a life estate to 10. N. Y. Real Prop. L., §§ 35-40, 
 
 himself under the common law rule 69; 1 Stim. Am. St. L., §§ 1420-1437. 
 
 requiring livery of seisin. Under See § 338, ante, note 12. 
 
The Modekn Law of Futuee Exeoutoet Estates. 539 
 
 future estate is dependent on a precedent estate or not, 
 except in determining whether or not the estate has finally 
 vested in possession, it vesting in possession, if a remainder, 
 on the termination of the precedent estate and if a conting- 
 ent remainder, on the further happening of the contingency 
 on which the remainder depended; if an executory interest, 
 on the happening of the event on which the executory es- 
 tate was to take effect.^ ^ 
 
 11. See §§ 344, 246, 347, ante. 
 
 A strange survival of the teclmica)- 
 ities growing out of tlie distinctions 
 between executory estates and re- 
 mainders is the rule that where 
 property is granted or devised to A 
 in fee, with the provision that so 
 much thereof as may be undisposed 
 of by him on his death shall then 
 go to B in fee, the limitation to B 
 is void, being inconsistent with the 
 power of alienation given to A, and 
 therefore repugnant to A's estate. 
 The technical reason for this was 
 that a fee upon a fee was good only 
 as an executory estate, which could 
 not be defeated, as a contingent re- 
 mainder could, by a fine or recovery, 
 or the destruction or termination of 
 the precedent life estate, tliat is, it 
 could not be defeated by any act 
 of the holder of the first es- 
 tate; but as the holder of the first 
 fee in the above case was given 
 power to defeat the future estate by 
 an alienation or other disposition of 
 the property, the future estate can- 
 not be an executory estate by execu- 
 tory devise or shifting use, and is 
 therefore void. Van Home v. Camp- 
 bell, 100 N. Y. 287; Kelley v. Meins, 
 135 Mass. 231; Foster v. Smith, 156 
 Mass. 379; Hoxsey v. Hoxsey, 37 N. 
 J. Eq. 21: Mulvane v. Rude, 146 
 Ind. 476; Karker's i\pp., 60 Pa. St. 
 
 141; Lambe v. Dayton, 182 111. 110. 
 In case the first fee is a determin- 
 able fee, the Illinois court held that 
 this limitation over was valid, a 
 distinction without a difference. 
 
 Since there is no longer a valid dis- 
 tinction between contingent remain- 
 ders and contingent executory inter- 
 ests, neither being subject to defeat 
 by act of the prior owner, there is 
 no longer ever an excuse for this ab-, 
 surd rule. There was never any rea- 
 son for it, it being a good example of 
 the sophistry which has made the 
 law of future estate complicated and 
 obscure. There is no reason, either 
 in the nature of the estates involved 
 or based on public policy, why the 
 owner in fee may not provide that 
 the estate of the first donee in fee 
 should come to an end on his death 
 in case he had not theretofore dis- 
 posed of the property, and should 
 then go over to another in fee. It is 
 simply terminating the first fee on a 
 given contingency, and causing the 
 second fee to then arise, exactly as 
 in any case of a conditional limita- 
 tion on any other contingency which 
 involves nothing illegal or impossible. 
 Every such limitation over is neces- 
 sarily in derogation of the first es- 
 tate, and repugnant to it, yet that 
 has never been an objection to such 
 estates since the enactment of the 
 
540 FxjTTTEE Estates. 
 
 The general effect of tlie modern cases is to treat execu- 
 tory interests and remainders in exactly the same way^ 
 the changes effected in the law either by statute or other- 
 wise removing all material distinction or difference. Thns 
 where property is devised to a person for life, remainder 
 to his children, but in case any child should die before the 
 life tenant his share to go to the surviving children, or 
 like limitations over by way of conditional limitation, the 
 executory interest is treated in all respects as a remainder 
 would be, and subject to the same rules.^^ In determin- 
 ing whether an executory interest is contingent or vested 
 the same rules of construction are applied to future execu- 
 tory interests as apply to remainders.^* Gifts to a class 
 as executory interest limited after a fee are subject to the 
 same rules governing similar gifts by way of remainder 
 limited after a precedent life estate." Future executory 
 interests in the alternative are treated in the same way as 
 contingent remainders in the alternative, and the same 
 is true as to cross executory interests, with one important 
 qualification. We have seen that where land is given to A, 
 B and C for life, and on the death of the survivor to X in fee^ 
 
 statute of Uses and the Statute of In New York, the rule of thff 
 
 Wills. This rule is a going back to cases first above cited has been 
 
 the legal dark ages before the enact- changed by § 57, N. Y. Real Prop, 
 
 ment of those statutes and the Law, providing that an expectant es- 
 
 adopting in part of a rule which, as tate may be defeated in any way pro- 
 
 we have seen (§ 238 ante), never vided by the person creating the es- 
 
 had any valid reason even under tate, and that it shall not for that 
 
 feudalism. reason be adjudged void in its crea- 
 
 It is settled that where an estate tion. See Leggett v. Firth, 132 N. 
 
 is given to A for life, with full power Y. 7. 
 
 of disposition in fee, remainder as to 18. Van Brunt v. Van Brunt, 111 
 
 so much of the property as remains N. Y. 178; Patton v. Ludington, 103 
 
 on A's death, to B in fee, the vested Wis. 627. See eases, § 241, note 7, 
 
 remainder in B subject to the power ante; 2 Jarman Wills, 1010, 1011. 
 
 is valid, yet exactly the same result 13. See §§ 340, 241, 342, ante, and 
 
 is aceomplislied. Kelley v. Meins, cases cited thereunder. 
 
 135 Mass. 231; Hall v. Otis, 71 Me. 14. See § 242, ante, and cases cited. 
 .326; Mulvane v. Eude, 146 Ind. 476. 
 
The Modebn Law of Future Executoey Estates. 541 
 
 •cross remainders for life will be implied between A, B and 
 C until tbe death of the survivor." But where a gift is 
 made to A, B and in fee, and on the death of the survivor 
 without issue or on any other contingency, then to X in 
 fee, there are obviously no cross executory limitations which 
 may be implied between A, B and C. On the death of the 
 first two the interest of each passes to his heirs, subject to 
 be defeated by the happening of the contingency which will 
 •defeat the estate of all three and cause it to go over to X.*" 
 Executory interests, like remainders, will be accelerated by 
 the earlier termination or failure of the precedent estate. 
 Thus if land is devised to A in fee, but if A die without 
 children living at his death to B in fee, and A dies during 
 the life of the testator, or his estate proves to be void for 
 any reason, the estate of B immediately vests in possession 
 •exactly as if it were a remainder limited after a life estate 
 in A, in the same circumstances. In the case of executory 
 interests as of remainders any condition precedent must 
 happen before the estate can vest in possession." 
 
 As already explained, an estate on conditional limita- 
 tion, a fee upon a fee whether created by deed or will, con- 
 tinues in the first taker as an absolute fee in case the sec- 
 ond fee is void as violating the rule against perpetuities, or 
 for any other reason, unless the first estate is a fee upon 
 limitation or a base or qualified fee which ends in any 
 «vent on the happening of the limitation on which it de- 
 pends, irrespective of the validity or invalidity of the sec- 
 ond fee.^* Where a remainder is void the precedent life 
 estate or estates for years comes to an end' at the time fixed 
 for its natural termination, irrespective of the validity or 
 invalidity of the remainder. This arises from the nature 
 of the precedent estate in both cases, not from any funda- 
 mental difference between remainders and future executory 
 interests. 
 
 15. See § S43, note 11. Miller's Will, 161 N. Y. 71 ; Bur- 
 
 16. 2 Jarman, Wills, 1358; Fenbv bank v. Whitney, 24 Pick. 146; Mc- 
 ». Johnson, 21 Md. 111. Gree-vy v. McGrath, 152 Mass. 24. 
 
 17. 2 Jaitnan Wills, 1C42; In re 18. See § 235, note 3, ante. 
 
642 FuTUEE Estates. 
 
 Though executory interests could be transferred under 
 the old law only by way of release or by estoppel or in 
 equity, being subject to the same rules governing contingent 
 remainders, they could always, like contingent remainders 
 be inherited or devised." Under the modern statutes they 
 may be conveyed, inherited or devised as freely as states 
 in possession, the statutes providing for the transfer of 
 contingent remainders applying in terms to all future execu- 
 tory interest as well.*" 
 
 It is clear, therefore, that the modern law of future es- 
 tates makes no real distinction between remainders and fu- 
 ture executory interests. The questions that may now arise 
 as to all kinds of future estates are limited to two classes of 
 cases — (a) cases in which the question is whether or not 
 the future interest is subject to a condition or conditions 
 precedent, or to conditions which will defeat the estate after 
 it has vested, and whether or not the condition has hap- 
 pened in either case; (b) whether or not the future estate 
 violates the rule against perpetuities. 
 
 19. Jackson v. Waldron, 13 Wend. 20. See § 246, iwte 7. 
 
 (N. Y.) 178; HaU v. Chaffee, 14 N. 
 U. 215. See § 246, ante. 
 
Natuee akd Development op Powees. 543 
 
 CHAPTER XIV. 
 
 Powers. 
 
 § 253. Nature And Development of Powers. — A power is 
 II right in any person created by the deed or will of the owner 
 of real property, by virtue of which the donee of the power 
 is authorized to create an estate or interest in the land, or 
 to create a lien upon it, or to convey it for any purpose 
 provided by the donee of the power.^ The person 
 creating the power, particularly in cases of powers of ap- 
 pointment, is called the donor, the person who is to exercise 
 the power is called the donee, and the person in whom an 
 estate or interest is to be created by its exercise is called 
 the appointee.^ The distinguishing feature of a power is 
 that it operates when it is exercised and the resulting es- 
 tate or interest arises, not by virtue of the deed or will 
 made in execution of the power, but by the force and effect 
 of the original instrument by which the power was created. 
 
 Powers as interests in land giving rise to future estates 
 have no connection with so-called powers arising out of 
 agency. When an agent is authorized to execute a deed or 
 lease for his principal his act is the act of his principal, 
 having full force and effect of itself without reference to 
 any former instrument, while an estate created by the ex- 
 ercise of a power relates back to the former instrument 
 which created the power, taking its origin and validity 
 from that instrument. There is no agency as such involved 
 in a real property power. Indeed, powers are usually 
 created to be exercised after the death of the donor, whi^jh 
 would revoke any agency in the donee,^ 
 
 1. A power is an authority to do fully perform. N. Y. Real Prop, h., 
 
 an act in relation to real property, § 131. 
 
 or to the creation or revocation of 2. 1 Tiffany Real Prop., 610; see 
 
 an estate therein, or a charge there- Whitlock v. Washburn, 62 Hun (N. 
 
 on, which the owner, granting or re- Y.) 369. 
 
 Berving the power might himself law- 3. 4 K-ent Com., 315; Sugdan 
 
5i4 POWEES. 
 
 The donee of the power is not a trustee. He gets no title 
 and therefore can transfer none through his own act. His 
 act in creating an estate in exercise of the power becomes 
 effective only through the operation of the original deed or 
 will creating the power,* 
 
 The nature of powers may be best comprehended by con- 
 sidering the way in which they arose historically. Before 
 the Statute of Uses the owner of land might convey it to a 
 trustee for the use of such persons as might be appointed by 
 X, and thereafter, upon the appointment of the beneficiaries 
 by X, the trustee would be compelled by equity to hold the 
 property for their benefit, a springing use arising in their 
 favor. In the same way the trustee might be directed to 
 hold for the use of A and his heirs, but if A should die with- 
 out issue then for the use of such person or persons as A 
 might appoint by deed or will. On A's death without issue 
 a shifting use would arise in favor of the persons so ap- 
 pointed by A. Therefore Chancellor Kent speaks of a power 
 as " a mere right to limit a use."" The Statute of Uses 
 
 Powers, 45, 199; 2 Austin Jurisp. Uses is by the creation of what are 
 
 (3(1 ed.), 883; Weber v. Bridgman, called powers of appointment, that 
 
 113 N. Y. 600; Christy v. PuUiam, is, conferring on a person a power of 
 
 17 111. 59. disposing of an interest in land? 
 
 4. Brown v. Higgs, 8 Ves. 570, 5 quite irrespective of the fact whether 
 Ves. 495; Smith v. Floyd, 140 N. Y. or not he has any interest in the 
 337; Towler v. Towler, 143 N. Y. land himself. • • * The estate 
 371; Mut. Ins. Co. v. Everett, 40 N. which passes under the power of ap- 
 J. Eq. 345. See, also, § 254, notes pointment comes not from the donee 
 3 and 4, post, as to powers in trust, of the power, but from the original 
 
 5. 4 Kent Com. 316. "In truth settler; the only difference between 
 they (powers) were future uses to an interest thus created and an im- 
 be designated by tlie person to wliom mediate conveyance being that, la- 
 the power was given; these,' when stead of the uses being declared by 
 they arose, equity compelled the the original settler at the time of the 
 trustee to observe." Sugden Powers, conveyance of the legal estate, it is 
 11. left to a third person to declare 
 
 One of the commonest modes of them." Digby Hist. L. Real Prop, 
 calling into operation the Statute of (5th ed.), 362, 363. 
 
Different Kinds of Powees. 545 
 
 turned the estates created by tlie exercise of such powers of 
 appointment into legal estates, exactly as in the case of 
 other future executory interests heretofore discussed.® Af- 
 ter the enactment of the Statute of Wills similar powers of 
 appointment created by will were given effect under the 
 liberal policy of the courts in construing and enforcing wills 
 by giving effect to the intent of the testator^ The estates 
 resulting from the exercise of powers were remainders if 
 limited after precedent estates, or executory interests if 
 they could not take effect as remainders, exactly as with 
 other interests created by deed under the Statute of Uses or 
 by will, as heretofore explained.* 
 
 Powers may exist in connection with equitable or trust 
 estates as well as legal estates, and are subject to the same 
 general principles in each case.® The power of sale fre- 
 quently given trustees is an illustration of a legal power 
 which not only attaches to the legal estate of the trustee, 
 but also binds the equitable estate of the beneficiary of the 
 trust, ^o 
 
 § 254. Diffvjrent Kinds of Powers. — Powers of appoint- 
 ment are the most important class, the law of powers having 
 originated and developed in connection with them. These 
 are sufficiently illustrated in the preceding section. A power 
 of this kind is called a " general " power if the donee is 
 given entire discretion to appoint anyone, including him- 
 self, without restriction as to the estate appointed, while it 
 is called ' ' special " or " limited, ' ' if the donee is restricted 
 to particualr persons, or a particular class, or is otherwise 
 limited as to the exercise of the power and the estates to be 
 created thereby.* 
 
 6. See preceding note. As to spring- 9. Sugden Powers, 200. 
 
 Ing and sliifting uses, see § 251, ante. 10. Lewin Trusts, 674. See § 256, 
 
 7. Litt., § 169; Co. Litt., 1121), post, as to powers in testamentar/ 
 181b, 236a; Sugden Powers, 111-11.5, tnistees to sell, etc. 
 
 147, 196. 1. Co. Litt., 271b; Digby Hist. £> 
 
 8. 1 Tiffany Real Prop., 608. As to Real Prop. (5th ed.), 363. 
 executory devises, see § 250, ante. 
 
54:6 PowEES. 
 
 The exercise of a power of appointment, operating as it 
 does by virtue of the original instrument creating the pow- 
 er, necessarily defeats the estates or interests of those to 
 whom the property has passed subject thereto, and the right 
 of dower or curtesy of the wife or husband of any such 
 persons.^ 
 
 Powers in trust, as distinguished from discretionary pow- 
 ers, are sometimes called imperative. In such case an im- 
 perative duty to exercise the power in favor of others is 
 imposed on the donee, and equity regards the power as in 
 the nature of a trust, and will compel the donee to carry it 
 out if possible; in case of the donee's death or refusal to ex- 
 ercise the power, equity will cause it to be carried out as 
 nearly as possible in accordance with the wishes of the 
 donor.* Thus a power of sale or of appointment or other 
 power in favor of a class as the donee might appoint, will 
 be enforced by equity in case of his death or refusal to act, 
 in favor of all the members of the class in equal shares.* 
 Where the power is discretionary, resting entirely on the 
 discretion of the donee, he cannot be compelled to exercise 
 the power at law or in equity.^ So, also, where it is bene- 
 
 2. Sugden Powers, 478, 480; ried out. Bull v. Bull, 8 Conn. 47. 
 Christy v. PuUiam, 17 111. 59; I See cases in preceding note. 
 Scribner Dower, 294; Hay v. Pung, 5 5. Sugden Powers, 588; Lewin 
 Barn. & Aid. 561. Trusts, 676; 1 Perry Trusts, § 248. 
 
 3. Brown v. Higgs, 8 Ves. 570, 5 In New York, and several other 
 Ves. 495; In re Kirwan's Trusts, L. states which have followed New 
 R., 25 Ch. Div. 373; Towler v. Tow- York, powers are classified as f oi- 
 ler, 142 N. Y. 371; Mut. Life Ins. lows: N. Y. Real Prop. L., § 133. 
 Co. V. Everett, 40 N. J. Eq. 345; A power, as authorized in this article, 
 Greenough v. Welles, 10 Gush. is either general or special, and either 
 (Mass.) 571; Osborne v. (Jordon, 86 beneficial or in trust. § 134. A power 
 Wis. 93. is general, where it authorizes the 
 
 4. 1 Perry on Trusts, §§ 250, 255; transfer or encumbrance of a fee, by 
 Doylcy T. Atty-Gen., 3 Eq. Gas. Abr. either a conveyance or a will of, or a 
 195. charge on the property embraced in 
 
 Where a definite scheme of diatri- the power, to any grantee whatever. 
 tnition is indicated the intention of 5 135. A power is special where 
 Uw testator will, of course, be car- either: 1. The persons or cUbs of 
 
Ceeation and Incidents of Powees. 
 
 547 
 
 ficial, being solely for the benefit of tbe donee, it may or may 
 not be exercised at bis discretion. 
 
 The power of a life tenant to lease tbe property, generally 
 for a term not to exceed twenty-one years by statutory pro- 
 vision, is called a power appendant, since appendant to tbe 
 life estate, modifying and extending it, as tbe term created 
 in exercise of tbe power is not brougbt to an end by tbe death 
 of the life tenant.* These are to be distinguished from 
 powers collateral, the donee having no estate in tbe prop- 
 erty, and powers in gross, the donee having an estate which, 
 however, will not be affected by the exercise of tbe power, 
 as a life tenant with power to appoint the persons who will 
 take the property on his death.'' 
 
 § 255. Creation and Incidents of Powers. — Any language 
 sufficient to express the intent to create a power, if contained 
 
 persons to whom the disposition of 
 the property under the power is to 
 be made are designated; or, 2. The 
 power authorizes the transfer or en- 
 cumbrance, by a conveyance, will or 
 charge, of any estate less than a fee. 
 § 136 provides that a power is bene- 
 ficial when no one but the donee 
 (called the grantee in New York) 
 has any interest in its execution. 
 § 137 provides that a general power 
 is in trust when any person other 
 than the donee is entitled to any 
 proceeds or benefits from the exercise 
 of the power, while § 138 provides 
 that a special power is in trust when 
 either (1) it authorizes a disposition 
 or charge to any person or class other 
 than the donee; or (2) when any one 
 other than the donee is entitled to 
 any of the proceeds or to any other 
 benefit therefrom. 
 
 6. Maundrell t. Maundrell, 10 Ves. 
 Jr., 246b. The necessity of limiting 
 the period for which the lease may be 
 
 made is apparent. See 2 Bl. Com., 
 317, 323; Cruise Dig. Real Prop. L., 
 Tit. XXXII, Ch. XV. The effect of 
 this special power is to enhance the 
 value of the life estate, making it 
 possible for the life tenant to let the 
 premises to much better advantage, 
 since the tenancy does not depend on 
 his life, but will continue for the full 
 term in any event. 
 
 The N. Y. Real Prop. L., § 143, 
 subdiv. 2, provides that such power 
 may be granted to a, tenant for life 
 of the land to make leases thereof 
 for not more than twenty-one years, 
 and to commence in possession dur- 
 ing his life. A power to make a 
 lease for a greater period is void as 
 to the excess. For similar statutes 
 in Michigan, Wisconsin and other 
 states, see 1 Stim. Am. St. L., § 1652. 
 
 7. Edwards v. Sleater, Hardr. 410, 
 415; Sugden, Powers, ill; Smifk 
 v. Somes, 1 Oh. 250. 
 
648 PowEES. 
 
 in a deed or will sufficient to convey or create an interest 
 in lands, is all that is required, no special form being nec- 
 essary.^ Powers will be implied though not expressly 
 created when the power is necessary to carry out the in- 
 tention of the testator. Thus an executor who is required 
 to divide the testator's property among several persons 
 which cannot be divided except by a sale and distribution of 
 the proceeds, will be held to have an implied power of sale." 
 So Avhere the testator directs a sale to be made, without 
 designating the persons who shall sell, the executor has an 
 implied power to sell where he is authorized to distribute 
 the proceeds.' For like reasons where property is given 
 to a tenant for life, with a limitation of what may remain at 
 the death of the life tenant to others, a power to use up or 
 sell or otherwise dispose of the property is clearly implied.* 
 Where a life tenant is given a general power to dispose 
 of the property in fee, he is substantially owner in fee since 
 
 1. 4 Kent Com. 319; Sugden Pow- Where the language implies a gift of 
 ers, 6, 103, 104. the land to the executors for the pur- 
 
 2. Corse v. Chapman, 153 N. Y. pose of sale a trust arises, otherwise 
 4G6; Stoffe V. McGinn, 178 111. 46. only a power in trust. Co. Litt. 113a, 
 
 3. Sugden Powers, 115. et seq ; Hall 181b; Moncrief v. Ross, 50 N. Y. 431, 
 V. Hall, 137 Mass. 168; Lippincott's 435. In New York the statute (R. 
 Ex'r V. Lippincott, 19 N. J. Eq. 131; Prop. L., § 97) provides that a devise 
 Mandlebaum v. McDowell, 39 Mich, to an executor or other trustee for 
 78; Rankin v. Rankin, S'! 111. 293. the purpose of sale or mortgage, 
 
 4. SuL'don, VowPTs 115; Paine v. where the trustee is not also em- 
 Barnca, 100 Mass. 470; Henderson v. powered to receive the rents and 
 Blackburn, 104 111. 337; Roberts v. profits, shall not vest any estate in 
 Lewis, 153 U. S. 367; Devoue v. Fan- him, the limitation taking effect as a 
 ning. 2 Johns. Ch. (N. Y.) 252. power in trust. This is pursuant to 
 
 Whether executors who are directed the general scheme in New York, 
 
 to sell property and distribute the making all express trusts except 
 
 proceeds take as trustees, or as hav- charitable trusts and the four classes 
 
 ing only a power in trust, is a ques- permitted by § 96, void as trusts, but 
 
 tion of construction, turning on giving effect to them whenever cap- 
 
 whether it was intended that the legiil able of being so enforced as power* 
 
 title should pass to them or uot. m trust. See § 200, ante. 
 
Execution of Po-wees. 549 
 
 he may execute the power at any time in favor of himself. 
 The courts have taken the position, however, that his credi- 
 tors can reacli only his life estate until after the power is 
 exercised, and then, whether the power has been exercised 
 in his own favor or in favor of others, his creditors may 
 reach the entire fee on the principle that he ought to have 
 executed the power in their favor. The only apparent rea- 
 son why they cannot reach the fee before the exercise of 
 the power is that the power may not be exercised at all, in 
 which case the donee has only a life estate.' In New York, 
 Michigan, Wisconsin, and Minnesota, and other states it is 
 now provided by statute that the creditors of the donee of 
 a general power which is not a power in trust in favor of 
 others, may reach and apply the fee to the satisfaction of 
 their claims, the donee being regarded as owner in fee with 
 respect to them whether he has any other estate or not, and 
 whether or not he has executed the power. If no interest 
 over to another is provided for in case the power should 
 not be exercised he is absolute owner for all purposes.* 
 
 § 256. Execution of Powers. — The execution of a power 
 involving the exercise of personal discretion cannot be de- 
 legated by the donee to another, for reasons which are ob- 
 vious.^ But where no such discretion is involved, as in the 
 case of a general power of appointment equivalent to abso- 
 lute ownership, the donee may delegate the power to others 
 in any way he pleases not in violation of the rule against 
 perpetuities.^ If the power be given to a donee " and his 
 
 6. Sugden Powers, lSO-134; 4 Kent Y. 433; Swarthout v. Ranier, 143 N. 
 
 Com. 319; Clapp v. Ingraham, 136 Y. 499. 
 
 Mass. 200; Kiefel v. ICeppler, 178 Pa. 1. Sugden Powers, 179; 4 Kent 
 
 St. 173. Com. 337; Wilson v. Mason, 158 111. 
 
 6. This is the net result of the pro- 304; Lindley v. Keim, 54 N. J. Eq. 
 
 visions of the New York Eeal Prop. 413; Wickersham v. Savage, 58 Pa. 
 
 Law, §§ 149-164, inc. For statutes in St. 3C5. 
 
 other states, see 1 Stim. Am. St. L., 2. Sugden Powers, 181, 195; Crooke 
 
 § 1656. See Ackerman v. Gorton, 67 v. County of Kings, 97 N. Y. 421. 
 N. Y. 63; Matter of Moehring, 154 N. 
 
650 
 
 POV^EES. 
 
 assigns " it may be transferred to another to be executed 
 by him.* 
 
 In the simple case of a power given to a person or to two 
 or more who are not executors or trustees, the right to ex- 
 ercise it ends on the death of any one of them, since they 
 must act together in the absence of an express provision to 
 the contrary.* But where a power is given to executors or 
 trustees as a class the power may be exercised while one or 
 more survive.^ If some renounce or fail to qualify for any 
 reason the power may be exercised by the others, by virtue 
 of the statute 21 Henry VIEE, ch. 4, which has been generally 
 reenacted or adopted in the United States.^ 
 
 A power given to a sole or surviving trustee or executor, 
 will not survive to his successor in the absence of statute,^ 
 
 3. Sugden Powers, 180. 
 
 4. Tallet v. Tallet, 3 Pr. Wms. 489; 
 Montefion v. Brown, 7 H. L. Cas. 261; 
 Glover v. Stillson, 56 Conn. 316; 
 Winslow V. B. & O. E. Ck)., 188 U. S. 
 646. 
 
 5. Co. Litt. 113b; 4 Kent Com. 326; 
 Bradford v. Monks, 132 Mass. 405 
 (by statute in Mass. new trustees 
 have same powers as original trus- 
 tees) ; Weinar v. Path, 43 N. J. Law 
 1 (power exists in single surviving ex- 
 ecutor) ; In re Murphy's Est., 184 Pa. 
 St. 310 (sole surviving executor has 
 power). 
 
 6. Denton v. Clark, 36 N. J. Eq. 
 534; Warden v. Richards, 11 Gray 
 (Mass.) 277; Wardwell v. McDowell, 
 31 III. 364; Neel v. Beach, 92 Pa. St. 
 231. See 4 Kent Com. 336, note d. 
 
 In New York the Real Property 
 Law, § 166, provides that where a, 
 power is vested in two or more per- 
 sons all must join in its execution; 
 but if before its execution one or 
 more should die the power may be 
 executed by the survivor or survivors. 
 This, of course, does away with the 
 
 distinctions in the text between trus- 
 tees and executors and others in the 
 execution of powers after the death 
 of a donee, the power being subject 
 to execution by the survivors in all 
 cases where the testator has not ex- 
 pressed a contrary intent. See Kis- 
 sam v. Dierkes, 49 N. Y. 602 (power 
 of sale conditional on grantor's join- 
 ing made void by grantor's death ) ; 
 Fleming v. Burnham, 100 N. Y. 1 
 (title need not be taken by vendee 
 where one of executors with power 
 has not renounced, or where it is 
 doubtful whether he has renounced 6t 
 not, he not having executed the deed 
 tendered) . 
 
 7. Lewin Trusts, 274, 684, 685; 1 
 Perry Trusts, §§ 387, 503; Security 
 Co. V. Snow, 70 Conn 288. As to stat- 
 utes permitting the administrator 
 with the will annexed to act, see 
 Potts V. Breneman, 182 Pa. St. 295; 
 Elstner v. Fife, 33 Oh. St. 358. In 
 Illinois such administrator has no 
 right to act in any case of a power. 
 Nicnll V. Scott, 99 ni. 539; Bigelow ▼. 
 Cady, 171 111. 229. 
 
Execution of Powees. 651 
 
 unless it appear that it attached to the oflSce and involved no 
 personal discretion in the individual named, in which case it 
 may be exercised by his successor.* 
 
 , Powers coupled with an interest in the property, such as 
 powers of sale in mortgagees, and powers in trust for the 
 benefit of others involving an imperative duty imposed on 
 the donees may be executed by the survivors in case of the 
 death or incapacity of any of the donees.® The intent seems 
 clear in cases of this kind, that the power should continue in 
 the survivors. 
 
 No particular form of instrument is required in executing 
 a power, provided it be sufficient in form to create the in- 
 terest or estate intended, whether it be in the form of a 
 deed, will or other writing. But if it is ordered to be ex- 
 ecuted by will it cannot be executed by deed, and vice versa}* 
 At common law the utmost strictness was maintained in 
 requiring punctilious compliance with every formality pre- 
 scribed by the donor. By statute in England, New York, 
 and many states, though it is still necessary to execute the 
 power by deed rather than by will or by will rather than 
 by deed, if the donor has so expressly provided, mere un- 
 essential formalities may be dispensed with, and the power 
 is valid though some unessential illegal act is prescribed," 
 
 8. Clifford v. Worrell, 22 App. Div. 9. Co. Litt. H2b; Osgood v. Frank- 
 (N. Y.) 470; Lakey v. Kortriglit, 133 lin, 2 Johns. Ch. (N. Y.) 1, 20; Ben- 
 N. Y. 450; Bradford v. Monks, 132 neson v. Savage, 130 111. 352. 
 Mass. 405 (new trustee or executor 10. 4 Kent Com. 330; In re Jack- 
 has power of original trustee by stat- son's Will, L. R. 13 Ch. Div. 189; 
 ute) ; Drummond's Adm'rs v. Jones, Matter of Gardner, 140 N. Y. 122 
 44 N. J. Eq. 43 (may be exercised by (general power of disposition includes 
 successor though discretion be in- power to devise as well as to con- 
 volved) ; Naundorf v. Schumann, 41 vey) ; Wooster v. Cooper, 59 N. J. Eq. 
 N. J. Eq. 14 (power did not devolve 204. 
 
 on executrix with will annexed, dis- 11. 1 Vict. c. 26; N. Y. Real Prop, 
 
 cretion being involved); Sites v. L., §§ 165, 167-172; 1 Stim. Am. St. 
 
 Eldredge, 45 N. J. Eq. 632; Bailey t. L., §§ 1658, 1959; 4 Shars & B. L. Caa. 
 
 Brown, 9 E. L 79. 46, 39. 
 
552 PowBES. 
 
 tlie power in such, case being void at common law because 
 of the illegal act involved in its execution.*' 
 
 Apart from mere formalities, however, the power can be 
 executed only in accordance with the intentions of the donor 
 carried out with exactness as to every material matter in- 
 volved. Thus a mortgage cannot be made under a power 
 of sale, or a conveyance under a power to mortgage." Nor 
 does a power of sale create the right to exchange, or vice 
 versa.^* A power of appointment among " issue " gives 
 the right to grandchildren or other descendants as well as 
 to children of the ancestor, though grandchildren could not 
 be appointed if the power was to appoint children only.^' 
 
 If the intent to execute the power exists, the power is 
 validly executed though the deed or will executing it con- 
 tain no reference to it.** Where the instrument could have 
 no other valid operation, as where the donee has no estate in 
 the land, or a lesser estate than that conveyed by his deed, 
 it is always given effect as a valid execution of the power." 
 
 12. Sugden Powers, 350. 15. 4 Kent Com. 345; Horwitz T. 
 
 13. Woerz v. Rademacher, 130 N. Y. Morris, 49 Pa. St. 813. § 172 N. Y. 
 63; Kent v. Morrison, 153 Mass. 137 Real Prop. Law provides that the in- 
 (holding that unrestricted power of tention of the donor, as to time, man- 
 «ale includes power to mortgage) ; ner and conditions of the execution 
 Atwater v. Perkins, 51 Conn. 188; of the power must be observed, sub- 
 Loebenthal v. Raleigh, 36 N. J. Eq. ject to the power of the Supreme 
 1&9; Campbell v. Poster Howe Ass'n, Court to supply a defective execution, 
 163 Pa. St. 609. But where the pur- as provided for in another section, 
 pose is to raise money for certain ob- 16. Sugden Powers, 289 ; Lee v. 
 jects named it may be raised by Simpson, 134 U. S. 573; Chase v. 
 mortgage or sale under power of sale. Ladd, 155 Mass. 417; Scott v. Bryan, 
 Loebenthal v. Raleigh, 36 N. J. Eq. 194 Pa. St. 41; Loclcwood v. Mildeber- 
 169- ger 159 N. Y. 181 (will purporting to 
 
 14. 2 Perry Trusts, § 769; Heard v. dispose of all of testator's property 
 Read, 171 Mass. 374; Woerz v. Eade- operates as execution of power of 
 maoher, 120 N. Y. 63; Russell v. Rus- appointment in testator unless intent 
 sell, 36 N. Y. 581 (power of sale for to contrary appears expressly or by 
 benefit of legatees not well executed necessary implication). 
 
 by a conveyance to a legatee in pay- 17. White v. Hicks, 33 N. Y. 383 ; 
 
 ment of a debt due liim from the tes- McCreary v. Bomherger, 151 Pa. St. 
 *"•*'""'• 333, and cases in preceding Bote. 
 
Execution of Powees. 553 
 
 But where he has an interest in the property affected -which 
 the instrument may be reasonably construed as transferring, 
 it will be construed as passing only that interest, unless the 
 power is referred to in some way.^^ By statute in England, 
 New York, Pennsylvania, Michigan and several other states, 
 it is now provided that a will by which the donee devises 
 generally all of his real property will be construed as in- 
 cluding property embraced in a power to devise, reversing 
 the common law rule.^* Except in the case of wills, how- 
 ever, a transfer of " all my real estate " or " all my inter- 
 est " in certain described real estate, in which the donee has 
 an interest which could be the subject of the deed, the 
 power is not exercised thereby, unless expressly referred to, 
 and only the interest of the donee passes.^" 
 
 All conditions of execution provided for in the instrument 
 creating the power must be complied with. If the consent 
 of a third person to a sale under the power is required it 
 must be secured.*^ If a sale is to be made under the power 
 only when required for a stated purpose, as to pay debts, 
 or to support a person named in case of need, the debts 
 must exist or the need must be apparent in order that a valid 
 sale may be made.** 
 
 statutes in New York and some other 111. 275; Bingham's App., 64 Pa. St. 
 
 states so expressly provide, being 345. 
 
 merely declaratory of the common 19. 1 Vict. ch. 26, § 27; N. Y. Real 
 
 law rule. N. Y. Real Prop. L., § 175; Prop. L., § 176; 1 Stim. Am. St. L. 
 
 1 Stim. Am. St. L., § 1659, 4 Shars & § 1659; 4 Shars & B. Lead. Cas. 62. 
 
 B. Lead. Cas. 63. 20. See cases in note 18, supra. 
 
 In some cases the view is taken 21. Sugden 252; Kessam v. Dierkes, 
 
 that where the donee has a life es- 49 N. Y. 602; Barber v. Gary, 11 N. 
 
 tate, though his deed purports to Y. 397; Richardson v. Crocker, 73 
 
 convey a fee, the principle stated does Mass. 190. 
 
 not apply, his life estate only passing By § 174, N. Y. R. Prop. L., aa 
 
 Mut. Life Ins. Co. v. Shipman, 119 N. amended in 1896, where the consent 
 
 Y. 324; Lardner v. Williams, 98 Wis. of more than one third person is re- 
 
 514. That this is a narrow and illib- quired, and any of such persons die, 
 
 eral construction seems self-evident, the consent of the survivors is suiB- 
 
 18. Hollister v. Shaw, 46 Conn. 248 ; cient, unless the power provides to 
 
 Meeker v. Breintnall, 38 N. J. Eq. the contrary. 
 
 345; Harvard College v. Balch, 171 22. Griffin v. Griffin, 141 111. 373; 
 
654 Powers. 
 
 § 257. Defective Execution. — Where the donee executes 
 a power in. such way as to violate the limitations of the 
 power it is called an " excessive " execution; as in the case 
 of appointing an estate in fee where only a life estate is au- 
 thorized, or by appointing grandchildren when the power 
 authorizes the appointment of children only.^ When the 
 excessive portion can be severed from the valid portion, as 
 in the case of including persons not authorized and the 
 share of each person appointed is definite, only that part 
 which is in violation of the power is void, the appointment 
 being valid as to the others.^ So a conveyance of a fee by 
 one authorized to convey a life estate only will be valid in 
 equity as a conveyance of a life estate, though it would be 
 void at law.* But where a severance of the valid from the 
 invalid parts cannot be made the entire appointment is 
 void.* 
 
 A court of equity will relieve the beneficiaries of a power 
 from a mere defect of form or from an error not going to the 
 essence in the execution of the power, provided they have 
 paid value for the appointment, or a relationship exists be- 
 tween them and the donee; and also where the beneficiary 
 is a charity. Thus where the seal was omitted, a sealed in- 
 strument being specified by the instrument creating the 
 power, or where less than the required number of witnesses 
 attested the instrument.^ Where the power is ordered to be 
 
 Sweeney v. Warren, 127 N. Y. 426; sham v. Savage, 58 Pa. St. 365. N. 
 
 Hemphill v. Pry, 183 Pa. St. 593; Y. Eeal Prop. L., § 177, provides th:it 
 
 Moores v. Moores, 41 N. J. L. 440; a disposition or charge more exten- 
 
 Hull V. Culver, 34 Conn. 403 ; Minot v. sive than authorized by the power is 
 
 Prescott, 14 Mass. 496. valid, so far as embraced by the terms 
 
 1. Sugden Powers, 498. of the power. 
 
 2. In re Brown's Trust, L. R. 1 Eq. 4. Myers v. Safe Dept. & Trust Co., 
 74; Horwitz v. Morris, 49 Pa. St. 213 73 Md. 413. 
 
 (appointment of grand children not 5. Mut. Life Ins. Co. v. Everett, 40 
 
 allowed under powers in favor of chil- N. J. Eq. 345; Schenck v. Ellingwood, 
 
 dren); Hillen v. Iselin, 144 N. Y. 365, 3 Edw. Ch. (N. Y.) 175; Porter v. 
 
 380. Turner, 8 Serg. & E. (Pa.) 108; 
 
 S Sugden Powers, 521; Wicker- Morse v. Martin, 34 Beav. 500. 
 
Revocation aud Extingtjishmbnt of Powees. 555 
 
 executed by deed equity will give effect to an execution by 
 will, but a power to be executed by will cannot be carried 
 out by deed, since a will may be r.evoked at any time before 
 tbe death of tbe testator while a deed in execution of the 
 power could not be revoked.* Equity acts by requiring a 
 conveyance of the property from those who have title sub- 
 ject to the power to those in whose favor the defective ex- 
 ecution of the power has been made. 
 
 Where there has been mere failure to execute the power, 
 no attempt to do so having been made, equity will never in- 
 terfere except in cases of powers in trust where the donee 
 is in duty bound to exercise the power in favor of the bene- 
 ficiaries. A beneficial power which may be exercised by the 
 donee for his own benefit or for the benefit of others, as 
 well as a power in favor of others which is entirely within 
 the discretion of the donee as to whether it will be exercised 
 or not, will never be enforced by equity in case of non-action 
 by the donee.'^ But where a mandatory duty to sell or to 
 appoint or the like for the benefit of others is imposed on the 
 donee, he will be compelled by equity to carry it out if the 
 court can get jurisdiction of his person; if he is dead or can- 
 not be reached equity will execute the power as nearly as 
 possible in accordance with the intentions of the donor.* 
 
 § 258. Revocation and Extinguishment of Powers. — A 
 power created by will cannot be revoked after the will takes 
 
 6. Sugden Powers, 558; Toilet v. expressly to depend on the will of the 
 Toilet, 3 P. Wma. 489; Favwell Pow- grantee, is imperative, and imposes 
 ers, 333. a duty on the grantee, the perform- 
 
 7. Sugden Powers, 392; Towler v. ance of which may be compelled for 
 Towler, 142 N. Y. 371; Sites v. Eld- the benefit of the person interested, 
 redge, 45 N. J. Eq. 633; Security Co. A trust power does not cease to be 
 V. Snow, 70 Conn. 288. imperative where the grantee has \he 
 
 8. See § 354, note 3, ante. right to select any, and exclude 
 The N. Y. Keal Prop. Law, § 157, others, of the persons designated as 
 
 provides that " a trust power, unless the beneficiaries of the trust." 
 its execution or non-execution Is made 
 
556 PowBES. 
 
 effect on the death of the testator.^ But a power created by 
 deed witliout consideration may be revoked by the donor 
 at any time, and will end on Ms deatli.^ If a consideration 
 has been paid for it, or if it is conpled with, an interest in the 
 property in which the power is to be exercised it is irrevoc- 
 able.^ But after the power has once been executed the deed 
 in execution thereof cannot be revoked, unless the right to 
 revoke appointments is expressly reserved by the donor. 
 
 A power is extinguished, as a matter of course, by its 
 entire execution. It is also extinguished when the object 
 for which it was created has ceased to exist, as by the death 
 of the beneficiary.* The donee of a collateral power, viz.: 
 where the donee has no estate or interest in the land other 
 than the power — cannot release or extinguish it since he has 
 nothing to release or extinguish. He may exercise it or not 
 as he pleases provided it is not in trust, but it wiU continue 
 until exercised, or until released by the beneficiary of the 
 power.^ If it be 'beneficial, that is for the benefit of the 
 donee himself, he may, of course, release and extinguish 
 it." 
 
 1. Sugden Powers, 321; 4 Kent exercise it which -will extinguish it. 
 Com. 336. 6. See preceding note. There would 
 
 2. Id. See Terwilliger v. Ont. C. & seem to be no good reason why the 
 S. R. Co., 149 N. Y. 86. English statutory rule should not pre- 
 
 3. Id.; Hunt V. Rousmanier's vail in the United States without the 
 Adm'r, 8 Wheat. (U. S.) 174, 207. aid of legislation. There is no real 
 
 But the N. Y. Real Property Law, distinction between a collateral power 
 § 146, provides that "a power, and a power in gross, the exercise of 
 whether beneficial or in trust, is irre- which will in no way aflfect the 
 vocable, unless an authority to re- donee's estate in the land. In each 
 voke it is granted or reserved in the case, in so far as the power is con- 
 instrument creating the power." cerned, the position of the donee is 
 
 4. Farwell Powers, 35, 36; Hetzel the same, it being immaterial in so 
 V. Barber, 69 N. Y. 1 ; Kissam v. far as the power is concerned whether 
 Dierkes, J9 N. Y. 602; Fidler v. Lash, the donee has a life or other estate 
 125 Pa. St. 87. in the land, or no estate at all, since 
 
 5. Sugden Powers, 49; West v. the exercise of the power can have no 
 Berney, 1 Russ. & M. 431. In Etipland effect on his estate. In any case, if it 
 by the conveyancing act of ISSl. 5 52, be beneficial it may be released. If 
 the donee of any power may release r.?t beneficial, and not in trust, it lies 
 it by deed or make a contract not to entirely in the discretion of the donee 
 
EeVOCATION and ExTINGtriSHMElS'T OF PoWEES. 
 
 557 
 
 A power in gross, in whidi an estate in tlae land is given 
 to the donee, as an estate for life, with, power to appoint 
 th.e taker of tlie balance of tlie fee at his discretion, may 
 be released by the donee and thus extinguished^ But if it 
 be a power in trust in favor of others it cannot be released 
 or extinguished by any act of the donee, though the bene- 
 ficiaries, after they have been ascertained, may release it.^ 
 
 A power wbich is appendant to an estate, viz. : one which 
 will modify the estate of the donee by its execution, may be 
 released and extinguished at any time by act of the donee. 
 The usual case is tbat of a life tenant with power to lease 
 for twenty-one years, as heretofore explained.® A convey- 
 ance of Ms life estate brings bis power to an end since its 
 execution thereafter would be a fraud on the grantee." A 
 release of the power to the owner of the reversion or re- 
 mainder extinguishes it, since it exists solely for the benefit 
 of the tenant for life." 
 
 whether he will exercise it or not, and 
 there seems to be no reason not 
 purely fanciful why he should not be 
 bound by a release by deed, or by a 
 valid contract not to execute it. 
 
 7. Sugden Powers, 83; Albany's 
 Case, 1 Coke, 110b; West v. Barney, 
 1 Russ. & M., 431; Smith v. Somes, 
 1 Ch. 250. 
 
 8. Farwell Powers, 13, 15; Dunn's 
 Trusts, L. R., 1 Ir. 516; Atkinson v. 
 Bowling, 33 S. C. 414. 
 
 9. See § 254, ante. 
 
 10. Sugden Powers, 46, 51, 57. On 
 a conveyance of the life estate the 
 power passes to the grantee as ap- 
 pendant to the estate. See following 
 note. 
 
 11. Id.; The N. Y. Real Property 
 Law sums up the law on this point 
 as follows (§§ 165, 156): "The 
 power of a tenant for life to make 
 leases is not assignable as a separate 
 interest, but is annexed to his estate 
 
 and passes by a grant of such estate 
 unless specially excepted. If so ex- 
 cepted it is extinguished." These 
 sections further provide that the 
 power in such case may be released 
 to the remainderman or reversioner. 
 A mortgage executed by the tenant 
 for life does not extinguish the 
 power, which is subject to the mort- 
 gage exactly as is the life estate, the 
 mortgagee being entitled to the exe- 
 cution of the power so far as the 
 satisfaction of his debt requires, and 
 any subsequent estate created by exe- 
 cuting the power being also subject 
 to the mortgage. The power is not 
 destroyed by a lease for a short term, 
 but merely made subject to the term, 
 as in the case of the mortgage exe- 
 cuted by the life tenant. Stoner v. 
 Chasse, 6 Misc. (N. Y.) 394. See 
 Swarthout v. Ranier, 143 N. Y. 499. 
 { 156 N. Y. R. Prop. Law. 
 
558 The Kule Against PEE^BTtJiTiES. 
 
 CHAPTER XV. 
 
 The Rule Against Perpetuities. 
 
 § 259. Nature and Object of the Rule. — The rule against 
 perpetuities as it now exists in England and the United 
 States, except in those states in which statutory modifica- 
 tions have been introduced, is as follows : Every future in- 
 terest must vest, if at all, within a period measured by the 
 lives of definite persons in existence at the time of the crea- 
 tion of the future interest, and twenty-one years there- 
 after, and every such interest is void in its creation if it may 
 by any possibility vest at a more remote time.* The object 
 of the rule is to prevent the fettering of property, real or 
 personal, by creating future remote interests which either 
 cannot be conveyed, or which tend to prevent or discourage 
 alienation because they are so uncertain and indefinite that 
 their value cannot be determined with any degree of ac- 
 curacy. A future interest which cannot be conveyed or re- 
 leased prevents an absolute conveyance of the property 
 affected, since its conveyance must be made subject to the 
 future interest. Men will not purchase property subject to 
 the possibility of losing it at any time on the happening of 
 a contingency which will cause it to pass over to another. 
 Even if the future contingent interest may be conveyed or 
 released, so that an absolute estate in fee may be trans- 
 ferred to the purchaser by the joint conveyance to him of 
 both the present and the future estate, or by a conveyance 
 of the present estate followed by a release of the future in- 
 terest, the difficulty of fixing a value for the future conting- 
 ent interest will tend strongly to prevent any such result. 
 The owner of the future interest, having a mere possibility, 
 has everything to gain and little to lose, and the natural 
 
 1. Gray Perpetuitiea {2d ed.), § 201, <t tef. 
 
Natuee and Object op the Eulb. 669 
 
 tendency would be for him to demand an amount for the 
 conveyance or release of his interest out of all proportion to 
 its true value, since no absolute conveyance could be ac- 
 complished without his concurrence. That the existence of 
 such an interest even though alienable, tends strongly to 
 tie up the property affected, is very clear. On the one hand 
 the courts recognize that public policy demands the free 
 alienation of property, on the other hand they recognize 
 the natural desire of owners to control its future disposi- 
 tion. They have decided, therefore, in evolving the rule 
 against perpetuities, that the owner may control the future 
 disposition of his property by creating future contingent 
 interests, provided the uncertainty on which they depend 
 must necessarily be removed within a reasonable time, fixed 
 by the rule as the period measured by a life or lives in being 
 and twenty-one years thereafter. After such an interest has 
 become vested it may be freely alienated, and its market 
 value may be readily fixed and determined, it having be- 
 come a definite part of the fee, free and clear of any un- 
 certainty or contingency, and it no longer tending to pre- 
 vent the free alienation of the property affected.* 
 
 There is some authority for the view that the rule is 
 violated only by future interests which are inalienable and 
 which, therefore, suspend the absolute power of alienation, 
 for longer than lives in being and twenty-one years.' It is 
 very doubtful if this was ever the rule, even in the earlier 
 stages of its development.* It is now settled beyond any 
 
 2. Gray Perpetuities, §§ 368, 269, power of alienation was not bub- 
 et seg; Madison v. Larmon, 170 111. pended by a future executory legal 
 65; Owsley v. Harrison, 190 111. 235: interest created by way of executory 
 Johnston's Est., 185 Pa. St. 179; devise or springing or shifting us* 
 Pulitzer v. Livingston, 89 Me. 359, in any case in which the person or 
 and cases in notes following. persons to take were ascertained, be- 
 
 3. 2 Reeves Real Prop. Chapter on cause these persons could join with 
 Perpetuities, and cases and authori- the other persons having vested in- 
 ties there cited. terests in the property, and hy re- 
 
 4. It seems clear that the absolute leasing their executory interests an 
 
6iiQ The Eule Against Peepetuities. 
 
 doubt tliat the object of th.e rule is to prevent undue re- 
 moteness of vesting, a future contingent interest being void 
 as too remote if it will not certainly vest, if at all, witliin 
 tlie period fixed by tbe rule.^ Statutory modifications in 
 New York and several otber states are based on the assump- 
 tion that the main object of the rule is to prevent undue sus- 
 pension of the absolute power of alienation, though, as we 
 shall see, undue remoteness of vesting is also provided 
 against in some of these statutes.® 
 
 The rule has no application to present estates. A general 
 restraint upon the alienation of any present estate, or upon 
 any vested future estate, is void as being contrary to public 
 policy. The tying up of property by general restraints upon 
 alienation is prevented by the rule making such restraints 
 void. The tying up of property by creating future remote 
 interests is limited by the rule against perpetuities, making 
 all such interests void unless they must necessarily vest 
 within the period fixed by the rule.'' 
 
 absolute fee in possession could be of trust in equity could be conveyed 
 
 transferred. Yet the rule against as well as released; nevertheless 
 
 perpetuities was developed by the they were held subject to the rule, 
 
 courts to limit the creating of future The position taken by the revisers of 
 
 executory interests, and there is very the New York statutes that the ob- 
 
 little authority in the English eases ject of the rule was to limit the cre- 
 
 that the rule was to apply only to ation of only such future estates as 
 
 those cases of executory interests in would suspend the absolute power of 
 
 which the person who was to take plienation was simply a mistaken 
 
 was not ascertained. Such cases as conception of the common law rule, 
 
 did so hold have been overruled by That these revisers found it neces- 
 
 later cases. (See Gray Perp., §§ 270- sary in certain cases to provide 
 
 277, inc.) The point was tiiat these against remoteness of vesting as will 
 
 executory interests could not be de- be hereafter explained, would tend to 
 
 feated by fine or recovery, and an make this very clear. See § 868, 
 
 absolute conveyance in fee could be note 7, § 369, post. 
 
 accomplished only by the concurrent 6. Gray Perpetuities (2d ed.), §5 
 
 action of the persons to whom these 268, 269, 278, et seq., and authorities 
 
 Interests were given, not against there cited and discussed. See case* 
 
 their will. It was this which made in note 2, supra. 
 
 them fetters upon free alienation. 6. See §§ 268, 269, post. 
 
 Executory interests created by way 7. Gray Perpetuities, § 268. 
 
Origin and Histobical Development of the Rule. 561 
 
 § 260. Origin and Historical Development of the Rule. — 
 
 The rule against perpetuities did not exist in any form be- 
 fore tlie enactment of the Statute of Uses in 1535, and the 
 Statute of Wills in 1540. As explained in the chapter XIII, 
 future legal estates could be created before that time only as 
 remainders. The only future contingent interests at law 
 that would tend to prevent the free alienation of property 
 before the enactment of these two statutes were contingent 
 remainders, possibilities of reverter existing in the grantor 
 of a base fee, or a fee upon limitation as we call it to-day, 
 and possible rights of entry for breach of condition in the 
 grantor of an estate in fee upon condition. But contingent 
 remainders were not recognized as valid legal limitations 
 until the reign of Henry VI,^ and after they had come to be 
 recognized it was settled that they had to take effect, if at 
 all, before the termination of the precedent life estate on 
 which they depended, so that in the great majority of cases 
 they would have to vest or be defeated, within the life of a 
 person in being at the time of their creation. Though an 
 estate to A for life, remainder to A's unborn eldest son for 
 life, remainder in fee to X on the happening of some con- 
 tingency which might happen in the remote future, 
 would be valid and would take effect in X if the 
 contingency should happen before the death of A's 
 son, and would also be in violation of the rule 
 against perpetuities as it subsequently developed, cases of 
 this kind do not seem to have occurred. Furthermore con- 
 tingent remainders could be defeated at any time by merg- 
 ing the fee with the ultimate reversion or vested remainder 
 in fee, or by levying a fine or suffering a common recovery, 
 and therefore they did not actually prevent the absolute 
 alienation of the property affected.^ No question seems 
 ever to have been raised before the enactment of these stat - 
 utes as to the validity of a remote possibility of reverter or 
 
 1. See Williams Eeal Prop. (17th 2. Gray Perpetuities, § 134, 
 
 ed.), 411. 
 
 36 
 
662 The Kule Aoatsst Peepbttjities. 
 
 possible right of entry for breacli of condition in connec- 
 tion with base or qualified fees or fees upon condition, and 
 to this day these interests, at least in the TJnited States, do 
 not come -within the rule.* A vested remainder after an es- 
 tate tail might not actually vest in possession for hundreds 
 of years, but as the estate tail could be changed at any time 
 into an estate in fee simple by a fine or recovery, thereby 
 destroying the remainder, it is manifest that this interest 
 did not tie up the property in violation of the rule as it has 
 developed, any more than it does to-day in those jurisdic- 
 tions in which estates tail still exist subject to be converted 
 into estates in fee simple by a conveyance in fee to any other 
 person.^ 
 
 But the Statute of Uses and the Statute of Wills per- 
 mitted the creation of all sorts of future executory inter- 
 ests which had not been known theretofore except as uses 
 in equity. A future interest to arise on the happening of 
 some event in the remote future without any precedent es- 
 tate, a fee limited after another fee to take effect at a very 
 remote time, and the other executory interests discussed 
 in the preceding chapter, could be created under these 
 statutes, as springing or shifting uses or executory de- 
 vises.* Interests of this sort might be created which would 
 not actually take effect or be rendered certain and definite 
 for hundreds of years after their creation, effectually tying 
 up the property involved during all the time intervening. 
 Cases involving this situation did not arise with any fre- 
 quency until some considerable time after these statutes 
 were enacted. Gradually the rule became established that 
 future executory interests created by springing or shifting 
 use or by executory devise could not be destroyed by the 
 levying of a fine or the suffering of a common recovery or 
 by the destruction or termination of any precedent estate.'^ 
 
 4. See § 262c, post. 7. Gray Perpetuities fZd ed.), |i 
 
 t. See 5 362, post. 143-147, 
 
 e. See §§ 250, £51, antt. 
 
Elements of the Ettle. 563 
 
 By a slow and gradual process the courts finally recognized 
 the need of in some way limiting the time in which future 
 executory interests should vest, until in the Duke of Nor- 
 folk's case,^ decided by the House of Lords in 1685, one 
 hundred and fifty years after the Statute of Uses was en- 
 acted, it was finally settled as law that a future executory 
 interest must be limited on a contingency which must hap- 
 pen, if ever, within the life of some person in being at the 
 time the future interest was created. Thereafter by a series 
 of cases culminating in Stephens v. Stephens,® decided in 
 1736, it was decided that to the period of a life or lives in be- 
 ing should be added the period in which a posthumous child 
 could be born and also the actual minority of a child or chil- 
 dren, as in the case of a gift to the child or children of a liv- 
 ing person upon their attaining the age of twenty-one. The 
 extension of the period to a flat term of twenty-one years, 
 irrespective of whether an actual minority of any person 
 was involved or not, was not actually accomplished until 
 the case of Cadell v. Palmer was decided by the House of 
 Lords in 1832,*" though the rule had been so laid down by 
 the vice-chancellor in the same case in 1826.* * It seems clear 
 that this final extension of the rule was the result of acci- 
 dent rather than from the application of any controlling 
 reason. The rule in its final form, as stated in the preceding 
 section, has been accepted since that time in England and 
 in the United States, except in those states where modifica- 
 tions have been made by statute.** 
 
 § 261. Elements of the Rule, (a) The Estate Must Be Cer- 
 tain to Vest Within the Required Period. — If at the time of 
 the delivery of the deed or the testator's death there be any 
 uncertainty as to whether the estate will vest or not within 
 
 8. 3 Ch. Cas. 1; Gray Perp. 5 169. 11. 1 Sim. 267; Gray Perp., § 185. 
 
 9. Cas. Temp. Talb., 238; Gray IS. Gray Perp. (2d ed.), SS 30*, 
 
 Perp., § 175. 200a. 
 
 10. 1 Sim. 123. 
 
564 The Eulb Against PEEPETxriTiES. 
 
 the limits fixed by the rule it is void in its creation. It is 
 immaterial how soon the future estate may actually vest 
 after the taking effect of the deed or will creating it; if by 
 possibility it might not have vested within the required 
 limits of lives in being and twenty-one years from the time 
 the instrument creating it took effect it is void. Thus where 
 a remainder after life estates was given by way of trust to 
 such son of one McDonald as should live to attain the age 
 of twenty-five, the remainder was void though at the death 
 of the testator McDonald had a son who attained the age 
 of twenty-five before the death of the life tenants, and well 
 within the period of twenty-one years. The difficulty was 
 that at the testator's death when the will took effect it 
 was possible that McDonald's son should die, that there- 
 after another son might be born to him, and that McDonald 
 might die within four years thereafter, so that this second 
 son would not attain the age of twenty-five and his interest 
 vest within twenty-one years after his father 's death.* 
 
 1. Abbiss V. Burney, 17 Ch. Div. tor's wife and after such further 
 211; Gray Perpetuities (2(1 ed.), § time as might be required by the 
 214, et seq. A good illustration of trustees to finally settle his estate, 
 this rule Is given by Prof. Gray, among a class then to be determined. 
 Property Is devised to A for life, re- The court toolc the view that in no 
 mainder to his widow for life, re- event could the executors delay the 
 mainder over in case the widow settlement for more than twenty-one 
 should die without children surviv- years after the death of the wife. In 
 Ing. The remainder over is void un- the second case a similar directioij 
 less it appears by the context that was given to divide among a class to 
 the present wife of A was intended be determined at the expiration of 
 as the second life tenant. A miglit fourteen years and after the executor 
 marry a woman not yet born, who had settled with the judge of pro- 
 would become his widow, and the re- bate. The court held the gift valid, 
 mainder over might not vest until as such settlement ought to be made 
 more than twenty-one years after the within one year, and would certainly 
 death of A. be made within seven years, or with- 
 
 See Brandenburgh v. Thorndilce, in 21 years after the death of the tes- 
 
 139 Mass. 102 and Belfield v. Booth, tator. As in each of these cases it 
 
 63 Conn. 299. In the first case a was possible that the executors could 
 
 final division was directed to be not settle the estate within the time 
 
 made, after the death of the testa- fixed by the rule, a Uteral applioa- 
 
Elements of the Rule. 565 
 
 (6) Lives in Being. The rule is intended to apply in the 
 most flexible way to each case, the lives of the persons who 
 happen to be involved measuring the period of suspension 
 of vesting.^ The case last referred to in the text is a good 
 illustration. McDonald's life was the only one in that case 
 measuring the period of suspension, the remainder being 
 limited to such son of his as would first attain the age of 
 twenty-five. Nine months after McDonald's death the pos- 
 sibility of another son being born to him would be gone; 
 his life alone is involved in determining the contingency on 
 which the gift depends, and it must vest within twenty-one 
 years and nine months after his death. The_liyes of the 
 prior life tenants in no way measured the period, since the 
 vesEing~of the remainder did not at all depend on when 
 tS ey shoul d die.^ Wh^e a gift is made to several tenants 
 for life in^being, either in common or successively, remain- 
 der oyer to the children of the survivor, the lives measur- 
 ingthe period are those of the life tenants. Any lives how- 
 eyer, may be taken as measuring the period, though of 
 strangers in no way interested in the property, provided a 
 reasonable number of lives are so taken, so that the fact of 
 the death of all of them may be readily proved. Thus a gift 
 to Bailey in fee, but upon the incorporation of Grloversville, 
 then to Gloversville in fee, provided Grloversville be incor- 
 porated during the lives of Jones and Smith, two persons in 
 being at the time the deed or will takes effect, is valid, 
 though the gift to Gloversville would be clearly void ex- 
 cept for the provision that the contingency of the incorpora- 
 tion of Gloversville must happen within the lives of the 
 
 tion of it would render these gifts bility of undue remoteness of vest- 
 void. These cases show a commend- ing is very slight, it may well be dis- 
 able tendency to get away from the regarded, as in these cases, 
 purely technical and arbitrary ap- i. Gray Perp. (2d ed.), §§ 216-219, 
 plication of the rule which has been and cases there discussed, 
 common in the past. The beneficial 3. Abbiss v. Burney, 17 Ch. Dtr. 
 purpose of the rule should always be 211, discussed in text above, 
 borne in mind, and where the possl- 
 
666 The Rulb Against Peepetuities. 
 
 persons so named.'* Any number of persons may be named 
 in this way, provided the number is reasonably limited to 
 persons tbe death of whom could readily be established. If 
 the lives of all the persons then living in the world, or in a 
 stated town or the like were taken, the future interest would 
 not be saved, because the death of all such persons could 
 be proved only with great difficulty, and therefore the limi- 
 tation would prevent alienation for a longer period than 
 the lives of such persons because of the practical difficulty 
 or impossibility of proving that they had all died.* 
 
 The ill effects of limiting the period arbitrarily to two 
 lives by statute in New York and other states will be con- 
 sidered hereafter." 
 
 (c) A. Future Interest is Valid if it Must Vest Within 
 Twenty-one Years. Where the lives of no persons are inv 
 volved, so that the period of suspension is in no way measured 
 by lives, the future interest must be certain to vest within 
 twenty-one years from the testator's death or the delivery 
 of the deed, as the case may be. Therefore every, future in- 
 terest which must vest if at all within a flat term of twenty- 
 one j';ears is always valid. But if the vesting is or may b& 
 postponed for a longer period not measured by lives in be- 
 ing, it is void. Thus a limitation after a term of fifty years 
 to such persons as might then be the heirs of the testator 
 was void, the contingent interests after the term not vest- 
 ing in any case until fifty years had passed.* If it had been 
 
 3a. See N. Y. oases cited in fol- is valid. Blackmore v. Boardman, 2S 
 
 lowing chapter, § 272, note 2. Mo. 420; Gray Perpetiuties, § 230. 
 
 4. Thellusson v. Woodford, 4 Ves and cases cited. Prof. Gray points 
 
 244, 277, 278, 290; Gray Perp., §5 out that the privilege of renewal is 
 
 217-219. merely an incident of the term of 
 
 6. See § 269, note 11, post. years vested in the tenant. It may 
 
 6. Johnston's Est., 185 Pa. St. 179; or may not be exercised by him at 
 
 Gray Perpetuities, §§ 225-229. the end of the term, or at the end of 
 
 A provision in a lease for a per- any renewed term. Will' such a pro- 
 
 petual renewal at the option of the vision tend to take the property af- 
 
 tenant does not violate the rule and fected out of commerce? Where th* 
 
Elbmbnts of the EniiB. 667 
 
 provided that the fifty year term should end and the future 
 interests vest on the death of any person or persons named 
 by the testator, the future estates would have been valid, 
 since they would necessarily have vested within a period 
 measured by the lives of persons in being at the time they 
 were created. 
 
 (d) The Period of Gestation is Always Added to the Period 
 of Suspension Allowed by the Rule. A child en ventre sa 
 mere is regarded as a life in existence for the purposes of 
 the rule.^ Often two such periods are involved, suspending 
 the vesting of a future interest for lives in b^ing and twenty- 
 one years and in addition two periods of nine months or a 
 fraction thereof. Thus if A makes a gift by will to his chil- 
 dren for life, and on their death to their children, 
 but in case these grandchildren die under twenty-one 
 then to X in fee, if a posthumous child is born to the testator, 
 and a posthumous child is bom to that child, X's interest 
 will not vest until twenty-one years and possibly nine 
 months after the death of the testator's posthumous child, 
 regarding such child as a life in being at the testator's death 
 because then en ventre sa mere.* 
 
 (e) If the Future Interest Begins Within the Required 
 Limits it is VaUd. If the future interest must vest within the 
 limits fixed by the rule, it is quite immaterial how long it 
 may continue, whether for a term of years of any duration, 
 for life or lives, or in fee. The interest having vested, it is 
 
 usual relation of landlord and ten- in fee given to a tenant for years so 
 
 •nt exists, and the rent reserved or that it may be exercised at too re- 
 
 to be reserved represents the approxi- mote a time is void since it give» 
 
 mate rental value of the property, it rise to a contingent equitable future 
 
 Is difficult to see how it could have interest which is not a mere incident 
 
 any such effect. The value of the in- of the term. See Gray Perp. (3d 
 
 terest of both parties is readily as- ed.), § 830b. 
 
 certainable, and each interest may be 7. Gray Perp. (Sd ed.), § 220, «t 
 
 readily conveyed. See Gray Perpetu- seg.; Marsh v. Reed, 184 111. 263. 
 ities (2d ed.), §§ 330, 230a. 8. Gray Perp. (2d ed.), i 221. 
 
 An option to purchase the property 
 
568 The Eule Against Pekpetuitibs. 
 
 no longer uncertain but a definite estate which, may be 
 readily conveyed at a value which may be easily 
 determined, and it in no way tends to tie up the prop- 
 erty. The rule does not apply to a vested interest, which 
 never suspends or tends to suspend the absolute power of 
 alienation and for that reason cannot be a perpetuity. There- 
 fore a life estate to an unborn person who must be bom 
 within a life in being is good, the estate vesting on his 
 birth ^ and a term of years to arise in the future but within 
 the limits fixed by the rule is also valid, there being no 
 further suspension after the term vests. 
 
 In Fosdick v. Fosdick (6 Allen, Mass., 41), the testa- 
 trix gave her residuary estate to trustees in trust to ac- 
 cumulate the income until her youngest living grandchild 
 should attain the age of twenty-one, thereafter the income 
 to be paid over annually to her grandchildren in equal 
 shares. She was survived by one daughter. The gift to 
 the grandchildren, vesting in them on the youngest attain- 
 ing twenty-one, was bound to vest within twenty-one years 
 after the daughter's death, and was therefore valid. The 
 court, however, held that it was void, since the grand- 
 children would not be entitled to receive the first install- 
 ment of income until the end of the first year after the young- 
 est had attained twenty-one, the additional year being re- 
 quired in order that the income might accrue, which would 
 be a year over the limits fixed by the rule. Of course the 
 grandchildren's interest would be vested as soon as the 
 youngest attained twenty-one, and there would be no further 
 possible suspension. The decision is clearly wrong. 
 
 § 262. Interests Affected by the Rule, (a) Executory 
 Interests. The rule grew up as a direct result of the Statute 
 of Uses and the Statute of Wills, and of executory future 
 interests by way of springing and shifting use and execu- 
 tory devise which were provided for and permitted by these 
 
 9. See English casea cited in Qray'a Perp. (2d ed.), § 833. 
 
Inteeests Affected by the Eulb. 569 
 
 statutes.* Such interests in nearly all cases depend on some 
 future contingency as a condition precedent whicli makes 
 them uncertain and indefinite. In some cases, however, they 
 may be as certain and definite as any vested remainder, 
 such as an estate granted to X to take effect in possession on 
 the death of the grantor, or ten years from date, or on any 
 other event sure to happen. Nevertheless, even in such 
 cases, they were not regarded as vested interests; the entire 
 fee remained in the grantor until the day arrived on which 
 the future interest was to take effect, on which day the fu- 
 ture estate was said to be " executed " and to go over for 
 the first time from the grantor to the grantee.^ 
 
 It is, of course, perfectly clear that the rule applies to 
 all future executory interests depending on a future con- 
 tingency. As we have seen, the possibility of tying up 
 property for hundreds of years by creating future executory 
 interests of this nature dependent on contingencies which 
 might not happen until the remote future was the immedi- 
 ate cause of the development of the rule. Therefore every 
 future interest to spring up in another on the happening 
 of some contingency, every fee upon a fee to take effect on a 
 contingency, and each of the other executory interests as 
 discussed in the last chapter, must be so limited that the 
 contingency on which they depend must happen within a life 
 or lives in being at the time the deed or will creating them 
 takes effect, and twenty-one years and a possible nine 
 months thereafter, otherwise they are void.^ This seems 
 to have been the law also as to executory interests which 
 
 1. See I 260, ante. cases the limitation over was to a 
 
 2. See § 252, notes 6 and 7, ante. living person who could release it, 
 
 3. Gray Perp. (2d ed.), § 317; bo that the absolute power of alien- 
 Proprietors of Church in Brattle Sq. ation was not suspended. It is quite 
 V. Grant, 3 Gray (Mass.) 148; So- immaterial whether the person to 
 eiety for Theolog. Education v. A. whom the limitation over is iiiade ia 
 G., 135 Mass. 385; Winsor v. Mills, .ascertained or not for the purposea 
 157 Mass. 362; Brown & Sibley's of the rule. 
 
 Contr., 3 Ch. Div. 156. In above 
 
670 The Rule Against PBEPETiriTrES. 
 
 were sure to take effect, as above explained, depending on 
 no contingency, following logically from the rule ttat these 
 interests were purely executory, the entire fee remaining 
 during the interval in the grantor or heirs of the devisor.* 
 But, as we have already seen," all difference and distinction 
 between executory interests and remainders have been 
 swept away by statute in many states, and in other states 
 by decision, the courts recognizing that the ancient feudal 
 reasons for such distinctions having ceased to exist, the 
 distinctions themselves should be disregarded. On princi- 
 ple there is no reason whatever why these distinctions 
 should be longer recognized anywhere, and every considera- 
 tion of good policy, clearness and simplicity of the law, as 
 well as of good sense would seem to require that remain- 
 ders and executory interests be treated in exactly the same 
 way. In those states in which these distinctions have been 
 abolished future executory interests that depend on no con- 
 tingency are vested, and in no way violate the rule.* It is 
 believed that in nearly all the other states this is now the 
 law, or will be after the question has been raised and fairly 
 presented.' 
 
 4. Gray Perp. (8d ed.), § 114, the lather than remoteness of vesting is 
 author stating that future executorv regarded as the basis of the rule. Of 
 interests, though dependent on no course there is no suspension caused 
 contingency, are not vested, and do by a certain and definite future ex- 
 not become vested until they take ef- ecutory interest such as those refer- 
 fect in possession or are turned into red to in the text. Not only ma7 
 vested remainders, and § 317 of the they be freely conveyed, but their 
 same work, stating that the rule un- value may be fixed with the same cer- 
 questionably applies to all executory tainty as the value of a vested re- 
 devises and springing and shifting mainder, and, therefore, they do not 
 uses, no authorities being cited ap- tend to discourage alienation any 
 parently because the point is re- more than do vested remainders. No 
 garded as settled beyond dispute. reason whatever can be given for 
 
 5. § 353, ante, and citations. treating these interests as subject t« 
 
 6. In New York and several of thn the rule. See discussion of statutory 
 other states the matter is compli- changes in the Rule, § 269, pott. 
 cated by the fact that suspension of 7. See preceding not*. 
 
 the absolute power of alienation 
 
IlTTEEESTS AfFECTED BY THE RtTLE. 871 
 
 These executory interests could not be conveyed at com- 
 mon law, but they could always be released, and there- 
 fore they never caused a suspension of the absolute power 
 of alienation when limited to ascertained persons, because 
 by joint action of all parties interested the entire fee in 
 possession could be conveyed. The only case in which the 
 absolute power of alienation was suspended by these in- 
 terests was where the person to take was not ascertained so 
 that he could not release his interest. As we saw in the last 
 chapter, these interests may now be freely conveyed. It is 
 very clear, therefore, that undue remoteness of vesting, and 
 not undue suspension of the absolute power of alienation 
 was the object of the common law rule. Though these in- 
 terests may now be freely conveyed, and therefore in no way 
 suspend the absolute power of alienation, except in the case 
 where the person or persons to take remain unascertained, 
 they are void unless they must vest withia the limits fixed 
 by the rule.* 
 
 (b) Remainders and Reversions. Vested remainders, 
 and reversions which are always necessarily vested are in 
 no way affected by the rule. No matter how long actual 
 enjoyment of the property may be postponed, if the interest 
 of the remainderman is vested it may be readily conveyed 
 and its value may be readily ascertained, so that it does 
 not tend to tie up the property. Thus where a vested re- 
 mainder follows contingent remainders to unborn persons, 
 it is valid because vested, though it would be void if conting- 
 ent since it might not vest within lives in being and twenty- 
 one years.^ 
 
 8. See note 3, preceding. ol his work on Perpetuities (2d ed.). 
 
 9. Evans v. Walker, 3 Ch. Div. If a devise is made to A for life, re- 
 211; Johnston's Est., 185 Pa. St. mainder to the children of B who at- 
 179; Gray Perp. (2d ed.), S 205. tain the age of twenty-five, and at 
 
 A case of a vested remainder the testator's death B is living and 
 which may nevertheless violate the has a son, C, who is twenty-five year* 
 rule ii given by Prof. Gray, J 205a, old, the remainder vests in such son. 
 
672 
 
 The Rule Agaistst Peepetuities. 
 
 On the other hand contingent remainders come directly 
 within the rule. It is true that the rule developed in con- 
 nection with executory estates, the need for it being much 
 greater as a result of the statutes permitting the creation 
 of these interests. But contingent remainders, particularly 
 after the laws affecting them were changed so that they 
 could no longer be defeated by fine or recovery or by the 
 destruction or termination of the prior life estate, came di- 
 rectly within the mischief sought to be prevented by the 
 rule, and it is now universally the law in common law 
 states, that a contingent remainder is void which will not 
 certainly vest within the period fixed by the rule.^" In New 
 
 and the class is closed, so that chil- 
 dren of B subsequently born will not 
 be admitted to the class. But if B 
 has other children who are under the 
 age of four at the testator's death, 
 their interests will not vest and the 
 maximum amount of C's share can- 
 not be determined until more than 
 twenty-one years after B's death 
 But is this material? Since C has 
 attained the age of twenty-five at the 
 testator's death, only those of B'a 
 children then in being can take as 
 members of the class. Their interest 
 must vest and the maximum share of 
 each must be determined within their 
 lives, and therefore within lives in 
 being. C has a vested remainder in 
 an undivided share of the balance of 
 the fee. The other children have a 
 contingent remainder in the balance 
 of the fee, contingent because it de- 
 pends upon their attaining the age 
 of twenty-five. This must liappen, if 
 ever, within their lives and the gif 
 to them does not violate the rule. 
 The testator undoubtedly intended 
 that if these children should die be- 
 fore attaining the age of twenty-five 
 the entire estate in remainder should 
 
 vest in C. This also must happen 
 during the lives of the other children, 
 lives in being at the testator's death. 
 It would seem clear, therefore, that 
 these remainders are valid since chil- 
 dren subsequently born to B must be 
 excluded from the class, and the gifts 
 to the then living children of B must 
 vest, if ever, within their lives. See 
 Gray Perp., § 379. 
 
 It is difficult to imagine a, case of 
 a remainder to a class vested in a 
 member thereof which can violate 
 the rule, because if the limitation is 
 to children of a living person (he 
 children will be ascertained during 
 a life in being, and if an additional 
 precedent contingency is provided, 
 such as their attaining the age of 
 twenty-five, or other contingency to 
 happen after they attain twenty-one, 
 the contingency must have happened 
 as to one of the class at the time of 
 the testator's death, in order that 
 the interest of one of the class may 
 be vested, in which case the class is 
 closed and subsequently born chil- 
 dren cannot be admitted. 
 
 10. Abbiss v. Burney, 17 Ch. Div. 
 211; In re Frost, 43 Ch. Div. 346; 
 
Inteeests Affected by the Rule. 
 
 573 
 
 York and those states which, have adopted the New York 
 -statutory scheme the law is different, as will be explained 
 Jiereafter." 
 
 A remainder in fee after an estate tail is vested and there- 
 fore does not violate the rnle. It is not the remainder in this 
 case that ties up the property, but the prior estate tail. The 
 law provided against this by permitting the tenant in tail 
 to bar the entail by a fine or recovery, changing the estate 
 tail into a fee simple, and thereby defeating the remainder. 
 At the present time in jurisdictions in which estates tail still 
 exist, they may be changed into estates in fee simple, de- 
 
 London & S. W. R. Co. V. Gomm, 
 20 Ch. Div. 562; Lewis Perp., ch. 16; 
 Winsor v. Mills, 157 Mass. 363 ; Mad- 
 ison V. Larmon, 170 111. 65; Wood v. 
 •Griffin, 46 N. H. 330; Fosdick v. 
 Fcsdick, 6 Allen (Mass.) 41; Stout 
 T. Stout, 44 N. J. Eq. 479; Gray 
 Perp. (2d ed.), §§ 284-2981i. 
 
 It has been urged that contingent 
 remainders do not come within the 
 rule because they were valid at 
 common law before the enactment of 
 the Statute of Uses and tlie Statute 
 <if Wills, the rule having been de- 
 veloped to restrain the creation of 
 executory interests under these stat- 
 utes only, they being indestructible 
 while contingent remainders were 
 destructible at any time by fine or 
 recovery or the destruction of the 
 precedent estate on whioli the con- 
 tingent remainder depended by mer- 
 ger, forfeiture, etc. Prof. Gray es- 
 tablishes beyond question that this 
 argument is not sound historically 
 because the rule was developed in 
 the applying of it to future interests 
 in personal property, chattels and 
 ■chattels real, which could always be 
 limited by will or inter vivos before 
 
 these statutes in any of the ways in 
 which executory interests could be 
 created after these statutes were en- 
 acted. Furthermore, the rule has 
 been always held to apply to equit- 
 able executory interests which were 
 just as valid before these statutes as 
 after. There can be no question that 
 the rule was developed as a general 
 rule of public policy to limit the cre- 
 ation of all future contingent inter- 
 ests to those which would certainly 
 vest within lives in being and twenty- 
 one years, whether they happened to 
 be interests made possible by the 
 statutes above referred to, or were 
 interests recognized as valid before 
 these statutes were enacted. Gray 
 Perp. (2d ed.), §§ 296-298. 
 
 The argument that contingent re- 
 mainders were destructible and there- 
 fore did not violate the rnle, no longer 
 has any application as by statute in 
 England and generally in the United 
 States, they are now indestructible 
 and come within the reason of the 
 rule to exactly the same extent as 
 executory interests. Gray Perp. (2d 
 ed.), § 286. See § 244, ante. 
 
 11. See Ch. XVI, post. 
 
674 The Rule Against Peepetttities. 
 
 feating the remainder, by a simple conveyance in fee. In 
 such case tlie property is in no sense tied up** 
 
 (e) Possible Bights of Reverter and of Entry for Breach 
 of Condition. That such, possible rights of entry to enforce a 
 forfeiture of estates in fee for breach of condition are 
 within the mischief sought to be prevented by the rule 
 seems clear. Men will hesitate to purchase property subject 
 to a contingency on the happening of which the estate may 
 be forfeited. Therefore the contingency should be one 
 which must happen if at all within the period fixed by the 
 rule in order that the property may not be rendered inalien- 
 able, or its transfer discouraged for too long a time.^^ In 
 these cases as in others arising before the enactment of the 
 Statutes of Uses there was no suggestion of the application 
 of any rule limiting the reservation of rights of entry in 
 any way. That rights of entry for breach of condition comes 
 within the rule seems to be settled in England to-day, though 
 there is some authority to the contrary.** In the United 
 States it is well settled, though without any adequate dis- 
 cussion and without the giving of any adequate reason 
 therefor, that the rule does not apply to these interests.*^ 
 
 12. Gray Perpetuities, §§ 443, 447, 15. Church in Brattle Sq. v. Grant, 
 and cases there cited. 3 Gray (Mass.) 142, 148 (dictum) ; 
 
 13. Gray Perp. (2d ed.), §§ 299-304. Hunt v. Wright, 47 N. H. 396; 
 
 14. Dunn v. Flood, 25 Oh. Div. 629, French v. Old South Soc, 106 Mass. 
 28 Ch. Div. 586, 592; In re HoUis's 479; Tohey v. Moore, 130 Mass. 448 
 Hospital, 2 Ch. 540; In re Maileay, L. (dictum) ; Gray Perp. (2d ed.), § 305. 
 R. 20 Eq. 186 (dicta). The question See long list of cases cited in Gray 
 does not seem to have arisen in the Perp. (2d ed.), § 306, note 6, in -which 
 earlier cases, nevertheless the English rights of entry for condition broken 
 Real Property Commissioners in their were held to be valid, though they 
 third report, p. 36, say that such violated the rule against perpetuities, 
 Tights of entry seem not to be sub- no question as to whether the rule ap- 
 jeot to the rule, but that " they are plied or not having been raised by 
 clearly within the policy which the court or counsel. Among the more 
 law has adopted with respect to per- important of these cases are Uping- 
 petuities." Gray Perp. (2d ed.), §§ ton v. Corrigan, 151 N. Y. 143; Cowell 
 899. 300. V. Springs Co., 100 U. 8. 55; Langley 
 
Inteeests Affected by the Rule. 
 
 575 
 
 Where the conditional estate is an estate for life or a ten- 
 ancy for years no matter of what duration, no question of 
 remoteness can arise because the possible right of entry 
 goes with the vested reversion as an inseparable incident. 
 
 Possibilities of reverter in connection with estates in fee 
 upon limitation, or base fees as they are sometimes called, 
 come within the mischief sought to be prevented by the 
 rale for the same reasons. But it is undoubtedly the law, 
 by weight of authority, that the rule does not apply to 
 them, so that they are valid though the contingency on 
 which, they depend be very remote.^ ^ It is true that these 
 
 V. Chapin, 134 Mass. 83; Smith v. 
 Barrie, 56 Mich. 314; Sioux City St. 
 R. Co. V. Singer, 49 Minn. 301; Cor- 
 nelius V. Ivina, 86 N. J. Law 376? 
 Sperry v. Pond, 5 Ohio 387; Pickle 
 V. McKlsaick, 21 Pa. St. 232. The 
 question seems to have gone by de- 
 fault. It is so firmly settled, how- 
 ever, as an established law of prop- 
 erty that the rule does not apply to 
 these cases that a change can be ac- 
 complished only by legislation, which 
 would seem to be very desirable. 
 
 16. First Univ. Soc. v. Boland, 155 
 Mass. 171; Leonard v. Burr, 18 N. Y. 
 96 (question not raised though in- 
 volved in decision enforcing possibil- 
 ity of reverter which was too re- 
 mote). 
 
 Prof. Gray states that remote pos- 
 Bibilities of reverter are a necessity 
 if estates on limitation in fee or de- 
 terminable fees are allowed at all 
 (Gray Perp. (2d ed.), § 312). But 
 why permit the creation of interests 
 by way of reservation, or if you 
 please, by operation of law as a re- 
 sult of creating a determinable fee. 
 which will tie up the property 
 for too long a time as eifectu- 
 allv as a conditional limitation? 
 
 It is not necessary to abolish 
 conditional limitations because some 
 of them may be too remote, and it ii 
 submitted that it is unnecessary to 
 declare determinable fees void for any 
 such reason, nor even for a reason 
 which goes back to conditions exist- 
 ing before the enactment of the Stat- 
 ute Quia Emptores in 1289, and which 
 have been as a practical matter obso- 
 lete for hundreds of years. There has 
 been too much clinging to the doc- 
 trines of tenure and seisin, and to 
 rules dependent on the feudal rela- 
 tion, all of which have had no real 
 reason for existence or recognition 
 since the disappearance of feudalism. 
 Most of the unnecessary, artificial and 
 perplexing technicalities of the law of 
 future estates are due to this. The 
 courts have fortunately overlooked 
 one technical possibility in recognizing 
 determinable fees as valid, irrespec- 
 tive of the doctrine of tenure. They 
 should, however, have limited possi- 
 bilities of reverter by applying to 
 them the rule against Perpetuities, 
 and having failed to do so, that re- 
 sult, as to interests created in the 
 future, should be accomplished by 
 statute. 
 
576 The Kule Against Peepetdities. 
 
 interests, as well as possible rights of entry for breach of 
 condition, were valid at common law long before the rule 
 was thought of, and that they could be released, so that with 
 the aid of a release of such an interest an absolute fee could 
 be conveyed by the joint action of all parties interested in 
 the property. But all that is also true of contingent remain- 
 ders and of executory uses before the Statute of Uses, yet 
 contingent remainders and future trust estates to-day are 
 unquestionably subject to the rule. All valid objection to 
 the recognizing of fees upon limitation would disappear if 
 the rule should be extended so as to make it apply to these 
 interests. It is highly important that property be not tied 
 up by possibilities of reverter or by possible rights of entry 
 for breach of condition for a longer period than lives in be- 
 ing and twenty-one years. The rule should be extended by 
 statute to both of these future contingent interests, since 
 they have exactly the same effect in restraining or dis- 
 couraging alienation as have contingent remainders and 
 contingent executory interests. It seems clear that the law 
 is too firmly settled to permit of change by decision affecting 
 interests heretofore created. 
 
 (d) Equitable Estates. Trust estates, or estates in 
 equity, are subject to the rule exactly as legal estates. It is 
 clearly recognized in the cases and by the leading writers 
 that no distinction exists between contingent equitable re- 
 mainders and executory equitable interests, since contingent 
 remainders do not require a precedent life estate to support 
 them, seisin never being in abeyance because always in the 
 trustee." But by the modern law in nearly all jurisdictions 
 legal contingent remainders no longer require a precedent 
 life estate to make them valid.^^ It follows beyond the pos- 
 sibility of doubt that no distinction should be made between 
 contingent remainders and executory future interests at law 
 
 17. Abbiss V. Burney, 17 Ch. Div. 18. See § 244, antm, 
 811; Gray Perp. (2d ed.), § 324. 
 
Gifts to a Class. 577 
 
 any more tlian in equity. Wlietlier the future interest be a 
 contingent remainder or an executory interest, whether 
 legal or equitable, it is subject to the rule in exactly the 
 same way. 
 
 A vested trust estate like a vested legal estate does not 
 violate the rule, irrespective of the period for which it may 
 continue. The peculiar situation in New York and a few 
 other states arising out of the inalienability of express 
 trusts to collect and apply the rents and profits for life or for 
 a shorter term will be considered hereafter." 
 
 (e) Personal Property. The rule applies to gifts of per- 
 sonalty exactly as to gifts of realty.*" Statutory differences 
 in some states are noted hereafter.*^ 
 
 § 263. Gifts to a Class. — The application of the rule is 
 well illustrated by gifts to classes. A gift to the grand- 
 children of the testator who shall attain the age of twenty- 
 five, or other age exceeding twenty-one, is void, as is a gift 
 to the children of some third person who live to attain to 
 any stated age exceeding twenty-one. The children who 
 may qualify as members of the class may be born after the 
 testator's death and the parent of the children subse- 
 quently born may die before such children attain the age 
 of four years, so that their interest will not vest within 
 twenty-one years after the death of the parent or parents, 
 whose lives are the " lives in being " involved in the case^ 
 
 19. See § 271, post. 21. See §§ 273, 273, post. 
 
 20. See cases and authorities here- 1. Wilkinson v. Duncan, 30 BeaT. 
 tofore cited, many of which relate to 111; Leake v. Robinson, 2 Mer. 363. 
 future limitations of cl)attels and See long list of English cases cited In 
 chattels real, or tenancies for years. Gray Perp. (2d ed.), § 374, note Ij 
 Exactly the same considerations Coggins' App., 134 Pa. St. 10. See, 
 apply to future remote interests of also, cases cited in notes following, 
 personalty as apply to such interests Where land is devised to A for life, 
 in real property, and there is at least remainder to such of his children as 
 equal reason in public policy why the attain the age of twenty-five, and at 
 same law should govern. See- Gray the testator's death A is living and 
 Perp. (2ded.), §§ 319-331b. has children then living, these chil- 
 
 S7 
 
678 
 
 The Rule Against Peepetuitiks. 
 
 If the age to be reached as a condition precedent to the vest- 
 ing of the estate is twenty-one or less the limitation is good, 
 since it must vest within twenty-one years after the death 
 of the parent or parents.^ 
 
 Where a life estate is given to A, remainder to such of his 
 children as attain twenty-five, and A_d^ies before the testa- 
 tor leaving children all of whom are four years old or 
 over, the gift is good, since the limitation must vest, if at 
 
 dren have contingent remainders 
 which must vest, if at all, during 
 their lives. The testator undoubtedly 
 intended that these children should 
 have the entire property divided be- 
 tween them in remainder, provided 
 they should attain the age of twenty- 
 five, and other children should not be 
 born to A. He also intended that 
 their shares should be defeated by 
 their death before attaining twenty- 
 five, but as this contingency must be 
 determined during their lives, it can- 
 not affect the validity of the gift. 
 The contingent remainders to the 
 children of A not yet bom are con- 
 ceededly void as violating the rule, 
 since such children may not attain 
 the age of twenty-five within twenty- 
 one years after the death of A. [f 
 the interests of these children can be 
 separated from the interests of the 
 children in existsnce at the testator's 
 death, the interests of the latter may 
 be preserved without violating the 
 rule. It is true tliat the testator in- 
 tended that the share of each child 
 then in existence, should be dimin- 
 ished by the birth of other children. 
 But as to the children in existence, 
 their shares must either be defeated 
 or become certain within their lives, 
 for upon any child's becoming twenty- 
 five the class is closed, and subse- 
 quently born children cannot be ad- 
 
 mitted, so that the share of any child 
 in existence at the testator's death 
 could not be diminished thereafter by 
 the birth of other children. But his 
 share may be increased by the death 
 of a child bom after the death of the 
 testator, and it was the testator's in- 
 tent that his share should be so in- 
 creased in that event. To that extent 
 the limitation would also be void as 
 violating the rule. The gift to the 
 living children is in all respects within 
 the rule except as to such increase in 
 their shares as may result from the 
 death of children subsequently bom. 
 It is difficult to see why this contin- 
 gent and improbable interest may not 
 be separated from the balance of the 
 gift to the living children, making 
 void only the gift to children to be 
 subsequently born, and the division 
 of their shares among the others in 
 case of their death before attaining 
 twenty-five. The law seems settled 
 to the contrary, however. See Gray 
 Perp. (2d ed.), §§ 382, 385. 
 
 2. Woodruff V. Pleasants, 81 Va. 
 37; Gray Perp. (2d ed.), § 370. 
 
 A gift to grandchildren of a living 
 person other than the testator who 
 live to attain the age of twenty-one 
 is bad because that person may have 
 children after the testator's death 
 who may have children that will at- 
 
Gifts to a Cxass. 579 
 
 all, witMn twenty-one years, it being impossible that any 
 children be subsequently born who would be members of the 
 class.' So if at the time of the testator's death A is living, 
 but one of his children has attained the age of twenty-five 
 (or other age as required by the will), the class is then 
 closed, and no child subsequently born to A will be en- 
 titled to take. The gift is good, because no child subse- 
 quently born will be entitled to take, and the gift must vest 
 within the lives of the children living at the death of the 
 testator{i<* The same result follows in any case in which 
 the gift is limited to persons living at the testator's death. 
 
 Where the estate is to vest in the children or members of 
 the class living at the parent 's death, or within a period not 
 too remote subject to be divested and to go over to the 
 others in case of the death of any child before attaining 
 twenty-five, the rule is not violated because the estate vests 
 within the limits of the rule, subject to be divested by the 
 happening of the contingency. If the gift is not to vest 
 until the children attain the age of twenty-five (or any 
 other age over twenty-one), the rule is violated, as in the 
 cases above discussed. 
 
 The extreme technicality of the rule that the interest 
 must be one which by no possibility may suspend vesting for 
 longer than the period fixed by the rule is illustrated by a 
 gift to such of the children of a woman as attain twenty- 
 five. Though the woman be far past the age of possible 
 child-bearing the gift is void, since for the purj ..;s of the 
 rule the woman is regarded as capable of giving birth to 
 children as long as she lives.^ 
 
 Where separate and distinct gifts are made to a class of 
 
 tain the age of twenty-one long after 4. Picken v. Matthews, 10 Ch. Div. 
 
 the expiration of Uvea in being and 364; Gray Perp. (2d ed.), § 379, note* 
 
 twenty-one years after testator's 1 and 2. 
 
 death. Beliield v. Booth, 63 Conn. 5. Jee v. Audley, 1 Cox Ch. 324; 
 
 299; Gray Perp. id. § 370. Gray Perp. (3d ed.), § 215. See, also, 
 
 3. Southern v. Wollaston, 16 Beav. Stout v. Stout. 44 N. J. Eq. 479; Ra 
 
 876, Dawson, 39 Ch. Div. 155. 
 
580 The Euub Against Peepetuities. 
 
 persons, separable as to each member of tbe class, it is 
 good as to those members whose portion must vest within 
 lives in being and twenty-one years, and is void only as to 
 those members whose interests may not vest within that per- 
 iod. Thus where the testator provided that his property 
 should be held in trust for his nephew for life, and on his 
 death to be divided among his nephew's children as the 
 nephew should appoint by deed or will, and' the nephew in 
 his will directed that £2,000 be paid to each of his daughters 
 when they should attain the age of twenty-four, and the resi- 
 due to be divided among his sons when they should respec- 
 tively attain the age of twenty-four, the gift to the daugh- 
 ters over three years of age was good, since they must at- 
 tain twenty-four, if ever, within twenty-one years after the 
 father's death, the share of each being definite and there- 
 fore separable, but the gift to the sons was void, since 
 some of the sons were under three years of age at his death, 
 and the shares of all of them might not be determined 
 within twenty-one years after the father's death.' 
 
 G. Wilkinson v. Duncan, 30 Beav. ant in common for life, remainder to 
 
 111; Gray Perp. (2d ed.), §§ 389, 391. hia or her heirs. Each share must be 
 
 In any case in which the number of considered, therefore, as a separate 
 the shares is definitely fixed within limitation, the remainder in eacli case 
 lives in being and twenty-one years, being void or valid depending on 
 each share must be considered separ- whether it will vest within the re- 
 ately, those interests certain to vest quired limits. So in Dorr v. Lovering, 
 within the required limits being valid. 147 Mass. 530, overruling Lovering v. 
 and those not so vesting being invalid. Lovering, 139 Mass. 97, and Sears v. 
 Thus in Hills v. Simonds, 125 Mass. Russell, 8 Gray (Mass.) 86. the court 
 536, the testator devised property to took the same position, the testator 
 the children of his brothers and sis- having created a trust for his daugh- 
 ters in equal shares for life, and on ter Nancy for life, and on her death 
 the death of each brother and sister for Nancy's children for life, and on 
 the share of the one so dying to go to the death of any child of Nancy its 
 his or her children or their legal rep- share to go in fee to the children of 
 resentatives. The gift to the children such child. The court held that as 
 of such brothers and sisters as were Nancy's children were all born before 
 in existence at testator's death or testator's death the remainder to the 
 their legal representatives, \va«i valid, children of each child was good since 
 Each brother and sister took as ten- it must vest within a life in being. 
 
POWBES. 681 
 
 § 264. Powers. — The rule against perpetuities is vio- 
 lated by a power whicli can, by possibility, be exercised at 
 too remote a time, viz.: some time after the expiration of 
 lives in being and twenty-one years after the taking effect 
 of the instrument creating the powers.* The interest to 
 be created by the power may not vest in such case within 
 the required limits. Though the contingency on which 
 the power is to be executed may happen after lives in being 
 and twenty-one years and therefore is too remote, never- 
 theless the power is good if it can be exercised only by a 
 person or persons in being when the power was created, 
 since in such case it must be exercised, if at all, within lives 
 in being.^ But a power given to a living person to create a 
 contingent estate depending on a contingency which may 
 not happen within lives in being and twenty-one years after 
 the taking effect of the instrument creating the power is 
 void, since the future interest created by the power might 
 Hot vest within lives in being and twenty-one years from 
 the time the power was created.** 
 
 The gift would be void as to the chil- A general power of sale, unlimited 
 
 dren of any child of Nancy born after as to time, given to trustees, is valid, 
 
 the testator's death. See Gray Perp. because in any case the cestui que 
 
 (3d ed.), §§ 392-394. trust has the powers to have the land 
 
 8. In re Hargreaves, 43 Ch. Div. conveyed to him in fee at any time, 
 401; Johnson's Estate, 185 Pa. St. terminating the power. He is sub- 
 179; Hartson v. Elden, 50 N. J. Eq. stantially the owner in fee. If there 
 532; Gray Perp. id. § 475. are prior equitable life estates they 
 
 9. Collins V. Foley, 63 Md. 158; will end within lives in being, and 
 Lawrence's Est., 136 Pa. St. 354; prior equitable estates tail may be 
 Gray Perp. id. § 475. barred wherever they are permitted, 
 
 10. Gray Perp. id. §§ 476, 476a. and the property is in no case tied 
 A power which must be exercised up by the power for more than lives 
 
 within a reasonable time, such as a in being, if at all. Cole v. Sewell, 4 
 
 power to sell in order to pay debts Dr. & W. 1, 32 ; Seamans v. Gibbs, 132 
 
 or legacies, and twenty-one years is Mass. 239; Cooper's Estate, 150 Pa. 
 
 more than a reasonable time, is valid, St. 576; Hart v. Seymour, 147 111. 
 
 since it must be exercised, if at all, 598; Pulitzer v. Livingston, 89 Me. 
 
 within twenty-one years. Gray Perp. 359; Gray Perp. (2d ed.), §5 478-493, 
 
 id. §§ 478, 486. 509k-509r. But where the power in 
 
.t^ 
 
 582 The Rule Against Peepetttities. 
 
 The mere fact that the power may be exercised in such 
 way as to give rise to an interest which will violate the rule 
 does not make the power void. Thus where a power is given 
 to a life tenant to divide the property among his children by 
 will on his death in such way as he may elect, the power is 
 good though the life tenant may provide that some part of 
 the property go to his children on the happening of a 
 contingency which may not happen within twenty-one years 
 after his death. The power is valid though the exercise of 
 it may bejo create an estate which will be void as violating 
 the ruleii/ In every such case the validity of the interest 
 resulting from the power will depend on whether or not it 
 
 ^^ must vest within lives in being and twenty-one years from 
 the time the instrument creating the power took effect, 
 not from the time the power was exercised. ^^ But where 
 the power of disposing of the property to any one by deed 
 
 ' or will is given, so that the person to exercise the power may 
 appoint himself or anyone else as he may elect, he is as a 
 practical matter owner of the property, and the rule against 
 perpetuities does not apply.'* 
 
 such case is made independent of the ment made under a power is good, nn- 
 
 cestui que trust, and is intended to less at the time of the creation of the 
 
 continue for a time not limited to power it was certain that if the ap- 
 
 a reasonahle time, less than twenty- pointment was ever made the ap- 
 
 one years after the cestui acquires pointee's interest would vest) if at all, 
 
 the fee, or to lives in being and within twenty-one years after lives 
 
 twenty-one years after its creation, then in being." Gray Perp. (2d ed.), 
 
 it is void as violating the rule. Such § 515. 
 
 a situation is exceedingly improbable, 13. Gray Perp. {2d ed.), § 524. In 
 
 and tlie intent to create such a. power such case the exercise of the power ia 
 
 must be very clearly expressed. Id. in effect a disposition of the property 
 
 § 493. of the person so exercising the power, 
 
 11. Wilkinson v. Duncan, 30 Beav. and a future interest so created by 
 111; Lawrence's Estate, 136 Ta. St. him is valid if it must vest within 
 354, 364; Hillen V. Iselin, 144 N. Y. lives in being and twenty-one years 
 365, 380; Lewis Perp., 487, 488; Gray from that time, not from the time the 
 Perp. {2d ed.), §§ 510, 612. power was created. Miffln's Appeal, 
 
 12. See last preceding note. As 121 Pa. St. 205. 
 
 rtated by Prof. Gray, "No appoint- In New York, Michigan, Minnesota 
 
Chakitable Teusts. 683 
 
 § 265. Charitable Trusts. — A charitable trust involves, 
 as we have seen,^ a trust for some cbaritable or benevolent 
 object, the beneficiaries being tbe general public or some in- 
 determinate part thereof. There are no definite and ascer- 
 tained beneficiaries. A present charitable trust in no way 
 violates the rule against perpetuities which is concerned 
 only with future contingent interests. There are no defi- 
 nite beneficiaries of a charity, and therefore the beneficial 
 interest cannot be alienated. That they necessarily suspend 
 the power of alienation arises, therefore, from their inherent 
 nature. 
 
 But a charitable trust cannot be created to arise at a time 
 in the future which will be too remote under the rule. In 
 other words the present estate in a private person in fee 
 cannot be tied up by the creating of a future contingent 
 charitable trust to take effect at a time which is too re- 
 mote under the rule.^ But where a present charitable trust 
 in fee is followed by another charitable trust in fee to take 
 effect on the happening of some contingent event in the 
 future, it is immaterial whether such event must happen 
 within lives in being and twenty-one years or not. In other 
 words the rule against perpetuities does not apply to a 
 
 and Wisconsin statutes provide tliat 604; 1 Stim. Am. St. L. { 1658. 
 
 the period of suspension of alienation 1. See § 198, ante. 
 
 must be computed from the time of 2. Johnson's Trusts, L. R. 8 Eq. 
 
 the creation of the power, not from 716; Leonard v. Burr, 18 N. Y. 96, 
 
 the time of the exercise of the power. 107; Smith v. Townsend, 32 Pa. St. 
 
 N. Y. Real Prop. L., § 178. Section 434. 
 
 179 of the same act provides that "An Where a gift to an individual is 
 estate or interest cannot be given or made to take effect after the expira- 
 limited to any person, by an instru- tion of a charitable trust it goes with- 
 ment in execution of a power, unless out saying that the gift over is sub- 
 it would have been valid, if given or ject to the rule. Church in Krattle 
 limited at the time of the creation of Sq. v. Grant, 3 Gray (Mass.) 142; 
 the power." This clearly changes the Theolog. Educ. Soc. v. A. G., 135 
 common law rule as to the validity of Mass. 285 ; Merritt v. Bucknam, 77 
 an estate so created by exercise of a Me. 253. On the subject of Charitable 
 general power. Fargo v. Squiers, 154 Trusts under the rule, see Gray Perp^ 
 N. Y. 250; Dana v. Murray, 122 N. Y. (2d ed.), Oh. XVm. 
 
684 The Kule Against Peepetuities. 
 
 charitable trust limited to take effect on the termination 
 of a present charitable trust, whether a change of trustees 
 is provided for or not. Therefore if a trust is created in 
 city A for a stated charitable purpose, and on the happen- 
 ing of some contingency not illegal or impossible the prop- 
 erty is to go to city B for another charitable purpose, the 
 second limitation is valid though it depends on a conting- 
 ency which may not happen within the limits fixed by the 
 rule.' The reason is that the purpose of the rule is a practi- 
 cal one — to prevent the tying up of property and the taking 
 it out of commerce for too long a time by the creating of 
 future contingent interests. But where a present chari- 
 table trust is created the property is effectually taken out of 
 commerce in a valid way. The provision that on the hap- 
 pening of a contingency the first charity shall cease and 
 another arise will in no way change the situation as to alien- 
 ability. The property will continue to be inalienable as it 
 would have been had the first trust been absolute. There 
 is no reason, therefore, for declaring the second trust void 
 merely because it may not vest within the required limits; 
 because alienation is suspended in any event by the first 
 charity shoidd the second trust be declared invalid.* 
 
 Where a gift for a charitable purpose is made to a cor- 
 poration to be formed, it is good because if the corpora- 
 tion should not be formed within a reasonable time, under 
 the cy pres doctrine the court will carry out the general 
 charitable purpose of the testator and give effect to the 
 charitable trust in some other way. Therefore the gift does 
 not violate the rule, since it does not necessarily depend 
 on the incorporation as a condition precedent, but is a 
 present vested interest." 
 
 S. Christs' Hosp. v. Grainges, 16 4. See Gray, Perp., §5 600-603h. 
 
 Sim. 83; Storrs Agr. School v. Whit- 5. Inglis v. Sailor's Snug Harbor, S 
 
 ney, 54 Conn. 342; Lennig's Est., 154 Pet. 99; Shprman v. C!ong. Missionary 
 
 Pa. St. 209; Odell v. Oclell, 10 Allen Soc, 176 Mass. 349; Andrews v. And- 
 
 (Mass.) 1; Gray Perp. (3d ed.), §§ rews, 110 111. 223 ; Crerar v. Williams, 
 
 697-599. 145 111. 625; Harrington v. Pier. 105 
 
AcOUMUUA.TION8. 
 
 585 
 
 Where the charitable gift depends on any other condi- 
 tion precedent, the charity being a future executory gift not 
 preceded by a gift to a private person or corporation, it is 
 subject to the rule, and the contingency must be one which 
 will certainly happen within the required period, exactly as 
 in the case of a charity following a prior gift to an indi- 
 vidual.® 
 
 § 266. Accumulations. — A direction for the accumulat- 
 ing of income and the payment of the iucome so accumu- 
 lated to a person on the happening of some contingent event 
 is void at common law if the right to the enjoyment of the 
 income depends on such event as a condition precedent and 
 the event may not happen within the limits fixed by the 
 rule against perpetuities.^ But if the right to principal and 
 
 Wis. 435, 510; Miasoui. Hist. Soc. T. 
 Academy of Science, 94 Mo. 459; 
 Wentworth v. Fernald, 92 Me. 282; 
 Stevens' Est., 164 Pa. St. S09 ; Estate 
 of Merchant, 143 Cal. 537. See Cray 
 Perp. (2d ed.), §§ 607-609, and long 
 list of cases there cited. 
 
 In New York the common law rule 
 as stated in the text has been re- 
 stored by subsequent legislation. Al- 
 len V. Stevens, 161N.Y. 122; Ch. 701, 
 N. Y. Laws of 1893, now § 113 of the 
 Real Prop. Law. The former rule in 
 New York that a charitable gift to a 
 corporation not in existence was void 
 prevails in Michigan and Minnesota 
 as to real property only. State v. 
 Holmes, 115 Mich. 356. See Hopkins 
 T. Orossley, 132 Mich. 612; Little v. 
 Willford, 31 Minn. 173; Atwater v. 
 Russell, 49 Minn. 22. In Minnesota, 
 gifts to churches and religious socie- 
 ties are excepted by statute and are 
 valid, though made to a corporation 
 to be formed (Minn. Gen. Statutes, 
 1894, § 3048) . In Wisoonsin the New 
 
 York Revised Statutes have been fol- 
 lowed, but this question has not been 
 decided. Harrington v. Pier, 105 Wis. 
 4S5, 494. For a discussion of modi- 
 fications of the general rule as stated 
 iu the text in these and other states, 
 see Gray Perp. (ad ed.), §§ 609-687. 
 
 6. Chamberlayne v. Brockett, L. R. 
 8 Ch. 206; Brooks v. Belfast, 90 Me. 
 318, 324; State v. Holmes, 115 Mich. 
 456; Jocelyn v. Nott, 44 Conn. 55; 
 Gray Perp. (2d ed.), 605, 606a. 
 
 As to charitable gifts after prior 
 limitations to individuals, see note 2 
 under this section. 
 
 1. Gray Perp. (2d ed.), § 671. The 
 gift of the accumulated income is void 
 and the trust created for that purpose 
 is also void, the property going to 
 those who would otherwise be en- 
 titled, had there been no such provi- 
 sion. Gerber's Est., 196 Pa. St. 366; 
 Thorndike v. Loring, 15 Gray (Mass.) 
 391; Andrews v. Lincoln, 95 Me. 541. 
 See Gray Perp. (2d ed.), S 674, and 
 cases cited. 
 
886 The Eule Against Pbepetuities. 
 
 income is vested in the person to wliom the accumulated in- 
 come is to be paid, the provision for accumulation being 
 merely an attempt to render the property aod its income 
 inalienable until the happening of a future event, or until a 
 future date, the direction for accumulation is void as an 
 illegal restraint upon alienation, and can be put an end to by 
 such person at any time, he being entitled to the property 
 absolutely, and therefore the rule against perpetuities is 
 not involved.^ If the direction for accumulation violates 
 the rule because dependent on a condition precedent which 
 may not happen within the limits of the rule, it is bad al- 
 together.^ 
 
 By the Thellusson Act (39 and 40 Geo. m, c. 98), accu- 
 mulations are allowed for any one of four different periods. 
 1. For the life or lives of the grantor or grantors, settler or 
 settlers of the accumulation. 2. For the term of twenty- 
 one years from the death of the grantor, settler, devisor or 
 testator. If the accumulation is to start later it will end 
 twenty-one years after the death of the person creating it. 
 If it is to start, for instance, ten years after his death, it will 
 run for only eleven years.* 3. During the minority or 
 minorities of any person or persons living or en ventre sa 
 mere at the death of the grantor, devisor or testator. 4. 
 During the minority or minorities of persons who, under 
 the uses or trusts of the deed or will directing the accumula- 
 
 2. Rogers' Est., 179 Pa. St. 603; Kelynge, 2 V. & B. 567, note; Oti3 
 Kimball v. Crocker, 53 Me. 263. If v. Coffin, 7 Gray (Mass.) 511. 
 the interest is to vest in the bene- In these as in other cases of future 
 ficiary at some future time, on his estates the courts lean as a matter 
 birth, or on the happening of some of construction in doubtful cases to- 
 event which must happen, if at all, ward construing them as vested inter- 
 within the period fixed by the rule, ests to which the rule does not apply, 
 the direction to accumulate thereafter rather than contingent interests de- 
 is void as an illegal restraint on alien- pendent on a condition precedent, 
 ation, and may be terminated by the Gray Perp. (2d ed.), § 673, and cases 
 beneficiary at will, so that the prop- cited, 
 erty is no longer tied up. Phipps v. 3. See cases in note 1, »upra. 
 
 4. See Gray Perp. (2d ed.), § 697. 
 
Accumulations. 587 
 
 tion, would for the time being, if of full age, be entitled to 
 tbe rents and profits or income so directed to be accumu- 
 lated. If the accumulation is to start at the testator's 
 death for the benefit of a person not then born, it can con- 
 tinue for twenty-one years only, not until the beneficiary 
 subsequently born attains the age of twenty-one. But if it 
 is to start on the birth of that person it may continue dur- 
 ing his minority." Under this act a provision in violation 
 of the statute is void only as to the excess. It will be good 
 for twenty-one years in any event, provided it does not 
 violate the rule against perpetuities. If it violates the rule 
 it is void altogether.® In Pennsylvania a statute similar in 
 most respects to the Thellusson Act has been enacted.'^ In 
 most of the states accumulations are governed by the rule 
 against perpetuities, being valid if they do not violate the 
 rule.® 
 
 In New York, followed by Michigan, Wisconsin and Min- 
 nesota, the matter of accumulations is covered by statutes 
 forming part of the elaborate system of statutes in those 
 states relating to future estates and perpetuities. All ac- 
 cumulations are forbidden and made void except those ex- 
 pressly permitted. Accumulations are permitted for the 
 benefit of minors during minority. The accumulation must 
 end as to each minor upon his attaining the age of twenty- 
 one, and the accumulated incomes must then be paid to 
 him.^ An accumulation directed to be continued for too 
 long a period is void only as to the excess, being valid dur- 
 ing the minority of each beneficiary.*" Where the accumu- 
 
 6. Gray Perp. (2d ed.), S 699. ors in being at the death of the testa- 
 G. Gray Perp. (2d ed.), §§ 687, 688. tor. 
 
 7. St. of Apr. 18, 1853, § 9. For a 8. See cases cited in notes l and 3, 
 discussion of this statute and a re- supra. 
 
 view of Pennsylvania cases thereun- 9. N. Y. Real Prop. L., § 61; 1 Stim. 
 
 der, see Gray Perp. (2d ed.), §§ 715- Am. St. Law, § 1443. See note 12, 
 
 7S5. See Ala. Rev. Code of 1897, § post. 
 
 1031, limiting accumulation to ten 10. The statutes so expressly pr»- 
 
 jeara, or during the minority of min- vide. See preceding note. 
 
588 
 
 The Ktile Against Peepbtuities. 
 
 lation is to start in the future, as on the birth, of the bene- 
 ficiaries, it must appear that it will certainly start within 
 two lives." A direction that the accumulated income be 
 added to the principal of the trust fund, and the income 
 therefrom be paid to the beneficiary thereafter is void. 
 The entire sum so accumulated must be paid to the bene- 
 ficiary or at least his share thereof, upon his attaining the 
 age of twenty-one. ^^ In other words the accumulation must 
 be solely for the benefit of the minors involved, not for any 
 other purpose.'^ 
 
 Thus a trust to accumulate until 
 A is forty, and upon his attaining 
 that age to pay him the accumulated 
 income and principal will he enforced 
 by paying him the accumulated in- 
 come when he attains twenty-one; 
 thereafter until he attains the age of 
 forty he must be paid the income each 
 year, and upon attaining the age of 
 forty he takes the principal. Pray v. 
 Hegeman, 93 N. Y. 508; Eadley v. 
 Kuhn, 97 N. Y. 26; Cochrane v. 
 Schell, 140 N. Y. 516, 536 ; Hascall t. 
 King, 168 N. Y. 134. 
 
 11. The statutes so proyide. See 
 note 9, supra. 
 
 12. Pray v. Hegeman, 93 N. Y. 508; 
 Barbour v. De Forest, 95 N. Y. 13; 
 Wilson V. Odell, 58 Mich. 533. 
 
 13. Hascall t. King, 162 N. Y. 134; 
 Hafner v. Hafner, 62 App. Div. (N. 
 Y.) 316, aff'd 171 N. Y. 633. 
 
 See Smith v. Parsons, 146 N. Y. 
 116, holding that a gift of the ac- 
 cumulation to another in ease the 
 minor die before attaining bia ma- 
 jority is good. 
 
General Nature of Changes. 589 
 
 CHAPTER XVI. 
 
 Statutory Changes in Rule Against Perpetuities. 
 
 § 267. General Nature of Changes. — In New York an 
 elaborate statutory scheme as a substitute for the common 
 law rule was evolved as part of the Eevised Statutes, taking 
 effect January 1, 1830. This scheme has been followed in 
 whole or in part in several of the more important states, 
 and must therefore be carefully considered in any general 
 treatise on the subject of real property. The modifications 
 of this scheme in other states will be noted in the discussion 
 of the New York statutes. 
 
 These statutes assume as a basis that the rule against per- 
 petuities has for its main object the limiting of future inter- 
 ests which will suspend the absolute power of alienation, 
 makingvoidonlythose future estates which may suspend the 
 absolute power of alienation of the property involved for too 
 long a time. That this is a mistaken conception of the real 
 purpose and scope of the rule as it has been developed at 
 common law seems clear, as executory legal interests which 
 could be released and equitable interests which could be 
 released or assigned, and which therefore did not suspend 
 the absolute power of alienation, were repeatedly held to 
 be subject to the rule.^ As provided by these statutes the 
 absolute power of alienation is suspended when an absolute 
 fee in possession cannot be transferred. If everybody hav- 
 ing any interest, present or future, vested or contingent, 
 executed or executory, join in a conveyance or transfer of 
 the property in question to X, as representing any grantee, 
 there is a suspension of the absolute power of alienation if 
 X does not take an absolute estate in fee in possession. If 
 he takes such an estate there is no such suspension and 
 
 1. See §§ 359-361, ante. 
 
590 Statutoey Changes in Rule Against PEEPETUiTiEa. 
 
 the future interests involved are not void as causing an un- 
 due suspension of this kind. 
 
 The statutes provide that "every future estate shall be 
 void in its creation which shall suspend the absolute power 
 of alienation by any limitation or condition whatever for 
 a longer period than during the continuance of not more 
 than two lives in being at the creation of the estate; ex- 
 cept that a contingent remainder in fee may be created on 
 a prior remainder in fee, to take effect in the event that the 
 person to whom the first remainder is limited die under the 
 age of twenty-one years, or on any other contingency by 
 which the estate of such persons may be determined before 
 they attain full age. For the purposes of this section a 
 minority is deemed a part of a life, and not an absolute 
 term equal to the possible duration of such minority. ' ' ^ 
 
 The common law rule is therefore changed, first, by sub- 
 stituting suspension of the absolute power of alienation 
 through future estates for remoteness of vesting; second, 
 by substituting arbitrarily two lives in being for any num- 
 ber of lives in being, as the measure, in part, of the period 
 of suspension allowed; third, by eliminating the provision 
 that the suspension may continue for a flat term of twenty- 
 one years, or for the minority of any person who may hap- 
 pen to be involved, and substituting therefor a possible 
 further suspension, in addition to a period measured by 
 two lives in being, of the actual minority of a remainderman > 
 in fee whose interest is subject to be defeated by his death 
 or some other contingency occurring before he attains the 
 age of twenty-one, on the happening of which contingency 
 the estate is to go over to another. A limitation of this 
 
 2. N. Y. Real Prop. Law, § 43. 2038-8045, S047, 2048, 2060-2084. 
 
 Michigan, Wiscns'n and Minnesota (In Wisconsin suspension is allowed 
 
 have adopted the New Yo-k scheme for two lives in being and twenty-one 
 
 In almost every detail. 3 Mich. Comp. years, § 2039) ; Minn. Gen. Sti 
 
 Laws (1897), i§ 8796-8803, 8805, (1894), §§ 4375-4382, 4384, 4385, 
 
 8818-8833; 1 Wis. Sta. (1898); §§ 4397-4401. 
 
General Natuee of Changes. 591 
 
 kind, involving a suspension for more than two lives, is of 
 rare occurrence. A conveyance or devise to A for life, re- 
 mainder to B for life, remainder to C in fee, but if C should 
 die before attaining the age of twenty-one (or on any other 
 contingency which must happen before he attains twenty- 
 one), then to such person as may be at that time mayor 
 of New York, is an illustration. The absolute power of 
 alienation is suspended because the future contingent in- 
 terest in the person who may be mayor of New York after 
 the death of A and B and the termination of O's minority 
 cannot be conveyed during all this time, because it is im- 
 possible to say who will be mayor at that time, and there 
 is no one who can convey his interest. Upon C's attaining 
 twenty-one he will have an absolute estate, or upon his 
 death before that time the then mayor would take an abso- 
 lute estate, and the suspension would be at an end.' 
 
 The first question to determine in any case arising under 
 these statutes is whether or not the absolute power of alina- 
 tion is suspended. Such suspension can exist in only four 
 
 3. 3 Reeves Real Prop. 1269 ; Manice by will was made to the daughter for 
 
 V. M'anice, 43 N. Y. 303 ; Totns v. Wil- life, remainder in fee to her children 
 
 liams, 41 Mich. 553. surviving her, provided they should 
 
 Tlie purpose of the revisers in attain the age of twenty-one, with 
 making this provision was to permit a gift over to the grandchildren of 
 the limiting of a future estate to un- the testator, then living in case no 
 born persons, as to the children of a child of the daughter should attain 
 prior life tenant, subject to the condi- twenty-one. Here there was a pos- 
 tion that they attain twenty-one sible suspension during the life of the 
 years, or subject to some other con- daughter and during the minority of 
 tingency which must happen, if at all, a child or children of the daughter, 
 before they attain twenty-one. Any who might be bom after the death of 
 suspension to. continue after the death the testator, the suspension during 
 of the parent of such children would their " minority being due to the con- 
 be void except for this provision, tingent executory interests limited 
 since the children in question might over by way of conditional limitation 
 be born after the death of the testa- to the grandchildren who might then 
 ior. A good illustration of the appli- be in existence, their identity being 
 cation of this provision is Adams v. uncertain. 
 Beyer, 37 Abb. N. C. 439. Here a gift 
 
592 Stattjtoet Changes in Eule Against PEEPETuiTiaa, 
 
 classes of cases wliicli will be taken up and considered sej)- 
 arately. These four classes are: 1, suspension caused by 
 contingent remainders; 2, suspension caused by future ex- 
 ecutory interests; 3, suspension caused by powers; 4, sus- 
 pension caused by trusts. 
 
 § 268. Suspension Caused By Contingent Remainders.— 
 
 Such suspension may be caused by contingent remainders 
 limited to unborn persons or persons whose identity remains 
 so unascertained that they cannot convey or release their 
 interests. Thus where property is devised to A for life, 
 remainder to B for life, or to A and B until the death of the 
 survivor, remainder to the first mayor of Gloversville upon 
 its incorporation as a city, the remainder is void, since 
 Gloversville may not be incorporated during the lives of A 
 and B, and the person who will be its first mayor may not 
 be ascertained within two lives, and in the meantime the 
 contingent remainder in such mayor could not be con- 
 veyed. Where a gift is made to A, B and C for their lives, 
 either as joint tenants or as tenants in common with cross 
 remainders between them until the death of the survivor, 
 remainder in fee to the children of the survivor living at his 
 death, the remainder to such children is void because con- 
 tingent upon their birth, and an absolute fee cannot be 
 conveyed until the death of the survivor of the three life 
 tenants or after three lives. A child born to the third life 
 tenant shortly before his death may be the one who will be 
 entitled to take the remainder, in whole or in part, and 
 therefore the absolute power of alienation would be sus- 
 pended until the death of such third surviving life tenant.* 
 
 4. Sawyer v. Cubby, 146 N. Y. 193, after tlie lapsing of any fixed time, 
 
 198; Knox v. Jones, 47 N. Y. 389; suoh as twenty years, not measured 
 
 Dana v. Muray, 123 N. Y. 604. by lives in either case, is void as sus- 
 
 A contingent remainder to Unas- pending the absolute power of aliena- 
 
 certained persons limited to take tion for a fixed period not measured 
 
 effect at a fixed date in the future or by one or two lives. Thus in Haynes 
 
SusPENsio]sr Caused by Contingent Eemaindbks. 593 
 
 It seems to be settled under the cases tliat where three 
 successive life estates are given to A, B and C, a remainder 
 to the children of C is bad for the same reason." But it is 
 submitted that this question requires a re-examination. 
 Here the children of C must all be born during C's life, and 
 on C's death all the persons entitled to take the remainder 
 will have been ascertained, and their interests can be trans- 
 ferred, so that an absolute estate in possession can be con- 
 veyed. If A and B are still alive when C dies, A and B 
 and the children of C may convey an absolute estate in fee 
 in possession. If A and B are then dead, the children of C 
 have the entire fee and, of course, can convey it. In any 
 event the period of suspension is measured solely by the 
 life of C, the lives of A and B having nothing to do with 
 it. The statute does not require that the remainder must 
 vest in possession, or even in interest, within two lives in 
 being. It simply requires that the remainder become alien- 
 able by the ascertainment of the remaindermen within 
 two lives. In the above case the remainders became alien- 
 able on the death of C, within one life, whether or not the 
 
 ▼. Sherman, 117 N. Y. 433, a re- A gift to grandchildren after pre- 
 mainder to the testator's then living cedent life estates causes no suspen- 
 heirs after a trust to continue until sion if there are grandchildren living 
 his youngest child should attain the at the testator's death, since the re- 
 age of twenty-one, or would have at- mainder vests in them at once, and 
 tained that age if living, was void they may join with the life tenants 
 since limited to persons whose ident- in conveying the property in fee. 
 ity would not be determined until a Subsequently born grandchildren will 
 fixed date in the future, viz.: the date be admitted to an equal share, and as 
 when the youngest child would at- every such grandchild must be born 
 tain the age of twenty-one, or would within the life of its parent, its share 
 have attained that age if living, the will be alienable within one life, and 
 period of suspension in no way meas> is therefore good. Wilbur v. Wilbur, 
 ured by the life of the child. So a 166 N. Y. 461; Haug v. Schumacher, 
 gift to grandchildren living at a date 166 N. Y. 506; Smith v. Edwards, SS 
 in the future fixed for final distribu- N. Y. 93. 
 
 tion, not measured by lives, would 5. Purdy v. Hayt, 92 N. Y. 446 ■. 
 
 be void for the same reason. Smith Knox v. Jones, 47 K Y. 389. (>««, 
 
 V. Edwards, 88 N. Y. 92. also, cases in note preceding. 
 
 38 
 
594 Statutoey Changes in Rule Against Pbepetuities. 
 
 precedent life estates of A and B had come to an end, the 
 lives of A and B having nothing to do with the suspension. 
 
 The same result follows where, in the case last referred 
 to, the remainder is given to the surviving children of C, 
 or to the children of C provided they attain twenty-one, or 
 on any other condition precedent. The remaindermen are 
 ascertained when C dies, and they may then convey their 
 interests, no matter how many contingencies may have 
 been added to the limitation. Contingent remainders are as 
 freely alienable as vested interests in New York and most, 
 if not all, the other states, certainly in all in which statutes 
 modifying the common law rule against perpetuities have 
 been enacted. They no longer suspend the absolute power 
 of alienation after the identity of the remaindermen has 
 been ascertained.' 
 
 The common law rule as to remoteness of vesting has 
 been partly retained in New York in the case of a contingent 
 remainder limited after a term of years. The statute pro- 
 vides that a contingent remainder may be limited after a 
 term of years on a contingency which if it should occur 
 must happen within two lives in being. This unquestion- 
 ably applies to all contingent remainders whether to ascer- 
 tained or unascertained persons, irrespective of whether the 
 absolute power of alienation is suspended or not. It has been 
 contended that this statute was intended to apply only to 
 contingent remainders which suspend the power of aliena- 
 tion because limited to a person or persons not ascertained. 
 But such a construction would make the statute of no ef- 
 fect whatever, except to eliminate the provision of § 42 of 
 the Eeal Property Law as to suspension for a possible mi- 
 nority after two lives in being, since under § 42 such a re- 
 
 8. Sawyer v. Cubby, 146 N. Y. 198; tate vests in them at once, possession 
 
 Smith V. Edwarda, 88 N. Y. 93. See only being postponed. Bradley ▼. 
 
 iast two preceding notes. Kuhn, 97 N. Y. 26; Van Brunt T. 
 
 In the case of a gift to children Van Brunt, 111 N. Y. 178. 
 when they attain twcnty-ono. tlie es- 
 
SusPENsion Caused by CJowtingent Remaindbes. 595 
 
 mainder would be void if it migM suspend the power of 
 alienation for more than two lives. The statute means what 
 it says, viz.: that all contingent remainders after a term of 
 years must vest if at all within two lives, and the Court of 
 Appeals has so held, in a case involving exactly the same 
 principle in the construction of a like provision that a fee 
 upon a fee must vest, if at all within two lives, contained in 
 § 50 of the Eeal Property Law.'' 
 
 7. N. Y. Eeal Prop. Law, § 46; 
 Butler V. Butler, 3 Barb. Ch. 304; 
 Matter of Wilcox, 194 N. Y. 288. In 
 this case tlie testator gave one-third 
 of the residue in trust for his daugh- 
 ter for life, remainder in equal shares 
 to her children, each child to take its 
 portion on attaining the age of 
 twenty-one, in the meantime each 
 child to receive its share of the in- 
 come. In case no child of the daugh- 
 ter should attain the age of twenty- 
 one the share of the daughter was 
 given to two other children of the tes- 
 tator. The court held that the trust 
 in favor of the children of the daugh- 
 ter until each should attain the age 
 of twenty-one was void, since the 
 trust might suspend the absolute 
 power of alienation during the minor- 
 ity of children born to the daughter 
 after his death. As the daughter 
 died without issue surviving her, her 
 only child having died long before the 
 testator's death, no question existed 
 as to the validity of the gift by way 
 of remainder to her children. The 
 gift over to the other two children of 
 the testator in case the daughter died 
 without issue who would attain 
 twenty-one was held to be void, being 
 a fee limited after a fee created in the 
 issue of the daughter, depending on a 
 contingency which might net happen 
 within two lives. If there had been 
 
 such children surviving the daughter 
 they would have taken a fee subject 
 to be defeated in case of their death 
 before attaining twenty-one, on the 
 happening of which event the estate 
 would go over to the other two chil- 
 dren of the testator. But as the chil- 
 dren of the daughter might be, and in 
 this case would necessarily be, born 
 after the testator's death if ever, the 
 contingency might not happen within 
 two lives in being at his death, the 
 only measure of the period in which 
 the gift over would take effect being 
 the flat term of twenty-one years. 
 The court, following the express pro- 
 vision of § 50 of the Eeal Property 
 Law, that a fee upon a fee must be 
 limited in a contingency which must 
 happen, if at all, within two lives, 
 held that the gift over was void, 
 though it did not suspend the abso- 
 lute power of alienation at all, the 
 other two children of the testator to 
 whom the gift over was made being 
 alive and able to convey their interest 
 at any time. The court makes clear 
 that the revisers intended to provide 
 against remoteness of vesting in cer- 
 tain cases as well as against suspen- 
 sion of the power of alienation; that 
 if a fee upon a fee was to be held in- 
 valid only in cases where it suspended 
 the absolute power of alienation there 
 would be no reason or purpose in pro- 
 
596 Statutobt Changes in Kule Agaiitst Peepetuitibs. 
 
 § 269. Suspension Caused by Future Executory Interests. 
 — Future executory interests will suspend the absolute 
 power of alienation when limited to unascertained persons, 
 as in the case of contingent remainders. These interests 
 may now be conveyed as freely as estates in possession in 
 most of the states — certainly in New York and the other 
 states which have modified the common law rule against 
 perpetuities by statute. As heretofore pointed out, there 
 is no longer any real distinction between these interests 
 and remainders, and in the New York statutes and the 
 statutes of other states they are called remainders and 
 made subject to the same rules.* 
 
 The New York statute has retained the principle of the 
 common law rule in the case of a fee upon a fee, known as 
 a conditional limitation. The contingency on which the sec- 
 ond fee is to take effect must be one which will necessarily 
 
 Tiding that it must be limited on a 
 contingency which must happen, if 
 at all, within two lives, as provided 
 by § 50 of the statute, § 42 covering 
 the case completely if suspension of 
 the absolute power of alienation was 
 alone forbidden. 
 
 It follows, of course, that under 
 § 46 of the same statute a contingent 
 remainder limited after a term of 
 years is void unless it will necessar- 
 ily vest within two lives, that section 
 so expressly providing, exactly the 
 same principle applying as was ap- 
 plied in the Wilcox case to a fee upon 
 a fee under § 50. 
 
 The court in the Wilcox case by 
 way of dicta lays down the broad gen- 
 eral proposition that all future con- 
 tingent interests must vest within 
 two lives and the possible minority 
 provided for by § 42 of the statute. 
 This position cannot possibly be sus- 
 tained. The revisers provided against 
 
 remoteness of vesting only in the two 
 cases above referred to, a fee upon a 
 fee and a contingent remainder limited 
 after a term of years. There is no 
 suggestion of any other provision 
 against remoteness of vesting any 
 where in the statutes. The supposi- 
 tious case of a trust for 1000 years 
 referred to by the court (p. 305), is 
 one of a great many cases which the 
 New York statutory rule does not for- 
 bid, but which are obviously contrary 
 to public policy. It is very clear that 
 the statute has left the entire ques- 
 tion of perpetuities in a state of con- 
 fusion wliich has been only enhanced 
 by attempts to interpret it. A restor- 
 ation of the common law rule as to 
 all estates created thereafter is the 
 best way out of the difiSculty. See § 
 269, note 11, post. 
 
 8. See § 251, ante; Matter of Wil- 
 cox, 194 N. Y. 288. 
 
SuspENsioiT Caused by Futuee Executoby Inteeests. 597 
 
 happen within a period measured by two lives in being at 
 the creation of the estate. Here as in the case of a con- 
 tingent remainder limited after a term of years, it has been 
 argued that only such interests are intended to be included 
 as suspend the absolute power of alienation because limited 
 to a person or persons not in being or not ascertained.® 
 But the only possible construction is that given it by the 
 Court of Appeals, viz. : that every fee upon a fee must vest 
 if at all within the period fixed by the statute, whether it 
 suspends the absolute power of alienation or not. The 
 language of the statute contains no such qualification, and 
 the provision would be absurd and meaningless if it should 
 be so limited, as § 42 of the Eeal Property Law, limiting 
 suspension of the absolute power of alienation to the statu- 
 tory period, would fully cover the case if the construction so 
 contended for should be adopted, making this provision en- 
 tirely unnecessary.^" 
 
 It seems clear that the revisers themselves must have 
 realized that the limiting of the suspension of the abso- 
 lute power of alienation did not cover the situation, and 
 they attempted to piece out their work by providing against 
 remoteness of vesting in two of the more glaring cases which 
 occurred to them. But there are the same reasons exactly 
 for providing against too remote vesting of all other con- 
 tingent remainders and future executory interests to spring 
 up in the future on the happening of a remote contingency. 
 As the law stands a contingent remainder to a person in ex- 
 istence and his heirs upon the incorporation of Gloversville, 
 or upon the happening of any other condition precedent 
 which may not happen for hundreds of years, limited after 
 a life estate, is valid, and on the happening of the event 
 hundreds of years later the heirs or assigns of the remain- 
 derman will be entitled to the property, since the termina- 
 
 9. See Fowler's Real Prop. Law (3d by Matter of Wilcox, 194 N. Y. 288. 
 ed.), pp. 333, 343, 344. For a discussion of this case, see note 
 
 10. The question has been scttbd 7, supra. 
 
698 Statutoet Changes in Rule Against Peepetuities. 
 
 tion of the prior life estate or estates does not affect the 
 contingent remainder." So a future executory interest to 
 spring up in an ascertained person in fee on a similar remote 
 contingency is valid, except in the one case of a fee upon a 
 fee. It would be a very wise thing to restore the common 
 law rule in its entirety, retaining, however, the provisions of 
 the statutes which make all future estates, whether remain- 
 ders or executory interests, subject to the same rules, by 
 doing away with all distinction betwen executory interests 
 and remainders. 
 
 § 270. Suspension Caused By Powers. — Powers which 
 may be exercised in favor of unascertained persons sus- 
 pend the absolute power of alienation in every case of a 
 power in trust, since the property must be conveyed sub- 
 ject to the power until the persons in whose favor it is to be 
 exercised have been born or otherwise ascertained. There- 
 fore a power in favor of persons who may not be ascer- 
 tained within the period fixed by the statute is void. Thus 
 
 11. As stated in note 7, supra, the worked a great deal of mischief. Most- 
 dicta in the Wilcox case, that aU of the litigation which has since 
 future estates must vest within two arisen in hundreds of cases in New 
 lives and a possible minority has York, under the rule has turned on 
 nothing to support it in the statutes, the application of this provision. The- 
 Restrictions upon remoteness of vest- period of two lives is arbitrary, does 
 ing were provided for only in the two not apply naturally to the different 
 cases of a contingent remainder after situations that arise, and is difficult 
 a term of years and a fee upon a fee. to apply in many cases. The rule 
 To so change the law by decision making lives in being the measure ap- 
 would be judicial legislation, and un- plies automatically to each case, per- 
 fair as affecting existing estates or mitting devisors to provide for their 
 limitations. To so change the law by children or other relatives, whatever 
 statute would be highly desirable, their number in a rational way with- 
 affecting only interests thereafter out purely technical provisions to 
 created. avoid suspension for more than two 
 
 The other changes effected by the lives. The period of suspension will 
 
 revisors of two lives in being and a be actually about the same in either 
 
 possible minority instead of lives in case, the life time of some person in 
 
 being and twenty-one years as the being, 
 period of suspension allowed, has 
 
Suspension Caused by Powbes. 
 
 599 
 
 a power of appointment in favor of the cMld or cMldren 
 of an unborn person is void, since sucli cMldren may not 
 be bom within two lives in being at the time the power was 
 created.^ The mere fact that the power may be exercised 
 at too remote a time does not render it void,^ since the abso- 
 lute power of alienation is suspended only by powers in 
 favor of unascertained persons. If the persons or class 
 in whose favor the power must be exercised are ascertained, 
 or must be ascertained within the period fixed by the stat- 
 ute, it is valid, though it may not be actually exercised until 
 a more remote time, since it may be released and an absolute 
 estate conveyed.^ A general power which is not impera- 
 tive, and which may or may not be exercised by the donee 
 does not cause any suspension, as an absolute estate free 
 of the power may be conveyed at any time, the donee joining 
 with the others interested in the property.* 
 
 1. Hawley v. James, 16 Wend. (N. 
 Y.) 61, 175. See cases in notes fol- 
 lowing. 
 
 The mere fact that the power Is di- 
 rected to be executed after a fixed 
 period not measured by lives or on 
 the happening of an event which may 
 be too remote does not render the 
 power void provided the beneficiary is 
 ascertained and may convey or re- 
 lease his interest, because in such case 
 an absolute fee may be conveyed and 
 no suspension exists. Thus in Gar- 
 vey V. McDevitt, 73 N. Y. 556, the 
 executors were directed to sell the 
 land and pay the proceeds to the 
 Bishop of R., after a term of years. 
 The power was void since during the 
 term of years in question the Bishop 
 of E. could not convey or release his 
 Interest since he was to take subject 
 to a charitable trust. A similar power 
 in favor of an individual in his own 
 right would be valid, since his inter- 
 
 est under the power could be released 
 and an absolute fee conveyed at any 
 time. 
 
 2. For common law rule, see § 264, 
 ante. 
 
 3. Hawley v. James, 16 Wend. 61, 
 140, 175 ; Hone's Ex'rs v. Van Schaiclc, 
 20 Wend. 564, 566, 567; Garvey v. 
 McDevitt, 73 N. Y. 556; Kilpatrick v. 
 Barron, 135 N. Y. 751. See preced- 
 ing note. 
 
 4. Boot V. Stuyvesant, 18 Wend. 
 357. In New York all powers in trust 
 are imperative unless expressly made 
 to depend on the will of the donee. 
 N. Y. Real Prop. Law, § 157. Powers 
 in trust which are not descretionary, 
 and imperative powers ordered to be 
 executed at some future time, are the 
 only powers which may cause a. sus- 
 pension, and then only when the 
 power cannot be released because the 
 beneficiaries of the power are not as- 
 certained, or because it is an impera- 
 
600 Statutobt Changes in Kule Against Pebpetuities. 
 
 An imperative power to sell, but not until five years after 
 the testator's death (or any other fixed period not measured 
 by two lives), is bad provided the beneficiaries are unas- 
 certained or for any other reason cannot release it, because 
 the absolute power of alienation would be suspended for a 
 flat period not measured by the lives of two persons in 
 being." 
 
 Though the power be validly created, any estate created 
 by its esercise must not cause a possible suspension for 
 longer than the period fixed by the statute. Therefore, un- 
 der a general power of appointment which is not impera- 
 tive and which causes no suspension as explained above, 
 if the donee appoint a future interest in the child of a person 
 not in being when the power was created, or to any person 
 whose identity may not be ascertained within the statutory 
 period measured from the taking effect of the deed or will 
 creating the power, the estate so appointed is void.*' At 
 conunon law a general power of appointment was regarded 
 as making the donee practically the owner, so that any es- 
 tate created by him was valid if it would vest within lives in 
 being and twenty-one years from the time of the appoint- 
 ment.'^ But in New York and a few other states statutes 
 have been enacted, changing this rule without good reason, 
 providing that the period during which the .absolute power 
 of alienation may be suspended by any instrument in execu- 
 tion of a power must be computed, not from the date of 
 
 tive direction to sell in the future such way that the resulting estate 
 ■which cannot be released by those who will yiolate the rule. The resultinc 
 are to receive the proceeds. See cases estate will be valid or invalid depend- 
 in preceding note; also Garvey v. Mc- ing on whether it may cause an un- 
 Devitt, 73 N. Y. 556. due suspension measured from the 
 
 5. Garvey v. McDevitt, 73 N. Y. time of the taking effect of the origi- 
 656. nal will by which the power waa 
 
 6. Fargo v. Squiers, 154 N. Y. 350; created. Hillen v. Iselin, 144 N. Y. 
 Dana v. Murray, 133 N, Y. 604. 365 ; Beardsley v. Hotchkiss, 96 N. Y. 
 
 It follows that a power is perfectly 201. 
 valid though it may be exercised in 7. See § 364, ante. 
 
Suspension Dub to Teusts. 601 
 
 the instrument, but from the time of the creation of the 
 power.* 
 
 § 271. Suspension Due to Trusts. — Trusts ordinarily do 
 not suspend the absolute power of alienation because the 
 trustee and cestui que trust may join in a conveyance of the 
 absolute fee in possession.^ But in New York the third ex- 
 press trust provided for by § 96 of the Eeal Property Law, 
 viz. : a trust to collect the rents and profits and apply them 
 to the use of a beneficiary for life, or for a shorter term, 
 suspends the absolute power of alienation since the bene- 
 ficiary of this trust is expressly prohibited from convey- 
 ing his interest by '^ 103 of the same statute. Similar stat- 
 utes have been enacted in Michigan and Wisconsin.^ The 
 beneficiary's joining in a conveyance of the property, there- 
 fore, is ineffective, and an absolute fee in possession cannot 
 be conveyed while the trust lasts. Such a trust may be 
 created for two lives only. Thus a trust in favor of A for 
 life, and then for B for life is valid. If additional trusts 
 should be created for the benefit of C, D and E for their 
 respective lives in remainder, they would be void as causing 
 a suspension beyond two lives, though the first two trust 
 estates for the lives of A and B would be valid, as they are 
 separate and distinct from the void trusts, and do not in 
 themselves violate the statute.' A trust for the joint lives of 
 A, B and C to continue until the death of the survivor is 
 void, since it causes a suspension for three lives. No part 
 of it can be saved, since the trust is as much for the benefit 
 of one as of any other, and it is impossible to give any pref- 
 erence to any one of the three.* 
 
 8. N. Y. Real Prop. Law, §§ 178, 3. Woodruff v. Cooke, 47 Barb. 
 
 179. See § 264, ante. See, also, cases 304; Sehermerhorn v. Getting, 131 N. 
 
 ia note 6, supra. Y. 48. See cases cited in notes 4 to 
 
 1. See § 263d, ante. 8, Immediately following. 
 
 2. Wis. Stat. (1898), § 2089; 3 4. Fowler v. IngeraoU, 127 N. Y. 
 Mich. Comp. Laws, 1897 (8847), S 19, 472; Central Trust Co. v. Egleston, 
 p. 3715. 185 N. Y. 23; Sanford v. Goodell, 88 
 
602 Statutoet Changbs in Eulb Agaikst Peepetuitibb. 
 
 But a trust for the benefit of any number of persons for 
 life as tenants in common, with no survivorship as be- 
 tween them, is good, since there are as many distinct and 
 separate trusts as there are life tenants in common, each 
 taking a separate and distinct undivided interest for life, 
 each suspending the absolute power of alienation as to his 
 interest for his life only." Thus a trust for the benefit of 
 all the testator's children for life, the trust to end as to the 
 share of each on his death, and the principal of his share 
 to go to his heirs in fee, or to be otherwise disposed of 
 absolutely, is good, since there are as many separate shares 
 and trusts as there are children, each taking for one life 
 only, the trust ending as to each share on the death of the 
 child to whom it was given for life.® 
 
 A more difficult situation is presented where a devise is 
 made in trust for the testator's children for life, with the 
 provision that on the death of any child, or on the death of 
 any child without issue, his share should be divided among 
 the survivors to be held subject to the trusts to which their 
 origiual shares were subject. Suppose there are four chil- 
 
 Hun 369; Bindrim v. Ullrich, 64 App. share to the children of the child in 
 
 Div. 444; Almstaedt v. Bendick, 47 each case in fee. If any child should 
 
 App. Div. 265. die without issue or a husband or 
 
 5. Wells V. Wells, 88 N. Y. 333; wife surviving, that child's share was 
 
 Tiers v. Tiers, 98 N. Y. 568; Van given absolutely to the other surviv- 
 
 Brunt V. Van Brunt, 111 N. Y. 178; ing children of the testator. This was 
 
 Vanderpoel v. Loew, 113 N. Y. 167; good in all respects as eight trusts 
 
 Hillyer V. Vandewater, 131 N. Y. 681; arose, one in favor of each child, 
 
 Corse V. Cliapman, 153 N. Y. 466; Al- which could continue only for the life 
 
 len V. Allen, 149 K. Y. 380; Haug v. of the child and for the life of the 
 
 Schumacher, 165 N. Y. 506; Locke v. child's surviving husband or wife. 
 
 Farmers' Loan & Trust Co., 140 N. then vesting absolutely in the cbil- 
 
 Y. 135. See cases in notes following, dren of the child, or in the surviving 
 
 G. Thus in Van Brunt v. Van Brunt, children of the testator. Exactly the 
 
 111 N. Y. 178, the residuary estate same principle is illustrated in Corse 
 
 was given in trust for the testator's v. Chapman, 153 N. Y. 466; Vander- 
 
 eight children for life in equal shares, poel v. Loew, 113 N. Y. 167, and in 
 
 and after their deaths for their re- the other cases in the preceding note; 
 
 spective wives or husbands for life or also in the cases cited in note 8 lol- 
 
 until remarriage, remainder as to each lowing. 
 
SuspBisrsioN Due to Tkusts. 603 
 
 dren, A, B, C and D. On the death of the first child, A, Ma 
 share would be held in trust for the benefit of B, C and D in 
 equal shares. On the death of B his original share would be 
 held in the same way for the benefit of C and D. Up to 
 this point there is no violation of the statute, since A's 
 share would be divided into three equal and distinct undi- 
 vided parts, and B, C and D would hold one part each as 
 tenants in common. The suspension as to each undivided 
 part would be for only one life, the second life in each 
 case, beyond which the suspension could not go. In the same 
 way the provision for the distribution of the original share 
 of each of the others is valid, since it will cause a suspen- 
 sion, as to each subportion, for only two lives. But if the 
 will is to be construed as meaning that the subportion of 
 A's share which B received on A's death should be divided 
 between C and D for their lives on B's death, the provision 
 as to this second division of said subportion is void, since 
 it would cause a suspension for a third life as to each of the 
 subportions thereof, viz.: for the life of C as to one sub- 
 portion, and for the life of D as to the other. Therefore 
 any direction for a second division for life under the trust 
 of the subportion resulting from the division of any one of 
 the original shares, is void as violating the rule. But as 
 these provisions for the further division of such subportions 
 are entirely distinct and apart from the preceding valid 
 divisions, the preceding direction for the division of the 
 original shares for the lives of the survivors must be given 
 effect, and only the direction for the further subdivision of 
 subportions declared void.^ 
 
 The courts do not seem to have clearly recognized this, 
 and in order to give effect to the direction for subdivision 
 of the original portions they have held that the will should 
 be construed as meaning that the subportions should be 
 *' held subject to the same trust " as the original portions 
 only during the life of each of the surviving children, that 
 
 7. See cases in last preceding note, and also in note followiag. 
 
604 Statutoet Changes in Rule Against Perpetuities. 
 
 no further subdivision was contemplated, and on the death 
 of B or any other child, the trust would cease as to his sub- 
 portion, and in the absence of some express provision dis- 
 posing of it absolutely, the testator would have died intes- 
 tate as to the remainder in the subportion in question. Of 
 course, if the will be given its natural construction, calling 
 for a subdivision of the subportion in each case, the same 
 result would be reached, because this provision would be 
 void as in violation of the rule, and the testator would have- 
 died intestate to that extent.* 
 
 8. In Schey v. Schey, 194 N. Y. 368, 
 testator directed that his residuary 
 estate should be divided into five 
 parts, one part to be held in trust for 
 each of his five children until they 
 should attain a certain age when they 
 were to receive the principal. If any 
 child should die leaving issue before 
 attaining the age designated, his 
 share should go to his issue abso- 
 lutely. It was then separately pro- 
 vided as to each child that if he 
 should die without issue before at- 
 taining the stated age, his share 
 should be divided among the four sur- 
 vivors in each case to be held In trust 
 " for the same uses and subject to the 
 same conditions as I have in this in- 
 strument directed or will direct their 
 share of my residuary estate to be 
 held." The court held the will valid. 
 Of course the separate trust in favor 
 of each child was valid in any event. 
 The direction for a trust in favor of 
 the four survivors until they should 
 attain the required age on the death 
 of any child was also good, causing 
 a further suspension as to each sub- 
 portion for a second life. The court 
 construed the will as meaning that no 
 further division of a subportion on 
 the death of anv of the four surviv- 
 
 ing children was contemplated, tlie 
 trust ending as to each subportion on 
 the death of the child receiving it_ 
 The court indicates that even if a fur- 
 ther division of the subportion was 
 intended the interests created under 
 the will up to that point would be 
 good, the trust for a further division 
 of subportions for the use of the re- 
 maining children alone being void as 
 causing a suspension for more than 
 two lives. 
 
 In Chastain v. Dickinson, 201 N. Y.. 
 538, testatrix divided her residuary 
 estate into five parts, giving one each 
 to two of her children absolutely, and 
 providing that one each should be held 
 in trust for each of her other three 
 children for life, and on the death of 
 Richard or Alfred, two of said chil- 
 dren, the share of the one so dying 
 to become part of her residuary es- 
 tate and to be divided equally among 
 the surviving children in the same 
 way as their original shares. In case 
 of the death of Mary, the third child 
 in the trust, the income to be paid 
 to testator's great-grandson until he 
 should reach twenty-five, when the 
 principal should be paid to him; if 
 he should die before attaining twenty- 
 five without issue, his share should 
 
Suspension Due to Teusts. 
 
 605 
 
 This principle of separable trusts created for the bene- 
 fit of several persons as tenants in common should obviously 
 be held to apply to gifts of personal property as well as 
 
 again become part of the residuary 
 estate to be divided among the others 
 Burviving in tlie same way aa tlieir 
 -original portions. Tlie court held tl'.e 
 trusts in favor of the three children 
 to be valid for their lives, and the 
 provision that on the death of any 
 one, its share should be divided 
 among the others subject to the same 
 trust as the original portions was 
 also valid, causing a suspension, as 
 to each subportion, for only one ad- 
 ditional life in each case. Following 
 the Sehey case, tley held that the 
 will contemplated no further division 
 •of subportions, and therefore the tes- 
 tator died intestate as to each of 
 Buch subshares on the death of a sec- 
 ond or third child. The same result 
 would have been reached if the court 
 had construed the will in accordance 
 with the natural meaning of the lan- 
 guage used, holding the trust to con- 
 tinue as to subportions upon the 
 death of a surviving child, during the 
 life of the third child, etc., the trust 
 being void only to that extent, and 
 the testator dying intestate as to 
 «ach subportion on the death of the 
 second and third child, the trust be- 
 ing perfectly good in any event, not 
 only as to the original shares, but also 
 as to the subportions of each share 
 during the life of the survivors, be- 
 ing void only as to the further divi- 
 sion of a subshare on the death of 
 any one of the surviving children. As 
 to the share given in trust for the 
 <lau!;htpr Mary for life, remainder for 
 lifp in trust for tlie grandson it was 
 valid to that extent, but void as to 
 
 its further division among the other 
 children, causing a suspension beyond 
 two lives. 
 
 In Knox v. Jones, 47 N. Y. 389, a 
 trust was created in favor of A for 
 life, and then to B and C for life, 
 with cross-remainders between B and 
 C for their lives, finally to the chil- 
 dren of C if any in fee, if not to Col- 
 umbia College in fee. The court held 
 the entire trust void because indivisi- 
 ble. This decision is clearly wrong, 
 and is directly opposed to the cases 
 cited and discussed in this note and 
 the notes immediately preceding. 
 The trust for A's life was good, be- 
 ing separate and distinct, the trust 
 for B and C was also good, they tak- 
 ing as tenants in common, each an 
 undivided share, making a suspension 
 for a second life as to each share. 
 (See Purdy v. Hayt, 92 N. Y. 446.) 
 The cross-remainders for life between 
 B and C were alone void, since each 
 would cause a suspension for a third 
 life. The final remainder to the chil- 
 dren of C was valid, though the court 
 held otherwise, because their interests 
 would become alienable on their birth, 
 which of necessity would be during 
 the life of C, whether A and B had 
 died prior to that time or not, C's 
 life alone measuring the time in which 
 these remainders would necessarily 
 arise in the children of C. 
 
 Tn Murray v. Murray, 122 N. T. 
 604, a similar error was made. Prop- 
 erty was conveyed in trust for Mrs. 
 Murray daring her husband's life; if 
 he survived her then to convey as she 
 might appoint by will. On Mrs. Mur- 
 
606 Statutoet Changes in Eulb Against PEEPETUiTiEa. 
 
 to realty, and no such distinction has been made in the cases 
 heretofore cited, which established this principle.' There 
 are some cases, however, which seem to have lost sight of 
 this principle where a trust of personal property in favor 
 of several persons was involved, it being treated as indi- 
 visible and as causing a suspension of absolute ownership 
 of personalty for more than two lives where more than two 
 beneficiaries were involved.^** It is submitted that the sus- 
 
 ray's death she appointed the prop- 
 erty to her husband and three daugh- 
 ters in equal shares until any two of 
 the daughters should marry, with 
 cross-remainders between them for 
 life or until such marriage of two of 
 her daughters, and one year there- 
 after the property was to be sold by 
 the trustee and the proceeds divided 
 among Mrs. Murray's children then 
 living and her grandchildren, per 
 ttirpes. The court held the entire 
 will void. 
 
 It is clear under the later cases, as 
 well as earlier cases cited in the notes 
 immediately preceding, that the hus- 
 band and daughter took as tenants in 
 common, four separate trusts arising, 
 which caused a suspension as to each 
 share for two lives, the trust during 
 Mrs. Murray's life having caused a 
 suspension for one life. The cross- 
 remainders were void as in the pre- 
 ceding case. The contingent re- 
 mainder was void since the absolute 
 power of alienation would be sus- 
 pended possibly until the death of all 
 four, making a possible suspension of 
 five lives, as the court correctly held. 
 
 9. Schey v. Schey, 194 N. Y. 368; 
 Clastain v. Dickinson, 201 N. Y. 538. 
 Bee, also, cases cited in note 7, supra. 
 
 10. In Matter of Wilcox, 194 N. Y. 
 88S, one-third of the residue was 
 
 given to the testator's daughter for 
 life, and on her death in trust tor her 
 cliildren surviving her until each 
 should attain the age of twenty-one, 
 the principal to go to such children, 
 each taking his share upon its attain- 
 ing twenty-one. The court said, after 
 stating the conclusion that the trust 
 in favor of the issue of the daughter 
 until they should attain twenty-one 
 was void ; " This conclusion was un- 
 doubtedly correct, though it would 
 have been valid in the case of real 
 es,,ate if it could be assumed that the 
 trust was severed as to the share of 
 each issue. (Manice v. Manice, 43 N. 
 Y. 303.)" This was unnecessary to 
 the decision of the case as the daugh- 
 ter died without issue, and as sub- 
 sequently appears in the opinion the 
 validity or invalidity of this tiust 
 could in no way aflfect the bequest 
 over which was the real contest in- 
 volved in the case. On the principle 
 of the many cases above cited the is- 
 sue of the daughter would take as 
 tenants in common, each taking a 
 separate share, and causing a suspen- 
 sion for a second life at most. The 
 trust would be void as to children of 
 the daughter born after the testator's 
 death, as the trust in favor of such 
 child would continue for a life not in 
 being. 
 
Suspension Due to Teusts. 
 
 607 
 
 pension of absolute ownership of personalty and of the abso- 
 lute power of alienation of realty depend on the same prin- 
 ciples and no distinction should be made between them, 
 the same law applying, except that the suspension is limited 
 to two lives in being in the case of personalty, while it may 
 be extended for a possible minority in one class of cases only 
 in the case of realty, as heretofore explained." 
 
 The modification of the rule in its application to chari- 
 table trusts have been referred to heretofore." In New York 
 the common law rules governing charitable trusts have been 
 restored. Such a trust is therefore valid, and does not 
 suspend the absolute power of alienation within the rule, 
 when limited to a corporation not yet formed, since the 
 charity wUl be carried out whether the corporation is 
 formed or not, and therefore the creation of the corpora- 
 tion is not a condition precedent to the taking effect of 
 
 In Underwood v. Curtis, 137 N. Y. 
 633, a trust was created for the life 
 of the widow and two daughters, the 
 daughters as executriees being given 
 the power to sell at any time up to 
 ten years after the mother's death, 
 the trust to end and the proceeds to 
 be distributed as directed on such 
 sale. The court held the trust for the 
 benefit of the widow good, but the 
 trust in favor of the daughters void 
 since the power of sale might not be 
 exercised until ten years after the 
 widow's death, the trust continuing 
 for that period not measured by any 
 second life. But the power of sale 
 in the daughters made the property 
 freely alienable at any time, and the 
 case can only be supported on the 
 theory that there was a suspension of 
 absolute ownership of personalty, 
 though no suspension of the absolute 
 power of alienation. What does sus- 
 pension of absolute ownership mean? 
 Onrtainly it does not mean the divid- 
 
 ing of ownership between a life ten- 
 ant and remainderman, or making 
 such ownership subject to a condition 
 subsequent, or subject to a lien or 
 charge or the like. If it does not, 
 then its only meaning is that the ab- 
 solute ownership is not in existing 
 persons who can join in a conveyance 
 of it; in other words, the absolute 
 power of alienation is suspended. 
 There is no distinction between realty 
 and personalty in the application of 
 the common law rule, and it is absurd 
 to suppose that the revisers intended 
 to introduce any distinction except in 
 the period of suspension, the Personal 
 Property Law providing for a suspen- 
 sion for two lives only, excluding the 
 possible additional minority which is 
 permitted by § 43 of the Eeal Prop- 
 erty Law. The suggested distinction 
 is entirely without basis, and the 
 above case is unsound. 
 
 11. See § 367, ante. 
 
 12. See § 265, ante. 
 
<JOS Statutoey Changes in Rule Against Peepetxjitles. 
 
 the charity.^* A charity which is limited to arise after a 
 prior gift to an individual, or to spring np in the future 
 without any precedent interest being created at all, must 
 be such that it will take effect within the period fixed by the 
 statute, the rule being the same as at common law except as 
 to the period during which suspension is allowed. Though 
 a present charity suspends the power of alienation, the law 
 permits such suspension. It is only in the case of a charity 
 which is to arise in the future at too remote a time that the 
 rule applies. What was said in the discussion of the com- 
 mon law rule with reference to charities with relation to the 
 rule applies here, subject to the modification as to the length 
 of the period of suspension." 
 
 § 272. Principles of the Common Law Apply Except as 
 Modified by Statute. — Except as modified by statute the 
 principles of the common law rule as discussed in the pre- 
 ceding chapter apply to cases arising in New York and the 
 other states which have followed New York in legislation on 
 this subject. It must appear affirmatively at the time the 
 deed or will takes eiTect that the suspension cannot by any 
 possibility continue for longer than the statutory period, and 
 any limitation which may by possibility cause a suspension 
 beyond the period so provided for is void in its creation, 
 though subsequent events make an undue suspension impos- 
 sible. The possibility of undue suspension as the facts 
 exist when the deed or will takes effect renders the future 
 estate void, it being quite immaterial whether or not undue 
 suspension actually takes place thereafter.* 
 
 13. See § 365. ante. Y. 433, a trust in favor of the testa- 
 
 14. See § 26.5, ante. tor's widow and six children until the 
 1. Haynea v. Sherman, 117 N. Y. youngest child should attain the age 
 
 433; Sehlereth v. Schlereth, 173 N. Y. of twenty-one, or would liave attained 
 
 444; Dana v. Murray, 122 N. Y. 604; that age if living, was void, though 
 
 Fargo V. Squires, 154 N. Y. 250; Mat- the youngest child might attain the 
 
 ter of Wilcox, 194 N. Y. 288. age of twenty-one shortly after the 
 
 Thus in Haynea v. Sherman, 117 N. testator's death. It was a trust to 
 
Peinciples of the Common Law, etc. 609 
 
 The lives of two strangers, having no connection in any 
 other way with the estates involved, may be taken arbitrar- 
 ily as measuring the period of suspension, and a provision 
 which would be otherwise void as causing an excessive sus- 
 pension will be valid if it is expressly provided that the sus- 
 pension shall cease on the death of any person, or on the 
 death of the survivor of any two persons, actually in exis- 
 tence, whose lives are taken to arbitrarily measure the con- 
 tinuance of the trust or other future interest causing the 
 suspension. Thus a trust may be created for the benefit 
 of any number of persons for their lives, jointly, provided 
 it must come to an end as to all on the death of the sur- 
 vivor of two persons named, they being living persons at 
 the time the deed or will in question takes effect.^ 
 
 As at common law so in New York and other states fol- 
 lowing the New York statutes, only the future interest 
 which violates the rule is void; all preceding estates which 
 cause no undue suspension are valid. The more prominent 
 illustrations are the causes of successive trusts given in the 
 preceding section.* To defeat the testator's or grantor's 
 
 continue in any event until the date N. Y 328; Tiers v. Tiers, 98 N. Y. 
 
 when the youngest child would at- 568. 
 
 tain that age, a flat period, not meas- 2. Crooke v. County of Kings, 97 N. 
 
 ured by the life of the child. If the Y. 421; Bailey v. Bailey, 97 N. Y. 
 
 trust had been created to continue 460; Schermerhom v. Getting, 131 N. 
 
 only until the youngest child should Y. 48. 
 
 attain twenty-one, omitting the So in Haynes v. Sherman, 117 N. 
 
 clause " or would have attained that Y. 433, discussed in the note preced- 
 
 ftge if living," the courts construe it ing, the trust would have been good, 
 
 as ending on the death of the young- though for the benefit of seven per- 
 
 est child before attaining twenty-one, sons, the widow and six children, had 
 
 the period of suspension being meas- the duration of the trust depended on 
 
 ared by the life of that child, making the life of the youngest child, a single 
 
 the trust valid. life, so that it would have ended 
 
 A limitation in trust for the wife either on his death or upon his at- 
 
 of an unmarried son for life is void, taining the age of twenty-one. That 
 
 since the son may marry a person not such a trust is good, see Becker v. 
 
 yet born at the testator's death. The Becker. 13 App. Div. 342. 
 
 possibility of undue suspension makes 3. See § 271, notes 5 to 11, supra. 
 
 the gift void. Schettler v. Smith, 41 A trust to continue for three joint 
 .^9 
 
610 Statutoey Changes in Rule Against Peepetuitibs. 
 
 intent by declaring void precedent gifts, merely because fu 
 ture remote gifts generally of little practical importance 
 because of their remoteness and uncertainty are invalid, 
 
 llres and until the death of the sur- 
 vivor is bad as to all, since a joint 
 tenancy for three lives is created, it 
 being impossible to separate any part 
 so as to save it. Central Trust Co. v. 
 Egleston, 185 N. Y. 23. But where 
 three or more persona take for life as 
 tenants in common with cross-re- 
 mainders for life, each takes a separ- 
 ate and distinct share, which can and 
 must be treated separately as a separ- 
 ate trust, suspending the absolute 
 power of alienation for one life. Tlie 
 first cross-remainder in trust on the 
 death of any one to the others is also 
 good, causing a suspension in each 
 case as to each subportion, for a sec- 
 ond life. But on the death of a sec- 
 ond of these cotenants, though the 
 cross-remainder to the survivor or 
 BUrvivors of his original share would 
 be good, the cross-remainder as to the 
 share of the tenant first dying which 
 had been received by him would be 
 bad, since it would cause a suspen- 
 ■?ion for a third life. This principle 
 Is clearly involved in Purdy v. Hayt, 
 92 N. Y. 446, the testator devising 
 his real estate to his sisters, Jane and 
 Catherine, during their respective 
 lives, and on the death of the survivor 
 the property was to be sold and the 
 income paid to his niece, Elizabeth, 
 during her life, remainder to her sur- 
 viving children. Jane died before 
 Catherine. The life estates in Jane 
 and Catherine were, of course, valid, 
 being present vested life estates at 
 law, and the cross-remainders be- 
 tween them were valid also. The 
 trust estate in remainder in ElizA- 
 
 beth was void as to Jane's share, that 
 having first passed to Catherine for 
 life, and the trust in favor of Eliza- 
 beth causing a suapension for a third 
 life in being, since it could not start 
 until the expiration of the lives ot 
 Jane and Catherine. But the trust 
 for life in favor of Elizabeth was 
 valid as to the share originally given 
 Catherine since it caused a suspen- 
 sion for two lives only, those of Cath- 
 erine and Elizabeth, and the remain- 
 der to Elizabeth's children was valid 
 as to that share for the same reason. 
 By tracing the succeeding possible re- 
 mainders in this way declaring void 
 only those which may cause an undue 
 suspension, all confusion is avoided 
 and the law easily applied. See, also, 
 Corse V. Chapman, 153 N. Y. 466; 
 Schey v. Schey, 194 N. Y. 368; Chas- 
 tain v. Dickinson, 201 N. Y. 538, 
 cited and discussed in the preceding 
 section, notes 6 and 8, where the same 
 principle is necessarily involved in 
 sustaining gifts of subportions in the 
 case of trusts in favor of several chil- 
 dren, with the provision that on the 
 death of any child its share should 
 be held subject to the same tmst in 
 favor ot the surviving children. Some 
 of the earlier cases in which this prin- 
 ciple has been lost sight of are dis- 
 cussed in note 8 under the section 
 preceding, viz.: Knox v. Jones, 47 I? 
 Y. 389, and Murray v. Murray, 132 I* 
 Y. 604. it being very apparent i6 
 these and other earlier cases that thf 
 court had failed to grasp the prin- 
 ciple involved. 
 
Pbinciples of the CoMMoiT Law, etc. 611 
 
 would be mere wantonness of destruction. By analyzing 
 each gift, tracing each successive estate, and condemning 
 only those which actually violate the rule, its application 
 becomes a relatively simple matter. Much confusion in 
 the cases has resulted from a failure to do this.* 
 
 As at common law, so also in New York, personal prop- 
 erty as well as realty is subject to the rule. The N. Y. Per- 
 sonal Propery Law, § 11, forbids such suspension for any 
 period in excess of two lives in being, so that the provision 
 permitting a suspension for a possible minority in addition 
 to two lives in the case of a fee upon a fee in limitations of 
 realty, as explained heretofore,^ does not apply to person- 
 alty.® Tenancies for years are made subject to the statutes 
 applying to real property by the express provision of § 49 
 of the Real Property Law of New York. Section 11 of the 
 Personal Property Law provides further that in all other 
 respects limitations of future or contingent interests in per- 
 sonal property are subject to the rules prescribed in relation 
 to i uture estates in real property. In Michigan, Wisconsin 
 and Minnesota, though the New York schemes has been 
 adopted as to real property, no statutory provision has 
 
 4. See preceding note. vided for with respect to realty by 
 6. See § 267, note 3, ante. the Real Property Law. 
 6. Manice v. Marice, 43 N. Y. 303. The New York rule will not be ap- 
 See Matter of Wilcox, 194 N. Y. 288, plied to render void a gift of persou- 
 and Underwood v. Curtis, 127 N. Y. alty in a will made outside the state, 
 523, as discussed in § 271, note 10, or in a will made in the state if the 
 ante, these cases implying that the property is given to legatees residing 
 absolute ownership of personal prop- elsewhere, provided the gift would be 
 erty may be suspended though there valid where the will was made in the 
 be no suspension of the absolute first case or where the property is to 
 powe"- of alienation, a position that is be sent, in the second case. The New 
 believed >.o be untenable. York rule is concerned as to person- 
 Section 15 of the Personal Property alty only with domestic wills be- 
 Law provides that the beneficiary of queathing personalty which is to re- 
 a trust to receive and apply income main in the state. Cross v. United 
 lannot transfer his interest. § 16 States Trust Co., 131 N. Y. 330; Hofe 
 contains in general, the same provi- v. Brewer, 136 N. Y. 126; Dammeit 
 ijon as to accumulations that are pro- v. Osbom. 140 N. Y. 30. 
 
612 Statutoey Changes iisr Rule Against Pekpetuitieb, 
 
 been made as to personalty^ In Wisconsin it has been de- 
 cided that the statutes have adopted the common law rule as 
 to personalty, leaving no restriction upon the suspension 
 of alienation or of vesting in gifts of personalty.* 
 
 § 273. The More Important Statutory Changes in Other 
 States. — In Iowa, Kentucky, California, North Dakota and 
 South Dakota statutes forbid suspension of the absolute 
 power of alienation for more than lives in being and twenty- 
 one years. There seems to be no doubt that the period of 
 gestation of a child en ventre sa mere would also be added 
 in any case in which the question might arise.^ The Indiana 
 statute has a similar provision, omitting the provision as to 
 a term of twenty-one years, and substituting therefor the 
 relatively useless provision of the New York statute per- 
 mitting a further suspension for the possible minority of a 
 remainderman in fee, when the fee is limited over to another 
 in case such remainderman die before attaining twenty-one.^ 
 
 In Ohio estates to persons not in being are prohibited, 
 except that estates ' ' to the immediate issue or descendants 
 of such as are in being at the time of making such deed or 
 will " are permitted.* In Connecticut the former statute 
 modifying the common law rule has been repealed, and 
 the common law rule is now the law in that state.* 
 
 7. Toms V. Williams, 41 Mich. 552, §§ 3629-3635, 3656-3663. See Cali- 
 5C2; Dodge \. Williams, 46 Wis. ?0, fornja and Dakota cases cited ia 
 95, et seq.; Gray Perp. (2d ed.), § 751. Gwy Perp. (2d ed.), § 752, notes. 
 
 8. Becker v. Chester, 115 Wis. 90; a. Ind. Rev. St. (1876), ch. 82, §§ 
 Danfcrth v. Oshkosh, 119 Wis. 262; 40, 41. See Gray Perp. (2d ed.), §§ 
 Gray Perp. (id.), ^ 751. 743-745, and notes. 
 
 1. Iowa Code, 1SU7, § 2901; Ky. 3. Rev. Sts. 1880, § 4200; Gray 
 
 Sts. (1903), § 23C0; Cal. Civ. Code, Perp. (2d ed.), § 740. 
 
 §§ 715, 716, 722-725, 770-777; N. 4. Conn. St. of 1895, ch. 249; 
 
 Dak. Rev. Code (1895), §§ 3308- Healy v. Healy, 70 Conn. 467; Gray 
 
 8314, 3334-3341; S. Dak. Sts. (1901), Perp. (2d ed.), § 739. 
 
Natueb and Chabactebistios. 613 
 
 CHAPTBE XVn. 
 
 Easements and Pkofits. 
 
 § 274. Nature and Characteristics. — An easement is a 
 right to make use of the land of another for some definite 
 and limited purpose or purposes. A profit, or profit a 
 prendre is the right of one person to take part of the soil 
 of another or a part of its produce, an easement being any 
 other right of enjoyment or user not involving the taking 
 of a profit. If the user or profit is for the more convenient 
 enjoyment or benefit of another piece of land the easement 
 or profit is appurtenant thereto, and passes with it to any 
 person to whom the land may pass, either by deed, devise 
 or inheritance. The land so benefited is called the dominant 
 estate, while the land so burdened is called the servient es- 
 tate. From the standpoint of the servient estate the ease- 
 ment or profit is called a servitude. If there be no domin- 
 ant estate, the right arising in favor of some person either 
 for years, for life or in fee, and not for the Lonefit of any 
 other land of which he may be the owner, a profit or ease- 
 ment in gross is created.^ Each of these interests requires 
 separate discussion in detail. 
 
 § 275. Profits, or Profits a Prendre, Appurtenant and in 
 
 Gross. — A profit is a right in one person to take from the 
 land of another either a part of the soil, such as minerals 
 of all kinds from mines, stones from quarries, sand and 
 gravel; or part of its produce, such as grass, crops of any 
 kind, trees or timber, fish from lakes or streams, game from 
 the woods, seaweed, and the like.^ The right to take water 
 
 1. See Washburn Easements (4th Bailey v. Stephens, 13 C. B. N. S. 91; 
 ed.), 3-12; Digby Hist. L. Real Prop. Van Rensselaer v. RadclifT, 10 Wend. 
 (5th ed.), 181-185. (N. Y.) 639; right to take stone, 
 
 2. Right to cut and remove trees, gi-avel snd seaweed, Hall v. Law- 
 
614 Easements and Peoe'its. 
 
 is not a profit, since water, like air, is not owned absolutely 
 by the owner of the land on which it is situated. He has only 
 the right to use and appropriate it while on Ms premises, 
 losing all right to it when it flows or passes from his land to 
 the land of a neighboring owner.* 
 
 A profit is appurtenant when created for the benefit of a 
 dominant estate. It is then in all respects, except the char- 
 acter of the user, of the same nature as an easement, passing 
 with the dominant estate as an incident thereof whenever 
 the estate passes by deed, devise or inheritance, so that the 
 person entitled to the enjoyment of the profit at any time 
 will be the person who is at that time the immediate owner 
 of the dominant estate.* If it be created in gross, in favor 
 of some person, either for a term of years, for life, or in 
 fee, and not for the benefit of any land of which he is owner, 
 it exists as an independent property right, unconnected 
 with the ownership of any land, and as such may be con- 
 veyed, devised and inherited like any other vested property 
 right, the grantee, devisee or heir, as the case may be, taking 
 the right to enjoy the profit for his personal use and ad- 
 
 rence, 2 R. I. 218; right to dig for In Huntington v. Asher, 96 N. Y. 
 and remove coal or other minerals, 604, the court held that the right to 
 Doe V. Wood, 2 Barnew. & Aid. 724; cut and talie ice from a pond on ad- 
 Huff V. McCauley, 53 Pa. St. 209; joining laud of the grantor was a 
 Silsby V. Trotter, 39 N. J. Eq. 228; profit appurtenant to the land con- 
 Grove V. Hodges, 55 Pa. St. 504; veyed, the right having been granted 
 Caniahan v. Brown, 60 Pa. St. 23; for the use and benefit of the land so 
 Grubb V. Grubb, 74 Pa. St. 25 ; Smith conveyed. 
 
 V. Cooley, 65 Cal. 46; privilege of 3. Race v. Ward, 4 E. & B. 703; 
 fishing or hunting involving the tak- Borst v. Empie, 5 N. Y. 33; Good- 
 ing away of the fish or game caught, rich v. Burbank, 13 Allen (Mass.) 
 Co. Litt. 122a; Wiclcham v. Hawker, 459. See Huntington v. Asher, 96 
 7 M. & W. 63 ; Race v. Ward, 4 E. & N. Y. 604, referred to in preceding 
 B. 703 ; Turner' v. Hebron, 61 Conn. note. 
 
 175; Tinicum Fishing Co. v. Carter, 4. Bailey v. Stephens, 12 C. B. N. 
 
 61 Pa. St. 31; right to grow and re- S. 91; Pierce v. Keator, 70 N. Y. 
 
 move crops, Pierce v. Keator, 70 N. 419; Huntington v. Asher, 96 N. Y- 
 
 Y. 419; right to take and remove 604; Grubb v. Grubb, 74 Pa. St. 25. 
 
 •pples from orchard, Taylor v. Mil- 33 (right to take ore for use of a 
 
 krd, 118 N. Y. 224. smelting furnace). 
 
PbohtSj oe Peofits a PBasrDEE. 
 
 615 
 
 vantage, exactly as tlie original owner of the profit had 
 the right to enjoy it." 
 
 A profit, like an easement, is incorporeal, in that it gives 
 no present ownership of the land, as such, nor of any part of 
 it. It is a mere incorporeal right to enter and take the 
 coal or other mineral, timber, crop, or other profit, giving 
 no title or interest in the minerals, trees or crops until they 
 are actually taken pursuant to the right." The same general 
 rules, therefore, govern both profits and easements as to the 
 mode of creating and transferring them. These rules are 
 considered hereafter in connection with easements^ 
 
 6. Washburn Easements (4th ed.), 
 13; Post V. Pearsall, 23 Wend. (N. 
 Y.) 425. See, also, cases in preced- 
 ing note. 
 
 6. The distinction suggested by 
 Washburn between profits and ease- 
 ments in gross, that a profit is a cor- 
 poreal estate or interest in the land 
 itself, since it involves the right to 
 take part of the soil or its produce, 
 and therefore it may be conveyed, de- 
 vised and inherited, while an ease- 
 ment in gross cannot, in that it is a 
 mere incorporeal right of user, can- 
 not be sustained. A profit is incor- 
 poreal exactly as an easement is, in 
 that it is a mere right to take the 
 profit. The coal or other mineral, 
 timber or crops which the owner of 
 the profit may liave a right to remove 
 is in no sense his property until re 
 exercises his right of removal. He 
 therefore acquires no corporeal 
 property right in the land. Baker 
 V. Hart, 123 K Y. 470. The 
 all-sufficient reason why it may 
 be conveyed, devised or inherited 
 IS that it is a definite and vested 
 property right of value. There is 
 no reason why it should not be 
 capable of transfer like any other 
 vtsted property right, the right of 
 
 alienation being of the essence of 
 ownership. In no case, however, will 
 its alienation be permitted to in- 
 crease the burden imposed on the 
 servient estate. That burden must 
 remain the same. See discussion of 
 alienability of easements in gross in 
 the following section. See, also, fol- 
 lowing note. Thus the right to 
 search for and remove minerals was 
 held to be a profit, only, and not a 
 grant of the minerals in the land. 
 Doe V. Wood, 2 Barnew. & Aid. 724. 
 If the grant be of a mine, with min- 
 ing privileges, or of the exclusive 
 right to take all the coal in a certain 
 parcel of land, the thing granted is 
 corporeal, all the mineral contained 
 in the mine passes at once to the 
 grantee; if the mere right to enter 
 and dig coal and carry it away was 
 given, nothing corporeal would pass 
 and a mere incorporeal right or 
 profit a pendre, would be created. 
 Baker v. Hart, 123 N. Y. 470; Glo- 
 ninger v. Franklin Coal Co., 55 Pa. 
 St. 9, 16; Grubb v. Grubb, 74 Pa. St. 
 9, 16; Carnahan v. Brown, 60 Pa. St. 
 23; Washburn Easements {4th ed.), 
 19. 
 
 7. See § 277, et seq., post. 
 
r.l6 Easements and Profits. 
 
 § 276. Easements in Gross. — An easement, in the strict 
 or narrower sense in wLicli the term was used by the older 
 writers and in the earlier cases, involves always the exis- 
 tence of a dominant estate to which it is appurtenant. As a 
 practical matter nearly all easements are appurtenant to a 
 dominant estate, and the term easement without qualifica- 
 tion, now means as in the past, a right in the land of another 
 for the benefit of a dominant estate to which it is appurten- 
 ant. It passes with the dominant estate as inseparably con- 
 nected with it, the person who alone has at any particular 
 time any right to the easement being the person who is at 
 that time the owner of the dominant estate. It does not 
 exist as a personal right, and cannot be enjoyed apart from 
 the dominant estate. The easement cannot be conveyed 
 to one person and the dominant estate to another. As long 
 as the easement continues in existence it will pass with the 
 dominant estate to a grantee, devisee or heir, though not 
 expressly referred to in the deed or will, and even when ex- 
 pressly reserved or granted in terms to some one else. The 
 attempt to reserve the easement or to convey it to a third 
 person is simply void, unless it amounts to a release and 
 therefore to a discharge of the easement. 
 
 The later authorities, however, very properly apply the 
 term easement to similar rights in the land of another cre- 
 ated for the benefit of some person to be enjoyed by him for 
 life or for years or in fee, though not for the benefit of a 
 dominant estate. An easement, like a profit, may, there- 
 fore, be appurtenant or in gross. Since there is no dominant 
 estate in the case of an easement in gross, it cannot pass 
 with land as an appurtenance thereof. It exists as a prop- 
 erty right in its owner, exactly as in the case of a profit in 
 gross and since it is a vested property right of value it may 
 be conveyed, devised and inherited for exactly the same 
 reasons that a profit in gross may be.^ There is consider- 
 
 8. Goodrich v. Burbank, 12 Allen Law, 125 N. Y. 380; Lonsdale Co. v. 
 (Mass.) 459; Mayor of New York v. Moies, 81 L. Bep. 664; White v. 
 
Easements in Geoss. 617 
 
 able authority in support of tlie doctrine tliat an easement 
 in gross cannot be conveyed or assigned, devised or in- 
 herited because it is a mere personal privilege in the owner 
 of the easement.' But where it is granted to a person, 
 his heirs and assigns, or in fee, to continue for all time, it is 
 difficult to understand why it must be treated as a mere 
 personal privilege coming to an end on the death of the 
 owner. It is something more than a mere license; it is 
 an incorporeal interest in the land. Where the burden im- 
 posed on the servient estate is definite and fixed, so that 
 the transfer of the right, whether made to one person or 
 to several persons, will not increase the servitude, there is 
 no reason why it should not be capable of transfer by assign- 
 ment inter vivos, by will or by inheritance. The reserva- 
 tion of the right in fee to take so much water as will flow 
 through a conduit or pipe of a stated size, with the right to 
 maintain and renew the pipe, creates an easement in gross 
 which may be conveyed, devised and inherited as freely 
 as a profit in gross, and for the same reasons.^" On the 
 other hand a right of way in gross reserved in favor of a 
 person in fee, cannot be assigned by him, since such trans- 
 fer would involve changing and increasing the burden im- 
 posed on the servient estate. Such would be the obvious 
 result in case the assignment be made to several persons. 
 It would also be a possible result of an assignment to one 
 person only, since the use of the way by that person might 
 exceed the use of the way by the assignor." The cases 
 
 Crawford, 10 Mass. 188; Owen v. Smith, 10 C. B. 164, 167, 188; Garri- 
 
 Field, 103 Mass. 100; Hall v. Ionia, son v. Eudd, 19 111. 558; ICnecken v. 
 
 38 Mich. 493 {dictum); Pinkum v. Voltz, 110 111. 264, S68; Wasnuurn 
 
 Eau Claire, 81 Wis. 301; Engel T. Easements (4th ed.), 13. 
 
 Ayer, 85 Me. 448; Shreve v. Mathia, 10. Goodrich v. Burbank, 12 Allen 
 
 63 N. J. Eq. 170 (right of way). (Mass.) 459. 
 
 9. Boatman v. Lasley, 23 Oh. St. 11. Boatman v. Lasley, 23 Oh. St. 
 
 614; Tinicura Fishing Co. v. Carter, 614. But see ShreTB v. Mathis, 63 
 
 61 Pa. St. 21; Hoosic Stone Co. v. N. J. Eq. 170. 
 Malott, 130 Ind. 21, 24; Ackroyd v. 
 
618 Easements and Peofits. 
 
 may perhaps be reconciled under a general rule to tlie ef- 
 fect ttat an easement is gross may be assigned or devised 
 and is therefore inheritable in all cases in which the user 
 provided for is of a definite kind, so that the burden imposed 
 on the servient estate will remain constant no matter who or 
 how many enjoy the easement; but where the user is such 
 that its transfer would or might increase the burden to the 
 servient estate it cannot be assigned, devised or inherited. 
 There is no exception to the principle that the owner of an 
 easement or profit cannot increase the burden of the servi- 
 tude by any transfer of part of the dominant estate where 
 the easement or profit is appurtenant.^^ Nor can he increase 
 the burden on the servient estate by any alienation of an 
 easement or profit in gross. Subject to this rule it would 
 seem that easements in gross, like profits in gross, may be 
 conveyed, devised and inherited. 
 
 § 277. Creation of Easements. — Easements and profits 
 may be created inter vivos, by express grant or reservation, 
 by implied grant or implied reservation, and by prescrip- 
 tion. Since they are incorporeal interests they could not be 
 created by livery, but only by grant or prescription.^ Since 
 
 12. Thus where the profit is Indivi- ia conveyed to a third person. Tyr- 
 
 Bible, as in the case of a right to ea- ringham's case, 4 Co. 35; so, also, of 
 
 tovers, a conveyance of part of the the right to take stone, gravel and 
 
 servient estate extinguishes the profit, seaweed for the benefit of the domin- 
 
 since it cannot be exercised in favor ant estate. On a conveyance of part 
 
 of either part of the dominant estate, of the dominant estate the grantee 
 
 being indivisible. Van Eensaelaer v. acquired the right to take so much 
 
 Radoliff, 10 Wend. (N. Y.) 639; Liv- stone, gravel and seaweed as he 
 
 ingston v. Ketchum, 1 Barb. (N. Y.) might need to use on the part con- 
 
 592. But where the profit is appor- veyed to him. Hall v. Lawrence, 3 R, 
 
 tionable each part of the land will be I. 318. See, also, Livingston v. Ten 
 
 entitled to its portion of the profit, Broeck, 16 Johns. (N. Y.) 14. 
 as a right of pasturage of cattle sans 1. They rould not be created by 
 
 nombrc, this being a right to pasture livery of seisin since there was noth- 
 
 80 many cattle as may be kept on the ins corporeal to liand over or deliver, 
 
 dominant estate, or on any part of "Wliile, therefore, corporeal heredita- 
 
 It, where part of the dominant pstato ments were long transferable by mere 
 
CfiJEATioN OF Easements. 619 
 
 they are interests in land they cannot be created by parol 
 ander the Statute of Frauds.^ A license created by parol 
 may be revoked at any time, even though the licensee has 
 incurred expense in making improvements. In some states 
 an easement attempted to be created by parol or a parol 
 agreement for an easement will be given effect in equity if 
 it is supported by a valuable consideration and has been 
 acted on by the persons in whose favor the promise was 
 made, so that injustice would result if the promissor were 
 permitted to withdraw from it, turning on the same princi- 
 ples as the specific performance of parol contracts for the 
 sale of lands where the purchaser has entered and made 
 improvements.' In a few states a mere license created by 
 parol will be enforced in equity if the licensee has changed 
 his position in some material way by doing work or in- 
 curring expenditure relying on the continuance of the li- 
 cense, though there be no contract to continue the license or 
 to create an easement.* Thesp cases involve a clear viola- 
 
 delivery of possession without any In Wiseman v. Luckainger, 84 N. Y. 
 written words, the proper mode of 31, the court said: "There are, no 
 disposing of incorporeal hereditaments doubt, many cases in which courts 
 alone, according to the common law, recognize an equitable title to an 
 was by delivery of a sealed writing easement without a deed, but there 
 or deed of grant. Hence, corporeal will be found in them either an ex- 
 hereditaments were said to lie in liv- press agreement for an easement, or 
 ery (that is, delivery), incorporeal in an acquiesence or consent by con- 
 grant." Williams Real Prop. (17th duct which has led to the erecting of 
 ed.), 31. permanent works or valuable and 
 
 2. Wiseman v. Lucksinger, S4 N. Y. lasting improvements, or some other 
 31; Conkhite v. Conkhite, 94 N. Y. fact which would make the assertion 
 333; Thompson v. McCIarney, 82 Pa. of a legal title operate as a fraud on 
 St. 174; Cook V. Stearns, 11 Mass. the persons setting up the equitable 
 533; Nichols v. Luce, 24 Pick. 102; right." See, also, Ch. XIX, post. 
 Bayhart v. Flummerfelt, 43 N. J. L. 4. Lindeman v. Lindsay, 69 Pa. St. 
 28. 93; Campbell v. McCoy, 31 Pa. St. 
 
 3. Dempsey v. Kipp, 61 N. Y. 462; 263. 
 
 HuflF V. McCauley, 53 Pa. St. 206; The right to revoke a mere license 
 
 Legg V. Horn, 45 Conn. 415. See, also, biTolving in no way a promise to give 
 
 cases in preceding note, also Waah- an easement or to continue the li- 
 
 bum I^asements (4th ed.), 28, 29. cense, even though the licensee has 
 
620 Easemekts and Profits. 
 
 tion of the Statute of Frauds since they in result give effect 
 to mere parol licenses as easements without adequate rea- 
 son for interference by equity. The creation and revocation 
 of licenses and their relation to easements are hereafter 
 discussed in the chapter on licenses.'* 
 
 § 278. Creation of Easements by Express Grant or Re- 
 servation. — The usual way of creating an easement is by 
 deed granting or reserving a privilege or right in the servi- 
 ent estate in favor of the dominant estate. As in other 
 cases the deed will be construed in accordance with the na- 
 tural and usual meaning of the language used. It will be 
 construed as creating an easement appurtenant to a domin- 
 ant estate, rather than an easement in gross, if such con- 
 struction can naturally and reasonably be given it. Thus 
 where a restrictive easement against building on the servi- 
 ent estate,* or against using it for some forbidden purpose^ 
 is created, it will be construed as an easement for the bene- 
 fit of adjoining property retained by the grantor of the 
 servient estate which is obviously benefited by the restric- 
 tion, that being the manifest purpose, though the adjoining 
 property is not referred to in the instrument. A tenant in 
 common or joint tenant cannot by his sole act create an 
 easement binding as a servitude upon the property so held 
 in common or joint tenancy. The joining of all the ten- 
 ants in the grant is necessary in such case. It is contrary 
 to the nature of a joint tenancy or tenancy in common to 
 
 changed his position by incurring ex- Crosdale v. Lanigan, 129 JSi. V. 604; 
 pense in the hope that the license Springer v. Springer, 49 N. J. Eq. 
 will not be revoked, is well settled nn- S89 ; Lake Erie E. Co. v. Kennedy, 132 
 der the cases. Equity has no basis Ind. 274. 
 for interference in the absence of a 5. See Ch. XIX, post. 
 promise to grant an easement or con- 6. Peek v. Conway, 119 Mass. 546. 
 tinue the license in some definite way, 7. Post v. Weil, 115 N. Y. 361. On 
 supported by a valid consideration, the general question, see, also, Win- 
 relying on which expenditures were throp v. Fairbanks, 41 Me. 307. 
 incurred and improvements made. 
 
Creation of Easements bt Express Geant. 621 
 
 permit one tenant to affect the right of possession and 
 enjoyment or of partition of the other tenants without 
 their joint action, and to permit a cotenant to create such an 
 easement by his sole act would necessarily have that re- 
 sult.* A tenant in common or joint tenant may, however, 
 acquire an easement in adjoining land for the benefit of the 
 common estate, which will enure to the benefit of all the 
 tenants, this resulting in an advantage to all, in no way 
 interfering with the rights of his cotenants." 
 
 Eestrictive covenants contained in deeds forbidding cer- 
 tain uses of the property conveyed, or limiting the right to 
 erect buildings thereon in any way, or in any other way re- 
 stricting the use and enjoyment of the property conveyed 
 for the benefit of land retained by the grantor, are really 
 easements created by express reservation, the estate con- 
 veyed being the servient estate restricted for the benefit of 
 the dominant estate, which latter is the property retained by 
 the grantor.*" How far such covenants are enforceable in 
 favor of persons to whom land has been sold theretofore 
 subject to similar restrictions, they forming part of a com- 
 mon scheme, is considered hereafter in. the chapter on Cove- 
 nants Running With the Land." 
 
 A common form of creating easements by express grant is 
 by conveying lots by reference to a map showing spaces 
 reserved for streets, public squares and the like. Each ven- 
 dee of a lot abutting on a street or square as shown on the 
 map acquires an easement therein that the land so appro- 
 priated shall not be used for any inconsistent purpose, and 
 
 8. Portmore v. Bunn, 3 Dowl. & R. Avery v. N. Y. Central etc. E. Co., 106 
 145; Philbrick v. Ewing, 97 Mass. N. Y. 142; Columbia College v. 
 133; Crippen v. Moras, 49 N. Y. 63; Thatcher, 87 N. Y. 311; Columbia 
 Washburn Easements (4th cd.), 46. College v. Lynch, 70 N. Y. 440; Cou- 
 See § 213, ante, on conveyances by dert v. Sayre, 46 N. J. Eq. 386; Stet- 
 tenanta in common by metes and son v. Curtis, 119 Mass. 366. For a 
 bounds. more detailed consideration of restric- 
 
 9. See Washburn Easements (4th tive covenants, see Covenants Eunn- 
 ed.), 47. ing with the Lanl, Ch. XVIII, -post. 
 
 10. Post V. Weil, 115 N. Y. 361; 11. See Ch. XVIII, pout. 
 
622 Easements and Peofits. 
 
 he may secure an injunction preventing the grantor or any 
 subsequent owner of the land so assigned to public use, or 
 any other person, from closing or otherwise using such 
 land in violation of the easements so acquired. The map 
 becomes part of the deed, by reference, and the easements, 
 therefore, arise by express grant rather than by implica- 
 tion.»2 
 
 § 279. Reservations and Exceptions. — An easement by 
 express reservation arises when the grantor of land reserves 
 an easement in the land conveyed for the benefit of land 
 retained by him. The easement comes into existence by vir- 
 tue of the reservation.^ A reservation differs from an ex- 
 ception in that it creates something that did not exist be- 
 fore, while an exception is the retention by the grantor of 
 something already in existence, it being excepted from the 
 operation of the deed, and remaining in the grantor for that 
 reason. Thus where the grantor conveys one of two ad- 
 joining tracts of land of which he is owner, reserving a 
 right of way over the tract conveyed, or a right to take 
 water from a spring thereon, or the like, for the benefit of 
 the tract retained by him, the easement of way or to take 
 water are created by reservation, they having had no ex- 
 istence as easements before, since a person cannot have an 
 easement in his own land. On the other hand if the grantor 
 
 12. Lennig v. Ocean City Ass'n, 41 the place marked "Chapel," there 
 
 N. ,T. Eq. 606; Coudert v. Sayre, 46 having been no express covenant as to 
 
 N. J. Eq. 386; Dill v. School Board, the building to be erected there, the 
 
 47 N. J. Eq. 421; Matter of Leggett court finding that the erection of the 
 
 Ave., 80 App. Div. (X. Y.) 618 Hay hotel would not interfere with the 
 
 V. Knauth, 36 App. Div. 613. easement of the abutting lot owners. 
 
 In Johnson v. Shelter Island, etc. 1. Bowen v. Conner, 6 Gush. 
 Ass'n, 123 N. Y. 330, lots were sold (Mass.) 132; Winthrop v. Fairbanks, 
 with reference to a map indicating an 41 Me. 307; Phoenix Ins. Co. v. Con- 
 open space for public use called "The tinental Ins. Co., 87 N. Y. 400; An- 
 Ramble," within which space the word drews v. National Sugar Ref. Co., 73 
 "Chapel" was written, indicating a App. Div. (N. Y.) 551; Mayo y. Kew 
 proposed building. The court refused hoflf, 47 N. J. Eq. 31. 
 to enjoin the erection of a hotel at 
 
Eeseevations ahd Exceptions. 623 
 
 conveys land excepting a right of way tlirongh the land 
 owned by a railroad company, or any third person or owner 
 of adjoining land other than himself, the easement already 
 in existence is excepted, so that the conveyance is made 
 subject thereto.^ An easement can never be created by 
 exception, since exceptions deal only with easements or 
 other property rights already in existence. But words of 
 exception in a deed will be construed as a reservation where 
 the context shows that the creating of a new right was in- 
 tended, while words of reservation will be given effect as 
 an exception where the obvious purpose was to except a 
 right or thing already in existence.* 
 
 An easement cannot be created by reservation in favor of 
 a stranger. It is in effect the taking back by the grantor 
 of a right in the land conveyed as part of the conveyance, 
 with the same force and effect as though the grantee had 
 executed and returned a deed creating the easement at the 
 time the deed of conveyance was delivered to him. Such a 
 reservation in favor of a stranger, not a party to the trans- 
 action, is obviously void.* An exception of an easement 
 held by a stranger cannot operate to increase the easement 
 in any way. Its only effect is to make the conveyance sub- 
 ject to the easement, relieving the grantor from liability for 
 breach of covenant of title contained in his deed.^ At com- 
 mon law the word ' ' heirs ' ' was essential to the creating of 
 an easement by reservation, exactly as by express grant, in 
 order to create an easement in fee.® On the other hand an 
 exception did not require words of inheritance, the land 
 or right excepted being already in existence in fee in the 
 
 2. Winthrop v. Fairbanks, 41 Me. Winston v. Johnson, 4S Minn. 398. 
 307; Emerson v. Mooney, 50 N. H. 4. Beardslee T. New Berlin L. & P. 
 315; Myers v. Bell Tel. Co., 83 App. Co., 207 N. Y. 34; Haverhill SaT. 
 Div. (N. Y.) 623; Beardslee v. New Bank v. Griffin, 184 Mass. 419. 
 Berlin L. & P. Co., 207 N. Y. 34. 5. See cases in preceding note. 
 
 3. Winthrop v. Fairbanks, 41 Me. 6. Ashcroft v. Eastern E. R. Co., 
 ■307; Haggerty v. Lee, 50 N. J. Eq. 136 Mass. 196; Simpson v. B. & H. E. 
 "464; Wood v. Boyd, 145 Mass. 176; Co., 176 Mass. 359. 
 
624 
 
 Easements and Peofits. 
 
 grantor or third person, tiie exception merely taking it out 
 of the operation of the deedJ The modern rule, however, 
 
 7. Bowen v. Conner, 6 Cush. (Mass.) 
 132; Emerson v. Mooney, 50 N. H. 
 315; Winthrop t. Fairbanks, 41 Me. 
 307. 
 
 In Bowen v. Conner, supra, the par- 
 ties were tenants in common, dividing 
 the property by mutual deeds, a riglit 
 of way over the outer parcel being ex- 
 pressly reserved in favor of the mner 
 parcel, words of inheritance not be- 
 ing used. The court gave effect to 
 the obvious intent to create a way in 
 fee, declaring it to have been created 
 by way of exception, the plaintiff to 
 whom the inner parcel was conveyed 
 having the right as tenant in common 
 to cross at any point over the outer 
 parcel hefore the conveyance, which 
 right was excepted, as to the 30-foot 
 strip, by the so-called reservation of 
 a, right of way thereover. 
 
 In Dee v. King, 77 Vt. 230; Chap- 
 pell V. N. Y. N. H. & H. R. Co., 62 
 Conn. 195; Bridger v. Pierson, 45 N. 
 Y. 601, and White v. N. Y. & N. E. 
 E. R. Co., 156 Mass. 181, the ways 
 reserved or e.^cepted in each case had 
 been in open and more or less continu- 
 ous use from land retained over land 
 conveyed by the instrument contain- 
 ing the reservation or exception. In 
 each case they were given effect as 
 exceptions of existing ways, making 
 the use of words of inheritance un- 
 necessary. On the other hand, in Ash- 
 croft V. Eastern E. R. Co., 126 Mass. 
 196, the right of way was reserved 
 through a culvert which was to be 
 kept in repair by the grantee, creat- 
 ine; a new and distinct right not be- 
 fore existing in the grantor, and it 
 »pa.s therefore held to be a reserva- 
 
 tion requiring words of inheritance. 
 So in Claflin v. B. & A. E. Co., 157 
 Mass. 487, a similar way to be kept 
 in repair by the grantors was also 
 held to be created by reservation since 
 there was no evidence of an existing 
 way. 
 
 It is submitted that in each of the 
 above cases the easement was crea- 
 ted in fact by way of reservation, a 
 new and distinct easement which had 
 no existence theretofore being created 
 in each case. A man cannot have an 
 easement in land belonging to him- 
 self, and the effect of the reservation 
 in each case was to create an ease- 
 ment of way which had no existence 
 theretofore. An owner has the right 
 to use his land in any way and for 
 any purpose. The logical effect of 
 these cases would be to convert all 
 reservations into exceptions, at least 
 for the purpose of determining 
 whether words of inheritance are 
 necessary or not, since it is clear that 
 the existence of an open use of one 
 parcel for the benefit of the other 
 can have no effect in this question, 
 as the right to such a, user would ex- 
 ist in the grantee whether it had ac- 
 tually been enjoyed before the con- 
 veyance or not. In New York and 
 the many other states in which the 
 use of the word " heirs " is no longer 
 necessary, and where the intent of 
 the parties governs, no such question 
 could arise, it being obvious that the 
 easement reserved was intended to 
 continue during the continuance of 
 the estate granted; In fee if the es- 
 tate conveyed was in fee. As we 
 shall see, an easement arising by im- 
 
Wats of Necessity. 
 
 625 
 
 is that easements created by reservation will partake of tlie 
 nature of the dominant and servient estates — if they are in 
 fee the easement will also be in fee though words of inheri- 
 tance are omitted in the reservation.^ But in the case of 
 easements in gross words of inheritance are essential if they 
 are to continue longer than for the life of the recipient, the 
 presumuption being that they are mere personal rights for 
 life only in the absence of words of inheritance. 
 
 § 280. Ways of Necessity. — When the owner of land 
 conveys the inner portion thereof, retaining the outer por- 
 tion abutting on the highway, the inner parcel being sur- 
 rounded on every other side by the lands of strangers, a 
 way of necessity arises as an implied term of the deed con- 
 veying the inner parcel, giving to the grantee of the inner 
 parcel a right of way over the outer parcel to and from the 
 highway. This easement is implied because of the evident 
 necessity of such a way for the beneficial enjoyment of the 
 
 plied reservation due to an open, 
 notorious and continuous user of the 
 part granted for the benefit of the 
 part retained, will be an easement in 
 fee if the estate conveyed is a fee. 
 It is the extreme of technicality to 
 hold that where the easement is ex- 
 pressly reserved in a similar case the 
 easement shall continue only for the 
 life of the grantor because the word 
 " heirs " is not used. The eases above 
 referred to seek to avoid this and to 
 give effect to the intention of the 
 parties by calling these provisions ex- 
 ceptions, to which the technical com- 
 mon law rule did not apply. The 
 courts should have declared them to 
 be reservations, but that the word 
 " heirs " was not required, since they 
 necessarily were to be of the same 
 duration as the estate conveyed, out 
 of which they were reserved. The 
 law has within ils'lf the power of cor- 
 
 40 
 
 rection and growth. Precedent is no 
 justification for the continuing of an 
 absurdity. Error in or inapplicabil- 
 ity of the old law should be recognized 
 and corrected, not dodged as in these 
 cases with the attendant confusion 
 arising through the misuse of the 
 terra " exception." 
 
 8. Coudert v. Sayre, 46 N. J. Eq. 
 386 (covenant creating easement ran 
 with the land) ; Newhoff v. Mayo, 48 
 N. J. Eq. 619 (easement created by a 
 tenant for years continues only dur- 
 ing the term) ; Knecken v. Voltz, 110 
 111. 364. 
 
 See, also, preceding note, the 
 changes in the law having been ac- 
 complished in several instances by 
 calling reservations exceptions, and 
 •-pplying to them the rule as to the 
 u?e of the word " heirs," which ap- 
 plied at common law to exceptions. 
 
626 
 
 Easements aud Psofits. 
 
 land so conveyed. Without it th.e grantee could not get to 
 or from his property without becoming a trespasser. The 
 easement arises, therefore, by necessary implication as an 
 implied term of the deed exactly as though it had been cre- 
 ated by express terms, in the absence of any express pro- 
 vision to the contrary.^ Since it arises out of the necessity 
 
 1. Packer v. Welsted, 2 Sid. 39, 
 111; Clark V. Cogge, Cro. Jac. 170 
 Pinnington v. Galland, 9 Ex. 1 
 Sinyles v. Hastings, 32 N. Y. 217 
 Palmer v. Palmer, 150 N. Y. 139 
 Sclimidt V. Quinn, 136 Mass. 575 
 Collins V. Prentice, 15 Conn. 39; Sey- 
 mour V. Lewis, 13 N. J. L. 439; Jay 
 V. Michael, 93 Md. 198. 
 
 Strict necessity is required. Mere 
 convenience, or the saving of expense 
 in building a road or removing a 
 natural obstruction to a way over the 
 land of the grantee of the inner par- 
 cel will not be enough to give rise to 
 this easement. Thus if he can reach 
 the land in question by boat over 
 navigable waters, it has been held 
 that no way of necessity arises. 
 Turnbull v. Rivers, 3 McCord (S. C.) 
 131; Kingsley v. Goldsborough L. 
 Im. Co., 86 Me. 279; Burlew v. Hun- 
 ter, 41 App. Div. 148, 151. 
 
 Where he has another way, ob- 
 structed by a slough and a. ditch 
 which could be made passable for 
 $1000, no way of necessity can be 
 implied. Carey v. Eae, 58 Cal. 159. 
 That the way which he has is steep 
 or narrow, or a long way around is 
 no reason for implying a way of 
 necessity. Stevens v. Orr, 69 Me. 333; 
 Ogden V. Grove, 38 Pa. St. 487; 
 Stuyvesant v. Woodruflf, 31 N. J. L. 
 133. 
 
 Practical necessity, however, as dis- 
 tinguished from absolute necessity, 
 
 will give rise to this easement over 
 the outer parcel retained or conveyed 
 as the case may be. The question in 
 each case is this: Is the existence of 
 such a way necessary as a practical 
 matter for the use and enjoyment of 
 the land conveyed in view of the pur- 
 pose and intent of the parties to the 
 conveyance? Schmidt v. Quinn, 136 
 Mass. 575, and cases above cited. 
 
 Of course a way of necssity never 
 exists over the land of a stranger. 
 It arises by implied grant or reserva- 
 tion where the common owner of two 
 parcels conveys or devises one of 
 them, retaining the other, or conveys 
 or devises both parcels to different 
 persons. Nichols v. Luce, 24 Pick. 
 (Mass.) 108; Woodworth v. Raymond, 
 51 Conn. 70, 75; Ellis v. Basset, 138 
 Ind. 118. In Louisiana and under the 
 French Code an easement arises in 
 such case over the lands of a stranger 
 on making due compensation. Code 
 Map, §§ 682-685; Martin v. Patin, 16 
 La. 57. Transfer by operation of law, 
 as by sale of one parcel under execu- 
 tion, has the same effect as a volun- 
 tary transfer. Schmidt v. Quinn, 136 
 Mass. 575. But where the land is ac- 
 quired by escheat or by condemnation 
 proceedings no way of necessity 
 arises, since a way may be. con- 
 demned by the state or city, and paid 
 for. Proctor v. Hodgson, 10 Rx. 824; 
 Banks v. School Directors, 194 HI. 
 247. 
 
Ways of Necessity. 627 
 
 of the case it continiaes only so long as the necessity con- 
 tinues to exist, and iE the grantee of the inner parcel sub- 
 sequently acquires land directly connecting the parcel in 
 question with the highway, or if a new street or highway 
 is put through or a private way to the highway is sub- 
 sequently acquired, the way of necessity immediately comes 
 to an end, the necessity on which it depended having 
 ceased.^ In the same way and for the same reason a way 
 of necessity arises by implied reservation whenever the 
 owner of the two parcels sells the outer parcel retaining 
 the inner one.' 
 
 The ov/ner of the outer parcel has the right to designate 
 the course and limits of the way, provided he does so in a 
 reasonable manner, consistent with the reasonable enjoy- 
 ment of the easement by the owner of the inner parcel. 
 If he refuses or unreasonably neglects to do so, the owner of 
 the inner parcel may lay out the way himself, he doing so 
 without unreasonably burdening the outer parcel or unduly 
 interfering with its owner's right of enjoyment.* The 
 way must be kept in repair by the owner of the inner parcel, 
 the responsibility for its condition as a way resting upon 
 him.^ 
 
 A way of necessity is a general right of way for every 
 use and purpose to which the inner parcel may be put in full 
 and complete enjoyment of its ownership.^ 
 
 2. Palmer v. Palmer, 150 N. Y. 139; Of course if a way is already in ex- 
 N. Y. Life Ins. C!o. v. Milnor, 1 Barb, istence having been laid out and in 
 Ch. (N. Y.) 353; Pierce v. Selleek, 18 use before the sale, the way of necea- 
 Conn. 331; Viall v. Carpenter, 14 sity will usually be continued over 
 Gray (Mass.) 136; Ballard v. Dem- the same course. Schmidt v. Quinn, 
 mon, 156 Mass. 449. In other respects 136 Mass. 575; Whitehouse v. Cum- 
 ways of necessity may be terminated mings, 83 Me. 91; Ellis v. Bassett, 
 like other easements of way. See §S 128 Ind. 118. 
 
 295, 296, post. 5. See § 294, notes 14, 15, 16, post, 
 
 3. See cases in note 1, supra. 6. Whittier v. Winkley, 62 N. H. 
 
 4. Palmer v. Palmer, 150 N. Y. 139; 338; Camp. v. Whitman, 51 N. J. Eq. 
 Bolton V. Bolton, L. R. 11 Ch. Div. 467; Myers v. Dunn, 49 Conn. 71. Se« 
 968 ; Dunham v. Pitkin, 53 Mich. 504. § 394, note 7, post. 
 
628 Easements autd Peofits. 
 
 § 281. Easements Created by Implied Grant or Reserva- 
 tion. — Where the owner of a parcel of land conveys part of 
 it, retaining the other part, if it appears that at the time of 
 the conveyance the part retained has been subjected to some 
 use or burden for the benefit of the part conveyed in a way, 
 which is open, notorious, permanent, and of value to the 
 part conveyed, an easement arises by implied grant, giving 
 to the grantee of the part so conveyed the right to have the 
 use or burden continue as theretofore for the benefit of his 
 property. The question on which each case turns is this: 
 Did the purchaser as an average reasonable man have the 
 right to believe that he was acquiring with the property 
 conveyed to him an easement in the property retained by 
 the grantor, and did the amount paid by him for the prop- 
 erty include payment for such easement because of the ap- 
 parent physical situation of the two parcels with refer- 
 ence to one another at the time of the sale? If he had the 
 right to believe that he was purchasing and paying for the 
 easement in question because of the physicial situation of the 
 two parcels then existing, the law will give effect to the 
 easement as an implied term of the deed, exactly as though 
 it had been created therein by express terms. The inad- 
 vertant failure to expressly provide for it will not prevent 
 it from arising, the sale having been made with the tacit 
 understanding that the easement should arise.'' 
 
 It is, of course, obvious that no easement in any form 
 exists in such case until the conveyance takes place, since 
 the grantor could not have an easement in his own prop- 
 erty. Therefore the easement arises, if at all, as an im- 
 plied term of the deed, and does not pass as an existing ap- 
 purtenance to the property conveyed.* 
 
 It is difficult to understand on what legal principle the 
 courts have acted in giving effect to easements arising in 
 this way, particularly since the enactment of the Statute of 
 
 7. See cases cited and discussed in 8. See cases cited under section fol- 
 section following. lowinj;. 
 
Easemeints Created by Implied Geant. 629 
 
 Frauds. The unexpressed intent of the parties is given ef- 
 fect and a new and distinct legal interest in land is created 
 without a writing and without a parol agreement other than 
 the agreement to be implied from the circumstances. The 
 courts seem to have disregarded technicalities and to have 
 adopted the rule which justice and common sense and prac- 
 tical needs of men demanded. The principle on which the 
 rule is based is very similar to the principle on which equity 
 acts in many cases, such as in enforcing parol contracts for 
 the sale of land in cases of partial performance, the enforce- 
 ment of incomplete mortgages, and the like. The easement 
 is implied in order that justice may be done and that what 
 would otherwise amount to a fraud as against the purchaser 
 may be prevented. 
 
 It is generally stated that the user required to give rise 
 to an easement by implied grant must be open and notorious, 
 continuous and reasonably necessary to the enjoyment of 
 the property conveyed. Here as elsewhere in the law there 
 has been a tendency to apply these rules in a technical way 
 without regard to the reasons on which they are based. 
 The user must be open and notorious, so that the average 
 person in the position of the purchaser would observe the 
 way in which the parcel retained by the grantor has been aj)- 
 plied in a permanent way to the use of the parcel conveyed. 
 It must be continuous, in the sense that it is permanent, ob- 
 viously intended for continued and permanent use as inci- 
 dent to the enjoyment of the property conveyed.® It is 
 generally said that the user must be reasonably necessary to 
 the enjoyment of the parcel transferred, but it is quite 
 obvious that in many cases no necessity exists. If the user 
 imposed on the servient parcel is an open and permanent 
 adaptation or appropriation of that parcel for the benefit 
 of the dominant parcel to the extent of the user, and is of 
 such apparent value that the average man would take it 
 into consideration in determining the value of the parcel 
 
 9. See notes under following section, particularly notea 2, 3, 4, 6, 8. 
 
630 Easements and Peofits. 
 
 so benefited, and in fixing the price to be paid, the easement 
 will be implied though a substitute could easily be secured 
 at some additional expense, making the user in no accurate 
 sense of the term either strictly or reasonably necessary to 
 the beneficial enjoyment of the property. These principles 
 may be best illustrated in connection with a consideration 
 of the more important classes of cases of easements of this 
 nature, which are discussed in the following section.^" 
 
 Easements by implied reservation arise where the grantor 
 reserves the parcel so benefited, conveying the parcel sub- 
 jected to the user in an open and permanent way. The 
 basic principle in both cases is the same, viz. : the easement 
 will be implied in accordance with the apparent intention 
 of the parties, where reasonable men in their place would 
 have intended that the easement should arise under the 
 circumstances of the case. In case of doubt, however, of 
 whether or not the parties intended an easement to arise, 
 the doubt will be resolved in favor of the grantee because 
 of the rule of construction that a deed must be construed 
 most strongly against the grantor. The tendency of the 
 later cases, cited and discussed hereafter, is to hold that no 
 easement will arise by implied reservation except in cases 
 of strict or practical necessity, ignoring the fact that they 
 turn on exactly the same principle as easements created by 
 implied grant, and that a rule of construction, such as that 
 above referred to, can have no application except in cases 
 of real doubt. Where the intent is clear there is no room 
 for construction.^^ 
 
 § 282. Easements by Implied Grant; The More Important 
 Classes of Cases. — Ways of necessity are easements created 
 by implied grant or reservation, as we have seen, but they 
 belong and are treated as a class by themselves, because 
 they do not depend on an existing user of one parcel for the 
 
 to. See iK>t« to, aeetion fonowing. 11. See § 383. post. 
 
Easements bt Implied GtBatt-t. 
 
 631 
 
 benefit of the other at the time of the serverance of the title 
 to the two parcels.^ 
 
 Where the owner of two parcels lays out and constructs 
 a visible and permanent roadway over one parcel to the 
 benefit and advantage of the other, obviously adding to its 
 value, on the conveyance of the parcel so benefited an ease- 
 ment of way arises by implied grant. The user is open and 
 notorious, continuous in that it is a permanent structure 
 appropriating part of the land retained, and though not 
 strictly necessary as is a way of necessity, other means of 
 access to the highway existing, it adds to the value of the 
 parcel conveyed, and the purchaser as a reasonable man 
 had a right to believe that he was acquiring with the land 
 the right to the way.^ On the other hand where no road- 
 
 1. See § 380, ante. 
 
 2. In Watts v. Kelson, L. R., 6 
 Ch. 166, the court said: "In Lang- 
 ley V. Hammond (L. R., 3 Ex. 161), 
 Baron Bramwell expressed an opin- 
 ion, in which we concur, that even in 
 the case of a right of way, if there 
 was a formed road made over the al- 
 leged servient tenement, to and for 
 the apparent use of the dominant 
 tenement, a right of way over bucSi 
 road might pass by a conveyance of 
 the dominant tenement with the or- 
 dinary general words." 
 
 In Brown v. Alabaster, L. R., 37 
 Ch. Div. 490, a narrow back way led 
 to the rear gardens of several houses, 
 with gates opening therefrom into 
 the houses. The court held that on 
 the conveyance of two of these houses 
 a right of way over the other prop- 
 erty retained by the -grantor arose 
 by implication " because, being a 
 formed road, it is considered by the 
 authorities, in cases like this, to be 
 k continuous and apparent easement 
 — by implied grant without any lar.se 
 general words, or, indeed, without 
 
 any general words at all." The court 
 cites and discusses several English 
 cases of the same nature in which a 
 similar position was taken. 
 
 In the following cases easements of 
 way were held to arise by implied 
 grant or reservation, the intention to 
 create a permanent way over one par- 
 cel for the benefit of the other be- 
 ing manifest. Davis v. Sear, L. R., 
 7 Eq. Cas. 437; France's Appeal, 96 
 Pa. St. 200; Overdeer v. Updegraflf, 
 96 Pa. St. 110; Cannon v. Boyd, 73 
 Pa. St. 179; Outerbridge v. Phelps, 
 58 How. Pr. (N. Y.) 77; Hutte- 
 meier v. Albro, 18 N. Y. 48 (right 
 to use of alley in regular use for 
 benefit of house and lot conveyed, 
 created by implied grant) ; Mitchell 
 V. Siepel, 53 Md. 351 (holding that 
 such way would not arise by implied 
 reservation); Goodall v. Godfrey, 53 
 Vt. 219; Leonard f. Leonard, 7 Al- 
 len (Mass.) 377, 283. Contra, Stev- 
 ens V. Orr, 69 Me. 333; Warren, v. 
 Blake, 54 Jle. 276; Doliff v. Boston 
 & M. R. R. Co., 68 Me. 173. 
 
 In Larsen v. Peterson, 53 N. J. 
 
632 
 
 Easements and Peopits. 
 
 way is laid out or alley-way appropriated to the use of the 
 land conveyed, no easement arises out of a mere occasional 
 passing over the parcel retained in the enjoyment of the 
 parcel conveyed. Such user of land as a way without build- 
 ing a road or in any other respect permanently appropriat- 
 ing the land affected for the benefit of the land conveyed, 
 is a good illustration of a user which is not continuous in 
 that it is not permanent and is evidenced only by occasional 
 acts of user and the tracks or marks that may result there- 
 from.^ Other illustrations of non-continuous acts of user 
 are the entering upon land for the purpose of drawing water 
 from a well or cistern, the right to draw a seine upon the 
 shore, and the like. 
 
 Eq. 88, the court said : " I stop here 
 to say that the distinction between 
 a watercourse and a formed and 
 metaled road constructed for perma- 
 nent use is quite thin, and there have 
 been expressions of judges in modern 
 times intimating an inclination to 
 hold that where a dwelling or other 
 such tenement is conveyed with an 
 artificially formed road leading to it 
 over other lands of the grantor 
 which are reserved, a right of way 
 ought to be held to pass." 
 
 3. Fetters v. Humphreys, 18 N. J. 
 Eq. 260, is decided on this ground, 
 though a border line case. The tes- 
 tator had erected a stable on one lot 
 facing on another belonging to him. 
 and he used the second lot in getting 
 to and from the stable, an orna- 
 mental flower garden taking up the 
 rest of the rear of the first lot on 
 which the stable stood. An alley left 
 between buildings erected on the ad- 
 joining lot leading to a side street 
 had been used as an approach to the 
 stable, though there was nothing else 
 to show that it had been left or Gre- 
 eted for that purpose, and no road 
 
 had been constructed. The court 
 held that on the testator's devising 
 the lots to different persons no way 
 by implication arose over the alley 
 in question, since the devisee of the 
 lot with the stable could cut a road 
 through the flower garden to the 
 street adjoining her lot. The user 
 was not necessary or continuous 
 within the meaning of the rule. It 
 ib submitted that if it had appeared 
 that the alley-way had been left as 
 a permanent approach to the stable 
 an easement would have arisen by 
 implication under the will. 
 
 In the following cases the courts 
 refused to recognize ways by implied 
 grant, they being merely casual ways 
 used occasionally and not constructed 
 roads, or not of obvious value to the 
 land conveyed; Worthington v. 
 Gunison, 2 E. & Ellis 618; Plympton 
 V. Converse, 42 Vt. 712. Compare 
 this case with Gordall v. Godfrey, 5.3 
 Vt. 319, where the way led to the 
 back of the house in question, which 
 house covered the entire front of the 
 lot. It was essential to the reason- 
 able enjoyment of the house and lot 
 
Easements bt Implied Geaht. 63S 
 
 Drains, water pipes or conduits, race-ways and rights of 
 flowage in connection with water power in the operation of 
 mills, and other water rights may all be classed together as 
 easements frequently arising by implied grant, constituting 
 the most usual and important class of such easements. 
 Thus if the owner of a house sells it with a drain leading 
 therefrom through land which he retains, if the drain is 
 open and visible, or is indicated so that its existence might 
 be discovered by ordinary investigation, the purchaser of 
 the house acquires an easement of drainage by implied 
 grant over the land retained.* No difficulty arises in the 
 case of an open ditch or drain where it obviously adds to 
 the value of the property conveyed. It is continuous in 
 that it is a permanent use of one parcel for the benefit of the 
 other.^ In the case of covered drains the question presented 
 is whether it is such an open user of the parcel retained for 
 the benefit of the parcel conveyed that the purchaser as a 
 reasonable man had the right to believe that he was acquir- 
 ing and paying for the easement. Where it is hidden from 
 observation, and there is nothing in the situation of the 
 
 4. Pyer v. Carter, 1 H. & N. 916, Thayer v. Payne, 2 Cush. (Mass.) 
 
 the court holding that the easement 327 (drain necessary to beneficial en- 
 
 to continue the drain arose by im- joyment of property conveyed) ; 
 
 plied reservation, though the drain Johnson v. Jordan, 3 Met. (Mass.) 
 
 was entirely covered, and the defend- 234 (recognizes rule that easement 
 
 ant purchaser testified that he was would arise in such case by implied 
 
 not aware of the drain at the time of grant, but not by implied reservation 
 
 the purchase, the court saying that when the parcel benefited is retained 
 
 because of the relation to each other by the grantor, and not in case of 
 
 of the two parcels the defendant simultaneous conveyances of the two 
 
 " must have known ' that some drain- parcels, it appearing that anotlier 
 
 age then existed, and if he had in- drain could be made at a reasonable 
 
 quired he would have known of this cost without encumbering the second 
 
 drain. • • • 'By • apparent signs ' parcel). See, also, eases in notes fol- 
 
 must be understood not only those lowing. 
 
 which must necessarily be seen, but 6. Munsion v. Reed, 46 Hun (N. 
 
 those which may be seen or known Y.) 399. See, also, Curtiss v. Ay- 
 
 on a careful inspection by a person rault, 47 N. Y. 73. 
 ordinarily conversant with the sub- 
 ject." See next section. 
 
634 Eabembnts and Fbofits. 
 
 two parcels to indicate its existence arising out of some 
 need thereof, no easement arises.® But "where an upper 
 parcel would naturally be drained over the lower parcel, 
 so that a drain through the lower parcel might reasonably 
 be looked for, and would be disclosed on reasonable investi- 
 gation, the easement will arise by implied grants 
 
 Where the dominant parcel so conveyed is supplied with 
 water through pipes or conduits leading from springs or 
 reservoirs situated on the parcel retained, an easement 
 arises by implied grant, all the requisites being present, 
 the user being open and notorious, continuous in the sense 
 of a permanent fixture ready for use at any time for the 
 benefit of the dominant parcel, and adding to its value in a 
 definite way.® Though the pipes are not in use all the time, 
 as where the pipe led from a well on the land retained to 
 a kitchen sink in the house conveyed through which water 
 might be pumped, the user is continuous in that the pipe is 
 always there as a permanent fixture burdening the servient 
 parcel, ready for use whenever the owner of the house might 
 desire to pump water from the well.* In most of these 
 cases, if not in all, the user is in no accurate sense of the 
 term necessary to the beneficial enjoyment of the property. 
 Water can always be obtained, either by sinking a well or 
 from public water companies. The term " necessary " as 
 used in this connection is inaccurate and misleading and 
 should be discontinued. The user is said to be necessary 
 to the beneficial enjoyment of the dominant parcel, though 
 
 8. Butterworth v. Crawford, 46 N. 8. Nicholas v. Chamberlain, Cro. 
 
 Y. 349 (hidden drain leading from Jac. 121; Watte v. Kelson, L. R., 6 
 
 vault under outhouses. Nothing to Ch. 166; Spencer v. Kilmer, 151 N. 
 
 indicate existence or need of drain. Y. 390; Paine y. Chandler, 134 N. 
 
 No easement arose by implied grant). T. 385; Toothe v. Bryce, 50 N. J. 
 
 7. See note 5, supra. On question Eq. 589; Larsen v. Peterson, 53 N. 
 
 of open and visible marks or signs of J Eq. 88. 
 
 the user in connection with water 9. Larsen v. Peterson, -53 N. J. Bq. 
 
 pipes or conduits, see Toothe v. 88. 
 Bryce, 50 N. J. Eq. 589; Larsen r. 
 Peterson, 53 N. .J. Eq. 88. 
 
Easememts by Implied GsAifT. 
 
 6^ 
 
 water or drainage or a way or other benefit involved in the 
 case may be secured in other ways at increased expense. 
 Where a substitute in all respects equal to the easement 
 claimed can be secured by the expenditure of a reasonable 
 sum of money it is obvious that the easement is not neces- 
 sary to the beneficial enjoyment of the property. The ease- 
 ment arises because the user is of value to the parcel con- 
 veyed, the purchaser having considered it as part of what 
 he had purchased and paid for in acquiring the property." 
 
 10. This principle is clearly recog- 
 nized in the later and better consid- 
 ered cases. Thus in Toothe v. Bryce, 
 60 N. J. Eq. 589, the court said, in 
 referring to cases in which the word 
 " necessary " had been used as a 
 requisite of easements arising by im- 
 plied grant : " But I think that an 
 examination of them will show that 
 in most, if not all, of those instances, 
 * * * the so-called ' necessity ' 
 upon which the judges relied, was, in 
 fact, no necessity at all, but a mere 
 beneficial and valuable convenience." 
 The court then proceeds to examine 
 the leading English and American 
 cases, pointing out that the user in 
 each case was in no proper sense 
 " necessary." 
 
 In Curtis v. Ayrault, 47 N. Y. 73. 
 where a ditch had been dug making 
 an open watercourse through the par- 
 cel subsequently sold, the court said: 
 " It is the open and visible effect 
 which the change has wrought which 
 is presumed to influence the mind of 
 the purchaser. The question is, did 
 the purchaser, in arriving at the 
 price he would pay, consider, and 
 have a, right to consider, as an ele- 
 ment of the value of the land he was 
 bidding for, the benefits he derived 
 from the artificial channel." 
 
 In Paine v. Chandler, 134 N. Y. 
 
 385 (easement of pipe or aqueduct 
 from spring), the two ideas are con- 
 fused. The court said : " Undoubt- 
 edly, an easement to pass by implica- 
 tion must be necessary to the enjoy- 
 ment of the estate granted, but the 
 necessity required is a reasonable, 
 not an absolute one. Mere conven- 
 ience would not be sufficient. • • • 
 The privileges or right implied must 
 be of value to the estate granted, 
 which the grantee has estimated as 
 an advantage to the estate and paid 
 for in his purchase." It is submit- 
 ted that " reasonable necessity " is 
 a contradiction in terms and is unin- 
 telligible. In Spencer v. Kilmer, 151 
 N. Y. 390, involving right to aque- 
 ducts from springs, etc., to a fish 
 pond, the court said: "When the 
 owner of the tract of land conveys a 
 distinct part of it to another he im- 
 pliedly grants all those apparent and 
 visible easements which at the time 
 of the grant were in use by the own- 
 er for the benefit of the part no 
 granted, and which are essential to 
 a reasonable use and enjoyment of 
 the estate conveyed. The rule is not 
 limited to continuous easements or 
 to cases where the use is absolutely 
 necessary to the enjoyment of the 
 thing granted. It applies to those 
 artificial arrangements which openly 
 
ma Easements and Peofits. 
 
 Where a mill is sold with a raceway leading from a reser- 
 voir on land retained by the grantor, or with a spillway 
 through which waste waters are discharged from the mill 
 extending through lands retained by him, the grantee ac- 
 quires an easement that the same user continue. ^^ So where 
 he purchases a water power site, with a dam of a defined 
 height, he acquires therewith the right to flow land above 
 the dam retained by the grantor to the extent necessary in 
 raising the head of the water to the height of the dam. In 
 these cases the user is open and notorious, continuous in 
 that it is a permanent use of the servient parcel, and of 
 obvious value to the mill property, though not necessary 
 since steam power could be substituted for water power.^^ 
 
 Other illustrations of easements arising by implied grant 
 are easements of support, where a building is sold supported 
 in part by a building on an adjoining lot retained by the 
 grantor,^^ and easements of light and air through windows 
 in the building sold overlooking land so retained.^* The 
 general rule in the United States is that no easement of 
 light and air will be implied in such case, there being in 
 fact no appropriation of the adjoining vacant land for any 
 
 exist at the time of the sale and ma- was not shown). See, also, cases in 
 
 terially affect the value of the thing preceding note. 
 
 granted." 13. Richards v. Rose, 9 Exch. 218; 
 
 11. Wells V. Garhurr, 133 N. Y. Rogers v. Sinsheimer, 50 N. Y. 646; 
 430; Rackley V. Sprague, 17 Me. 281; Morrison v. King, 62 111. 30; Ad- 
 Bliss V. Kennedy, 43 111. 71; Perrin ams v. Marshall, 138 Mass. 22S. 
 
 V Garfield, 37 Vt. 312; Siebert v. 14. Wheeldon v. Burrows, L. R., 
 
 Levin, 8 Barr (Pa.) 383; Elliott v. 12 Ch. Div. 31; Allen v. Taylor, 15 
 
 Sallee, 14 Oh. St. 10; Morgan v. Ma- Ch. Div. 355; Phillips v. Low, L. R., 
 
 son, 20 Oh. 401. 1 Ch. 47 (will not arise by implied 
 
 12. Wells V. Garburr, 132 N. Y. reservation in favor of grantor) ; 
 430 (right to flow land conveyed did Greer v. Van Meter, 54 N. J. Eq. 270; 
 not arise by implied reservation be- Sutphen v. Therkelson, 38 N. J. Eq. 
 cause carrying the dam to the addi- 318; Janes v. Jenkins, 34 Md. 1. 
 tional height was not shown to be at See Renneson's App., 94 Pa. St. 147, 
 all required in order to operate the 153, and Robinson v. Clapp, 6a Conn. 
 mill in question. Therefore, intent 365, 385. 
 
 to reserve an easement of flowasje 
 
Easements Aeising by Implied Resekvation. 637 
 
 Bucli purpose.^ *• Where an apartment or office is leased with 
 windows looking out on a back lot or court appropriated to 
 the building for the obvious purpose of supplying light and 
 air an easement during the term arises, the back yard or 
 court going with the building, and the easement of light and 
 air being clearly intended to arise as part of the thing 
 demised. ^^ 
 
 Where the owner of an entire tract changes the natural 
 course of a stream flowing through it, and later sells part 
 of the tract, he will not be permitted to change the course 
 of the stream again to the damage of the vendee of the 
 parcel sold, he having purchased with reference to the open, 
 visible situation as it existed at the time of the sale.^^ So 
 where a watercourse is created by ditching, or the like, the 
 purchaser of part of the tract along the watercourse will 
 acquire an easement therein, arising, however, as a natural 
 right included within the thing demised, rather than by 
 implied grant. ^* 
 
 § 283. Easements Arising by Implied Reservation. — In 
 the earlier cases, in the different situations discussed in the 
 last two sections, it seems to have made little difference 
 whether the parcel benefited was conveyed or retained by 
 the grantor, the easement nevertheless arising where the 
 user was open, continuous in the sense of being permanent, 
 and of obvious value to the parcel benefited, arising by im- 
 plied grant where that parcel was granted, by implied reser- 
 
 15. Keats v Hugo, 115 Mass. 204; looking vacant adjoining property. 
 Mullen V. Strieker, 19 Oh. St. 135; retained by the landlord, in no way 
 Kennedy v. Burnap, 120 Cal. 488, appropriated to the house, acquires 
 490; Myers v. Gemmel, 10 Barb. (N. an easement of light and air as an 
 Y.) 537; Haverstick v. Supe, 33 Pa. implied term of the lease. Ware v, 
 St.. 368. Chew, 43 N. J. Eq. 493. 
 
 16. Doyle v. Lord, 64 N. Y. 432; 17. Lampman v. Milks, 21 N. Y. 
 Case V. Minot, 158 Mass. 577. In 505; Roberts v. Eoberts, 55 N. Y. 
 New Jersey, in accordance with tlie 277; Watts v. Kelson, L. R., 6 Ch, 
 cases cited in note 14, supra, the ten- Ap. 166. 
 
 fint of a building with windows over- 18. Curtiss v. Ayrault, 47 N. Y. 73 
 
638 
 
 Easements and Peofits. 
 
 Vation when that parcel was retained and the servient parcel 
 was conveyed.* By the later cases in England the rule laid 
 down in Pyer v. Carter has been in effect overruled, the rule 
 as stated by the later cases being that no easement will arise 
 by implied reservation except where the user in question 
 is strictly necessary to the enjoyment of the property re- 
 tained.2 Ijj tj^ United States the tendency has been to 
 
 1. Pyer v. Carter, 1 H. & IST. 916 
 (the court holding that an easement 
 In a drain through land conveyed 
 arose by implied reservation in favor 
 of the grantor, though the drain was 
 concealed from sight, and was dis- 
 closed only by the general character 
 of the ground as indicating that the 
 one parcel was necessarily or prob- 
 ably drained through the other) ; 
 Larapman v. Milks, 21 N. Y. 505 
 (dicta) ; Seymour v. Lewis, 13 N. J. 
 Eq. 439; Kelly v. Dunning, 43 N. J. 
 Eq. 62; Ormsby v. Pinkerton, 159 Pa. 
 Bt. 458; Geible v. Smith, 146 Pa. St. 
 276; Steinke v. Bentley, 6 Ind. App. 
 663. 
 
 2. In Suffield v. Brown, 4 De G. 
 J. & S. 185, the court said, referring 
 to an extract from Gale on Ease- 
 ments : " But I cannot agree that 
 the grantor can derogate from hia 
 own absolute grant so as to claim 
 rights over the thing granted, even 
 if they were at the time of the grant 
 continuous and apparent easements 
 enjoyed by an adjoining tenement 
 which remains the property of him, 
 the grantor." The court adds that, 
 considering the SQ-called easements 
 as appurtenant to the adjoining tene- 
 ments they may he released, " and the 
 absolute sale and grant of the land 
 on or over which they are claimed is 
 Inconsistent with the continuance of 
 anything abridging the complete en- 
 
 joyment of the thing granted which 
 is separable from the tenement re- 
 tained, and can be aliened or re- 
 leased by the owner." The court ex- 
 pressly states that Pyer v. Carter 
 was not rightly decided. All of this 
 was dicta, since the user involved 
 was clearly discontinuous, viz.: The 
 occasional extending of the bowsprit 
 of large ships when in the dock over 
 the strip of land conveyed, there be- 
 ing nothing to indicate any such 
 easement except the occasional user. 
 
 In Wheeldon v. Burrows, L. R., 13 
 Ch. Div. 31, the court refused to im- 
 ply an easement of light and air to 
 windows in a building overlooking 
 the adjoining land conveyed, though 
 such easement would arise by implied 
 grant if the building with the win- 
 dows had been sold and the land re- 
 tained. The court treats Pyer v. 
 Carter as overruled, and bases its de- 
 cision on the principle that the 
 grantor shall not derogate from his 
 own grant. The court recognizes as 
 exceptions (1) ways of necessity, 
 which arise by implied reservation 
 as by implied grant; (2) mutual 
 easements of support between con- 
 tiguous buildings with walls support- 
 ing one another, or with a single 
 party wall. In general, the rule laid 
 down in this case is that " if the 
 grantor intends to reserve any right 
 over the tenoincnt granted it is hi» 
 
Easemeuts Atttsikg bt Implied Reseevatioh'. 
 
 639 
 
 follow the later English eases, the courts generally stating 
 that an easement will arise by implied grant where the user 
 is " reasonably necessary to the beneficial enjoyment of the 
 property conveyed," or, more properly, where it obviously 
 adds to the value of such property, so that the purchaser 
 had a right to believe that he was acquiring and paying for 
 the easement, while such easement will be implied by reser- 
 vation in favor of the grantor only where strict necessity 
 exists.^ The reason for this distiirotion, as stated by the 
 
 duty to reserve it expressly in the 
 giant." Where both lots are sold at 
 the same time the easement of light 
 and air arises in England, as it does 
 where the house with windows is first 
 conveyed. Allen v. Taylor, 16 Ch. 
 Div. 355; Swansborough v. Coventry, 
 9 Bing. 305. 
 
 In Union Literage Co. v. London 
 Graving Dock Co., L. R., 2 Ch. 557 
 
 (1903), the court lays down the rule 
 ihat to create an easement by im- 
 plied reservation the user must not 
 only be necessary to the beneficial 
 enjoyment of the parcel retained, but 
 so necessary that without it the par- 
 cel cannot be used at all. 
 
 3. In Carbrey v. Willis, 7 Allen 
 
 (Mass.) 364, where the lower parcel 
 was sold under a mortgage with a 
 drain extending through it from a 
 house on the upper parcel retained 
 by the mortgagor of the lower par- 
 cel, the court said : " We think the 
 true rule of construction is this: 
 that no easement can be taken as re- 
 served by implication unless it is de 
 facto annexed and in use at the time 
 of the grant, and is necessary to the 
 enjoyment of the estate which the 
 grantor retains. And this necessity 
 cannot be deemed to exist if a simi- 
 lar privilege can be secured by rea- 
 •onable trouble and expense.'' 
 
 In Johnson v. Jordan, 2 Met. 
 (Mass.) 234, a similar rule is laid 
 down. Strict necessity of the user 
 is made the test; a substitute means 
 of drainage, or other user, procur- 
 able at reasonable expense, prevents 
 the user from being necessary, thi- 
 implication being that if the substi- 
 tute cannot be secured except at dis- 
 proportionate expense, the easement 
 would arise by implied reservation. 
 In this case the two parcels were 
 conveyed simultaneously, and the 
 easement of drainage was held not 
 to arise, since another equally effect- 
 ive drain could be made at slight ex- 
 pense, it being the evident intention 
 that each purchaser should take his 
 parcel free of any easement in favor 
 of the other parcel. 
 
 These cases are obviously based on 
 the true principle of the intent of 
 the parties as disclosed by the par- 
 ticular facts involved in each case. 
 In Carberry v. Willis the court said- 
 " Where the easement is only one of 
 existing use and great convenience, 
 but for which a substitute can be 
 furnished by reasonable labor and 
 expense, the grantor may certainly 
 cut himself off from it by his deed, 
 if such is the intention of the par- 
 ties. And it is diilioult to Bee how 
 such an intention could be more 
 
uo 
 
 Easemekts and Pkofits. 
 
 courts, is the rale that a grant must be construed most 
 strongly against the grantor, or as sometimes expressed, a 
 
 clearly and distinctly intimated than 
 by such a deed and warranty" (with- 
 out express reservation). 
 
 In Toothe v. Bryce, 50 N. J. Eq. 
 589, where an easement to the use of 
 a pipe leading from a spring, the wa- 
 ter being forced to the parcel sold by 
 a ram, was held to have arisen by 
 implied grant, the court, by way of 
 dicta, approves of the distinction 
 taken in the English cases, as dis- 
 cussed in the preceding note, but ad- 
 mits that strict necessity is not nec- 
 essary to an easement by implied res- 
 ervation any more than to an ease- 
 ment by implied grant under the 
 cases in New Jersey. 
 
 In Wells V. Garburr, 133 N. Y. 430, 
 where an easement of flowage in' fa- 
 vor of a water power was held not to 
 have arisen by implied reservation, 
 there having been nothing to show 
 that the right to maintain the dam 
 at the greater height was at all nec- 
 essary to the operation of the mill, 
 or that the fiowage of the land con- 
 veyed existed as a physical fact at 
 the time of the conveyance, the court 
 iises this language, which was ob- 
 viously dicta: "Where the owner 
 of two parcels of land conveys one 
 by an absolute and unqualified deed, 
 we think that an easement will be 
 implied in favor of the land retained 
 by the grantor and against tlie land 
 conveyed to his grantee, only in case 
 the burden is apparent, continuous 
 and strictly necessary for the enjoy- 
 ment of the former" (citing many 
 cases). But after pointing out that 
 EG ■' necessity " in any sense was 
 shown to exist in this case the court 
 added: "The doctrine of implied 
 
 reservation rests upon the presumed 
 intention of the parties as it is 
 gathered from the conveyance, inter- 
 preted in the light of the circum- 
 stances surrounding them when it 
 was executed and with reference to 
 which, as existing facts, they are 
 supposed to have contracted. If it 
 appeared that the mill could not bg 
 operated without overflowing the 
 plaintiff's land, it would be cogent, 
 if not conclusive proof of that strict 
 necessity which does not create the 
 easement, but is simply evidence of 
 the intention of the parties. If, on 
 the other hand, it appeared that ow- 
 ing to the slight declivity the accu- 
 mulation of water was insignificant, 
 and that the mill property icas worth 
 substantially as much without the 
 right in controversy as with it, there 
 would be no proof of " necessity," 
 and nothing upon which an implica- 
 tion in favor of the mortgagor or 
 grantor could rest." 
 
 This clearly indicates the true 
 rule as stated in the text. The 
 whole question is what the parties in 
 each case intended, judging them as 
 reasonable men. Certainly the Eng- 
 glish rule, that the user must be ab- 
 solutely necessary in order that the 
 parcel retained may be used at all 
 for the purposes intended, finds no 
 support in the American cases. The 
 " strict necessity " referred to in the 
 American cases amounts only to this, 
 the user must be so valuable and im- 
 portant to the parcel retained as to 
 remove all reasonable doubt of the 
 parties having intended the easement 
 to arise, since in case of doubt, the 
 presumption against the grantor 
 
Easements Aeisino by Implied Resekvation, 641 
 
 grantor will not be permitted to derogate from his own 
 grant. 
 
 But this principle that a deed must be construed most 
 strongly against the grantor is only a rule of construction. 
 It can have no application except in case of doubt as to 
 what the parties intended. Where the user is open and 
 visible, of a permanent nature, obviously intended as a per- 
 manent provision for the use and enjoyment of the parcel 
 retained, so that the purchaser must have understood that 
 the user was to continue as a burden imposed on the 
 estate conveyed to him, there is no room for the applying 
 of this rule of construction, and the easement will arise by 
 implied reservation, exactly as it would have arisen by im- 
 plied grant, were the other parcel the subject of the con- 
 veyance. The principle on which the two cases turn is ia 
 every respect identical. The question in both cases is this, 
 Did the parties as reasonable men with average mental 
 qualities intend that the open, permanent and obviously 
 valuable user should continue after the conveyance of one 
 parcel and the retention of the other? If they did then it 
 is as obviously unjust to refuse the grantor the benefit of 
 the easement by reservation as it would be to refuse it to 
 the grantor by implied grant. If the grantor paid a larger 
 sum for the property because of the easement which he 
 believed that he was acquiring as part of the dominant 
 parcel so conveyed to him, so also the grantor, in the other 
 case would have accepted a smaller sum for the servient 
 parcel conveyed to the grantee in the belief that his user 
 of the parcel so conveyed was to continue. The English 
 courts have been led to take a wrong position by mistaking 
 a mere rule of construction for an all-controlling maxim, 
 and by losing sight of the underlying principle. It is be- 
 
 would apply, and the easement would grantee, and the easement would 
 
 not be implied in Mb favor, while in arise by implied grant. See, also, 
 
 the case of a conveyance of the par- Burns v. Gallagher, 62 Md. 462; 
 
 eel benefited the presumption in a Mitchell v. Seipel, 53 Md. 351; Sulli- 
 
 aimilar case would be in favor of the van v. Ryan, 130 Mass. 116. 
 41 
 
642 Easements and Peofits. 
 
 Keved that tlie American courts have not departed from 
 the true principle, except in a few cases, loose statements 
 by way of dicta not having upset the early established rule 
 that such easements arise by implied reservation on the 
 same principle as by implied grant, the only distinction 
 being that in case of doubt the doubt will be resolved 
 against the grantor, and therefore against implying the 
 easement by reservation in favor of the grantor where the 
 parcel benefited is retained, and in favor of implying the 
 easement by implied grant, as against the grantor, where 
 the parcel benefited is conveyed.* 
 
 § 284. Creation of Easements by Prescription. — Under 
 the ancient common law a user of one parcel of land for the 
 benefit of another, continued from time immemorial, or from 
 a " time whereof the memory of man ran not to the con- 
 trary," resulted in the creating of an easement by prescrip- 
 tion. As early as 1275 it became established that " legal 
 memory " within this rule extended back to the beginning 
 of the reign of Richard I, or to 1181, so that a user, the be- 
 ginning of which dated back to that year, gave rise to a 
 prescriptive right. By the statute of Henry m, ch. 8, a 
 limitation was imposed upon actions to recover the posses- 
 sion of land in the adverse possession of another, the action 
 being barred if the possession dated back to the reign of 
 Henry 11, a period of seventy years. By 3 Edw. 1, ch. 39 
 (1275), the period of adverse possession barring the action 
 was fixed from the time of Eichard I, a period of eighty- 
 eight years. By the statute 31 Henry VIII, ch. 2, the period 
 of limitation of actions to recover land was fixed at sixty 
 years. The Statute of Limitations, 21 Jas. I, ch. 16 (1623), 
 finally fixed the period of limitation in actions to recover 
 real property at twenty years, which is the present period 
 of limitation in most of the states.^ Without the aid of any 
 
 4. See last two preceding notes. McFarlan, 43 N. J. L. 605, the court 
 
 8. In Lehigh Valley R. R. Co. v. said: "At common law there was no 
 
Ceeatiok of Easements by Peescription. 
 
 643 
 
 Btatutory provision tlie courts by analogy to these statutes 
 made tlie period of prescriptive user required to create an 
 easement the same, for the time being, as was fixed by these 
 statutes as the period of limitation upon actions to recover 
 land in the adverse possession of another.^ 
 
 fixed period of prescription. Rights 
 were acquired by prescription only 
 when the possession or enjoyment was 
 ' time whereof the memory of man 
 ran not to the contrary.' By 20 
 Henry III, c. 8, the limitation in writs 
 of right dated from the reign of 
 Henry 11. By 3 Ed. I, c. 39, the limi- 
 tation was fixed from the reign of 
 Richard I. By 21 Jae. I, c. 16, the 
 time for bringing possessory actions 
 was limited to twenty years after the 
 right accrued. These statutes applied 
 only to the recovery of land; none of 
 them embraced actions in which the 
 right to an incorporeal hereditament 
 was involved. But by judicial con- 
 struction an adverse user of an ease- 
 ment for tlie period mentioned in the 
 statutes, as they were passed from 
 time to time, became evidence of a 
 prescriptive right; and Cnally, the 
 fiction was invented of a lost grant, 
 presumed from such user to have once 
 been in existence and to have become 
 lost." 
 
 See Angus v. Dalton, 3 Q. B. Div. 
 85; 4 Q. B. Div. 162; 6 Ap. Cas. 740; 
 Tracy v. Atherton, 36 Vt. 503. 
 
 Though in the majority of the 
 states the period of limitation fixed 
 by statute upon actions to recover 
 real property is twenty years, yet in 
 many states a diflFerent period is fixed, 
 viz., five, seven, fifteen, and in some 
 states twenty-one years. See stat- 
 utes in the different states. The period 
 of prescription in each state is the 
 pi", idd of limitation so provided for 
 
 actions to recover land. See Atty, 
 Gen. V. Revere Rubber Co., 152 Mass. 
 444; Ballard v. Demmon, 156 Mass. 
 449; Krier's Road, 73 Pa. St. 109; 
 Schulenberg v. Zimmerman, 86 Minn. 
 70; Tracy v. Atherton, 36 Vt. 503. 
 
 6. See preceding note. In Tracy v. 
 Atherton, 36 Vt. 503, the court said: 
 " But all authorities concur in saying 
 that this doctrine has been adopted 
 and rests upon its analogy to the 
 statute of limitations applicable to 
 lands. • » * And in our judgment 
 rights to easements acquired by long 
 possession ought to stand on the same 
 ground as rights to possession in 
 lands. The real principle underlying 
 the right is the same precisely on 
 which the statute of limitations 
 stands. In the first place, it is pre- 
 sumed that one man would not 
 quietly submit to have another use 
 and enjoy his property for so great 
 a length of time unless there existed 
 some good reason for his doing so, 
 and that after allowing it for so long, 
 he should not call upon him to show 
 his right or title, when it may not 
 be in his power to do so; and in the 
 second place, it is a rule of policy, 
 adopted in support of long and un- 
 interrupted possession. It is import- 
 ant too in another view, that the doc- 
 trine of the law in the two cases 
 should harmonize, that the people 
 may not be misled and perplexed by 
 having the law different ways upon 
 subjects which in reason and uron 
 principle should be the same." 
 
644; Easements aud Peofits. 
 
 In short, the statutes above referred to fixed the period 
 
 of adverse possession by which title to land could be ac- 
 quired, by barring thereafter any action to recover the prop- 
 erty. The courts, by analogy to these statutes, established 
 like periods of adverse user at the expiration of which the 
 user became an incorporeal right or easement against the 
 servient estate in favor of the dominant estate. 
 
 In this connection the courts made use of the fiction of a 
 lost grant, viz. : it was presumed from the adverse user for 
 a period beyond legal memory, fixed ultimately, after the 
 statute of James I, to twenty years, that the easement had 
 been created in due form between the owners of the two 
 parcels by grant, and that the grant had since been lost. 
 But this presumption could not be rebutted even by the 
 most conclusive proof that no grant had, in fact, been made. 
 It was a mere fiction, used as one court has put it, to avoid 
 the rule of pleading requiring profert. "Allegation of the 
 loss of the grant excused profert and bringing the instru- 
 ment into court. " ^ It was a mere fiction ' ' and juries were 
 directed so to find in cases in which no one had the faintest 
 belief that any grant had ever existed, and where the pre- 
 sumption was known to be a mere fiction. ' ' * 
 
 It is now settled generally that upwards of twenty years ' 
 adverse user of a sort required to gain a prescriptive right 
 as detailed in the following section, will give rise to the 
 easement by prescription, exactly as adverse possession of 
 land for upwards of twenty years will create an absolute 
 title by adverse possession, the fiction of a lost grant though 
 commonly referred to by the cases as the basis of the rule, 
 being as a practical matter no longer necessary for any 
 purpose.^ Indeed, its principal effect seems to have been 
 
 7. Lehigh Valley R. R. Co. v. Mc- user i3 an irrebuttable presumption of 
 Farlan, 43 N. J. L. 605. Jaw, not a presumption of fact, since 
 
 8. By Cockburn, C. J., in Angus v. it cannot be overthrown by proof, no 
 Dalton, 3 Q. B. Div. 85, at 116-118. matter how conclusive, that no grant 
 
 9 The presumption of a lost grant had ever been made. Thus it hecnie 
 ar'.sing from twenty years adverse a highly artificial and uiinecra^ar ly 
 
Natuee OB" Usee Requieed to Ceeate Easements. 645 
 
 to introduce uncertaintly and confusion into tlie law, some 
 courts having been led to treat it as a real presumption, and 
 therefore subject to rebuttal by evidence that no grant had 
 in fact been made.*" 
 
 § 285. Nature of User Required to Create Easements by 
 Prescription. — The user must have been open and notorious, 
 continuous, uninterrupted, undisputed, under claim of right, 
 and adverse in order that the easement shall arise by pre- 
 scription. Prescription is based on the same theory as ad- 
 verse possession; as we have seen the entire doctrine has 
 been developed by the courts from the doctrine of adverse 
 possession growing out of the Statute of Limitations.* Fail- 
 ure on the part of the owner of the property which is being 
 adversely used for more than twenty years to prevent the 
 user, either by some active physical interruption or by 
 starting an action to restrain it or to recover damages aris- 
 ing therefrom, is the real basis of the easement, just as a 
 similar failure by the record owner to enter or to bring an 
 action to recover his land is the basis of title by adverse 
 possession. It is, therefore, a species of common law limita- 
 tion created by the courts, of the same nature as the limita- 
 tion upon actions to recover the possession of land, by which 
 
 misleading way of stating the simple Mo. 583; Carmody v. Mulrooney, 87 
 result that such user for twenty years Wis. 553 ; Coolidge v. Larned, 8 Pick, 
 gives rise to an easement in favor of (Mass.) 503, and Sargeant v. Ballard, 
 the dominant estate aa a matter of 9 Pick. 251. In Ward v. Warren, S3 
 law, as effectually as though granted. N. Y. 265, the court states tliat the 
 It is, of course, absolutely immaterial presumption of lost grant arising in 
 whether there ever was such a grant such case is conclusive. See, also, 
 or not. In either case the easement Hey v. Coleman, 78 App. Div. N. Y. 
 arises. See Tracy v. Atherton, 36 Vt. 684, to same effect. 
 503, quoted from in note 6, supra, 10. Lamb v. Crosland, 4 Rich. (S. 
 and other cases cited in preceding C.) 536. See dicta in Parker v. Foote, 
 notes, particularly Lehigh Valley R. 19 Wend. (N. Y.) 309, to the effect 
 R. Co. V. McFarlan, 43 N. J. L. 605. that the presumption may be re- 
 See, also, Webber v. Chapman, 42 N. butted. 
 
 H. 326; Pierce v. Cloud, 42 Pa. St. 1. See preceding section and notes 
 
 102; Boyce v. Mis. Pae. R. Co., 168 thereunder. 
 
646 Easements and Peofits. 
 
 owners are barred from any remedy for wrongful acts of 
 user after they have been continued uninterruptedly and 
 adversely for upwards of twenty years. By keeping this 
 fundamental principle in mind most of the difficulties met 
 with in the cases are removed. 
 
 The user must be open and notorious. If hidden and 
 concealed, so that the owner of the property affected ad- 
 versely could not reasonably be expected to know of the 
 user, no easement arises irrespective of the duration of the 
 wrongful user. There has been no laches in asserting his 
 right, and therefore no reason for barring his action arising 
 out of the wrongful use made of his land.^ The fact that 
 he did not know of the user because of his absence from 
 the country or the like will be immaterial if it was open and 
 notorious so that he ought to have known of it, either di- 
 rectly or through his agent or representative.' 
 
 The user must have been continuous for the full period 
 of twenty years or more. No difficulty exists in cases in- 
 volving easements of drainage, of pipes or aqueducts from 
 springs or reservoirs, or other situations of a like nature 
 in which a constant burden is imposed on the servient es- 
 tate through the existence of a permanent structure or fix- 
 ture in connection with the user. But where there is no 
 such permanent appropriation of the estate burdened, only 
 an occasional user, as where a right of way is claimed, the 
 right having been exercised from time to time as occasion 
 therefor might require, the person claiming the easement 
 
 2. Ward v. Warren, 82 N. Y. 265 
 Treadwell v. Inslee, 120 N. Y. 458 
 Cleveland v. Ware, 98 Mass. 409 
 
 which commences as of the time of 
 the change, and twenty years must 
 elapse thereafter to give rise to the 
 
 Deerfield v. Conn. Riv. R. Co., 144 easement. Am. Bank Note Co. v. N. 
 
 Mass. 335. Y. El. R. Co., 129 N. Y. 252; Baldwin 
 
 3. Ward v. Warren, 82 N. Y. 265; v. Calkins, 10 Wend. (N. Y.) 167; 
 
 Lewis V. N. Y. & H. R. Co., 162 N. Y. Homer v. Stilwell, 35 N. J. L. 307; 
 
 202; O'Brien v. Goodrich, 177 Mass. Cowell v. Thayer. 5 Met. (Mass.) 
 
 33. 253; Cotton v. Poeasset Mfg. Co., 13 
 
 A serious change in the ch.nraitcr Met. (Mass.) 429. 
 of the user is in effect a new user 
 
Natuee of Usee. Eeqtjieed to Ceeate Easements. 647 
 
 has tlie burden of proving that a user similar to the right 
 claimed has been regularly and habitually exercised and 
 enjoyed for the benefit of the dominant estate for the requi- 
 site period.* Following the analogy of adverse possession 
 and regarding the user as an incorporeal interest actually 
 claimed and enjoyed by the owner of the dominant estate, 
 a mere failure to make use of the way or other privilege for 
 any short period of time, as for a month, or six months, or 
 a year, would not amount to a break in the twenty years' 
 term of adverse user unless under the circumstances of the 
 case an intention to give up the user is disclosed; just as 
 in the case of adverse possession failure to occupy the prem- 
 ises for a like time would not be a break in the term of 
 adverse possession unless it was long enough to establish 
 an intention to relinquish the possession. Thus where the 
 privilege of piling boards on the servient estate had been 
 exercised adversely from 1822 to 1829, and after a break of 
 five years from 1834 to 1846, the break of five years was 
 held to be so long as to disclose a giving up of the user, and 
 constituted an interruption.^ In another case an easement 
 to carry on an offensive trade amounting to a nuisance to 
 adjoining property was held to have arisen by twenty years 
 adverse user, though the business had been suspended dur- 
 ing two years, the circumstances of the suspension not hav- 
 ing disclosed an intention to abandon the business perman- 
 ently.*^ For the same reason the suspension of the flowing 
 of land while the dam which caused the floAvage was being 
 repaired was not an interruption.^ The principle involved 
 is well illustrated by cases of flowage by means of dams 
 maintained for twenty years. Thus where a dam was main- 
 tained at a certain height, but there was water enough in 
 the stream to fill it for only part of each year, the right of 
 
 4. See last paragraph preceding (Mass.) 8; criticized in Carlisle v. 
 note, also notes following. Cooper, i C. E. Greene (N. J.) 256, 
 
 5. Pollard v. Barnes, 2 Cush. 361. 
 
 (Ma9s.) 191. 7. Wood v. Kelly, 30 Me. 47. 
 
 6. Dana v. Valentine, 5 Met. 
 
648 Easements akd Peofits. 
 
 flowage was fixed by the height of the dam, though the dam 
 was not full for a considerable part of each year, and the 
 upper land involved was flooded for only part of the time. 
 The mere maintenance of the dam would not have been 
 enough without the flooding of the land above for a suffi- 
 cient length of time each year to give notice of the right 
 claimed.® In the same way the maintenance of flash-boards 
 on a dam for twenty years in order to maintain the water 
 at a greater height at certain seasons gave the right to 
 continue the flash-boards thereafter, or to carry up the dam 
 by a permanent structure to the same height, provided no 
 greater flowage was caused than existed during the user of 
 twenty years.* 
 
 The user is therefore continuous if enjoyed as often as 
 may be required for the uses of the dominent estate, and an 
 actual discontinuance of the user for a period of time will 
 not be an interruption which will break the running of the 
 twenty year period unless it is so long continue^, or has 
 come about under such circumstances, as to indicate a vol- 
 untary giving up of the right of user claimed." 
 
 The user must have been uninterrupted and undisputed. 
 If the owner of the land burdened by the user interrupts it 
 either by an action for an injunction or to recover damages 
 therefor ^* or by obstructing the way or other user, or by 
 preventing its enjoyment by any other means," the inter- 
 
 8. Winnipiseogee Co. v. Young, 40 user, after the expiration of whicli he 
 jSr. H. 436; Gilford v. Winnipiseogee again enjoys the user adversely, the 
 Lake Co., 52 N. H. 262. license is an obvious break in the 
 
 9. Cowell V. Thayer, 5 Met. (Mass.) user, as would be the acquiring of the 
 353; Marcly v. Shultz, 39 N. Y. 346; servient estate by the owner of the 
 Hall V. Auguabury, 46 N. Y. 633. dominant estate, and the subsequent 
 
 10. Washburn Easements (4th ed.), reconveyance thereof. See Washburn 
 154-168; Hoag v. Delorme, 30 Wis. Easements, supra, 158. 
 
 594, 595; Carlisle v. Cooper, 4 C. E. 11. Eaton v. Swansea Water 
 
 Greene (N. J.) 260. Where the owner Wks. Co., 17 Q. B. 267; Workman v. 
 
 of the dominant estate exercises the Curran, 89 Pa. St. 226; Powell v. 
 
 user adversely for some time, and Bagg, 8 Gray (Mass.) 441. 
 
 then secures a license permitting the 12, Livett v. Wilson, 3 Bing. 115; 
 
Natueb of Usee Requieed to Ceeate Easements. 649. 
 
 ruption makes the period of user up to that time count for 
 nothing, and there must be twenty years of continued and 
 uninterrupted user after such interruption has ceased in 
 order to give rise to an easement by prescription. Under 
 the Statute of Limitations an entry by the record owner in- 
 terrupts the period of adverse possession in the same way, 
 the continuity of possession by the adverse holder being 
 broken for the time, his continued wrongful holding there- 
 after giving rise to a new right to sue him in ejectment 
 which could not be barred within twenty years. So in the 
 case of a prescriptive user, an assertion of his right on the 
 premises in any form by the owner must be regarded as 
 equivalent to an entry against an adverse holder, an entry 
 as against an incorporeal right being impossible, and he 
 being already in possession of the land. Such assertion of 
 his right in any form on the premises, either by actually 
 blocking the user in a physical way, or by erecting a sign 
 forbidding it, or the like, must be regarded as a taking back 
 of the right of user from the possession of the wrongdoer, 
 so that in continuing the user thereafter he starts a new 
 user which cannot ripen into a right until it has continued 
 for twenty years from that time.^^ Mere objections to the 
 
 Connor v. Sullivan, 30 N. J. Eq. 180; the owner of the aqueduct from en- 
 
 Kimball v. Ladd, 43 Vt. 747; Demutb tering upon the land to use the aque- 
 
 V. Amweg. 90 Pa. St. 181; Connor v duct, this was such an interiuption 
 
 Sullivan, 40 Conn. 36. of the use as prevented the acquire- 
 
 13. In Tracy v. Atherton, 36 Vt. ment of an easement right. The 
 
 503, this principle is well expressed: owner of the land, being already in 
 
 " In the case of lands which are possession, could not make an entry 
 
 wholly in the possession of a disseisor, to stop the effect of the user, or pos- 
 
 in order to make an effectual inter- session, and his act on the land of 
 
 ruption of the possession, the owner forbidding the other to enter and use 
 
 must actually make an entry on the the aqueduct, was all he could do to 
 
 land for that purpose. In Powell v. prevent him, unless he resorted to 
 
 Bragg, 8 Gray 441, it was decided that force, and ordinarily the law does not 
 
 wliere the owner of the land over require one to use force to assert his 
 
 ■v^■hich another had laid an aqueduct, rights." See, also, cases in last two 
 
 and claimed to have acquired a right preceding notes, and notes immedi- 
 
 by possession upon the land, forbade ately following. 
 
650 
 
 Easements and Peofits. 
 
 user by speecli or writing, not made on the premises, cannot 
 be regarded as interruptions." 
 
 The position taken in New Jersey tbat the interruption 
 must be of such nature as to amount to an actionable wrong 
 in case the right of user turns out to be a legal right, has 
 this to support it, that it makes the act of interruption cor- 
 respond in that respect with an entry as against an adverse 
 holder.is It is submitted, however, that the entry in the 
 latter case, and the act of interruption in the former, break 
 the period of adverse possession or user, not because they 
 might be actionable in the stated contingency, but because 
 they involve the termination of the existing adverse pos- 
 
 14. Angus V. Dalton, 4 Q. B. Div. 
 172, 186, Thesiger, L. J., saying that 
 " it is not sufficient to prove such cir- 
 cumstances as negative an actual as- 
 sent on the part of the servient 
 owner, or even evidence of dissent 
 short of actual interruption or ob- 
 struction to the enjoyment." Lehigh 
 Valley R. Co. v. McFarlan, 43 N. J. 
 L. 605, the court saying: "Protests 
 and remonstrances by the owner of 
 the servient tenement against the use 
 of the easement, rather add to the 
 strength of the claim of a prescrip- 
 tive right; for a holding in defiance 
 of such expostulations is demonstra- 
 tive proof that the enjoyment is un- 
 der a claim of right, hostile and ad- 
 verse; and if they be not accompanied 
 by acts amounting to a disturbance 
 of the right in a legal sense, they are 
 no interruptions and obstructions of 
 the enjoyment." See, al?o. in accord, 
 Connor v. Sullivan, 40 Conn. 26; De- 
 muth V. Amweg, 90 Pa. St. 181; Kim- 
 ball V. Ladd, 43 Vt. 747. 
 
 The ordering of the owner of the 
 aqueduct off the premises by the 
 owner of the servient estate when he 
 entered to repair the aqueduct in 
 
 Powell v. Bagg, 8 Gray 441, was re- 
 garded by the court in Lehigh Valley 
 R. Co. V. McFarlan, supra, as such an 
 interference with the enjoyment of 
 the right as would amount to an ac- 
 tionable wrong, had the easement ex- 
 isted as a legal right, which reconciles 
 that case with the other cases here 
 cited. 
 
 See contra, Chicago & N. W. R. Co. 
 V. Hoag, 90 111. 339 (when owner pro- 
 tested against the wrongful user and 
 ordered it stopped, held, an interrup- 
 tion). 
 
 15. Lehigh Valley R. Co. v. McFar- 
 lan, 43 N. J. L. 605. The test of 
 whether or not the interference with 
 the easement would amount te an ac- 
 tionable wronj in case the easement 
 were a valid legal right would seem 
 to be sound as such, since there must 
 be at least a, momentary taking back 
 of the alleged easement or user in or- 
 der to constitute an interruption, by 
 analogy to an entry as interrupting 
 the period of adverse possession. It 
 is the interruption, however, not the 
 fact that it is actionable, which 
 breaks the continuity of the adverse 
 user or possession. 
 
Natitee of Usee Eequiebd to Create Easements. 651 
 
 session or user as the case may be, wMch is begun de novo 
 by the subsequent user or adverse possession on the part of 
 the vn'ongdoer. 
 
 The appealing to the principle of the presumption of a 
 lost grant as a basis for this rule, any such interruption 
 showing there was no such grant, cannot be too strongly 
 condemned, it being now universally admitted that the doc- 
 trine is a mere fiction, and that no such presumption actually 
 exist. It is entirely unnecessary to resort to this fiction, 
 and the continued use of it as a basis for these rules invites 
 confusion and error. 
 
 The user must be adverse. If it has been enjoyed under 
 a license, or in consideration of the payment of a sum of 
 money or other thing of value, no easement will arise there- 
 from no matter how long it may continue.^" It must be 
 adverse in that it constitutes a wrong for which an action 
 may be brought in order that a prescriptive right may re- 
 sult. Thus the passing of light and air from one parcel 
 through windows in a building situated on an adjoining 
 parcel for twenty years creates no easement of light and 
 air by prescription because no wrong is committed against 
 the owner of the vacant parcel in so maintaining the win- 
 dows as to receive light and air therefrom. The owner of 
 the building with the windows has merely erected and main- 
 tained a building on his own land.^^ The English cases 
 
 16. St. Vincent Asylum v. Troy, 76 known that -a, single liap of acknowl- 
 
 N. Y. 108; Grouse v. Wemple, 29 N. edgment by a defendant that he 
 
 Y. 540; Phillips v. Phillips, 4S Pa. St. claims no title, fastens a, cliaracter 
 
 184; Pierce v. Cloud, 43 Pa. St. 113; upon his possession which makes it 
 
 Smith V. Miller, 11 Gray (Mass.) 145; unavailable for ages." See, al.so. 
 
 Dodge V. McCIintock, 47 N. H. 387. Watkins v. Peck, 13 N. H. 360; Sum- 
 
 If a license or consent is secured at ner v. Tileston, 7 Pick. (Mass.) 3 98. 
 any time during the period of adverse 17. Parker v. Foote, 19 Wend. (N. 
 
 user, the user is no longer adverse, Y.) 309; Hayden v. Butcher, 31 N. 
 
 and will be presumed to continue un- J. Eq. 217; White v. Bradley, 66 Me. 
 
 der the license, until shown aflBrma- 254; Eennyson's App., 94 Pa. St. 147; 
 
 tively to have became adverse again. Keats v. Hugo, 115 Mass. 204; Ran- 
 
 Thus in Colvin v. Burnet, 17 Wend, dall v. Sanderson, 111 Mass. 114. Sea 
 
 664, the court said: "It is well § 286, posf, and cases clt«d. 
 
652 Easements aijd Peofits. 
 
 which hold the contrary are opposed alike to the principles 
 of prescription, public policy and good sense.*^ For the 
 same reason the erecting of a building close to the boundary' 
 line of two parcels, and the maintenance of it there for 
 twenty years, does not result in an easement of support in 
 favor of such building against the owner of the adjoining 
 land. No wrong of any sort is involved in the erection and 
 maintenance of the building, and to recognize an easement 
 therefrom as arising by prescription is to ignore the funda- 
 mental principle upon which prescription depends and to 
 substitute therefor a useless fiction. The mistake in so 
 holding made by the English courts has not generally been 
 followed in the United States, the courts holding that no 
 easement arises in such case because no wrongful user is 
 involved." 
 
 Knowledge of the wrongdoer that his act is a trespass or 
 other invasion of his neighbor's right is not necessary. Thus 
 if a nuisance is maintained without knowledge that it is a 
 nuisance, or a house is built with eaves projecting over his 
 neighbor's land by one who believed that the house was 
 entirely on his own premises, an easement will neverthe- 
 less arise in each case as a result of twenty years 'user which 
 was actually adverse.^" 
 
 User which has been actually adverse for twenty years 
 will be sufficient to create the easement by prescription, 
 though no claim or color of title other than the wrongful 
 
 18. See § 386, post In England it is well settled 
 
 19. Gilniore v. DriscoU, 133 Mass. that such easement arises by prescrip- 
 199 (the court stating (dicta) that tion. Dalton v. Angus, 6 App. Cas. 
 no easement shi uld arise by prescrip- 740, 791. There is dicta and a few 
 tion since there is no wrongful user early decisions in the United States 
 which can be sued for. " The English taking the same view. Lasala v. 
 cases are founded on an analogy to HoUbrook, 4 Paige Ch. 169 (dicta); 
 the doctrine of ancient lights, which Aston v. Nolan, 63 Cal 269; City of 
 is not in force in this country"); Quincy v. Jones, 76 111. 231. 
 Handhan v. McManus, 100 Mo. 124; 20. Grace M. E. Church t- Dobbins, 
 Tunstall v. Christian, 80 Va. 1; Sul- 153 Pa. St. 894. 
 
 liTan V. Zeiner, 98 CaL 346. 
 
Natuee OB' Usee E^quieed to Cebate Easements. 653 
 
 user is shown to exist. In fact mere proof of the user for 
 the required period is sufficient, it being presumed to have 
 been adverse in the absence of evidence to the contrary.^* 
 But if it appears that it was at any time enjoyed by the 
 express license and consent of the owner of the land which 
 was used, it will be presumed that it continued thereafter 
 under the license, and the period of adverse user will not 
 begin to run until the license has come to an end and the 
 user has become adverse.^^ 
 
 User under a parol grant of an easement, void under the 
 statute, is adverse, since exercised under a claim of right 
 in the person enjoying the user. The easement is enjoyed as 
 Ms own by virtue of a grant to him, not as a license subject 
 to be revoked at any time.^* 
 
 An easement cannot be gained by prescription against a 
 remainderman or reversioner, during the continuance of 
 a preceding estate for life or years. The obvious reason is 
 that the user, whether a trespass or a nuisance, is a violation 
 of the property rights of the life tenant or the tenant for 
 years, and an easement against them alone can arise through 
 such adverse user. The remainderman or reversioner as 
 the case may be, has no cause of action because of the user, 
 which is in no sense adverse as to him, and therefore the 
 
 81. Carmody v. Mulrconey, 87 Wis. 43. In Wiseman v. Lucksin.eer, 84 
 
 552 (the court stating that the bur- N. Y. 31, it appeared that the license 
 
 den of proving a license or special to malce a drain was for a limited 
 
 contract inconsistent with adverse time only, and the adverse use thereof 
 
 user is on the owner of the servient for over twenty years after the li- 
 
 estate) ; Hammond v. Zehner, 21 N. cense had certainly expired, created 
 
 Y. 118 ; Ward v. Warren, 83 N. Y. an easement by prescription. 
 
 265; Parker v. Foote, 19 Wend. (N. 23. Ashley v. Ashley, 4 Gray 
 
 Y.) 309; Garrett v. Jackson, 30 Pa. (Mass.) 197; Arbuckle v. Ward, 29 
 
 St. 331; School Dist. v. Lynch, 33 Vt. 43, 52. See, also, Wiseman v. 
 
 Conn. 334; Perrin v. Garfield, 37 Vt. Lueksinger, 84 N. Y. 31, and Jewett 
 
 304. V. Hussey, 70 Me. 433. This is also 
 
 28. Colvin v. Burnet, 17 Werd. (N. by analogy to a similar rule apply- 
 
 y.) 564, 568; Spier v. New Utrecht, ing to adverse possession under a void 
 
 121 N. Y. 420; Jewett v. Hussey, 70 parol grant. Sumner v. Stevens, 6 
 
 Me. 433; Arbuckle v. Ward, 29 Vt. Met. (Mass.) 337. 
 
654 
 
 Easements and Peofits. 
 
 period of eiijoj^ment of the user whicli elapses during tte 
 continuance of tlie life estate or term of years cannot be 
 counted as part of the term of twenty years' user necessary 
 to give rise to an easement against him.^* 
 
 If a disability, such as the infancy of the owner of the 
 parcel so used, exists at the beginning of the adverse user, 
 the period of adverse user is extended for a period, gen- 
 erally ten years, after the disability is removed, just as the 
 period of limitation of actions to recover possession of land 
 is extended by the statute, but if the disability arises some 
 time after the user has started it has no effect on the user, 
 which will ripen into an easement on the expiration of 
 twenty years, exactly as though no disability had existed. 
 Here, also, the analogy to the rules governing adverse pos- 
 session under the Statute of Limitations is foUowed.^^ 
 
 24. Daniel v. North, 11 East 372 
 Barker v. Richardson, 4 B. & Aid, 
 579; Wilcox v. Wheeler. 47 N. H. 
 48S; Sand v. Chuvch, 152 N. Y. 174 
 Schenlcy v. Comraonwealtli, 36 Pa. St 
 29; Portland r. Keep, 41 Wis. 490; 
 Pearsall v. Post. 20 Wend. (N. Y.) 
 111. 
 
 If a tenancy for years arises after 
 the adverse user has b^en started, an 
 easement arises by prescription 
 against the landlord through twenty 
 years user, he having leased the prem- 
 ises in that situation. Cross v. Lewis, 
 2 B. cfe C. 686. See, also, Eeinier v. 
 Stuber, 20 Pa. St. 458, the court hold- 
 ing tliat a tenancy from year to year 
 did not prevent an easement from 
 arising by prercription, since the land- 
 lord could end the tenancy and resume 
 possession at the end of any year. 
 
 Tn Lund v. New Bedford, 121 Mass. 
 S8G, vendees were in possession under 
 a contract of purchase, and the plain- 
 tiff was a reversioner subject to their 
 tenancy. The court held that he 
 
 could recover for the wrongful taking 
 of water through conduits by the de- 
 fendant, since it would permanently 
 injure his reversion because it would 
 ripen into an easement by adverse 
 user. Assuming the tenancy to be 
 one which the landlord could not ter- 
 minate as a tenancy at will, this ar- 
 gument begs the question — no such 
 easement could arise, and therefore 
 no permanent damage could be done. 
 As the vendee held as tenant at will, 
 however, the case would seem to be 
 sound. 
 
 25. Tracy v. Atherton, 36 Vt. 503; 
 Ballard v. Demmon, 156 Mass. 449; 
 Wallace v. Fletcher, 30 N. H. 434. 
 That the period of any disability ex- 
 isting in the owner for the time being 
 of the servient estate, not only at the 
 beginning but also during the period 
 of adverse user must be deducted 
 from the twenty-year period was held 
 in Lamb v. Crosland, 4 Rich (S. C.) 
 536, the court following the theory 
 of a lost grant. As to the statute of 
 
Natueal Eights; Easements of Light and Aie. 655 
 
 A user enjoyed by one person, and on his death, by his 
 heir or devisee, or on a conveyance of his estate, by his 
 grantee, will be a continuous user giving rise to an ease- 
 ment after twenty years of such combined enjoyment. The 
 user enjoyed by different persons having no privity with one 
 another as successive owners of the dominant estate will 
 not be combined in this way, as a single period of continu- 
 ous enjoyment. Each will be taken separately in determin- 
 ing whether or not the prescriptive period has elapsed.^' 
 Here, also the analogy of adverse possession under the 
 Statute of Limitations is followed.^'' 
 
 § 286. Natural Rights; Easements of Light and Air. — 
 
 The only easements that exist between adjoining parcels 
 arising by nature out of their relation to one another are 
 easements of support — the mutual right of each parcel to 
 be supported by the other in their natural state,^ and ripar- 
 ian rights in a stream.^ Whether or not easements of light 
 and air and easements in percolating and surface waters 
 ■exist by natural right has been extensively considered. 
 
 No natural legal right to have light and air pass over 
 one parcel to another adjoining parcel exists in any form. 
 If the owner of one piece of land carries on a business which 
 so pollutes the air as to interfere unreasonably with his 
 neighbor's right to possess and enjoy his property he is 
 guilty of maintaining a nuisance and is liable in tort for 
 the damages resulting, and the nuisance may be enjoined 
 in equity if it is one which may be continued indefinitely. 
 But the pollution of the air is a nuisance, not because it in- 
 terferes with any right in the nature of an easement, but 
 because it amounts to an unreasonable interference 
 
 limitations and adverse possession 141; Leonard v. Leonard, 7 Allen 
 
 thereunder as affected by disabilities (Mass.) 377; Tracy v. Atherton, 38 
 
 existing at the time the adverse pos- Vt. 503. 
 
 •ession started, see § 345, post. 27. See § 244, post. 
 
 26. Cole V. Bradbury, 86 Me. 380: 1. See § 290, post. 
 
 Williams v. Nelson, 23 Pick. (Mass.) 3. See § 288, post. 
 
656 Easesients and Peofits. 
 
 with the neighbor's right to enjoy his property in 
 a reasonable manner. Interference in an unreason- 
 able way with this right of enjoyment by any other unrea- 
 sonable use of the adjoining property would be a nuisance 
 for the same reason, though no interference with light and 
 air, as such, existed. These matters are part of the law of 
 torts and require no further consideration here.' 
 
 As has already appeared, the passing of light and air 
 for twenty years uninterruptedly from one parcel to win- 
 dows on a building erected close to the boundary line on the 
 adjoining parcel, creates an easement by prescription in 
 England, giving to the parcel with the building the right to 
 have light and air continue to come in the same way without 
 material obstruction from buildings thereafter erected on 
 the other parcel.* This doctrine cannot be supported on 
 principle, and has been repudiated generally in this coun- 
 try." 
 
 In a like case where both parcels belong to one person, 
 who conveys the parcel with the building, retaining the 
 vacant parcel, an easement arises by implied grant in Eng- 
 land and in a few states in this country, though the building 
 is not an ancient one.' The rule adopted in the great ma- 
 jority of the states in which the question has arisen is that 
 no easement arises in such case, since there is no user of one 
 
 3. Bliss V. Hall, 4 Bing. N. C. 183; to continue the use of hia land con- 
 
 Banfcrd v. Turnley, 3 B. & S. 62; stituting the nuisance as though the 
 
 Campbell v. Seaman, 63 N. Y. 568; right had been granted to him by 
 
 Rogers V. Elliott, 146 Mass. 349, 351; the adjoining owners. Sturgis v. 
 
 Boston Ferrule Co. v. Hills, 159 Bridgman, 11 Ch. Div. 862; Dana v. 
 
 Mass. 147. Valentine, 5 Mete. (Mass.) S, 14; 
 
 The maintenance of a nuisance by Davis v. Sawyer, 133 Mass. 289; 
 
 which the air is polluted or noise or Eogers v. Elliott, 146 Mass. 349; 
 
 vibration produced, if persisted in Matthews v. Stillwater Gas, etc. Co., 
 
 for twenty years, in substantially tlie 63 Minn. 493, 496. 
 
 same form, doing substa,ntially the 4. See § 285, ante. 
 
 Eame damage, results in an easement 6. See § 285, ante. 
 
 by prescription, the owner of tlie 6. See § 281, ante. 
 dominant estate acquiring the right 
 
Peecolating and Surface Watees. 657 
 
 parcel for the benefit of the other. Certainly there is no 
 such nser where the two parcels belong to different per- 
 sons, and there is no stronger reason existing for finding 
 such user merely because the ownership of both parcels 
 happens to be in the same man. From the standpoint of 
 the average man there is no appropriation of one parcel 
 as vacant property to supply light and air to the other. This 
 matter has already been considered and cases cited in the 
 discussion of easements created by implied grant.'' 
 
 Easements of light and air, restricting the erection of 
 buildings on one parcel so as to cut off light and air from 
 an adjoining parcel, may be created by express grant or 
 reservation in a deed conveying either parcel, either in the 
 form of a grant or reservation, or in the form of a covenant, 
 amounting to the same thing. Such easements depend on 
 the express terms of the instrument creating them, and are 
 subject to the rules governing other easements.* 
 
 § 287. Percolating and Surface Waters. — No natural 
 right exists between adjoining owners in waters percolating 
 through the soil. The upper owner may use his land in 
 such way as to prevent the water from percolating to his 
 neighbor's land, using and consuming it for any purpose he 
 pleases, and the lower owner is not compelled to receive 
 such waters. The same rule applies to surface waters other 
 than streams. The mutual rights of owners along the banks 
 of a defined stream will be considered later.® Each of the 
 adjoining owners may improve his land by excavating, grad- 
 ing, sinking shafts in mining operations, sinking wells, and 
 the like, unhampered by any effect of change in the natural 
 flow of percolating or surface waters. The lower owner may 
 by dike or embankment at the line prevent such waters 
 from flowing on his property without incurring any liability. 
 
 7. See § 281, ante. Hagerty v. Lee, 45 N. J. Eq. 1, 15; 
 
 8. Peek v. Conway, 119 Mass. 546; Weigmann v. Jones, 163 Pa. St. 330. 
 Ladd V. Boston, 151 Mass. 585; 9. See § 288, post. 
 
 42 
 
€58 
 
 Easements akd Peofits. 
 
 Any damage resulting to the neighbor in any of these cases 
 is damnum absque injuria. The flow of surface or percolat- 
 ing waters not confined to streams is so indefinite, so con- 
 stantly shifting in amount and direction of flow, that it 
 would be impracticable to apply the rules which determine 
 the mutual rights of owners along the banks of streams.^* 
 
 10. As to percolating waters: Ac- 
 ton V. Blundell, 12 M. & W. 324; 
 Cliasemore v. Richards, 7 H. L. C. 
 349; Goodale v. Tuttle, 29 N. Y. 466; 
 Bloodgood V. Ayers, 108 N Y. 400, 
 Ocean Grove Aaan- v. Commrs. As- 
 bury Pk. 40 N. J. Eq. 447 ; Roath v 
 Driscoll 20 Conn. 533; Chatfield v. 
 \ViUon, 28 Vt. 49, 31 Vt. 358; 
 vVlieatley v Baugh, 25 Pa. St. 528; 
 Haldeman v. Bruckhardt, 45 Pa. St. 
 518. 
 
 As to surface waters: Broadbent 
 V. Ramsbotham, 11 Ex. 603, Bark- 
 ley V. Wilcox, 86 N. Y. 140; Gan- 
 non V Hargadon, 10 Allen (Mass.) 
 IOC; Bates v. Smith, 100 Mass 181; 
 Bowlsby V. Speer, 31 N. J. L. 351; 
 Chadeayne v. Robinson, 55 Conn. 
 345 ; Byrne v. Farmington, 64 Conn. 
 367; Schlieter v. Phillipy, 67 Ind. 
 201; Lesaard v. Stram, 63 Wis. 112; 
 Sanguinetti v. Peck, 136 Cal. 466; 
 Cedar Falls v. Hansen, 104 Iowa 189 ; 
 Walker v. So. Pac. R. R. Co., 165 
 U. S. 593, 602. 
 
 In SL>me states, however, the rule 
 01 the civil law has been followed, 
 viz., that surface water, as between 
 adjoining owners, must be permitted 
 to flow according to the natural for- 
 mation of the land, so that the lower 
 owner is compelled reasonably to re- 
 ceive surface waters which would 
 naturally flow over his land from hi.H 
 neighbor's, and the upper owner has 
 no right to unreasonably stop such 
 
 flow. Delahoussaye v. Judice, 13 La. 
 Ann. 587; Hays v. Hays, 19 La. 351; 
 Foley V. Godchaux, 48 La. Ann. 466; 
 Lambert v. Alcora, 144 111. 313, 326; 
 Anderson v. Henderson, 134 111. 164; 
 Peck V. Herrington, 109 111. 611; 
 Gillham v. Madison Co. R. R. Co., 
 49 111. 484; Rhoads v. Davidheiser, 
 133 Pa. St. 226 ; Martin v. Riddle, 26 
 Pa. St. 415; Boyd v. Conklln, 54 
 Mich. 583; Preston v. Hull, 77 Iowa 
 309; Nininger v. Norwood, 73 Ala. 
 277; Mayor of Albany v. Sikes, 94 
 the doctrine of unreasonable user to 
 the doctrine of unreasonable user to 
 the injury of the adjoining owners. 
 There is no doubt that slight injury 
 resulting from interferences with, or 
 modifications of the flow of surface 
 water arising in the reasonable use 
 or improvement of his property on 
 the part of any owner, would not 
 give rise to a cause of action in 
 nuisance. 
 
 The law is well settled that the 
 taking or cutting off of percolating 
 water which supplies a spring, well 
 or stream in another's land is not a 
 wrong irrespective of the damage 
 which may result, provided it is 
 caused by the act of the owner in 
 the use or improvement of his own 
 land, as appears by the cases abova 
 cited. But where such owner sinks a 
 well or the like in his land near the 
 line and as a result water is drawn 
 by percolation from u, well, spring or 
 
Pkecolatinq and SuiiFACE Watebs. 
 
 659 
 
 It must be remembered, however, that eacli owner must 
 so use his property as not unreasonably to interfere with 
 
 stream near by on his neighbor's 
 land, not merely interrupted or taken 
 before reaching the neighbor's well, 
 Bpring or stream, there is autliority 
 for the proposition that the diversion 
 Ib an actionable wrong, no matter 
 how innocent the action may have 
 been. See discussion (dicta) in 
 Trustees, etc. v. Youmans, 50 Barb. 
 (N. Y.) 316-329, 45 N. Y. 362; also 
 discussion in Pixley v. Clark, 35 N. 
 Y. 528, the court referring to Dick- 
 inson V. Canal Co., 7 Exch. 282, as 
 ^o holding. See, also, Delhi v. You- 
 mans, 45 N. Y. 363, and Chatfield v. 
 Wilson, 28 Vt. 49, 56. 
 
 In Paine v. Chandler, 134 N. Y. 
 ^385, an easement in a spring and 
 pipe leading therefrom liaving arisen 
 in favor of an adjoining farm by im- 
 plied grant, the court lield that the 
 ■digging of a well a few feet froin 
 the spring and the digging of a ditch 
 therefrom parallel with the pipe, 
 with the result that the water in the 
 -spring was so lowered as to stop its 
 flow through the pipe, was a wrong- 
 ful diversion of the water from the 
 ■spring. It does not appear whether 
 or not the water was abstracted from 
 the spring by percolation, or whetlier 
 it was intercepted before it reached 
 the spring. As the Court of Appeals 
 had previously decided that an inter- 
 ception of the water in such case be- 
 •fcre reaching the spring would not 
 ■be a violation of the easement (Bliss 
 'V. Greeley, 45 N. Y. 671), it is fair 
 ■to assume that the case was decided 
 on the theory that the well and ditch 
 <were unlawful in that they caused 
 ■water to flow from tlie spring by 
 percolation. See, also, Grii: d Piinc. 
 
 Canal Co. v. Shugar, L. R., 6 Ch. 
 App. 483, 488. 
 
 See opinion of Balcom, J., in Trus- 
 tees, etc. V. Youmans, 50 Barb. (N. 
 Y.) 316, which argues against this 
 doctrine, it being impossible for such 
 owner in excavating or digging in his 
 own land to know what the effect by 
 way of percolation from springs or 
 streams on his neighbor's land might 
 be. Certainly there is no burden by 
 way of easement imposed on adjoin- 
 ing land which requires that it be 
 maintained as an embankment to 
 prevent percolation in such case. 
 The true principle would seem to be 
 that of nuisance arising out of un- 
 reasonable user. Where the well or 
 ditch is sunk for the purpose of 
 causing such percolation, in order to 
 get water from the spring or stream, 
 which was the case in Paine v. 
 Chandler, supra, it would be clearly 
 unreasonable and therefore a nui- 
 sance, interfering unreasonably witli 
 the neighbor's riglit to use and en- 
 joy his spring or stream. But where 
 such percolation is brought about in 
 digging a cellar or opening a mine 
 or quarry, in the reasonable enjoy- 
 ment of the owner's land, without 
 malice or intent to injure, and which 
 could not reasonably be forseen or 
 prevented, it is difficult to under- 
 stand on what theory liability there- 
 'for can be held to exist. Malice 
 would be material only in determin- 
 ing the unreasonableness of the act 
 complained of. 
 
 Liability for polluting or poison- 
 ing water percolating to a neighbor's 
 land is based on the same doctrine of 
 unreasonable user, sic utere tuo, etc 
 
660 Easements and Peofits. 
 
 Ms neighbor's riglit to enjoy Ms property in a reasonable 
 manner. The absolute right of control and dominion which 
 each owner has over his land is always subject to this rule, 
 which aims to secure to each the fullest rights of enjoyment. 
 This necessarily requires that each be protected in his en- 
 joyment of his property from unreasonable acts of inter- 
 ference on the part of his neighbors in the enjoyment of 
 their property. The improving of one 's property by grading, 
 excavating and building, sinking mines or wells, and the 
 like, is a reasonable exercise of ownership, permitted to each 
 and every owner, irrespective of comparatively slight dam- 
 age which may result to his neighbors through interference 
 with the flow of surface or percolating waters, had the land 
 been left in its natural state.^ But where one owner with 
 wet and swampy land, ditches it so that the water is col- 
 lected and thrown across the line on his neighbor's land in 
 unusual quanities, making it wet and swampy in turn, in 
 effect transferring the swamp from his own land to his 
 neighbor's, the act is clearly unreasonable, and therefore 
 constitutes a nuisance. It is a violation of the balance of 
 reasonable users required by the law. There is, of course, 
 no violation of any easement in such case, since no ease- 
 ment exists. It is rather, a nuisance, a tort, to be dealt 
 with under the law of torts rather than of property.^ 
 
 Haugh's Appeal, 102 Pa. St. 42; Col- soiiable user of the upper parcel, 
 
 liiis V. Cliartiers Gas Co., 139 Pa. St. and therefore a nuisance. Parker v. 
 
 Ill; Brown V. lUins, 27 Conn. 84, 93. B. & M. R. Co., 3 Cuali. 107, 114; 
 
 Where a stranger commits the Wheatley v. Baugh, 25 Pa. St. 52S, 
 
 wrongful act of intercepting perco- 533. 
 
 lating water which supplies a stream In Minnesota no recovery can be 
 
 or spring as source of a stream, own- had for any interference with natural 
 
 ers of the spring or land along the conditions of surface or percolating 
 
 stream may hold him for damages waters provided it results from a rea- 
 
 resulting. His act is a wrong— a sonable use of the land Involved. 
 
 trespass to the owner of the land on Sheehan v. Flynn, 59 Minn. 436. 
 which it is committed, the result of 1. See preceding note. 
 
 which is injury to the lower riparian 2. Miller v. Laubach, 47 Pa. St 
 
 owners. It is an actual interference 154; Kelly v. Dunning, 39 N. J. Eq. 
 
 with the stream not justified by rea- 482 ; Bedell v. Village of Sea Cliff, 
 
Peecolatino and Sueface Watees. 
 
 661 
 
 Where a municipal corporation sinks many wells in land 
 acquired for tliat purpose, and by pumping great quanities 
 of "water therefrom so lowers the water table in the neigh- 
 borhood as to dry up streams and springs and to render 
 land in the neighborhood dry and less valuable for growing 
 crops, the damage so resulting to owners of adjoining land 
 may be recovered, because the taking and vending of the 
 water in such quantities is an unreasonable user of the land 
 in which the wells have been sunk, unreasonably interfering 
 with the adjoining owner's right of enjoyment. These ac- 
 tions have been maintained, therefore, on the theory that 
 the use of the land by the city constitutes a nuisance to 
 adjoining owners.^ It has been suggested in one case that 
 the working of powerful pumps in these wells, drawing 
 
 18 App. Div. (N. Y.) 261; Noonan v. 
 City of Albany, 79 N. Y. 475. The 
 right to drain into streams is dis- 
 cussed under Water Courses, § 288, 
 post. The existence of drains con- 
 stituting a nuisance for upwards of 
 twenty years will result in an ease- 
 ment by prescription as in other 
 cases of nuisance arising from wrong- 
 ful adverse user. See note 3, supra. 
 The right to drain one's land is 
 limited only by this rule, that it will 
 not be permitted if it constitutes a 
 nuisance to a neighbor, and the 
 courts generally hold that it is an 
 actionable wrong to collect surfac? 
 water by artificial ditches and to 
 throw it in large and unusual quan- 
 tities over the line on one's neigh- 
 bor's property. It is clear that since 
 no natural easement exists as to such 
 waters, the making of such ditches 
 is not a violation of any right other 
 than the general right arising out of 
 the duty to so use your land as not 
 unreasonably to interfere with your 
 neighbor's enjoyment of his lanrl. 
 
 Livingston v. McDonald, 31 Iowa 
 160; Taney v. Jasper, 39 111. 54; 
 Adams v. Walker, 34 Conn. 466; 
 Templeton v. Voahue, 72 Ind. 134. 
 
 The N. Y. Constitution, Art. I, § 7, 
 provides that "general laws may be 
 passed permitting the owners or occu- 
 pants of agricultural lands to con- 
 struct and maintain, for the drainage 
 thereof, necessary drains, ditches and 
 dykes upon the land of others." Of 
 course compensation must be made to 
 the adjoining owner in such case. Be- 
 fore this provision was introduced in 
 1S94, a drainage act with the same 
 general purpose was held unconstitu- 
 tional as taking private property for 
 a private purpose. People v. Henion, 
 64 Hun (N. Y.) 471. See Matter of 
 Tuthill, 163 N. Y. 133. 
 
 3. Forbell v. New York, 164 N. Y. 
 582; Smith v. City of Brooklyn. 18 
 App. Div. (N. Y.) 340; Reisert v. New 
 York, 174 N. Y. 196; Katz v. Walkin- 
 shaw, 141 Cal. 116; Meeker v. East 
 Orange, 77 N. J. L. 623. 
 
662 Easements and Pbofits. 
 
 water from the adjoining propertj^, constitutes a trespass,* 
 but tliis view can hardly be sustained. The pumping of the 
 water does not apply a force in the form of suction which 
 draws water from adjoining property, but water flows into 
 the wells from the land in the neighborhood by force of 
 gravity as the water in the wells is lowered by action of the 
 pumps. This result is undoubtedly accomplished in most 
 cases where a well is sunk near adjoining property, yet it 
 has never been suggested that the sinking of such well 
 and the operating of a pump therein amounts to a trespass. 
 It is the excessive pumping of water from many wells within 
 a small parcel of land that results in lowering the level of 
 the water table and causes the damage in these cases, and 
 it is this unreasonably excessive user with its attendant un- 
 reasonable results upon adjoining owners that give rise to 
 the action. These cases come squarely within the principles 
 of the law of nuisance arising from unreasonable user. 
 
 The fact that the water is not used on the premises but is 
 distributed and sold to the people of the city is not conclu- 
 sive as establishing unreasonableness of user. If the same 
 damage were accomplished by pumping the water and using 
 it up on the premises it would nevertheless be a nuisance, 
 since a use of water having such effect on adjoining prop- 
 erty would clearly be an unreasonable interference with 
 the right of enjoj^ment of adjoining owners. 
 
 4. Forbell v. New York, 164 N. Y. Chandler, 134 N. Y. 3S5; Walker v. 
 
 523. Cronin, 107 ilass. 555, 564. 
 
 The motive with which the water is It is submitted that malice should 
 taken is immaterial. The taking of be held to be material in these cases 
 the water is either lawful, or unlaw- heretofore referred to where water :a 
 ful, constituting a nuisance. Malice abstracted by percolation from a 
 or lack of it would not in either case spring or stream, in determining 
 modify in any way the legal quality whether or not the excavation is in 
 and result of the act. See eases in the reasonable enjoyment of the own- 
 preceding notes, also Bradford v. er's property, or merely for tlie pur- 
 Pickles, App. Cas. 587 (1895) ; Phelps pose of wrongfully abstracting water 
 ▼. Nowlen, 78 N. Y. 39; Paine v. from the spring or stream in question. 
 
 See note 10, supra. 
 
Streams and Watee CouESESb 663 
 
 The same general principles apply to percolating oil and 
 natural gas as apply to percolating water, no easement 
 arising by natural right as between adjoining owners, each, 
 having the right to take oil or gas from his land, though in 
 so doing he take away oil or gas from his neighbor 's well." 
 
 § 288, Streams and Water Courses. — To constitute a 
 stream there must be a regular flow of water in a well-de- 
 fined channel with banks. Water from a spring flowing in 
 mere rivulets along the surface, without a channel or well- 
 defined course, is surface water and no easement by natural 
 right arises therein between adjoining owners.^ Where 
 surface waters flow occasionally at times of heavy rains or 
 melting snows in the form of a stream through a natural 
 depression, but at other times no water flows through the 
 depression and no permanent well-defined channel exists, 
 the situation is governed by the rules of law applying to 
 surface water rather than to streams.^ 
 
 6. Kelley v. Ohio Oil Co., 57 Oh. St. by unusual freshets or other extraor- 
 
 317; Peoples' Gas Co. v. Tyner, 131 dinary causes." 
 
 Ind. 877; Westmorland Gas Co. v. De In Kauffman v. Grieseraer, 26 Pa. 
 
 Witt, 130 Pa. St. 235; Wagner v. St. 407, a flow of water from springs 
 
 Mallory, 169 N. Y. 501, 505. was held to be a stream, though at 
 
 1. Bloodgood V. Ayers, 108 N. Y. times there was no flow, the court 
 
 400; Ashley v. Wolcott, 11 Cusli. stating that "the accustomed, 
 
 (Mass.) 192. though not continuous, flowage of 
 
 Z. Bowlsby V. Spear, 31 N. J. L. waters is a stream in the eye of the 
 
 351; Barclay v. Wilcox, 86 N. Y. 140; law, and its channel is no more to be 
 
 Morrison v. Buoksport, 67 Me. 353; obstructed than if it was the channel 
 
 Gibbs V. Williams, 25 Kan. 214. of a stream that never failed." 
 
 In Luther v. Winnisimmet Co., 9 Where the flow from a spring is in 
 
 Cueh. (Mass.) 171, 174, the court said: the form of a defined stream, but for 
 
 "To constitute a water course the some distance the stream as such is 
 
 size of the stream is not important; lost in a, marsh, the waters again 
 
 it might be very small, and the flow collecting in a stream beyond the 
 
 of the water need not be constant, marsh, it is a stream throughout. 
 
 But it must be something more than governed by the rules of law apply- 
 
 a mere surface drainage over the en- ing to streams. The interruption in 
 
 tire face of a tract of land, occasioned the stream does not change its char- 
 
664 
 
 Easements and Peofits. 
 
 A stream is a gift of nature to each owner of land along 
 its banks. Since each has the right to enjoy the stream for 
 every reasonable use and purpose, it follows that no single 
 riparian owner will be allowed to make such use of it as 
 will interfere with the reasonable right of user to which 
 all the others are entitled. It may be used, therefore, by 
 each owner for domestic purposes, the watering of cattle, 
 irrigating the soil, supplying power to run machinery, main- 
 taining artificial lakes or pools, or for any other purpose, 
 provided the user does not result in any material reduction 
 in the size and flow of the stream, or any substantial pollu- 
 tion of its waters.^ No matter how reasonable or laudable 
 
 acter. The stream exists cleavly 
 enough in its entirety, with mutual 
 rights thereto in the riparian owners. 
 Gillett V. Johnson, 30 Conn. 180; 
 Macomber v. Godfrey, 108 Mass. 220. 
 
 3. Emhrey v. Owen, 6 Exch. 353; 
 Pitts V. Lancaster Mills, 13 Met. 
 (Mass.) 156; Elliot v. Fitchburg E. 
 Co., 10 Cush. (Mass.) 191; McCor- 
 mick V. Horan, 81 K Y. 86; N. Y. 
 Rubber Co. v. Rothery, 133 N. Y. 293 ; 
 Pierson v. Speyer, 178 N. Y. 370; Hig- 
 gins V. Flemmington Water Co., 36 
 N. J. Eq. 538; Coldwell v. Sanderson, 
 69 Wis. 52, 57; Gehlen v. Knorr, 101 
 Iowa 700. 
 
 In Miner v. Gilmour, Moore, P. C. 
 131, 156, the court said: "By the 
 general law applicable to running 
 streams, every riparian proprietor has 
 a right to what may be called the 
 ordinary use of the water flowing past 
 his land; for instance, to the reason- 
 able use of the water for his domestic 
 purposes and for his cattle, and this 
 without regard to the effect which 
 such use may have, in case of a de- 
 ficiency, upon proprietors lower down 
 the stream. But, further, lie has a. 
 i-ight to the use of it for any pur- 
 
 pose, or w^hat may be deemed the ex- 
 traordinary use of it, provided that 
 he does not thereby interfere with the 
 rights of other proprietors, either 
 above or below him. Subject to this 
 condition, he may dam up the stream 
 for the purpose of a mill, or divert 
 the water for the purpose of irriga- 
 tion. But he has no right to interrupt 
 the regular flow of the stream, if he 
 thereby interferes with the lawful 
 use of the water by other proprietors, 
 and inflicts upon them a sensible in- 
 jury." 
 
 In so far as the water is needed for 
 irdinary domestic purposes, drinking, 
 washing, and the like, and the water- 
 ing of domestic animals, the stream 
 may be used to extinction if neces- 
 sary. In addition to preceding case, 
 see statements to that effect in i-ier- 
 son V. Speyer, 178 N. Y. 270; Evans 
 v. Merriweather, 3 Scamm. (111.) 
 493; Dumont v. Kellogg, 29 Mich. 
 420; Perrea t. Knipe, 28 Cal. 343: 
 Telle V. Correth, 31 Tex. 375; Wash- 
 burn Easements (4th ed.), 330-333. 
 
 In Pitts V. Lancaster Mills, 13 Met. 
 (Mass.) 156, Shaw, C. J., said: 
 " Every proprietor of land, through 
 
Steeams and Watee Cotjkses. 665 
 
 the purpose of the user may be, if it substantially and mater, 
 ially diminishes the flow of the stream, making it a smaller 
 stream than it otherwise would be, the rights of the lower 
 riparian owners are violated, because if many others should 
 use the stream in the same way and for the same purpose it 
 might be so reduced in size as to destroy its value to the 
 rest. The stream as it exists naturally must be maintained 
 for the benefit of all its riparian owners, which would not be 
 the case should any one of them be permitted to reduce its 
 volume in any substantial or appreciable way.* 
 
 For exactly the same reason any substantial pollution of 
 the stream is a violation of the easement existing in favor 
 of each lower proprietor against every upper proprietor. 
 If the stream should be polluted by many others in the same 
 
 which a current of water flows, has a 
 right to the use of it on his own land, 
 amongst other things for mill pur- 
 poses, making such reasonable use of 
 it, and of the mill power furnished 
 \)f it, as he can make consistently 
 with a like reasonable use by other 
 proprietors, above and below, through 
 whose land it passes. What is a rea- 
 sonable use must depend on circum- 
 stances, such as the width and depth 
 of the bed, the volume of water, the 
 fall, previous usage, and the state of 
 improvement in manufactories and 
 the useful arts. 8 Met. 476." 
 
 In Pierson v. Speyer, 178 N. Y. 270, 
 the court said: "A riparian owner is 
 entitled to a reasonable use of the 
 water flowing in a natural stream 
 over his premises. He may use it for 
 domestic purposes both in his house 
 and his bam, and may consume it for 
 the support of his horses, his cattle 
 and his poultry. He may temporarily 
 detain it by dams, in order to furnish 
 power to run machinery and for the 
 
 purpose of irrigation of his lands 
 when the amount used is reasonable 
 and is not out of proportion to the 
 size of the stream. He may also con- 
 struct ornamental ponds and store 
 them with fish, or use them for his 
 geese, his ducks or his swans, so long 
 as the size of the ponds are not so 
 large as to materially diminish, by 
 evaporation and absorption, the 
 quantity of water usually iiowing in 
 the stream." 
 
 In Wheatley v. Chrisman, 24 Pa. St. 
 298, 302, the court said: " The neces- 
 sities of one man's business cannot be 
 the standard of another's rights in a 
 thing which belongs to both. • • * 
 The defendant had a right to such 
 use as he could make of the water 
 without materially diminishing it in 
 quantity or corrupting it in quality. 
 If he needed more he was bound to 
 buy it. However laudable his enter- 
 prise may be, he cannot carry it on 
 at the expense of his neighbor* 
 
 4. See preceding note. 
 
(;66 
 
 Easbmefts and Peofits, 
 
 way it would be rendered entirely unfit for use by the re- 
 maining owners." 
 
 5. Snow V. Parsons, 38 Vt. 459. the 
 court holding that evidence tending 
 to prove that it was the universal 
 custom of tanneries to deposit waste 
 tan bark in streams on which they 
 were situated, and that this practice 
 was essential to their operation with 
 a profit should have been admitted in 
 determining whether or not there was 
 an unreasonable pollution of tVe 
 stream, interfering unreasonably with 
 the plaintiflf's use of the stream be- 
 low. Lower proprietors must submit 
 to some pollution, provided it does 
 not unreasonably interfere with their 
 enjoyment of the stream, and is neces- 
 sary to the beneficial enjoyment 
 thereof by others. See, also, to same 
 effect as to custom, Dumont v. Kel- 
 logg, 29 Mich. 430. Evidence of cus- 
 tom was excluded in Hayes v. Wal- 
 dron, 44 N. H. 580, and Timm v. 
 Bear, 39 Wis. 254. 
 
 The depositing of sawdust in a 
 stream is governed by the same rule 
 of reasonable user. Prentice v. 
 Geiger, 74 N. Y. 341; Canfield v. An- 
 drew. 54 Vt. 1 ; Green v. Gilbert, 60 
 N. H. 144. 
 
 In Pennsylvania Coal Co. \ . Sander- 
 son, 113 Pa. St. 126, the court held 
 that a mine owner could drain his 
 mine by pumping into a stream 
 which was the natural drainage of the 
 land where the mine was situated, 
 though it rendered the stream unfit 
 for domestic uses. In later cases in 
 Pennsylvania the doctrine of this case 
 has been strictly limited. After re- 
 ferring to this case the court in 
 Strobel v. Kerr Salt Wks., 164 N. Y. 
 303, said in refusing to apply the 
 same rule to n pollution of a stream 
 
 in a similar way with salt so th»t 
 cattle would not drink it, etc.: " The 
 extensive coal mines of the state of 
 Pennsylvania were regarded as of suf- 
 ficient importance to warrant the 
 court in departing from the law as 
 previously laid down by itself in the 
 same case, as well as from the rule 
 which prevails in England and in this 
 country, except in some of the states 
 where mining is extensively carried 
 on and there is no way to get rid of 
 the water in the mines except by 
 pumping it into the streams fClifton 
 Iron Co. V. Dye, 87 Ala. 470). Courts 
 of the highest standing have refused 
 to follow the Sanderson case. (Col- 
 lonies, etc. Co. v. Tucker, 48 Oh. St. 
 41 ; Beach v. Sterling Iron & Zinc Co., 
 54 N. J. Eq. 65; Young v. Bankier 
 Dist. Co., L. R. [App. Gas. 1893] 
 6911, and its doctrine was finally 
 limited by the court which annouTiced 
 it. (Robb V. Carnegie, 145 Pa. St. 
 P33.) • • * We have never ad- 
 opted that rule in this state, and no 
 public necessity exists therefor, even 
 if it would ever warrant the courts 
 in relaxing rules for the protection of 
 property of small value in the inter- 
 ests of some business required to de- 
 velop the resources of the state, and 
 in which much capital had embarked, 
 giving employment to a great number 
 of people." 
 
 So same effect, Drake v. Lady 
 Eusley Coal Co., 102 Ala. 501. See, 
 also, Pfeiffer v. Brown. 165 Pa. St 
 267; Hindson v. Markle, 171 Pa. St. 
 138; Beach v. Sterling Iron Co.. 54 N. 
 J. Eq. 65, 76. 
 
 Use of property by the owner in 
 the ordinary way, as for pasture, 
 
StEEAMS and WaTEK CotTKSES. 667 
 
 The question of whether the user of the stream is, per se, 
 B reasonable one has been sometimes discussed by the courts. 
 It has been said that the taking of water from the stream 
 to sell it to a railroad company or to any person not a rip- 
 arian owner is unreasonable and will not be allowed.'' The 
 better and prevailing view is that such user is not, of itself, 
 a violation of the rights of lower owners, it being unrea- 
 sonable and therefore illegal only in those cases in which the 
 stream is diminished in flow to any material extent. If the 
 same stream continues to flow to the lower proprietors sub- 
 stantially unchanged in flow, they are not damaged and no 
 right of theirs is violated^ 
 
 It is not necessary that the lower owner prove any dam- 
 age through interference with a use of the stream which he 
 is actually enjoying. It is sufficient to show that the user 
 complained of will interfere with some reasonable use of the 
 stream to which the lower owner may desire to put it in the 
 future. Me may assert his right by recovering nominal 
 
 plowing, etc., cannot be interfered but is sold and used elsewhere, is a 
 
 with merely because some pollution material fact to be considered in de- 
 
 of the stream occurs, as from cows in termining whether or not the user is 
 
 the pasture, wash from plowed land reasonable. A slight interference 
 
 near the stream, etc. Helfrich v. with the right of user of a lower 
 
 Catonsville Water Co., 74 Md. 269. owner accomplished in this way 
 
 6. Garwood v. N. Y. Central, etc. R. would be clearly unreasonable, while 
 Co., 83 N. Y. 400. The court found a similar interference resulting from 
 as a fact, however, that the vending a use of the water for the purposes 
 of the water to the railroad company, of power, irrigation, or the like, on 
 not a riparian owner, for the use of the premises, might not be unreason- 
 its locomotives, was a sufficient diver- able. Any perceptible diminution in 
 sion " to perceptibly reduce the vol- the flow of the stream caused by a 
 ume of water therein " and to " ma- vending of the water renders such 
 terially reduce or diminish the grind- user unreasonable, since it could not 
 ing power of plaintiff's mill." The be enjoyed by all, or nearly all, with- 
 case was correctly decided on the out seriously impairing or destroying 
 ground of unreasonable diversion and the stream. See Clark v. Pa. R. R. 
 use of water from the stream. Co., 145 Pa. St. 438; Pa. R. R. Co. v. 
 
 7. Elliot v. Fitehburg R. R. Co., 10 Miller, 113 Pa. St. 34, 42; Higgin* 
 Cush. (Mass.) 191. The fact that the v. Flemington Water Co., 36 N. J. 
 water is not used on riparian land. Eq. 538. 
 
668 
 
 EaSKMENTS AlTD PeOFITS. 
 
 damages and tlms prevent an easement by prescription 
 from arising ■whicli would legalize the unlawful user of 
 which, he complains, or he may secure an injunction restrain- 
 ing it.^ 
 
 The setting back of water by a lower owner upon land of 
 an upper owner is, of course, an unreasonable user of the 
 stream. Such a user, persisted in for upwards of twenty 
 years, becomes an easement by prescription.® 
 
 8. Elliot V. Fitchburg R. Co., 10 
 Cush. (Mass.) 191 j N. Y. Rubber Co. 
 V. Rothery, 132 N. Y. 293, and cases 
 therein cited; Watson v. New Mil- 
 ford Water Co., 71 Conn. 442, 450; 
 Messinger's Appeal, 109 Pa. St. 285. 
 It is not correct to say that no action 
 arises until the lower owner is actu- 
 ally damaged through interference 
 with a use to which he subsequently 
 puts the stream, and therefore that 
 the period of prescriptive user does 
 not start until then. A user which 
 prevents a lawful user by the lower 
 proprietor is a present interference 
 with a valuable property right, and 
 a continuation thereof for upwards of 
 twenty years unquestionably ripens 
 into an easement by prescription im- 
 der the cases. 
 
 9. Hart v. Vose, 19 Wend. (N. Y.) 
 365 ; Townsend v. McDonald, 14 Barb. 
 (N. Y.) 460, 467; Wells v. Garburr, 
 133 N. Y. 430 (such easement arising 
 by implied grant) ; Bangor v. Lansil, 
 51 IVTh. 526; Lincoln v. Ohadbourn, 55 
 Me. 197; Graver v. Scholl, 42 Pa. St. 
 67. 
 
 Whether the setting back of water 
 go as to increase the depth of the 
 stream, but without overflowin;:; its 
 banks, on the land of an upper pro- 
 prietor gives an action for nominal 
 damages, no actual or possible dam- 
 age being shown, is a question about 
 
 which the cases are in conflict. That 
 such action can be maintained haa 
 been held in several cases. Hendriek 
 V. Cook, 4 Ga. 241, 257, 265; Ripka v. 
 Sergeant, 7 Watts & S. 9, 13; Com- 
 pany V. Goodale, 46 N. H. 56; Graver 
 V. SchoU, 42 Pa. St. 67. Cases taking 
 the position that actual or prospec- 
 tive damage must be shown; that 
 such user of the stream is reasonable 
 if it does not in any perceptible way 
 interfere with a present or prospec- 
 tive reasonable right of user on the 
 part of the upper proprietor, would 
 seem to be more consistent with the 
 general principle of mutual rights of 
 riparian owners in streams. A lower 
 proprietor has no action for an inter- 
 ference with the natural flow which 
 is reasonable and does not interfere 
 with a reasonable use of the stream 
 by him. Why shouldn't an upper 
 owner be governed by the same rule 
 in the case of a set-back which covers 
 no additional land, and which in no 
 Way interferes with any reasonable 
 use of the stream? Waring v. Mar- 
 tin, Wright 381; Garrett v. McKie, 1 
 Rich. (S. C.) 444; Chalk v. McAlily, 
 11 Rich. 153, 161; Thompson v. 
 Crocker, 9 Pick. (Mass.) 59; Shierr v. 
 Voorhees, 2 Green Ch. (N. J.) 25: 
 Pixley V. Clark, 35 N. Y. 525. It ia 
 clear that the user would be unrea- 
 sonable if it would tend to interfei* 
 
StKBAMS and WaTEB CotJESES. &69 
 
 Each riparian owner has a natural right to drain his 
 land into the stream, limited to land which has its natural 
 drainage into the stream, and limited further by the capac- 
 ity of the stream. Drainage which will cause a stream to 
 overflow its banks, and the turning of other streams from 
 their natural course into the stream in question, or the 
 draining of land into the stream which would naturally 
 drain in another direction will be in each case an 'unrea- 
 sonable user. Subject to these limitations the lower owner 
 must receive the stream as it may be after land above him 
 has been draiued into it, and will be liable in case he closes 
 it up or otherwise prevents its flow.*" We have already 
 seen that coal mines, salt works, and the like, cannot be 
 drained into streams contiguous thereto if the result will be 
 a pollution of the water unreasonably interfering with the 
 rights of enjoyment of lower riparian owners.^* 
 
 Where a stranger is given a right by way of easement to 
 take water from the stream, and to maintain a pipe or canal 
 for the purpose, it has been held that he can maintain no ac- 
 tion against an upper riparian owner for an unreasonable 
 diversion or pollution of the stream, the reason being that 
 as he is not a riparian owner the upper owners owe him no 
 duty and therefore incur no liability in such case.^- The 
 
 with a power site belonging to the Ormerod v. Todmorden Mill Co., 11 
 
 upper owner, and in such case it Q. B. Div. 155. 
 
 would be immaterial whether a mill Bramwell, B., said, in a dissenting 
 
 had been erected on the upper parcel opinion: "Further, it does seem 
 
 or not. Stout v. McAdams, 2 Scamm. strange that if a man has an estate 
 
 (III.) 67. See Washburn Easements on the bank of a stream extending a 
 
 (4th ed.), 372-374. mile from it, he may build houses on 
 
 10. MeCormick v. Horan, 81 N. Y. the land, conduct water from the 
 86; Waffle v. N. Y. Cent. R. Co., 53 stream to them, and maintain an ac- 
 N. Y. 11; Merrit v. Parker, 1 N. J. tion and recover substantial damages 
 460; Tillotson V. Smith, 32 N, H. 90; for the injury to each house; that his 
 Mayor, etc. v. Appold, 42 Md. 443; tenants of each, if he let them, mlgl.t 
 Miller v. Laubaek, 47 Pa. St, i54. do the same even though he demised 
 
 11. See note 5, supra. them for 1000 years at a pepper-corn 
 
 12. Stockport Waterworks Co. v. rent, but that if he grant away the 
 hotter, 3 H. & C. 300, approved in house in fee with the right of water, 
 
C70 Easeaiemts and Peofits. 
 
 better view, more generally taken, is that he may main- 
 tain an action for the damages which he sustains. He has 
 an undoubted proprietary right of user in the water. That 
 right is impaired by the wrongful act of the upper owner. 
 It is therefore a nuisance, an unlawful intereference with 
 an incorporeal property right.^* 
 
 § 289. Riparian Rights in Tidal Waters and Navigable 
 Streams. — Ownership of land abutting on tidal and other 
 public waters extends to high water mark. The land under 
 water belongs to the state in which it is situated.^ The 
 riparian owner, however, has the right of access to the water 
 as a public highway, and the right to erect and maintain a 
 landing, wharf or pier for his own use or for the use of the 
 public, subject to rules and regulations made by statute for 
 the protection of the public in the use of the stream or 
 body of water as a public highway.^ If he is deprived of 
 this right by the taking of his shore front property under the 
 power of eminent domain, for the uses of a railroad, or for 
 any other public use, he must be compensated, not only for 
 the land, but for these water rights of which he is deprived 
 by cutting off his remaining property from the shore.* 
 
 such grantee can maintain no action. neappolia, 41 Minn. 270, 273, it is im- 
 • * * Further, suppose the person material whether the water riglits in- 
 fouling the water was not u. riparian terfered with are called riparian or 
 proprietor, but a mere wrongdoer, are conventional, arising out of ex- 
 why should not an action lie against press grant. In either case the rights 
 him? I can see no reason, nor can I exist and an unlawful interference 
 see that his being such proprietor with them will give to their owner a 
 makes any difference." right of action. 
 
 13. St. Anthony, etc. Co. v. Minne- 1. See §§ 311, 320, post. 
 
 apolis, 41 Minn. 270; Bristol Hydrau- 2. Rumsey v. N. Y. & N. Eng. R. 
 
 lie Ck). V. Boyer, 67 Ind. 236; Gillis v. Co., 133 N. Y. 79; Matter of City of 
 
 Chase, 67 N. H. 161; Winchell v. New York, 168 N. Y. 134; Yates v. 
 
 aark, 68 Mich. 64, 73. Milwaukee, 10 Wall. (U. S.) 497: 
 
 See dissenting opinion of Bramwell, St. Louis v. Eutz, 138 U. S. 246; 
 
 B., in Stockport Waterworks Co. v. Wall v. Pittsburg Harbor Co., 153 
 
 Potter, 3 C. & H. 30O, quoted from in Pa. St. 427, and eases in note fol- 
 
 preceding note. As stated by the lowing, 
 court in St. Anthony, etc. Co. v. Min- 3. Rumsey v. N. Y. & N. Rni:;. U. 
 
Easements of Suppoet. 
 
 671 
 
 Statutes generally provide for tlie granting by tte state 
 of land under water to the owner of the upland adjoining 
 the land so granted, the state reserving the right to make 
 laws for the improvement and control of navigation and for 
 the protection of the rights of the public in the streams as 
 highways.* Such grants are always subject to the right of 
 the federal government to make rules and regulations af- 
 fecting commerce and to act for the improvement of naviga- 
 tion. A grant of land under water to one who is not the 
 owner of the corresponding upland is absolutely void.^ 
 
 § 290. Easements of Support. — Another easement exist- 
 ing by natural right is the mutual right of every owner to 
 have his land supported in its natural state by the adjoin- 
 ing land of his neighbor. An excavation on either parcel 
 resulting in the caving in or settling of the other, is a viola- 
 
 Co., 133 N. Y. 79 (overruling Gould 
 V. Hudson E. R. R. Co., 6 N. Y. 522) ; 
 Buccleuch v. Metrop. Bd. of Wks., 
 L R. (5 E. & I. App.) 418; Ashby 
 V. Eastern R. Co., 5 Met. (Mass.) 
 368; Steam Engine Co. v. Steam- 
 ship Co., 12 R. I. 348; Holton v. 
 Milwaukee, 31 Wis. 38; Brisbane v. 
 St. Paul, etc. Co., 23 Minn. 114; 
 Yates V. Milwaukee, 10 Wall. (U. S.) 
 497. 
 
 In New Jersey, following the Gould 
 case, supra, since overruled as abovs 
 stated, the court held that the ripar- 
 ian owner had no remedy. Stevens v. 
 Patterson & Newark R. Co., 34 N. J. 
 L. 532. This case was also decided on 
 the authority of Buceleach v. Metr. 
 Bd. of Works, L. R., 5 Exch. 221, 
 since overruled by the House of 
 Lords. L. R., 5 E. & I. App. 418. 
 Since the decision is clearly wrong 
 on principle, and the two cases on 
 which the decision was based have 
 been since overruled in their respect- 
 
 ive jurisdictions, it is doubtful if this 
 case will be followed in New Jersey. 
 
 These riparian rights are, of 
 course, subject to the right of the 
 State or nation to enact laws in rea- 
 sonable regulation of navigation for 
 the protection of the public. Lan- 
 sing V. Smith, 8 Cowen (N. Y.) 146, 
 4 Wend. 9; Seranton v. Wheeler, 179 
 U. S. 141. See Slingerland v. Inter. 
 Constr. Co., 169 N. Y. 60, the court 
 stating that if permanent injury to 
 the riparian owner's right of ap- 
 proach was clearly shown, as a re- 
 sult of the public improvement, 
 damages could be recovered. 
 
 4. N. Y. Pub. Land L., Laws of 
 1894, ch. 317, as amd. Laws of 1895, 
 ch. 208, § 20, now §§75 and 76, Con- 
 solidated Laws; Illinois Cent. R. Co. 
 V. Illinois, 146 N. Y. 387. See stat- 
 utes in the different states. 
 
 5. N. Y. Pub. Land L., supra (Con- 
 solidated Laws) § 75. 
 
672 Easements and Pbofitb. 
 
 tion of this easement, giving an action for the damages re- 
 Bulting to the parcel affected in its natural state.^ If the 
 caving in or settling is caused by the weight of a building 
 or other improvements on the adjoining property there is 
 no violation of the easement and no recovery can be had, 
 the burden imposed on each parcel being limited to the 
 support of the adjoining parcel in its natural condition, 
 without the pressure by buildings.* If the excavation be 
 such that the caving in or settling of the adjoining land 
 would have resulted in any event, though no building had 
 been erected on it, an action will lie for the damage to the 
 land in its natural state, excluding damage to buildings or 
 improvements.^ This exclusion of damages from injuries 
 to buildings is an exception to the general rule that all the 
 damages proximately resulting from a wrongful act may 
 be recovered. But it is argued that the mutual burden is 
 limited to the support of the land in its natural condition, 
 and to give damages for injuries to improvements on ad- 
 joining property in such case would be to increase the bur- 
 den. This is true only in this respect, that the damages 
 
 1. Laaala v. Holbrook, 4 Paige Ch. 3. See cases in preceding note; 
 
 Eep. (N. Y.) 169; Ferrand v. Mar- also White v. Nassau Trust Co., 168 
 
 shall, 19 Barb. (N. Y.) 380; Riley v. N. Y. 149; White v. Dresser, 135 
 
 Continuous Rail, etc. Co., 110 App. Mass. 150; Wier's Appeal, 81 Pa. St. 
 
 Div. (N. Y.) 787; Booth v. R. W., 203; McGettigan v. Potts, 149 Pa. 
 
 etc. Co., 140 N. Y. 267; Dalton v. St. 155; Buskirk v. Strickland, 47 
 
 Angus, 6 App. Caa 740 ; Gilmore v. Mich. 389 ; Gildersleeve v. Hammond, 
 
 Priscoll, 132 Mass. 199; Moellering 109 Mich. 408; Quiney v. Jones, 76 
 
 V. Evans, 131 Ind. 195; Sliarpless v. 111. 231; Sliafer v. Wilson, 44 Md. 
 
 Eoldt, 218 Pa. St. 372; Gildersleeve 268. 
 
 V. Hammond, 109 Mich. 431, and 3. Smith v. Thaekerah, L. R., 1 
 
 jases in notes following. Com. PI. 564; Gilmore v. Driscoll, 
 
 Some appreciable damage must 122 Mass. 199, following Thurston v. 
 result. The act of excavating on Hancock, 12 Mass. 220, and Foley v. 
 one's own land is legal, and the mcrr- Wyeth, 2 Allen 131; McGettigan v. 
 settling of his neighbor's land as « Potts, 149 Pa. St. 155; Lee White v. 
 result, without causing appreciable Nassau Trust Co., 168 N. Y. 149; 
 damage, gives no cause of action. Qulncy v. Jones, 76 111. 231; Gilder- 
 Smith V. Thaekerah, L. R., 1 r jni. sleeve v. Hammond, 109 Mich. 431, 
 Pi- 564. Moelit-ring v. Evans, 121 Ind. 19S. 
 
EASEMENTa OF SuPPOET. 673 
 
 recoverable in case of an unlawful excavation are increased 
 in amount. The actual burden of support remains the same. 
 Eacb owner in erecting buildings bas the rigbt to believe 
 tbat the natural support theretofore existing will be main- 
 tained, and there is no valid reason why he should not re- 
 cover his entire damages to land and buildings in case this 
 natural support is taken away.* 
 
 It is frequently said that the right of mutual support, here 
 discussed, and the rights of riparian owners in streams, are 
 not properly easements at all, it being assumed that an 
 easement must arise by grant or its equivalent, and cannot 
 arise by natural right. The courts generally treat these 
 rights as easements and refer to them as such. Apart from 
 the way in which they arise they are in every respect like 
 conventional easements created by grant. They are in each 
 case an incorporeal right in a servient estate for the bene- 
 fit of a dominant estate. That they arise by virtue of natural 
 facts rather than by deed does not in any way change their 
 character as incorporeal rights after they come into exist- 
 ence. Though the term applied to them is of no great im- 
 portance, their nature being understood, as a matter of 
 clear arrangement and terminology it would seem wisest 
 to refer to them as easements arising by natural right.* 
 
 i. Dodd V. Holme, 1 Adal. & E. WilmB v. Jess, 94 111. 464; Stearn» 
 493 ; Brown v. Robins, 4 H. & N. 186, v. Richmond, 88 Va. 992. See Gil- 
 Martin, J., saying : " There was am- dersleeve v. Hammond, 109 Mich, 
 pie evidence that tlie defendant knew 431; Shultz v. Bower, 64 Minn. 123; 
 the state of the plaintiff's land. Riley v. Continuous Rail Joint Co., 
 There is no ground for reducing the 110 App. Div. (N. Y.) 787. 
 damages. The house was lawfully on 5. Dalton v. Angus, 6 App. Cas. 
 the plaintiff's land and was damaged 740, 791 ; Birmingham v. Allen, L. R., 
 by the unlawful act of the defend- 6 Ch. Div. 284, James, L. J., saying: 
 ant." The jury had found as a fact " Whether you call it an easement or 
 that plaintiff's land would have set- a natural right incident to property, 
 tied though no house had been erected or a right of property, it seems to m.' 
 on it, and recovery for damage to the that those are only different modes 
 house was allowed. To same effect, of expressing the origin of the right. 
 Hunt V. Peake, H. R. V. Johns. 705; and do not express any difference in 
 Stojan V. Knowles, 6 H. & N. 454; the right itself. Whatever it b^ 
 4.S 
 
674 Easements and PBOFiTS. 
 
 Tlie law of negligence as it affects excavations cl(jse tc 
 the line of adjoining properties has no direct rela- 
 tion to easements of support, and belongs to tlie law of 
 torts. In excavating on his land each owner must use rea- 
 sonable care, and if through failure to . use such rea- 
 sonable care in his method of excavating, damage 
 is done to his neighbor's property, improved or unim- 
 proved, he is liable for the damages proximately resulting." 
 It has been held that failure to give notice of a proposed 
 excavation to the owner of an adjoining building which 
 may be endangered thereby is negligence in itself, common 
 prudence requiring that such notice be given in order that 
 the owner of the building may shore it up or take such other 
 measures as may be necessary to protect his building.'' 
 Statutes have been quite generally enacted providing for 
 what must be done to protect adjoining property in case of 
 excavations in cities below a certain depth. In New Yori 
 city and Brooklyn, for instance, the excavator must apply 
 to the adjoining owner for permission to enter and shore up 
 or brace his building so as to prevent injury thereto from tho 
 excavation if it is to extend for more than ten feet. If tho 
 permission is given he must shore up the building accord- 
 ingly, or incur liability for any damage resulting. If de- 
 there must be, whether you use those English decisions it appears that tho 
 terms or not, the idea and the sub- party who is about to endanger the 
 stance of a dominant and servient building of his neighbor, by a, rea- 
 tenement." • » * sonable improvement on his own 
 
 6. See cases in following note; also land, is bound to give the owner of 
 in note 3, supra. See, also, Eadcliff the adjacent lot proper notice of the 
 V. Mayor, etc., 4 N. Y. 195; White v. intended improvement, and to use 
 Nassau Trust Co., 168 N. Y. 149; ordinary skill in conducting the 
 McGuire v. Grant, 25 N. J. L. 356; same," citing Peyton v. Mayor, etc.. 
 Charles v. Rankin, 22 Mo. 566; 6 Barn. & C. 725; Walters v. Pfeil, 
 Barnes v. Waterbury, 83 Conn. 518; 1 Mor. & M. 62; Massey v. Groyner, 
 Spolm V. Dives, 174 Pa. St. 474. 4 Car. & V. 161. 
 
 7. Schultz V. Byers, 53 N. J. L. For statements to the same effeci 
 *42; Lasala v. Holbrook, 4 Paige see Shafer v. Wilson, 44 Md. 268; 
 169, 173 (dicta). Chancellor Wal- Beard v. Murphy, 37 Vt. 101; Firs* 
 R'orth saying: "From the recent Nat. Bank r. Villegra, 92 Cal. 96. 
 
Subjacent Support. 675 
 
 nied, he may excavate without incurring liability, provided 
 he use due care.® 
 
 In England, as we have seen heretofore, if a building has 
 stood close to the boundary line for upwards of twenty 
 years, its owner acquires an easement that the land as en- 
 cumbered by the building be supported by the adjoining 
 land.^ Though there is some authority for the same rule in 
 this country,^" it is safe to say that in the great majority of 
 the states no such easement arises by prescription, since the 
 erection and maintenance of a building on one's own prop- 
 erty is in no sense a wrongful adverse user, or a user of any 
 kind, of the adjoining property." 
 
 § 291. Subjacent Support. — A natural right or easement 
 of support exists between the lower and upper strata of the 
 earth, where they are owned separately by different per- 
 sons. In the case of mineral lands it is quite common to 
 grant the lower stratum containing mineral deposits to 
 another, the grantor retaining the surface. In such case the 
 owner of the mine must not excavate in such way as to 
 
 8. Dorrity v. Rapp, 72 N. Y. 307 ; nothing upon, and has no use of, that 
 Johnson v. Oppenheim, 55 N. Y. 280; land which can be seen or known or 
 N. Y. Laws of 1855, ch. 6; Laws of interrupted or sued for by the owner 
 1885, oh. 456; 1 Stim. Am. St. L., §5 thereof, and therefore no assent of 
 1170, 2351. See Ciffarelli v. Lan- the latter can be presumed to the ac- 
 didno, 82 Conn. 126. quirement of any right in his land 
 
 9. See § 285, note 19, ante. by the former." The court pointa 
 
 10. See dicta stating this doctrine out that the English cases depend on 
 with approval in Lasala v. Holbrook, the analogous doctrine of ancient 
 4 Paige (N. Y.) 169, 173. See, also, lights which is repudiated in this 
 Quincy v. Jones, 76 111. 231, and As- country. 
 
 ton V. Nolan, 63 Cal. 269. {Dicta. In Schultz v. Byers, 53 N. J. L. 
 
 See Sullivan v. Zeiner, 98 Cal. 346, 442, referring to this doctrine of 
 
 contra.) easements of support of ancient 
 
 11. In Gilmore v. Driscoll, 123 buildings, the court said: "» * • 
 Mass. 199, the court said (dicta): Nor has such right ever been con- 
 " It is difficult to see how the owner ceded in our courts." See, also, Rich- 
 of a house can acquire by prescrip- art v. Scott, 7 Watts. (Pa.) 460-464; 
 tion a right to have it supported by Sullivan v. Zeiner, 98 Cal. 346; Tub- 
 the adjoining land, inasmuch he docs stall v. Christian, 80 Va. 1. 
 
676 
 
 Easembnts and Peofits. 
 
 cause a caving in or settling of the surface.* This right also 
 arises by implied reservation where the owner grants away 
 the surface, retaining the lower stratum. The owner of 
 the lower stratum has a right as against the owner of the 
 surface in these cases to make and maintain openings, 
 shafts and roads in the working of the mine to such extent 
 as may be reasonable.^ 
 
 § 292. Party Walls. — When two buildings on adjoining 
 parcels have been constructed with a single wall between 
 them, used in common for both buildings and erected on the 
 boundary line so that part of the wall is on each of the two 
 parcels, the common wall dividing the buildings is called a 
 party wall. In England it is held that the parties own the 
 entire wall as tenants in common.^ In the United States 
 
 1. Humphries v. Brogden, 13 Q. B. 
 739; Marvin v. Brewster Iron Min- 
 ing Co., 55 N. Y. 538; Robertson v. 
 Youghiogheny Coal Co., 172 Pa. St. 
 566; Burgner v. Humhrey, 41 Oh. St. 
 340; N. J. Zinc Co. v. N. J. Frank- 
 Unite Co., 13 N. J. Eq. 322. 
 
 2. Pringle v. Vesta Coal Co., 172 
 Pa. St. 438, and cases in preceding 
 note. 
 
 In Robertson v. Coal Co., 172 Pa. 
 St. 566, 571, Williams, J., said: 
 " Where the mineral estate is severad 
 from the surface by a conveyance, 
 the lower estate passes to the grantee 
 subject to the servitude imposed 
 upon it by nature for the support of 
 the surface. The surface owes to the 
 iower estate an easement or servitude 
 for access. The lower estates owe to 
 each other and to the surface an 
 easement for support. The owner of 
 the mine must leave enough of the 
 mineral in place to answer the pur- 
 poses of support for the surface un- 
 less the owner of the surface has re- 
 
 leased his right to support • • • 
 Such release will not be implied from 
 language that does not necessarily 
 import it." 
 
 As to easements of support in case 
 of separate ownership of the upper 
 floors of a house as against the lower 
 floors, the upper owner having the 
 right to have his part of the house 
 supported by the lower part, see Har- 
 ris V. Ryding, 5 M. t W. 60; Graves 
 v. Berdan, 26 N. Y. 498, the court 
 stating [dicta) that the lower ovmer 
 must, in England, repair his own 
 property so that it may be able to 
 bear the weight of the upper floors, 
 citing Humphrey v. Brogden, 12 Q. 
 B. 739; Rowbothem v. Wilson, 36 id. 
 236; Harris v. Roberts, 6 El. & Br. 
 643. See, also. Pierce v. Dyer, 109 
 Mass. 374, 376. 
 
 3. Cubitt V. Porter, 8 B. & C. 257; 
 Watson V. Gray, 14 Ch. Div. 192; 
 Everett v. Edwards, 149 Mass. 588, 
 in which case the two theories are 
 discussed. 
 
Paety Walls. 6Y7 
 
 it is generally held that each is the owner of so much of 
 the wall as stands on his lot, each being subject to and hav- 
 ing the benefit of mutual easements of support, each section 
 or segment of the wall being bound to support the other.* 
 The question is largely academic, the incidents attaching 
 and the practical results arrived at being the same under 
 either theory. In favor of the English view it may be said 
 that a wall is a distinct and complete thing in itself, like 
 a tree growing directly on the boundary line, incapable of 
 separate ownership in sections, and therefore the owner- 
 ship of each tenant should extend to every part of it — an 
 undivided interest m the entire wall, as in the case of ad- 
 joining owners of a tree with its trunk directly on the boun- 
 dary line." On the other hand the usual incidents of a 
 tenancy in common, such as partition, do not apply, and 
 furthermore its ownership should follow the ownership of 
 the land in which it stands unless clearly incompatible with 
 its nature. There is nothing in the nature of a wall to pre- 
 vent its ownership by each proprietor to the line of his lot, 
 with mutual easements of support by which each is assured 
 of the enjoyment of the entire wall as such. This theory is 
 simpler, more logical, and gives a better basis for a com- 
 prehension of the incidents of party wall rights than the 
 English theory. 
 
 Party wall easements arise most frequently by implied 
 grant or reservation, the owners of the two lots having built 
 on them, using a common wall, and subsequently selling 
 one lot with its building, retaining the other, or selling the 
 two parcels at the same time to different persons.® The 
 same result follows severance of ownership of the two par- 
 cels by the will of such owner, or by partition among his 
 
 4. Sherred v. Cisco, 4 Sandf. (N. 6. Everett v. Edwards, 149 Mass. 
 Y.J 480; Brooks v. Curtis, 50 N. Y. 588; Brooks v. Curtis, 50 N. Y. 639; 
 639; Everett v. Edwards, 149 Maaa, Heartt v. Kruger, 121 N. Y. 386; In- 
 688, and cases cited in notes follow- gals v. Plamondon, 75 111. 118: War- 
 ing, fel v. Knott, 128 Pa. St. 528. 
 
 5. See § 30, ante. 
 
678 Easements and Profits. 
 
 heirs. It is obvious in such, case that the intention was to 
 create a party wall with the mutual easements of support 
 incident to it. 
 
 When adjoining owners erect buildings with a common 
 wall dividing them on the line, a party wall easement arises, 
 that, necessarily, having been their intent as implied from 
 the facts.'^ So where a party wall is erected by one of them 
 in building his house, the wall being placed in part on his 
 neighbor's land, the neighbor may treat it and make use 
 of it as a party wall without making any payment toward 
 its cost, that part of the wall on his premises becoming his 
 property at his election, or he may compel its removal.* 
 In any case, therefore, where a common wall is used for 
 two adjoining houses on the dividing line it is a party wall 
 by implied grant or agreement, or by express grant or cove- 
 nant, in the absence of an express agreement to the con- 
 trary. 
 
 They may, of course, be created by express grant or cove- 
 nant, the common form of party wall agreement being ex- 
 
 7. Hicatt V. Morris, 10 Oh. St. ment is created by estoppel, the man 
 623; Eindge v. Baker, 57 N. Y. 209; who erects the wall wrongfully on 
 Bherred v. Cisco, 4 Sandf. (N. Y.) part of his neighbor's land being ea- 
 480; Eckleman v. Miller, 57 Ind. 88; topped from denying that it ia a 
 Huck V. Fleutye, 80 111. 258. party wall, should his neighbor elect 
 
 8. Sherred v. Cisco, 4 Sandf. (N. to treat it as such, and his neighbor 
 Y.) 480; Heartt v. Kruger, 121 N. being bound by his election after 
 Y. 386; Douglass v. Coonley, 156 N. making use of it as a party wall. 
 Y. 521; Pile v. Pedrick, 167 Pa. St. When the wall is so erected by mu- 
 296; Schmidt v. Lewis, 63 N. J. Eq. tual consent, their implied agree- 
 564; Houghton v. Mendenball, 50 ment will be given effect, though no 
 Minn. 40. writing has passed between them, 
 
 In these cases the party wall ease- eacli being estopped from denying the 
 
 ment arises without a grant, cove- existence of the party wall easement, 
 
 nant or other writing, though it is justice requiring that the implied 
 
 an interest in lands. It does not agreement under which the wall was 
 
 arise by an implied term of a deed, erected by them be carried out. 
 
 as in the case of easements created Douglass v. Coonley, 156 N. Y. 521, 
 
 by implied grant, nor until twenty discussed further in note 8 under the 
 
 years of such user has elapsed can following section. 
 it arise by prescription. The ease- 
 
Paett Walls. 679 
 
 ecuted prior to the erection of a building on one of tlie 
 parcels, the owner of the other parcel promising to pay one- 
 half the cost of the wall (or such other proportion or fixed 
 amount as may be agreed upon), whenever he should build 
 on his lot and make use of the wall. This agreement runs 
 with the land so as to bind any subsequent purchaser of the 
 vacant lot who may thereafter build on it. After the owner 
 of the vacant parcel or any subsequent purchaser makes 
 use of the wall, his obligation under the party wall agree- 
 ment to pay therefor becomes a purely personal accrued 
 obligation which does not run with the land thereafter so 
 as to bind any later purchaser of the parcel. The right to 
 enforce such payment is personal in the man who erected 
 the wall, and does not pass with the parcel first built upon.* 
 Such party wall agreement may be limited to a definite 
 building being erected or about to be erected, or it may 
 apply to any building which either party may desire to erect 
 in the future, creating permanent mutual easements in favor 
 of and against each parcel, which could not be terminated 
 by the destruction of any building erected under the agree- 
 ment.^" 
 
 Statutes providing in one form or another that in cities 
 the owner of a lot in building thereon may erect a party 
 wall partly on his own land and partly on his neighbor's, 
 the neighbor to pay one-half of its cost on subsequently 
 making use of the wall, have been enacted in several states, 
 and have been sustained as within the police power.^ ^ It has 
 been held or urged, in well considered cases, that such legis- 
 
 9. Mott V. Oppenheimer, 135 N. Y. be known which will be entitled to 
 313; Sebald v. Mulholland, 155 N. Y payment from the other under the 
 455; Cole v. Hughes, 54 N. Y. 444; covenant, which, therefore, runs with 
 Scott V. McMillan, 76 N. Y. 144; the land until one of them builds. 
 Conduit V. Ross, 103 Ind. 166. Con- As to him the covenant is then per- 
 tra, Lincoln v. Burrage, 177 Mass. sonal, he and not his grantee having 
 378. See § 303, post. th^ sole right to enforce it whenever 
 
 10. Mott V. Oppenheimer, 135 K. the party wall is used by whoever 
 Y. 313. In such case until one or is the owner of the adjoining lot. 
 the other builds on his lot it cannot 11. Stim. Am. St. L., §§ 3170-S1T7. 
 
680 Easements and Pbofits. 
 
 lation is tinconstitutioiial, since it involves the taking of 
 private property for a private purpose, and is not a reason- 
 able exercise of the police power. ^* 
 
 § 293. Incidents of Party Wall Easements. — A party- 
 wall easement is not an encumbrance on either of the par- 
 cels involved. It exists for the common benefit of both 
 parcels, used or to be used to the advantage of each, and is 
 therefore no objection to a title.* Each parcel is benefited, 
 not merely in the saving of half the cost of the wall, but in 
 saving the additional space that an independent wall would 
 require. 
 
 Each owner may, therefore, carry the wall up to a greater 
 height whenever he desires to increase the height of his 
 building, and he may widen and strengthen the foundations 
 so much as may be necessary to carry the additional weight 
 of the enlarged wall, taking so much additional of his 
 neighbor's land as well as of his own as may be necessary 
 for the purpose.^ He may also extend the wall to the rear 
 in extending the building in that direction. If this were 
 not true party walls would be encumbrances rather than 
 benefits. Neither owner could improve his property by en- 
 larging his building, and each would be limited and re- 
 stricted in its use and enjoyment.* The owner who enlarges 
 
 12. Williams v. Jewett, 139 Mass. covenants against encumbrances, or 
 
 29; Trante v. White, 46 N. J. Eq. as an objection to the title under a 
 
 437, 440. contract of sale. O'Neill v. Van 
 
 1. Hendricks v. Stark, 37 N. Y. Tassel, 137 K. Y. 297; Corn v. Bass, 
 
 106; Brooks v. Curtis, 50 N. Y. 639; 43 App. Div. (N. Y.) 53; Savage v. 
 
 Everett v. Edwards, 149 Mass. 588; Mason, 3 Cush. (Mass.) 600. 
 Bertram v. Curtis, 31 Iowa 46. But 8. Everett v. Edwards, 149 Mass. 
 
 where the party wall agreement pro- 588; Matthews v. Dixey, 149 Mass. 
 
 vides for the rebuilding of the wall 595 ; Brooks v. Curtis, 50 N. Y. 639 ; 
 
 of the same height and thickness and Negus v. Becker, 143 N. Y. 303; Lu- 
 
 of the same material, binding both kens v. Lasker, 202 Pa. St. 327; An- 
 
 paroels to a perpetuation of the same drae v. Haseltine, 58 Wis. 395 ; Barry 
 
 wall, and in effect to the same or v. Edlavitch, 84 Md. 95; Field, v. 
 
 similar buildings, if it clearly an en- Leiter, 117 111. 341. 
 cumbrance within the meaning of 3. In Partridge v. Gilbert, 15 N. 
 
Incidents of Paety Wall Easements. 
 
 681 
 
 tlie wall in any way for his own benefit cannot compel the 
 adjoining owner to share in the cost, in the absence of ex- 
 press agreement to that effect. The neighbor becomes 
 owner of the part of the enlarged wall which is situated on 
 his land, and he can make use of it without incurring any 
 liability to contribute toward its cost.* To hold otherwise 
 would obviously make the party wall a burden and there- 
 fore an encumbrance, as each might be required to assume 
 a liability against his will and at the whim of the other. 
 Where the work of carrying up or enlarging the wall is done 
 with reasonable care and without wrong of any sort, no 
 liability arises for incidental damages resulting to the ad- 
 ;!oining owner.* 
 
 If the party wall becomes dilapidated, either owner may, 
 
 Y. 601, the old ruinous wall was torn 
 down and » new wall, Mgli«r and 
 with deeper foundations, was erected. 
 In Sohill V. Brokhahus, 80 N. Y. 614, 
 the old wall was torn down for the 
 purpose of erecting an entirely new 
 and different building by the defend- 
 ant. The court intimates that if a 
 new party wall had been erected, in- 
 stead of a wall entirely on the de- 
 fendant's premises, he would have 
 been within his rights. It is sub- 
 mitted that the extending of the wall 
 to the rear turns on exactly the same 
 principle as carrying the wall higher 
 up, widening it and strengthening 
 the foundations. The full enjoyment 
 of each lot requires that this right 
 exist, limited reasonably so that no 
 unreasonable damage be caused the 
 adjoining owner. See contra, as to 
 extending or carrying higher a party 
 wall, Watson v. Gray, 14 Ch. Div. 
 192, citing Cubitt v. Porter, 8 B. & 
 C. 365; Stedman v. Smith, 8 E. & B. 
 1. But see Standard Bank v. Stokes, 
 9 Ch. Div. 68, the court stating that 
 
 one owner of a party wall, where the 
 Metropolitan Building Act did not 
 apply, had a right to lower the foun- 
 dation so as to give him a subbase- 
 ment. 
 
 4. Walker v. Stetson, 163 Mass. 
 86. In Partridge v. Gilbert, 15 N. 
 Y. 601, in which case a dilapidated 
 wall was torn down and a new one 
 erected by one of the adjoining own- 
 ers, the court expressly refused to 
 pass on the question of whether or 
 not the plaintiff could be compelled 
 to contribute toward the expense of 
 the new wall, but intimated that this 
 could not be done. See, also, Sherred 
 V. Cisco, 4 Sandf. (N. Y.) 480. 
 
 5. Negus V. Becker, 143 N. Y. 303. 
 The dictum in Brooks v. Curtis, 50 
 N. Y. 639, that " the party making 
 the addition does it at his peril; and 
 if injury results he is liable for all 
 damages," must be regarded as over- 
 ruled by Negus v. Becker. See simi- 
 lar dictum in Schill v. Brokhahus, 
 80 N. Y. 614. 
 
tiSi^ Easements and Pbofits. 
 
 in repairing or rebuilding Ms structure, tear it down and re- 
 build it at his own expense, the other owner incurring no 
 obligation to contribute toward the cost,® and the same re- 
 sult would follow where the wall is so old as to require re- 
 building in connection with the rebuilding of either of the 
 houses. In either case no liability arises from incidental 
 damage resulting to the neighbor, the work having been 
 done with due care. But if the wall is torn down, not for 
 the purpose of rebuilding it, but with the purpose of build- 
 ing a new wall entirely on one of the lots, excluding the 
 owner of the adjoining lot entirely from its use, the owner 
 who so demolished it is liable to the other, the destruction 
 being wrongful.'' 
 
 If the buildings and the wall are destroyed by fire or storm 
 the party wall easement comes to an end unless it was 
 created by express grant as a permanent easement affecting 
 any and all buildings to be erected on the lots. Where it 
 arises by implication from the erection of the houses 
 and their ownership by different persons, it con- 
 tinues only so long as the buildings last and on their 
 destruction the easement ends. Therefore neither party 
 can rebuild the wall as before as a matter of right. 
 The situation will be exactly the same as it would 
 
 6. Sherred v. Cisco, 4 Sandf. (N exists between tenants in common. 
 Y.) 480; Partridge v. Gilbert, 15 See § 216, ante. Furthermore, they 
 N. Y. 601; Putzel v. Drover, etc. are not tenants in common, accord- 
 Banlc, 78 Md. 349. ing to the American cases. The true 
 
 7. Schill V. Brokhahus, 80 N. Y. rule would seem to be that each may 
 614 (dicta) ; Partridge v. Gilbert, 15 repair or rebuild the wall so long as 
 N. Y. 601. In Campbell v. Meiser, 4 it continues as a party wall, at his 
 Johns. Ch. (N. Y.) 334, the court own expense, or he may let it become 
 held that one party can compel tho so ruinous that it is no longer suf- 
 other to contribute toward necessary ficient to support either building, 
 repairs of a party wall, a doubtful and is practically no longer in ex- 
 holding which cannot be sustained on istence as a party wall, in which 
 principle. It depends on the doctrine case it may be removed and each 
 that the parties are tenants in com- owner may build as he pleases on his 
 mon of the wall. But, as heretofore own property, exactly as though tho 
 pointed out, the modern rule is that wall had been destroyed by fire. 
 
 BO right of contribution for repairs 
 
Ways. 
 
 683 
 
 be if no party wall had ever been erected on the property. 
 If actually rebuilt by one of them it will become a party 
 wall if adopted and used by the other as such. But the 
 other owner may treat it as a trespass and compel the re- 
 moval of so much of it as may have been placed on his 
 land.* It would seem to follow that where both buildings 
 become so ruinous as to be unsafe and incapable of repair, 
 so that their destruction and removal is required, the wall 
 may be removed and the easement ends, so that either party 
 may rebuild without reference to the party wall.® 
 
 No opening for doors, windows or the like can be left by 
 one of the parties in a party wall. The use of it as a partition 
 wall for the common use of both owners requires that it be 
 a solid wall without openings.^" 
 
 § 294. Ways. — A private right of way from one parcel 
 over another is a typical easement, governed by the rules 
 applicable to easements generally. Some of the incidents 
 
 8. Sherred v. Cisco, 4 Sandf. (N 
 y.) 480; Heartt v. Kruger, 121 N. 
 Y. 386; Automarchi's Ex'r v. Eua 
 sell, 63 Ala. 356. See Walker v. 
 Stetson, 162 Mass. 86; Huyck v, 
 Fleutye, 80 111. 258. 
 
 In Douglass v. Coonley, 156 N. Y. 
 521, after the destruction of the 
 buildings both parties rebuilt, using 
 a party wall as before. A stairway 
 bad been erected along side the origi- 
 nal party wall on one parcel and an 
 easement granted to the owner of the 
 other parcel to use it, it being the 
 only means of access to the upper 
 floors of both buildings. The court 
 held that the intention of the par- 
 ties, reasonably to be inferred from 
 the rebuilding of the old wall by 
 both, was to restore the easement of 
 access by way of the stairway as well 
 as the party wall easement, both be- 
 ing revived by rebuilding the party 
 
 wall as before. It would be, per- 
 haps, more accurate to say that tho 
 parties intended to create new ease- 
 ments exactly like the old, and a. 
 court of equity would give effect to 
 that intent, the party wall having 
 been erected at their joint expense 
 on that implied understanding. The 
 court said: "It certainly seema 
 but just under all the circumstances 
 that these expectations should be 
 realized, and hence it becomes the 
 duty of a court of equity to work out 
 that result, provided it can be done 
 within established equitable prin- 
 ciples." 
 
 9. Partridge v. Gilbert, 15 N. Y. 
 601. See, also, note 7, supra. 
 
 10. Traute v. White, 46 N. J. J5q. 
 437 ; Normille v. Gill, 159 Mass. 427 ; 
 Volliner's App., 61 Pa. St. 118; Sul- 
 livan V. GraflFort, 35 Iowa 531. 
 
634 
 
 Easements aitd Peofits. 
 
 wMcli attach to this kind of easement call for special con- 
 sideration. 
 
 A general right of way, not limited to any particular pur- 
 pose or purposes, gives to the owner of the dominant estate 
 the right to use the way for every purpose reasonably inci- 
 dent to the enjoyment of such estate.^ If the dominant es- 
 tate is a farm, at the time the right of way is created, used 
 only for farming, the way is not limited to use for agricul- 
 tural purposes. If the land is subdivided and sold to dif- 
 ferent persons, each erecting a house on his parcel, each 
 will have the right to use the way for every reasonable pur- 
 pose incident to the enjoyment of his parcel.* If a mine 
 is opened on the land the way may be used in the business 
 of mining. If a manufacturing plant or other business is 
 established on the dominant estate, the way may be used 
 for every reasonable purpose incident to such business.' 
 
 1. Newcomen v. Coulson, 5 Ch. Div. 
 133; Bakeman v. Talbot, 31 N. Y. 
 366 (dicta) ; Brill v. Brill, 108 N. Y. 
 51 (dicta). 
 
 "In Allan v. Gomme (11 A. & E. 
 759 ) , a more strict rule was laid 
 down than I should have been dis- 
 posed to adopt; for it was said that 
 the defendant was confined to the use 
 of the way to a place which should 
 be in the same predicament as it was 
 at the time of the making of the 
 deed. No doubt, if a right of way 
 be granted for tlie purpose of being 
 u&ed as a way to a cottage, and the 
 cottage is changed into a tan-yard, 
 the right of way ceases; but if there 
 is a general grant of all ways to a 
 cottage, the right is not lost by rea- 
 son of the cottage being altered." 
 Parke, B., in Henning v. Burnet, 8 
 Ex. 187, 193. 
 
 In Williams v. James, L. E., 3 
 Com. PI. 577, Bovill, C. J., said; 
 When a right of way to a piece of 
 
 land is proved, then that is, unless 
 something appears to the contrary, 
 a right of way for all purposes ac- 
 cording to the ordinary and reason- 
 able use to which that land might be 
 applied at the time of the supposed 
 giant." In the same case, Willes, J., 
 said : " I quite agree also with the 
 argument that the right of way can 
 only be used for the field in its or- 
 dinary use as a field. The right 
 could not be used for a manufactory 
 built upon the field." This dicta is 
 clearly opposed to the case of New- 
 comen v. Coulson, 5 Ch. Div. 133, 
 hereafter discussed, and Henning T. 
 Burnett, supra. That such rule is 
 contrary to public policy, and to the 
 evident intent of the parties, is clear, 
 since it would tend to prevent de- 
 velopment of the property affected. 
 
 2. Newcomen v. Coulson, 5 Ch. Div. 
 133; Myers v. Dunn, 49 Conn. 71, 77. 
 
 3. Abbott V. Butler, 59 N. H. 317; 
 Whittier v. Winkley, 63 N. H. 338; 
 
Wats. 685 
 
 But a way to one parcel of land cannot be used as a way to 
 another contiguous parcel which may belong to the owner 
 of the dominant estate, or which he may subsequently ac- 
 quire. Thus a way to a stated piece of land could not be 
 used for the purpose of removing produce grown on a par- 
 cel lying beyond it; though the court held that where such 
 produce was stored or stacked on the dominant estate, it 
 might subsequently be removed over the way, it appearing 
 that the produce from the further parcel was so stacked on 
 the dominant parcel in the honest and reasonable use of the 
 land to which the way was appurtenant.* 
 
 Where the way is expressly limited, it can be used only 
 for the limited purposes or in the limited ways provided 
 by the grant. Thus the grant of a way for persons on foot 
 would exclude its use for horses and carriages." A right of 
 way to a cottage for the uses of those occupying the cottage 
 as a residence would not include the right to use the way for 
 the purposes of a factory erected on the premises in place 
 of the cottage.^ In these cases the question is whether a 
 general right of way for all purposes was intended, or a 
 limited right of way restricted to stated purposes or uses. 
 In the absence of express restriction the grant creates a 
 
 Myers v. Dunn, 49 Conn. 71, 77; tie, etc. Ballard v. Dyson, 1 Taunt. 
 
 Holt V. Sargent, 15 Gray (Mass.) 97, 279. A grant of a way for agricul- 
 
 103; Sargent v. Hubbard, 102 Mass. tural purposes does not give the right 
 
 380. to cart coal over the way from a 
 
 4. Williams v. James, L. R. 2 Com. mine on the premises. Cowling v. 
 PI. 577; Davenport v. Lamson, 81 Higginson, 4 M. & W. 245, the court. 
 Pick. (Mass.) 73; Shroder v. Bren- in holding that the question was for 
 nemann, 23 Pa. St. 348. the jury whether the way had been 
 
 5. Kirkham v. Sharp, 1 Whart. used solely for agricultural purposes 
 (Pa.) 323. A right to cart timber or for all purposes, said: "If the 
 will not give a general right of way way is confined to a particular pur- 
 on foot and with horses, carriages pose the jury ought not to extend it; 
 and other conveyances. Hingham v. but if it is proved to have been used 
 Eabett, 5 Bing. N. C. 3. for a variety of purposes, then they 
 
 6. Henning v. Burnet, 8 Ex. 187, might be warranted in finding a way 
 192. A right of way for carriages for all." See Hart v. Chalker, 5 Conn. 
 does not include a drift-way for cat- 311; Parks y. Bishop, 120 Mass. 340. 
 
i586 Easements and Profits. 
 
 general right of way for all purposes. Whetlier the grant 
 contains restrictions or not is a question of constructioD 
 to be determined in each case as a question of fact. 
 
 A way of necessity is undoubtedly a general way for all 
 purposes. To limit it to the purposes to which the inner 
 parcel is devoted at the time of the sale giving rise to the 
 easement would be to restrict the owner of the inner parcel 
 in the development of his property, clearly contrary to the 
 reasonably presumed intent of the parties. Such a rule 
 would defeat in large measure the purpose of the law in 
 giving effect to ways of necessity.'^ 
 
 Ways by prescription, involving a user for twenty years 
 in their creation, present considerable difficulty in determ- 
 ining the extent of the easement. Where the user has been 
 for one distinct purpose, or for more than one, the user 
 having been exercised in a definite way, the easement of 
 way will be limited to the same purpose or purposes, and to 
 the same mode of enjoyment. But where the user has been 
 for miscellaneous purposes, the way having been used for 
 every purpose that had arisen, as occasion required, exactly 
 as a general right of way would have been used, a general 
 right of way arises from the adverse user for twenty years. 
 It is a question of fact to be determined in each case in 
 view of its special facts, whether the adverse user was gen- 
 eral, or limited in any way, and if limited, the character 
 and extent of the limitation.* 
 
 7. Whittier v. Winkley, 62 N. H. 245; Hart v. Chalker, 5 Conn. 311; 
 338, criticizing the case of Corp. of Parka v. Bishop, 120 Mass. 340; 
 London v. Riggs, L. R. 13 Ch. Div. Lewis v. N. Y. & Harlem R. Co., 40 
 798, 806 (in which the Master of the App. Div. (N. Y.) 343; Am. Bk. Note 
 Rolls held that the way of necessity Co. v. N. Y. Elev. R. Co., 129 N. Y. 
 should be limited to a use of the in- 252, 266; South Branch R. Co. v. Par- 
 ner parcel in such way as it was used ker, 41 N. J. Eq. 489 ; Kurtz v. Hoke, 
 at the time of the grant) ; Myers v. 172 Pa. St. 165. 
 
 Dunn, 49 Conn 71; Camp v. Whit- The user must be confined substan- 
 
 inan, 51 N. J. Eq. 467. tially to the same route for the en- 
 
 8. Ballard v. Dyson, 1 Taunt. 279; tire prescriptive period in order that 
 Cowling V. Higginson, 4 M. & W. a way may arise by prescription. If 
 
"Ways. 687 
 
 Tlie owner of the servient estate remains owner of the 
 land over which the way has been granted or acquired, sub- 
 ject only to a reasonable use of the way by the owner of 
 the dominant estate. He has the right, therefore, to the 
 grass or other product growing thereon on either side of the 
 space taken up by the actual roadway. He may drive over 
 the way himself in the cultivation and use of his land, pro- 
 vided he does not interfere with the dominant owner in the 
 enjoyment of his easement. If the way is a mere right to 
 pass back and forth to woodland to haul wood therefrom, 
 used only at long intervals, the servient tenant may use 
 the entire land for pasture or hay, fencing it in as suits his 
 convenience, making provision by barways or gates for the 
 dominant owner's passing through the fences. In such 
 case a formed road would not be required, and the dominant 
 owner would have no right to build one, nor would he have 
 the right to an open way, unimpeded by barways or gates 
 unless so expressly provided.® On the other hand, if the way 
 granted is an easement of way for all purposes, the domin- 
 ant owner having built a finished roadway as an approach 
 to his estate, the servient owner has no right to interfere 
 with its use by placing barways or gates across it, and 
 in using it he must not materially injure the road-bed or 
 obstruct passage. He may use it in a reasonable way, but 
 if he cuts the road-bed, forming ruts by crossing it with 
 heavy loads, or leaves stones on the road, the user is un- 
 
 no particular route was used by the the purposes of the reservation would 
 
 adverse claimant, he passing in dif- be confirmed." 
 
 ferent directions at different times, See Dyer v. Walker, 99 Wis. 404; 
 
 no easement arises. Hoyt v. Ken- Shivers v. Shivers, 33 N. J. Eq. 578, 
 
 nedy, 170 Mass. 54. 35 N. J. Eq. 563; Fankbiner v. Cor- 
 
 9. Bakeman v. Talbot, 31 N. Y. 366, der, 137 Ind. 164. 
 
 the court saying: "If the passage The right to cultivate the soil over 
 
 ■was made as convenient as the mode which the way exists is In the servi- 
 
 of access which a farmer usually pro- ent owner, subject to the easement, 
 
 rides for himself to get to and from Wells v. Tolman, 156 N. Y. 636. 
 hia woodland, it peems to me that 
 
688 Easements and Peofits. 
 
 reasonable, and lie may be enjoined therefrom.^* Between 
 these two extreme cases lie tbe many possible situations 
 arising out of differences in the nature of tbe way and its 
 use and differences in acts of user on the part of the servient 
 tenant. Whether or not there has been an unreasonable 
 interference with the easement will turn in each case on the 
 extent to which the way is used and the nature of such 
 user, as well as upon the nature of the alleged act of inter- 
 ference. On the one hand the right of way must be exercised 
 reasonably so as not to interfere unnecessarily with the 
 rights of ownership of the servient owner, and on the other 
 hand the servient owner must not interfere unreasonably 
 with the right of way. 
 
 The right of the dominant owner to build a roadway and 
 enclose the way by fences, maintaining it as an open way, 
 will depend on the nature and extent of the user. This 
 right ordinarily would exist in the case of any general way 
 of approach to a dwelling," while it would not exist in the 
 case above referred to of a way to a wood-lot used at long in- 
 tervals.^^ Maintenance of the way is imposed on the domin- 
 ant owner, and responsibility for its condition to third 
 parties rests on him rather than on the servient owner. ^* 
 If the way becomes impassable he is not given a license to 
 deviate on the adjoining land of the servient tenant in order 
 to pass the obstruction, contrary to the rule in case of an 
 
 10. Herman v. Roberta, 119 N. Y. make repairs is undoubted, not only 
 37. in easements of way, but in the case 
 
 11. Herman v. Roberts, 119 N. Y. of drains, water pipes and other ease- 
 37; Neweomen v. Coulson, 5 Ch. Div. ments involving the maintenance of 
 133. a permanent structure on the servient 
 
 12. Bakeman v. Talbot, 31 N. Y. estate. Nichols v. Chamberlain, Cro. 
 366. Jac. 121; Toothe v. Bryce, 50 N. J. 
 
 13. Herman v. Roberts, 119 N. Y. Eq. 589, 609; Ed.sett v. Douglas. 144 
 87; McMillan v. Cronin, 75 N. Y. 474. Pa. St. 95, 102; Fisk v. Wetmorc, 15 
 He owes no duty to the servient R. I. 354, 361: White v. Eagle, etc. 
 owner to repair the way, other than Hotel Co., 68 N. H. 38; Chronic v. 
 this duty which he owes to the pub- Pugh, 136 111. 539 i St. Anthony, etc. 
 lie generally. His right to enter and Co. v, Minneapolis, 41 Minn, 270, 274. 
 
Extinction of Easements, Sekvittides and Peofits. 689 
 
 obstruction of a public higbway. If he does so deviate he 
 is a trespasser. His proper course is to repair the way and 
 remove the obstruction.** It has been held, however, that 
 where the servient tenant causes the obstruction, the domin- 
 ant tenant may so deviate.^' 
 
 Building across an alley at a sufficient height from the 
 ground so as not to interfere with the use of the alley as a 
 way is not an interference with a right of way through the 
 alley; *' but where easements of light and air exist in the 
 alley together with the easement of way, it is obvious that 
 any building extending into the alley, and cutting off ligbt 
 and air would be a violation, not of the easement of way but 
 of the easements of light and air.*^ In most cases arising 
 between abutting owners on an alley- way, easements of light 
 and air giving mutual rights that the alley- way be left open, 
 will be found to exist. 
 
 § 295. Extinction of Easements, Servitudes and Profits. — 
 Incorporeal interests in the land of another may be released 
 by instrument in writing duly executed by the person giving 
 up the right and delivered to the person whose land is af- 
 fected. The general principles governing releases, as here- 
 after discussed, apply to releases of easements, servitudes 
 and profits a prendre. They must satisfy the Statute of 
 Frauds, and must comply with the law of the state in which 
 the property affected lies as to form of execution, recording, 
 etc. A mere parol surrender or release of an easement is 
 void under the Staute of Frauds. 
 
 14. Taylor v. Whitehead, 2 Doug. 309, but see Hamilton v. Wliite, 5 
 745; Williams v. Safford, 7 Barb. (N. N. Y. 9. 
 
 Y.) 309; Hamilton v. White, 5 N. Y. 16. Sutton v. Groll, 43 N. J. Eq; 
 
 9; Farnum v. Piatt, 8 Pick. (Mass.) 213; Grafton v. Moir, 130 N. Y. 465; 
 
 339; Kent v. Judkins, 53 Me. 160; Walker v. Pierce, 3S Vt. 94; Atkina 
 
 Rockland Water Co. v. Tillson, 75 Me. v. Bordman, 2 Met. (Mass.) 457; Ger- 
 
 170. rish v. Shattuck, 132 Mass. 235. 
 
 15. Selby v. Nettlefold, L. R. 9 Ch. 17. Atty. Gen. v. Williams, 140 
 111, cases in preceding note. Contra, Mass. 329, and cases in preceding 
 Williams v. SafFord, 7 Barb. (N. Y.) note. 
 
 44 
 
690 Easements and Pbofits. 
 
 An easement or other incorporeal property right is ex- 
 tinguished in any case in which the owner of the easement 
 80 deals with it or with the servient owner as to lead him as 
 a reasonable man to believe that the easement is given up 
 or abandoned, and to induce him, acting on such belief, to 
 incur expense or otherwise change his position in making 
 use of the servient estate in a way which would be incon- 
 sistent with the easement, so that the enforcement of the 
 easement would be an injury to him, and would be unjust 
 and inequitable because of the original position taken by 
 the owner of the easement. In these cases there is no formal 
 or conventional release or giving up of the easement. A 
 parol surrender, as such, is void under the statute. It is 
 because the owner of the easement is estopped from denying 
 the validity of his parol surrender or modification of the 
 easement, not the actual surrender of it, which brings it to 
 an end. The cases are divided into two classes, turning on 
 the same principle: (1) Easement terminated by the execu- 
 tion of a license given by the dominant owner to the servi- 
 ent owner permitting him to do something which would 
 otherwise be a violation of the easement, the servient owner 
 incurring expense or otherwise changing his position in ex- 
 ecuting the license so that its revocation would be an in- 
 justice to him, and (2) easements terminated by aband- 
 onment of their user, such apparent abandonment having 
 been acted on by the owner of the servient estate, so that a 
 subsequent enforcement of the easement would be an in- 
 justice to him. Each of these classes of cases will be sep- 
 arat^^y considered. 
 
 § 296. Extinction of Easements by Execution of Licenses. 
 
 — As stated above, the execution of a license by the servient 
 owner on the servient estate, by which the dominant owner 
 gave him permission to make some change or improvement 
 of a permanent character interfering with the easement, 
 extinguishes or modifies the easement to the extent neces- 
 
Extinction of Easements by Execution of LicaiNSBa. 691 
 
 sary to permit the maintenance of th.e servient estate in 
 the altered or improved condition resulting from the execu- 
 tion of the license.^ Thus where the dominant tenant had an 
 easement of light and air in an open area, his giving per- 
 mission to the owner of the area to cover it with a skylight, 
 followed by the placing of the skylight over the area before 
 revocation of the license to do so, gave to the owner of the 
 area the right to maintain the skylight in that position 
 thereafter. The executed license could not be revoked, since 
 it would be unreasonable and unjust to permit the recall of 
 the license after the servient owner had been led to incur ex- 
 pense in acting thereon.^ So where an upper riparian owner 
 was given permission by the owner of a mill lower down on 
 the same stream to cut down and lower the bank of the 
 stream so as to divert water therefrom, the natural right or 
 easement of the mill owner in the stream was modified to the 
 extent of the diversion caused by the lowering of the bank 
 pursuant to the license.^ So where an abutting owner on a 
 public street gave a consent or license to an elevated rail- 
 road company to erect an elevated railroad structure in 
 the street in front of his premises, his easement of light, air 
 and access in the street was so modified as to prevent the 
 recovery of any damages for the maintenance of the struc- 
 ture in the street after its erection pursuant to such con- 
 sent.* Such licenses, like any others not coupled with an 
 interest, may be revoked before anything has been done 
 under them and before the servient owner has changed his 
 position, so that the revocation leaves him in no worse 
 position than before. It is because he has acted under the 
 license, changing his position so that the revocation of the 
 license and the consequent reassertion of the easement 
 would be unjust, the dominant owner is estopped there- 
 from.^ 
 
 1. See § 313, c. post. 4. White v. Manhattan R. E. Co., 
 
 2. Winter v. Brockwell, 8 East 308. 139 N. Y. 19. 
 
 8. Liggins v. Inge, 7 rin™. 682. 5. See cases in last three notes, 
 
R92 
 
 Easements and Peofits. 
 
 A license to do sometMng on tlie land of tlie licensor can- 
 not operate to create a new easement or to enlarge an ex- 
 isting one, a grant in writing being necessary in such case 
 under the Statute of Frauds.' 
 
 § 297, Extinction df Easements by Abandonment. — 
 These cases turn on exactly the same principle as do those 
 discussed in the preceding section. The abandonment of the 
 easement does not in itself bring it to an end. It must ap- 
 pear, further, that the servient owner was induced by the 
 apparent abandonment to incur expense in altering or im- 
 proving the servient estate in a way inconsistent with the 
 easement so that the assertion of the easement thereafter 
 would cause him loss, and would be, therefore, unjust. 
 Having induced this change of position on the part of the 
 servient owner by apparently abandoning the easement, 
 the dominant owner is thereafter estopped from enforc- 
 ing it.'' 
 
 also Veght v. Earitan Water Power 
 Co., 19 N. J. Eq. 142, 154; Addison 
 V. Flack, 3 Gill (Md.) 321; Foot v. 
 New Haven, etc. Co., 23 Conn. 314, 
 223; Morse v. Copeland, 2 Gray 
 (Mass.) 303. 
 
 6. Fentiman v. Smith, 4 East 107; 
 Hewlins v. Shippam, 5 B. & C. 221. 
 229, 233; Morse v. Copeland, 2 Gray 
 (Mass.) 302; Veght v. Raritan Water 
 Power Co., 19 N. J. Eq. 142. 
 
 As to the necessity for a deed of 
 grant under the statute, and as to 
 easements arising in equity under a 
 parol agreement executed by the per- 
 son claiming the easement, see §§ 277, 
 278, ante. 
 
 7. In Moon v. Eawson, 3 B. & C. 
 832, the plaintiff had an easement of 
 light and air to the windows of an 
 ancient building over the defendant's 
 property. He demolished the old 
 
 building, erecting in its place a stable 
 with a blank wall on the defendant's 
 side. Fourteen years later defendant 
 erected a building next to the blank 
 wall, and thereafter the plaintiff 
 opened a window in the wall and sued 
 defendant for obstructing his lights. 
 The court, in holding that the build- 
 ing of the blank wall and leaving it 
 there for a considerable time was 
 prhna facie an abandonment, said: 
 " By building the blank wall, he may 
 have induced another person to be- 
 come the purchaser of the adjoining 
 ground for building purposes, and it 
 would be most unjust that he should 
 afterwards prevent such a person 
 from carrying these purposes into 
 effect." 
 
 In Cook V. Mayor of Bath, 18 L. T. 
 R. 123, 125. in commenting on Moon 
 V. Rawson, the court said: "But it 
 
Extinction of Easements by Abandonment. 693 
 
 Non-user is at most only evidence of abandonment. No 
 matter how long continued it is not abandonment as a mat- 
 ter of law.* The non-user must be under circumstances such 
 as would lead the average man to believe that the ease- 
 ment has been given up and abandoned in fact, and the 
 servient owner must have acted thereon, changing his posi- 
 tion so that a resumption of the user would be a hardship 
 to him. The language of some of the cases would indicate 
 that intentional abandonment as a matter of fact will end 
 the easement as soon as communicated to the servient owner, 
 whether he has acted thereon or not. It is believed, how- 
 ever, that in all or nearly all the cases worthy of attention 
 the servient owner had, in fact, so acted. It is difficult to 
 understand on what principle a mere abandonment, without 
 a basis for estoppel in favor of the servient owner, could 
 operate as an extinguishment of an easement or other in- 
 corporeal right in land. Personal rights are not affected by 
 abandonment. Their extinguishment requires a release, ac- 
 cord and satisfaction, novation, or other formal discharge. 
 Mere failure to assert them, and even a formal renouncing of 
 other legal rights, imsupported by any consideration, will 
 have no such result. The same is true of equitable rights of 
 beneficiaries in trust property. The courts have simply been 
 careless in these cases in working out and stating the funda- 
 
 ia clear that if there had been no N. Y. 367, the court, referring to 
 
 building erected before the expira- White v. Man. E. Co., 139 N. Y. 19, 
 
 tion of the seventeen years, the plain- and Snell v. Levitt, 110 N. Y. 595 (p. 
 
 tiflf might have resumed his windows 371), calls particular attention to the 
 
 and gained a new right of action." fact that in both cases the parties 
 
 In Day v. Walden, 46 Mich. 575, affected had acted on the agreement 
 
 583, Cooley, J., said: "The neglect to give up the easement. So, also, in 
 
 of the grantee to enjoy the easement Conaheer v. N. Y. Central R. Co., 156 
 
 would be no more significant in its N. Y. 474, 485. Though these cases 
 
 bearing upon his rights than the deal with licenses as extinguishing 
 
 neglect to enjoy the freehold to easements, the principle involved is 
 
 which the easement was appurten- the same, 
 
 ant." See, also, Dill v. Board of Edu- 8. Ward v. Ward, 7 Ex. 838; 
 
 cation, 47 N. J. Eq. 431, 428. White's Bank v. Nichols, 64 N. Y. 65, 
 
 In Foote v. Man. El. R. Co., 147 and cases in preceding note. 
 
tiai 
 
 Easements and Peofits. 
 
 mental principle on wMcli extinguishment of easements by 
 abandonment depends.^ 
 
 Easements acquired by twenty year prescriptive user do 
 not differ from other easements in the application of these 
 principles. The easement having come into existence as a 
 legal right, will continue until brought to an end in one of 
 the ways in which easements created in any other way may 
 be extinguished. Therefore twenty years' non-user will be 
 evidence of abandonment only, just as one year or ten years ' 
 non-user would be.^° In several cases it has been stated, 
 though not necessary to the decision in each case, that 
 since the easement arose from twenty years adverse user, it 
 will end on twenty years ' non-user, whether the intention to 
 abandon it, followed by action thereon by the servient 
 owner, are shown to exist or not. It is manifest that this is 
 a clear case of non sequitur, a logical fallacy hardly to be 
 expected from such important courts.^^ 
 
 9. See cases in note 7, supra. That 
 title to corporeal interests are un- 
 affected by abandonment unless an 
 estoppel exists, or unless there is ad- 
 verse possession for over twenty 
 years. See Washburn Real Property, 
 Vol. 3 (5th ed.), 72. 
 
 10. Pratt V. Sweetser, 68 Me. 344; 
 Veghte v. Karitan Water Power Co., 
 19 N. J. Eq. 143. 
 
 11. Owen V. Field, 102 Mass. 90, 
 114; Barnes v. Lloyd, 112 Mass. 324; 
 Smyles v. Hastings, 33 N. Y. 317, 
 323; Wiggins v. McCleary 49 N. Y. 
 346; Lindeman v. Lindsay, 69 Pa. St 
 93; Bombaugh v. Miller, 83 Pa. St. 
 203; Hazard v. Robinson, 3 Mason 
 873, 276. 
 
 The courts may have been led into 
 making these statments by treating 
 seriously the fiction of a lost grant 
 in connection with easements arising 
 by prescription, the argument being 
 
 that twenty years non-user would 
 overthrow such presumption, or would 
 establish presumptively a release of 
 the easement in due form. But it is 
 well settled that if any such presump- 
 tion exists, it is not subject to relnit- 
 tal. (See § 384, ante.) Furthermore, 
 this dicta in each case presupposes 
 the valid creation of the easement, 
 and abandonment by non-user there- 
 after. The argument that a release 
 will be presumed in such case goes too 
 far, as there would be equal ground 
 for implying a release from non-user 
 for twenty years of easements cre- 
 ated by grant, a proposition too ab- 
 surd for serious consideration. Since 
 it is now well settled that prescrip- 
 tion does not depend on the doctrine 
 of a lost grant, but arises from ana- 
 logy to the doctrine of adverse posses- 
 sion of land, these arguments fail 
 completely, and no reason can ba 
 
Extinction or Easements by Ai>veiise Obsteuotioh. 695 
 
 § 298. Extinction of Easements by Adverse Obstruction. 
 
 — If the servient owner obstructs the easement, preventing 
 its enjoyment for upwards of twenty years, it is brought 
 to an end by prescription. The obstruction must be an ac- 
 tionable wrong open and adverse, the servient owner ac- 
 quiring the right to maintain the obstruction permanently 
 as a result of the prescriptive enjoyment thereof for the 
 requisite period.' 
 
 § 299. Extinguishment by Union of the Dominant and 
 Servient Estates. — Where title in fee to the dominant and 
 servient estates become merged in one person, the ease- 
 ment comes to an end, because a man cannot have an ease- 
 ment in his own property.^ But where he has a fee estate in 
 
 given for distinguishing in this way 
 between easements arising by pre- 
 scription and those created by grant. 
 
 1. Dill V. Board of Education, 47 
 N. J. Eq. 441; Smyles v. Hastings, 
 23 N. Y. 317; Woodruff v. Paddock, 
 130 N. Y. 618; Chandler v. Jamaica 
 Pond, etc. Co., 135 Mass. 544; 
 Humphreys v. Blasingame, 104 Cal. 
 40. 
 
 Easements may also be extin- 
 guished by the destruction of a build- 
 ing or structure when they were 
 created to continue as incident to 
 such building or structure. Party 
 wall easements, as we have seen 
 (5 293, amte), end with the destruc- 
 tion by fire or the like, of the build- 
 ings involved, and easements of way 
 through a house to an upper floor, 
 will end for the same reason on the 
 destruction of the house. Shirley v. 
 Grahb, 138 Ind. 200. In any case if 
 the easement was created for all time 
 to apply to any houses thereafter 
 erected on the premises to take the 
 j^aee of the structure destroyed, the 
 
 easement will continue as a right, its 
 use being necessarily suspended until 
 the new building is erected. O'Neill 
 V. Van Tassel, 137 N. Y. 397. A party 
 wall easement, eavesdrip, or the like 
 is not ended by the tearing down and 
 rebuilding of the same structure, the 
 burden remaining the same. Harvey 
 V. Walters, L. E. 8 C. P. 163; Part- 
 ridge v. Gilbert, 15 N. Y. 601; Lewis 
 V. N. Y. & Har. E. R., 163 N. Y. 303 
 (the court saying (p. 338) : " More- 
 over the removal of one railroad 
 structure, followed immediately by 
 the erection of another in the same 
 place and for the same purpose, is no 
 evidence of an intent to abandon the 
 prescriptive right to have a railroad 
 structure in the street. If the new 
 structure had not been a greater bur- 
 den than the old the plaintiff would 
 have been entitled to no relief what- 
 ever." See, also, City Nat. Bk. v. Van 
 Meter, 59 K. J. Eq. 32. 
 
 3. Nicholas v. Chamberlain, Cro. Jac 
 121; Parsons v. Johnson, 68 N. Y. 
 62. 
 
696 Easements and Peofits. 
 
 one parcel and only a life estate or term of years in the 
 other the easement is suspended in its enjoyment only dur- 
 ing the continuance of the particular estate, reviving a^ 
 before as soon as such estate comes to an end.^ If it turns 
 out that title to one of the estates proves defective, his ease- 
 ment therein in favor of the other remains unaffected upon 
 his losing the servient estate, though he believed he was 
 acquiring it in fee.* So where he acquires an interest as ten- 
 ant in common in one estate while he holds the other in fee, 
 the easement continues.^ The easement, therefore is ex- 
 tinguished by ownership of both estates only where such 
 ownership is in severalty and in fee. 
 
 When the easement is so extinguished by unity of 
 ownership, it is never revived by a separation of the 
 ownership of the two estates at a later time. A new ease- 
 ment may then arise either by express grant or reservation, 
 implied grant or reservation, or by natural right, as the case 
 may be, of exactly the same nature and extent as before, 
 and subject to the rules governing the creation of ease- 
 ments as discused in preceding sections.' 
 
 3. Thomas v. Thomas, 2 C. M. & R. tion of easements by grant, implied 
 34; Rltger v. Parker, 8 Cush. (Mass.) grant, etc. 
 
 145; Dority v. Dunning, 78 Me. 3S1; In Douglas v. Coonley, 156 N. Y. 
 
 White's Bank v. Nichols, 64 N. Y. 65. 521, after the destruction of a party 
 
 4. Tyler v. Hammond, 11 Pick, wall and the buildings involTed by 
 (Mass.) 193. fire, the rebuilding of buildings with 
 
 5. Atlanta Mills v. Mason, 120 the wall, created new party wall ease- 
 Mass. S44; Bradley Fish Co. v. Dud- ments of exactly the same nature as 
 ley, 37 Conn. 136. existed before. The court's reference 
 
 G. Fritz V. Tompkins, 168 N. Y. to such easements as being revived 
 
 534; Miller v. Lapham, 44 Vt. 416; in such cases means no moTe than 
 
 McCarty v. Kitchenman, 47 Pa. St. this. 
 839. See §§ 281-284, ante, as to crea- 
 
Natuee and Kinds. 
 
 697 
 
 CHAPTER XVnL 
 
 Covenants Running with the Land. 
 
 § 300. Nature and Kinds. — Covenants which " run with 
 the land ' ' affect the title of the real property to which they 
 relate because they are binding upon the succeeding owners 
 of such property, whether grantees, devisees or heirs. Much 
 of the difficulty and apparent confusion which exist in the 
 cases on this topic may be avoided by seeking out and ap- 
 plying in each case the fundamental principles on which 
 these covenants depend. The fundamental difference be- 
 tween them and ordinary personal contracts is that they 
 run with the land in this way, binding all persons who sub- 
 sequently become owners of the property by conveyance, 
 devise or descent from the original covenantor, though 
 such persons are not parties to the covenant, and in fact 
 have personally made no promise.^ Why do they run with 
 
 1. There is no doubt that a coven- 
 ant between landlord and tenant 
 affecting the tenure between the par- 
 ties always " ran with the land " at 
 common law so as to be enforceable 
 by and against assignees of the term. 
 The statute, 33 Henry VIII, eh. 34, 
 provides that such covenants shall 
 also run with the reversion so that 
 a third person to whom the reversion 
 may come as grantee, devisee or heir, 
 can sue or be sued thereon. On prin- 
 ciple there can be no question that 
 this was true irrespective of the stat- 
 ute, the transfer of the tenure or re- 
 lationship of landlord and tenant to 
 the assignee of the lease and the 
 grantee of the reversion carrying with 
 it the right of either party to enforce 
 covenants constituting terms of that 
 relationship, and there is authority 
 for this. VCilliams Real Prop. (17th 
 
 ed.), 568; Vyvyan v. Arthur, 1 B. & 
 C. 410, 414. On the other hand it has 
 been heldirthat as the statute applies 
 to leases under seal only, an agree- 
 ment to repair made by a tenant in 
 a parol lease could not be enforced by 
 a grantee of the reversion. Standen 
 V. Chrismas, 10 Q. B. 135. See 2 
 Gray^s Gas. Prop. 318, note. Under 
 the modern cases there can be no 
 doubt that covenants or agreements 
 in leases running with the land in 
 favor of or against assignees of the 
 term are also enforceable in favor of 
 or against assignees of the reversion. 
 It is the transfer of the relationship 
 or tenure existing between the land- 
 lord and tenant to the new parties 
 that renders these covenants enforce- 
 able between them, they being terms 
 or conditions thereof, not a mystical 
 runnin^g with the land as such. 
 
698 Covenants Running With the Land. 
 
 the land so as to bind the succeeding owners! The answer 
 to this question ought to and does determine their nature 
 and their limitations as well. They run with the land be- 
 cause they express either the terms and limitations of an 
 estate held by one of the parties from the other in the same 
 parcel, as when made betwen landlord and tenant or be- 
 tween life tenant and reversioner or remainderman, or the 
 terms under which an easement or other incorporeal right 
 shall be enjoyed, when made between the owners of the 
 dominant and the servient estates. They run with the ten- 
 ancy for years no matter how often it may be assigned be- 
 cause they constitute part and parcel of the tenancy, defin- 
 ing and limiting the terms under which it shall be held and 
 enjoyed. Each succeeding assignee takes the estate of hia 
 assignor, limited and modified by these express provisions 
 or limitations. If the landlord conveys the fee in reversion 
 or remainder, subject to the term, the new landlord neces- 
 sarily takes title subject to these covenants which define, 
 limit and express the terms of the tenure under which the 
 tenant holds.'* The question arises most frequently between 
 
 8. In Spencer's case, 5 Co. 16a, the ing while the title was held by him 
 court said; * • * "If the lessee because of privity of estate; but he 
 covenants to repair the houses de- would not be liable for those pre- 
 mised to him during the term, that viously broken, or subsequently ma- 
 ts parcel of the contract, and extends turing, because of the absence of any 
 to the support of the thing demised, contract relations with the lessor. 
 
 • • * and shall bind the ,assig- While he holds the estate and enjoys 
 nee," • • * etc. its benefits, he bears its burdens, but 
 
 In Washington Natural Gas Co. v. he lays down both the estate and its 
 Johnson, 123 Pa. St. 576, 591, the burdens by an assignment, even 
 court said: "Acquiring the leasehold though, as is said in some of the 
 estate by an assignment of the lease cases, his assignment be to a beggar." 
 he is fixed with notice of its coven- In Vernon v. Smith, 5 B. & Aid. 1, 
 ants, and he takes the estate of his Bayley, J., said; "The rule is, that 
 assignor cum onere. But as his lia- if the covenant respect the thing de- 
 bility grows out of privity of estate, mised, and he coeootensive inith the 
 it ceases when the privity ceases, estate of the person to whom it is 
 
 • * • Each successive assignee made, and be made with him and his 
 would be liable for covenants matur- assigns, it passes to his assignee.'' 
 
Nature and Kinds. 699 
 
 landlord and tenant, and the cases involving such covenants 
 in leases are discussed in the chapter on Landlord and Ten- 
 ant.^ Similar covenants limiting and defining the way in 
 which a life tenant shall hold and enjoy his estate, and de- 
 termining the relationship between him and the remainder- 
 man run with the land, so as to bind the successive owners 
 of either interest, in the same way and for the same reasons.* 
 
 Covenants between adjoining owners limiting and defin- 
 ing the use of easements, the maintenance and repair of 
 dams, ways, pipes, drains, and the like, the making of im- 
 provements in connection therewith, and compensation 
 therefor from one to the other, necessarily run with the two 
 estates involved, because they are terms of the easement or 
 servitude affecting the two estates. Cases illustrative of 
 covenants of this nature are discussed hereafter." 
 
 Many so called covenants run with the land because they 
 create easements, which, of course, continue to be binding 
 between the succeeding owners of the dominant and servient 
 estates, no matter how often either estate is transferred, 
 either by deed, devise or inheritance.' 
 
 In equity if a grantee has taken title to property under 
 an agreement, whether in the form of a covenant or merely 
 by parol, to do or to refrain from doing something affecting 
 the use and enjoyment of the property, and which consti- 
 
 See discussion of the requirement bind the interests of each, not to 
 
 of privity of estate between the par- create a merely personal obligation, 
 
 ties to a covenant running with the Thompson v. Hakewill, 19 C. B. (N. 
 
 land in § 301, post. S.) 713; Coleman v. Coleman, 19 Pa. 
 
 3. See §§ 176, 177, ante. 100, cited in Horn v. Miller, 136 Pa. 
 
 4. Undoubtedly covenants between St. 640; Denman v. Prince, 40 Barb, 
 tenants in common or joint tenants, (N. Y.) 213 (covenant between co- 
 made for the purpose of permanently owners of a mill privilege as to repair 
 providing for the use and enjoyment of dam and use of water by each ) ; 
 of the property by each of them, Taylor v. Baldwin, 10 Barb. (N. Y.) 
 runs with the land so as to bind all 58. 
 
 subsequent purchasers of the interest 5. See § 302, post. 
 
 of any cotenant, if made and recorded G. See § 878, note 10, ante, and | 
 
 ia due form, disclosing an intent to 304, note 6, post. 
 
700 CovErrATTTs Etiniting With the Land. 
 
 tuted part of the consideration for the conveyance, if it is 
 a contract whicli equity would specifically enforce as be- 
 tween the original parties it will also enforce it as against 
 any subsequent purchaser taking with notice of the cove- 
 nant or agreement. These cases belong to the law of specific 
 performance of contracts in equity. The purchaser taking 
 with notice ought in good faith and fair dealing to be com- 
 pelled to abide by the covenant affecting the land in such 
 case, whether it is one which runs with the land at law or 
 not.'' The subject is divided, therefore, into (a) covenants 
 running with the land at law, and (b) covenants enforce- 
 able in equity as against subsequent purchasers with notice,, 
 whether they run with the land at law or not, each of which 
 will be separately considered. 
 
 § 301. Covenants Running with the Land at Law; Land- 
 lord and Tenant. — A covenant between landlord and tenant 
 which is purely personal, in no way limiting or defining the 
 tenancy or the terms thereof, is binding like any other con- 
 tract only upon the original parties and their personal rep- 
 resentatives, subject to the law of assignment of contracts,, 
 but in no way ruiming with the land.^ But a covenant 
 
 7. See § 304, post. In Bally v. Wells, 3 Wils. 35, the 
 1. Covenants relating to personalty court said: "But if they in no man- 
 leased in connection with realty are ner touch or concern the thing de- 
 personal and do not run with the mised, as to build a house on otliei 
 land. Spencer's case, par. 3, 5 Co. land, or to pay a collateral sum to 
 16a. A covenant not to employ eer- the lessor (not rent or in the nature 
 tain persons in the leasehold prem- of rent) the assignee, though named, 
 Ises unless legally settled in that is not bound by such covenants." 
 pariah, was personal only, the cm- • • • 
 
 ployment of such persons having In Dolph v. White, 18 N. Y. 396, a 
 nothing to do with the land, except promise by one joint maker of a note 
 in a remote way through possible to the other to pay it in eonsidera- 
 effect on the poor rates. Congleton v. tion of a lease, and recited therein, 
 Pattiaon, 10 East 130. Covenant to did not bind his assignee, being a col- 
 pay taxes on other premises is per- lateral promise to pay a sum of 
 Bonal only. Gower t. Fostmaeter money to a third person, in bo sense 
 Gen., 57 L. T. R. 527. rent or in the nature of rent. 
 
Landloed and Tenant. 
 
 701 
 
 fixing the terms of tlie tenancy, as a covenant to pay rent, 
 ■or to render any seiT^ice in the nature of rent,^ or a covenant 
 xestricting the tenant in the use of the property,* or a cove- 
 nant to repair on the part of either,* or to keep the prem- 
 ises insured for the benefit of the other,^ or not to assign or 
 io sublet,* or a covenant to renew the lease on terms stated,'^ 
 
 2. Bedford v. Terhune, 30 N. Y. 
 463; Sanders v. Partridge, 108 MaisB. 
 556; Baldwin v. Walker, 21 Conn. 
 168; Fennel v. Guffey, 139 Pa. St. 
 341; Webster v. Nichols, 104 111. 160; 
 Salisbury v. Shirley, 66 Cal. 223. See 
 § 176, note 6, ante. 
 
 In Vyvyan v. Arthur, 1 B. & C. 410, 
 11 covenant by the tenant to have his 
 corn grown on the leased premises, 
 ground at the landlord's mill was held 
 to run with the land so as to bind 
 ihe successor of the original tenant 
 for a breach committed by such suc- 
 cessor. The provision requiring the 
 -use of the landlord's mill for grinding 
 purposes was in the nature of rent, 
 which passed with the revisicn. 
 
 A covenant to pay taxes or assess- 
 ments runs with the land so as to 
 bind the assignee. Post v. Kearney, 
 2 N. Y. 394; Salisbury v. Shirley, 66 
 •Cal. 233. 
 
 3. Wertheimer v. Hosmer, 83 Mich. 
 56; Crowe v. Riley, 63 Oh. St. 1; 
 •Granite Bid. Corp. v. Greene, 25 R. I. 
 586; Bradford Oil Co. v. Blair, 113 
 Pa. St. 83. 
 
 4. Spencer's case, 5 Co. 16a; Trog- 
 nam v. Piekard, 2 B. & Aid. 105; 
 Minshull v. Oakes, 2 H. & N. 793; 
 Myers v. Burns, 33 Barb. (N. Y.) 
 401; Lehmaier v. Jones, 100 App. 
 Div. (N. Y.) 495; Silberherg v. 
 Trachtenberg, 58 Misc. (N. Y.) 536; 
 Gordon v. George, 12 Ind. 408; Peck 
 V. Cliristman, 94 111. App. 435. 
 
 5. Vpmon v. Smith, 5 B. & Aid. 1; 
 
 Masury v. Southworth, 9 Oh. St. 340; 
 Thomas v. Vonkapflf, 6 Gill & J. (Md.) 
 381, it appearing in these cases that 
 the insurance money was to be used 
 to rebuild. In Reid v. McCrura, 91 
 N. Y. 412, the court held that a cov- 
 enant by a mortgagor to keep the 
 premises insured for the benefit of 
 the mortgagee did not run with tlie 
 land so as to bind a subsequent 
 grantee, being a merely personal cov- 
 enant. 
 
 6. Williams v. Earle, L. E. 3 Q. B. 
 739; Hersey Est. v. Steiger, 2 Q. B. 
 79. It hag been asserted that the 
 lease must provide that neither the 
 tenant nor his assigns shall assign, 
 etc., otherwise the covenant is per- 
 sonal to the tenant, not binding en 
 his assignee. The restriction of the 
 right to assign the lease during the 
 term is certainly one of the terms of 
 the tenure between the tenant and his 
 landlord, and it is difficult to see why 
 it should not be held binding on as- 
 signs whether they are referred to or 
 not in express terms. Cases holding 
 that a consent to assign in cases 
 where assignees are not named in the 
 restriction, removes it altogether, are 
 based on this construction, that as- 
 signees are not bound unless named. 
 See § 230, €mte, under rule in Dura- 
 por's case. See 1 Smith's Lead. Case. 
 (11th ed.), at p. 73, notes to Spen- 
 cer's case. 
 
 7. Simpson v. Clayton, 4 Bing. N. 
 C. 758; Wilkinson v. Pettit, 47 Barb 
 
T02 Covenants Running With the Land. 
 
 all run with tlie land, binding either party on the transfer 
 of his interest, because they are terms of the lease, part of 
 the interest, or limitations upon the interest, transferred, 
 constituting terms of the tenure or relationship existing be- 
 tween the landlord and tenant, and transferred to the new 
 landlord or the new tenant, by conveyance or assignment, 
 as the case may be. 
 
 In Spencer 's case * it was held that a covenant by a ten- 
 ant to build a brick wall on the leased premises did not run 
 with the land, the wall not being in existence, and there- 
 fore not part of the land, when the covenant was made, but 
 that it would have been binding upon the assignee if ex- 
 pressly made binding upon the assigns of the tenant. The 
 rule is there stated that a covenant relating to something 
 not in esse does not run with the land, unless the tenant's 
 assigns are expressly named, since the covenant cannot 
 attach to that which is not in existence. 
 
 It is submitted that this distinction is without merit and 
 it has been sharply questioned or repudiated in some of the 
 later cases. A covenant to keep in repair buildings there- 
 after to be erected runs with the land, though relating to 
 something not in esse at the time the covenant was made.* 
 
 (N. Y.) 230; Leomister Gaslight Co. In Peters v. Stone, 193 Mass. 179, 
 
 V. Hillary, 197 Mass. 267; Blackmore a covenant by the tenant to make im- 
 
 V. Boardman, 28 Mo. 430; Leppla v. provements to the value of $1,000 
 
 Mackey, 31 Minn. 75; Leiter v. Pike, and to leave them on the premises at 
 
 137 m. 287. the end of the term was held to bind 
 
 8. 5 Co. 16a. assigns, though " assigns " were not 
 
 9. Minshull v. Oakes, 2 H. & N. 793. mentioned, it being one of the terms 
 In referring to Spencer's case, the of the letting, intended clearly to add 
 court said : " No reason is given for to the value of the land. In Freder- 
 the alleged difference between where ick v. Callahan, 40 Iowa 311; Ecke t. 
 the assignee is and is not named; on Fitzer, 65 Wis. 55; Bailie v. Rodway, 
 the contrary the reason given for 27 Wis. 172, covenants by the land- 
 binding in any case an assignee not lord to pay for improvements to be 
 named, viz., tliat he takes the benefit erected by the tenant were held to 
 and burden, seems equally to apply to run with the land, though assigns 
 e\ery such ease." See Smith's Lead. were not named. lu Masury v. 
 Cas. (ICth ed.), 66-69. Southwortli, 9 Oh. St. 340. a cove- 
 
Lai^dlosd and Tbnaht. 703 
 
 The use of the word " assigns " can make no possible differ- 
 ence. A covenant to erect a wall or a new building on the 
 part of the tenant, the tenant having the entire term in 
 which to perform, ought to bind his assignee, it being one 
 of the express terms under which the land is held, a burden 
 attaching to the term which the assignee must accept with 
 the benefits. There is no good reason for distinguishing 
 between such a covenant and a covenant to pay rent, to pay- 
 taxes, to grind all his corn at the landlord's mill, and other 
 covenants expressing the terms under which the tenant 
 holds the land of the landlord.*" 
 
 A covenant by the landlord to pay for improvements 
 erected by the tenant at a valuation to be arrived at at the 
 end of the term runs with the land so as to be enforceable 
 by the assignee in recovering for improvements erected by 
 himself, but he cannot recover for improvements erected 
 by his assignor, the original tenant. When the original 
 tenant made improvements his right" to receive their value 
 on appraisal at the end of the term becomes a personal right 
 to a contingent sum of money, having no connection with 
 the land or the tenure existing between the landlord and 
 tenant, and for that reason the right to collect that amount 
 would not pass to the assignee of the term, unless expressly 
 
 nant by the tenant to keep the build- Watson, 18 111. App. 386, aflf'd 119 
 ings insured and to rebuild with in- III. 312; Bailey v. Richardson, 66 
 Burance money, was held to run with Cal. 416; Hartung v. Witte, 59 Wis. 
 the land, that being the obvious in- 285 [contra to Wisconsin cases above 
 tent, though " assigns " were not re- cited ) ; Gulf, etc. E. Co. v. Smith, 73 
 ferred to. The true principle is Tex. 133. The rule is further sup- 
 stated in this case that the word " as- ported by dicta in several cases, viz.: 
 signs " is of value only as showing Thompson v. Rose, 8 Cow. (N. Y.) 
 Intent that they should be bound; S66; Conover v. Smith, 17 N. J. Eq. 
 but when that intent is sufficiently 57; Brewer v. Marshall, 18 N. J. Eq. 
 ghown by other language or by the 337; Tallman v. Coffin, 4 N. Y. 134; 
 nature of the covenant, assigns will Coffin v. Tallman, 8 N. Y. 465; 
 bo bound as though named. On the Douglaston Realty Co. v. Hess, 124 
 other hand the rule laid down in App. Div. (N. Y.) 508. 
 Spencer's case is followed in Hansen 10. See preceding note. 
 w. Meyer, 81 111. 321; Gardner v. 
 
704 OoTENANTS Running With the Land. 
 
 assigned to Mm like any other personal cliose in action." 
 
 A covenant by the landlord not to engage in business of 
 the kind to be carried on by the tenant within a stated dis- 
 tance from the leased premises has been held not to be 
 enforceable by the assignee of the tenant because it does 
 not touch or concern the land directly, but only its beneficial 
 enjoyment.^^ Speaking about a covenant to keep the build- 
 ings insured for the benefit of the landlord, the court said 
 in Vernon v. Smith (5 B. & Aid. 1): " It is a covenant 
 beneficial to the owner of the estate, and to no one but the 
 owner of the estate ; and therefore may be said to be benefi- 
 cial to the estate, and so directly within the principle on 
 which covenants are made to run with the land." In the 
 case above referred to, the covenant not to engage in a com- 
 peting business during the life of the lease is beneficial to 
 the estate of the tenant. Compensation therefore is included 
 in the rent. If the original tenant after assigning his term 
 could still enforce the covenant, it would be undoubtedly 
 personal, and the decision referred to would be sound. But 
 the covenant is made for the benefit of the leasehold estate, 
 
 11. Thompson v. Rose, 8 Cow. (N. han, 40 Iowa 311; Ecke v. Fitzer, 65 
 Y.) 266, was correctly decided as the Wis. 55; Bailie v. Rodway, 27 Wis. 
 assignment . of the lease was mado 172, and the same principle was in- 
 afier the improvements were erected, volved in Peters v. Stone, 193 Mass. 
 the assignee acquiring no right to re- 179. See cases under party wall cov- 
 cover for them, but the court was enanta, § 303, note 3, post. 
 wrong on principle in stating that 12. Thomas v. Hayward, L. R., 4 
 the covenant could not run with the Ex. 311. In Norman v. Wells, 17 
 land in any event because the word Wend. (N. Y.) 136, it was held that 
 " assigns " had not been used. In the covenant made by the landlord in 
 Hansen v. Meyer, 81 111 331, Gard- a lease of a mill site not to erect 
 ner v. Watson, 18 111. App. 386, aff'd another mill on the same stream ran 
 119 111. 313, and Bailey v. Richard- with the land so as to be enforceable 
 son, 66 Cal. 416, it was held .that the by an assignee of the term. 
 word " assigns " was necessary to See discussion of this question and 
 make the covenant run with the land, of the cases involved where the cove- 
 That this covenant will run with the nant is made by a grantor or grantee 
 land though the word "assigns" is not in fee, § 304, post, notes 17 and 18. 
 «!»».•?. was held in Frederick v. Calla- 
 
Landlord and Tenant. T05 
 
 not of the tenant personally, and could not be enforced at 
 all unless enforceable by the assignee of the term. It con- 
 stitutes one of tbe terms of the letting, of the tenure between 
 tbe tenant and Ms successors on tbe one hand, and the land- 
 lord on the other. It would seem, therefore, that covenants 
 of this kind are not collateral, but should be held enforce- 
 able by assignees. 
 
 A covenant or contract by a third person guaranteeing 
 payment of the rent, is a collateral contract which does not 
 run with the land so as to be enforceable as such by an heir 
 or grantee of the landlord. The surety is not a partj' to the 
 lease, and his contract does not in any way affect the estate 
 of the tenant or the tenure existing between him and his 
 landlord.^ ^ It has been held, however, that such guaranty 
 passes with the right of action to recover the rent as an 
 incident thereof, so that the successor in interest of the land- 
 lord, as his heir, devisee or grantee, may hold the guarantor, 
 not because the contract of guaranty runs with the land, 
 but because it runs with the right to collect the rent, which, 
 of course, passes with the reversion to the successor in in- 
 terest of the landlord." 
 
 The incidents arising between landlord and tenant in the 
 enforcement of covenants running with the land, including 
 the personal liability of the original parties to the covenant 
 
 13. Walsh V. Packard, 16a Mass. who could sue thereon in the land- 
 189. It is stated in tliia case that lord's name. Under the Code, per- 
 the personal representative of the de- mitting assignees of choses in action 
 ceased landlord, on recovering from to sue in their own names, the gran- 
 tiie guarantor, must account for thi> tee may sue the guarantor in his own 
 amount recovered as trustee to the name without using the name of the 
 heirs, the real parties in interest who grantor. Holm v. Glaus Lipsins 
 alone are injured by failure to pay Brew. Co., 21 App. Div. (N. Y.) 204 
 the rent. In Allen v. Culver, 3 Denio (N. Y. ) 
 
 14. In Harbeck v. Slyvester, 13 Wend. 284, the same position, in effect, was 
 (N. Y.) 608, 609, the court regarded taken, though the court speaks of 
 the right to hold the guarantor of the guaranty as running with the 
 rent as passing by implied assign- land. 
 
 ment to the grantee of the landlord, 
 
 45 
 
?06 Covenants Running With the Land. 
 
 throughout, the liability of the assignee for breaches com- 
 mitted by him before reassigning the term, and his freedom 
 from liability for breaches thereafter committed, are dis- 
 cussed in detail under the chapter on Landlord and Tenant.*' 
 
 § 302. Covenants Affecting Easements and Servitudes. — 
 When the owners of the dominant and servient estates, 
 either in the same instrument creating the easement or at 
 any time after its creation, execute covenants relating to 
 the easement, defining or limiting the nature and extent of 
 the user thereunder, providing for the repair of the road- 
 way, dam, pipes, or other structure used in the enjoyment 
 thereof, or in any other -w ay limiting and defining the ease- 
 ment and the mutual rights and liabilities of the parties 
 thereunder, the covenant or covenants so executed run with 
 the land so as to be enforceable by any subsequent owner 
 of the dominant estate as against any subsequent owner of 
 the servient estate. They constitute terms of the easement, 
 and they " run with the land," simply because the ease- 
 ment affected runs with the land, binding the servient estate 
 for the benefit of the dominant estate no matter how fre- 
 quently title to the two estates may be transferred.^ 
 
 15. See |§ 176, 177, ante, under in same stream providing for use 
 
 Landlord and Tenant, Covenants in thereof, repairs of dam, etc., run 
 
 Leases. with the land) ; Burbank v. Pills- 
 
 i. Morse v. Aldrioh, 19 Pick, bury, 48 N. H. 475; Hazlett v. Sin- 
 (Mass.) 449 (covenant modifyins; clair, 76 Ind. 488; Midland R. Ca 
 and defining user of easement in a v. Fislier, 1S5 Ind. 19 ; Lake Erie, etc 
 pond, entered into some time after R. Co. v. Priest, 131 Ind. 413; Bron- 
 the easement was created) ; Fitch v. son v. Coffin, 108 MasB. 175; Dorsey 
 Johnson, 104 111. Ill; Batavia Mfg. v. St. Louis, etc. R. Co., 68 111. 65; 
 Co. V. Newton Water Co., 91 111. 230; Huston v. Cincinnati, etc R. Co., 21 
 Sterling Hydraulic Co. v. Williama, Oh. St. 236 (in last eight cases cove- 
 66 111. 393; Nye v. Hoyle, 120 N. Y. nants to build and maintain line 
 195; Denman v. Prince, 40 Barb. (N. fences made by grantor or grantee 
 y.) 213; Horn v. Miller, 136 Pa. St. were held to run with the land cre- 
 640; Weil V. Baldwin, 64 Cal. 476 ating easements and defining terms 
 (last six cases holding that covenants thereof, the grantee retaining ad- 
 made between owners of water rights joining land). Peden v. Chicago, 
 
Covenants Apfectinq Easements and Seevitxtdes. 707 
 
 There must be, as stated by the courts, " privity of es- 
 tate " between the parties in order that the covenant run 
 with the land, and the covenant must relate to the interest 
 in connection with which the privity exists. Much of the 
 confusion in the cases arises from the use of the term 
 " privity of estate," the sense in which it is used not 
 being at all clearly expressed, and probably not always 
 clearly formulated in the minds of the judges. The term 
 evidently means a connection or relationship between the 
 parties with reference to the estate. As between landlord 
 and tenant and between life tenant and reversioner or re- 
 mainderman the privity clearly arises out of the tenure 
 existing between them, which, as we have seen, was not 
 affected in these cases by the statute Quia Emptores? But 
 where the parties are owners in fee of adjoining property 
 with an easement existing in favor of one estate against the 
 other, the " privity " between them arises solely from the 
 fact that they are mutually interested in the easement. 
 There is no reason why they should not be able to modify 
 or restrict the enjoyment of the easement by covenants be- 
 tween them executed and recorded in due form so as to be 
 effective as grants, nor is there any reason why such re- 
 strictions and modifications should not be binding on sub- 
 sequent owners of the two properties involved. It is en- 
 tirely immaterial whether the easement exist as a natural 
 right in a flowing stream or arise by express or implied 
 grant.* Yet it has been held that covenants between own- 
 
 etc, R. Co., 73 Iowa 328 (holding affected do not run with the land ex- 
 that covenant by R. R. Co. that aur- cept as between landlord and ten- 
 face water should not be discharged ant. Austerberry v. Oldham, 29 Ch. 
 across to opposite side of right of Div. 750, and cases therein cited and 
 way granted by the covenantee ran discussed. Such covenants are en- 
 with the land) ; Dexter v. Beard, 130 forceable in equity, however, as 
 N. Y. 549 (covenant not to build on against purchasers with notice. See 
 right of way granted, ran with land § 304, post. 
 as incident to the easement of way). 2. See § 75, a/nte. 
 
 In England it is held that cove- 3. To that effect aee cases in note 
 
 nants creating burdens on the land 1 preceding. 
 
.^08 Covenants Running With the Land. 
 
 ers of mills in a river regulating tlie use of tlie water at 
 their respective mills did not ' ' run witli tlie land ' ' because 
 of a supposed lack of privity of estate, the riparian right 
 of each mill-owner not having been acquired, the one from 
 the other, by grant, express or implied.* Nevertheless if 
 their natural rights or easements had been turned into con- 
 ventional easements by grant modifying them ever so 
 slightly, the covenants in question if subsequently made, 
 would have been held binding upon successors in interest of 
 the different mill-owners. This unreasonable result follows 
 from the assumption that the privity of estate required 
 means the relation of grantor and grantee between the par- 
 ties irrespective of whether a mutual interest exists in them 
 or not. That this is not true appears very clearly from 
 cases involving a grant in fee, with a covenant restricting 
 the use or the property conveyed, where the grantor is not 
 the owner of any adjoining property, and therefore where 
 no easement is created for the benefit of any dominant es- 
 tate, or where the grantor covenants to keep in repair build- 
 ings or to make improvements on the land conveyed. Such 
 covenants are purely personal though the relation of grantor 
 and grantee exists between the parties.^ Covenants run 
 
 4. Hurd V. Curtis, 19 Pick (Mass.) land conveyed in the closest way. 
 459 ; Lawrence v. Whitney, 11,5 N. Y. Thus if the grantee In fee covenants 
 410, 416; Horn v. Miller, 136 Pa. St. to keep buildings in repair, it is clear 
 640, cited in note 1, supra, is directly that his contract is personal, diflfer- 
 contra. ing in no way from a like contract 
 
 5. It is, of course, perfectly obvi- made by a local contractor or village 
 ous that where the grantor conveys carpenter, or any other stranger. So 
 the property in fee, retaining no ad- a covenant by the grantee restricting 
 Joining property for the benefit of his use of the property in any given 
 which the covenant might have been way Is enforceable as a covenant 
 made, so that it is a purely personal against himself only, not his subse- 
 chose in action in him, and not ere- quent grantee, the covenant being re- 
 ating a profit or easement in gross, served for the personal benefit of the 
 it cannot run with the land conveyed, grantor, not for the benefit of adjoin- 
 whether it be a benefit or a burden to ing property belonging to him, nor 
 the grantee or his successors in in- as incident to an easement retained 
 tercst, and though it relate to the by him. It in not a grant or reser- 
 
CovENAiirTs Affecting Easements and SEKViTtrDEs. 709 
 
 with the land only where the parties have a mutual interest 
 in the property affected, and the only cases that have arisen 
 
 vation, since no interest in the land 
 conveyed is reserved, and for the 
 same reason it is not incident to any 
 interest in the land conveyed, since 
 the grantor has reserved no interest. 
 It differs radically from a condition 
 with a right of entry and forfeiture 
 reserved for a breach thereof, such 
 riglit of entry involving the defeat of 
 the estate conveyed, not the enforce- 
 ment of a contract against one who 
 was not a party to it. 
 
 In Norcross v. James, 140 Mass. 
 188, Judge Holmes said: "When it 
 in said that in this class of cases 
 there must be a privity of estate be- 
 tween the covenantor and the cove- 
 nantee, it only means that the cove- 
 nant must impose such a burden on 
 the land of the covenantor as to be 
 in substance, or to carry with it a 
 grant of an easement or quasi ease- 
 ment, or must be in aid of such a 
 grant." 
 
 In Morse v. Aldrich, 19 Pick. 
 (Mass.) 449, the court said; 
 " * * * In most of the cases on 
 the same subject (covenants running 
 with the land), the co'ienants were 
 between lessors and lessees; but the 
 same privity exists between the gran- 
 tor and grantee, where a grant is 
 made of any subordinate interest in 
 land; the reversion or residue of the 
 estate being reserved by the grantor, 
 all covenants in support of the grant, 
 or in relation to the beneficial en- 
 joyment of it, are real covenants and 
 will bind the assignee." 
 
 In Van Rensselaer v. Reed, 36 N. 
 y. 558, the reservation of a rent 
 charge by the grantor was suflScient 
 Interest in the land so that the cove- 
 
 nant to pay the annual rent ran 
 with the land and was enforceable 
 against subsequent grantees. 
 
 That tlie covenantee as well as the 
 covenantor must have an interest of 
 some sort in the land conveyed to 
 which the covenant may attach, see, 
 in addition to cases in notes preced- 
 ing, Gilmer v. Mobile & Montgomery 
 R. Co., 79 Ala. 569; Louisville H. & 
 St. R. Co. V. Baskett, 121 S. W. 957 
 (Ky.) (both cases involving coven- 
 ants to maintain station and stop 
 trains, etc., for the benefit of land 
 retained by grantor, who acquired a 
 riglit in the nature of an easement, 
 like the quasi-easement, so-called, to 
 build and maintain line fences in 
 cases cited in note 1, supra) ; Fresno 
 Canal, etc. Co. v. Rowell, 80 Cal. 114 
 (covenant with Water Co. to take 
 water for stated term of years did not 
 run with land ; it was personal, since 
 Water Co. obtained no interest in the 
 land) ; Indianapolis Water Co. v. 
 Nulte, 136 Md. 373 (contract by ad- 
 joining owner to extend levee on his 
 own land and to keep it in repair was 
 personal, since no interest in land of 
 covenantor existed or was created in 
 favor of the plaintiff Water Co.) ; 
 Costigan v. Penn. R. Co., 54 N. J. L. 
 233; Plymouth V. Carver, 16 Pick. 
 (Mass.) 183; Kettle Riv. R. Co. v. 
 Bast. R. Co., 41 Minn. 461. 
 
 In Lyon v. Parker, 45 Me. 474, the 
 defendant, stranger to the title of the 
 land affected, covenanted to build a 
 dam with co-owners of a water tower. 
 Held to be personal, unenforceable by 
 a purchaser from a covenantee, the 
 covenantor having no interest in the 
 land affected. The lack of privity 
 
JlO Covenants Etjnning With the Land. 
 
 or can properly arise of sucli covenants enforceable by or 
 against grantees or other succeeding owners are those made 
 between landlord and tenant, between tenant for life or in 
 tail and remainderman or reversioner, between tenants in 
 common or joint tenants, and between the owners of domin- 
 ant and servient estates limiting or modifying easements, 
 servitudes or profits. 
 
 Since covenants affecting easements and other incorporeal 
 rights affect the title to the easement or other incorporeal 
 rights involved they must be in such form that they can 
 take effect as grants, they being terms of the easement 
 created or modified by the instrument containing the cove- 
 nants. If in the cases above referred to, in which mutual 
 covenants of owners of land on a stream relating to the use 
 of the water power were held to be personal because of lack 
 of privity, the courts had regarded the covenants as mutual 
 grants modifying the natural rights of the parties to the 
 water powers, all difiSculty would have disappeared, and 
 covenants relating to repairs, and the like, would be treated 
 as terms of the grants modifying the water rights involved. 
 
 It would seem that an entire discontinuance of the use 
 of the term " privity of estate " in this connection would 
 tend strongly to clear up the confusion now existing in the 
 cases. What is really required in order that a covenant run 
 with the land is a mutual interest in the property, corporeal 
 or incorporeal, to which the covenant relates, and which it 
 is intended to modify or limit, by way of grant, or as a term 
 of a grant. On no other basis whatever can the legal title 
 be affected at law by a contract otherwise enforceable only 
 as a personal chose in action.^ The enforcement by specific 
 performance in equity of covenants or agreements relating 
 to land, and the enforcement of covenants for title turns on 
 principles peculiar to each class, and have no controlling 
 relation to the covenants here considered.^ 
 
 ■was because of lack of mutual inter- 7. See § 304, post, as to covenants 
 
 est in the land. enforceable in equity, and §§ 324, 325, 
 
 6. See preceding note. post, as to covenants for title. 
 
CovENAiTTs Affecting Easements and Seevitudes. 711 
 
 There is some authority for the proposition that a cove- 
 nant binding the covenantor personally, not a burden or 
 restriction upon adjoining property, but made for the bene- 
 fit of property conveyed by the covenantor, and forming 
 part of the consideration involved in the transaction, will 
 run with the land so benefited, the personal obligation of 
 the covenantor for some reason attaching to the land con- 
 veyed as an incident to the title. Thus a covenant by the 
 grantor not to engage in the banking business in Dover, the 
 place where the banldng property conveyed by him was 
 situated, was held to be enforceable at law by a subsequent 
 grantee of the covenantee, it having been expressly provided 
 that it should be so enforceable.^ A similar covenant re- 
 stricting the grantee from selling marl from the premises 
 conveyed, for the benefit of land retained by the grantor, 
 was held not to run with the land, being a burden on the 
 land conveyed, and not directly touching or affecting the 
 land retained.^ It is submitted that this question is solely 
 a question of contract, not of title to land. We have seen 
 that in the United States covenants creating burdens on the 
 property affected run with the land as between landlord 
 and tenant and when made in the creation or modification 
 of easements, though the opposite rule in the case of ease- 
 ments prevails in England.^" If the personal contract of 
 the grantor in fee not to engage in competitive business, 
 or to keep the premises conveyed in repair, or the like, is 
 
 8. National Bank at Dover v. that a covenant conferring a benefit 
 Segur, 39 N. J. L. 173, citing Paken- on the grantee and covenantee may- 
 ham's case. Year Book, 42 Edw. Ill be made by the grantee or a stranger, 
 7, pi. 14. The other cases cited in and it will nevertheless run with th« 
 the above case, viz., Vyvyan v. Ar- land if the thing covenanted for be for 
 thur's Admr's, 1 B. & C. 410; Vernon the benefit of the land conveyed or 
 V. Smith, 5 B. & Aid. 1; Mayor of tend to increase its value. 
 Congleton v. Pattison, 10 East 130, See note 5 preceding, 
 do not at all sustain the position 9. Brevper v. Marshall, 3 C. E. 
 taken. Green (N. J.) 337, 4 id. 537. 
 
 See dictum in Shaher v. St. Paul 10. See notes 1 and 5, suprtk. 
 Water Power Co., 30 Minn. 179, 183, 
 
712 Covenants Running With the Land. 
 
 enforceable by a subsequent purchaser of tbe land affected, 
 it must be on principles of contract, not of title to property. 
 The enforcement of such a contract in equity by specific 
 performance, hereafter discussed," is also a question of 
 contract, having nothing to do with the modification of title 
 to land by covenant running with the land at law. 
 
 § 303. Party Wall Covenants. — When the owners of two 
 adjoining lots enter into a written agreement or covenant 
 that one or either of them may erect a party wall on their 
 dividing line, and that the other will pay him one-half the 
 cost thereof, or one-half the value of the wall when used, or 
 other sum specified in the agreement, mutual party wall 
 easements arise by grant between the parties, and the terms 
 of the covenant or agreement, qualifying and defining the 
 easements or incident thereto, run with both parcels so as 
 to bind subsequent purchasers of either, or in favor of 
 either one, as the case may be.^ These cases are clear illus- 
 trations of covenants creating or limiting easements, and 
 therefore running with the two parcels of land involved, 
 as discussed in the preceding section. 
 
 While the covenant or agreement is entirely executory, 
 in other words before the wall has been erected by either 
 party, it runs with the land both as to benefits and burdens, 
 and if a subsequent grantee of one parcel erects the wall he 
 may enforce the covenant against the original owner or any 
 subsequent grantee of the other parcel who makes use of 
 the wall, collecting from him one-half the cost thereof .^ But 
 when the wall has been erected the right to collect therefor 
 under the agreement becomes a personal right of action in 
 the man who erected it. contingent upon the making use 
 
 11. See § 304, post. N. Y. 455 ; Conduitt v. Koas, 102 Ind. 
 
 1. See § 292, notes 9 and 10, ante. 166; Mackin v. Haven, 187 III. 480; 
 
 2. Savage v. Mason. 3 Cusli. Roche v. Ullman, 104 111. 11; Gibson 
 (Mass.) 500; King v. Wight, 155 v. Holden, 115 111. 199; Garmire v. 
 Mass. 144; Mott v. Oppenlieimer, 135 Willy, 36 Neb. 340, and cases in fol- 
 N. Y. 312; Lebald v. Mullialland, 155 lowing note. 
 
Paety Wall Covenants. 
 
 713 
 
 of it by the owner of the other parcel. Therefore if the 
 builder of the wall conveys his parcel the purchaser acquires 
 no right to recover one-half the cost thereof from the ad- 
 joining owner upon his using the wall. The executory cove- 
 nant runs with the land, but the personal right of the man 
 who erects the wall to get back half its cost is a definite 
 contingent chose in action belonging to him as personal 
 property, having no connection with his land, and certainly 
 not passing with it.^ Yet the courts in some cases have had 
 difficulty in reaching this result, and in some states the rule 
 seems established, though obviously erroneous, that the 
 right to recover in such case passes with the land on a con- 
 veyance thereof by the builder of the wall, the argument 
 being, that as the land must bear the burden of the use of 
 the wall by the adjoining owner, it is fair that the pur- 
 chaser should receive the payment provided for under the 
 agreement.* The uncertainty on this point is difficult to 
 
 3. Ck)le V. Hughes, 54 N. Y. Hi; 
 Hart V. Lyon, 90 N. Y. 663 ; Scott v. 
 McMillan, 76 N. Y. 141, 144; Sebald 
 V. Mulholland, 155 N. Y. 455; Joy v. 
 Boston Penny Sa7. Bank, 115 Mass. 
 90-; Block ▼. Isbam, 28 Ind. 37. 
 
 4. Piatt V. Eggleston, 20 Oh. St. 
 414; Kimm v. Griffin, 67 Minn. 25 
 (distinguishing Pillsbury v. Morris, 
 54 Minn. 493, which held that the 
 builder of the wall had a personal 
 chose in action which he could as- 
 sign) ; Nat. Life Ins. Co. v. Lee, 75 
 Minn. 157 (see strong dissenting opin- 
 ion expressing the true principle in- 
 volved) . 
 
 In King v. Wight, 155 Mass. 444, 
 the court expressly refused to pass 
 on this point, it not being involved in 
 the case. 
 
 Where the party wall covenant or 
 agreement does not contemplate the 
 immediate building of a wall by one 
 
 of the parties, but provides that 
 either one, hia heirs or assigns, may 
 erect such a wall at any time in the 
 future, and providing for payment 
 therefor by the other on his using 
 the wall, the covenant is executory 
 and mna with the land in all respects 
 until the wall is erected; the right to 
 recover one-half the cost then becomes 
 a personal right of action in the 
 builder. Such were the cases of Mott 
 V. Oppenheim, 135 N. Y. 313, and 
 King V. Wight, 155 Mass. 444. Be- 
 cause the covenant in such case runs 
 with the land so as to give a subse- 
 quent purchaser who builds the wall 
 the right to collect from the adjoin- 
 ing owner who subsequently makes 
 use of it, the difficulty and confusion 
 seems to have arisen, it not having 
 been clearly understood in some of 
 the cases that when the wall is actu- 
 ally built, the indefinite and impei- 
 
714 
 
 Covenants Eus-ning With the Laitd. 
 
 nnderstand in view of tlie fact that the principle involved 
 is a simple one, settled absolutely and without question in 
 cases of covenants running with the land between landlord 
 and tenant. For example, the covenant to pay rent unques- 
 tionably runs with the land so as to bind assignees of the 
 tenant and grantees of the landlord. Yet where rent has 
 become overdue no one would contend that the landlord's 
 right to collect it passes with the reversion to his grantee. 
 The same result follows in the case of any accrued right of 
 the landlord against his tenant for breach of any other cove- 
 nant. It is his personal property, a personal chose in ac- 
 tion, which does not pass on a subsequent conveyance of the 
 reversion. Yet the covenant as an executory contract runs 
 with the land so that such grantee may sue for a breach 
 committed by the tenant after such conveyance." 
 
 It has been held in several eases that after the erection 
 of the wall and before its use by the adjoining owner, it is 
 
 Bonal covenant, obviously made for 
 the benefit of the land, is changed, in 
 EG far as the right to recover for the 
 trail is concerned, into a definite and 
 distinct personal right of action in 
 the builder of the wall, subject only 
 to the condition precedent that it be 
 made use of by the adjoining owner 
 or his successor in interest. 
 
 5. There is, of course, this differ- 
 ence, that in the cases referred to in 
 the text the right of action for rent 
 or damages for breach of any other 
 covenant is a definite unconditional 
 right against a definite individual, an 
 assignee of the tenant not being lia- 
 ble for any breach prior to the assign- 
 ment to him, while a subsequent 
 owner of the adjoining tract will be 
 the person liable to pay for the party 
 wall, provided he make use of the 
 wall after the conveyance to him. 
 But this does not alter the principle 
 
 involved. The builder's right to re- 
 cover for the wall is as distinctly per- 
 sonal as is the landlord's right to ac- 
 crued rent. It differs only in that it 
 is contingent upon the making use of 
 the wall by the adjoining owner or 
 his grantee. A case more nearly par- 
 allel would be the landlord's obliga- 
 tion to pay for improvements erected 
 by the tenant or his assigns during 
 the term, under a covenant to that 
 effect, the tenant having made im- 
 provements and having subsequently 
 assigned the term. His personal 
 right of action to recover therefor 
 against the landlord or his grantee 
 would not pass to the assignee of 
 the term, though the covenant would 
 run with the land so as to bind the 
 landlord or his grantee in favor of the 
 assignee of the term for improve- 
 ments erected by such assignee. 8m 
 § 301, note 11, ante. 
 
Covenants in Equity. 716 
 
 entirely the property of the builder, he having an easement 
 to have it supported in part on the neighbor 's land, so that 
 he alone is liable for damages arising because of the dan- 
 gerous condition of the wall, due to defective construction, 
 or the like, title passing to the neighbor to his part of the 
 wall upon his using and paying for it.® This would seem 
 to be a question of what the intention was in each case, turn- 
 ing on the terms of the agreement under which the wall was 
 erected. It has been urged in at least one case that in this 
 situation the grantee of the purchaser is entitled to pay- 
 ment for one-half of the wall from the adjoining owner upon 
 his making use of it, not as assignee of a covenant running 
 with the land, but as vendee of so much of the wall.^ 
 
 § 304. Covenants in Equity. — Negative covenants or agree- 
 ments restricting the use of land of such character that 
 equity will compel their specific performance by granting 
 an injunction restraining their breach will be enforced 
 against a grantee taking with notice of the restrictions 
 though the covenants so enforced would not run with the 
 land at law. The practical result is that they qualify the 
 title of any purchaser taking with notice, though no ease- 
 ment or other incorporeal right exists affecting the legal 
 title of the land involved. Since the purchaser takes with 
 notice of the equity existing in the covenantee he takes 
 subject to it, and must abide by its terms.^ Heirs, devisees 
 
 6. Mickel v. York, 175 111. 63; Gor- parly wall to wliich fucli subsequent 
 ham V. Gross, 125 Mass. 232; Brown purchaser was not a. party, is difficult 
 V. McKee, 57 N. Y. 684; Mason's App., to understand. If lie purchased the 
 70 Pa. St. 26; Sullivan v. Graffort, land and paid for it on the basis of 
 35 Iowa 531; Glover v. Mersman, 4 his collecting the amount subse- 
 Mo. App. 90. quently to become due for the wall, 
 
 7. Gibson v. Holden, 115 HI. 199, an assignment of the builder's rights 
 306. How a subsequent purchaser of thereto would be clearly implied. 
 the land from the builder of the wall 1. Tulk v. Moxhay, 2 Phil. 774; 
 can be regarded as a vendor, the Whitney v. Union Ry. Co., 11 Gray 
 right of the adjoining owner being ab- (Mass.) 359; Lewis v. Gallner, 129 
 iolute under the covenant for the N. Y. 227; Winfield v. Henning, S GL 
 
716 
 
 Covenants Running With the Land. 
 
 and grantees who have paid nothing for the property take 
 subject to the equity of specific performance, and are, there- 
 fore, subject to the enforcement of such covenants, though 
 they take without notice.^ 
 
 It is quite immaterial in equity whether such a covenant 
 or agreement runs with the land at law or not. In either 
 case it will be enforced if it is of such character that equity 
 will decree its specific performance. This is obviously a 
 branch of the law of specific performance of contracts, but 
 because of the incidental effect of such covenants on titles 
 the law governing them constitutes an important part of 
 the law of real property. Such a covenant or agreement 
 may be enforced by a grantee, heir or devisee of land re- 
 tained by the covenantee if made for the benefit of such 
 land, touching or concerning its use or enjoyment so as to 
 add to its value, though not of such character as to run with 
 the land at law either as a benefit or burden.^ 
 
 E. Green (N. J.) 188, and cases in 
 notes following. 
 
 In Whitney v. Union Ry. Co., 11 
 Gray 359, 363, the court explains the 
 principle involved in these cases as 
 follows : " Upon this point (viz., the 
 enforcement of restrictive covenants 
 against those deriving their title from 
 the grantee), the better opinion 
 would seem to he that such agree- 
 ments are valid, and capable of be- 
 ing enforced in equity against all 
 those who take the estate with notice 
 of them, although they may not be 
 strictly speaking real covenants, so 
 as to run with the land, or of a na- 
 ture to create a technical qualifica- 
 tion of the title conveyed by the deed. 
 The opinion rests on the principle 
 that, as in equity that which is 
 agreed to be done shall be considered 
 as performed, a purchaser of land, 
 with notice of a right or interest in 
 it, subsisting in another, is liable to 
 
 the same extent and in the same man- 
 ner as the person from whom he made 
 the purchase, and is bound to do that 
 which his vendor had agreed to per- 
 form. Therefore an agreement or 
 covenant, though merely personal in 
 its nature, and not purporting to bind 
 assignees, will nevertheless be en- 
 forced against them, unless they have 
 a higher and better equity as iona 
 fide purchasers without notice. • • • 
 It is not binding on him merely be- 
 cause he stands as an assignee of the 
 party who made the agreement, but 
 because he has taken the estate with 
 notice of a valid agreement concern- 
 ing it, which he cannot equitably re- 
 fuse to perform." 
 
 2. See cases in preceding note, also 
 in notes following. 
 
 3. Renals v. Colishaw, 9 Ch. Div. 
 133, 11 Oh. Div. 866 (the court hold- 
 ing, however, that the beneiit of the 
 covenant did not run with the adjoin- 
 
Covenants in Equity. 
 
 717 
 
 Those restrictive covenants wliiclx restrict one parcel of 
 land for the benefit of land retained by the grantor are in 
 effect grants creating easements, and the law applying to 
 easements will control every such case. The great majority 
 of so called restrictive covenants are of this nature, and 
 require no additional consideration here. Thus where the 
 grantee accepts a deed with a covenant restricting him from 
 building on the property, or requiring him to build with a 
 set-back of a stated number of feet from the street, or in 
 
 ing land because it was not shown to 
 have been made for the benefit of that 
 land, or some part of it) ; Spicer v. 
 Martin, 14 App. Cas. 12, 33, 24. 
 
 In Rogers v. Hosegood, 2 Ch. 388, 
 407, Collins, L. J., said : " But when, 
 as here, it (viz., a restrictive coven- 
 ant) has been once annexed to the 
 land reserved, then it is not necessary 
 to spell an intention out of the sur- 
 rounding facts, such as the existence 
 of a building scheme, statements at 
 auction, and such like circumstances, 
 and the presumption must be that it 
 passes on a sale of that land, unless 
 there is something to rebut it, and 
 the purchaser's ignorance of the ex- 
 istence of the covenant does not de- 
 feat the presumption." 
 
 In De Gray v. Monmouth Beach, 
 etc. Co., 50 N. J. Eq. 329, 335, the 
 court said: "The right of the owner 
 of a lot of land to enforce a covenant 
 restrictive of the use of another 
 tract, which covenant has been en- 
 tered into by an owner of such other 
 tract with the former owner of both, 
 but has not been expressly assigned, 
 depends primarily on the covenant 
 having been made for the benefit of 
 land embracing said lot. If it has 
 been so made the benefit of the cov- 
 enant enures to subsequent purchas- 
 ers of the land." See, also, cases il- 
 
 lustrating restrictions made as part 
 of a general plan or scheme in a real 
 estate development, note 6, post. 
 
 Just on what principle the benefit 
 runs with the land benefited in these 
 cases is not explained very clearly by 
 the courts, assuming a case in which 
 the covenant would not so run at law. 
 There is no difiSculty when an ease- 
 ment is created, the covenant amount- 
 ing to a grant or reservation thereof 
 in express terms, or where the cov- 
 enant runs with the land at law, in 
 support of an easement existing or 
 created between the two parcels in- 
 volved. But in the case of a mere 
 parol agreement, or one implied from 
 circumstances attending the sale, re- 
 stricting the parcel sold for the bene- 
 fit of the parcel retained, why should 
 the subsequent purchaser of the par- 
 cel so retained or of part of it get 
 the right to enforce this restriction 
 of which he may have known noth- 
 ing? The answer is that tlie specific 
 enforcement of the agreement by equ- 
 ity requires its enforcement in favor 
 of the land to be benefited thereby, 
 as the parties intended, not in favor 
 of the promisee personally, and there- 
 fore the subsequent owner of such 
 land acquires with it the right to en- 
 force the restriction, though it would 
 be entirely void at law. 
 
118 COVEITAJSTTS RuNNlNG WiTH THE LanD. 
 
 any other way restricting him in the erecting of buildings 
 on the premises conveyed, or restricting him in the use of 
 the property, for the benefit of land retained by the grantor, 
 the restrictions are easements in favor of the dominant 
 estate of the grantor and enforceable by him or his assigns 
 against the grantee of the servient estate and his assigns.* 
 The most important class of covenants or agreements 
 enforceable in equity only arise in conveyances of lots or 
 plots as part of a real estate development, uniform restric- 
 tions being made in each deed for the mutual benefit of all 
 the purchasers. If these restrictions are contained in the 
 deeds conveying the lots they create easements in favor of 
 the lots remaining undisposed of, which are benefited there- 
 by, and as those lots are thereafter conveyed each subse- 
 quent purchaser acquires with his lot as apppurtenant 
 thereto the restrictive easements so created." But the re- 
 strictions are intended in such case for the benefit of prior 
 as well as subsequent purchasers. It is apparent that they 
 cannot be enforced by prior purchasers as easements, since 
 they were created after these purchasers had acquired their 
 lots. Nevertheless, if the restrictions are clearly part of a 
 common scheme or plan for the mutual benefit of all pur- 
 chasers, the restrictions being clearly for the benefit of the 
 land already sold as well as for the benefit of the land re- 
 maining with the real estate operator, a reciprocal agree- 
 ment is implied that the land retained shall be subject to 
 the same restrictions as the land so conveyed, and each sub- 
 sequent purchaser of other lots, taking with notice of the 
 general scheme, will be bound to abide by them as fully as 
 
 4. Peck V. Conway, 119 Mass. 546 
 Brown V. O'Brien, 168 Mass. 484 
 Chase v. Walker, 167 Mass. 293 
 
 Conn. 343; Watrons v. Allen, 57 Mich. 
 363. 
 5. See cases in preceding note, also 
 
 Phoenix Ins. Co. v. Continental Ins. Linzee v. Mixer, 101 Mass. 513; Par- 
 Co., 87 N. Y. 400; Post v. Wiel, 115 ker v. Nightingale, 6 Allen (Mass.) 
 N. Y. 361; Columbia College v. Lynch, 341; Barrow v. Eichard, 9 Paige Ch. 
 70 N. Y. 440; Hutchinson v. Ulrich, (N. Y.) 351; Gould v. Partridge, 83 
 145 111. 336; Clark v. McGee, 159 111. App. Div. (N. Y.) 40; Winfield V. 
 618; Collins Mfg. Co. v. Marey, 25 Henning, 21 N. J. Eq. 188. 
 
Covenants in Equity. 719 
 
 though, they had been created as easements by express 
 grant. This implied agreement is not in writing — in fact 
 it usually arises from representations and from physical 
 conditions indicating the existence of the general plan,— 
 and therefore it is not even a covenant, much less a grant 
 of an easement. But the lot was sold to the prior purchaser 
 under this agreement, implied in fact, or perhaps expressed 
 by parol, that the remaining land be restricted in accord- 
 ance with the general plan. Equity will specifically enforce 
 this agreement by enjoining any breach thereof, not only as 
 against the original owner of the land who made the agree- 
 ment, but also as against any subsequent purchaser of the 
 remaining land taking with notice of the general scheme, 
 and therefore of the agreement affecting the land sold to 
 him. He takes with notice of the prior purchaser's equi- 
 table right to specific performance of the restrictive agree- 
 ment, express or implied, and he is subject thereto as com- 
 pletely as his grantor who made the agreement.® To be 
 subject to specific performance the agreement must not be 
 personal, but must relate to the land restricted, of such a 
 nature that pecuniary damages would not be an adequate 
 remedy." It hardly need be added that such an agreement 
 does not run with the land, either at law or in equity, in the 
 sense in Avhicli the covenants discussed in the foregoing 
 sections run with the land. It is simply and solely a ques- 
 tion of the specific performance of a negative restrictive 
 agreement as against a subsequent purchaser of the land 
 with notice. 
 
 6. Tulk V. Moxhay, 2 Phil. 774; Beach Co., 50 N. J. Eq. 329; Whitney 
 
 Nottingham Patent Brick Co. v. But- v. Union Ky. Co., 11 Gray (Mass.) 
 
 ■ler, 16 Q. B. Div. 778; Rogers v. 359; Linzee v. Mixer, 101 Mass. 512; 
 
 Hosegood, 2 Ch. 388; Tallmadge v. Hutchinson V. Ulrieh, 145 HI. 336; 
 
 East River Bank, 26 N. Y. 105; Col- Muzzarelli v. Hulshizer, 163 Pa. St. 
 
 umbia College v. Lynch, 70 N. Y. 643. See, also, Lewis v. GoUner, 129 
 
 440; Barrow v. Richard, 9 Paige (N. N. Y. 227. 
 
 Y.) 351; Winfield v. Henning, 21 N. 7. See cases in preceding note. 
 
 J. Eq. 188; De Gray v. Monmouth 
 
720 Covenants Runking With the Land. 
 
 Where a purchaser of several lots in a single parcel sub- 
 ject to a gfeneral plan of the kind above described, subse- 
 quently sells the lots to different purchasers who take with 
 notice of the restrictions under the plan, these purchasers 
 may enforce the restrictions against one another for the 
 same reasons and on the same principle.* No easement en- 
 forceable at law exists between them, in the absence of ex- 
 press restrictions in the deeds by which they take, because 
 the restrictions reserved in favor of the entire parcel could 
 not be enforced as easements in favor of one part thereof 
 against another. 
 
 An agreement that the restrictions shall be binding and 
 enforceable between the purchasers of the different parts 
 and the vendor as owner of the remaining parts will neces- 
 sarily be implied in such case, which will be specifically 
 enforced against or in favor of either party to the convey- 
 ance in each case, and against or in favor of their successors 
 in interest who are not purchasers for value and without 
 notice. 
 
 The successor in interest of any such purchaser in this 
 and the preceding cases may enforce these restrictions 
 against the other purchasers. The restriction implied from 
 the facts is for the benefit of his lot as against the other lots, 
 and passes with it to his heir, devisee or grantee. Equity 
 treats the implied restriction as though actually made in 
 legal form, and it runs with the dominant estate just as it 
 runs against the servient estate.* 
 
 In all of these cases it must be shown affirmatively that 
 the restrictions are part of a common scheme of develop- 
 ment, intended for the mutual benefit of the property pur- 
 chased under its terms.^" If it appears that all the land is 
 to be sold, more being held in reserve for the permanent use 
 
 8. Winfleld v. Henning, 31 N. J. Eq. 188. See note 3, supra, and cases in 
 188. note 6, supra. 
 
 9. Winfield v. Henning, 21 N. J. Bq. 10. See cases in notes 6 to 9 pre- 
 
 ceding. 
 
Covenants in Equity. 721 
 
 of the common vendor, a strong, though not conclusive, in- 
 ference arises that mutual restrictions for the conmion 
 benefit of all purchasers was intended." It is a question of 
 fact to be determined from the evidence in each case, such 
 restrictions being enforceable only by the original vendor 
 as personal covenants or agreements where it appears that 
 they were introduced solely for his benefit in order that he 
 might control the development, with the right to release or 
 modify them at any time.^^ 
 
 Any restrictive covenant which obviously benefits adjoin- 
 ing property retained by the grantor will be treated as 
 having been made for the benefit of such property, and as 
 appurtenant thereto, though it is not expressly referred to.^^ 
 
 A restrictive covenant which runs with the land at law 
 or creates an easement may be enforced both at law and in 
 equity. But restrictive covenants which for any reason are 
 unenforceable at law either as easements or as covenants 
 running with the land, can be enforced against assignees 
 only in equity. In addition to the more usual cases of 
 mutual restrictions in real estate developments heretofore 
 discussed, there are many other instances of such covenants 
 
 11. Nottingliam, etc. Co. v. Butler, along with other circumstances in as- 
 
 16 Q. B. D. 778. In In re Birming- certaining the intention." 
 
 ham and District Land Co., 1 Oh. 343, 12. Sharp v. Eopes, 110 Mass. 381; 
 
 349, the court said: "I take the same Dana v. Wentworth, 111 Mass. 291; 
 
 view as Mr. Justice Wills, that it is Hamlen v. Keith, 171 Mass. 77; Clapp 
 
 a question of fact, to he deduced v. Wilder, 176 Mass. 333; Equitable 
 
 from all the circumstances of the Life Ins. Soc. v. Brennan, 148 N. Y. 
 
 case, whether the restrictions are 661; Mulligan v. Jordan, 50 N. J. Eq. 
 
 merely matters of agreement between 363; Clark v. McGee, 159 111. 51S; 
 
 the vendor himself and his vendees, Hutchinson v. Thomas, 190 Pa. St. 
 
 imposed for his own benefit nnd pro- 342. 
 
 tection, or are meant bj' him and un- 13. Peck v. Conway, 119 Mass. 
 
 derstood by the buyers to be for the 546; Tobey v. Moore, 130 Mass. 44ci; 
 
 common advantage of tl'C several Phoenix Ins. Co. v. Cont. Ins. Co., 
 
 purchasers. ♦ * • Though the re- 87 N. Y. 400; Muzzarelli v. Hulshi- 
 
 tainer by the vendor of some part of zer, 163 Pa. St. 643; Electric City 
 
 the property is a highly important Land Co. v. West Ridge Coal Co., 187 
 
 element, it is after all only an ele- Pa. St. 600. 
 ment to be taken into consideration 
 
 40 
 
Y22 Covenants Running With the Land. 
 
 or agreements enforceable only in equity by specific per- 
 formance in favor of or against successors in title to the 
 original parties. Thus if a lessee sublets for part of the 
 term, the subtenant is not bound by the covenants contained 
 in the original lease.^* But he will be enjoined from commit- 
 ting any breach of a restrictive covenant contained in that 
 lease of which he has notice; having taken the land with 
 iiotice of a restriction which equity would enforce against 
 the tenant, he as subtenant will be bound in the same way.^"^ 
 It has been held that equity will enforce such a covenant 
 against one who is a mere occupier with notice.^^ 
 
 A covenant on the part of the grantee of land not to use 
 the land in a business which would compete with the busi- 
 ness carried on by the grantor on land retained by him has 
 been held to be enforceable against a subsequent grantee 
 of the land, with notice of the restriction, it being a negative 
 covenant or agreement which equity will specifically en- 
 force as against the covenantor, and also as against a pur- 
 chaser from him with notice.^'^ In other cases it has been 
 decided that the covenant cannot be enforced by a subse- 
 quent owner of the parcel intended to be benefited because 
 the benefit does not directly touch or concern that parcel, 
 being of benefit to it only in an indirect way by preventing 
 competition with the business conducted thereon.^* On 
 
 14. See § 178, ante. 188; Brewer v. Marshall, 18 N. J. 
 
 15. See Hall v. Ewin, 37 Ch. Div. Eq. 337; Kettle River R. Co. v. East- 
 74, though no injunction will be is- ern R. Co., 41 Minn. 461; Tardy v. 
 sued against the tenant, requiring Creasy, 81 Va. 553. 
 
 him to take action against his sub- In Nat. Bk. of Dover v. Segur, 39 
 
 tenant, the tenant not being con- N. J. L. 173, an express covenant by 
 
 nected with the breach. See, also, the vendor not to engage in the bank- 
 
 Aahby v. Wilson, 1 Ch. 66. ing business in Dover was held at 
 
 16. Mander v. Falcke, 2 Ch. 554. law to run with the land which was 
 
 17. Luker v. Dennis, 7 Ch. Div. sold for banking purposes, the court 
 827; Hodge v. Sloan, 107 N. Y. 244; holding that this covenant did touch 
 Bald Eagle Valley R. Co. v. Nittany and concern the property conveyed, 
 Valley R. Co., 171 Pa. St. 234. affecting its value directly for th« 
 
 18. NorcrosB T. James, 140 Mass. purposes for which it was sold. 
 
Covenants in Equity. 723 
 
 principle tlie cases of the first class are sound. The agree- 
 ment is not intended to be personal, but for the benefit of 
 the land retained by the covenantee, and equity should en- 
 force it in favor of or against grantees of either parcel, the 
 grantee of the parcel so. burdened having taken title with 
 notice. 
 
 In a New York case it appeared that one Gollner had pur- 
 chased land in a residential section of Brooklyn, and an- 
 nounced his intention of erecting a seven story flat which 
 would injure property owners in the neighborhood. They 
 finally bought his land at an advance in price of $6,000, he 
 covenanting that he would not construct or erect any flats 
 in the immediate neighborhood. Later he bought land 
 across the street and began to erect a flat. He then trans- 
 ferred the property to his wife, continuing as her agent in 
 the erecting of the flat. The court granted an injunction 
 against the wife, holding that the contract not to erect a flat 
 would be enforceable against GoUner by specific perform- 
 ance had the title continued in him, and as his wife took 
 with notice it was also enforceable by injunction against 
 her. Though the contract was not made with reference to 
 any particular parcel of land, it attached to this parcel on 
 GoUner 's purchase of it as a restriction enforceable in 
 equity.^" 
 
 Where the character of the neighborhood has so changed 
 that the specific enforcement of restrictive covenants or 
 agreements would be inequitable in that it would involve 
 a severe loss to the owners of the property restricted with 
 little or no advantage to the property retained, equity will 
 refuse to decree specific performance, leaving the parties to 
 their remedy for damages, if any, at law.^* 
 
 19. Lewis V. Gollner, 129 N. Y. with the land at law amounting to 
 
 227. This case illustrates how a legal qualification of the title, 
 
 board the principle involved in these 20. Thus in Trustees of Columbia 
 
 cases is, and how far removed they College v. Thatcher, 87 N. Y. 311, 
 
 are from cases of covenant running the court refused to specifically en- 
 
724 
 
 Covenants Running With the Land. 
 
 In most instances covenants enforceable only in equity 
 are negative restrictions calling for no positive affirmative 
 act on the part of the owner of the servient property. In 
 England the rule appears to be settled that negative restric- 
 tive covenants or agreements alone will be so enforced by 
 specific performance.''^ In the United States, however, it is 
 well settled that the burden of a covenant made in support 
 of an easement or quasi-easement runs with the land, though 
 it calls for aflBLrmative action, such as the making of repairs 
 or improvements,^^ and that in case of a breach relief may 
 be had in equity as well as at law.^' It would seem to follow 
 
 force a covenant forbidding the use 
 of the land or buildings affected for 
 business purposes, the character of 
 the neighborhood having so changed 
 since the covenant was made by the 
 invasion of business houses and the 
 building of an elevated railroad 
 structure and the establishment of 
 an elevated station near the prop- 
 erty, as to render the property in 
 question much less valuable for 
 dwelling purposes, though fully 
 maintaining its value if used for 
 business purposes. The property 
 having become unsuitable for dwel- 
 ling purposes, it would be inequitable 
 to enforce the restriction limiting its 
 use to that purpose. 
 
 In Jackson v. Stevenson, 156 Mass. 
 496, a similar result was reached, 
 the court saying: "If all the re- 
 strictions imposed in the deeds 
 should be rigidly enforced, it would 
 not restore to the locality its resi- 
 dential character, but would merely 
 lessen the value of every lot for 
 business purposes. It would be op- 
 pressive and inequitable to give ef- 
 fect to the restrictions; and, since 
 the changed condition of the locality 
 has resulted from other causes than 
 
 their breach, to enforce them in this 
 instance could have no other effect 
 than to harass and injure the de- 
 fendant, without affecting the pur- 
 pose for which the restrictions were 
 originally made." 
 
 To the same effect, Sayers v. Coli- 
 yer, 24 Ch. Div. 180, 28 Ch. Div. 103; 
 Ammerman v. Dean, 132 N. Y. 355; 
 De Gray v. Monmouth Beach Club 
 House Co., 50 N. J. Eq. 329, 335 
 ( dicta ) . 
 
 21. Therefore a convenant to re- 
 pair or to make improvements will 
 not be specifically enforced in Eng- 
 land. Haywood v. Brunswick Bid. 
 Co., 8 Q. B. Div. 403; Austerberry v. 
 Oldham, 39 Ch. Div. 750; Clegg v. 
 Hands, 44 Ch. Div. 53. 
 
 22. See § 302, ante, and cases 
 therein cited and discussed. 
 
 23. In Whittenton Mfg. Co. y. 
 Staples, 164 Mass. 319, after refer- 
 ring to cases holding that the burden 
 of covenants in support of easements 
 run with the land (see preceding 
 note), the court said: "It has also 
 often been held elsewhere • • • 
 that the relief granted by a court of 
 equity is not to be limited to those 
 covenants which are merely restrict- 
 
COVKNAHTS IN EqUITT. , 
 
 725 
 
 that any such covenant afiEecting the land of such nature 
 that the remedy at law for damages is inadequate, will be 
 enforced in equity against a purchaser with notice, though 
 it does not run with the land at law. 
 
 ire, but will extend to covenants to 
 do positive acts involving tlie expen- 
 diture of money," citing Burbank v. 
 Pillsbuiy, 48 N. H. 475; Kellogg v. 
 Bobinson, 6 Vt. 276; Atlantic Dock 
 Co, V. Leavitt, 54 N. Y. 35 ; Bowen v. 
 Peck, 94 N. Y. 86; Finley v. Simp- 
 
 son, 2 Zab. 211; Sparkman v. Gore, 
 15 Vroom. 253; Maynard v. Moore, 
 76 N. C. 158; Georgia South. R. v 
 Reeves, 64 Ga. 492; Conduitt v 
 son, 2 Zab. 211; Sparkman v. Gor«. 
 nante (Sth ed.), S 273, b. 
 
I'^H LlOSNSES. 
 
 CHAPTER XIX. 
 
 Licenses. 
 
 § 305. Nature and Characteristics. — A license is a mere 
 permission to do an act or series of acts affecting tlie prop- 
 erty of the licensor whicli would otherwise be wrongful, 
 constituting trespass, waste or nuisance.^ Thus permission 
 to enter upon another's land for a stated purpose is a license 
 which makes the entry lawful. Permission to close a right 
 of way, to remove water pipes or to do any other act inter- 
 fering with the use and enjoyment of an easement belonging 
 to the person giving the permission in or over the land of 
 the person to whom such permission is given, is a license, 
 making lawful the act of interference which would other- 
 wise constitute a nuisance.^ So permission by a reversioner 
 or remainderman given to a tenant for life or for years to 
 do an act which would otherwise constitute waste is a 
 license.^ A license is not an interest or estate in the land 
 corporeal or incorporeal. It simply makes the act or acts 
 which it permits lawful when without it such acts would be 
 imlawful. 
 
 The distinction between a license and a tenancy for years 
 has been discussed heretofore,* as has been the distinction 
 
 1. In Wood V. Leadbitter, 13 M. & the party who has given it cannot in 
 
 W. 838, the court quotes from Lord general revoke it, so as to defeat his 
 
 C. J. Vaughan in Thomas v. Sorrell grant, to which it was incideiit." 
 
 (Vaughan 351), as follows: "A As to nature of licenses, see dis- 
 
 dispensation or license properly pass- cussion in cases cited in notes fol- 
 
 eth no interest, nor alters or trans- lowing. 
 
 fers property in anything, but only 2. See § 295, ante, such licenses, 
 
 makes an action lawful which with- when acted on, extinguishing or 
 
 out it had been unlawful." * * * modifying the easement involved. 
 
 The court added: "A mere license is 3. See § 67, ante, under Waste, 
 
 rtvokable; but that which is called MacGregor v. Brown, 10 N. Y. 114. 
 
 a license is often something more 4. See § 144, ante, under Landlord 
 
 than a license; it often comprises or and Tenant. 
 is connected with a grant; and then 
 
Revocation op Licenses. 727 
 
 between an easement or other incorporeal interest in land 
 and a license.^ Tlie effect of a license to do an act on the 
 land of the licensee blocking or interfering with the enjoy- 
 ment of an easement belonging to the licensor, extinguish- 
 ing or modifying the easement when the license has been 
 acted upon, has been discussed in a prior chapter." 
 
 Since a license is a mere personal privilege giving no in- 
 terest in the land affected, it may be created by parol, the 
 Statute of Frauds having no application,'' except that by 
 statute in some jurisdictions a license to do an act which 
 would otherwise amount to waste must be in writing.* It 
 may, for the same reason, be revoked at any time by parol, 
 in so far as it has not been executed, even though created 
 by a valid contract supported by a valid consideration. 
 The one remaining question involving licenses belonging 
 ' properly to the subject of this treatise is the question of 
 whether executory licenses of this kind, for which a valid 
 consideration has been given, will be specifically enforced 
 by a court of equity, so that they cannot be revoked. 
 
 § 306. Revocation of Licenses. — ^As stated above, licenses 
 may, in general, be revoked at any time, constituting as 
 they do in each case a mere personal authority or permis- 
 sion. But a license coupled with an interest in property 
 situated on the land of the licensor cannot be revoked. 
 Thus if A sell to B chattels situated on his land he cannot 
 revoke the license which B has to enter and remove the 
 chattels.* So the sale of growing trees, crops, stone or min- 
 erals to be removed from a quarry or mine, if made in legal 
 form, carries with it an irrevocable license to enter in each 
 case, the license being coupled with an interest in the sub- 
 ject-matter of the contract which is to be removed.^" This, 
 
 6. Seo § 277, ante, under Creation 9. Wood v. Manley, 11 A. & E. 34; 
 
 of Basements. Heath v. Randall, 4 Cuah. (Mass.) 
 
 6. See § S95, ante. 195; Rogers v. Cox, 96 Ind. 157; 
 
 7. See § 277, ante. Browne, Statute of Frauds, § 87. 
 
 8. MacGregor v. Brown, 10 N. Y. 10. Pierrepont v. Barnard, 6 N. 
 114. Y. 279; Cool v. Peters B. & L. Co., 
 
728 Licenses. 
 
 however, is not an interest in the land; it merely frees the 
 licensee from liability as a trespasser in case he enters to 
 remove his property. It the owner of the land resists his 
 entry in such case the licensee is not justified in overcoming 
 such resistance by force; he must resort to his legal action 
 to recover his property.^^ These questions belong properly 
 to the subject of sales or torts, as the case may be, their dis- 
 cussion at this point being necessary only for the purpose of 
 getting a clear conception of the nature of licenses in de- 
 termining whether or not a mere license can ever be en- 
 forced as in the nature of an interest in the land. 
 
 It has been held in some states that a license for which 
 a valuable consideration has been given will be specifically 
 enforced as a permanent right in the licensee and his suc- 
 cessors in interest, provided he has made expenditures by 
 making improvements in acting on the license and in reli- 
 ance upon its being continued, so that its revocation would 
 result in an injustice to him.^'' The better view is that the 
 
 87 Ind. S31. See § 13, notes 4 and tliat was viewed by the parties as a 
 
 5, ante, under Distinction Between permanent erection, will be of un- 
 
 Eeal and Personal Property. limited duration, and survive the 
 
 11. Churchill v. Hulbert, 110 Mass. erection itself, if it should be de- 
 42; Willoughby v. E. R. Co., 33 S. stroyed or fall into a state of dilapi- 
 C. 410. dation • • • But it is other- 
 
 12. In Berick v. Eern, 14 S. & R. wise where the object to be accomp- 
 (Pa.) 267, permission to change the lished is temporary. Such usually 
 flow of a stream was given by the de- is the object to be accomplished by 
 fendant, Rerick, so that it might be- a saw-mill, the permanency of which 
 come more valuable for use as water is dependent on a variety of circum- 
 power to the plaintiff in the opera- stances, such as an abundance of 
 tion of a, mill which he thereafter timber, on the failure of which the 
 erected. In holding that by expend- business necessarily is at an end. 
 ing money in erecting the mill the • » • With this qualification it 
 plaintiff, Kern, acquired the right to may safely be afSrmed that expend- 
 have the flow of the stream continue ing money or labor, in consequence 
 as so changed, the court said: "A of a license to divert a water course 
 right under a license, when not spe- or use a water power in a particular 
 cially restricted, is commensurate way, has the effect of turning such 
 with the thing of which the license license into an agreement that will 
 is an accessory. Permission to use be executed in equity." 
 
 water for a mill, or anything else To same effect. Dark T. Johnston, 
 
Revocation of Licenses. 
 
 729 
 
 license may be revoked in every sncli case unless the agree- 
 ment amounted to a contract to grant an easement, or was 
 an attempt to create an easement by parol, supported by 
 a valuable consideration, and was so acted on by the li- 
 censee by the incuring of expenditures in making improve- 
 ments in reliance thereon that justice requires its specific 
 enforcement." A license, therefore, when not coupled with 
 
 55 Pa. St. 164; Cleland's App., 133 
 Pa. St. 189; Wilson v. Chaefaut, 15 
 Ohio, 848; Buchanan v. Logansport 
 E. Co., 71 Ind. 265; Decorah Woolen 
 Co. V. Greer, 49 Iowa 490; Rhodes v. 
 Otis, 33 Ala. 578. But see Wilkina 
 V. Irvine, 33 Oh. St. 138. 
 
 13. In Watson v. Chicago M. & St. 
 P. R. Co., 46 Minn. 331, the court 
 said: "A licensee is conclusively 
 presumed, as a matter of law, to 
 know that a license is revocable at 
 the pleasure of the licensor; and if 
 he expends money in connection with 
 bis entry upon the land of the latter 
 he does so at his peril. Any other 
 doctrine would render most licenses 
 irrevocable, and make them operate 
 as conveyances of an interest in 
 land. • • • 
 
 " The principle upon which courts 
 of equity sometimes apply the doc- 
 trine of equitable estoppel to cases 
 where the entry has been under a li- 
 cense is that the conduct of the li- 
 censor has been such that it would 
 be a fraud on the licensee to permit 
 the licensor to deny that there was a 
 contract for an interest in the land, 
 and hence they treat the case as one 
 of a parol contract partly performed, 
 which the court will enforce." 
 
 In Crosdale v. Lanigan, 129 N. Y. 
 604, 610, the court, in sustaining the 
 rule that licenses are revocable in all 
 such cases, subject to the right of 
 
 equity to specifically enforce parol 
 contracts for the grant of an ease- 
 ment, says: "This is plainly the 
 rule of the statute. It is also, we be- 
 lieve, the rule required by public 
 poliify. It prevents the burdening of 
 lands with restrictions founded upon 
 oral agreements easily misunder- 
 stood. It gives security and cer- 
 tainty to titles, which are most im- 
 portant to be preserved against de- 
 fects and qualifications not founded 
 upon solemn instruments. The juris- 
 diction of courts to enforce oral con- 
 tracts for the sale of land is clearly 
 defined and well understood, and is 
 indisputable. But to change what 
 commenced in a license into an irre- 
 vocable right, on the ground of equit- 
 able estoppel, is another and quite a 
 different matter." 
 
 This is the prevailing view, in Eng- 
 land and in most of the states. Wood 
 v. Leadbitter, 13 M. & W. 838; 
 Cronkhite v. Cronkhite, 94 N. Y. 323 ; 
 Wiseman v. Lucksinger, 84 N. Y. 31; 
 Lawrence v. Springer, 49 N. J. Eq. 
 289 ; Morse v. • Copeland, 2 Gray 
 (Mass.) 302; Hodgkins v. Farrington, 
 150 Mass. 19; Nowlin L. Co. v. Wil- 
 son, 119 Mich. 406; Bridges v. Pur- 
 cell, 1 Dev. & B. (N. C.) 492; Col- 
 lins V. Marcy, 25 Conn. 239; Foot v. 
 N. H. etc. Co., 23 Conn. 814; 
 Thoemke v. Fielder, 91 Wis. 386; 
 Batchelder v. Hibbard, 58 N. H. 269; 
 
730 Licenses. 
 
 an interest, as explained in the preceding paragraph, may be 
 revoked at any time; if such revocation amounts to a breach 
 of contract the licensee has his remedy in an action for 
 damages arising from such breach.^* But where something 
 more than a license is intended, as where a parol contract 
 to grant an easement has been made or where the parties 
 have attempted to create an easement by parol, equity will 
 specifically enforce the contract express or implied, where 
 the person in whose favor the easement was to be created 
 has proceeded to act under it, incurring expenditures on 
 the faith of it so that justice requires its specific enforce- 
 ment.^^ In such case we have an easement enforceable 
 only in equity, not a license. Since these interests are mere 
 equities it follows that they caimot be enforced against a 
 subsequent purchaser of the servient land without notice 
 of the facts out of which the equity arises. 
 
 Tanner v. Volentine, 75 111. 624; Nat. will be found in them either an ex- 
 Stock Yds. V. Wiggins Ferry Co., 118 press agreement for an easement, or 
 111. 384, 391. an acquiesence or consent by conduct 
 
 14. Wood V. Leadbitter, 13 M. & which has led to the erecting of per- 
 W. 838; Kerrison v. Smith, 2 Q. B. manent works or valuable and last- 
 445. ing improyements, or some other fact 
 
 15. In Wiseman v. Lucksinger, 84 which would make the assertion of a 
 N. Y. 31, the court said: "There are, legal title operate as a fraud on tne 
 no doubt, many cases in which courts person setting up the equitable right." 
 recognize an equitable title to an See § 377, notes 2 and 3, antt. 
 easement without a deed, but there 
 
Highways aijd Streets. 731 
 
 CHAPTER XX. 
 
 Public Eights. 
 
 § 307. Highways and Streets. — A highway is a right of 
 way existing in favor of the public. Every member of the 
 public has the right to use the way for the usual highway 
 purposes, irrespective of his ownership of any land. It is 
 therefore an easement in gross in the land included within 
 the way, belonging to the public, and to each individual as 
 a member of the public' 
 
 A highway is, however, much more than a mere public 
 right of way. Some of the cases suggest a distinction be- 
 tween country roads and urban streets, asserting that the 
 public's right in country roads is limited to passage in 
 the usual ways on foot or by conveyance, including the driv- 
 ing of cattle and the transfer of commodities along the way, 
 but excluding the use of the way for sewers, gas and water 
 pipes below the surface,^ while the right of the public in 
 streets of cities and the more populous villages and towns 
 includes these uses.^ The later cases recognize that this 
 
 1. The cases quite generally refer They are in any event incorporeal 
 to the public right in highways as an rights in the land of individuals ex- 
 easement, though it has been asserted isting in the public of the same na- 
 by some judges and many text writ- ture as private easements in gross, 
 ers that it is in no true sense an 2. Bloomfield, etc. Co. v. Calkins, 
 easement, but rather a public right, 63 N. Y. 386 (dicta) ; Van Brunt v. 
 the terra "easement" being limited Matbush, 138 N. Y. 50 (dicta), since 
 to rights in a, servient estate in favor sewer was through town of Flatlands 
 of a dominant estate. It is well set- for the benefit of another town, Flat- 
 tied, however, that easements in gross bush, which imposes an additional 
 without a dominant estate, may ex- burden in any event ) ; Stirling's App., 
 ist as private rights (see § 376, ante), 111 Pa. St. 35 (involving same situa- 
 and it is difficult to see why the same tion as preceding case) ; Montgome-y 
 term should not be applied to similar v. Santa Ana, etc. R. Co., 104 Cal. 
 rights existing in the public. It will 186 (dicta); Kineaid v. Indianapolis 
 not do to call them servitudes, as Nat. Gas Co., 124 Ind. 577. 
 every easement is a servitude from 3. In re Yonkers, 117 N. Y. 564; 
 the standpoint of the servient estate. Stondinger v. Newark, 28 N. J. Eq. 
 
732 
 
 Public Eights. 
 
 distinction is untenable; tliat frequently city or village 
 streets have developed from country roads with the growth 
 of the community without any additional grant or dedica- 
 tion of rights to the public; that the right of the public is not 
 limited narrowly to passage with its attendant incidents, 
 but extends broadly to every reasonable public use to which 
 the highway may be put in the public service which does not 
 imreasonably interfere with rights of the owners of the 
 land over which the highway exists, or with the rights of 
 abutting owners where the public has acquired such land 
 in fee.* The exact limitations upon the rights of the public 
 may best be considered in connection with the opposing 
 rights of such owners." 
 
 § 308, Rights of Owners of Land Used as Highway in 
 Relation to Rights of the Public. — Each owner of land 
 
 187; afld. id. 446; Pierce v. Drew, 136 
 Mass. 75; Cone v. Hartford, 28 Conn. 
 363; McDevitt v. Peoples' Nat. Gas 
 Co., 160 Pa. St. 367; City of Quincy 
 V. Bull, 106 ni. 337. 
 
 4. Palmer v. Larchmont Elcc. Co., 
 158 N. Y. 231 (the court saying; 
 " But the owner of the fee in a coun- 
 try highway, taken, opened and dedi- 
 cated for a public use, is entitled to 
 no further compensation after the 
 territory has become thickly settled 
 and the highway has become a street 
 of an incorporated city"); Eels v. 
 Am. Teleg. & Tel. Co., 143 N. Y. 133 ; 
 Pierce v. Drew, 136 Mass. 75; Julia 
 Bid. Assn. V. Bell Telephone Co., 88 
 Mo. 258 ; People v. Eaton, 100 Mich , 
 208 (the court stating: "The re- 
 strictions upon this use are only 
 such as are calculated to secure to 
 the general public the largest practi- 
 cable benefit for the enjoyment of the 
 easement. When the highway is not 
 restricted in its dedication to some 
 particular mode of use, it is open to 
 all suitable methods") ; Cater v. 
 
 Northwestern Tel. Ex. Co., 60 Minn 
 539 (the court saying: "As a mat- 
 ter of fact most of these uses (gas 
 pipes, sewer, water pipes, etc.), were 
 unknown when the public easement 
 was acquired in many of the streets 
 in the older cities. Indeed, many of 
 what axe now urban highways were 
 merely country roads when the pub- 
 lic acquired its easement in them * * 
 
 "In our judgment public highways, 
 whether urban or rural, are designed 
 as avenues of communication; and, 
 if the original conception of a high- 
 way was limited to travel and trans- 
 portation of property in movable 
 vehicles, it Vfas because these were 
 the only modes of communication 
 then known; that as civilization ad- 
 vances, and new and improved 
 methods of communication and 
 transportation are developed, these 
 are all in aid of and within the gen- 
 eral purpose for which highways are 
 designed." 
 
 5. See the following section. 
 
Eights of Ownees of Land Used as Highway. 733 
 
 within the highway limits retains every right of owner- 
 Bhip that does not interfere with the easement of the pub- 
 lic* He may, therefore, hold as a trespasser any person 
 who enters on that part of the highway belonging to him 
 for some purpose not within the public right, as a person 
 who so enters to threaten him and create a disturbance,^ 
 or to hunt by shooting at game on either side of the road.' 
 He may sue in ejectment any person who has fenced in or 
 encroached upon his land included within the highway, or 
 any person or corporation seeking to appropriate it in part 
 for some purpose not included within the public easement.* 
 The trees and grass growing within the lines of the high- 
 way are his,' as are also the soil, stone and minerals beneath 
 its surface. The public authorities may cut down trees and 
 remove soil and stone in building and grading the road, or 
 in subsequently repairing it, and the materials so taken 
 may be used in grading and building any other part of the 
 same road or other road or street included in the same gen- 
 eral plan of improvement." But if they are taken and used 
 
 1. Lade v. Shepherd, 2 Stra. 1004; had been discontinued, land reverting 
 
 Harrison v. Duke of Rutland, 1 Q. B. to owner of the fee who may main- 
 
 143; Parley v. Chandler, 6 Mass. 454, tain ejectment against those in poa- 
 
 ttnd cases in notes following. session) ; Proprietors of Locks, etc. 
 
 a. State V. Davie, 80 N. C. 351. v. Nashua, etc. R. Co., 104 Mass. 1. 
 
 3. Bailey v. Jamieson, 1 C. P. Div. In Cincinnati v. White, 31 U. S. 
 339. Other cases illustrating this 431, the court held that ejectmenj 
 rule are Lewis v. Jones, 1 Pa. St. would not lie because the plaintifl 
 336 (deposit of fence rails on high- had no right of possession, which 
 way by defendant) ; Thomas v. Ford, is in the public. The difficulty with 
 63 Md. 346 (similar deposit of wood, this reasoning is that it disregards 
 stone and rubbish) ; Corletyou v. the plaintiff's right to use and en- 
 A'an Brundt, 3 Johns. (N. Y.) 357; joy 'the property in every way not 
 Barclay v. Howell's Lessees, 31 U. S. interfering with the public easement. 
 498. 5. Makepeace v. Worden, 1 N. H. 
 
 4. Postal TeL Co. v. Eaton, 170 16; Sanderson v. Haverstick, 8 Pa. 
 111. 513 (where telegraph poles and St. 394; Daily v. State, 51 Oh. St. 
 wires were held to add to the burden; 348; Suffield v. Hathaway, 44 Conn. 
 Jackson v. Hathaway, 15 Johns. (N. 531; Stretch v. Cassapolis, 135 Mich, 
 y.) 447, and Thomas v. Hunt, 134 167. 
 
 Mo. 392 (cases in which highways G. Higgins v. Reynolds, 31 N. Y. 
 
734 Public Rights. 
 
 for any other purpose, the person who takes them is liable 
 to the owner of the fee for their valued 
 
 The owner of the fee, like everyone else, is guilty of a 
 nuisance if he obstructs the highway by an encroachment, 
 such as a bay window extending into the street,* though he 
 may erect gates or doors which swing into the street when 
 opened, pile goods or other material in the street tempor- 
 arily for the purpose of removal, provided no unreasonable 
 obstruction of the way results and the removal is promptly 
 made, and stop carriages or trucks on the street in front 
 of his premises to receive or discharge passengers or goods, 
 all of which, when done reasonably, are incident to his 
 right to use the highway as abutting owner. In this re- 
 spect his rights are the same whether the public has an 
 easement only in the street or highway or owns the land 
 in fee.® 
 
 If a highway or street is used by the public authorities 
 or by a quasi-public corporation for a public purpose not 
 reasonably included within the purpose of a street or high- 
 way, so that it constitutes an additional burden upon the 
 servient estate, the owner must be compensated therefor. 
 Whether or not such user amounts to an additional burden 
 
 151; City of Aurora v. Fox, 78 Ind. 9. Callanan v. Gilman, 107 N. Y. 
 
 1; Rich v. Minneapolis, 37 Minn. 423. 360; Welsh v. Wilson, 101 N. Y. 254; 
 
 In SufBeld v. Hathaway, 44 Conn. Mathews v. Kelsey, 58 Me. 56; Lip- 
 
 521, the court held that the town had pincott v. Lasher, 44 N. J. Eq. 120; 
 
 no right to take the water from a Raymond v. Keseberg, 84 Wis. 303, 
 
 spring on the side of the road within 309; O'Linda v. Lothrop. 38 Mass. 
 
 the highway limits and to lead it to 392 ; RafFerty v. Central Traction Co., 
 
 a watering trough for public use, aa 147 Pa. St. 579. 
 
 the owner of the fee had the exclusive See, also. Original Hartlepool Co. 
 
 right to the water from the spring, v. Gibb, 5 Cli. Div. 713; People v. 
 
 subject to tlie right of the puljlic au- Horten, 64 N. Y. 610; Sherlock v. 
 
 thorities to dispose of the water so Bainbridge. 41 Ind. 35; Pallock v. 
 
 as to prevent its injuring the road. Cleveland Ship Bid. Co., 56 Oh. St. 
 
 7. Makepeace v. Worden, 1 N. H. 655 (involving the similar right of a 
 16. See note 5, supra. riparian owner to stop his ship in 
 
 8. Codman v. Evans, 5 Allen navigable water for a reasonable 
 (Mass.) 308. time in loading or unloading) 
 
KlGHTS OF OWNEES OF LaKD UsED AS HiGHWAT. 735 
 
 depends, of course, on the extent of tlie public's right in a 
 highway. We have already seen that streets and highways 
 in the more populous communities carry with them the 
 right in the public to put in sewers, water and gas mains 
 beneath the surface without creating an additional burden.^" 
 This holding has been somtimes placed on the narrow 
 ground that these improvements are incident to the use of 
 the highway as a way of passage merely, the sewers being 
 available for the purpose of drainage, the gas mains for 
 lighting, and the water pipes for flushing the streets. The 
 same argument has been used to sustain the holding, on 
 which the courts are agreed, that the poles and wires of an 
 electric lighting company, installed in the streets with 
 proper municipal authority, create no additional burden on 
 the f ee.^* It is, of course, obvious that street improvements 
 of this nature are never installed and never would be in- 
 stalled for any such purpose. The one moving and control- 
 ling purpose is the supplying of water, light and sanitation 
 to all the people living along the streets or highways in 
 question who desire to avail themselves of these advantages. 
 The highways are used in these cases for the transfer of 
 water, gas and electricity to the people of the community, 
 just as they have been used for the transfer of coal, groceries 
 or other commodities in the past. A different method of 
 transfer is necessarily employed because of the nature of 
 the commodities dealt with, but the principle is the same. 
 It is as unnecessary as it is unreasonable and unprogressive 
 to base these decisions on the relatively unimportant use of 
 these improvements in the actual enjoyment of the streets 
 for passage merely. The streets and highways are the 
 means by which commodities of any. kind are to be con- 
 veyed to the people, and this applies to gas, electricity and 
 water as well as to other household necessaries. The same 
 
 10. See § 305, ante. v. People Natural Gaa Co., 160 Pa. 
 
 11. Palmer v. Larclimont Elec. St. 367. 
 Light Co., 158 N. y. 231; McDevitt 
 
786 Public Rights. 
 
 principle applies to sewers. The removal of sewage in this 
 way may be accomplished much more effectively than by the 
 wagons used over the highways in the past.^^ 
 
 This principle being understood, the difficulties presented 
 by some of the cases which distinguish between country 
 highways and city streets, as indicated in the preceding 
 section, quickly disappear. The right to use the highway, 
 whether in the country or city, for these purposes is always 
 in the public whenever the occasion may arise as a resnlt 
 of the growth in population of the community involved.*' 
 
 Telegraph and telephone lines and poles create an addi- 
 tional burden for which the owner of the fee is entitled to 
 additional compensation according to the cases in several 
 states, this user by quasi-public corporations, though of a 
 jpublic nature, being regarded as falling outside of a reason- 
 able use of highways as such.^* But if one of the primary 
 purposes of highways is to give to the public open and ade- 
 quate means of intercommunication, whether in person, by 
 messenger or by mail, a proposition about which there can 
 be no doubt, it would seem to follow that the use of high- 
 ways for telegraph and telephone lines, greatly furthering 
 the means of communication between members of the public, 
 is strictly within their original purpose interpreted with 
 reference to these modern developments of social usage. 
 The best considered cases hold that no additional burden 
 
 12. This bvoadsr and more com- See, also, cases in notes immediate- 
 
 piehensive conception of a higliwav ly following. 
 
 as the public's means of transfer and 13. See case, notes 3 and 4, § 305, 
 
 communication has been unmistak- ante. 
 
 ably expressed in the best considered 14. Eels v. Am. Teleph. & Tel. Co., 
 
 of the later cases. See People v. 143 N. Y. 133; Bashfield v. Empire 
 
 Eaton, 100 Mich. 203 and Cater v. St. Teleg. & Telep. Co., IS N. Y. 
 
 Northwestern Telephone Co., 60 Supp. 250; Board of Trade Tel. Co. ▼. 
 
 Minn. 536 (quoted from in not (4) Barnett, 107 111. 507; Chesapeake & 
 
 under § 305, ante) ; Pierce v. Drew, P. Tel. Co. v. Mackenzie, 74 Md. 36; 
 
 136 Mass. 75. Daily v. State, 51 Oh. St. 348. 
 
Eights of Owners of Land Used as HianwAr. 731 
 
 arises from telegraph or telephone lines for which compen- 
 sation to the owner of the fee need be made.^'' 
 
 It is well settled, for obvious reasons, that the use of a 
 street or highway by horse, cable or electric cars adds no 
 additional burden for which compensation to the owner of 
 the. fee need be made. It is a legitimate use of the streets 
 in aid of the public right of passage." A New York case 
 to the contrary is reactionary and unreasonable.^^ 
 
 A steam railroad built along or across a highway, on the 
 other hand, creates an additional burden, and damages must 
 be paid the owner of the fee.^^ The true reason for this is 
 not the fact that such roads carry freight as suggested by 
 some of the cases. Indeed, one of the chief purposes of a 
 highway is the transfer of produce and other commodities. 
 The true reason is that the user is inconsistent with the use 
 of the highway for the usual and ordinary purposes of 
 passage on foot or with private vehicles, and is therefore 
 
 14. Cater v. Northwestern, etc. Co., 
 60 Minn. £/39, and People v. Eaton, 
 100 Mich. 208 (both quoted from in 
 note 4, § 30!/ 1 ; Pierce v. Drew, 136 
 Mass. 75; Jtilife Bid. Assn. v. Bell 
 Teleph. Co., 88 Mo. 258. 
 
 But see Winter v. N. Y. and N. 
 J. Tel. Co., 51 N. J. L. 83; Broome 
 V. N. Y. and N. J. Tel. Co., 49 N. J. 
 L. 624. 
 
 16. Hinckman v. Patterson Horse 
 E. Co., 17 N. J. Eq. 75; Atty-Gen. 
 V. Met. R. Co., 135 Mass. 515; El- 
 liott V. Fair Haven, etc. R. Co., 32 
 Conn. 579; Eafferty r. Central Tract 
 Co., 147 Pa. SL 579; Chicago, etc. R. 
 Co. V. West Chicago, etc. R. C, 156 
 111. 255; Finch v. Pi'/erside, etc. R. 
 Co., 87 Cal. 597. 
 
 17. Craig v. Rochester, etc. R. Co., 
 39 N. Y. 404, three of seven judges 
 dissenting. When the land of the 
 street or highwuy is owixd in fee by 
 
 47 
 
 the public the courts of New York, 
 ab elsewnere. hold that the adjoining 
 owner has no action for the building 
 of surface lines. Matter of Third At. 
 R. Co., 121 N. Y. 536. See, also, § 
 307, note 1, post. 
 
 18. Williams v. N. Y. Central R. 
 Co., 16 N. Y. 97; Henderson v. N. Y. 
 Central E. Co., 78 N. Y. 423 ; Imlay v. 
 Union Branch R. Co., 26 Conn. 249; 
 Grand Rapids, etc. R. Co. v. Heisel, 
 38 Mich. 62; Taylor v. Bay City St. 
 R. Co., 101 Mich. 140; Indianapolis, 
 etc. R. Co. V. Hartley, 67 111. 439; 
 Gait V. Chicago & N. W. R. Co., 157 
 111. 125; Commonweath v. Allen, 148 
 Pa. St. 358; Onset E. Co. v. County 
 Comm'rs, 154 Mass. 395; Chamber- 
 lain V. Elizabethport S. C. Co.. 41 N. 
 J. Eq. 43; Lawrence E. Co. v. Wil- 
 liams, 35 Oh. St. 168; Gustavann v. 
 Hanna, 56 Minn. 334. 
 
T38 Public Rights. 
 
 hostile to the purposes for wMcIi it was established. It 
 imposes on the fee a much heavier burden, and interferes 
 seriously with the owner's right of access to his land along 
 the highway. Some cases hold, however, that even steam 
 railroads may be built on streets and highways without ad- 
 ditional compensation to the owner of the fee, provided 
 that they do not in effect close up the street, unreasonably 
 preventing its use by abutting owners.^® 
 
 § 309. Rights of Abutting Owners, Fee in Public— If the 
 public has acquired title to the land used for street or high- 
 way in fee, it may use the land for any public purpose which 
 does not interfere unreasonably with the right of passage 
 nor with the easements of light, air and access in the street 
 which exist in favor of abutting owners. The building of 
 an elevated railroad structure is such an interference as it 
 unreasonably cuts off light and air and interferes with ac- 
 cess to property abutting on the street. The permanent 
 depreciation in value caused by these structures to abutting 
 owners cannot be regarded as falling reasonably within the 
 limits of the public right, and therefore was not paid for or 
 allowed for when the land was taken or granted for street 
 or highway purposes.^ 
 
 19. Montgomery v. Santa Ana, etc. in the street, Barrows v. Sycamore, 
 
 E. Co., 104 Cal. 186; Sherlock v. 150 111. 588. 
 
 Kansas City, etc. E. Co., 143 Mo. 172; On the general question, see Lewis 
 
 Knapp V. St. L. T. E. Co., 126 Mo. Eminent Domaint, § 91, 1; 2 Dillon 
 
 26; Cox V. Louisville, etc. E. Co., 48 Municipal Corp. §§ 704, 704-a. 
 
 Ind. 178; Burkam v. 0. & M. E. Co., 1. Story v. N. Y. Elev. E. Co., 90 
 
 122 Ind. 344 ; Fulton v. S. E. E. T. N. Y. 122 ; Bischoff v. N. Y. Elev. E. 
 
 Co., 85 Ky. 640. See § 307, note 1, Co., 138 N. Y. 257; Dolan v. N. Y. & 
 
 post. H. E. Co., 175 N. Y. 367, 370; Penn. 
 
 Other illustrations of additional R. Co. v. Duncan, til Pa. St. 352. In 
 
 burdens are — the use of a street or Fries v. N. Y. & Har. E. Co., 169 N. 
 
 square for a public market, State v. Y. 270, the court held that the de- 
 
 Laverack, 34 N. J. L. 201; the build- fendant company could not be held 
 
 Ing of a stand pipe or water tower for damages to an abutting owner 
 
 15 feet in diameter and 135 feet high, arising from elevating its railroad 
 
Eights of Abutting Ownees. 
 
 ISii 
 
 On the other hand abutting owners are not entitled to 
 damages arising from surface street lines, the incidental 
 interference with them in their use of the highway in con- 
 nection with their property having been paid for when land 
 for the street was taken by the public, or the right to cause 
 such damage having been given when the land was dedi- 
 cated to the public. There can be no recovery in such cases 
 for damages arising from change of grade in building street 
 ear lines, provided there is -no actual encroachment on the 
 abutting owner's land, and provided the change of grade is 
 reasonable in itself, and is made with reasonable care.- The 
 same principle applies to any change of grade of streets 
 
 tracks because the change was or- 
 dered by state law, and further be- 
 csuse the street had been used almost 
 exclusively for the purpose of the 
 railroad, so that the change added no 
 additional burden other than that 
 contemplated when the right to main- 
 tain the railroad in the street was 
 acquired. 
 
 The use of streets for steam rail- 
 roads gives abutting owners the right 
 to recover damages arising from in- 
 terference with their easement of 
 light, air and access. Chicago, etc. 
 R. Co. V. Sturey, 55 Neb. 137; S. C. 
 E. Co. V. Steiner, 44 Ga. 546, 560. 
 The public authorities may grant 
 fanchises to use streets for steam 
 railroads, whether elevated or on the 
 surface, the railroad company, not 
 the muneipality, being liable to 
 abutting owners in case of damage 
 arising from unreasonable interfer- 
 ence with their right of access and 
 use of the street. Fobes v. Rome, etc. 
 R. Co., 131 N. Y. 505 ; Eeiming v. N. 
 Y. L. etc. R. Co., 138 N. Y. 157; 
 Kane v. N. Y. EL R. Co., 135 N. Y. 
 164; Olney v. Wharf, 115 111. 519; 
 O. K. & S. R. Co. V. Mayor, 36 Iowa 
 
 299; Hogan v. Central Pac. R. Co., 
 71 Cal. 83; Sherlock v. Kansas City, 
 etc. R. Co., 143 Mo. 173; Decker v. 
 Evansville, etc. R. Co., 133 Ind. 493. 
 For cases v?here the fee of the street 
 or highway is in the abutting owner 
 see § 306, notes 18 and 19, ante. 
 
 Where the exclusive use of tlio 
 street is taken for railroad purposes 
 the abutting owner has a, right of ac- 
 tion for his" damages. Reming v. N. 
 Y. L. etc. R. Co., 135 N. Y. 164; ap- 
 proved in Muhlker v. N. Y. & H. R. 
 Co., 173 N. Y. 549, 555; Sherlock v. 
 Kansas City, etc. R. Co., 142 Mo. 
 173; Decker v. Evansville, etc. R. 
 Co., 133 Ind. 493. 
 
 2. Matter of Third Ave. R. Co., 131 
 N. Y. 536; Raflferty v. Central Trac- 
 tion Co., 147 Pa. St. 579 (holding 
 also that street car must wait if 
 iinpeded by the vehicle of an abutting 
 owner stopped at the curb in deliver- 
 ing or taking away passengers or 
 goods) ; Placke v. Union Depot R. 
 Co., 140 Mo. 634; Howe v. West End 
 St. R. Co., 167 Mass. 46; Detroit St. 
 Ry. Co. V. Mills, 85 Mich. 634. See, 
 also, cases in note 16, § 306, ante. 
 
T4U Public Rights. 
 
 made by the public autborities. If made reasonably and 
 properly no liability is incurred to the abutting owner.' 
 
 The abutting owner's right to use the street or highway 
 as a means of access, with the incidental right to place 
 goods, building material and other personal property in the 
 street for a short time in connection with the delivery or 
 removal of same to or from the premises, and the right to 
 stop vehicles in the street in front of his premises, are the 
 same in the case of abutting owners who have title to the 
 land of the street or highway in fee.* 
 
 § 310. Right of Deviation in Public. — If a highway is 
 impassable any person using the road has a license given 
 him by law because of the necessity of the case to enter 
 on the land of the abutting owner to the extent necessary 
 to get past the obstruction. If the obstruction is one which 
 may easily be removed so as to give a passage, or another 
 public way exists by which the person using the highway 
 may reasonably reach his destination, this license does not 
 exist. In exercising this right he must enter only so far as 
 is strictly necessary, and do as little damage as possible.^ 
 The right does not exist in connection with private rights of 
 way, except where the owner of the servient estate is re- 
 sponsible for the blocking of the way.® 
 
 3. Eadcliff's Exrs. v. Brooklyn, 4 change is made without reasonable 
 N. Y. 195 (tlie court mistakingly de- care, the abutting owner may re- 
 nying tlie existence of the natural cover. Arkon v. Cliamberlain Co., 
 right of support in any case); 34 Oh. St. 328; Cincinnati v. Whet- 
 0'Coi!!i'jr V. Pittsburgh, 18 Pa. St. stone, 47 Oh. St. 196; Roberts v. 
 187 (extreme case, as church build- Chicago, 26 111. 249. 
 ing v,as rendered useless, the court i. See § 306, note 9. 
 criticising the rule) ; Pontiao v. 5. Campbell v. Race, 7 Cush. 
 Carter, 33 Midi. 164 (tlie court ex- (Mass.) 408; Holmes v. Seely, 19 
 pressing clearly tlie iiasis of tliis Wend. (N. Y.) 507; White v. Wiley, 
 rule, such i'T'idental damage being 5S Hun (N. Y.) 618; Irwin v. Yea- 
 paid for in the award on opening the ger, 74 Iowa 174. 
 street, or consented to if the street G. Williams v. Safford, 7 Barb. 'N. 
 were dedicated bj' way of gift). Y.) 309 
 Wliere n n unreasonable grade is es- See § Ui)4, ant*. 
 tablisli.'il by the changes, or the 
 
Creation of Highways and Stebets. 741 
 
 § 311. Creation of Highways and Streets. — Highways 
 and streets come into existence either by (a) dedication, 
 (b) prescription, or (c) by condemnation proceedings un- 
 der a statute authorizing their opening. Each of these 
 methods will be separately discussed. 
 
 (a) Dedication. To constitute a valid dedication of land 
 for a street, highway, park or other public use ^ there must 
 be an offer to dedicate followed by an acceptance by the 
 public. It may take the form of a grant to the municipality 
 accepted by the proper public officials,^ or of a map showing 
 roads and streets subject to which lots or other subdivisions 
 of the tract so mapped are conveyed,^ or it may consist of 
 the mere opening up and improvement of the road or street 
 for public use. Any action or conduct formal or informal, 
 by which the owner offers the land for public use as a street, 
 highway, park or the like is a valid offer to dedicate, pro- 
 vided that it clearly and publicly evinces his intent to dedi- 
 cate his land to the use of the public* If the street or way 
 
 1. Land may be dedicated to any be limited to the winter months by 
 public use, as for school purposes, for the express terms of the deed ) . See 
 a public cemetery, for a public dock, Marsh v. Fairbury, 163 111. 401, and 
 for parks or public squares as well Archer v. Salinas City, 93 Cal. 43, 
 as for highways or streets. See Hun- stating that dedication may be by 
 ter V. Trustees, etc., 6 Hill (N. Y.) deed or other positive act accepted 
 407; Cincinnati v. White's Lessee, 6 and taking eflFect at once. 
 
 Pet. (U. S.) 431- Atty.-Gen. v. Farr, 3. Bridges v. Wyekoff, 07 N. Y. 
 
 148 Mass. 309; Abbott v. Cottage 130; People v. Underliill, 14-1 N. Y. 
 
 City, 143 Mass. 521; Price v. Plain- 316; Eclcerson v. Havorstraw, 6 App. 
 
 field, 40 N. J. L. COS ; West V. Edson, Div. (N. Y.) 103; Trustees, etc. v. 
 
 IS Oh. St. 221; Pittsburgh V. Epping, Hoboken, 33 N. J. L. 13; Clark v. 
 
 etc. Co., 194 Pa. St. 318. See Pear- Elizabeth, 40 N. J. L. 172; Quicksall 
 
 sail V. Post, 20 Wend. (N. Y.) Ill, v. Philadelphia, 177 Pa. St. 305; 
 
 and Post v. Pearsall, 22 Wend. 425, Fossion v. Lai dry, 123 Ind. 136; 
 
 holding contra, as to public wharf or Ruddiman v. Taylor, 95 Mich. 547. 
 
 dock. The better and prevailing view 4. Hayden v. Stone, 112 Mass. 346; 
 
 is expressed in Atty.-Gen. v. Farr, Commonweath v. R. R. Co., 135 Pa. 
 
 148 Mass. 309, supra. St. 356; Wheatfield v. Grandmann, 
 
 2. Hughes V. Bingham, 135 N. Y. 164 111. 350; Huffman v. Hall, 103 
 347 (holding that such a grant iB Cal. 26. 
 
 valid, though the use of the highway Acquiesence by the owner in the 
 
742 Public Rights. 
 
 is slmt off by a gate or other obstruction, or is marked by 
 a sign " private way," or if by any other means an in- 
 tention not to dedicate to the public is shown, an offer to 
 dedicate does not exist, no matter how much the public 
 may make use of it, nor how valuable to the public it may 
 be.« 
 
 The offer must be accepted by the public. This accept- 
 ance may be in the form of an express accepting or taking 
 over of the streets, ways, squares, or the like, by the 
 proper local authorities in behalf of the public, or by their 
 acceptance of an express grant convejdng them, or by the 
 implied acceptance of them as public highways, streets, etc., 
 through the repairing or improving of them as such, mark- 
 ing them with street signs, or in any other way clearly and 
 unequivocally using them as public property.* Mere use by 
 the public for less than twenty years will not amount to such 
 acceptance when unaccompanied by some such act of ac- 
 ceptance by the proper public officers, since a private person 
 cannot impose on the town or city the burden and responsi- 
 bility involved in caring for a public street or highway by 
 
 use of his land by the public, with- 70; State v. Green, 41 Iowa, 693; 
 out circumstances showing intent to Bidinger v. Bishop, 76 Ind. 244. 
 dedicate, such as the sale of lots sub- Payment of taxes on the land by 
 ject to a map, the opening of a way the owner is some evidence of intent 
 for public use, or the expenditure of not to dedicate. Rhodes v. Bright- 
 money in improving or repairing the wood, 145 Ind. 81; Ottawa v. 
 way by the public authorities with Yeutzer, 160 111. 509. 
 the owner's knowledge and implied G. People v. Underhill, 144 N. Y. 
 consent, will not amount to a dedica- 316; Matter of Hunter, 164 N. Y. 
 tion. Herbold" v. Cliicago, 108 111. 365, 367; Holdone v. Cold Spring, 21 
 467; Huffman v. ITall, 102 Cal. 26; N. Y. 474; Booraem v. Ey. Co., 39 
 Borough of Verona v. E. E. Co., 152 N. J. Eq. 465; Riley v. Hammel, 38 
 Pa. St. 368, and cases above cited Conn. 574; Hall v. Meridan, 48 Conn, 
 in this note. 416; Hayden v. Stone, 113 Mass. 
 5. Carpenter v. Gwynn, 35 Barb. 346; Chicago v. Drexel, 141 111. 89; 
 (N. Y.) 395 (gates generally main- Prescott v. Edwards, 117 Cal. 298; 
 tained; removed while grading Du Bois Cem. Co. v. Griffin, 165 Pa. 
 road); Commonwealth v. Newbury, St. 81; Town of Fowler v. Linquist, 
 19 Mass. 51 (gates showed intent not 138 Ind. 566; White v. Smith, 87 
 to dedicate) ; People v. Reed, 81 Cal. Mich. 290. 
 
CEBATioisr OF Highways and Stehkts. 
 
 743 
 
 his mere act of opening it up, thongh followed by more or 
 less general use by the public under the owner's licensed 
 Nevertheless where it is beneficial to the public an accept- 
 ance will usually be presumed from such public use con- 
 tinued for a considerable time, at least as against the owner. 
 No fixed time is required. If the public user continues long 
 enough to establish that the land has been taken by the 
 public as a street or highway in fact as well as intent an 
 acceptance has taken place and the dedication is complete 
 without action by the authorities.* A user of twenty years 
 is not required. Such a user creates a public way by pre- 
 scription.* 
 Before acceptance the offer may be withdrawn by the 
 
 7. Booraem v. Ry. Co., 39 N. J. Eq. 
 465; Point Pleasant L. Co. v. Cram- 
 mer, 40 N. J. Eq. 81; People v. Un- 
 derhill, 144 N. Y. 316; Ploldane v. 
 Cold Spring, 21 N. Y. 474, and other 
 cases cited in preceding note. 
 
 8. State V. South Amboy, 57 N. 
 J. L. 253; Hartford y. E. E. Co., 59 
 Conn. 250; Atty-Gen. v. Farr, 148 
 Mass. 309; Holdane v. Cold Spring, 
 21 N. y. 474. 
 
 The differences in the cases on this 
 question of acceptance is largely a 
 difference in form of expression, 
 rather than of substance. Where no 
 formal acceptance by the proper pub- 
 lic officials can be shown, and no 
 acceptance on their part, by grading, 
 improving or repairing tne street or 
 highway, is established, a user by the 
 public under circumstances which 
 clearly show an intent to dedicate 
 in the owners and an intent of the 
 general public to avail itself thereof, 
 will amount to an acceptance, it be- 
 ing clearly established that the pub- 
 lic has clearly and unequivocally 
 made use of the land dedicated fof 
 
 the purposes of the dedication. Where 
 the user is equivocal, as consistent 
 with a private easement as with a, 
 public way, no acceptance binding on 
 the public will be found to exist. 
 Holdane v. Cold Spring, supra; 
 Booraem v. Ry. Co., 39 N. J. Eq. 465 ; 
 Chicago V. Drexel, 141 111. 89. 
 
 See cases in notes following, deal- 
 ing with revocation of the offer to 
 dedicate. 
 
 In the case of a street or highway, 
 involving the incurring of expense 
 and responsibility by the town or 
 city, an acceptance from mere user 
 will not be presumed, unless the user 
 is such that the public convenience 
 would be seriously interfered with by 
 its interruption. The question is, 
 can intent to accept be reasonably 
 inferred, in this case as well as in the 
 other cases above referred to? Ab- 
 bott v. Cottage City, 143 Mass. 521; 
 Guthrie v. New Haven, 31 Conn. 308; 
 State V. South Amboy, 57 N. J. L. 
 252. 
 
 9. See note 14, post, under this sec- 
 tion. 
 
744 
 
 Public Rights. 
 
 owner. '•* But when the dedication has been completed by 
 acceptance on the part of the public it cannot be revoked. 
 The right of the public has then become absolute.'* 
 
 It is generally stated that dedication is founded on the 
 doctrine of estoppel in pais}^ "Where land is granted to a 
 city or town for public use, there is no doubt that title vests 
 in the municipal corporation in trust for the public. There- 
 fore where land is granted to a municipality in fee for a 
 street or highway, it holds the legal title in trust for the 
 public, and no question of estoppel can arise, any more than 
 in the case of any other valid conveyance from one person 
 
 10. Bridges v. Wyckoff, 67 N. Y. 
 442 ; Holdane v. Cold Spring, 21 N. Y. 
 474; Riley v. Hammel, 38 Conn. 574; 
 Prescott V. Edwards, 117 Cal. 298; 
 Chicago V. Drexel, 141 HI. 89; Dia- 
 mond Match Co. V. Ontonagon, 72 
 Mich. 249. 
 
 In some cases the position seems to 
 have been taken that where lots have 
 been sold by reference to a, map in- 
 dicating streets, parks, squares, etc., 
 the dedication cannot be revoked by 
 the vendor, though not binding on the 
 public until acceptance, though it 
 may be revoked before acceptance if 
 the private easements are all released 
 or otherwise disposed of, the argu- 
 ment being that the private easement 
 necessarily requires that the streets 
 or highways be kept open to t!ie gen- 
 eral public. Point Pleasant L. Co. v. 
 Crammer, 40 N. J. Eq. 81 (the court 
 refusing to enjoin a public hackman 
 from using such roads before accept- 
 ance) ; Trustees v. Hoboken, 33 N. J. 
 L. 13; Rhodes v. Brightwood, 145 Ind. 
 21; Bartlett v. Bangor, 67 Me. 460; 
 Quicksall v. Philadelphia, 177 Pa. St. 
 305 (the court holding that the gran- 
 tor impliedly covenants that land in- 
 
 dicated for streets shall be open to 
 public use as such). 
 
 This right, however, exists in the 
 vendees of the lots as incident to 
 their private easements. As far as 
 the public is concerned, the offer to 
 dedicate may be withdrawn at any 
 time before acceptance by the public 
 in some form. Prescott v. Edwards, 
 117 Cal. 298; Village of Vermont v. 
 Miller, 161 111. 210; Diamond Match 
 Co. V. Ontonagon, 72 Mich. 249, and 
 cases first above cited. 
 
 11. See cases in preceding note, 
 also in notes 6 and 8, ante. 
 
 12. In Hunter v. Trustees, etc., 6 
 Hill (N. Y.) 407, the court said: "Its 
 effect (dedication) is not to deprive 
 a party of title to his land, but to 
 estop him, while the dedication cor,- 
 tinues in force, from asserting thrt 
 right of exclusive possession and en- 
 joyment which the ovmer of property 
 ordinarily has. The principle upon 
 which the estoppel rests is, that it 
 would be dishonest, immoral and in- 
 decent * • • to reclaim at pleas- 
 ure property which has been solemnly 
 devoted to the use of the public * ♦ • 
 See Flack v. Green Island, 122 N. Y. 
 107; Wilder v. St. Paul, 12 Minn. 116. 
 
Ckeation of Highways and Steeets. 745 
 
 to another. Where the grantor retains the fee in the land, 
 conveying only an easement to the local municipal body, 
 the same result follows, the municipal corporation taking 
 the easement in trust for the public. Where there is no 
 formal grant, but dedication by the physical opening of 
 the street or highway, or by platting same on a map subject 
 to which abutting property is sold, the dedication is com- 
 plete on formal taking over of the streets or acceptance of 
 the offer by the proper municipal authorities, though no 
 money has been expended nor any actual change in position 
 made which would justify the application of the doctrine 
 of estoppel in pais. In fact the formal or informal dedica- 
 tion of land to a public purpose, completed by acceptance, 
 seems to be an unusual method of conveying an interest in 
 land, to which the Statute of Frauds has no application 
 and in which a writing or other formal conveyance is not 
 required. It stands of itself, without the need of appealing 
 for support to the doctrine of estoppel.*' 
 
 (b) Prescription. Highways, streets and other public 
 rights of the same nature may arise by a prescriptive user 
 on the part of the public for twenty years or more. As in 
 the case of private ways by prescription the user must be 
 open, continuous, uninterrupted and reasonably uniform, 
 adverse, or without the license of the owner.'* The same 
 
 13. In Hoboken Land & Imp. Co. v. created without the intervention of 
 
 Hoboken, 36 N. .J. L. 540, 547, the the ordinary common law assurances, 
 
 court said: "Although the doctrine The intention of the donor may be 
 
 of dedication is founded on principles gathered from his acts and declara- 
 
 which are peculiar, yet it will be tions, resting only in parol. But 
 
 seen on an analysis and comparison of when the intention is once ascer- 
 
 the cases, that it differs from a grant tained, the character and scope of the 
 
 only in the mode and the means by dedication are as unalterably fixed as 
 
 which a dedication is effected. Dedi- if the gift had been consummated by 
 
 cation is distinguished from a grant a formal instrument of grant." 
 in that no special grantee need be in 14. Jennings v. Tisbury, 5 Gray 
 
 existence to accept the gift, and con- (Mass.) 73; Cohoes v. D. & H. Canal 
 
 trary to the rules of the common law, Co., 134 N. Y. 397; Smith v. State, 
 
 an interest in land.i may thereby be 23 N. J. L. 130; Wheatfleld v. Grund- 
 
746 Public Rights. 
 
 general principles that govern easements by prescription be- 
 tween private parties apply to public prescription. The 
 cases base this doctrine on the fictitious presumption that 
 the highway or street must have had some legal origin, 
 either by dedication or by eminent domain, which is just as 
 meaningless here as the similar presumption of a lost grant, 
 advanced as the foundation principle of private easements 
 arising by prescription, since the public easement arises 
 though it be shown conclusively that it had no legal origin. 
 It is better to put the doctrine on the same basis as pre- 
 scription giving rise to private easements, viz. : the barring 
 of the owner's right to sue members of the public after 
 twenty years, by analogy to the Statute of Limitations as 
 applied to actions to recover possession of laiid." 
 
 (c) Eminent Domain. Streets and highways may be 
 opened by condemnation proceedings under the power of 
 eminent domain. The land or easement is taken in such 
 cases for a public purpose, and full compensation must be 
 made the owner, the cost of the opening being assessed on 
 the property benefitted. The details of these proceedings 
 are covered by statute in the different states, and the discus- 
 sion of them is obviously outside the scope of this treatise. 
 
 § 312. Extinction of Highways and Streets. — Statutes in 
 the different states provide for the closing of highways or 
 streets by taking the steps which the statute prescribes. 
 Abutting owners in such cases are generally entitled to 
 compensation for the damage incurred by them as a result 
 of the closing.^ 
 
 Abandonment of the highway, established not only by 
 non-user on the part of the public but also by user for in- 
 
 marni, 164 HI. 850; Weiss v. South tion is discussed in its relation to pri- 
 
 Bethlehem, 136 Pa. St. 294. See § vate easements 
 
 284, ante, as to private easements 1. 1 Elliott Roads and Streets, §§ 
 
 arising by prescription. 879-881 ; 15 Am. & Eng. Ency. of 
 
 15. See § 284, ante, where this ques- Law 396, Article by Prof. Tiffany. 
 
ExTiNOTioN OS Highways and Ste>e>ets. 747 
 
 consistent purposes long acquiesced in by the public, ex- 
 tinguishes the public easement exactly as similar abandon- 
 ment extinguishes private easements. Mere non-user is evi- 
 dence only of abandonment to be considered with other 
 facts in determining whether or not the public has relin- 
 quished its right.^ Some of the cases have based this rule on 
 the presumption arising from such facts that the required 
 legal steps had been taken some time in the past to legally 
 close the highway.^ The so-called presumption means 
 nothing, as it is very clear in most cases that no such steps 
 were ever taken or ever contemplated. The principle un- 
 derlying the rule does not seem to have ever been clearly 
 expressed in the cases. Private easements are extinguished 
 by abandonment because the owners of the servient estate 
 is induced by the apparent abandonment of the easement on 
 the part of the dominant owner to waive expense in improv- 
 ing or in otherwise making use of the land affected by the 
 easement so that injustice would result to him in case the 
 use of the easement should be renewed. The dominant owner 
 is estopped from reasserting his right to the easement.* 
 The same principle is the basis for the extinction of the 
 public's easement in a highway or street by abandonment. 
 The servient owner is induced to enclose the highway, or 
 
 2. Holt V. Sargent, 81 Mass. 97; had been abandoned. All the ele- 
 Peoria v. Johnston, 56 111. 45; ments of estoppel exist, therefore, in 
 Knight V. Heaton, 23 Vt. 480; Bice most of the cases, though the princi- 
 V. Wolcott, 64 Minn. 459; Louisville, pie seems to have been rarely rcfev- 
 etc. R. Co. V. White, 94 Ind. 257; red to as the basis for the rule. 
 Larson v. Fitzgerald, 87 Iowa 403; In Bice v. Walcott, 64 Minn. 459, 
 Beardsley v. French, 7 Conn. 135. the court stated, after holding that 
 
 3. Holt V. Sargent, 81 Mass. 97; a prescriptive adverse user could not 
 Beardsley v. French, 7 Conn. 135. run against the public, that the pub- 
 
 In most if not all of the cases, in lie may be estopped by acquiescence 
 addition to non-user for many years if any continued adverse user takes 
 it appears that the servient owner place and large expenditures are in- 
 fenced in and improved the highway, ourred in improving the property bo 
 or part of it, or that subsequent pur- held by the abutting owner, 
 chasers of the land affected took title 4. See § S97, ante. 
 believing that the public easement 
 
"748 Public Rights. 
 
 to build on it, or make some other use of it, incurring ex- 
 pense in so doing, because of the apparent abandonment of 
 the easement by the public, justice requiring that the situa- 
 tion thus created be not disturbed thereafter by a reasser- 
 tion of the public's right.* 
 
 The general rule is that the public's right will not be 
 affected by mere adverse user. Therefore a prescriptive 
 user of a highway for twenty years or more does not affect 
 the public easement, unless an abandonment can be shown. 
 The mexium " Nullum tempus occurrit regi " applies. The 
 unlawful occupation or use of a public highway is a public 
 nuisance, which wUl not be made lawful by any period of 
 prescriptive user.® In some states it is held that a munici- 
 pal corporation is subject to the rules of prescription, treat- 
 ing it as a quasi-private corporation in holding title to 
 streets and highways in behalf of the public, a position 
 clearly unsound, since the ultimate right is in the public, 
 not in the municipality.'' The tendency to confuse prescrip- 
 tive user with abandonment is quite natural, but it is clear 
 that the two doctrines are entirely distinct, resting on en- 
 tirely different principles. 
 
 In several states statutes have been enacted that a high- 
 way shall be treated as abandoned if not OTened up and 
 
 6. See note 3, supra. and the city '^vj^'g no authority to 
 
 6. Driggs V. Phillips, 103 N. Y. 77 convey the titl, ^.irivate persons are 
 
 (the court stating that unlawful oc- virtually pr dded from acquiring 
 
 cupation in such case is a nuisance it " ) . , '^ 
 
 for which no lapse of time would en- 7. Mfg^a v. Lincoln, 33 Neb. 566 
 
 able the owner to prescribe) ; Hobo- citing' leading cases on both sides of 
 
 ken, etc. Co. v. Hoboken, 36 N. J. L. ^US question) ; Big Kapids v. Com- 
 
 540 ; Commonwealth v. Mooreheacl, stock, 65 Mich. 78 ; Knight v. Heaton, 
 
 118 Pa. St. 344; Bice v. Walcott, 64 22 Vt. 480 (last two cases may be 
 
 Minn. 459; Wolfe v. Town of Sulli- sustained on theory of abandonment, 
 
 van, 133 Ind. 331; Heddleston v. as may most of the cases sustaining 
 
 Hendricks, 52 Oh. St. 460; Hoadley the doctrine of extinction by pre- 
 
 V. San Francisco, 50 Cal. 265 (the scriptive user) ; Town of Litchfield 
 
 court saying: "It cannot be con- v. Wilmot, 3 Root (Conn.) 288 
 
 veyed to private persons and is ef- (based on interpretation of a statute 
 
 f«etually withdrawn from commerce, peculiar to Connecticut). 
 
Public Rights of Navigation. 749 
 
 tised as such within a stated time, usually five or six years 
 after its establishment. If opened sufficiently so that it may 
 be used for public travel the statute is sufficiently com- 
 plied with, though much work remains to be done in order 
 to put it in good condition.* Similar statutes provide that 
 failure to use a highway as such for a like period after it 
 has been opened up will be an abandonment.* 
 
 On the extinction of the highway, either by proceedings 
 under the statute or as the result of abandonment, title to 
 the land remains in the original owners free and clear of 
 the easement.^" Where title is taken in fee by the state or 
 municipality there is some authority for the proposition that 
 the fee is subject to the limitation that the land be used for 
 the purposes of a street or highway, and if such user be 
 given up or abandoned, title reverts to the original owner.^' 
 
 § 313. Public Right of Navigation. — The public has the 
 right to use for purposes of navgiation all arms of the sea 
 and streams in which the tide ebbs and flows, and also all 
 streams which are in fact navigable. In England this right 
 exists only in streams in which the tide ebbs and flows, most 
 of the streams in that country being navigable in fact only 
 to the extent that they are affected by the tide.^ But in this 
 
 8. Hovey v. liaverstraw, 1S4 N. Y. rather a surrender to him of the pub- 
 273 (within six years); Pickford v. lie riglit). 
 
 Lynn, 98 Mass. 491; Trotter v. Bar- 11. Fairohild v. St. Paul, 46 Minn, 
 
 rett, 164 111. 262. 540; Gcbbhardt v. Reeves, 75 111. 
 
 9. Amsbry v. Hinds, 46 N. Y. 57 301 (holding that title reverts to 
 (six years) ; Mercer Co. v. Penn. E. the original owner, not the abutting 
 Co., 45 N. J. L. 82 (live years) ; Her- owner, whose title extends only to 
 rick V. Geneva, 93 Wis. 114 (five outer line of street). Contra, Pet- 
 years) ; McRose v. Bottyer, 81 Cal. tingill v. Devin, 35 Iowa 344. See, 
 123 (five years) ; Tiffany Real Prop., also, Tifft v. Buffalo, 82 N. Y. 204, 
 § 365. holding that the winding up of a 
 
 10. Thompson v. McCormick, 136 turnpike Co. did not cause a reverter 
 111. 135; Paul v. Carver, 34 Pa. St. of the fee to the original owners, the 
 207 (holding that the owner is en- road having been taken over as a 
 titled to no compensation since noth- public road. 
 
 ing is taken from him; there is 1. The stream or cliannel, thou"h 
 
TSO 
 
 Public Rights. 
 
 country, with its great lakes and rivers on wliicli an ex- 
 tensive commerce is carried on, the test is whether or not the 
 stream is navigable in fact. It is navigable if it is of such 
 size and character that it can be used regularly for the pur- 
 poses of transportation and commerce.^ It is not " every 
 small creek in which a fishing skiff or gunning canoe can be 
 made to float at high water which is deemed navigable, but, 
 in order to give it the character of a navigable stream, it 
 must be generally and commonly useful to some purpose 
 of trade or agriculture. ' " If the stream is such that it af- 
 fords a channel for useful commerce it is a navigable stream, 
 though it contain natural obstructions, such as rapids and 
 sand-bars which render navigation difficult.* 
 
 affected by the tide, must be navi- 
 gable in fact. " If it is a petty 
 stream, navigable only at certain 
 periods of the tide, and then only 
 for a very short time, and by very 
 small boats, it is difficult to sup- 
 pose that it ever has been a public 
 navigable channel. Bayley, J., in 
 King V. Montague, 4 B. & C. 598, 
 602. See, also, Commonwealth v. 
 Vincent, 108 Mass. 441, 447. 
 
 2. " The doctrine of the common 
 law as to the navigability of waters 
 has no application in this country. 
 Here the ebb and flow of tlie tide do 
 not constitute the usual test, as in 
 lOnglnnd. or any test at all of the 
 navigability of waters. Tliere no 
 waters arc navigable in fact, or, at 
 least, to any considerable extent, 
 which are not Eul]jcct to the tide. 
 * * * But in this country tin.' 
 case is widely different. * * • 
 Those rivers must be regarded as 
 public navigable rivers in law which 
 are navigable in fact." Field, J., iu 
 The Daniel Ball, 10 Wall. 557, 563; 
 f!om. V. Vincent, 108 Mass. 441; Ad- 
 
 ams V. Pease, 2 Conn. 481; Brown 
 V. Chadbourne, 31 Me. 9; Smith v. 
 City of Rochester, 92 N. Y. 473; 
 Eneminger v. People, 47 111. 366; 
 Carson v. Blazer, 3 Bin. (Pa.) 475, 
 and cases in notes following. 
 
 3. Eowe V. Granite Bridge Corp., 
 81 Pick (Mass.) 344. 
 
 4. The Montello, 20 Wall. 430. 
 The public may use navigable 
 streams for passage and transporta- 
 tion with any kind of craft. The 
 right extends to and includes the 
 right to float logs dovm a stream, if 
 the stream is of sufficient size for the 
 purpose at regularly recurring peri- 
 
 ,ods or seasons, to the extent, at least, 
 of such logs as are cut from timber 
 growing in territory from which the 
 stream flov^s. Brown v. Chadbourne, 
 31 Me. 9; Hooper v. Hobson, 57 Me. 
 273; Harold v. Jones, 86 Ala. 274 
 (holding that a stream large enough 
 for floatage purposes only in peri- 
 odical seasons of high water, is a. 
 public highway during such seasons 
 only) ; Carter v. Thurston, 58 N. H. 
 104; Koopman v. Bloodgett, 70 Mich. 
 
Public Eights of !N"ayigatiof. 
 
 751 
 
 The title to land under tidal waters below high, water 
 mark is in the state, the owners of the adjoining upland 
 owning only to the high water mark.' In some states, how- 
 ever, the shore, between high and low water marks, belongs 
 to the owner of the upland,*' while in others he has the right 
 to fill in and reclaim from the sea or stream land under 
 water in front of his property, such land becoming his in 
 feeJ The great rivers of the country and the great lakes, 
 forming important channels of commerce, are public waters 
 of the state and nation, whether the tide flows in them or 
 not, and title to the land thereunder is in the state, not in 
 the riparian owners.® But the beds of smaller streams in 
 any state which have not been declared to be public waters, 
 belong to the riparian owners to the thread of the stream, 
 subject to the public right of navigation if the stream is in 
 fact navigable.** It does not follow, therefore, because a 
 
 610, 617 (the court stating that they 
 cannot be used as public highways 
 for floatage from all quarters, but 
 only from the territory which they 
 naturally serve) ; Grand Bapids v. 
 Powers, 89 Mich. 94. 
 
 Logs which have been washed 
 ashore may be reclaimed, the owner 
 incurring no liability for damages to 
 the riparian owner unless he does 
 some unnecessary damages in remov- 
 ing them. Carter v. Thurston, 58 N. 
 H. 104; Forster v. Juniata Bridge Co., 
 16 Pa. St. 393. In Sheldon v. Sher- 
 man, 43 N. Y. 484, the court stated 
 that if the owner of logs deposited 
 along the shore enter to remove them, 
 he must pay damages to the owner 
 of the land so entered upon, but not 
 if he abandons the logs. In Maine, 
 "by statute, the owner may reclaim 
 his logs on paying damages. Brown 
 V. Chadbourne, supra, statute, c. 67, 
 ^ 11. 
 
 5. Shively v. Bowlby, 152 U. S. 1 
 .(containing a. review of the authori- 
 
 ties in the different states) ; Swerigen 
 V. St. Louis, 185 U. S. 88; Kean v. 
 Calumet Canal Co., 190 U. S. 453. 
 
 6. Litchfield t. Scituate, 136 Mass. 
 39; Lapish v. Bangor Bank, 8 Greenl. 
 (Me.) 85; Clement v. Burns, 43 N. H. 
 609, 631; Code, Virginia, eh. 101, § 5. 
 
 7. Mather v. Chapman, 40 Conn. 
 383; N. J. Revision, Wharves, §§ 1, 2, 
 8; Providence Steam Eng. Co. v. Prov- 
 idence Steamship Co., IS E. 1. 348, 
 363. 
 
 8. See cases in note 5, supra, also 
 Benson v. Morrow, 61 Mo. 345; Ryan 
 V. Brown, 18 Mich. 196; Lincoln v. 
 Davis, 53 Mich. 375; Wood v. Fowler, 
 36 Kan. 682; Shrunk y. Schuylkill 
 Navig. Co., 14 S. & E. (Pa.) 71; 
 Houghton V. Chicago E. Co., 47 Iowa 
 370. 
 
 In New York, the bed of the Hud- 
 son and the Mohawk belongs to the 
 state. Smith v. City of Rochester, 93 
 N. Y. 473; The Canal Appraisers, 33 
 N. Y. 46. 
 
 9. Smith V. City of Rochester, 91 
 
752 Public Rights. 
 
 stream is navigable that title to the bed of the stream is in 
 the state. 
 
 The right of navigation is simply the right of the public, 
 and of every person as a member of the public, to use the 
 stream as a right of way for the transportation of persons 
 and property. In general its incidents are similar to the in- 
 cidents of the use by the public of highways and streets. It 
 involves, in addition to, or rather as incident to the right 
 of passage, the right to moor boats and ships, to load and 
 imload them, to remain at anchor at any point in the stream, 
 and to do any other thing necessary or usual to navigation, 
 just as highways may be used in a similar way in stopping, 
 loading and unloading wagons or other vehicles of convey- 
 ance, provided the act of user does not unreasonably inter- 
 fere with the rights of other persons in their rightful use of 
 the stream."* A user which unreasonably blocks navigation, 
 or which unreasonably interferes with a riparian owner's 
 right of access to the stream wUl constitute a nuisance, pub- 
 lic or private, depending on whether the public right of 
 navigation is obstructed or only the private right of a 
 riparian owner.** 
 
 N. Y. 473; Ryan v. Brown, 18 Mich. Where title to the bed of the stream 
 
 196; Eneminger v. The People, 47 111. is in the state, the riparian owner has 
 
 366; The People v. Piatt, 17 Johns, a right of access to the stream aa a 
 
 (N. Y.) 211; Hooker v. Cummings, highway, the reasonable exercise of 
 
 20 Johns. 90; Com. v. Chapin, 5 Pick, which cannot be interfered with by 
 
 199; Adams v. Pease, 2 Conn. 481. any unreasonable exercise of the right 
 
 10. Anonymous, 1 Camp. 517. note; of navigation by the public, as by 
 Grig. Hartlepool Co. v. Gibb, 5 Oh. D. mooring directly across his landing 
 713; People v. Horton, 64 N. Y. 610; place for an unreasonable time. See 
 Harrington v. Edwards, 17 Wis. 586; cases cited in preceding notes, par- 
 Sherlock V. Bainbridge, 41 Ind. 35; ticularly Orig. Hartlepool Co. v. Gibb, 
 Pollock V. Caeveland Ship Bid. Co., 56 5 Ch. Div. 713. If his right of access 
 Oh. St. 655. is cut off, by a grant of the shore to 
 
 11. See eases in last preceding note, a railroad company for its right of 
 also, Cobb v. Bennett, 75 Pa. St. 326; way, he is entitled to damages. Rum- 
 Woodman V. Pitman, 79 Me. 456; sey v. N. Y. & N. Eng. R. Co., 133 N. 
 Peoples' Ice Co, v. Excelsior, 44 Mich. Y. 79. See § 289. ante. The state 
 229; Milwaukee Gas Light Co. v. may and frequently does grant land 
 Schooner " Gamecock," 23 Wis. 144. under water to the owner of the up- 
 
Eights of Fishing. 
 
 763 
 
 § 314. Rights of Fishing. — The public has the right to 
 fish in the sea, arms of the sea and navigable rivers, title to 
 the beds of which are in the state.^ But where the bed of 
 the stream belongs to the abutting owners the public has no 
 such right, the abutting owners having the exclusive right 
 to fish in waters flowing over their land.^ In Massachusetts 
 and the other New England states in which the owner of 
 the upland has title to low water mark the public may fish 
 in the water over the land between low and high water 
 mark, the owner's title continuing subject to the public's 
 right of navigation and fishing until such land is taken up 
 by a dock or reclaimed.® No right to enter on the land 
 above hight water mark accompaines this right, and any 
 such entry will be a trespass.* 
 
 land that he may improve it by erect- 
 ing docks, etc., subject to rights re- 
 served in favor of the public to use 
 docks so erected, and subject to the 
 rights of the federal government in 
 public waters. The grant can be made 
 only to the owner of the upland. 
 N. Y. Pub. Land Law, L. 1894, ch. 
 317, amd. by L. 1895, ch. 208, § 80. 
 
 1. Warren v. Matthews, 6 Mod. 73} 
 Weston V. Sampson, 8 Cash. (Mass.) 
 347; Hooker v. Cummings, 20 Johns. 
 (N. Y.) 90; Arnold v. Mundy, 6 N. 
 J. L. 1; Lincoln v. Davis, 53 Mich. 
 375; Sloan v. Biemiller, 34 Oh. St. 
 493; Carson v. Blazer, 2 Bin. (Pa.) 
 475; Turner v. Hebron, 61 Conn. 175, 
 187. 
 
 2. Albright v. Cortright, 64 N. J. L. 
 330; Holyoke Water P. Co. v. Lyman, 
 15 Wall. 500; Waters v. Lilley, 4 
 Pick. (Mass.) 145; Lincoln v. Davis, 
 53 Midi. 375; Beckman v. Kreamer, 
 43 III. 447. 
 
 As to " great ponds " in Massachu- 
 setts, see Slater v. Gunn, 170 Mass. 
 509. 
 
 The state has the undoubted right 
 to regulate fishing by laws binding on 
 
 48 
 
 private owners fishing in their own 
 waters as on the public at large. Par- 
 ker V. People, 111 ni. 581, 689. 
 
 Private owners cannot interfere 
 with the free passing of fish through 
 the stream in either direction, since 
 it would interfere with the right of 
 fishing of other owners up and down 
 the stream. Commonwealth v. 
 Chapln, 5 Pick. (Mass.) 199, 202. 
 
 3. Weston v. Sampson, 8 Cush. 
 (Mass.) 347; Proctor v. Wells, 103 
 Mass. 216; Moulton v. Libbey, 37 Me. 
 472; Hogg v. Beerman, 41 Oh. St. 81. 
 This includes the right to go on the 
 shore between high and low tide, 
 when the tide is out, in order to take 
 fish. Packard v. Ryder, 144 Mass. 
 440. 
 
 4. 3 Kent Com. 417; Cortelyou v. 
 Van Brundt, 2 Johns. 357. The pub- 
 lic's right to fish gives no right to 
 attach weirs or other appliances to 
 the shore, nor to dry nets or fish 
 thereon. Matthews v. Trent, 75 Me. 
 594; New England Trout, etc. Club 
 V. Mather, 68 Vt. 338; Lincoln y. 
 Davis, 53 Mich. 375. 
 
Y54 Deeds and Cokvetances. 
 
 CHAPTER XXL 
 
 Deeds and Conveyances. 
 
 § 315, Common Law Conveyances of Title; (a) Lwery of 
 Seisin and Grant — The regular and nsual method of con- 
 veying title to land at the early common law was by livery 
 of seisin, or feoffment. Since the doctrine of seisin is the 
 foundation of so much of the law of real property it has 
 been necessary to treat this kind of conveyance fully in an 
 early chapter of this work,^ and therefore a further discus- 
 sion of it may be dispensed with here. It should be remem- 
 bered that it involved an actual physical delivery of the 
 property by the feoffer to the feoffee generally followed by 
 a ' ' charter ' ' or deed of feoffment which defined the estate 
 which had been transferred by the livery of seisin. This 
 deed transferred no title. It simply defined and limited the 
 estate already transferred by the livery. This deed, or any 
 other writing, was unnecessary until after the enactment 
 of the Statute of Frauds, livery of seisin made in due form 
 being sufficient, though the deed of feoffment was generally 
 used. Every present freehold estate, in fee, in tail and for 
 life, required livery of seisin in its creation. Incorporeal 
 interests, involving no present right of possession and o^vn- 
 ersliip of the land, such as easements, servitudes, remain- 
 ders and reversions could not be transferred by livery, since 
 there was nothing corporeal to deliver. They were created 
 or transfeired by the common law deed of grant, and were 
 said to lie in grant, while present corporeal interests were 
 said to lie in livery. Conveyance by livery of seisin rapidly 
 fell into disuse after the Statute of Uses. It has long since 
 become obsolete, and has been expressly abolished in many 
 states.^ On the other hand deeds of grant have not only 
 
 X. See Ch. Ill, ante. 2. Dipby Hist. L. Real Prop. (5th 
 
 ed.), 412; 1 Stim. Am. St. L., § UTtt 
 
Common Law Comveyances of Title. 755 
 
 survived, but they have taken the place of livery of seisin, 
 as under the modern law they may be and are generally 
 used in the conveyance of present corporeal estates as well 
 as of incorporeal interests.* 
 
 (b) Leases -were used in creating estates for years, at will 
 and for life. The nature and requisites of leases are dis- 
 cussed in the chapter on Landlord and Tenant.* Where the 
 lease created an estate for life livery of seisin was necessary, 
 a life estate being an estate of freehold.^ It is, of course, 
 obvious that a formal lease was not necessary in creating 
 a life estate, though apparently the usual means employed 
 for that purpose. Any conveyance of the land with livery 
 in which words of inheritance did not appear was sufficient 
 to create a life estate.* 
 
 (c) A deed of release was a conveyance to a person al- 
 ready in possession or having a vested estate in the property 
 conveyed, as a conveyance by a landlord to a tenant for 
 years in possession, or by a reversioner or remainderman 
 to a tenant for life. Livery of seisin was not required in 
 these cases because the releasee was already in possession, 
 the deed of release being a conveyance to him of the future 
 incorporeal interest of the reversioner or remainderman.^ 
 A release to a tenant for years or at will before entry by him 
 was void, since possession was necessary in order that he 
 might become seised instantly as owner in fee on the de- 
 livery of the deed of release.* Since the possession of a 
 
 3. As to tTie nature of deeds of N. Y. 572, 585; Ross v. Adams, 28 N. 
 
 grant at common law in creating or J. L. 160. 
 
 transferring incorporeal interests, see 4. See Cli. VII, ante. 
 
 Co. Litt. 17Sa; 2 Bl. Com. 317. That 5. 2 Bl. Com. 317, 318; Digby, id. 
 
 grants have been extended in their 413. 
 
 use by the modern law so as to in- 6. See § 80, ante, as to creation of 
 
 elude conveyances of present corpor- estates in fee and for life, 
 
 eal interests of all kinds, taking the 7. 2 Poll. & Mait. (2d Ed.), 90, 91? 
 
 place of feoffment, see 1 Stim. Am. St. Co. Litt. 273b, 274b. 
 
 L. § 1470; N. Y. Real Prop, L., §§ 8. Litt. §§ 460, 465; Co. Litt. || 
 
 241-246: L. I. R. Co. v. Conklin, S9 270a, 270b, 873b. 
 
756 Deeds and Convbtanoes. 
 
 tenant at sufferance is not rightful, a release to him was 
 void.* As explained in an earlier chapter ^^ a release by a 
 joint tenant to his co-tenant was valid, the word " heirs " 
 being unnecessary to transfer his interest in fee, each co- 
 tenant as a member of the unity being seised in fee of the 
 entire property, subject to his co-tenant's interest, which 
 vests in him on the delivery of the release. 
 
 Easements, profits, rents and other incorporeal interests 
 were extinguished by release to the owner of the land in 
 which the incorporeal right existed, no question of the trans- 
 fer of seisin being involved." Dower, inchoate or consum- 
 mate, liens and other incumbrances could also be extin- 
 guished in the same way.'^ 
 
 The modern quitclaim deed has been evolved from the 
 old deed of release, and may be used to accomplish the same 
 purposes. Like the deed of grant, however, it may be used 
 to convey present corporeal estates to strangers as well as 
 to release incorporeal interests to tenants in possession. 
 The deed of release may be used to-day to accomplish any 
 of the purposes for which it was used at common law, 
 though the quitclaim deed has largely taken its place. How- 
 ever, the quitclaim deed is substantially the same thing 
 when used to accomplish any of the purposes for which 
 deeds of release were employed at common law. 
 
 (d) A surrender is the giving up of an estate for life or 
 for years to the owner of the next immediate estate in re- 
 version or remainder. The nature of surrenders or convey- 
 ances, the need of an instrument in writing under the Stat- 
 ute of Frauds in cases of express surrenders, the nature of 
 surrenders by act or operation of law, and the incidents of 
 surrenders generally are dealt with at length in the chapter 
 on Landlord and Tenant, surrenders taking place, as a prac- 
 
 9. Co. Litt. § S70b. 12. As to release of dower, see S 
 
 10. See § 81, ante. Ill, ante. 
 
 11. Co. Litt. § asOa; a Bl. Com. 
 324, 385. 
 
CONVETAITOES UnDEE THE StATUTE OF UsES. 767 
 
 tical matter, almost exclusively between tenant and land- 
 lord.^* Quitclaim deeds are now commonly used instead of 
 the- formal deed of surrender of the common law, operating 
 in the same way, and being in effect deeds of surrender when 
 so used. The estate surrendered must immediately precede 
 the estate of the surrenderee, and must not be greater in 
 quantum than his estate, so that it may merge therewith.** 
 The words " surrender, grant and yield up " is the phrase 
 commonly used in deeds of surrender, though any language 
 expressing the intent to surrender the preceding particular 
 estate to the owner of the next estate in reversion or remain- 
 der will be just as effective." 
 
 (e) Fines and recoveries were methods of conveying 
 title to land by employing fictitious actions, the final judg- 
 ment in the fictitious action vesting the title in the person 
 in whose favor the fine was levied or the recovery suffered. 
 They were used principally for the purpose of barring en- 
 tails, and they are further discussed under Estates in Fee 
 Tail.i® They have been generally abolished or have become 
 obsolete." 
 
 § 316. Conveyances Under the Statute of Uses. — The 
 
 revolutionary effect of this statute upon conveyancing has 
 been considered in an earlier chapter,* as has its operation 
 in permitting the creation of future executory estates by 
 springing or shifting use.^ Since the statute provided that 
 all uses upon their creation should be converted immed- 
 iately into legal estates, all that was necessary after the 
 statute to vest in another a legal estate of any kind, present 
 or future, in fee, for life or for a term of years, was to create 
 in him a corresponding use, the statute immediately chang- 
 
 13. See §§ 185-187, ante. 16. See § 84, et seq., ante. 
 
 14. Co. Litt. § 387b; S Bl. Com. 326. 17. See § 86, ante, also Digby Hist 
 
 15. Shepard v. Spaulding, 4 Mete. L. Real Prop. (5th ed.), 254. 
 (Mass.) 416; Harris v. Hiscock, 91 1. See § 196, ante. 
 
 S. Y. 340. 2. See §§ 251, 252, ante. 
 
758 Deeds and Conveyances. 
 
 ing it into a legal estate. Therefore any conveyance operat- 
 ing under the statute vested in the grantee the legal title 
 without entry by him or livery of seisin to him. The mere 
 delivery of the deed had the same effect as feoffment with 
 livery. As stated in an earlier chapter, though conveyances 
 might be made by feoffment to a third party as trustee to 
 uses, the statute operating to transfer the legal title in- 
 stantly into the cestui que use, nevertheless deeds of bar- 
 gain and sale, covenants to stand seised, and deeds of lease 
 and release, were used almost exclusively as conveyances 
 under the statute, since they transferred title to the grantee 
 therein named without the interposition of a third party, 
 and without resort to the cumbersome method of feoffment. 
 These conveyances rapidly took the place of feoffments in 
 conveying land inter vivos, feoffment with livery of seisin 
 becoming in effect obsolete at an early date.^ 
 
 A deed of bargain and sale was simply a recital of a bar- 
 gain and sale of the land described therein, reciting a con- 
 sideration, the bargain and sale for a consideration either 
 actually paid or only recited in the instrument creating the 
 use in fee, for life or for years in favor of the bargainee 
 which the statute changed instantly into the corresponding 
 legal estate. If no consideration of value was either ac- 
 tually paid or recited in the deed it was given effect as a 
 covenant to stand seised provided the covenantee Avas a 
 blood relative of the covenantor or his or her husband or 
 wife as the case might be, equity giving effect to the cove- 
 nant as creating a use in favor of the covenantee in such 
 cases, and the statute operating at once to change it into a 
 legal estate.* 
 
 In this way secret conveyances of present freehold es- 
 tates in land could be freely made, without the notoriety 
 incident to feoffments. To remedy this situation the Statute 
 
 3. See S 196, ante, VPilliama R. Fire Co., 9 Wend. (N. Y.) 611, and 
 Prop. (17th ed.), 236-237. authorities therein cited; Williama Id. 
 
 4. See § 196, ante; Rogers v. Eagle 234. 
 
CONVBTAH-CES TJkDEE THE StATUTB OF UsES. 759 
 
 of Enrollments ^ was enacted a few years after the enact- 
 ment of the Statute of Uses, requiring the enrollment of 
 deeds of bargain and sale, as public records, and making 
 them void if not enrolled as so required. If a deed of bar- 
 gain and sale was not enrolled it would nevertheless be 
 given effect as a covenant to stand seised, which did not 
 have to be enrolled, provided a blood relationship or a re- 
 lationship of marriage, as above explained, existed between 
 the parties.* 
 
 Deeds of lease and release came into use largely for the 
 purpose of avoiding the effect of the Statute of Enrollments. 
 A bargain and sale for a term of years did not have to be 
 enrolled under the statute, and as a bargain and sale for a 
 term vested the term in the tenant as completely as though 
 he had entered under a common law lease, a deed of release 
 from the grantor was all that was required to transfer to 
 him the fee in possession. A lease, therefore, by bargain 
 and sale followed by a release conveyed the title under the 
 Statute of Uses as effectually as a bargain and sale, and was 
 valid without enrollment.^ Deeds of bargain and sale and 
 lease and release became the standard methods of conveying 
 freehold estates in land, and so continued until the develop- 
 ment of the modern statutory deeds, discussed in the follow- 
 ing section. 
 
 As the Statute of Enrollments has not been regarded as 
 in force in this country, deeds of lease and release were not 
 required for any purpose and have been seldom used.* Deeds 
 of bargain and sale were freely used, and common law deeds, 
 ineffective as such in the particular case because used in 
 attempting to create a future executory estate void at com- 
 
 6. Stat. 37 Hen. VIII, ch. 16 7. Digby Hist. L. Real Prop (5th 
 
 (1535), requiring bargains and sales ed.), 366; also preceding note; Wil- 
 
 to be by deed duly enrolled in court, liams E. Prop. (17th ed.), 236-338. 
 
 e. See opinion of Chancellor Wal- 8. Rogers v. Eagle Fire Ins. Co., 9 
 
 worth, Rogers v. Eagle Fire Ins. Co., Wend. 611, 640; Jackson v. Dunsbagh, 
 
 9 Wend. 611; Williams R. Prop (17th 1 .Jolms. Cas. (N. Y.) 91; Marshall ». 
 
 ed.), 235, 236. Fisk. G Mass. 24. 
 
760 Deeds and Conveyaitoes. 
 
 mon law, were given effect as deeds of bargain and sale, 
 if a consideration of value had been actually paid, or recited 
 in the instrument, or as covenants to stand seised if a rela- 
 tionship of blood or marriage existed between the parties.® 
 
 § 317. The Modern Statutory Deed.— In England it is 
 now provided by the Eeal Property Act, that all corporeal 
 estates and interests may be conveyed by grant, exactly as 
 incorporeal interests, ^ and by another statute a deed of re- 
 lease has been given the same effect as a deed of lease and 
 release.^ By these and other statutes in England the mod- 
 ern deed has been greatly shortened and conveyances sim- 
 plified.^ In this country simple deeds of conveyance are 
 generally expressly authorized, by which interests of all 
 kinds, corporeal or incorporeal, present or future, may be 
 freely conveyed.* What are in form deeds of bargain and 
 sale are still used. They operate exactly as do the statutory 
 deeds, there being no difference or distinction between them 
 except in mere f orm.^ Quitclaim deeds are the modem off- 
 shoot or development of the old deed of release, though 
 the older form is substantially the same thing and is un- 
 doubtedly as effective as ever when used to accomplish any 
 of the purposes for which releases were used at the common 
 law. The quitclaim deed purports to convey only such 
 title as the grantor has, containing no covenant of title, the 
 grantor being under no responsibility in case his title proves 
 defective. It is used most frequently, as was a deed of re- 
 lease or surrender at common law, to give up or release to 
 
 9. See last preceding note; also §§ 1. Stat. 8 & 9 Vict., ch. 106, § 2 
 
 251, 353, ante. (1845). 
 
 A deed in the form of a release void 2. Stat. 4 & 5 Vict., ch. 21. 
 
 for want of possession in tlie releasee 3. See Stat. 44 & 45 Viot., ch. 41, 
 
 was given effect as a bargain and sale and 45 & 46 Vict., eh. 39. 
 
 if a consideration was either actually 4. N. Y. Real Prop. L. |§ 341-346; 
 
 paid or merely recited therein. Lynch Stimson's Am. St. L. § 1470; L. I. R. 
 
 V. Livdngston, 6 N. Y. 423; Pray ▼. Co. v. Conklin, 39 N. Y. 573, 585; 
 
 Pierce, 7 Mass. 381. Ross v. Adams, 28 N. J. L. 170. 
 
 5. N. Y. Real Prop. L. § 246. 
 
The Modekn Statutobt Dtsesd. 761 
 
 the grantee a future interest or a present limited estate for 
 life or for years, or an outstanding right of dower, lien or 
 other encumhrance upon the title of the grantee.® 
 
 Under the modern law, therefore, any deed which pur- 
 ports to transfer title to the land described thereia is 
 equally effective as a conveyance of the grantor's title, 
 whether it be in the form of a common law deed of grant, 
 a deed of bargain and sale, a deed of lease and release or 
 of release or surrender merely, a quitclaim deed or a deed 
 under the modem statutes. No matter what its form, if it 
 purports to convey or release any transferable or releasable 
 interest of the grantor it will be effective for that purpose, 
 no matter what that interest may be. If the deed contains 
 the usual covenants of title it is called a warranty deed, 
 the covenants being contracts added to the deed constitut- 
 ing no part of it as a conveyance. In other words the gran- 
 tor's title is conveyed just as effectually by any of these 
 deeds without covenants, the covenants serving to give to 
 the grantee a cause of action for damages in case of a de- 
 fect in the grantor's title. In effect any of these deeds with- 
 out covenants are quitclaim deeds, no covenants being im- 
 plied in conveyances of land, and the grantor tucurring no 
 liability in case of a defect in his title. It is important to 
 remember that if a purchaser does not expressly stipulate 
 for a warranty deed in his contract of purchase he is en- 
 titled only to a quitclaim deed.'' On the other hand if he 
 discovers defects in the title of his vendor which are not 
 excepted in the contract, he may reject the title and refuse 
 to complete the purchase, though only a quitclaim deed was 
 to be delivered to him under the contract.* 
 
 6. Thorp V. Keokuk Coal Co., 48 N. 8. Wallach v. Riverside Bank, 206 
 y. 253; Wilhelm v. Wilken, 149 N. Y. N. Y. 434. 
 
 447; Kyle v. Kavanagh, 103 Mass. A contract to convey the "riglit 
 
 356. title and interest " of the vendor will 
 
 7. Emerick v. Hackett, 193 N. Y. require the vendee to accept the con- 
 163; B^le ▼. Kavanagh, 103 Mass. veyanee, though the title offered prov* 
 154. to be defective. 
 
762 Deeds and Convbtaitoes. 
 
 § 318. Form and Requisites of Conveyances. — The pro- 
 visions of the Statute of Frauds in England, and of similar 
 statutes in this country, requiring that conveyances of land 
 be in writing, have been sufficiently discussed in other parts 
 of this work.^ At common law all conveyances of freehold 
 estates in land, whether by grant, deed of feoffment, or by 
 deed of bargain and sale or lease and release under the 
 Statute of Uses, were deeds under seal, taking the form 
 either of indentures or deeds poll. An indenture was a deed 
 executed in duplicate by both parties to the instrument, 
 the grantor and the grantee, the two parts being written on 
 the same piece of parchment, severed by indentations made 
 through a word, phrase or symbol, so that either part could 
 be identified by fitting the two parts together again. Each 
 party received a duplicate executed by the other, so that it 
 was in form as well as effect the deed of the grantee as well 
 as of the grantor, binding him as well as the grantor to 
 abide by the covenants therein. The term " indenture 
 was applied to it because of these indentations. A deed 
 poll, on the other hand, was executed by the grantor only, 
 as a single instrument, with a clean-cut edge instead of an 
 indented one. The covenants therein contained were bind- 
 ing only on the grantor who executed it.** This distinction 
 has long since ceased to exist, the grantee being now every- 
 where bound by covenants in a deed accepted by him, 
 whether he joined in its execution or not, his act of accept- 
 ing the deed binding him to abide by its covenants.^ 
 
 That the giantee under a quitclaim a mortgage in a deed binds the grantee 
 
 deed will be protected as ii purchaser by a<:ceptance, whether in the form of 
 
 for value without riotice under the an indenture or a deed poll. Bowen 
 
 Eecordir.f; Acts, see Cli. XXII, post. v. Beck, 94 N. Y. 86. 
 
 1. See Ch. I and Ch. VII, ante. The distinction between the two 
 
 2. Co. Litt. 239a; 2 Bl. Com. 395, forms of deeds has disappeared .n 
 296. England; the grantee being now 
 
 3. Atlantic Dock Co. v. Leavitt, 54 bound by covenants in a deed poU by 
 N. Y. 35 ; Hagerty v. Lee, 54 N. J. acceptance. Stat. 8 & 9 Vict., ch. 106, 
 h. 580; Midland R. Co. v. Fislier, 125 § 5; Williams Real I'rop. (17th ed), 
 Ind. 19. A covenant of assumpfon of 183, 184. 
 
 >> 
 
Names of Grantoe and Geantee. 763 
 
 The usual and essential parts of a modern deed are: (a) 
 tlie premises, including the names of the parties and their 
 places of residence, the date, which, however, may appear at 
 the end of the deed, recital of the consideration and ac- 
 knowledgment of its receipt, words of grant, gift, or other 
 words expressive of an intent to convey and transfer the 
 property, the description of the land conveyed by the in- 
 strument, by metes and bounds, and exceptions, if any, viz. : 
 easements, liens or other existing encumbrances subject to 
 which the conveyance is made, (b) Immediately after the 
 premises follows the habendum clause, " to have and to 
 hold," etc., the purpose of which is to define the estate 
 which the grantee is to take and hold. Any special provis- 
 ion such as a reservation by the grantor of an easement, 
 estate or other interest, or a declaration of trust should fol- 
 low between the habendum clause and the recitals of execu- 
 tion of the instrument. These closing recitals, followed by 
 the signature and seal of the grantor and his acknowledg- 
 ment of his signature, complete the instrument. The cove- 
 nants of title in a warranty deed immediately precede the 
 closing recitals, following the operative or conveying parts 
 of the deed.* 
 
 § 319. Names of Grantor and Grantee. — The grantor's 
 name must be stated in such form that he can be identified. 
 An error in the name will not affect the validity of the deed 
 if the name as given in the premises is sufficient to indicate 
 and identify the person who executed it, though the name 
 signed differs in some respect from the name of the grantor 
 as recited in the instrument." A conveyance by a class of 
 
 4. Williams Eeal Prop. {17th ed.), correct); Erskine v. Davis, 25 111. 
 
 678-682; 2 Bl. Oom. 298, e* seq. 238, and Nlcodemus v. Young, 90 
 
 6. Jenkins v. Jenkins, 148 Pa. St. Iowa 433 (middle initial wrongly 
 216 ("Jones" insteid of "Jenkins," stated, may be disregarded as form- 
 in clause of deed, signature correct) ; ing no part of the name) ; Veit v. 
 Houx V. Batteen, 68 Mo. 84 (mistake Sohwob, 137 App. Div. (N. Y.) 171; 
 in last name of grantor in signature, Tustin v. Faught, 23 Cal. 237. 
 recital in deed and acknowledgment The purchaser of real property, be- 
 
764 Deeds and Convbyahoes. 
 
 persons, as by the " heirs " of a deceased person, will be 
 valid, if the members of the class are existing persons whose 
 identity can be readily ascertained, they having signed the 
 deed in due form.* 
 
 A deed signed by several persons will operate as the deed 
 of those only whose names are recited or whose identity ia 
 in some way indicated in the body of the instrument. Thua 
 where a wife signs her husband 's deed in order to bar or re- 
 lease her inchoate dower, it will be void for that purpose 
 unless her name appear in the body of the deed as a grantor^ 
 or unless the instrument contain some recital of her release 
 of dower to the grantee.'' It is obvious that where the deed 
 is signed by one person only this is not necessary since by 
 necessary implication he is the grantor.* 
 
 The same principles govern mistakes or omissions in the 
 names of the grantees. If they can be identified by the 
 names used as the persons to whom the property was in- 
 tended to be conveyed, their title under the deed will be 
 valid.* But where they cannot be identified, as in the case 
 of a conveyance to the heirs of a living person, the deed ia 
 void." 
 
 fore accepting a deed of conveyance, v. Eice, 4 How. (U. S.) 225; Batche- 
 
 may insist that the vendor's name be lor v. Brereton, 112 U. S. 396. 
 correctly stated therein, so that he By statute in Illinois the execution 
 
 may avoid the necessity of being of the deed by the wife, followed by a 
 
 forced to rely on parol evidence to es- separate acknowledgment, is sufficient, 
 
 tablish his identity in order to bus- though her name does not appear in 
 
 tain his title. But after accepting the the body of the instrument. Johnson 
 
 deed he may, of course, prove the >'. Montgomery, 51 111. 185. See 
 
 identity of the gra;itor in ca-^e a mis- Burge v. Smith, 27 N. H. 332; 
 
 take was made in stating liis name Krouska v. Jauke, 66 Wis. 25'3, contra. 
 in any part of tlie deed. See Peabody 8. Jacksoii v. Root, IS Johns. (N. 
 
 V. Brown, 10 Gray (Mass.) 45; Man- Y.) 60 (deed in the first person); 
 
 pin Marketable Title, 45. Elliot v. Sleeper, 2 N. H. 525. 
 
 6. Beardsley v. Morse, 75 Me. 542; 9. Tliomas v. Wyatt. 31 Mo. 18S; 
 Sha-w V. Loud, 12 Mass. 447. Chase v. Palmer, 29 111. 306, and cases 
 
 7. Catlin v. Ware, 9 Mass. 218; cited in note following. 
 
 I/othrop v. Foster, 51 Me. 367; Pea- 10. Hall t. Leonard, 1 Pick, 
 
 body T. Hewett, 53 Me. 33; Agr. Bk. (Mass.) 27; Heath v. Hewitt, 137 N. 
 
Qbantiito and Habbitdum Ci^ttsbs. 
 
 765 
 
 When a deed is delivered with a blank left for the name of 
 the grantee, it was void at common law, as authority to 
 execute, and, therefore, to complete a sealed instrument 
 by inserting the name of a party thereto, must be under 
 seal." In this country the same rule has been followed in 
 a few cases.^^ In some states where seals have been abol- 
 ished by statute, the grantee's name may be filled in and 
 the deed is valid, it being held that this may be done by pa- 
 rol authority merely .^^ In many states it is provided by 
 statute that an agent's authority to execute a deed must 
 be in writing, and in these states it follows that the grantee 's 
 name can be filled in only in cases where written authority 
 to do so has been given." 
 
 § 320. Granting and Habendum Clauses; Consideration. 
 — ^Any words indicating an intention to convey the property 
 are sufficient in the granting clause.* The term " grant " 
 
 Y. 166, and Booker v. Tarwater, 138 
 Ind. 385 (courts in last two cases 
 stating that if " children " was meant 
 by word " heirs," the deed would be 
 good). 
 
 In Huss V. Stephen, 51 Pa. St. 283, 
 a, conveyance to a deceased person was 
 held void for want of a grantee. 
 
 11. Hibblewl'ite v. McMorine, 6 M. 
 & W. 200; Shep. Toucli. 54. 
 
 12. Burns v. Lynde, 88 Mass. 305. 
 
 13. Schwartz v, Pallou, 47 Iowa 
 183; Schintz \. JIcMaiiany, 33 Wis. 
 299; Eell v. Kennedy, 100 Pa. St. 215 
 (semble) ; FicLl v. Stagg, 52 Mo. 534 
 (not well considered). 
 
 In South Bvirwick v. Huntress, 53 
 Me. 89, the court takes the position 
 that filling in the blank is not execu- 
 tion, and therefore does not come 
 within the rule that an agent's au- 
 thority to execute a sealed instru- 
 ment must be under seal. This posi- 
 tion is not sound, since the instru- 
 
 ment is void as a deed until the gran- 
 tee's name is inserted. In Chauncey 
 V. Arnold, 24 N. Y. 330, the court, by 
 way of dictum, states that the agent's 
 authority to fill blanks in a sealed 
 instrument may be by parol. As the 
 statute in New York expressly re- 
 quires that an agent's authority to 
 execute a conveyance of lands must be 
 in writing, it would seem that this 
 dictum is not law. 
 
 14. N. Y. Real Prop. L., § 242; Lind- 
 sley V. Lamb. 34 Mich. 509 (under 
 statute similar to the N. Y. statute) ; 
 Upton V. Archer, 41 Cal. 85; Ayres v. 
 Probasco, 14 Kan. 175. 
 
 When the deed is delivered to a 
 grantee without notice after being 
 filled in by an agent with parol au- 
 thority only, the deed is good by 
 estoppel in any event. Phelps v. Sul- 
 livan, 140 Mass. 36; Pence v. Arbuckle^ 
 22 Minn. 417. 
 
 1. Lynch v. Livingston, 6 N. Y. 422; 
 
7t>6 Deeds asd Conveyances. 
 
 or " grant and release " or " give, grant, bargain and sell " 
 are usual forms, one or the other of the first two of these 
 expressions being used in the short form of deeds provided 
 for by the English statute, the New York Eeal Property- 
 Law, and statutes of other states.^ The necessity for using 
 the word " heirs " in creating an estate in fee, and the 
 word ' * heirs ' ' followed by words of procreation in creating 
 estates tail has been discussed at length in the sections 
 dealing with the creating of estates in fee and in tail. The 
 statutes in most states which have changed this require- 
 ment by providing that the entire estate of the grantor or 
 devisor shall pass unless a lesser estate is expressly given 
 by the terms of the deed or will are discussed and referred 
 to in the same place.^ 
 
 The granting clause and the habendum must be construed 
 together unless they are necessarily inconsistent. Thus at 
 common law if the granting clause was to A, simply, without 
 words of inheritance, and the habendum was " to A and his 
 heirs," an estate in fee passed. So a grant to A and his 
 heirs, habendum to A and the heirs of his body created an 
 estate tail, since the word " heirs " in the granting clause 
 when construed with " heirs of this body " in the haben- 
 dum, was evidently used in the sense of ' ' heirs of his body. ' ' 
 But a grant to A and his heirs, habendum to A for life, 
 creates an estate in fee. The habendum cannot operate to 
 cut down an estate expressly created by the granting 
 clause.* A conveyance to A and the heirs of his body, hab- 
 endum to A and his heirs forever, created an estate tail at 
 common law with a fee simple expectant on the termination 
 of the estate tail.^ Where the estate limited by the habendum 
 
 Wilhelm v. Wilkin, 149 N. Y. 447; 3. See §§ 80-83, ante. 
 
 Hummelman v. Mounts, 87 Iiul. 178; 4. See § SO, ante. 
 
 San Francisco R. Co. v. Oakland, 43 5. Co. Litt. 21a; Corbin v. Healy, 20 
 
 Cal. 502. Pick. (Mass.) 514; the court say- 
 
 2. N. Y. Real Prop. L., § 258; Wil- ing (dicta): "Lord Coke says that 
 
 Hams R. P. L. (17th ed.), 693. See where a person, in the premises of a 
 
 statutes in the different states. deed, gives land to another and th« 
 
Geanting aitd Habendum Olattses. 767 
 
 is greater than the estate provided for in the granting clause 
 the habendum prevails. Therefore a grant to A for life, 
 habendum to A and Ms heirs creates a fee simple.^ Under 
 the modern statutes providing that the entire estate of the 
 grantor shall pass in the absence of an express provision 
 to the contrary in the deed, the principal question of con- 
 struction of both granting clause and habendum is whether 
 the deed expressly limits the estate conveyed to a life inter- 
 est or other estate less than fee.^ 
 
 The recital of a consideration, though usual, is not essen- 
 tial to the validity of a modern deed, whatever its form. A 
 consideration was necessary to a conveyance of land under 
 the old law in order to prevent a resulting use in favor of 
 the grantor. The mere recital of a consideration, however 
 nominal, was enough to repel the implication of a use and 
 made the deed effective as a conveyance.® A deed of bar- 
 gain and sale required a consideration either actually paid 
 or merely recited in the instrument without actual payment. 
 We have seen that any deed, ineffective for any reason as 
 a common law conveyance, was given effect as a deed of bar- 
 gain and sale if any consideration, however nominal, was 
 recited in the instrument, or actually paid.* It was, there- 
 fore, very important prior to the enactment of the modern 
 statutes that a recital of at least a nominal consideration 
 should appear in every deed. But under the modern system 
 of conveyancing now generally prevalent this technicality 
 has no longer any reason for existence. Deeds of bargain 
 and sale, deeds of grant and the modern statutory deeds 
 are all placed on the same basis.^° Deeds of grant and of 
 
 heirs of his body, habendum to him 33 App. Div. (N. Y.) 436; Meacham v. 
 
 and his heirs forever, he will take an Blaess, 141 Mich. 258 (dictum), 
 
 estate tail, with a fee simple expect- 7. Dorem v. Gillum, 136 Ind. 134 j 
 
 ant. Co. Litt. 21a; Cruise's Dig. Tit. Eiggin v. Love, 72 111. 553. 
 
 32 Deed, c. 23, § 65." 8. See chapter on Uses and Trust*. 
 
 6. Co. Litt. 21a, 299a; Goodlittle v. 9. See §§ 196, 251, ante. 
 
 Gibbs, 5 B. & C. 709; Wood v. Taylor, 10. See § 315. ante. 
 9 Mise. (N. Y.) 640; Bates v. Virolet, 
 
768 Deeds and CoRVETANCia. 
 
 bargain and sale are made to operate exactly as the modern 
 deed, requiring no consideration, either actual or merely 
 by recital. The modern deed, whatever its form, no longer 
 depends on the Statute of Uses. In fact uses have been' 
 generally abolished by statute.** In jurisdictions in which 
 they still exist, actually or theoretically, the statutory deed, 
 or the deed of grant as extended by statute, are just as ef- 
 fective to accomplish the purposes for which springing and 
 shifting uses were employed, doing away with all need for 
 distinguishing between these forms of convP3^ance.^^ Since 
 a deed involves the transfer of title to land, and is in no 
 sense a contract, there is no conceivable reason for a con- 
 sideration as a legal requisite. It is obvious that the owner 
 of land may convey it by way of gift, if he so desires, ex- 
 actly as he may give away any article of personal prop- 
 erty.*^ 
 
 Practical reasons for reciting a consideration are, 1st, that 
 such recital gives rise to a presumption that value was paid 
 therefor under the recording acts, and 2nd, a like presump- 
 tion exists in case the instrument is attacked as a convey- 
 ance in fraud of creditors. 
 
 § 321. Description of Land Conveyed; Boundaries. — The 
 
 description of the land affected by the deed is usually by 
 metes and bounds, all the land included within the bound- 
 aries so described passing to the grantee, together with 
 buildings and other fixtures so annexed as to be part of the 
 land, and all easement and other incorporeal rights appur- 
 tenant to the land.* The intent of the parties in construing 
 
 11. See § 91, N. Y. Real Prop. L., ing under this section. The descrip- 
 and statutes in the different states, tion need not be by metes and bounds. 
 
 12. See § 253, ante. Any description by which the land 
 
 13. Smith V. Allen, 5 Allen (Mass.) intended to be conveyed may be defi- 
 4.58: Wereans v. Peeble.?. 31 Barb, nitely identified is sufficient, as the 
 (N. Y.| .Si^n; Fucjcrs v. Hillhouse, 3 "Jones farm," or "a house ami lot" 
 Conn .^nS. or " mill " or " factory " on a sppii- 
 
 1. See ca.s<-s cited in notes follow- fied street or at a stated place, belong- 
 
Description of Land Conveyed; Boundabies. 769 
 
 the description controls in all cases. Where monuments are 
 referred to in the deed, such as stakes, marked trees, piles 
 of stone, the land of adjoining owners, and the like, courses 
 and distances creating an irreconcilable discrepancy are pre- 
 sumed to be erroneous to that extent, and the boundaries 
 as indicated by such monuments are accepted as the true 
 limits of the land conveyed.^ The possibilities of error in 
 running courses and distances in surveying are considerable, 
 and the physical marks so referred to indicate the true lines 
 as intended by the parties, concerning which the possibili- 
 ties of error are more remote. Therefore if the line is de- 
 scribed as running a stated number of feet to a stake, tree, 
 street or other monument, at a stated angle from another 
 line about which there is no dispute, but it appears that 
 the distance to the monument is greater or less than the dis- 
 tance stated, or the angle stated will make it impossible for 
 the line to meet the monument referred to, the true lines will 
 be determined by the monument, the discrepancy in the dis- 
 tance and angle as stated being presumptively erroneous.' 
 
 ing to the g^rantor, or " all of his 3. See cases in preceding note, 
 
 real estate " in a certain town and Thus in Pernam v. Wead, 6 Mass. 
 
 the like. Butrick v. Tilton, 141 Mass. 131, one of the distances was 3 1-St 
 
 93 ; Johnson v. Rayner, 6 Gray inches longer than the actual distance 
 
 (Mass.) 107; Snow v. Orleans, 126 between the land of two adjoining 
 
 Mass. 453 ; Dikeman T. Taylor, 24 owners, referred to in the deed as 
 
 '.'oiin. 219; Bird v. Bird, 40 Me. monuments, and about which there 
 
 398; Trentman v. Neff, 134 Ind. was no dispute, and another distance 
 
 503 ; Austin v. Dolbee, 101 Mich, was 5 1-2 feet longer than the line 
 
 292; Wilson v. Hunter, 14 Wis. 683; between the monuments. The lines 
 
 Coleman v. Manhattan Co., 94 N. Y. as fixed by the monuments were held 
 
 239. See Ogden v. Jennings, 63 N. to be the true boundaries as the 
 
 Y. 536. parties intended them. In Hoban v. 
 
 3. i Kent Cum. 446; Emrry v. Cable, 103 Mieh, 206, the courses and 
 
 Fowler. 38 Me. 99; Pernam v. Wead, distances as gvrUA in the deed did not 
 
 * Mass. 131; Goyette v. Keenan, 196 make an enclosm*, the lines in dis- 
 
 Maas. 416; White v. Loring, 93 U. pute not meeting. But the third line 
 
 S. 514, 524; White v. Williams, 48 was to extend to a public street, the 
 
 N. Y. 344; Hoban v. Cable, 103 Mich, fourth line to extend along this street 
 
 206; Cox V. Couch, 8 Pa. St. 147; to the place of beginning. The court 
 
 Bauer v. Gottmanhansen, 65 111. 499; held that the true course was by a 
 
 .Allen V. Kersey, 104 Ind. 1. straight line from th« second rear 
 49 
 
770 
 
 Deeds and Conveyances. 
 
 It mnst be remembered, however, that this is a mere rule ti 
 construction, not to be used at all except in case of a dis- 
 crepancy or ambiguity, and having no application where 
 the true intent of the parties is clear. Therefore where it 
 appears that the mistake was made in stating the monument, 
 the intent of the parties to convey the parcel as determined 
 by the courses and distances as stated in the deed being 
 clear and certain, the monument will be disregarded and 
 the intent of the parties as expressed by the courses and 
 distances will govern.* 
 
 It is also well settled that where the deed refers to monu- 
 ments not at the time in existence, but placed in position 
 and the actual lines run in accordance therewith by the 
 parties after the delivery of the deed, the same rule applies 
 and the lines so established are taken as the true lines, 
 though not in accordance with the courses and distances as 
 described in the deed." In any of these cases a mere esti- 
 
 corner to the street, thence alon^ the 
 street to the place of beginning, 
 treating the statements as to direc- 
 tion and distances to be error, this 
 construction expressing the true in- 
 tent of the parties, conveying the 
 parcel which they actually intended 
 the deed to convey. 
 
 i. Tn White v. Luning, 93 U. S. 
 6l4, 534, the court after referring to 
 the gv,!!'-' i] rule that in case of un- 
 certainty ascertained monuments 
 will control, said: "But this rule is 
 not inflexible. It yields whenever, 
 taking all the particulars of the deed 
 together, it would be absurd to apply 
 it. For instance, if the rejection of 
 a call for a monument would recon- 
 cile other parts of the description, 
 »nd leave enough to identify and 
 render certain the land which the 
 Bheriff intended to convey, it would 
 eertainly be absurd to retain the 
 (false call and thus defect the con- 
 
 veyance." See, also, Murdoek v. 
 Chapman, 9 Gray (Mass.) 156; 
 Green v. Horn, 207 N. Y. 489; Buffalo, 
 R. Co. V. Stigeler, 61 N. Y. 348; 
 Tuxedo Park Ass'n. v. Sterling Iron, 
 etc. Co., 60 App. Div. ^N. Y.) 349; 
 Security Land, etc. Co. y. 3urns, 193 
 U. S. 167; Wilson v. Hildreth, 118 
 Mass. 578. 
 
 5. Lerned v. Morrill, 2 N. H. 19? 
 (one of the monuments named in thp 
 deed was a stake and stones not ac 
 tually erected until 18 months later, 
 both parties then running the lines 
 witli the aid of a surveyor and erect- 
 ing the monument, each entering and 
 improving his land to the line so 
 formed) ; Emery v. Fowler, 38 Me. 99; 
 Makepeace v. Bancroft, 12 Mass. 469. 
 See Knowles v. Toothaker, 58 Me, 
 172, and cases cited. 
 
 Of course where stakes or other 
 existing monuments aro not referred 
 to in the deed and are not 1»ought 
 
Desceiption of Land Conveyed; Bounbaeies. • 771 
 
 mate of the quantity of the land conveyed, in acres, square 
 feet, or the like, will give way to monuments or to courses 
 and distances, being obviously the least definite and re- 
 liable form of description.® 
 
 Where monuments, erected or to be erected, are not re- 
 ferred to in the deed, but the parties subsequently run out 
 an established line and erect monuments, each long occupj^- 
 ing and holding to the line so established, neither will be 
 permitted to depart therefrom in case the description iu the 
 deed is ambiguous or uncertain^ If the description be un- 
 certain or ambiguous the line as actually adopted is taken 
 to be the true line as intended by the parties. But where 
 there is no ambiguity or uncertainty in the description, the 
 line as run by the parties being erroneous, the mere running 
 of the line by the parties is not conclusive upon them and 
 the true line will determine their rights unless by entry 
 and long continued possession by either an equity is created 
 in his favor against the other estopping him from enforc- 
 ing the true line as described in the deed or unless such 
 possession has continued for over twenty years.® 
 
 to the attention of the grantee at 160 ^ass. 240; Baldwin v. Brown, 
 the time of the conveyance, he is in 16 N. Y. 359; Reed v. Farr, 35 N. Y. 
 no way affected by the monuments, 113; Taub v, Specter, 134 Ajjp. Div. 
 having a right to rely on the descrip- (K. Y.) 158; Burr v. Smith, 152 Ind. 
 tion in the deed. If he buys with 469 (last three cases involving ad- 
 reference to such monuments he is verse possession for over 20 years) ; 
 bound by them, though the descrip- Roberts v. Berks, 223 111. 291 (no 
 tion varies therefrom. A subsequent ascertained line — line thereafter es- 
 purchaser for value without notice tablished by parol held good) ; Ad- 
 would not be so bound. See McKinney ams V. Betz, 167 Ind. 161 (parol 
 V. Doane, 155 Mo. 387. partition between heirs) ; Breaker v. 
 
 8. Emery v. Fowler, 38 Me. 99; Woolsey, 149 Mich. 86 (great uncer- 
 
 Waterman v. Johnson, 13 Pick, tainty as to true line — actual line es- 
 
 (Mass.) 261; Lerned v. Morrill, 2 N. tablished and accepted for years held 
 
 H. 197; Pelts v. Gaw, 15 Pa. St. 218; good); Lewis v. Organ, 149 Cal. 505 
 
 Allen V. Kersey, 104 Ind. 1; Thayer (where there is no uncertainty, a line 
 
 V. Fenton, 108 N. Y. 394; Andrews so established by parol is not good) ; 
 
 V. Rue, 34 N. J. L. 402. Meekg v. Willard, 57 N. J. L. 22. 
 
 7. Knowles v. Toothaker, 58 Me. 8. Where the parties build fence* 
 
 172; Beynolds v. Boston Rubber Co., vr walls not on the true line by mi»- 
 
172 
 
 Deeds and Conveyances. 
 
 Where courses and distances as stated in the description 
 are in conflict the one with the other, there is no presump- 
 tion of one over the other. The true intent of the parties 
 as shown by the entire instrument construed in the light of 
 the accompanying circumstances will control.^ 
 
 § 322. Boundaries on Streams, Lakes, etc. — Ownership 
 of land on a stream presumptively extends to the middle 
 or thread of the stream. Therefore a grant of land de- 
 scribed as bounded by a stream carries with it title to the 
 middle line of the stream, subject to the right of the public 
 to use the river for purposes of navigation if it be of such 
 size and character as to be capable of such use.^ The 
 stream, in such case is a monument, like a wall or ditch, and 
 the dividing line between the two adjoining parcels is 
 through the center of the monument, one half of which is 
 
 take, no estoppel is raised and either 
 may insist on the true line on dis- 
 covering the mistake. Iverson v. 
 Swan, 169 Mass. 582; Hall v. Eaton, 
 139 Mass. 317, 233. In such cases the 
 building of the fence is not to settle 
 a doubt as to the position of the true 
 line. 
 
 See, also. Burr v. Smith, 152 Ind. 
 469; Roberts v. Birks, 223 111. 291; 
 Adams v. Betz, 167 Ind. 161, and 
 other cases in preceding note. Aa 
 appears by several of these cases 
 possession for upwards of twenty 
 years makes such a line established 
 by practical location good in any 
 event by adverse possession. 
 
 9. Hall v. Eaton, 139 Mass. 217; 
 Loring v. Norton, 8 Greenl. (Me.) 61, 
 68. See cases in note 4, supra, par- 
 ticularly Green v. Horn, 207 N. Y. 
 489, on the general principle that the 
 true intent to be gathered from the 
 entire instrument in the light of sur- 
 rounding circumstances will govern. 
 
 irrespective of presumptive rules of 
 construction. 
 
 1. Starr v. Caiild, 20 Wend. (N. Y.) 
 149; Sleeper v. Laconia, 60 N. H. 
 201; Arnold v. Elmore, 16 Wis. 509; 
 Watson V. Peters, 26 Mich. 508; 
 Agawam Caaal Co. v. Edwards, 36 
 Conn. 476 (artificial stream) ; Halsey 
 V. McCormick, 13 N. Y. 296; Oakes v. 
 De Lancey, 133 N. Y. 227; Smith v. 
 Bartlett, 180 N. Y. 360. 
 
 Land bounded by public waters ex- 
 tends to high water mark, as here- 
 tofore explained, title to the shore, 
 or land between high and low water 
 mark being in the state. Public 
 waters include the sea, arms of the 
 sea, and great rivers forming bound- 
 aries between states, other large 
 streams, such as the Hudson Eiver, 
 the Great Lakes, and other large 
 bodies of water title to the land 
 beneath their waters being in the 
 state See § 311, ante. 
 
BouNDAEiEs ON Steeams, Lakbs, Eto. 773 
 
 presumed to be on each of tile adjoining parcels in the ab- 
 sence of some statement in the description to the contrary.- 
 But where the description defines the line as running to 
 the bank of the river and thence along the bank or margin 
 or along the shore to a point situated on the bank, the bed 
 of the stream does not pass to the grantee, the intent to con- 
 vey only to the bank or margin of the stream being affirma- 
 tively expressed.^ Nevertheless, a description of a line as 
 running to a monument on the bank, thence along the river 
 or stream to another monument on the bank, does not show 
 affirmatively an intent to convey only to the brink of the 
 stream, and the bed to the middle line passes, the monu- 
 ments being used simply to indicate the direction of the 
 lines leading to the river, and the length of the boundary 
 on the stream.* An intent to limit the grant to the margin 
 or bank ought to be clearly expressed to have that effect, 
 as the intent of the average man in the usual case would 
 not be to reserve in himself title to a strip of land under 
 water of no value to him." 
 
 2. Starr V. Child, 20 Wend. (N. Y. ) 3. See cases in last two notes, 
 149; Warner v. Southwortli, 6 Conn. also Dunlap v. Stetson, 4 Mason (U. 
 471, 474; Smith v. Rochester, 92 N. S.) 349; Storer v. Freeman, 6 Mass. 
 Y. 463; Fulmer v. Williams, 122 Pa. 435; Hatch v. Dwjght, 17 Mass. 298; 
 St. 191; Schulte v. Warren, 218 HI. Hall v. Whitehall Water Tower Co., 
 108. 103 N. Y. 139; Kanouse v. Stock- 
 Where the grantor owns the land bower, 43 N. J. Eq. 43; Peoria v. 
 on both sides of the stream a convey- Central N. Bk. 224 111. 43. 
 ance or devise of the land on one 4. Luce v. Carley, 24 Wend. (N. 
 side extends to the middle of the Y.) 451; Starr v. Child, 20 Wend, 
 stream if a contrary intent is not (N. Y.) 149 (dicta), 
 expressed. Smith v. Bartlett, 180 N. 5. In Sleeper v. Laconia, GO N. H. 
 Y. 360. But a conveyance by a 201, the description ran, " thence 
 grantor owning the entire stream but northwesterly on the line of Baldwin's 
 owning the land only on one side land to the river, thence northeasterly 
 of it, conveys the entire stream, in on the river shore to Church Street," 
 the absence of some express provi- the court held that the grant ex- 
 sion to the contrary, it being rea- tended to the middle of the stream, 
 Bonable to infer an intent to convey the court holding that " thence on 
 his entire title and interest. Haber- the river shore" is in effect equiva- 
 man v. Baker, 128 N. Y. 253. lent to "on the river," just as the 
 
774 Deeds and Conveyances. 
 
 In cases where the grant is limited expressly to a line 
 along the bank, the grantee takes title to the water's edge 
 at low water, and is not limited to the water's edge during 
 times of high water in the spring and fall.^ 
 
 Under the common law and by weight of authority under 
 the later cases, the same rules apply to lakes and ponds, 
 whether natural or artificial, named as boundaries, viz.: in 
 the absence of some expression of intent to the contrary 
 title passes to the center line or thread thereof.'' In the 
 case of the Great Lakes, and large navigable lakes such as 
 Lake George and Lake Champlain, this rule has no applica- 
 tion, since these lakes are public waters, like great rivers 
 and arms of the sea, title to land under their waters being 
 in the state.* In Massachusetts, by the provisions of a col- 
 onial law, continued as the law of that state, lakes or ponds 
 of over ten acres are public property, title to the land under 
 their waters being in the state. In that state it follows that 
 Buch a conveyance carries title only to low water mark. 
 This rule has been followed in other New England states.* 
 
 expression " by the side of the high- Jordan, 140 U. S. 371 (holding this 
 
 way," is identical in meaning with to be the rule in Illinois spite of 
 
 •■ on the highway,'' citing Woodman dicta in Trustees v. Schrol], 120 111. 
 
 V. Spencer, 54 N. H. 507 ; Motley v. 509, to contrary) ; Eidgway v. Lud- 
 
 Bargent, 119 Mass 231; Peck v. Den- low, 58 Ind. 248. See cases cited and 
 
 niston, 121 Mass. 17; O'Connel v. discussed in cases above cited. 
 
 Bryant, 121 Mass. 557. 8. See preceding note, also Sloan 
 
 In Gouverneur v. Nat. Ice Co., 134 v. Biemiller, 34 Ch. St. 492. 
 
 N. Y. 355, the court applied the same 9- Waterman v. Johnson, 13 Pick, 
 
 rule to a description bounding the (Mass.) 261; Hittinger v. Eames, 131 
 
 land conveyed by a pond, monuments Mass. 539; Bradley v. Rice, 13 Me. 
 
 fixing the lateral lines at the water's 198; Mill River, etc. Co. v. Smith, 
 
 edge not limiting the line along the 34 Conn. 462 (dicta) ; Eolden v. 
 
 pond to the edge thereof, title pass- Chandler, 61 Vt. 291. 
 
 ing to the middle line of the pond. Where a pord is formed by dam- 
 
 6. Halsey v. McCormick, 13 N. Y. ming a stream, a grantee of land 
 296; Murphy v. Copeland, 58 Iowa bounded by the mill pond formed in 
 409; Stevens v. King, 76 Me. 197. this way takes to the. center of the 
 
 7. Gouverneur et al. v. Nat. Ice Co., stream thus enlarged. Lowell v. 
 134 N. Y. 355 (distinguishing Wheeler Robinson, 16 Me. 357; Mill River, etc. 
 T. Spinola, 54 N. Y. 377) ; Hardin v. Co. v. Smith, 34 Conn. 463. 
 
BOUNDAEIES ON SteEETS AND HlQHWAYa 775 
 
 In some other states these cases have been followed, the 
 distinction being made that title passes to the middle line 
 or thread of artificial lakes, particularly those made by 
 damming streams, but only to the margin if the lake is a 
 natural one, though the reason for the rule as it exists in 
 Massachusetts does not exist in these other states.*" 
 
 § 323. Boundaries on Streets and Highways. — As in the 
 case of streams, owners of land on either side of a highway 
 own presumptively to the middle line thereof. In all cases 
 of deeds in which a highway is named as a boundary the 
 instrument transfers title to the middle line of the way, in 
 the absence of an express provision in the instrument limit- 
 ing the land conveyed to the edge or margin thereof. The 
 principle underlying the cases is that the actual intent of 
 the parties shall govern. No difficulty exists in cases de- 
 scribing the property line as extending " along " or " on " 
 the street or highway. The land conveyed extends to the 
 middle of the way as it would extend to the middle of a 
 wall, rock, or ditch, or other similar monument having 
 width.* So there is no difficulty where the description by 
 express words excludes the way from the land conveyed.'' 
 
 Where a national pond is enlarged S. 400; Bisaell v. N. Y. Central R. 
 by a dam, but the riparian owners Co., 23 N. Y. 61; Van Winkle v. Van 
 have been accustomed to lower the Winkle, 184 N. Y. 193; Humphreys 
 level of the pond by means at v. Eastlack, 63 N. J. Eq. 136 (owner- 
 sluices, the grantee takes to the low ship of grantor to center of street 
 water line thus formed. Paine v. should be shown) ; Motley v. Sar- 
 Woods, 108 Mass. 160. In each of gent, 119 Mass. S31; Gould v. Wag- 
 these cases the controlling considera- ner, 196 Mass. 270 (rule applies to 
 tion is the intent of the parties as private as well as public ways) ; 
 reasonable men in the light of the Neely v. Philadelphia, 313 Pa. St. 
 special circumstances of each case. 551; Kneeland v. Van Valkenburgh, 
 
 10. Kanouse v. Stockbower, 48 N. 46 Wis. 434 (lot conveyed as ap- 
 
 J. Eq. 43; Boorman v. Sunnucks, 43 pearing on map. Title to center line 
 
 Wis. 233; Trustees v. SchroU, 120 of street passes); Wegge v. Madler, 
 
 m. 509, held not to be law in Hardin 129 Wis. 413. 
 V. Jordan, 140 U. S. 371. 2. Plaralin v. Atty.-Gen., 195 Mass. 
 
 1. Berridge v. Ward, 10 0. B. N. 309: McKenzie v. Gleason, 184 
 
776 Deeds and Conveyawces. 
 
 But where tlie description defines the line as extending 
 along the ' ' side ' ' of the road, or beginning at a monument 
 on the side or margin and extending " along " the road or 
 " along the side " thereof, to another point or monument 
 also on the side or margin, without language expressly 
 excluding the nearer half of the road, considerable difficulty 
 has been experienced by the courts in establishing a control- 
 ling rule. A literal construction of the deed in these cases 
 necessarily limits the land conveyed to the margin of the 
 way, and perhaps the majority of the cases take this view.* 
 On the other hand owners of property give little actual 
 attention to the usually empty ownership of land occupied 
 by a highway. Monuments showing the intersection of 
 side lines with the highway must necessarily be placed on 
 the edge of the way rather than on the middle line, and it is 
 therefore natural that owners should describe their prop- 
 erty as extending along the edge of the way, or along the 
 way from one such monument to another, though there is 
 no thought of retaining ownership in the land on which 
 the highway is. Such ownership naturally goes with the 
 
 452 (if the description does not ex- Peterson, 24 N. J. L. 524, 527; Owen 
 
 pressly limit the grant to the side v. Brookport, 208 111. 35. 
 of the road or street it will include Where the starting point is ex- 
 
 the road to the center line) ; Trow- pressly made on the outer line of the 
 
 bridge v. Ehrich, 191 N. Y. 361 (de- street, as at the intersection of the 
 
 Bcription starting at a point on the northerly line of said street with 
 
 northerly line of the street, etc.) ; the easterly line of an intersecting 
 
 Blackman v. Riley, 138 N. Y. 318; street, the land within the street is 
 
 Tietjen v. Palmer, 121 App. Div. (N. held to be expressly excluded. Trow- 
 
 Y-) 233. bridge v. Ehrich, 191 N. Y. 361. But 
 
 3. Sibley v. Holden, 10 Pick, when the boundary runs to a. mark 
 
 (Mass.) 249 ("beginning at a stake upon a fence or tree upon the side 
 
 and stones on the southerly side of of a highway, and thence along the 
 
 a town road," thence by various highway, the stake or mark merely 
 
 courses "to said road; thence by said indicates the position of the side line, 
 
 road easterly to the place of begin- not the end thereof, and title passes 
 
 ning," was held to convey to the to the center of the highway. Van 
 
 edge of the road only) ; Buck v. Winkle v. Van Winkle, 184 N. Y. 
 
 Squires, 22 Vt. 484; McKenzie ▼. 193. 
 Gleason, 184 Mass. 452; Winter t. 
 
BoTINDAEIES ON . StrEETS AND HIGHWAYS. 777 
 
 adjoining land, and is of value to the grantor if retained 
 by him only for the purpose of improperly harassing his 
 grantee at some later time. Public policy clearly favors the 
 rule established by several of the best considered decisions 
 that even in these cases title to the middle of the highway 
 passes unless the intent of the parties as reasonable men 
 that title to the margin only was to pass is affirmatively 
 shown either by a statement in the deed to that effect, or by 
 facts and attendant circumstances clearly establishing what 
 the actual intent of the parties was at the time of the con- 
 veyance.* 
 
 Where the grantor's title extends only to the margin of 
 the road, as in the case of lands on public streets in New 
 York City and other cities in which places title to the streets 
 in fee is in the city, the street as a monument in the descrip- 
 tion is construed as giving title only to its margin.* This 
 applies to conveyances of land on such streets by the city as 
 well as to conveyances by private owners.* 
 
 Where a line is described as beginning at a street and run- 
 ning ten rods, or any other fixed distance, therefrom, the 
 
 4. Paul V. Carver, 26 Pa. St. 233 the nature of the affair and the situa- 
 
 (description ran to a certain street, tion of the parties.") ; Cox v. Freed- 
 
 " thence southeasterly along the ley, 33 Pa. St. 124; Champlin v. 
 
 northerly aide of said street." Held Pendleton, 13 Conn. 23. See, also, 
 
 title to middle of the street passed, similar cases of land bounded by 
 
 the attendant circumstances showing streams, § 322, note (4), ante. The 
 
 that this was the intent) ; Salter v. rule should be the same in the case 
 
 Jonas, 39 N. J. L. 469 (after stating of both highways and streams. See, 
 
 that the intent to reserve this strip also, Kneeland v. Van Valkenburgh, 
 
 occupied by the highway is very sel- 46 Wis. 434, and Wegge v. Madler, 
 
 dom present, the court said: "This 120 Wis. 412. 
 
 being undeniably the practice and 5. Dunham v. Williams, 37 N. Y. 
 
 general understanding, to give a 251 (ownership of land in the street 
 
 close and literal meaning to the de- being in another, the deed conveyed 
 
 seriptive terms employed in such in- only to the margin, not to center of 
 
 stances would serve no useful purpose street) ; Graliam v. Stern, 168 N. Y. 
 
 • * • The particular words should, 517; Foley v. McCarthy, 157 Mass, 
 
 In such transactions, be controlled 474; Chicago v. Rumsey, 87 111. 348. 
 
 and limited by the manifest intention 6. Graham v. Stern, 168 N. Y. 517j 
 
 which is unmistakably displayed in 51 App. Div. 400. 
 
778 Deeds aud Convetak-obs. ' 
 
 distance is taken to be from the side of the street rather than 
 from the middle, measurements being regularly made in 
 that way, though title passes to the middle line.'' 
 
 If the entire roadbed belongs to the grantor, together 
 with land on one side of the road only, a conveyance of that 
 land, described as bounded by the road, will carry with it 
 the entire roadbed, it being clear that the grantor did not 
 intend to reserve to himself title to any part of the road- 
 bed, he having no title to land on the opposite side of the 
 road.* 
 
 The roles applying to public streets and highways in this 
 connection apply to private ways, so that title to the mid- 
 dle of the way passes to the purchaser of land abutting 
 thereon in the absence of an express provision in the deed 
 to the contrary. This question arises most frequently where 
 a subdivision into lots or plots has been made, proposed 
 streets having been laid out and mapped, and the lots sold 
 with reference thereto. Each purchaser of a lot gets title 
 to the middle of the proposed street unless the contrary 
 intent is expressed in the deed.* 
 
 7. Dodd V. Witt, 139 Mass. 63 bounded by a private lane was held 
 (holding, however, that evidence tend- not to convey title to the middle 
 ing to establish that the parties fixed line of the lane, it appearing that the 
 monuments at points within the side- lane was of little value to the land 
 line of the street in measuring the granted and of considerable value to 
 side lines of the lot conveyed should the land retained by the grantor, and 
 be received as showing in what sense a right of way having been granted 
 the language of the description was to the grantee over the way, nega- 
 nsed) ; Fraser v. Ott, 95 Cal. 661. tiving an intent to give him the fee. 
 
 8. Haberman v. Baker, 128 N. Y. In a few eases it has been held with- 
 853. See Johnson v. Grenall, 188 N. out good reason, that this rule does 
 y. 407. not apply to private ways, based on 
 
 9. Bissell V. N. Y. Cent. R. Co., the grantor's presumed intent to 
 23 N. Y. 61; White v. Godfrey, 97 thereafter control the land included 
 Mass. 472; Gould v. Wagner, 196 in the way. Bangor House Proprietary 
 Mass. 270; Pitney v. Huested, 8 App. v. Brown, S3 Me. 309 ; Ames v. Hilton, 
 Div. (N. Y.) 105. In mott v. Mott, 70 Me. 36; Seymour v. Page, 33 Conn. 
 68 N. Y. 846, a conveyance of land 61. 
 
Covenants for Title in Deeds. 7T9 
 
 § 324. Covenants for Title in Deeds. — A warranty deed 
 with full covenants contains the covenants, (a) of seisin, 
 (b) of right to convey, (c) against encumbrances, (d) for 
 further assurance, (e) of quiet enjoyment and (f) of war- 
 ranty. 
 
 2'he covenant of seisin is an undertaking on the part of 
 the grantor that he is seised as owner of the land which the 
 deed purports to convey, and of every part thereof, includ- 
 ing all buildings, fences and other fixtures attached thereto. 
 It is broken if he has no title to the property, or no title to 
 some part thereof, or if he has only a life estate or an estate 
 in remainder when the deed purports to transfer a fee." It 
 is also broken if a fence, building or other fixture on the 
 land which is ostensibly a part of it, belongs to another, 
 so that the fixture does not pass under the deed.^ 
 
 The covenant of right to convey is for most purposes 
 equivalent to the covenant of seisin. It is broken when the 
 
 1. Greenby v. Wilcocks, 2 Johns. tually seised, though seised as a, 
 (N. Y.) 1; Hunt v. Raflee, 44 Hun wrongdoer in adverse possession, 
 (N. Y.) 149; Comstock v. Comstock, seisin being taken in its technical 
 23 Conn. 349; Mills v. Catlin, 22 Vt. common law sense. Marston v. 
 106; Allen v. Allen, 48 Minn. 463; Hobbs, 2 Mass. 433; Bearce v. Jack- 
 Claff V. Herdman, 35 111. App. 509. non, -i Mass. 408; Starabaugh v. 
 
 The covenant of seisin is broken Smith, 33 Oh. St. 584; Fairbrother v. 
 
 when a tenant in common purports Griffin, 10 Me. 91. In most states 
 
 to convey the entire estate. Sed- the grantor is liable in such case, he 
 
 gwick V. Hollenback, 7 Johns. (N.Y. ) not having been seised of his own 
 
 376. It is not broken by the exis- right. See cases first cited above, 
 
 tence of a tenancy for years, thn The covenant is not broken by the 
 
 grantor being seised through the pos- existence of a lien, easement or right 
 
 session of the tenant. Kellum v. of dower in another, since such in- 
 
 Berkshire Life Ins. Co., 101 Ind. 455. cumbrances do not interfere with fflie 
 
 2. Mott V Palmer, 1 N. Y. 564; grantor's seisin as owner. In such 
 Herzog v. Marx, 202 N. Y. 1; Van cases the covenants against encum- 
 Wagoner v. Van Vostrand, 19 Iowa brances and of warranty are broken. 
 427. Sedgwick v. Hollenback, 7 Johns. (N. 
 
 In Massachusetts and one or two Y.) 376; Douglas v. Thomas, 103 Ind. 
 other states the covenant of seisin 187; Tinte v. Miller, 10 Ohio 382. 
 is not broken if the grantor is ac- 
 
780 Deeds akd Oonveyanobs. 
 
 covenant of seisin is broken, and the measure of damages 
 in each case is the same, since a person ordinarily has no 
 right to convey that of which he is not seised as owner.* 
 The cases to which this covenant most frequently applies 
 where the covenant of seisin would not be broken are cases 
 of conveyances by trustees who have no right to convey, 
 though seised of the property.^'^ 
 
 The covenant against encumhranGes, as the term indi- 
 cates, is an undertaking on the part of the grantor that no 
 mortgage, judgment, tax or other liens exist against the 
 property, except as may be stated in the deed, and that there 
 are no outstanding rights, such as inchoate dower, ease- 
 ments or leases which affect the value of the property.* 
 In these cases there is no breach of the covenant of seisin 
 or of right to convey, since the grantor was seised of the 
 estate in the land which the deed purported to transfer. 
 These three covenants are said to be broken as soon as 
 made, and are therefore personal choses in action as be- 
 tween the grantor and the grantee which cannot run with 
 the land in favor of subsequent purchasers.' The modifica- 
 tion of this doctrine by the modern cases is discussed in the 
 section following. 
 
 Though an exception of an easement or other encum- 
 
 3. Peters v. Bowman, 98 U. S. 56; Restrictive covenants or others run- 
 Mitcliel V. Hazen. i Conn, 513; Byles ning with the land — ^Loeke v. Hale, 
 V. Lawrence, 35 Mich. 458. 165 Mass. 20; Bronson v. Coffin, 108 
 
 3a. Rawle Covenants, § 66. Mass. 175; Doctor v. Darling, 68 
 
 4. Broken by outstanding ease- Hun (N. Y. 70; liens and other eu- 
 ments, Kramer v. Carter, 136 Mass. cumbrances — ^Tibbetts v. Leeson, 148 
 504; McMuIIen v. Wooley, 2 Lans. Mass. 10; Lafferty v. Mulligan, 165 
 (N. Y.) 294; Huyck v. Andrews, 113 Pa. St. 534; Kelsey v. Romer, 43 
 N. Y. 81; Morgan v. Smith, 11 III. Conn. 139. A general covenant 
 199; Medler v. Hyatt, 8 Ind. 171: against nuisances is not an encum- 
 Cathcart v. Bowman, 5 Pa. St. 317: brance, imposing no greater burden 
 Mitchell V. Warner, 5 Conn. 497. than the law requires. Floyd v. 
 Outstanding rights of dower— Bige- Clark, 7 Abb. N. C. (N. Y.) 136. 
 low V. Hubbard, 97 Mass. 195; Carter 6. See cases above cited, also sec- 
 V. Denman'a Exrs., 23 N. J. L. 260. tion following. 
 
Covenants for Title in Deeds. 
 
 781 
 
 brance cannot be proved by parol because of the parol evi- 
 dence rule," yet the purchaser's knowledge of the existence 
 of a lease or of a highway, technically amounting to encum- 
 brances but really adding to the value of the property, may 
 be shown for the purpose of establishing that they were not 
 intended to be included within the terms of the covenants 
 The covenant for further assurance is merely a promise to 
 execute or procure any further deed, release, satisfaction 
 piece or other instrument which may be found necessary 
 later to perfect the title of the grantee, and which it is 
 reasonably possible to obtain.* 
 
 6. Flynn v. Boweneaf, 143 Mass. 
 277; Long v. Moler, 5 Oh. St. 271; 
 Edwards v. Clark, 83 Mieh. 246; 
 contra, Pitman v. Cornier, 27 Ind. 
 337; Bidders v. Eiley, 22 HI. 109. 
 
 Knowledge of the incumbrance is 
 not a defence, and parol evidence will 
 ordinarily be excluded when offered 
 to prove knowledge. Huyck v. An- 
 drews, 113 N. Y. 81; Beach v. Miller, 
 51 111. 206; Yancey v. Tatlook, 93 
 Iowa 386. 
 
 7. Highways. Whitbeck v. Cook, 15 
 Johns. (N. Y.) 483 (involving cove- 
 nant of seisin, the court stating that 
 a highway adding to the value of the 
 land and if known to the parties is 
 not an encumbrance, to hold other- 
 wise being contrary to reason and the 
 general understanding, approved in 
 Huyck V Andrews, 113 N. Y. 81); 
 Jordan v. Eve, 31 Grat. (Va.) 1; Pat- 
 terson V. Arthurs, 9 Watts. (Pa.) 
 1,52; Patten v. Fitz, 138 Mass. 456; 
 Holmes v. Danforth, 83 Me. 139. 
 That a highway is an encumbrance. 
 See Sprague v. Baker, 17 Mass. S86; 
 Burk V. Hill, 48 Ind. 52; Beach v. 
 Miller, 51 HI. 206; Hubbard v. Nor- 
 ton, 10 Conn. 431. 
 
 Tenancy for years. Rawle Cove- 
 nants, § 77; Pease v. Christ, 31 N. 
 
 Y. 141; Kellum v. Berkshire Life 
 Ins. Co., 101 ind. 455: contra, Ed- 
 wards V. Clark, 83 Mich. 246. That 
 a tenancy for years is usually an 
 encumbrance where knowledge of the 
 purchaser is not shown, see Batchel- 
 der V. Sturgis, 3 Cush. (Mass.) 201; 
 Demars v, Koehler, 60 N. J. L. 314; 
 Edwards v. Clark, 83 Mich. 246. 
 
 A party wall easement, being to 
 the advantage of both parcels, is not 
 an incumbrance. Hendricks v. Stark, 
 37 N. Y. 106; Everett v. Edwards, 
 149 Mass. 588 (dicta) ; Bertram v. 
 Curtis, 31 Iowa 46. See § 293 note 
 1, ante. See contra, Markey v. Her- 
 mon, 34 Minn. 168; Burr v. Lamaster, 
 30 Neb. 688. 
 
 A perpetual party wall easement 
 giving the right to erect a party wall 
 whenever any building may be erected 
 to rebuild it after destruction of the 
 building, etc., is an encumbrance. 
 O'Neal V. Van Tassel, 137 N. Y. 297, 
 § 293, note 1, ante. So where the 
 wall stands entirely on the premises 
 sold, the right of the adjoining owner 
 to use it as a common wall is an en- 
 cumbrance. Mohr V. Parmelee, 43 
 Super. Ct. 320. 
 
 8. This covenant has not been en- 
 forced in many cases in the United 
 
Vs3 Deeds and Conveyances. 
 
 The covenant for quiet enjoyment is broken by an eviction 
 of the grantee committed by the grantor or by any person 
 claiming under him, or by one having a paramount title.* 
 Mere acts of trespass not amounting to an eviction do not 
 constitute a breach,^" nor does this covenant extend to acts 
 of strangers, however wrongful." The eviction constitut- 
 ing a breach may be by actual physical ouster of the gran- 
 tee or any of his successors in interest by the grantor,!^ or 
 by his being required to surrender the premises to a para- 
 mount owner either as the result of an action to recover 
 the property or without such action on demand.^' When 
 
 states. It ia enforced generally by 
 specific performance rather than by 
 an action at law for damages. Rawle, 
 Covenants, §§ 98-109. See King v. 
 Jones, 5 Taunt. 418; Cookran v. Pas- 
 cault, 54 Md. 1; Kramer v. Ricke, 70 
 Iowa 535; Colby v. Osgood, 29 Barb. 
 (N. Y.) 339. 
 
 9. See cases in notes following. 
 
 10. There must be an ouster of the 
 grantee from the property conveyed 
 or some part thereof accomplished by 
 the grantor's wrongful act or by 
 failure of his title. Bartlett v. Far- 
 rington, 130 Mass. 384; Avery v. 
 Dougherty, 102 Ind. 443. See § 160, 
 ante, as to breach of this covenant 
 between landlord and tenant. 
 
 11. Greenby v. Wilcocks, 3 Johns. 
 (N. Y.) 1; Gardner v. Keteltas, 3 
 Hill (N. Y) 330; Andrews v. St. L. 
 Smelting, etc. Co., 130 U. S. 643; 
 Bartlett v. Farrington, 130 Mass. 
 234; Moore v. Weber, 71 Pa. St. 129; 
 Gazzolo V. Chambers, 73 111. 75. 
 
 A covenant warranting against tbe 
 acts of " any person or persons what- 
 ever " was construed as not expressly 
 including wrongful ousting by a 
 rtranger in Branger v. Manciet, 30 
 Cal. 634. 
 
 12. Eawle Covenants, § 128 ; ' Sed- 
 gwick V. Hollenback, 7 Johns. (N. Y.) 
 376; Akerly v. Vilas, 23 VS^is. 307. 
 See § 160, ante. 
 
 13. Kent v. VFelch, 7 Johns. (N. 
 Y.) 358; Boreel v. Lawton, 90 N. Y. 
 393; McGrew v Harmon, 164 Pa. St. 
 122; Mitchell v. Warner, 5 Conn. 479; 
 Carter v. Denman, 23 N. J. L. 360; 
 Barry v. Guild, 126 HI. 439; Merritt 
 V. Morse, 108 Mass. 375. See 8 Am. 
 and Eng. Cyc. Law, pp. 98, 99, for 
 other cases. 
 
 The grantee may surrender pos- 
 session on demand without submit- 
 ting to ouster by ejectment, pro- 
 vided the outstanding title is good; 
 the ouster is then complete. Fowler 
 V. Poling, 6 Barb. (N. Y.) 165; Home 
 Life Ins. Co. v. Sherman, 46 N. Y. 
 370; Burrage v. Smith, 16 Pick. 
 (Mass.) 56; Knepper v. Kurtz, 58 
 Pa. St. 480; Beebe v. Swartwout, 8 
 HI. 162; Mason v. Kellogg, 38 Mich. 
 132. 
 
 If he purchases the outstanding 
 title or takes a lease from the true 
 owner the ouster is complete and ho 
 may sue for breach of this covenant. 
 Tucker v. Cooney, 34 Hun (N. Y.) 
 237; Cowdrey r. Coit, 44 N. Y. 383; 
 
Covenants foe Title in Deeds. 783 
 
 the true owner is in possession at the time the deed is de- 
 livered the covenant of quiet enjoj^ment is broken from the 
 beginning. The grantee may sue for its breach at once 
 without bringing a useless action against the true owner." 
 It is not broken, however, if the grantee is kept out by a 
 stranger holding without right. 
 
 The covenant of vxirranty, by which the grantor war- 
 rants his title to the state conveyed by the deed binds the 
 grantor to make good any loss resulting to the grantee or his 
 successors in interest from ouster by paramount title, and 
 to defend the title against hostile claimants. As in the case 
 of the covenant for quiet enjoyment it can be broken only 
 by an eviction. No action will lie because of mere failure of 
 title. Until the paramount owner has asserted his right 
 and recovered possession of the property this covenant is 
 not broken.^* 
 
 The covenant of warranty and of quiet enjoyment are both 
 broken by an eviction resulting from the enforcement of a 
 mortgage or other lien," or by admeasurement of dower,^'' 
 or by the exercise and enforcement of an easement, re- 
 
 Kellog T. Piatt, 33 N. J. L. 328; 'Piek. (Masa.T 346; Barry v. Guild. 
 
 Sprague v. Baker, 17 Mass. 586; 126111.439. See cases cited in note 13 
 
 Harding v. Larkin, 41 III. 413 ; Mc- supra, the covenant of warranty being 
 
 Gary v. Hastings, 39 Cal. 360. broken in every case in which the 
 
 In these eases the outstanding covenant of quiet enjoyment is broken 
 
 title must be asserted in a hostile by enforcement of a paramount title, 
 
 way, the owner demanding his prop- The two covenants cover substanti- 
 
 erty, and the vendee or tenant acts ally the same ground, except that 
 
 at his peril in recognizing the ad- the covenant of warranty is not 
 
 verse title. See cases above cited. broken by an eviction through the 
 
 14. Shattuck v. Lamb, 65 N. Y. wrongful acts of the grantor. 
 
 499; Jones v. Warner, 81 HI. 343; 16. Hill v. Beacon, 110 Mass. 387; 
 
 Fritz V. Pusey, 31 Minn. 368. Cornish v. Capron, 136 N. Y. 232; 
 
 If the grantor retains possession King v. Killride, 58 Conn. 109; Rine- 
 
 himself he may be sued for breach of hart v. Einehart, 91 Ind. 89. 
 
 the covenant of quiet enjoyment. 17. Bostwick v. Williams, 36 III. 
 
 Jones V. TJmmons, 21 Oh. St. 596. 65; Blanchard v. Blancliard, 48 Me. 
 
 15. Beddoe v. Wadsworth, 21 Wend. 174. 
 (N. y.) 120; Jenkins v. Hopkins, S 
 
784 Deeds and Conveyances. 
 
 Btrictive agreement or other hostile paramount right by 
 which the grantee is ousted from the enjoyment of any part 
 of the land conveyed.** The covenant against encumbrances 
 is broken in these cases by the mere existence of such en- 
 cumbrances. The covenants of warranty and quiet enjoy- 
 ment are broken only when an ouster from some part of the 
 property results from their exercise or enforcement. 
 
 The last three covenants discussed, viz.: for further as- 
 surance, quiet enjoyment and warranty, are not broken as 
 soon as made, as in the case of the first three covenante re- 
 ferred to above, but remain executory until a subsequent 
 breach. They are not mere personal choses in action, and 
 therefore under the old law as well as by the modern cases 
 they run with the land, being enforceable by any successor 
 in interest of the grantee who may be owner of the property 
 in question at the time the covenant is broken. The cove- 
 nant of further assurances is broken by failure or refusal to 
 give or procure any further instrument required to perfect 
 the title transferred, and must always take place some time 
 after the conveyance. So eviction, following necessarily after 
 the conveyance to the grantee and entry by him, constitutes 
 the breach of the covenants of quiet enjoyment and war- 
 ranty. The question of the running of all covenants for title 
 with the land is discussed in the following section. 
 
 § 325. How Covenants for Title Run With the Land.— 
 We have seen that covenants in deeds or leases affecting the 
 estate conveyed run with the land because they define the 
 tenure existing between the tenant and the reversioner or 
 remainderman, or the relation existing between the owners 
 of the dominant and servient estates when made as express 
 
 13. Kramer v. Carter, 136 Mass. grantor's title, the covenant of war- 
 
 604; Scriver v. Smith, 100 N. Y. ranty is hroken. Adams v. Conover, 
 
 471. 87 N. Y. 422; Green v. Collins, 86 
 
 If the grantee is deprived of an N. Y. 246; Peters v. Grubb, 21 Pa. 
 easement appurtenant to the estate St. 455 See contra, Mitchell v. War- 
 conveyed to him by failure of his ren, 5 Conn. 497. 
 
How Covenants foe Title Run With the Land. 785 
 
 terms or limitations of easements and profits. They run 
 with the land because they are controlling terms or limita- 
 tions of the estate or interest in the land held by the parties 
 involved.^ Covenants for title present a more difficult prob- 
 lem. As between landlord and tenant the covenant of quiet 
 enjoyment and of power to demise, or title, whether express 
 or implied, rim with the land like other covenants affecting 
 the tenure, but as between the vendor and vendee of an 
 estate in fee, between whom no tenure has existed since 
 the enactment of the statute Qii,ia Emptores, another princi- 
 ple must be found to explain the running of these covenants 
 for title with the land. 
 
 The covenants of quiet enjoyment, of warranty and of 
 further assurance unquestionably run with the land so as to 
 be enforceable by any successor in interest of the grantee 
 who may be owner when the breach takes place.** These 
 succeeding owners are not parties to the contract, are 
 strangers to the consideration, and therefore cannot en- 
 force these covenants by virtue of the ordinary principles of 
 contracts, unless the covenant may be regarded as assigned 
 with the land whenever it is conveyed or devised. But they 
 have not usually been enforced as assigned personal con- 
 tracts in these cases, and therefore this principle must be 
 abandoned as the explanation of the rule. They run with the 
 land so as to be enforceable by subsequent owners against the 
 covenantor because the parties intended that the grantor's 
 warranty should attach to the title as an incident thereof, 
 passing with it to all subsequent takers, strengthening and 
 supporting it in their hands. The other class of covenants 
 running with the land as defining the tenure or other rela- 
 tionship of the parties with respect to the land are enforce- 
 
 1. See Ch. AVUl, ante. Butler v. Barnes, 60 Conn. 170; 
 
 2. Rawie, Covenants, § 213, et seq, 
 Mygatt V. Coe, 147 N. Y. 456; Geisz 
 ler V. De Graaf, 166 N. Y. 339, 342 
 Peters v. Bowman. 98 U. S. 59 
 Carter v. Denman, 23 N. J. L. 260 
 50 
 
 Wead V. Larkin, 54 111. 489^ Wy- 
 man v. Ballard, 12 Mass. 306; Fislier 
 V. Parry, 68 Ind. 469. See, also, 8 
 Am. & Enjr. Ency. Law. pp. 142, 143, 
 156, and cases there cited. 
 
786 Deeds and Convetak-oes. 
 
 able by subsequent purchasers, strangers to the contract, 
 because the parties so intended. Covenants for title run 
 with the land for the same reason. The parties intended 
 that they should attach to the title and pass with it to be 
 enforced by subsequent holders in exactly the same way. If 
 covenants can be attached to an estate for life or for years 
 or to an easement as qualifying or enhancing it there is no 
 good reason why covenants of title cannot be attached to the 
 title where the fee is conveyed if the parties so desire. In 
 the first class of cases the covenant is incident to the es- 
 tate created; in the cases under discussion the covenants 
 are incident to the title. 
 
 The first three covenants referred to in the preceding sec- 
 tion, viz.: of seisin, power to convey and against encum- 
 brances, are intrinsically of the same nature and are in- 
 tended to assure and strengthen the grantor's title in ex- 
 actly the same way. But it seems to be settled under the 
 older cases that these covenants did not run with the land 
 because they were necessarily broken as soon as made, and 
 were from the beginning mere accrued choses in action giv- 
 ing to the grantee an immediate action for damages, which 
 was purely personal in the grantee and which for that rea- 
 son could not run with the land.' This reasoning and ruling 
 are both purely technical. It is well settled that the grantee 
 cannot collect substantial damages until he has been ousted, 
 or until the encumbrance has been enforced against him, as 
 the case may be. Therefore, substantially and practically, 
 his recovery can be had only after he has incurred the ac- 
 tual damage which these covenants are designed to protect 
 him against. The actual intent of the parties must have 
 been the same in these covenants as in the covenants for 
 further assurance, of quiet enjoyment and warranty, which 
 are held to run with the land, viz.: that the person actually 
 
 3. Greenby t. Wilcoeks, 2 Johns. Conn. 497; Carter v. Denman, 23 N. 
 (N. y.) Ij Kramer v. Carter, 136 J. L. 260. See 8 Eng. & Am. Ency. 
 Mass. 504; Mitchell v. Warner, 5 Law, 153. 
 
ExEOUTiON OF Dbkds ; Signing and Sealing. 787 
 
 the holder of the title when the damage was incurred should 
 have the right to maintain the action. In England and 
 under statutes and later discussions in many of the states 
 it is now settled that these covenants run with the land, re- 
 jecting the distinction established by the earlier cases." 
 
 § 326. Execution of Deeds; Signing and Sealing — Before 
 the Statute of Frauds deeds conveying freehold estates in 
 land had to be sealed by the grantor, but they did not have 
 to be signed by him. The Statute of Frauds required that 
 all conveyances of freehold estates in land and leases for 
 over three years be in writing and signed by the parties 
 creating or transferring the estates so created. Blackstone 
 states that the statute added the requirement of signing to 
 that of sealing,* but the English cases hold that a deed of 
 conveyance under seal need not be signed, as the statute 
 was not intended to apply to deeds under seal but only to 
 such writings under the statute as did not require a seal, 
 it being clear that sealed instruments are already sufficiently 
 authenticated, nor do they present the danger arising from 
 parol testimony which the statute sought to avoid.^ 
 
 In the United States it is uniformly held under the stat- 
 utes in the various states that deeds and conveyances must 
 be signed or subscribed, whether under seal or not.® In 
 
 5. Stat. 44 and 45 Vict. eh. 41, § Massachusetts, Georgia, Colorado and 
 
 7; Kingdon v. Nettle, 1 M. & C. 355; North Dakota. 
 
 King V. Jones, 5 Taunt. 418; Geiszler In some of the cases above cited 
 
 V. De Graaf, 166 N. Y. 339 : Mandi- this result wag reached by regarding 
 
 go V. Conway, 90 N. Y. Supp. 324; the conveyance as an assignment of 
 
 Richard v. Bent, 59 111. 38; Sinker v. the right of action arising out of the 
 
 Floyd, 104 Ind. 392; Sage v. Jones, technical breach which took place 
 
 47 Ind. 123; Mecklin v. Blake, 22 when the original deed containing 
 
 Wis. 495 ; Security Bank v. Holmes, the covenant was delivered. 
 
 65 Min. 531; Betz v. Bryan, 36 Oh. 1. 2 Bl. Com. 306. 
 
 St. 330; Cole v. Kimball, 52 Vt. 639; 2. Cherry v. Heming, 4 Ex. 631, 
 
 Ballard v. Child, 34 Me. 355. See 636, 3 Gray Cases Prop. 554. 
 
 statutes modifying the old rule and 3. Goodman v. Randall, 44 Conn. 
 
 permitting the subsequent owner ac- 321; Mut. Ben. Ins. Co. v. Brown, 30 
 
 tually damaged to sue for breach of N. J. Eq. 193; Taylor v. Glaaer, Z 
 
 these covenants enacted in Maine, Serg. & E. (Pa.) 508. 
 
788 Deeds and Conveyances. 
 
 some states they must be siCbscrihed, in which case the sig- 
 nature must be at the end of the deed.* Where the re- 
 quirement of the statute is that they be signed merely, the 
 signature may be in any part of the instrument.' Signing 
 by making a mark is sufficient, it being established that the 
 mark was intended as the signature of the grantor, and it 
 being clearly identified as his.* 
 
 The signing of the grantor's name to the deed by another 
 in the presence of the grantor with his knowledge and as- 
 sent is in all respects equivalent to a signature by himself. 
 No question of agency is involved in such case, so that the 
 person affixing the signature need not be authorized under 
 seal. It is the direct personal act of the grantor.'^ 
 
 Seals were essential to the validity of all conveyances by 
 deed of freehold estates or interests at common law. A 
 bargain and sale under the Statute of Uses was good by pa- 
 rol, and therefore required no seal, until the Statute of En- 
 rollments was passed to remedy this situation, requiring 
 that they be in writing, under seal, and duly enrolled. This 
 statute is not recognized as being in force in the United 
 States. We have seen that in most if not all the states 
 simple deeds of grant are provided for by statute, and that 
 deeds of bargain and sale and lease and release are given the 
 force and effect of the modern statutory deed.^ As these 
 deeds do not take effect under the common law, but operate 
 solely by virtue of the statutes providing for them, it fol- 
 lows that a seal is no longer essential to their validity ex- 
 cept where the statute expressly so provides.^ In some 
 
 4. N. Y. Keal Prop. L. § 243. See 7. Lovejoy v. Richardson, 68 Me. 
 «tatutc3 in the different states. 386; Nye v. Lowry, 82 Ind. 316 • 
 
 5. MeConnell v. Brillhart, 17 111. Gardner v. Gardner, 59 Mass. 483; 
 354; Smith v. Howell, 11 N. J. Eq. Mut. Ben. Life Ins. Co. v. Brown, 30 
 349 (dedication of trust); Winston X. J. Kq. 193; Jansen v. MoCahill, 
 T. Hodges, 103 Ala. 304. 23 Cal. 563. 
 
 8. Ive V. Richardson, 76 Ala. 329; 8. See § 317, ante. 
 
 Truman v. Lore's Trustees, 14 Oh. St. 8. In New York a seal was ex 
 
 144; Devereaux v. McMahon, 108 N. pressly required by 1 Rev. St., 738, } 
 
 C- ^3*- 137. This provision was repealed by 
 
Execution of Deeds; Signing and Sealing. 
 
 789 
 
 states seals are still required by statute," but in most states 
 they are no longer essential to conveyances of land, either 
 by the modern statutory deed or by deed under the Statute 
 of Uses, the Statute of Enrollments not being in force in 
 this country.i^ 
 
 Where a seal is required an unsealed deed passes the 
 equitable title, giving to the grantee the right to compel the 
 
 § 208, Real Prop. Law of 1896, now 
 § 242, Real Prop. Law, Consolidated 
 Laws. This statute omits altogether 
 the provision requiring a seal, the 
 purpose of the revisers being to dis- 
 pense with the seal as a requisite of 
 a deed. See Appendix II, Fowler's 
 Real Prop. L. (3rd ed.), under § 208. 
 That a seal is no longer required in 
 conveyances in New York, see Leaslc 
 v. Horton, 39 Misc. 149; Fitzgerald 
 V. Graham, 122 Fed. Rep. 401. In 
 the absence of a decision by the Court 
 of Appeals this question cannot be 
 regarded as settled in New York, and 
 to avoid all uncertainty a seal should 
 be aiiixed. 
 
 In many states seals have been dis- 
 pensed with as requisites of convey- 
 ances by express statutory provision. 
 See 1 Stim. Am. St. L., § 1564 B; 
 Jerome v. Ortman, 66 Mich. 668; 
 Harris v. Sconce, 66 Mo. App. 345; 
 Pierson v. Armstrong, 1 la. 282; 
 Switzer v. Knapps, 10 la. 72; Tatum 
 T. Tatum, 81 Ala. 388. 
 
 10. 1 Stim. Am. St. L. § 1564 A. 
 
 11. See note 9, supra. In several 
 states where there is no statutory pro- 
 vision either expressly requiring or 
 dispensing with seals in conveyances 
 of land it is still held that seals are 
 necessary, the reason being that con- 
 veyances are necessarily " deeds " in 
 the technical common law sense, 
 
 therefore requiring seals. But the 
 modern deed provided for by statute 
 has taken the place of deeds under the 
 Statute of Uses, which as we have 
 seen, had taken the place of con- 
 veyances in the ancient common law 
 form. Deeds under the Statute of 
 Uses do not require seals in this coun- 
 try, as explained above. Therefore, 
 where the modern statute does not 
 expressly require a seal, it is clear 
 that a seal is unnecessary to the 
 validity of a modern deed, though 
 a seal should be used if the deed con- 
 tains covenants of title to avoid any 
 uncertainty as to the eflfeetiveness of 
 such covenants and the application 
 of the Statute of Limitations thereto. 
 That seals are still required, see Ar- 
 nold V. Stevens, 24 Pick. (Mass.) 
 109; Huff V. McCauley, 53 Pa. St. 
 206; McLaughlin v. Randall, 66 Me. 
 226; Kingley v. Halbrook, 45 N. H. 
 313; See Suffem v. Butler, 19 N. J. 
 Eq. 202, at p. 209; Cowdrey v. Cow- 
 drey, 64 Atl. 98 (N. J.). But see 2 
 N. J. Compiled Stat., 20, 20a, 20b, 
 20c, making deeds effective and valid 
 though not sealed provided the at- 
 testation clause or acknowledgment 
 or proof shall recite that the same 
 was signed and sealed by the makers 
 thereof. See statutes under " Deeds " 
 or "Conveyances" in the different 
 states. 
 
790 
 
 Deeds and CoNVETAuoEa. 
 
 grantor to execute and deliver to him a valid deed undei' 
 seal." 
 
 § 327. Delivery of Deeds. — Before a deed becomes opera- 
 tive as a conveyance it must be delivered. Delivery takes 
 place when the grantor, by some affirmative act or state- 
 ment, declares his intent that the deed shall at once take 
 effect as a conveyance of title to the land. It need not be 
 delivered corporeally to the grantee or his agent. It is de- 
 livered and at once becomes operative if the grantor has 
 by word or act clearly declared his intent to that effect, 
 though the instrument remain in his possession.^ Delivery 
 to a third person without authority to accept in behalf of 
 the grantee is good and the deed takes effect at once if the 
 
 12. Nat. Prov. Bk. v. Jackson, 33 
 Ch. Div. 1; Wadsworth v. Wendell, 
 5 Johns. Ch. (N. Y.) 224; Jewell v. 
 Harding, 73 Me. 134; Owen v. Frink, 
 24 Cal. 171; Cowdrey v. Cowdrey, 64 
 Atl. 98 (N. J.). 
 
 1. Ten Eyck v. Whitbeck, 156 N. 
 Y. 341; Hamlin- V. Hamlin, 117 App. 
 Div. (N. Y.) 193; Schaffer v. Eeilly, 
 60 N. Y. 61; Kuckman v. Ruckman, 
 33 N. J. Eq. 359; Vought's Exrs. v. 
 Vought, 50 N. J. Eq. 177 (holding 
 that where a deed from husband to 
 wife remained in his custody, evi- 
 dence that he managed the property 
 as agent of his wife established a 
 legal delivery though no manual de- 
 livery had taken place) ; Moore v. 
 Hazleton, 91 Mass. 103 (holding that 
 where a guardian executed an as- 
 signment of a mortgage to his ward 
 to secure money due the ward from 
 the guardian, delivery took place 
 though the instrument remained in 
 the guardian's hands, his intent that 
 it should take effect at once being 
 eliown) ; Lundy v. Mason, 174 111. 
 605; Mc Elroy v. Hines, 133 HI. 166 j 
 
 Thatcher v. St. Andrew's Church, 37 
 Mich. 264; Newton v. Bealer, 41 
 Iowa 334; Mallett v. Page, 8 Ind. 
 364; Dukes v. Spangler, 35 Oh. St. 
 119; Conlon v. Grace, 36 Minn. 276; 
 Blight V. Schenck, 10 Pa. St. 283. 
 
 Where the instrument remains in 
 the possession of the grantor and 
 the intention that it take effect at 
 once is not affirmatively established, 
 it is void for non-delivery. Ten Eyclc 
 V. Whitbeck, 156 N. Y. 341 (holding 
 that the presumption that the instru- 
 ment was delivered and accepted as of 
 its date, and possible similar presump- 
 tion arising out of its having been re- 
 corded, is overthrown by evidence that 
 deed was never delivered shown bj' 
 continued possession and use of prop- 
 erty by the grantor) ; Hall v. Hall, 
 41 N. Y. 416; Lundy v. Mason, 174 
 HI. 505; Morris v. Caudle, 178 HI. 1; 
 Guernsey v. Black Diamond, etc. Co, 
 99 Iowa 471; Patterson v. Snell, 67 
 Me. 559 {intended as testamentary 
 disposition) : Mills v. Gore. 20 Pick. 
 (Mass.) 28; Duraind's App. 116 Pa. 
 St. 93. 
 
Dblivebt or Deeds. 
 
 791 
 
 grantor's intent to that effect is in some way clearly ex- 
 pressed,* tiiougli a mere corporeal delivery to sucli a third 
 person without such expression of intent will not amount 
 to a delivery in the legal sense, the corporeal delivery being 
 of value only, in connection with some statement of the 
 grantor's intent, as further evidence that a legal delivery 
 of the deed was intended.' 
 
 Corporeal delivery to the grantee is presumptively a legal 
 delivery in the absence of intent to the contrary, but if it 
 be shown that the instrument was given to the grantee for 
 some special purpose, without intent to make it presently 
 effective as a conveyance, no delivery takes place.* Of 
 
 2. Jones v. Swayze, 4S N. J. L. 
 879; Merrills v. Swift, 18 Conn. 257; 
 Greene v. Conant, 151 Mass. 223; 
 Mitchell V. Kyan, 3 Oh. St. 377; Mil- 
 ler V. Meera, 155 HI. 289; Church T. 
 Oilman, 15 Wend. (N. Y.) 650; Die- 
 fendorf v. Diefendorf, 132 N. Y. 100; 
 Booker v. Booker, 119 App. Div. (N. 
 T.) 482. 
 
 3. Shepard's Touchstone, 87, 68, 
 quoted in Mitchell's Lessee v. Ryan, 
 8 Oh. St. 377, and Merrills v. Swift, 
 18 Conn. 257, holding, however, that 
 the delivery was good as the intent 
 to deliver had been sufficiently ex- 
 pressed; Chauncey y. Arnold, 24 N. 
 y. 330; Maynard t. Maynard, 10 
 Mass. 456. 
 
 Delivery by the grantor to the 
 recording officer for record in behalf 
 of the grantee is a good legal de- 
 livery, and the general rule seems 
 to be that legal delivery will be pre- 
 sumed where the deed has been re- 
 corded. Mitchell's Lessee v. Ryan, 3 
 Oh. St. 377 (the court saying: "Very 
 clear proof ought to be made, to war- 
 rant a court in holding that a man 
 who has executed and acknowledged a 
 deed, and caused it to be recorded, 
 did not mean thereby to part with 
 
 his title. If such deeds could be over- 
 thrown by slight testimony, a door 
 would be open to the grossest fraud") ; 
 Mallett V. Page, 8 Ind. 364; Pool v. 
 Davis, 135 Ind. 323; Blight v. 
 Schenck, 10 Pa. St. 285; Farlee v. 
 Farlee, 21 N. J. L. 279; Patrick v. 
 Howard, 47 Mich. 40; Wilcox v. 
 Drought, 71 App. Div. (K. Y.) 402. 
 
 But where such delivery for record 
 is shown affirmatively to have been 
 for some special purpose, without in- 
 tent to pass title, no delivery takes 
 place. See Jackson d. Earaes v. 
 Phipps, 12 Johns. (N. Y.) 408; Smith 
 V. South Eoyalton Bank, 32 Vt. 341; 
 Derry Bank v. Webster, 44 N. H. 
 264. 
 
 In Commercial Bank v. Reckless, 5 
 N. J. Eq. 430, the court held that no 
 delivery took place, it not appearing 
 affirmatively that the recording of- 
 ficer was directed to deliver to the 
 grantee, and in Barnes v. Barnes, 161 
 Mass. 381, delivery for record was 
 also treated like delivery to any third 
 person — affirmative expression of in- 
 tent to make the deed presently ef- 
 fective must be shown in addition to 
 the mere recording of the instrument. 
 
792 Deeds akd Conveyances. 
 
 course where manual possession of the instrument is secured 
 by the grantee through fraud, or without the knowledge or 
 consent of the grantor, no delivery has occurred, and the 
 instrument remains inoperative for any purpose.® 
 
 Delivery to the grantee personally subject to some con- 
 tingency, the delivery to become effective only on the hap- 
 pening of the contingent event so provided for, operates 
 as an absolute delivery, the condition being void.^ A condi- 
 tional delivery to be effective as such must be made to a 
 third person, in escrow as it is generally termed.'^ All 
 other instruments, including ordinary written contracts, 
 negotiable paper, and instruments of any kind whether 
 under seal or not, exclusive of deeds and conveyances of 
 realty, may be delivered conditionally directly to the party 
 interested, delivery in escrow not being required, and parol 
 evidence is admissible to prove that the delivery was condi- 
 tional.^ 
 
 § 328. Delivery in Escrow. — The delivery of a deed to a 
 third party to be held by him and delivered to the grantee 
 upon the happening of some condition, such as the payment 
 of the purchase price or other act to be performed by the 
 grantee, or upon the happening of some collateral event, 
 such as the death of the grantor, is a delivery in escrow 
 
 4. Braman v. Bingham. 26 Jf. Y. Boorum, 143 N. Y. 357 (the law de- 
 483; Dietz v. Farish, 44 N. Y. Super, clared to be so settled whatever the 
 Ct. 190; Graves v. Dudley, 20 N. Y. reason and irrespective of whether the 
 76; Curry v. Colburn, 99 Wis. 319; distinction has any sound basis or 
 Comer v. Baldwin, 16 Minn. 172 j not) ; Holbrook v. Truesdale, 100 App. 
 Bovee v. Hinde, 135 111. 137. Div. (N. Y.) 295; Baker v. Baker, 
 
 5. ?Jajor V. Todd, 84 Mich. 85; 159 111. 394; Dawson v. Hall, 2 Mich. 
 Lundy v. Mason, 174 111. 505; Santer 390; HinchliflF ▼. Hinman, 18 Wis. 
 V. Dollman, 46 Minn. 504; Fitzgerald 130. 
 
 V. Goff, 99 Ind. 28; Tisher v. Beck- 7. See § 328, port. 
 
 with, 30 Wis. 55. 8. Niblock ▼. Sprague, 200 N. Y. 
 
 G. Co. Litt. 36a; Wliyddon's case, 390; Stiebel v. Orosberg, 203 N. Y. 
 
 8 Cro. Eliz. 520; Ward v. Lewis, 4 266. 
 
 Pick. (Mass.) 518; Blewitt T. See, also, cases in note 6, «upr*. 
 
Deliveey in Esokow. 
 
 Y93 
 
 or conditional delivery. The tHrd person holds the deed aa 
 agent or trustee for the grantee, and must deliver it to him 
 upon the happening of the contingency involved. Upon the 
 second delivery the deed takes effect as of the date of the 
 original delivery to the third person.^ The question of the 
 effect of a deed, mortgage, judgment or other lien, delivered 
 or taking effect after the first and before the final delivery, 
 or before the happening of the contingency or event upon 
 ■which final delivery is to be made, upon the title of the gran- 
 tee under the deed of escrow, presents difficulties on which 
 
 1. A distinction is sometimes made 
 between a delivery to a third person 
 on condition, to take effect presently 
 as the deed of the grantor, and a simi- 
 lar delivery intended to operate only 
 as an eschew, and to operate as a deed 
 only on the final delivery to the 
 grantee. See Wheelwright v. Wheel- 
 wright, 2 Mass. 447; Hathaway v. 
 Payne, 34 N. Y. 93, at pp. 106, 107; 
 Taft V. Taft, 59 Mich. 185. It is clear 
 no real distinction exists in such case, 
 or in the case of a delivery subject to 
 a condition as distinguished from a 
 delivery to a third person the deed to 
 be delivered on the death of the gran- 
 tor or on any other event sure to hap- 
 pen. In either case to operate as a 
 delivery at all the control of the in- 
 strument is given up absolutely by 
 the grantor. If he retains the right 
 to recall the instrument he makes the 
 third person his agent or depository 
 and the deed is no more effective than 
 if it remained in his own hand. (See 
 note following.) 
 
 If a valid delivery in escrow has 
 been made the grantee acquires cer- 
 tain rights, conditional when the final 
 delivery is subject to some condition, 
 absolute, but only deferred in their 
 enjoyment when the final delivery is 
 to take place on an evetit sure to hap- 
 
 pen. In either case the final delivery 
 operates by relation from the first de- 
 livery because the future rights of tl e 
 grantee, whether contingent or vested, 
 which have matured into full owner- 
 ship on the final delivery, are created 
 by the first delivery. Both cases are 
 governed by identical principles. 
 Stonehill v. Hastings, 202 N. Y. 115; 
 Cook V. Brown, 34 N. H. 460; State 
 Bank v. Evans, 15 N. J. L. 155; Hall 
 V. Harris, 5 Ired. Eq. (N. C.) 303; 
 Foster v. Mansfield, 3 Met. (Mass.) 
 412; Stone v. Duvall, 77 111. 475; 
 Baker v. Baker, 169 111. 394; Bury v. 
 Young, 98 Cal. 446; Prustman v. 
 Baker, 30 Wis. 649. The last two 
 cases take the position that where 
 the second delivery is to be made on 
 the death of the grantor, the legal 
 effect is that the grantor has reserved 
 a life estate in himself and has con- 
 veyed a vested future estate in fee to 
 the grantee, absolute on the first de- 
 livery. It would seem obvious that 
 the second delivery in either case is a 
 formal matter merely, since on the 
 happening of the condition or event 
 the estate of the grantee becomes ab- 
 solute before the second delivery has 
 actually been made. See Davis v. 
 Clark, 58 Kan. 100, at p. 106. 
 
794: Deeds and CoNVBrANOES. 
 
 the courts are not in accord. The question turns on the ef- 
 fect of the first delivery upon the title of the grantor. There 
 can be no doubt that the result is to divest him of control 
 of the deed, and also of control of the title, which vests 
 absolutely in the grantee on the happening of the event or 
 contingency on which the second delivery is to take place. 
 If the grantor reserves the right to revoke or recall the in- 
 strument before the final delivery there is no delivery at all, 
 either complete or in escrow.* On the other hand the legal 
 title in the technical sense does not pass to the grantee until 
 the condition or event happens on which the delivery de- 
 pends. During the interval the grantee has a present right 
 subject to a condition of which he cannot be deprived by the 
 grantor, a right which is perfectly good at law as well as in 
 equity. The technical legal title necessarily remains in the 
 grantor since it has not passed to the grantee. This title 
 of the grantor is subject to be defeated by the actual tak- 
 ing effect of the conditional legal interest or estate of the 
 grantee on the happening of the contingency or the event 
 provided for, and then vests absolutely in the grantee by 
 virtue of and as of the date of the original delivery.* It is 
 sound law that as between the original parties, or in the 
 case of any but a subsequent purchaser for value without 
 notice, a subsequent deed or mortgage executed and de- 
 livered by the grantor prior to the happening of the con- 
 tingency provided for in the deed of escrow is void as to the 
 
 2. Cook V. Brown, 34 N. H. 460; 623; Burnham v. Burnham, 58 Miac. 
 
 Bun- V. Young, 98 Cal. at p. 451 (the (N. Y.) 385, aff. 199 N. Y. 592. 
 
 court saying: "The essential requi- 3. Daggett v. Daggett, 143 Mass. 
 
 site [to a delivery In escrow] is that 516; Pitch ▼. Miller, 200 111. 170; 
 
 when it is placed in the hands of the Ogden v. Ogden, 4 Oh. St. 182. 
 
 third party, it has passed beyond the See, also, last two notes. The 
 
 control of the grantor for all time ") ; grantee's interest daring snch inter- 
 
 Prustman v. Baiter, 30 Wis. 644; val very closely resemMes a future 
 
 Maynard v. Maynard, 10 Mass.^ 456; executory interest in fee, in the case 
 
 Stanton v. Miller, 5S N. Y. 192; of a fee upon a fee or conditional 
 
 Rochester Sav. Bank v. Bailey, 34 limitation. 
 Miac (N. Y.) 347, aff. 70 App. Div. 
 
Delivery in Esoeow. 79S 
 
 grantee under the deed of escrow on the happening of the 
 contingency though there are decisions and dicta to the con- 
 trary.* It is also clear that if the deed of escrow is not 
 recorded it will be void under the recording acts as against 
 a subsequent purchaser or encumbrancer for value and 
 without notice. If it is recorded, or if no recording act ap- 
 plies to the case and it is unrecorded, as a matter of sound 
 principle there can be no doubt that the subsequent deed 
 or mortgage of the grantor or a subsequent judgment lien 
 is void whether made to an innocent purchaser for value or 
 not. The reason is that the grantee under the escrow takes 
 a contingent legal interest in the property, something more 
 than a mere equity, which is not cut off by conveyance to 
 such innocent purchaser.'* 
 
 4. Shep. Touch. 59; Hall v. Harris, 
 5 Ired. Eq. (40 N. C.) 303; Shirley's 
 Lessee v. Ayres, 14 Oh. 307; Price v. 
 Pittsburgh, etc. R. Co., 34 111. 13. 
 See Taft v. Taft, 59 Mich. 185, hold- 
 ing that the deed relates back to over- 
 come disabilities, etc., not to overcome 
 intervening rights, based on the dis- 
 tinction referred to in note 1, supra, 
 which, we have seen, has no substan- 
 tial foundation and Is not generally 
 follov?ed. See, also, dicta to same 
 effect in Prustman v. Baker, 30 Wis. 
 644, and decision to same effect in 
 Jackson v. Rowliind, 6 Wend. (N. Y.) 
 666. 
 
 5. The state of the authorities on 
 this question is exceedingly unsatis- 
 factory. The right position was 
 taken in Hall v. Harris, 40 N. C. 303, 
 cited in the preceding note, the court 
 saying: "We are satisfied from 
 principle and from a consideration of 
 the authorities, that when a paper Is 
 signed and sealed and handed to a 
 third person to be handed to another 
 anon ii condition, which is afterwards 
 
 complied with, the paper becomes a 
 deed by the act of parting with the 
 possession, and takes effect presently, 
 without reference to the precise words 
 used, unless it clearly appears to be 
 the intention, that it should not then 
 become a deed, and this intention 
 would he defeated by treating it as a 
 deed from that time, as, if, no fraud 
 being suggested, the paper is banded 
 to the third person before the parties 
 have concluded the bargain, and lixed 
 upon the terms." The cases cited in 
 the preceding note do not determine 
 the question where the grantor con- 
 veys to a purchaser for value without 
 notice before the happening of the 
 event on which the final delivery de- 
 pends, and no cases hare been found 
 which actually decide this question, 
 the cases cited in the books on this 
 matter not being in point. There can 
 be no doubt that the line of cases 
 holding or suggesting that the final 
 delivery relates back only to over- 
 come diabilities arising in the grantor 
 after the first delivery, such as his 
 
796 
 
 Deeds and Convetanoes. 
 
 Delivery of the deed by the depository to the grantee be- 
 fore the happening of the event so provided for does not in 
 any way change the contingent interest of the grantee. He 
 does not get title to a present estate and therefore cannot 
 convey the property to a third person. If in such case he 
 should convey to an innocent purchaser for value the best 
 considered cases hold that he can convey only such interest 
 as he has, and if the contingency or event on which his title 
 under the deed depends, fails to happen, his grantee takes 
 nothing, though an innocent purchaser for value. The legal 
 title to the property has not passed, and the conveyance is 
 absolutely void as a conveyance of a present estate.® In 
 
 death or insanity or coverture of a 
 woman grantor, stand expressly or 
 impliedly for the rule that all in- 
 tervening rights, whether of attach- 
 ing creditors or purchasers or mort- 
 gagors, defeat the title under the 
 deed of escrow, whether such interven- 
 ing parties are purchasers for value 
 or not. 
 
 It is submitted, however, that these 
 cases are based on an obvious misap- 
 prehension of the purpose and effect 
 of a delivery of a deed in escrow. It 
 is unquestioned that the grantor can- 
 not withdraw the instrument; that in 
 spite of any attempted revocation or 
 witlidrawal of the instrument by Iiim 
 title vests absolutely in the grantee 
 On the happening of the contingency 
 involved. If this means anything it 
 means that the grantee gets by the 
 first delivery a future executory in- 
 terest or estate in the property, some- 
 thing more than a mere equitable con- 
 tractual right, contingent if the deed 
 is to vest the estate in him on the 
 happening of a contingency, vested, 
 but still future if the event is sure to 
 liappen, as for instance where the deed 
 
 is to be delivered to him on the death 
 of the grantor. How can an attach- 
 ing creditor, purchaser or mortgagee 
 get any greater right than that of the 
 grantor? Assuming that the deed of 
 escrow is recorded so as to give con- 
 structive notice under the recording 
 acts, there is no valid reason why this 
 interest of the grantee should be in 
 any way afiieeted by a subsequent deed 
 or mortgage executed by the grantor 
 or by a judgment or other lien attach- 
 ing to the property after the first de- 
 livery and before the happening of 
 the event or contingency on whieli the 
 estate of the grantee is to become ab- 
 solute. Properly there is no technical 
 relating back of the second delivery 
 to talce efi'ect as of the time of the 
 first delivery. There is no need to 
 appeal to any fiction. The grantee 
 has an actually existing right 
 throughout, which becomes a vested 
 and present right on the happening 
 of the contingency or event involved. 
 6. Biacit V. Shrcve, 13 N. J. Eq. 
 455; Jaclvson v. Eowley, 88 Iowa 184; 
 Hinman v. Bootli, 31 Wend. (N. Y.) 
 367; Smith v. South Royalton Bank, 
 
AaOBPTANOE BY Grantee. 797 
 
 several states it is held, however, that the depository is 
 the agent of the grantor, and the grantor is liable for his 
 act in delivering the deed before the time fixed, or that the 
 grantor by delivering the deed in escrow has made it pos- 
 sible for the depository and the grantee by their fraud to 
 mislead and injure an innocent third person, the courts de- 
 ciding that the grantor should be bound, applying the al- 
 leged principle that where one of two innocent persons must 
 suffer that one should be held who has made it possible to 
 injure or defraud the otherJ It is perfectly well settled that 
 this principle is meaningless except in cases where the legal 
 title has passed to an innocent purchaser, which is not the 
 situation in this case, or where a case of equitable estoppel 
 exists. But the grantor is no more responsible for the pre- 
 mature delivery than he would be ia case the instrument had 
 been stolen from his desk. There is no negligent or wrong- 
 fid act on his part which can be the basis of an estoppel. 
 The injured purchaser has his remedy against the persons 
 who have wronged him, not against the owner of the prop- 
 erty so conveyed who is in no sense a party to the fraud. 
 
 § 329. Acceptance by Grantee. — On principle and by the 
 weight of authority acceptance by the grantee is not es- 
 sential to the validity of a conveyance. It is generally 
 stated that acceptance will be presumed where the convey- 
 ance is of material advantage to the grantee, and is effec- 
 tive from the time of delivery unless it be shown that the 
 grantee has actually refused to receive it.* A conveyance 
 
 32 Vt. 341; Everts v. Agnes, 6 Wis. titled to (viz., that an estate cannot 
 
 4f63; Calboun Co. v. Am. etc Soc., be thrust upon a man against his will 
 
 93 U. S. 137. '^^ therefore actual assent is neces- 
 
 7. Schurtz V. Colvin, 55 Oh. St. sary), may be judged of by the fact 
 
 274; Blio'ht v. Schenck, 10 Pa. St. that estates are every day thrust upon 
 
 285 ! Quick V. Milligan, 108 Ind. 419. people by last will and testament. 
 
 1. Mitchell's Lessee v. Ryan, 3 Oh. » • • Neither will it be denied 
 
 St. 377 the court saying: "How that equitable estates are every day 
 
 much weight this argument is en- thrust upon people by deeds, or a«« 
 
798 Deeds aitd Conveyances. 
 
 is in no sense a contract, involving as it does only the pres- 
 ent transfer of title and ownership of land, and as no ele- 
 ment of mutual assent or agreement is necessarily involved, 
 the actual concurrence of the grantee is in no way essential 
 to the immediate effectiveness of a deed. In several states, 
 however, it is held that an actual acceptance is necessary, 
 and though such acceptance will be presumed from a valid 
 delivery, nevertheless this presumption may be rebutted by 
 evidence that the grantee knew nothing thereof, or by other 
 evidence proving that there has been no acceptance in 
 fact.2 
 
 Undoubtedly rejection or affirmative refusal to accept 
 the deed makes it void from the beginning.^ So, also, where 
 the deed is not a pure gift, but imposes a burden on the 
 grantee which he may or may not assume, according to 
 many of the cases acceptance will not be presumed,* though 
 if acceptance subsequently takes place, the deed operates 
 from the time of its delivery before such acceptance was 
 given. It would seem, therefore, as a practical matter, that 
 
 Eignments, made in trust for their lick v. Scovil, 9 111. 159; Moore v. 
 
 benefit, nor will it be said that such Flynn, 135 111. 74 (holding that no 
 
 beneficiaries take nothing until they presumption of acceptance exists 
 
 assent. Add to these the estates that where grantee had no notice of the 
 
 are thrust upon people by the statu'.e deed) ; Watson >. Hillman, 57 Mich. 
 
 of descent, and we begin to estimate 607 ; Woodbury v. Fisher, 20 Ind. 
 
 the value of the argument, th.-it a man 387; Hibbard v. Smith, 67 Cal. 547; 
 
 shall not be made a property holder Day v. Gi'iffith, 15 Iowa 104; Cravens 
 
 against his will"); Church v. Gil- v. Rossiter, 116 Mo. 338. The ]a=t two 
 
 man, 15 Wend. (N. Y.) 656; Spencer cases hold that a. subsequent aocep- 
 
 V. Carr, 45 N. Y. 406; Everett v. tance by the grantee does not relate 
 
 Everett, 48 N. Y. 218 ; Moore v. Giles, back so as to cut off intervening rights 
 
 •49 Conn. 570; Merrills v. Swift, 18 or liens. 
 
 Conn. 257; Jones v. Sw.iyze, 42 N. J. 3. See cases in note 1, supra. 
 
 L. 279; Greene v. Conaiit, 151 Alass. 4. Derry Bank v. Webster, 44 N. H. 
 
 223; Moore v. Hazlcton, 9 Allen 264; Mitchell's Lessee v. Ryan, 3 Oh. 
 
 (Mass.) 102; Hall v. Harris, 5 Ired. St. 377; Johnson v. Farley, 45 N. H. 
 
 Eq. (40 N. C.) 303. 505; Jackson v. Bodle, 20 Johns. (N. 
 
 2. Welch V. Sackett, 12 Wis. 243 Y.) 184. See, also, cases in notes 1 
 
 (decision basrd on the erro enus no- and 2, supra. 
 tion that a deed is a contract) ; Hu- 
 
AOCEPTANOE BY GeANTBE. V99 
 
 delivery transfers title in such cases as well as in cases of 
 pure gift, subject to the right of the grantor to make it 
 void by subsequently rejecting it. 
 
 It is accepted everywhere as the rule that delivery to an 
 infant or insane person will be presently effective without 
 an acceptance, establishing beyond question that there is 
 nothing in the nature of a conveyance which makes ac- 
 ceptance essential to its validity as a present transfer of 
 title.^ The fact that devises by will pass title without ac- 
 ceptance, that acceptance is not essential to the devolution 
 of title by inheritance, that trusts are valid when created by 
 deed without acceptance, make irresistible the conclusion 
 that the cases making actual acceptance essential to the 
 validity of a deed are not sound.® 
 
 5. Miller v. Meers, 155 III. 284, 6. See Mitchell's Lessee v. Ryan, 3 
 
 2«5; Campbell v. Kuhn, 45 Mich. 513, Oh. St. 377, quoted frcra in note I 
 and easea therein cited. sufii^. 
 
800 Recording of Deeds and Conveyance&, 
 
 CHAPTER XXn. 
 Rbcoeding of Deeds and Convetancbs. 
 
 § 330. The Recording Acts; General Purpose and Effect 
 — Apart from tlie recording acts priority between deeds, 
 mortgages, judgments and other liens or titles, is deter- 
 mined by the order in point of time in which they become 
 effective. Where A conveys land by a valid deed to B, and 
 later conveys or mortgages the same land to C, nothing 
 passes to C since A had nothing to convey to him, having 
 already conveyed the same property to B. So, if A mort- 
 gages the land to B and later conveys or mortgages it to 
 C, the right secured by C is subject to B's mortgage. This 
 is true though C be a purchaser for value without notice of 
 B's deed or mortgage. The doctrine that a purchaser for 
 value without notice will be protected against prior claims 
 applies only to cases where the legal title has passed to such 
 purchaser and the prior claims are equitable and not legal 
 rights. This doctrine is purely equitable, equity refusing to 
 disturb the legal title by enforcing a prior equity where 
 such title is held by a purchaser for value without notice. 
 Apart from the statutes, therefore, a valid title or lien exist- 
 ing and enforceable at law is never cut off or affected by a 
 subsequent deed or mortgage executed by the same vendor 
 or owner to another person, whether a purchaser for value 
 or not. 
 
 The object of the recording acts, in effect generally 
 throughout the United States, is to create a permanent rec- 
 ord of title to real property which may be examined by 
 any subsequent purchaser or incumbrancer, disclosing the 
 ownership of the property, and all restrictions, limitations 
 or liens upon it, and to protect all subsequent purchasers or 
 incumbrancers for value from all outstanding conveyances, 
 mortgages, or other liens which have not been recorded 
 and of which they have no notice. 
 
Instbumbnt that Must be Recoeded. 801 
 
 These statutes generally provide that a deed, mortgage or 
 other instrument affecting the title to land may be recorded 
 if duly executed and acknowledged; that if any such Ik- 
 strument is not recorded it shall be void as against any 
 subsequent purchaser, for value and without notice, of the 
 Bame real property from the same grantor or mortgagor, 
 provided the subsequent deed or mortgage is first duly 
 recorded.* Thus if A conveys land to B, who fails to re^ 
 cord his deed, and later A conveys the same property to C, 
 who pays for it in good faith without notice of the prior 
 deed, and duly records his deed before B records his, C's 
 deed is good and B's deed is void as against C. The statute 
 alone accomplishes this result, as in the absence of statute 
 B's deed would be good and C's deed would be void, be- 
 cause A, having conveyed the property to B, would have no 
 title which he could convey to C. 
 
 The unrecorded deed or mortgage is good as against the 
 grantor or mortgagor and as to all other persons except a 
 subsequent innocent purchaser or encumbrancer for value." 
 By express statutory provision in two or three states in- 
 struments of conveyance are declared to be void until re- 
 corded,^ but in nearly every state the purpose of the statute 
 is to protect subsequent innocent purchasers and incum- 
 brancers for value only, and the unrecorded instrument ia 
 valid as against all others. 
 
 § 331. Instrument that Must be Recorded. — The statutes 
 generally provide that all deeds, mortgages and written 
 
 1. See references to statutes and as to become eflfective as against any 
 decisions tliereunder in notes under subsequent purchaser whether for 
 sections following. value without notice or not, see Holli- 
 
 2. Stim. Am. St. L. § 1611 B; day v. Franklin Bank, 16 Oh. 533; 
 Wood V. Chapin, 13 N. Y. 509; Mo- Mayham v. Coombs, 14 Oh. 428; 
 LaughHn t. Ihmcen, 85 Pa. St. 364, Quinnerly v. Quinnerly, 114 N. C. 
 and cases in notes under sections fol- 145. That such mortgage is valid as 
 lowing. between immediate partie? though 
 
 3. See Nickel v. Brown, 75 Md. 173. not recorded, see Building, <fcc. Assn. 
 That mortgages must be recorded so v. Clark, 43 Oh. St. 427. 
 
 51 
 
802 Kecoeimng of Deeds and Convetattoes. 
 
 instruments by whicli any estate or interest in land is cre- 
 ated, transferred, mortgaged, or assigned, or by wbich. the 
 title to any real property may be affected, must be re- 
 corded, except leases for three years or less, powers of at- 
 torney to convey, and executory contracts for the sale of 
 land.* Wills need not generally be recorded under the re- 
 cording acts, but their record is provided for by special 
 statutes relating to wills and surrogate or probate courts." 
 Leases and mortgages of leasehold interests for over three 
 years (or for such other period as may be provided by the 
 statute in any state), must be recorded, like deeds or mort- 
 gages of freehold estates.' Powers of attorney to execute 
 conveyances may be recorded, but they need not be in most 
 states. If recorded in such states the power remains good 
 and effective so that innocent purchasers for value without 
 notice of revocation of the powers are protected until a 
 revocation thereof has been duly recorded/ In some states 
 they must be recorded like conveyances or mortgages.* Ex- 
 ecutory contracts of sale may also be recorded, though 
 such record is not required, and therefore the recording of 
 
 4. N. T. Real Prop. Law, § 290; written sale of marl (part of the 
 
 Stim. Am. St. § 1611 A, § 1611 B. soil), Locustrine Fertilizer Co. v. 
 
 Bee statutes in the different states. Lake Guano & F. Co., 82 N. Y. 476. 
 
 Instruments which must be re- 5. N. Y. Real Prop. L., § 290, and 
 
 eorded include: Deeds of referees and statutes in the different states. As 
 
 sheriffs, Hetzel v. Barber, 69 N. Y. to recording of wills in Surrogate's 
 
 1; Assignments of mortgage and sat- Court, see N. Y. Code Civ. Proc. §§ 
 
 Isfaction pieces, Gibson v. Thomas, 2498, 8499. 
 
 85 App. Div. (N. Y.) 243, and Ba- 6. N. Y. Real Prop. L., J 290, and 
 
 eon V. Van Schoonhoven, 87 N. Y statutes in the different states. 
 
 446; Release of mortgages, Frear v. 7. N. Y. Real Prop. L., §§ 290, 294, 
 
 Sweet, 118 N. Y. 454; extension of and statutes in the different states, 
 
 mortgages, Wiedeman v. Zielinska, 8. In Massachusetts and several 
 
 102 App. Div. (N. Y.) 163; covenants other states powers of attorney must 
 
 affecting the title, as by creating be recorded to make the record of any 
 
 easements. Bradley v. Walker, 138 instrument executed thereunder con- 
 
 N. Y. 291; Hunt v. Johnson, 19 N. structive notice thereof under th« 
 
 Y. 279; written sale of growing tim- statute. See Stim. Am. St. U {{ 
 
 ber to be removed by vendee, Vore- 1624 (10), 1670. 
 beck V. Roe, 50 Barb. (N. Y.) 308; 
 
What Constitutes Puechasee Without Notice. 803 
 
 them does not give constructive notice to subsequent pur- 
 chasers. If duly recorded, however, their record will 
 usually give actual notice thereof to any purchaser who ex- 
 amines the title.^ In some states they must be recorded 
 like other instruments of conveyance.*" 
 
 Deeds or other instruments creating or transferring equit- 
 able estates are included within the recording acts, and must 
 be recorded like conveyances affecting the legal title." 
 
 § 332. What Constitutes Subsequent Purchaser Without 
 Notice. — The statutes make the prior unrecorded deed or 
 other instrument of title void as to subsequent purchasers 
 or encumbrancers in good faith for value from the same 
 grantor or mortgagor of the same real property. A purchaser 
 in good faith is one who purchase or acquires an interest in 
 the property without notice of the unrecorded instrument. 
 He has notice in all cases where he has actual knowledge of 
 the existence of the instrument, and also where he has 
 knowledge of facts which should induce him as a man of 
 average prudence to inquire as to its existence, provided 
 such inquiry, prosecuted with reasonable diligence, would 
 result in its discovery.* Mere rumor of an indefinite claim 
 
 9. N. Y. Eeal Prop. L., §§ 290, name of the legal owner for possible 
 294; Boyd v. Sehlesinger, 56 N. Y. mortgages in deeds made by such 
 301. See cases cited on this question owner before he got title. The bet- 
 in 24 Am. & Eng. Cyc. Law, 81. ter rule, laid down in Tarbell v. 
 
 10. Kent V. Williams, 146 Cal. 3. West, supra, is that such instrument 
 
 11. Tarbell v. West, 86 N. Y. 280 in notice of record only to a subse- 
 (mortgage by partner of his equita- quent purchaser of the equitable, not 
 ble interest in firm property, legal the legal title ) . 
 
 title being in copartner) ; Hunt v. 1. N. Y. Real Prop. L., § 291; Wil- 
 Johnspn, 19 N. Y. 279; Wilder v. liamson v. Brown, 15 N. Y. 354; 
 Brooks, 10 Minn. 50; Edwards v. Davis v. Kennedy, 105 111. 300 (state- 
 McKernan, 55 Mich. 520 (holding ment of claimant at time of subse- 
 that where owner of the equitable quent sale); Condit v. Wilson, 36 N. 
 title made and recorded a mortgage J. Eq. 370; Paul v. Conneraville, etc. 
 thereof, and later acquired the legal Co., 51 Ind. 527 (existence of rail- 
 title, subsequent purchaser of the road tracks on land purchased, no- 
 legal title must search back a;_'iiiiist tice of possible rights of others ia 
 
804 E.ECOEDINO OF Deeds and Conveyances. 
 
 or right existing in a third person is not notice.* But actnal 
 definite information from any credible source, though the 
 person giving the information be an entire stranger to the 
 three parties involved, will be notice depriving him of the 
 protection of the statute if by reasonable investigation he 
 can discover whether the information is accurate or not.* 
 It seems to be immaterial whether the statute prescribes 
 " actual notice " or merely " notice " of the prior instru- 
 ment, the subsequent purchaser being held as having actual 
 notice in all cases where he has knowledge of such facts 
 as would induce the man of average prudence to investigate 
 the matter where such investigation would result in the 
 discovery of the prior unrecorded instrument. He has ac- 
 tual notice of everything which he knows or ought to know 
 or discover, acting as a reasonable man.* In Massachusetts, 
 however, the expression " actual notice " is strictly con- 
 strued; knowledge of facts which on investigation would 
 lead to the discovery of the former instrument will not do.^ 
 
 land for railroad purposes) ; Brink- 3. Cox v. Milner, 23 111. 476 
 man v. Jones, 44 Wis. 498 (actual (where he hears of prior sale from 
 notice shown by notice of facts put- any source entitled to reasonable 
 ting prudent man upon inquiry credence, he has notice) ; Butcher v. 
 which would disclose actual existence Yocum, 61 Pa. St. 168; Lawton v. 
 of prior right) ; Drey v. Doyle, 99 Gordon, 37 Cal. 202 (statement as to 
 Mo. 459; Clark v. Holland, 72 Iowa prior conveyance by recorder of 
 34; (last two cases notice from re- deeds); Jaeger v. Hardy, 48 Oh. St. 
 citals in recorded instruments refer- 335. In Jackson, etc. R. Co. v. Da- 
 ring to rights or instruments not in vison, 65 Mich. 416, the court held 
 record, puts subsequent purchaser that statement that some sort of 
 upon inquiry). See, also, cases in claim existed without specifying 
 notes following. what it was put the subsequent pur- 
 2. Condit v. Wilson, 36 N. J. Eq. chaser upon inquiry, the court re- 
 370 (vague general statement some jecting the narrower rule of some of 
 time before that property was mort- the other cases that the statement 
 gaged for all that it was worth, made must be definite, 
 to discourage a suit against him) ; 4. See cases in note 1, atipra. 
 Maul V. Rider, 59 Pa. St. 167; Chi- 5. Lamb v. Pierce, 113 Mass. 7% 
 cago V. Witt, 75 111. 211; Shepard v. holding that open and notorious po»- 
 Shepard, 36 Mich. 173; Smith v. session, or of other facts which, on 
 Yale, 31 Cal. 180. investigation, would lead to discov- 
 
What Constitutes Pukchasbb Without Notiob. 806 
 
 Possession by the grantee under the unrecorded convey- 
 ance, is prima facie notice to the world of his interest in 
 the property, and therefore the subsequent purchaser is 
 charged with notice, prima facie, in every case of such pos- 
 session.* It is immaterial whether the subsequent pur- 
 chaser has actual knowledge of such possession, because of 
 his absence or for any other cause; actual unqualified pos- 
 session by the first purchaser as owner under his deed is 
 notice of his rights to the subsequent purchaser, whether the 
 latter knows of such possession or not.^ But the prima facie 
 presumption of notice arising from possession may be re- 
 butted by evidence showing that the possession was eqi vo- 
 cal, as where the first purchaser is in common possession 
 with his grantor, or where it is apparently for some special 
 or temporary purpose consistent with the title of the gran- 
 tor, as his caretaker, tenant, or the like.^ In all case of 
 
 ery of the prior right, is not " actual 
 notice." See Curtis v. Mundy, 3 
 Mete. (Mass.) 405, holding that "ac- 
 tual notice " does not mean " certain 
 knowledge." Information from a 
 third party is sufBoient if it be ex- 
 press and definite, and is such that it 
 would ordinarily be relied and acted 
 on. 
 
 6. Phelan v. Brady, 119 N. Y. 5S7; 
 Ward V. Met. St. R. Co., 152 N. Y. 
 39 (possession of rights acquired by 
 Dept. Co. through unrecorded release 
 of easements of light, air and access, 
 was notice thereof to subsequent pur- 
 chaser of the land) ; Williamson v. 
 Brown, 15 N. Y. 354; Hodge's Exr's 
 V. Amerman, 40 N. J. Eq. 99, and 
 cases in notes following. 
 
 7. Hottenstein v. Lerch, 104 Pa. St. 
 454; Ranney v. Hardy, 43 Oh. St. 
 157; Hodge's Ex'rs v. Amerman, 40 
 N. J. Eq. 99. 
 
 Where the statute specifies ab- 
 
 sence of " actual notice," actual 
 knowledge of such possession must 
 be shown. Brinkman v. Jones, 44 
 Wis. 498; Porter v. Levey, 42 Me. 
 519; McLaughlin v. Shepherd, 32 Me. 
 143. 
 
 In Massachusetts in addition to 
 possession there must be additional 
 facts indicating the existence of the 
 former instrument brought home to 
 the subsequent purchasers, equivalent 
 to actual notice. Pomroy v. Stevens, 
 11 Met. 244. See note 5, supra. 
 
 8. Brown v. Volkenning, 64 N. Y. 
 76 (possession through presence ot 
 workmen of grantee finishing incom- 
 plete house, one of many being 
 erected in a row by the grantor, was 
 equivocal, and therefore not notice) ; 
 Gibson v. Thomas, 85 App. Div. (N 
 Y. ) 243 (possession by subsequent 
 grantee not notice of prior unre- 
 corded release of mortgage as to 
 assignee of mortgage. Possession en- 
 
806 Eecording of Deeds and Conveyances, 
 
 indirect notice from facts inducing inquiry, including no- 
 tice from possession, if the subsequent purchaser investi- 
 gates the matter as fully as could be expected of the average 
 man without discovering the existence of the prior instru- 
 ment, he is a purchaser in good faith and without notice.* 
 
 Where the grantor continues in possession a subsequent 
 purchaser from his grantor may rely on the record title; the 
 grantor's continued possession gives no notice of any un- 
 disclosed right retained by him.^" In some states, however, 
 the courts hold that open possession adverse to his grant by 
 the grantor is notice of any right reserved by him, as 
 against such subsequent purchaser.^ ^ 
 
 As a tenant 's possession is that of his landlord, possession 
 by a tenant of the holder of the unrecorded instrument is 
 notice for the same reasons and subject to the same limita- 
 tions as in the case of possession by such prior claimant 
 himself. ^^ 
 
 We have seen that a quitclaim deed just as effectually 
 conveys the property described therein as a deed of war- 
 ranty, and that, in effect, any deed without covenants is a 
 quitclaim deed.^^ But because such deeds are generally 
 used in the conveyance of land held by a defective title some 
 cases hold that the mere use of that form of deed puts the 
 
 tirely consistent with existence of Wis. 498. See cases in notes 1 and 8, 
 
 mortgage lien) ; Pope v. Allen, 90 N. supra. 
 
 Y. 298 (possession In common with 10. Van Keuren v. Central E. of N. 
 
 giantor); Truesdale v. Ford, 37 111. J., 38 N. J. L. 165; Bloomer v. Hen- 
 
 210 (possession in common with derson, 8 Mich. 395. 
 grantor); Harris v. Mclntyre, US 11. Pell v. McElroy, 36 Cal. 368; 
 
 111. 275 (same as preceding case) ; 111. Cent. R. Co. v. MoCuUough, 59 
 
 Smith V. Yule, 31 Cal. 180 (another 111. 166. 
 
 case of joint possession). 12. Phelan v. Brady, 119 N. Y. 
 
 9. Williamson v. Brown, 15 N. Y. 587: Hottenstein v. Lerch, 104 Pa. 
 
 354 (if subsequent purchaser put St. 454; Tilloston v. Mitchell, 111 
 
 upon inquiry makes investigation 111. 518; Hanly v. Morse, 32 Me. 237 
 
 with due diligence without discover- (actual knowledge of such possession 
 
 ing the existence of the unrecorded on part of subsequent purchaser 
 
 conveyance, he has no notice and is must be shovni). 
 protected) ; Brinkman v. Jones, 44 13. See § 317, ante. 
 
What Constitutes Ptxrchaseb fob Value. 807 
 
 grantee upon inquiry, and is notice of any defect whiclx 
 such inquiry should disclose if prosecu.ted with reasonable 
 diligence." To conclude that the title is probably defective 
 because a quitclaim deed is used in conveying the property 
 to the grantee, or because the grantor or a predecessor took 
 by such a deed, is extremely far fetched, and the more rea- 
 sonable and more commonly accepted rule is that no notice 
 of any defect in title arises out of the use of that form of 
 deed.^" 
 
 § 333. What constitutes Purchaser for Value. — The sub- 
 sequent purchaser must actually part with valuej money or 
 money's worth, in return for the conveyance to him in order 
 to be able to assert his claim as against a prior unrecorded 
 instrument from the same vendor. A mere gift is not pro- 
 tected by the recording acts as against the real owner or 
 encumbrancer under the prior deed or mortgage.* A merely 
 nominal consideration recited and actually paid, as of one 
 dollar, or ten dollars, is not value within the act, as the 
 transaction is essentially a gift which the statute does not 
 protect.^ A deed or mortgage given to pay or secure a past 
 indebtedness is not protected by the statute, since the sub- 
 sequent grantee has not parted with anything of value, and 
 .therefore has not changed his position in any way, as he 
 may enforce collection of the debt as before, it appearing 
 
 14. Johnson v. Williams. 37 Kan. is reasonably apparent that a deed 
 
 179, and long list of cases therein without covenants Is used in any 
 
 cited; Peters v. Cartier, 80 Mich. 124 case because the grantor does not 
 
 (argument based on general use of care to assume possible liability aris- 
 
 quitclaim deeds where title is not ing from unknown defects in the title 
 
 good.) In Meikel v. Borders, 139 which may later come to light. 
 
 Ind. 529, the court held that a pur- 15. Moelle v. Sherwood. 148 U. S. 
 
 chaser by warranty deed is protected 21; Nidever v. Ayres, 83 Cal. 39; 
 
 thongh his grantor took title by a Brown v. Banner, etc. Co., 97 111. 214. 
 
 quitclaim deed, though it is not ob- 1. Ten Eyck v. Witbeck, 135 N. Y. 
 
 Tious why the use of the quitclaim 401, and cases therein cited. See 
 
 should not have aroused his sus- cases in notes following. 
 
 picions in that case as well as when 2. Ten Ryck v. Witbeck, 135 N. Y. 
 
 used in the conveyance to himself. It 401. and nsea therein cited. 
 
808 
 
 Eecoediwg OS Deeds akd Conveyances. 
 
 that the deed or mortgage to him was void because of a 
 prior unrecorded deed.^ But if he has given a binding ex- 
 tension of time in consideration of the mortgage, or has 
 surrendered any collateral security or other valuable right, 
 he has parted with value and if he has taken without notice 
 of the prior unrecorded instrument his deed or mortgage 
 is valid under the statute, and the prior unrecorded instru- 
 ment is void as to him.* 
 
 Why should an extension of time be treated as value in 
 these cases? If the deed or mortgage given therefor is 
 void because of lack of title in the grantor or mortgagor, 
 the subsequent grantee or mortgagee may at once repudiate 
 the extension of time and enforce the collection of the debt. 
 
 3. Gary v. White, 58 N. Y. 138 
 Westbrook v. Gleason, 79 N. Y. 83 
 Clark V. Mackin, 95 N. Y. 346 
 Howells V. Hettrick, 160 N. Y. 308 
 Gilchrist v. Gough, 67 Ind. 576 
 Boxheimer v. Gunn, 34 Mich. 372. 
 
 In several cases it has been de- 
 cided that if the prior debt is re- 
 leased or discharged in consideration 
 of the subsequent deed or mortgage, 
 the giving up of . the debt is value 
 within the meaning of the statute. 
 Adams v. Vanderbeek, 148 Ind. 92; 
 Busey v. Reese, 38 Md. 264. It is 
 submitted that the debt is not in 
 fact paid where the deed or mort- 
 gage turns out to be void because of 
 failure of title of the grantor or 
 mortgagor, and therefore the subse- 
 quent purchaser or mortgagee has 
 parted with nothing and in no way 
 changed his position. It is obviously 
 unjust and immoral to give effect to 
 euch a transaction, deprive the first 
 grantee of his property because of 
 mere failure to record, treat the 
 debtor of the fraudulent grantor as 
 discharged, and title as vesting in 
 the subsequent grantee by force of 
 
 the statute, when such grantee has 
 the clear right to repudiate the dis- 
 charge of the debt and to enforce it 
 exactly as before the subsequent deed 
 or mortgage was delivered to him. 
 See New York cases, supra. 
 
 4. Gary v. White, 52 N. Y. 138 
 (dicta) ; O'Brien v. Fleckenstein, 86 
 App. Div. (N. Y.) 140, aff'd 180 N. 
 y. 350; Jones v. Eobinson, 77 Ala. 
 499. What was said in the preceding 
 note with reference to payment ap- 
 plies with equal force to a so-called 
 extension of time as value. Since 
 the subsequent grantee or mortgagee 
 may repudiate the extension because 
 of the failure of title in the grantor 
 and debtor, it follows that his posi- 
 tion is not changed, and he has not 
 parted with value. To destroy the 
 real ownership and title of the first 
 purchaser under the unrecorded deed 
 because of the purely theoretical in- 
 jury to the subsequent purchaser is 
 merely to give effect to the fraudu- 
 lent scheme of the grantor who alone 
 profits by the transaction. This 
 would seem to be injustice, bad mor- 
 als and bad law. 
 
Instkument Must Appeae in Chain of Title. 809 
 
 There is, in fact, no binding extension in snch case except on 
 the assumption that the subsequent grantee or mortgagee 
 gets a valid title under the statute, which is begging the 
 question at issue. The law seems well settled, however, that 
 an extension of time in consideration of a mortgage given 
 as collateral security for a past debt is value under tho 
 statnte.^ 
 
 The money or value must be parted with before the sub- 
 seqnent purchaser receives notice of the prior um-ecorded 
 instrument. He is not protected if he pays over the pur- 
 chase price after getting notice, since he has the right to 
 refuse to accept the defective title which is offered.* Even 
 where the subsequent deed or mortgage has been executed 
 and delivered, the subsequent grantee or mortgagee is not 
 protected if he has not parted with the purchase price or 
 amount of the loan or other thing of value which he Avas to 
 give therefor.'^ Part payment before receiving such notice 
 will protect him to the extent of the payment made only." 
 The giving back of a bond and mortgage or other non- 
 negotiable security is not value, since the subsequent pur- 
 chaser has a defense to their enforcement against him be- 
 cause of the failure of the title transferred to him.' 
 
 § 334. Instrument Must Appear in Chain of Title. — The 
 record of a conveyance or other instrument purporting to 
 convey or affect any parcel of land is not constructive notice 
 to subsequent purchasers or encumbrancers unless it appear 
 in the " chain of title," so that a due examination of the 
 
 5. See last two notes preceding. tire purchase price. Not purchaser 
 
 6. Patten v. Moore, 32 N. H. 382; for value in usual case. Here pur- 
 Blanchard v. Tyler, 12 Mich. 339; chaser made contract to purchase be- 
 Schultze V. Honfes, 96 111. 335. fore the first mortgage was made and 
 
 7. Schultze V. Honfes, 96 III. 335. therefore in equity he comes in 
 
 8. Baldwin v. Sager, 70 111. 503; ahead of it. The surrender of t5ii« 
 Toust V. Martin, 3 Serg. & R. (Pa.) equity in giving second mortgage was 
 423. value under the statute) ; Roseman 
 
 B. Westbrook v. Gleason, 79 N. Y. v. Miller, 84 111. 297; Beck v. Uliich, 
 93 (hond anrl mortsrafrP given for en- 13 Pa. St. 636. 
 
810 Recording of Deeds and Conveyances. 
 
 title to the land involved will disclose its existence. Instm- 
 ments of record are indexed against the names of the 
 grantors and grantees, or mortgagors and mortgagees, as 
 the case may be, forming a complete chain, so that the 
 searcher may trace the different conveyances from grantor 
 to grantee forward, or backward from grantee to grantor. 
 Thus if A conveys land to B, who fails to record his deed, 
 and B conveys to C, whose deed is duly recorded, the record 
 of the deed from B to C is not constructive notice thereof 
 to a subsequent purchaser in good faith from A. In exam- 
 ining A's title he would find no deed from A to B, since it 
 had not been recorded, and he would have no means of find- 
 ing the record of the deed from B to C, since B is a stranger 
 to the title as far as the record is concerned C's deed does 
 not appear in the chain of title.^ For the same reason the 
 record of a conveyance of an equitable interest is not notice 
 thereof to a subsequent purchaser in good faith of the legal 
 title. He is not called on to search against the name of the 
 equitable owner, having no actual or record notice of the 
 existence of his interest. His deed does not appear in the 
 chain of title.* 
 
 Where a person conveys or mortgages land to which he 
 has no title, and the deed or mortgage is duly recorded, if 
 such grantor or mortgagor subsequently gets title to the 
 property and conveys it thereafter to a purchaser in good 
 faith and for value, the former deed or mortgage is not con- 
 structive notice to the subsequent purchaser, as he is not 
 required to search against the name of his grantor for in- 
 
 1. Page V. Waring, 76 N. Y. 463; See contra, Edwards v. McKernan. o5 
 Hetherington v. Clark, 30 Pa. St. Midi. 520, erroneously holding tliat 
 393; Ohicago v. Witt, 75 111. 211; the prior deed, if recorded, is notice. 
 Roberts v. Bourne, 23 Me. 165. So whether it appear in the refrular 
 where an unauthorized deed of ex- chain of title or not. Of course in 
 ecutors was recorded, it was held all these cases if the searcher aetu- 
 not to be notice to a subsequent pur- ally finds the prior instrument, which 
 cliaspr for value in Blake v. Graham, ordinarily would be by chance, ha 
 ^ Oh. St. 580. has actual notice, 
 
 2. Tarbell v. West, 86 N. Y. 280. 
 
Instetjmbnt Must Affs&b in Chain or Title. 811 
 
 struments executed by him prior to his taking title to the 
 property. The prior instrument is not in the chain of title.* 
 In such case if the conveyance or mortgage is with war- 
 ranty the first grantee or mortgagee gets title by estop- 
 pel upon the subseqiient requisition of title by his grantor 
 or mortgagor, as against him and as against any person 
 taking title from him who is not a purchaser for value and 
 without notice. A subsequent innocent purchaser for value 
 is protected, not only by the recording acts, but also by the 
 fact that the legal title has been conveyed to him as such 
 innocent purchaser, and the equitable right of the first pur- 
 chaser arising by estoppel is cut off.* Nevertheless it has 
 been decided in several states that if the prior deed or mort- 
 gage has been recorded it is constructive notice to the sub- 
 sequent purchaser, who is not protected either by the re- 
 cording acts or by the doctrine that one who takes the legal 
 title as a purchaser for value takes free of outstanding 
 equities in others, the prior deed or mortgage thus prevail- 
 ing over the subsequent one.^ Courts so deciding have 
 erred in two respects; 1st, in applying the obsolete doctrine 
 of estoppel by deed at law, which does not properly apply 
 at all to modem deeds, the courts holding in these cases 
 that the legal title actually vests in the first purchaser 
 through estoppel by deed, so that no title at all passes to the 
 second purchaser, preventing the application of the doctrine 
 of purchaser for value without notice, and secondly, in dis- 
 regarding the fact that the first deed or mortgage, though 
 recorded, does not appear in the chain of title, since the 
 
 3. Bingham v. Kirkland, 34 N. J. 5. Teflft v. Munson, 57 N. Y. 97 
 Eq. S29; Calder v. Chapman, 53 Pa. (see stron!» dissenting opinion); 
 St. 359; Van Rensselaer v. Kearney, Ayer v. Philadelphia, etc. Co., 159 
 11 How. 297; Salisbury Sav. Soo. v. Mass. 84 (admits that the rule is 
 Cutting, 50 Conn. 113 (dicta). See anomolous and, by implication, bad, 
 reporter's note at end of last case re- but states rule is too -well established 
 viewing the case and discussing the to change it except by statute) ; 
 principles involved. Powers v. Patten, 71 Me. 583. 
 
 4. See cases in preceding note. 
 
'812 
 
 Eecoeding of Deeds and Conveyanoes. 
 
 grantor or mortgagor was a stranger to the title when the 
 prior instrument was executed and recorded.* 
 
 § 335, Recorded Instrument Must be Entitled to Record. 
 
 — The record of an instrument which is not entitled to 
 record under the statute is not constructive notice to subse- 
 quent purchasers or incumbrancers. Thus if it is not prop- 
 erly executed, or acknowledged or proved as required by 
 
 6. At common law title by estoppel 
 ax'ose only in case of a conveyance by 
 feoffment with warranty, by fine or 
 by common recovery. See Rawle 
 Covenants for Title (5th cd.), § 243; 
 Doe d. Christmas v. Oliver, 10 Barn. 
 & C. 181. We have seen that these 
 forms of conveyance are obsolete or 
 expressly abolished, and to-day in 
 England there is no such doctrine in 
 connection with the modern convey- 
 ances, whether with warranty or not. 
 In the situations discussed in the teJct 
 the only estoppel recognized to-day in 
 the modern English cases is estoppel 
 by representation, or so-called equit- 
 able estoppel, arising out of the 
 grantor's express or implied represen- 
 tation of title, which he is estopped 
 from denying. See Williams Real 
 Prop. (18th ed.), 476; Rawle Coven- 
 ants for Title (5th ed.), §§ 244, 246, 
 264 ; Gen. Finance, etc. Co. v. Libera- 
 tor, etc. Co., 10 Ch. Div. 15. 
 
 The American eases cited in the 
 preceding note have taken and applied 
 the obsolete doctrine of estoppel by 
 deed, though it actually results in a 
 fraud upon the subsequent innocent 
 purchasers. Their holding that by 
 relation he is bound by record notice 
 of the prior instrument, though it is 
 not in the chain of title, is utterly 
 without reason. The court in Calder 
 V. Chapman, 52 Pa. St. 359, quotes 
 
 with approval Judge Nelson in Van 
 Rensselaer v. Kearney, 11 How. 297: 
 "It (estoppel) is a doctrine when 
 properly underetood and applied that 
 concludes the truth in order to pre- 
 vent fraud and falsehood, and im- 
 poses silence on a party only where, 
 in conscience and honesty, he should 
 not be allowed to speak.*" In Bingham 
 V. Kirkland, 34 N. J. Eq. 229, the 
 court said that it is a mistake to use 
 this doctrine to defraud a subsequent 
 purchaser or mortgagee. The position 
 taken in Ayer v. Philadelphia, etc 
 Co., 159 Mass. 84, also above referred 
 to, that the mistake is too firmly fixed 
 in the law to be distuil>ed is a too 
 common instance of failure of duty on 
 the part of the courts. The law is as 
 they declare it, and if a. mistake has 
 been made which results in its appli- 
 cation in positive injustice in eve y 
 case, as this rule must, there would 
 seem to be no good reason for per- 
 petuating its injustice, particularly 
 as its effect upon rights already ex- 
 isting would be only to prevent or 
 remedy injustice witliout interfering 
 in any way with any valid right. The 
 power to declare the law necessarily 
 carries with it the power to correct 
 an admitted error where that can be 
 done without injustice to existing 
 rights. 
 
Dkpeots hi the Eecoed. 813 
 
 law before it can be recorded, the recording of it gives no 
 notice under tbe statute^ So tlie record of an executory 
 contract of sale is not record notice,^ nor is the record of 
 any other instrument the recording of which is not required 
 by the statute.^ For the same reason the record of a void 
 deed is not constructive notice thereof, i" 
 
 § 336. Defects in the Record. — The instrument is a mat- 
 ter of record so as to give constructive notice to subsequent 
 purchasers as soon as it is filed for recording, though not 
 actually recorded in due course until some time later. It is 
 at once entered on the index wheii received, so that its ex- 
 istence is at once disclosed on a search. The index is not 
 part of the record under the statutes of most of the states, 
 and therefore a failure to index the instrument or an error 
 in entering it in the index on the part of the recording officer 
 does not affect its validity or the sufficiency of its record as 
 notice.^ 
 
 Errors of the recording officer in the actual recording of 
 the instrument makes the record ineffective to the extent of 
 
 7. Fryer v. Rockefeller, 63 N. Y. 1. Mutual Life Ins. Co. v. Diike, 87 
 268; Bradley v. Walker, 138 N. Y. N. Y. 257; Bedford v. Tupper, 30 Hun 
 291; Graves v. Graves, 73 Mass. 391; (N. Y.) 174; StockAvoU v. McHenry, 
 Bishop v. Schneider, 46 Mo. 472; 107 Pa. St. 237; Bishop v. Schneider, 
 Girardin v. Lampe, 58 Wis. 267 (de- 46 Mo. 472; Green v. Garrington, 16 
 fective acknowledgments in above Oh. St. 548. See 24 Am. & Eng. Cyc. 
 cases) ; Carter v. Champion, 8 Conn. Law 108. See contra under special 
 549 (incompetent subscribing wit- statutory provision; Barney v. Mc« 
 ness) ; Raconillat v. Sausevain, 32 Carty, 15 Iowa 510; Kock v. West, 
 Cal. 376 (lack of seal). 118 Iowa 468, and Lombard v. Ctll- 
 
 8. Boyd v. Schlesinger, 55 N. Y. bertson, 59 Wis. 433. 
 
 301. In New York indices under the 
 
 9. Davidson v. Crook, 45 App. Div. block system are specially required 
 (N. Y.) 616 (sheriffs certificate of for New York and Kings Counties. 
 Bale). They are made part of the record and 
 
 10. Forged deed, Marden v. Dorthy, if error is made therein, record of the 
 160 N. Y. 39; deed by record owner, instrument affpcted is not constructive 
 another being in adverse possession, notice. See Fowler's Real Prop. L. 
 Green v. Horn, 128 App. Div. (N. Y.) (3d ed.), 1017. 
 
 686. 
 
814 Eecoebirg of Deeds And Conveyances. 
 
 tlie error. Subsequent purchasers may rely on tlie record as 
 it is, and any loss resulting falls on the person who had the 
 instrument recorded, he in turn having an action against 
 the recording officer.^ In several states the courts hold that 
 in such case the loss falls on the subsequent purchaser, the 
 first grantee or mortgagee having done all that he can be 
 expected or is required to do when he files the instrument 
 for record. It is urged that as the legal title is in him, and 
 as apart from the statute his rights are paramount, he ought 
 not to be deprived of his property because of the negligence 
 of the recording officer over whom he has no control.' On 
 the other hand the public interest clearly demands that the 
 record be conclusive so that a subsequent purchaser may 
 rely on it in searching the title to the property which he is 
 purchasing. 
 
 § 337. Eecord is Notice to Subsequent Purchasers and 
 Incumbrancers Only. — The record of an instrument of title 
 is constructive notice only to those whose interest in the 
 property is acquired subsequent to the recording of the 
 instrument. Those whose interests have already been ac- 
 quired, whether as purchasers or mortgagees, are not called 
 on to search the title thereafter, as all instruments thereafter 
 recorded will necessarily be subject to their title.* It is for 
 this reason that a prior mortgagee to secure future advances 
 
 8. Puidy V. Huntington, 42 X. Y. Kiser v. Heuston, 38 111. 252; Lewis 
 
 334; Gillig V. Maas, 28 N. Y. 191; v. Hinman, 56 Conn. 55; Gillespie v. 
 
 Mut. In3. Co. V. Dake, 87 N. Y. 257; Rogers, 146 Mass. 610 (see line of 
 
 Bernard v. Campau, 29 Mich. 162 cases cited in this case) ; Wood's Ap- 
 
 ( mi stake as to land covered) ; Sawyer peal, 82 Pa. St. 116. See 24 Am. & 
 
 V. Adams, 8 Vt. 172 (recorded in Eng. Cyc. of Law 114. 
 
 wrong book) ; Gilchrist v. Gough, 63 4. Ackerman v. Hunsicker, 85 N. Y. 
 
 Ind. 576 (amount of mortgage debt 49; Sherman v. Foster, 158 N. Y. 
 
 incorrectly recorded); Jenning's Les- 587; George v. Wood, 91 Mass. 80; 
 
 see V. Wood, 20 Oh. 861 (wrong name Davis v. Monroe, 187 Pa. St. 212; 
 
 of grantee) ; Pringle V. Ihinn, 37 Wis. Corey v. Smalley, 106 Mich. 257; 
 
 449; Cady v. Purser, 131 Cal. 552. Karus v. Olney, 80 Cal. 90. 
 
 3. ATrrrick v. Wallace, 19 111. 486; 
 
PuEOHASEE With Notiob feom Pueohasee, Etc. 813 
 
 has no record notice of subsequent mortgages or otlier liens, 
 and therefore to subordinate their later advances to the 
 lien of a subsequent mortgage, judgment or the like, actual 
 notice thereof to the first mortgagee must be proved in ad- 
 dition to proof that the later advance was voluntary. 
 
 It is frequently provided that the prior unrecorded in- 
 strument will be void as to subsequent purchasers and in- 
 cumbrancers for value and in good faith who record their 
 deed or mortgage first. When so expressly provided the 
 subsequent instrument must actually be recorded beford the 
 prior instrument is recorded to give it validity or priority, 
 though if the instrument is received for value and without 
 notice it is effective though actual notice of the prior instru- 
 ment is received thereafter before the subsequent instru- 
 ment is recorded, provided it is thereafter recorded ahead 
 of the prior instrument." In the absence of an express pro- 
 vision to this effect the subsequent instrument is valid as 
 against the prior unrecorded instrument though the subse- 
 quent instrument is not recorded, provided it has been taken 
 for value and without notice.* 
 
 § 338. Purchaser With Notice From Purchaser for Value 
 Without Notice. — As the subsequent purchaser for value 
 without notice of the prior unrecorded deed gets a perfect 
 title free of any claim on the part of the holder of the unre- 
 corded instrument it follows that he may convey or mort- 
 gage the same title to any third person, whether his grantee 
 or mortgagee has notice of the prior instrument or not, and 
 whether or not the prior instrument has been recorded after 
 he acquired title and before the conveyance to such third 
 person.'^ The only exception is where the title is conveyed 
 
 5. K. Y. Real Prop. Law, §291; 1 7. Clark v. McNeal. 114 N. Y. 387; 
 Stim. Am. St. Law, § 1611; West- Bell v. Twilight, 18 N. H. 159, 166; 
 brook V. Gleason, 79 N. Y. 23. Johnson v. Gibson, 16 111. 294 (analo- 
 
 6. Sanborn v. Adair, 29 N. J. Eq. gous case of fraudulent conveyance, 
 338. See statutes in the different not involving recording acts) ; Huling 
 states. V. Abbott, 86 Cal. 423. 
 
816 Eecoedinq of Deeds and Conveyances. 
 
 back again to the original grantor. In that case the original 
 grantor will not be permitted to set np the title so acquired 
 as against the unrecorded instrument, as to do so would be 
 a manifest fraud.* 
 
 § 339. Subsequent Conveyances by a Purchaser With 
 Notice. — It hardly need be said that where a purchaser with 
 notice conveys to a purchaser for value without notice, the 
 latter is fully protected by the statute. The record discloses 
 nothing which indicates the existence of a prior convey- 
 ance.* But where the original purchaser records his deed 
 after the conveyance to the subsequent purchaser with 
 actual notice, and such subsequent purchaser thereafter 
 conveys to a purchaser for value without actual notice of 
 the first deed, a nice question is presented as to whether 
 the record of the first deed is constructive notice to the sub- 
 sequent innocent purchaser. The prevailing view seems to 
 be that the recording acts do not protect the subsequent 
 innocent purchaser. The second purchaser took with notice 
 and therefore had no title which he could convey, and the 
 subsequent innocent purchaser had constructive notice, as 
 the first deed from the original grantor had been recorded 
 before he took title.^ The difficulty with this is that the 
 original deed does not appear in the chain of title, because 
 not recorded until after the conveyance to the second pur- 
 chaser. The third innocent purchaser, on examining the 
 title, would find this conveyance to the second grantee, and 
 having no notice of the prior deed he would have a right to 
 assume that it was valid. He would, therefore, not be called 
 on to search further for any deed from the same grantor 
 
 8. See cases in preceding note. Wend. (N. Y.) 35; Jackson v. Post, 
 
 1. This situation falls directly 11 Wend. (N. Y.) 588; Bayles v. 
 within the express terms of the stat- Young, 51 111. 127; Van Aken v. Glea* 
 utes. See cases and statutes referred son, 34 Mich. 477; Fallass v. Pierce, 
 to heretofore on general application 30 Wis. 443; Moloney v. Middleton, 
 of the recording acts. 41 Cal. 41, citing several cases. 
 
 2. Van Rensselaer ▼. Clark, 17 
 
Subsequent Liens of Judgment. 817 
 
 subsequently recorded. The correct solution has been ar- 
 rived at in Massachusetts, the court holding that the first 
 deed is not recorded properly so as to bring it within the 
 chain of title, and therefore its record gives no construc- 
 tive notice. Its record is at most only evidence of actual 
 notice, if it can be shown that the third or innocent pur- 
 chaser actually discovered it in his search.* 
 
 § 340. Subsequent Liens of Judgments. — In many of the 
 states subsequent judgment liens are either expressly pro- 
 tected by the statute as against prior unrecorded deeds or 
 other instruments of title or the statute is so construed, so 
 that such unrecorded instruments are void as to such sub- 
 sequent judgment creditors as well as to subsequent pur- 
 chasers or encumbrancers for value and without notice.* 
 In New York and several other states judgment creditors 
 are not regarded as purchasers for value, and therefore 
 judgment liens are subject to prior unrecorded deeds and 
 mortgages.' 
 
 3. Morse v. Curtis, 140 Mass. IIS; 4. Condit v. Wilson, 36 N. J. Eq. 
 
 Day V. Clark, 25 Vt. 379 (case of un- 370; Sharp v. Shea, 32 N. J. Eq. 65; 
 
 recorded mortgage and later mortgage McFadden v. Worthington, 45 111. 
 
 with notice duly recorded and sub- 362; Cox v. Milner, S3 HI. 476; Wil- 
 
 sequent record of first mortgage fol- kins v. Bevier, 43 Minn. 218; Paine'i 
 
 lowed by conveyance to an innocent Lessee v. Moreland, 15 Oh. 435. 
 
 purchaser, who was held to be pro- 5. Moyer v. Hinman, 13 N. Y. 180; 
 
 tected by the statute). Shirk v. Thomas, 121 Ind. 147. 
 
 53 
 
818 Title bt Adveesb Possbssiow. 
 
 CHAPTEB XXTTT. 
 
 Title by Adverse Possession. 
 
 § 341. Nature and Origin.— By the statute 20 Henry III, 
 ch. 8, a limitation was imposed upon actions to recover tlie 
 possession of land in the adverse possession of another, the 
 action being barred if the possession dated back to the reign 
 of Henry Tl, a period of seventy years. By 3 Edw. I, ch. 39 
 (1275), the period of adverse possession barring the action 
 was fixed from the time of Richard I, a period of eighty- 
 eight years, constantly increasing as time passed. By the 
 statute 31 Henry VHI, ch. 2, a flat period of limitation of 
 sixty years was established. The Statute of Limitations, 21 
 James I, ch. 16 (1623), finally fixed the period of limitation 
 of actions to recover possession of real property at twenty 
 years, which ia the present period of limitation in most of 
 the states.^ Some of the modern statutes expressly provide 
 that adverse possession for twenty years or more shall give 
 the possessor title to the property, but in most cases there 
 is no such provision, the statute merely barring any action 
 to recover the property from the adverse possessor.^ The 
 decisions have been quite uniformly to the effect that ad- 
 verse possession for the requisite period gives title, how- 
 ever, whether the statute so expressly provides or not, so 
 that a deed sufficient to satisfy the statute of frauds is 
 
 1. In England the period of limita- still shorter period of limitation is 
 
 tion has been twelve years since 1879. provided for. 
 
 See Stat. 37 & 38 Vict. c. 57. Digby 2. Tlie modern English statute re- 
 
 Hist. L. Real Prop (5th ed.), 437. ferred to in the preceding note so pro- 
 
 The statutes in the different states vides, though the law was settled to 
 
 vary so widely that it would not be the same effect Tinder the earlier stat- 
 
 practicable to discuss them here. In utes which contained oo such provi- 
 
 the majority of states the period is gion. S«e statates in the different 
 
 still twenty years, in Bome states state*, 
 fifteen years, and in other states a 
 
What Constitutes Adveksb Possessioit. 819 
 
 necessary in order that title may revert in tlie original 
 owner, mere abandonment of possession by the adverse 
 holder being ineffective for that purpose after the twenty 
 year period has elapsed.^ The adverse possessor becomes 
 as completely vested with the title in fee as he would upon a 
 •conveyance in due form from the owner of record, the full 
 period of twenty years* adverse possession having been 
 completed.* 
 
 § 342. What Constitutes Adverse Possession. — To gain 
 title by adverse possession there must have been for the 
 requisite period actual physical possession of the land 
 claimed, it must be open, exclusive, continuous, and actually 
 adverse to the interest of the true owner. There must have 
 existed in the true owner the immediate right at any time 
 during the period of recovering the possession by ejectment 
 or other appropriate action, and it is because he has failed 
 to exercise this right for too long a time the right is taken 
 away from him and title is given to the adverse possessor.^ 
 
 The Possession Must Be Actual. Mere title of record ad- 
 verse to the true owner does not affect him. The adverse 
 
 8. School Dist. No. 4 of Winthrop J.) 155; Wilkes v. Grecnway, 6 Times 
 
 T. Benson. 31 Me. 381; Schall v. Wil- L. R. 449 (holding, however, that a 
 
 liams Valley R. Co., 35 Pa. St. 191 way of necessity will not arise out 
 
 (holding that title of adverse holder of mere adverse possession of the 
 
 who abandons possession after hold- inner parcel for the statutory period, 
 
 ing adversely for over 30 years is not though as a practical matter such 
 
 affected by the recording acts, and is right would ordinarily arise by pre- 
 
 good as against a subsequent pur- scriptive user in such case) ; Baker 
 
 chaser) ; Riggs v. Riley, 113 Ind. 208. v. Oakwood, 123 N. Y. 16 (holding 
 
 4. Thus the adverse possessor for that adverse possessor may maintain 
 
 the statutory period becomes so vested ejectment as owner after twenty 
 
 with the legal title that he only, and years) ; Barnes r. Light, 116 N. Y. 
 
 not the record owner, can maintain 34; Way v. Hooton, 156 Pa. St. 8; 
 
 trespass for trespasses committed McDuffee v. Sinnott, 119 111. 449. 
 after his title has become complete. 1. See cases in notes immediately 
 
 Hughes V. Graves, 39 Vt. 359; Phil- following. 
 lips V. Kent & Miller, 3 Zabriskie (N. 
 
820 Title bt Adveesb Possession. 
 
 claimant must actually enter upon and possess the land 
 claimed for the period fixed by the statutes.^ 
 
 It Must Be Open. If the acts of user on which the adverse 
 possession is based are secret or hidden, so that the true 
 owner did not know of them nor could be expected to dis- 
 cover them by reasonable inspection of the property, there 
 is no adverse possession within the rule. Such acts "would 
 be trespasses merely, giving the owner an action for dam- 
 ages, but no action in ejectment to be barred by the statute 
 of limitations.^ But if there is open physical possession of 
 the property by the adverse holder as owner it is immaterial 
 whether the true owner actually knows of it or not. He is 
 bound by it if he should have discovered it by coming on 
 the property and inspecting it either personally or through 
 a representative. His absence in a foreign country, for in- 
 stance, during the entire period, would be quite immaterial, 
 the possession being actually open and adverse.* 
 
 The Possession Mtost Be Exclusive. If the adverse claim- 
 ant was in possession in common with the true owner, no 
 disseisin of the true owner has been accomplished. The 
 true owner was in possession throughout, and therefore no 
 right of action in ejectment existed in his favor to be barred 
 by the statute. The adverse claimant in such case was 
 either a licensee or a trespasser only, in neither case having 
 a possession legally adverse.® So if his alleged possession 
 is in common with others, all occupying and using the land 
 
 2. Ward v. Cochran, 150 U. S. 597; 17 111. 498; Jackson d. Hardenberg T. 
 Fould V. Bond, 41 N. J. L. 827, 545 Sclioonmaker, 2 Johns. (N. Y.) 230; 
 (the court saying: "The possession De Frieze v. Quint. 94 Cal. 653. 
 must be actual and exclusive, adverse i. Ward v. Warren, 82 N. Y. 26S 
 and hostile, visible and notorious, con- (analogous case of prescription) ; 
 tinned and uninterrupted") ; Christy Samuels v. Borrowscale, 104 Mass. 
 V. Spring Valley Water Works, 97 207. 
 
 ('al- 21. 5. Bellis v. Bellis, 122 Mass. 414; 
 
 3. St. Louis, etc. E. Co. v. Nugent, O'Hara t. Richardson, 46 Pa. St. 385, 
 152 Til. 119; McClellan v. Kellogg, 
 
What Constitutes Adverse Possession. 821 
 
 without any claim of exclusive right, in any one or in all 
 together, all are merely trespassers, their possession not 
 being that of owners claiming exclusively, and it is there- 
 fore not adverse.' Of course if two or more persons occupy 
 the land exclusively, possessing and making use of it as 
 cotenants in fee, the possession is exclusive of all others 
 and is adverse for that reason.'' 
 
 The Possession Miost Be Continuous. If the adverse pos- 
 sessor abandon his possession before the period of the stat- 
 ute has elapsed, and after an interval resumes possession 
 again, the statute begins to run again as of the time when 
 the possession is resumed, the first period not counting.® 
 A new cause of action in ejectment arises out of the new 
 entry and disseisin. The original cause of action in eject- 
 ment arising out of the first period of adverse possession 
 ceases to exist when the possession is voluntarily abandoned. 
 Of course twenty years must elapse after the second entry 
 and disseisin before the new cause of action in ejectment 
 arising therefrom is barred. It must be remembered that 
 merely quitting the premises temporarily, without an intent 
 to abandon them permanently, ia not an abandonment and 
 is therefore not an interruption of the period of adverse 
 possession.* 
 
 An entry by the true owner made openly with intent to 
 resume possession, or an open recognition of the true own- 
 er's rights on the tenant's part constitute an interruption, 
 the statute running only from the resumption of adverse 
 possession thereafter.^"* The mere starting of an ejectment 
 
 G. Kneller v. Lang, 137 N. Y. 589; 8. Downing v. Mayes, 153 111. 330; 
 
 Bailey v. Carleton, 12 N. H. 9 (lay- Bliss v. Johnson, 94 N. Y. 235; 
 
 ing of lumber on premises and plac- Bowen v. Guild, 130 Mass. 121; Sta- 
 
 ing farm tools there, by claimant and phens v. Leach, 19 Pa. St. 262. 
 
 also by others, showed no claim to ex- 9. Hughes v. Pickering, 14 Pa. St. 
 
 elusive possession). 297. 
 
 7. Putney v. Gresser, 2 Met. 10. Warren v. Bowdran, 156 Masi. 
 
 (Ma88.) 583; Litt. S 278. 280; Bowen v. Guild, 130 Haas. 121} 
 
822 TiTLB BT Adveese Possessioh. 
 
 suit is not an interruption, nor is a judgment in ejectment 
 unless it is actually enforced by putting the owner in 
 possession.^ ^ 
 
 The Possession Miist Be Actually Adverse or Hostile. 
 Possession by a licensee, by a tenant during his term, by a 
 life tenant, by a mortgagee in possession, by an agent or 
 servant as against his principal or employer, or by a tenant 
 in common as against his cotenant, is not adverse in each 
 case because it is in recognition of and subordinate to the 
 title of the true owner.^^ -In these cases if it appear that the 
 occupant has openly and notoriously repudiated his sub- 
 ordinate interest, and holds openly and adversely as abso- 
 lute owner, the possession is adverse and the statute will 
 bar the owner's right to the property if he fails to assert it 
 in time.*^ 
 
 The possession is adverse to, and the statute runs only 
 against, those entitled to immediate possession. Thus 
 where A has a life estate in the property, remainder in fee 
 in B, possession by a third person is adverse to A only dur- 
 ing A's life estate, and during his life his right alone is 
 barred. The statute does not begin tp run against the re- 
 mainderman until after the death of the life tenant, as the 
 remainderman's right to the possession and right to main- 
 tain ejectment does not arise until then." 
 
 Ingersoll v. Lewis, 11 Pa. St. 312; As to adverse possession by a tan- 
 Burrows V. Gallup, 32 Conn. 493; ant for years, see BeLaneey v. Gan- 
 Lovell V. Frost, 44 Cal. 471. ong, 9 N. Y. 9. 
 
 11. Moore v. Greene, 19 How. (U. As to mortgag'^es in possession, see 
 S.) 69; McGrath v. Wallace, 85 Cal. Holmes v. Turners Falls Co., 150 
 622. Mass. 535; Morris t. He, 152 111. 190. 
 
 12. Meacham v. Bunting, 156 111. As to licensees, sec Sanitary Dist. v. 
 58«; Peabody v. Tarbell, 2 Cash. Chicago, 178 111. 330. 
 
 (Mass.) 226; Martin v. Jackson, 27 13. See preceding note, also Sher- 
 
 P». St. 504; Catlin v.' Decker, 38 man v. Charaplain Transportation Co., 
 
 Conn. S63; Miles v. Thorn c, 38 Cal. 31 Vt. 162, 177, and cases therein 
 
 .S35. As to adverse possession as be- cited. 
 
 tween cotenants, see § 214, ante. 14. Foster v. Manhall, 22 N. H. 
 
What Constitutes Advkese Possessioh. 
 
 823 
 
 The Possession Need not be Under Any Color of Title. 
 Statements in the books and cases tliat the possession must 
 be Tinder a claim of right mean only that it must be an 
 actual adverse possession, as heretofore explained, the ad- 
 verse possessor exercising the usual rights of ownership, 
 actually using and enjoying the property as owners usually 
 do.^^ Thus where an owner encroaches on his neighbor's 
 land, enclosing it and making use of it adversely for the 
 required period, he becomes owner by adverse possession, 
 though he intended to claim only to the true boundary. His 
 possession was actually adverse, though without intent to 
 trespass. Intent in such case is immaterial. As ejectment 
 would lie against him during the entire period of his posses- 
 sion, the statute bars the action and gives him title.^^ In 
 some states it has been held that the possession in such case 
 is not adverse, based on the mistaken notion that it must be 
 intentionally hostile." 
 
 491; Koltenbrock v. Cracraft, 30 Oh. 
 St. 584; Pinckney v. Eurrage, 31 N. 
 J. L. 20; Mettler v. Miller, 129 111. 
 630; Wallingford v. Hearl, 15 Mass. 
 471. 
 
 15. Mount T. Murphy, 807 N. Y. 
 240 (possession, improvement and ex- 
 ercise of usual acts of ownership is 
 presumptively adverse possession un- 
 til shown to be subservient to an- 
 other's title) ; Sumner v. Stevens, 6 
 Met. (Mass.) 337 (a holding under 
 a parol gift was adverse, since pos- 
 session was that of owner, irrespec- 
 tive of the invalidity of the gift). See 
 Rathbunville Cem. Ass'n v. Betson, 
 808 N. Y. 364. 
 
 The nature of the possession must 
 be shown by the conduct of the ad- 
 verse possessor in the enjoyment of 
 the property. A continued residence 
 on the land, the cultivating, improv- 
 ing and fencing it, and other acts of 
 ownership terd to establish that there 
 was an actual open adverse posses- 
 
 sion, the possessor holding and mak- 
 ing use of the property exactly as 
 though he was in fact owner of it. 
 Johns V. McKibben, 156 111. 71; Sus- 
 quehanna, etc. R. Co. V. Quick, 68 Pa. 
 St. 189; Butler v. Drake, 62 Minn. 
 229; Brumagin v. Bradshaw, 39 Cal. 
 24, 50 
 
 See, also, cases cited under § 343, 
 post. 
 
 16. French v. Pearce, 8 Conn. 439 
 ("Into the recesses of his [the pos- 
 sessor's] mind, his motives or pur- 
 poses, his guilt or innocence, no in- 
 quiry is made. It is for this obvious 
 reason that it is the visible and ad- 
 verse possession with an intent to 
 possess, that constitutes its adverse 
 character, and not the remote views 
 or beliefs of the possessor"); Tol- 
 man v. Sparhawk, 5 Mete. (Mass.) 
 469; Crary v. Goodman, 22 N. Y. 
 170; Dyer v. Odridge, 136 Ind. 654; 
 Grepne v. Anglemire, 77 Mich. 168. 
 
 17, Gruhp V. Wells, 34 Iowa 148, 
 
824 Title by Adveese Possession. 
 
 § 343. Constructive Possession. — If possession is taken 
 and continued for tlie requisite period under color of title, 
 tliat is, under a deed, will, judgment or other instrument of 
 title, possession of part of tlie parcel described therein is 
 constructive possession of the balance thereof, so as to give 
 title to the entire parcel by adverse possession.^ The usual 
 case is where a farm or other limited and well defined parcel 
 is described in the deed or other instrument, and the usual 
 and customary practice of owners is to occupy and improve 
 or otherwise make use of part, reserving the balance as 
 woodland or waste and unoccupied land for future use in 
 connection with the part actually occupied. Adverse pos- 
 session of the part usually occupied in such case is a dis- 
 seisin of the real owner as to the entire parcel where the 
 disseisor holds under a void or voidable deed or other in- 
 strument purporting to give him title to the unoccupied 
 part as well, the instrument of title disclosing and determin- 
 ing the extent of his claim. He is in possession of the entire 
 parcel just as though his paper title were good, and the true 
 owner may maintain ejectment to oust him from the entire 
 tract so described. Therefore the running of the statute 
 gives him title to all.^ 
 
 This rule does not apply to extensive tracts of land, where 
 a small part is occupied and where the balance is too exten- 
 sive to be regarded as part of a farm or other subdivision 
 held in reserve for use in connection with the part actually 
 
 and cases therein cited ; Ayers v. only to the true line, wherever it may 
 
 Eeidel, 84 Wis. 276; Brown v. Gray, he. Taylor v. Fornby, 116 Ala. 621, 
 
 3 Greenl. (Me.) 126; Winn v. Abeles, 626; Shotwell v. Gordon. 121 Mo. 
 
 35 Kan. 85; Brown v. Corkerell, 33 482 j Miller v. Mills Co., Ill Iowa 
 
 Ala. 38; St. Louis Univ. v. McCune. 654; Richardson v. Watts, 94 Me. 
 
 28 Mo. 481. aho later cases have 476, 3 Gray's cases ( 2d ed. ), 59, note, 
 
 modified the original rule by holding 1. See cases in notes following, 
 
 that the possession is adverse if the 2. Jackson, etc. v. Woodruff, 1 
 
 possessor believes that his fence to Cowen (N. Y.) 276; StuU v. Rich 
 
 which he holds is the true line, his Patch Iron Co., 92 Va. 253; Reed^ 
 
 possession being not adverse when it v Canfield, 159 IlL 2S4. 
 appears that he intended to claim 
 
GONSTBUOTITB FOSSBSSION. 825 
 
 occTipied and improved. In such case ejectment would lie 
 only as to the part actually occupied, and the statute would 
 run, barring the action, only as to that part. The physical 
 possession must indicate to the real owner that the claim 
 of the adverse holder extends beyond the limits of the part 
 actually occupied, which would not be the case except where 
 such possession by an owner carried with it in the usual 
 case possession and control of the unoccupied portion.' 
 
 Where the void instrument of title includes land belong- 
 ing to two or more persons, actual possession of land belong- 
 ing to one of them is not constructive possession of the 
 parcels belonging to the others. So, where two or more dis- 
 tinct parcels are described in the instrument under which 
 possession of one of them is held, there is no constructive 
 possession of the other parcels. In each of these cases the 
 actual possession of one parcel gives no indication of any 
 further claim to the other parcels, and the rule of construc- 
 tive possession has no application.* The land in which con- 
 structive possession is claimed must be part and parcel of a 
 single tract, part of which is in the actual possession of the 
 adverse claimant, the balance going therewith as a usual 
 and customary matter, the description of the instrument of 
 title establishing that his possession of a part is under claim 
 as owner to the entire parcel." 
 
 This rule, obviously, does not apply where the true owner 
 is in possession of another part of the parcel, since his con- 
 structive possession of the balance is disturbed by an ad- 
 
 3. See Jackson v. WoodruH, 1 be sanctioned by the court"); Simp- 
 
 Cowen (N. Y.) 276 (the court say- son v. Downing, 23 Wend. (N. Y.) 
 
 ing: "Suppose a patent granted to 316; Thompson v. Burhans, 61 N. Y. 
 
 A for S,000 acres; B, without title, 52; Paine v. Hutching, 49 Vt. 314. 
 conveys 1,000 of the tract to C, who See contra. Hicks v. Coleman, 25 
 
 enters under the deed, claiming title, Cal. 122. 
 
 and improves one acre only. * ♦ » 4. Bailey v. Carleton, 12 N. H. 9 ; 
 
 Could it he gravely urged that there Grimes v. Eagland, 28 Gp. 123; Hole 
 
 was a good adverse possession to the v Ritterhouse, 25 Pa. St. 491. 
 one thousand acres? * * * No S. See cases in preceding note, 
 
 such doctrine was ever intended to also Morris v. McClary, 43 Minn. 346. 
 
826 Title by Adveesb Possession. 
 
 verse holder only to the extent of the parcel so adversely 
 held." 
 
 Where adverse constructive possession has been once 
 secured, a subsequent adverse possession of another part of 
 the parcel will not effect the constructive possession of the 
 first hostile claimant, except to the extent of the part so 
 actually occupied. His constructive possession as presump- 
 tive owner necessarily excludes any constructive possession 
 in the subsequent disseisor."^ 
 
 § 344. Tacking Possession of Succeeding Adverse Holders. 
 — A continued adverse possession by succeeding adverse 
 holders without interruption or break results in giving title 
 after twenty years, or other period fixed by statute in the 
 state where the property is situated, provided some relation- 
 ship between them is shown, proving that each succeeding 
 holder did, in fact, continue the prior adverse possession of 
 his predecessor. Thus where the adverse holder conveys 
 or devises the property, or dies intestate and the possession 
 is continued by his heir or heirs, the succeeding interests are 
 tacked so as to make a single continuous period of adverse 
 possession.^ A parol or other transfer, which would be void 
 
 6. Stull V. Rich Patcli Iron Co., 9a Gush. (Mass.) 241; Jackson v. Leon- 
 Va. 253 (holding, however, that sub- ard, 9 Cow. (N. Y.) 653; Shrack v. 
 sequent possession of another part of Zubler, 34 Pa. St. 38; Eyau v. 
 a greater tract belonging to the trup Schwartz, 94 Wis. 403; Ely v. Brown, 
 owner does not prevent tlie adverse 183 111. 575; San Francisco v. Fulde, 
 holder's possession from extending to 37 Cal. 349. 
 
 the entire parcel included wit.'iin his In Smith v. Chapin, 31 Conn. 530, 
 
 deed, no part of such latter parcel the court said: "But it (privity of 
 
 being in the actual possession of the estate) was not necessary. It is suf- 
 
 true owner) ; Hale v. Powell, 4 Serg. fieient if there is an adverse posses- 
 
 ft R. (Pa.) 456; Jackson v. Vermil- sion continued uninterruptedly for 
 
 yea, 6 Cow. (N. Y.) 677. fifteen years, whether by one or more 
 
 7. Jackson v. Vermilyea, 6 Cow. persons. • • • Doubtless the pos- 
 (N. Y.) 677; Ralph v. Bayley, 11 Vt. sessions must be connected and con- 
 681; Bradley v. West, 60 Mo. 33. tinuous, so that the possession of the 
 
 1. Fanning v. Wilcox, 3 Day true owner shall not constructively 
 (Conn.) 858; Sawyer v. Kendall, 10 intervene between them; but such 
 
Taokoso Possession of Suooeeding Adveese Houjees. 827 
 
 as a conveyance by the true owner, is sufficient for this pur- 
 pose, as it establishes that the same adverse possession is 
 continued by the grantee, without interruption.'' But where 
 the adverse holder gives up possession, a new disseisin by 
 a third person who enters independently without- privity of 
 any sort with the prior possessor, gives no right to tack his 
 possession to that of his predecessor, because at the instant 
 of the surrender of possesion by the prior holder the con- 
 structive possession of the true owner at once attaches, the 
 new disseisin and adverse possession gives rise to a new 
 action of ejectment, and this action will not be barred until 
 the full period of limitation fixed by the statute, beginning 
 at that date, has fully elapsed.' 
 
 Where the adverse holder devises or conveys the property 
 to one person for life, remainder to another, the remainder- 
 man may tack the period of adverse possession of the life 
 tenant with that of the devisor or grantor, since it is ob- 
 viously a continuation of the same adverse possession.* 
 
 continuity and connection may be af- that derived from the mere poBsea- 
 
 fected by any conveyance, agreement sion of the estate. * • * If there 
 
 01' understanding which has for its is no such privity, upon the deter- 
 
 object a transfer of the rights of the mination of the possession of eacli 
 
 possessor, or of his possession, and is disseisor, the seisin of the true owner 
 
 accompanied by a transfer of pos- revives and is revested, and a, new 
 
 session in fact." A transfer of pos- distinct disseisin is made by each 
 
 session under an aareenient to sell successive disseisor." See, also, cases 
 
 was held to be sufficient. in last two preceding notes. 
 
 2. See case last cited, also ilcNeely 4. The mere intentional transfer of 
 V. Langan, 23 OIj. St. 32; Hughes v. possession, though witliout any eon- 
 Pickering, 14 Pa. St. 397; Davock v. veyance, either by parol or by deed, 
 Nealon, 58 N. J. L. 21; 111. Steel Co. ia quite sufficient for a tacking of 
 V. Budzisz, 106 Wis. 499. the succeeding possessions. Thus 
 
 3. In Sawyer v. Kendall, 10 Cusb. where A held adversely a piece of 
 (Mass.) 241, the court said: "Sep- land not included vidthin his deed, in 
 arate successive disseisins do not the mistaken belief that it was so in- 
 aid one another, where several per- eluded, and later conveyed to B by 
 sons successively enter on land as the same description which did not 
 disseisors, without any conveyance include the additional parcel so held, 
 from one to another, or any privity a continued adverse possession by B 
 of estate between them, other than was held to be tacked to A's pos- 
 
828 Title by Adteese Possession. 
 
 § 345. Disabilities. — The statutes of limitations in the 
 different states generally provide that if the true owner is 
 under a disability, such as infancy or insanity, when his 
 right to enter and recover possession of the property ac- 
 crues, the time in which he must bring his action to recover 
 possession is extended by the period of his disability, but 
 not to exceed a stated number of years, generally ten, after 
 the disability is removed, or after the death of the person 
 under the disability." The disability must exist at the time 
 the cause of action to recover possession because of the 
 disseisin accrues. If, for instance, A is owner of the prop- 
 erty in question when the adverse possession starts, under 
 no disability at the time, but later he becomes insane, Ms 
 right to recover the property will be barred after twenty 
 years, the adverse possession ripening into legal ownership 
 exactly as though he had not become insane. Similarly, if 
 after five years, or any other period less than twenty, A 
 should die, the property passing to an infant heir, the dis- 
 ability of the infant would make no difference, the disability 
 not existing in the true owner when the adverse possession 
 started.* 
 
 If A, in the above case, was an infant when the adverse 
 possession started, and shortly before attaining his twenty- 
 first year he should become insane, the second disability 
 does not in any way affect the running of the statute. The 
 twenty year period is extended for ten years (or other statu- 
 tory period) after the disability of infancy is removed, but 
 
 Bession, since possession was surren- montal incapacity, which are made 
 
 dered from A to B by voluntary act. disabilities in many slates, such as 
 
 Eriek v. Church, 87 Tenn. 575; coverture, absence from the United 
 
 Weber v. Anderson, 73 111. 439: States, and imprisonment. See 
 
 Wishart v. McKnight, 178 Mass. 35G, Wood Limitations (3d ed.), § 237; 
 
 and cases therein cited. N. Y. Code Civ. Proc, § 375. 
 
 5. See statutes in the different 6. Griswold v. Butler, 3 Conn. 227 ; 
 
 Btates for widely varying provisions Allis v. Moore, 2 Allen (Mass.) 306; 
 
 as to period of extension allowed in Fleming v. Griswold, 3 Hill (N. Y.) 
 
 case of disability, and the difTerent 85; Lynch v. Cox, 23 Pa. St. 265. 
 situations, in addition to infancy and 
 
Disabilities. 829 
 
 no further extension is given because of the second dis- 
 ability of insanity .'' 
 
 The general nature of title by prescription is suflBciently 
 discussed in the sections on creation of easements. Title 
 by estoppel is explained in discussing the different topics 
 in connection with which the question arises, particularly 
 in the chapter on Eecording of Deeds. Title by will and by 
 descent are generally treated as a distinct branch of the law, 
 as is the subject of mortgages, and are, therefore, not speci- 
 fically treated in this work, though the law on these sub- 
 jects, is discussed in this work in so far as it is involved in 
 connection with the topics treated. 
 
 7. Bunce v. Wolcott, S Conn. 27; Serg. & R. (Pa.) 209; White v. Clau- 
 Demarest v. VVynkoop, 3 Johns. Ch. son, 79 Ind. 188; Cozzena v. Farnan, 
 (N. ¥.) 129; Thompson v. Smith, 7 30 Oh. St. 491. 
 
INDEX. 
 
 (References are to pagea.) 
 
 A. 
 
 Page 
 
 ABANDONMENT of easements 692 
 
 of highways and streets 746 
 
 ABXJTTING OWNER, rights of, in streets and highways. See PubUc 
 
 RigWs 732-740 
 
 ACCEPTANCE of deed by grantee 797-799 
 
 ACCESS, right to, in abutting owner 734 740 
 
 ACCUMULATIONS, under rule against perpetuities 585 
 
 ADVERSE OBSTRUCTION, as extinguishing easement 695 
 
 ADVERSE POSSESSION 818-829 
 
 nature and origin 818 
 
 what constitutes adverse possession 819-823 
 
 the possession must be actual 819 
 
 it must be open 820 
 
 it must be exclusive 820 
 
 it must be continuous 821 
 
 it must be actually adverse or hostile 822 
 
 it need not be under any color of title 823 
 
 constructive possession 824 
 
 tacking possession of succeeding adverse holders 826 
 
 disabilities, infancy, etc 828 
 
 by one cotenant against tlie others 424, 425 
 
 by agent, licensee, tenant for years, or other person entitled to 
 
 possession 822 
 
 effect on dower 156 
 
 ADVERSE USER, as affecting highways and streets 748 
 
 prescription 645, 651 
 
 ADVERTISING, leases for purposes of 240 
 
 AGENT. See Trusts 392, 393 
 
 authority to execute deed or lease 244, 246 
 
 contract to execute deed or lease 246 
 
 adverse possession by 822, 823 
 
 AGRICULTURE, lease for purposes of. New York 236n. 
 
 AIDS 110 
 
 ALIENATION. See Deeds and Conveyances; Assignments of Leases; 
 Equitable Estates; Restrictive Covenants; Suspension of the 
 Absolute Power of Alienation. 
 ALLODIAL See Tenure. 
 
 [831] 
 
833 IifDEx. 
 
 Page 
 
 ALTERATION'S required by law, who must make them as between 
 
 landlord and tenant 297 
 
 of buildings by tenant for years, when waste. See Waste 96 
 
 ANCIENT LIGHTS, ancient buildings. See Easements. 
 
 ANGLO-SAXON PERIOD— nature of estates in land 102-105 
 
 ANNEXATION. See Fixtures. 
 
 APPORTIONMENT of rents between life tenant and reversioner or 
 
 remainderman 219 
 
 of assessments for street improvements 223 
 
 ASSESSMENTS, as between life tenant and reversioner or remain- 
 derman 223 
 
 ASSIGNMENT of dower 197 
 
 ASSIGNMENT AND SUBLETTING— distinguished 308 
 
 formal requisites 311 
 
 effects of assignment, liabilities of assignee 312 
 
 liability of original assignor 315 
 
 effects of sublease 316 
 
 restrictions upon assigning and subletting 317 
 
 remedies for breach of covenant not to assign or sublet 319 
 
 ATTEMPT to convey fee by life tenant 220 
 
 B. 
 
 BARGAIN AST) SALE, before statute of uses 863 
 
 deed of 758 
 
 BASE FEES. See Limitation; Estates upon. 
 
 BIRTH OF ISSUE as a requisite of curtesy 209 
 
 BOARD and lodging contracts 243 
 
 BONA FIDE PURCHASES. See Purchaser for Value without Notice. 
 
 BOOICLAND 103 
 
 BORDER TREES. See Trees 35-38 
 
 BOUNDARIES, in deeds. See Deeds 768-772 
 
 on streets and highways 775-778 
 
 on streams and lakes 772 
 
 BREACH OF CONDITION— what constitutes 460 
 
 BUILDINGS, changes and improvements, when waste 96 
 
 easement of support of. See Easements. 
 
 when removable by tenant 80 
 
 BURGAGE TENURE 112 
 
 C. 
 
 CAR LINES, horse, cable and electric, right to use streets and high- 
 ways for 737 
 
 CHAIN OF TITLE, instrument must appear in under recording acts. 809-813 
 CHANGE IN CHARACTER OF NEIGHBORHOOD, effect on restric- 
 tive covenants 723 
 
Indbz. 833 
 
 Pag« 
 
 CHARITABLE TRUSTS, nature, etc 878 
 
 under rule against perpetuities 682 
 
 CHATTELS. See Fixtures; Landlord and Tenant; Real and Personal 
 Property Distinguished. 
 
 CHATTEL MORTGAGES, fixtures annexed subject to 84-70 
 
 CHILDREN. See Posthumous Children; Remainders to a Class. 
 
 CLASS, gift to a. See Remainders. 
 
 COMMON RECOVERY. See Deeds at Common Law. 
 
 COMMON RECOVERIES and fines to bar estates tail 138-140 
 
 COMPETING BUSINESS, covenant by landlord not to engage in 704 
 
 wl'en this covenant runs with the land 722 
 
 CONDEMNATION. See Eminent Domain. 
 
 CONDniONAL ESTATES, defined . 123 
 
 nature of 460 
 
 distinguished from estates upon limitation 452 
 
 creation of conditional estates 463 
 
 right of entry for breach of condition 4S7 
 
 effect of attempt to assign , 458 
 
 right to assign it as incident of the reversion 459, 460 
 
 breach of condition — what constitutes 460 
 
 waiver of breach 462-466 
 
 waiver of continuing breach 466 
 
 license permitting breach 468 
 
 rule in Dumpor's case . -...-- 469 
 
 relief from forfeiture in equity 471 
 
 impossible conditions 472 
 
 illegal conditions 474-476 
 
 curtesy in 210 
 
 dower in 171 
 
 CONDITIONAL FEE of the common law 135 
 
 CONDITIONAL LIMITATION, estates upon 482 
 
 curtesy in •. 210 
 
 dower in 172 
 
 CONDITIONAL SALES— fixtures annexed subject to 64-70 
 
 CONSIDERATION. See Uses; Trusts; Deedaj Nominal, Not Value 
 
 Under Recording Acts 807 
 
 past, not value under recording acts ^.. 807 
 
 CONSTRUCTIVE POSSESSION, as aflfeoting adverse possession.... 624 
 
 CONSTRUCTIVE TRUSTS. See Trusts. 
 
 CONTINGENT REMAINDERS. See Remainders. 
 
 CONTRACT— for a lease 846 
 
 easements in equity from contract therefor. Bee Easements; Li- 
 censes. 
 for sale of trees. See Trees, 
 for sale of realty, under recording acts. See Recording of Deeds. 
 
834 Index. 
 
 Pkga 
 
 CONTRIBUTION. See Cotenants. 
 
 CONVEYANCES AT COMMON LAW, See Deeds 754 
 
 COPARCENY, estate in 410 
 
 COPYHOLD TENTJRE 113 
 
 CORPORATIONS, deeds to, use of words of succession , 129 
 
 COTENANTS, adverse possession by one against the others 424, 425 
 
 relations between 421 
 
 conveyance of his interest in part of the joint property by one 
 
 cotenaut 421 
 
 when good in equity by estoppel 42S 
 
 attempt by one cotenant to create easement in common property. 42;i 
 
 ouster of one cotenant by another 423 
 
 rents and profits: right of tenant out of possession to tenant 
 
 rightfully in possession, without ouster. Statute of Ann.... 426 
 ase and occupation; right of tenant out of possession as against 
 
 tenant in possession 426 
 
 services by, no liability of one to other for 428 
 
 taxes, interest on mortgage, etc., contribution between cotenants 429 
 
 repairs ; does right to contribution exist ? 429—432 
 
 allowance therefor in accounting for rents and profits 431,432 
 
 improvements ; no recovery for, between cotenants 432 
 
 right to allowance for on partition 433—435 
 
 waste between cotenants 436 
 
 superior title; purchase of by one as against other tenant 440 
 
 sale under execution of interest of cotenant 441 
 
 tax sale of common property 441—442 
 
 voluntary partition. 
 
 oral partition followed by separate possession 443 
 
 voluntary partition of estates in entirety 444 
 
 involuntary partition 445 
 
 parties to action 446 
 
 judgment on partition 448 
 
 COURSES AND DISTANCES 769, 772 
 
 COVENANTS FOR TITLE in deeds 779 
 
 covenant of seisin 779 
 
 of riglit to convey 779 
 
 against encumbrances 780 
 
 for further assurance 781 
 
 for quiet enjoyment 7b2 
 
 of warranty '...., 783 
 
 how covenants for title run with the land 784 
 
 COVENANTS IN EQUITY 715 
 
 negative restrictive covenants, notice to subsequent purchaser.. 715 
 
 covenants creating easements 717 
 
 restrictions by uniform plan 718-721 
 
 subtenants taking with notice bound 722 
 
Index. 836 
 
 COVENANTS IN EQUITY— OontinMed. Page 
 covenant by grantee not to engage in competing business; subse- 
 quent grantee with notice bound 722 
 
 change in character of neighborhood — effect 72" 
 
 covenants calling for afBrmative action 724 
 
 COVENANTS IN LEASES, nature and effect 272 
 
 implied covenant of quiet enjoyment 273 
 
 power to demise 275 
 
 damages for breach , 279 
 
 to give possession 280 
 
 to repair 282 
 
 express covenant to repair 285 
 
 no implied covenant of fitness for use 290 
 
 express covenants; covenant to pay rent 292 
 
 action for use and occupation 293 
 
 restrictive and other express covenants 296 
 
 COVENANT TO STAND SEISED before statute of uses 363 
 
 COVENANTS, restrictive, easements created in form of. See Cove- 
 nants in Equity 621 
 
 COVENANTS EUNNING with the land 697 
 
 nature and kinds at law 697-700 
 
 between landlord and tenant 700-706 
 
 covenants fixing terms of tenancy 700-702 
 
 covenants relating to improvements not yet in existence. 702-703 
 covenant by landlord not to engage in competing business 704 
 covenant or contract of third person guaranteeing pay- 
 ment of rent 705 
 
 covenants affecting easements or servitudes 712-716 
 
 priority 707 
 
 covenants between grantor and grantee, no easement existing. . . 711-712 
 
 party wall covenants 712-715 
 
 covenants in equity. 
 
 negative restrictive covenants, notice by subsequent purchaser 715 
 
 covenants creating easements 717 
 
 subtenants with notice bound 722 
 
 covenant by grantee not to engage in competing business; 
 
 bubsequent grantee with notice bound 722 
 
 change in character of neighborhood, effect 723 
 
 covenants calling for affirmative action 724 
 
 CREDITORS, conveyances in fraud of. See Constructive Trusts. 
 
 CROPS, annual 18-23 
 
 parol reservation 19 
 
 pass as realty under deed or will 19, 20 
 
 when personalty 20, 21 
 
 perennial crops 16, 17 
 
 levy of execution or attachment on crops 21, 22 
 
 effect of sale of land on foreclosure 22 
 
 way — going crops. See Emblements. 
 
836 Ihdbx. 
 
 Page 
 CROSS REMAINDERS. See Rejnaiiiders. 
 
 CURTESY, nature of 204,205 
 
 marriage as a. requisite 205 
 
 seisin of wife as requisite 206-208 
 
 remainder after life estate 208 
 
 spisin in fact necessary, seisin at law insufficient at common 
 
 law 206 
 
 seisin at la .7 sufficient in most states 207 
 
 birth of issue as a requisite 209 
 
 curtesy in estates tail, conditional fees, estates upon limitation 
 
 and conditional limitation 210 
 
 curtesy in equitable estates , 211 
 
 curtesy in mortgaged property 212 
 
 curtesy in life estates 213 
 
 curtesy in joint tenancies 213 
 
 curtesy in tenancies in common 213 
 
 effect of taking by eminent domain 213 
 
 curtesy as affected by married woman's acts 214 
 
 CY PRES DOCTRINE. See Charitable Trusts, 
 
 D. 
 
 1)AMAGES, wrongful user of streams 667 
 
 for ouster of tenant for years, breach of covenant of quiet en- 
 joyment 279 
 
 for breach of landlord's covenant to repair 288- -290 
 
 1)E DONIS, statute. See Fee Tail Estates. 
 
 DANGEROUS CONDITION of leased premises; responsibility of 
 
 landlord and tenant to third persons 300 
 
 liability of landlord to tenant 290-292, 301,302 
 
 leasing premises with nuisance thereon 303 
 
 effect of landlord's covenant to repair 306 
 
 DEDICATION 741-745 
 
 DEEDS 764- 799 
 
 common law conveyances. 
 
 (a) livery of seisin and grant 7^4 
 
 (b) leases 755 
 
 (c) releases 755 
 
 (d) surrenders 756 
 
 (e) fines and recoveries 757 
 
 conveyances under statute of uses 757 
 
 deed of bargain and sale ,. 768 
 
 deed of lease and release 759 
 
 the modern statutory deed 760 
 
 quit claim and warranty deeds 760,761 
 
 indentures and deeds poll 702 
 
Index. 837 
 
 DEEDS — Continued. Page 
 parts of a deed — the premises, the habendum clause, recitals of 
 
 execution, followed by signature and seal 763 
 
 names of grantor and grantee, errors and discrepancies 763-765 
 
 granting and habendum clauses 765-767 
 
 consideration 767 
 
 description of lands conveyed, boundaries 768-772 
 
 monuments vs. courses and distances 769 
 
 monuments referred to in deed, but subsequently erected.... 770 
 established line shown by monuments, etc., not referred to in 
 
 deed 771 
 
 courses and distances in conflict, no presumption that causes 
 
 one to prevail over other 772 
 
 boundaries on streams, lakes, etc 772 
 
 boundaries on streets and highways -. 775-778 
 
 covenants for title in deeds 779 
 
 covenant of seisin 779 
 
 covenant of right to convey 779 
 
 covenant against encumbrances 780 
 
 covenant for furtlier assurance 781 
 
 covenant for quiet enjoyment 782 
 
 covenant of vparranty 783 
 
 how covenants for title run with the land 784 
 
 execution of deeds, signing and sealing 787-790 
 
 delivery of deeds 790-792 
 
 delivery in escrow 792-797 
 
 acceptance by grantee 797-799 
 
 DEEDS TO CORPORATIONS, word " heirs " or " successors " not 
 
 required 129,130 
 
 DEEDS, recording. See Recording of Deeds 800-817 
 
 DEFECTS IN RECORD, under recording acts 813 
 
 errors of recording officer 813, 814 
 
 DELIVERY OF DEEDS 790-792 
 
 DELIVERY IN ESCROW 792-797 
 
 DENIAL OF LANDLORD'S TITLE by tenant 298 
 
 DESCRIPTION IN DEEDS ; boundaries. See Deeds 768-772 
 
 DESTRUCTION OF BUILDING, effect on lease of part thereof 354 
 
 DESTRUCTION OF LEASEHOLD PREMISES by fire, etc., effect 
 
 oArt 
 
 thereof on lease 
 
 DEVIATION, right of by public in use of highways and streets 740 
 
 DISABILITIES, infancy, etc., easements created by prescription 654 
 
 • fi9fi 
 
 adverse possession 
 
 DIVORCE, effect on dower 184-186 
 
 limited divorce, effect on dower 186 
 
 effect on curtesy 206 
 
 DOWER 14«-fl 
 
 nature of dower, historical development 146 
 
838 Indsz. 
 
 DOWER— Continued. Page 
 
 requisites 147 
 
 marriage 147 
 
 void and voidable marriages 147 
 
 validity, how determined 148-155 
 
 seisin of the husband, remainders after life estate 153 
 
 in fact and at law 155 
 
 adverse possession — eflFeet on seisin 156 note 
 
 exchanged lands — dower in 155 note 
 
 in mortgaged property 157 
 
 under common law 157 
 
 under modern law 157, 158 
 
 purchase money mortgages 159—162 
 
 in equitable estates' 168 
 
 in trust estates in United States 163 
 
 in joint tenancies 166, 167 
 
 in tenancies in common 166, 167 
 
 in partnership realty 167-169 
 
 in life estates 170 
 
 in estates tail 170 
 
 in estates upon condition and limitation 171 
 
 in estates upon conditional limitation 172 
 
 inchoate dower, nature of 175 
 
 eminent domain, effect on 177 
 
 release by wife 179 
 
 release to husband void 179 
 
 by joining in husband's deed or mortgage 180 
 
 separate release to husband's grantee 183 
 
 when setting aside of deed or discharge of mortgage in which 
 
 wife joined restores dower 180,181 
 
 when payment of such mortgage by husband's grantee does 
 
 not restore dower 181-183 
 
 barred by misconduct of wife 184 
 
 at common law 184 
 
 by divorce for wife's adultery 184-186 
 
 limited divorce, effect on dower 185 
 
 jointures, legal and equitable 187-191 
 
 under modern statutes 188-191 
 
 testamentary provisions in lieu of 191-196 
 
 election by widow 194 
 
 consummate dower, nature and incidents 106 
 
 improvements, dower in, when made by grantee or heir of husband 199 
 
 assignment of dower 197-199 
 
 dower after assignment 200 
 
 DRAINAGE INTO STREAMS 669 
 
 DRAINS, etc. ; easements by implied grant, etc 633 
 
 DUMPOR'S CASE, rule in 469 
 
Index. 839 
 
 E. 
 
 Page 
 
 EASEMENTS 618-698 
 
 nature and characteristica 613 
 
 easements in gross 616 
 
 creation of easements 618 
 
 cannot be created by parol 619 
 
 parol contracts for easements in equity 619 
 
 created by express grant 620 
 
 created by one of several cotenants 830 
 
 created in form of restrictive covenants 621 
 
 sale of plots by reference to map showing streets, etc 631 
 
 reservations and exceptions 688 
 
 , ways of necessity, nature and incidents 625 
 
 created by implied grant or reservation 628-643 
 
 by implied grant, principles involved 628 
 
 permanent roadways 631 
 
 drains, water pipes, conduits, race-ways, and rights of 
 
 flowage 633, 636 
 
 support of adjoining building 636 
 
 light and air 636 
 
 change in course of stream or natural condition by 
 
 granting part prior to conveyances 637 
 
 by implied reservation, strict necessity rule 637-642 
 
 created by prescription, history 642 
 
 relation to adverse possession 642-845 
 
 fiction of lost grant 644 
 
 nature of user required 645 
 
 must be open and notorious 645, 646 
 
 must be continuous for statutory period of adverse 
 
 possession 646-648 
 
 must have been uninterrupted and undisputed.... 648-651 
 
 must be adverse 651, 652 
 
 knowledge by wrong doer that act is wrongful not 
 
 necessary 653 
 
 user under a parol grant void under statute is ad- 
 verse 653 
 
 no prescription against remainder or reversion 
 
 after life estate 653 
 
 disabilities 654 
 
 tacking of successive users 655 
 
 Aatural rights. 
 
 easements of light and air 685-657 
 
 percolating and surface waters 657 
 
 unreasonable user amounting to nuisance 659-683 
 
 sale of water from wells, etc 661, 663 
 
 streams and water courses 663-671 
 
 right to use for domestic purposes 664 
 
840 Ibdbz. 
 
 EASEMENTS — Continued. Page 
 
 use reducing size of stream 864,665 
 
 pollution of stream 665 
 
 damage from user 667 
 
 Betting back of water in stream 668 
 
 drainage into streams 669 
 
 tidal waters and navigable streams, rights of owner of the 
 
 upland 670 
 
 easements of support 671-676 
 
 additional burden from buildings 673 
 
 excavations negligently ma.de 674 
 
 subjacent support 675 
 
 party walls 676-683 
 
 nature of, and how created 676-68D 
 
 airising by force of statutes 679 
 
 not an incumbrance 680 
 
 either party may carry party wall higher, etc 680,681 
 
 right to rebuild dilapidated party wall 681, 682 
 
 destruction of buildings by fire 682 
 
 openings for doors, windows, etc., not allowed 683 
 
 Ways 683-689 
 
 general rights of way 684, 685 
 
 limited rights of way 685 
 
 ways by prescription 686 
 
 rights of servient owner 687 
 
 rights of dominant owner 688 
 
 right of deviation on adjacent land 68S 
 
 building across alley, leaving space below 689 
 
 extinction of easements, servitudes and profits 689-696 
 
 releases thereof 689 
 
 extinguished by execution of license permitting permanent 
 
 change or improvement interfering with the easement 690-692 
 
 extinguished by abandonment 692 
 
 extinguished by adverse obstruction 695 
 
 extinguished by union of dominant and servient estates.... 693 
 
 EASEMENTS CREATED BY COVENANTS, run with the land. See 
 
 Covenants Running with the Land 717 
 
 EASEMENTS, covenants modifying or aSecting, run with the land. 
 
 See Covenants Running with Land 706-712 
 
 EJECTMENT for breach of condition. See Conditional Estates. 
 EILECTION OF WIDOW between dower and testamentary provision. 191 
 
 between jointure after marriage and dower 190 
 
 EMBLEMENTS, nature and requisites of right of 38-42 
 
 effect of enforcing superior title 42 
 
 effect of foreclosure of prior mortgage 42 
 
 effect of forfeiture for breach of condition 42 
 
 EMINENT DOMAIN, effect on dower 179 
 
 effect on curtesy 213 
 
Index. 841 
 
 SaciNBNT DOMAIN— OonMnued. Page 
 
 ouster oi tenant by, eSect on rent 329 
 
 highwayB and streets created by 746 
 
 ENTIRETY, estates in, nature and requisites 414 
 
 effect of modern statutes 417 
 
 termination of the estate 419 
 
 partition of 444 
 
 ENCUMBRANCES, covenant against 780 
 
 life tenant's duty to keep down 221, 225 
 
 ENROLMENT, statute of 768, 759 
 
 ENTRY for breach of condition. See Conditional Estates. 
 EQUITABLE CONVERSION, agreement by partners that prior realty 
 shall be sold on dissolution and proceeds distributed — effect on 
 
 dower 167-168 
 
 EQUITABLE ESTATES, nature and origin 356 
 
 See Uses; Trusts; Constructive Trusts; Resulting Trusts. 
 
 dower in 162-164 
 
 Curtesy in 211 
 
 EQUITABLE WASTE 99 
 
 ERRORS IN RECORDING -. 813, 814 
 
 ESCHEAT, as incident of tenure Ill 
 
 ESCROW, delivery of deed in. See Deeds. 
 
 ESTATES IN LAND, nature of 102 
 
 ESTATES UPON LIMITATION, dower in 171 
 
 See Limitation, Estates upon. 
 
 ESTATES TAIL, dower in 170 
 
 See Fee Tail Estates. 
 
 ESTOPPEL, title by 811 
 
 in conveyances by one of several cotenants of part of common 
 
 property 422 
 
 in conveyances by husband or wife of separate interest of estate 
 
 in entirety 415, 418 
 
 EVICTION OF TENANT by Landlord, effect on rent 324 
 
 by paramount title S28 
 
 See Landlord and Tenant. 
 
 EXCEPTIONS AND RESERVATIONS 622 
 
 EXCHANGED, dower in lands. See Dower. 
 
 EXECUTION OF DEEDS, signature and seal 787-790 
 
 EXECUTION OF POWERS 649 
 
 EXECUTORY DEVISES 524 
 
 EXECUTORY INTERESTS, under rule against perpetuities 668,596 
 
 EXECUTORY FUTURE INTERESTS. See Future Estates. 
 EXPRESS TRUSTS. See Trusts. 
 
 EXTENSION OF LEASE 247 
 
 EXTINCTION OF EASEMENTS. See Easements 689-696 
 
 EXTINCTION OF HIGHWAYS AND STREETS. See Public Rigiita . 746-749 
 
84:2 InsBz. 
 
 F. 
 
 Pag" 
 
 FEE, conditional at common law 13fi 
 
 FARMING ON SHARES. See Landlord and Tenant. 
 
 FEE SIAIPLE ESTATES 122 
 
 FEES, base or qualified 123 
 
 FEE ESTATES, creation by deed. Word " heirs " necessary at com- 
 mon law 127, 129 
 
 exceptions where word " heirs " not necessary 129-131 
 
 created by will 131-133 
 
 creation of under modern statutes 133 
 
 FEE TAIL ESTATES— origin 136 
 
 nature and kinds 137-140 
 
 general and special 137 
 
 barred by common recovery or fine 138-140 
 
 under modern statutes 140-141 
 
 curtesy in 210 
 
 dower in 170 
 
 FENCE RAILS, boards, etc. See Fixtures. 
 
 FEUDALISM; introduced by Norman Conquest 105 
 
 nature and incidents 105-108 
 
 FEUDAL SYSTEM— Iiad to do only with land 6, 7 
 
 FINES AND RECOVERIES, as conveyances • 757 
 
 barring estates tail 138-140 
 
 FISH, ownership in 35 
 
 FISHING, rights of 753 
 
 FIXTURES . 44-86 
 
 defined 9 
 
 nature of 44-46 
 
 annexed by owner in fee 46 
 
 what amounts to annexation 48 
 
 implements and utensils 48 
 
 rolling stock of railroads 48 
 
 constructive annexation 49 
 
 fixtures removed for repairs 50 
 
 fence rails, boards, etc 51 
 
 keys of a house 50 
 
 hop poles, storm sash, etc., removed while not in use 60 
 
 rails, boards, etc., made from trees growing on premise*, 
 
 where they are to be used 51 
 
 machinery, etc., brought on land, hut not attached 52 
 
 Intent in making annexation 54 
 
 Becret intent immaterial 64 
 
 as shown by character of annexation and adaptability for 
 
 use with land 55 
 
 permanent machinery in mills 56 
 
Index. 843 
 
 SIXTUKES—Oontinued. Page 
 house fixtures, gaa fixtures, furnaces, ranges, refrigera- 
 tors, awnings, etc 60-63 
 
 annexed under contract of conditional sale or chattel mortgage. . 64-71 
 between vendor under such contract or chattel mortgage and 
 
 prior mortgagee of the realty 66, 87 
 
 as to subsequent purchasers and mortgagees of realty 68 
 
 chattels not annexed as fixtures 70 
 
 chattels losing their identity 70 
 
 annexed by trespasser or licensee 71, 72 
 
 annexation by tenant for years 73-80 
 
 when removable and when not removable 73, 74 
 
 removable fixtures; are they real or personal? 75, 76 
 
 trade fixtures, agricultural fixtures and fixtures of domestic 
 
 convenience 77-79 
 
 buildings 80 
 
 when tenant may remove fixtures 81 
 
 removal by tenant for an indefinite term 82 
 
 effect of new lease 83, 84 
 
 annexation by tenants for life 85 
 
 FLOW AGE, rights of, implied grant 633 
 
 FOLK-LAND 103, 104 
 
 FORFEITURE FOR BREACH OF CONDITION. See Conditional 
 Estates. 
 
 of life estate for attempted alienation in fee 220 
 
 of right of entry by attempt to convey same 458, 459 
 
 FRANKALMOIN TENURE 114 
 
 FRAUD. See Trusts; Constructive Trusts. 
 
 FREEHOLD ESTATES; creation and transfer under feudal system. 118 
 
 distinguished from estates lcs3 than frfuliold 120,121 
 
 FRUCTUS INDUSTEIALES AND NATURALES. See Crops. 
 
 FURTHER ASSURANCE, covenant of 781 
 
 FUTURE ESTATES 484-542 
 
 the different kinds 484 
 
 reversions 486 
 
 remainders 487 
 
 vested and contingent remainders 493 
 
 rules of construction relating to remainders 495 
 
 remainders to unascertained persons 498 
 
 remainders to a class 503 
 
 remainders in the alternative and cross-remainders 607 
 
 destruction of contingent remainders by destruction or de- 
 
 termination of precedent life estate 610 
 
 remainders to posthumous children 513 
 
 transfer and inheritance of vested and contingent remainders 513 
 
 the modern law of remainders 516-519 
 
 the rule in Shelley's Case 520 
 
844 IwDBX. 
 
 FUTURE ESTATES— Continued. Page 
 
 in the United States 522 
 
 luture executory estates. 
 
 executory devises 624 
 
 springing and shifting uses 529 
 
 the modern law of future executory estates 534-542 
 
 Q. 
 
 GAME, ownership in 33, 34 
 
 GAS, natural, rights in 663 
 
 GAS FIXTURES, personalty." See Fixtures 60-63 
 
 GAVELKIND TENURE 113 
 
 GIFTS TO A CLASS as affected by rule against perpetuities 677 
 
 See Remainders to a Class. 
 GLOUCESTER, statute of. See Waste. 
 GOLD MINES. See Mines. 
 
 GRAND SERGEANTY; petty sergeanty 114 
 
 GRANT, deed of. See Deeds. 
 
 GRANTING and habendiun clauses, inconsistencies, etc 786-767 
 
 GRASS, growing, is realty 17 
 
 GUARANTY OF PAYMENT OF RENT by third person, does it run 
 
 with the land? 706 
 
 H. 
 
 HABENDUM CLAUSES, deeds 763, 766-767 
 
 "HEIRS," required in creating estates by deed 127et8eq. 
 
 not required in wills 131-133 
 
 HIGHWAYS AND STREETS. See Public Rights 731 
 
 HOLD-OVER TENANTS. See Landlord and Tenant; Tenancies from 
 
 Year to Year. 
 HOMAGE. See Feudalism. 
 HUSBAND AND WIFE. See Dower; Curtesy; Entirety, Estates in; 
 
 Marital Right, Estates by. 
 
 I. 
 
 ICE, as part of the land, separate sale, etc 23-25 
 
 IMPEACHMENT OF WASTE, conveyance without. See Waste; 
 Equitable Waste. 
 
 IMPLIED COVENANT of quiet enjoyment 273 
 
 IMPLIED GRANT, easements created by. See Easements 62S 
 
 IMPROVEMENTS, allowance for as between cotenants on partition. 432-435 
 
 assessments for apportioned between life tenant and reversioner 
 or remainderman 223 
 
 dower in 199 
 
 INCHOATE RIGHT OF DOWER. See Dower. 
 
 INCORPOREAL AND CORPOREAL PROPERTY RIGHTS 3-4 
 
 INDENTURES AND DEEDS POLL 7«8 
 
IlTDEX. 845 
 
 Page 
 INNOCENT PURCHASER. See Purchaser for Value Without 
 Notice. 
 
 INSURANCE by life tenants and by reversioners or remaindermen.. 224 
 
 INTERESSE TERMINI, nature of 235 
 
 INTEREST ON MORTGAGES, etc., contribution between cotenants. 429 
 
 payable by life tenant 225 
 
 ISSUE, birth of. See Curtesy. 
 
 J. 
 
 JOINT TENANCIES; nature, etc 400 
 
 the four unities 400, 401 
 
 Burvivorship 402 
 
 estates of trustees and executors joint 403 
 
 statutes modifying joint tenancies 403, 404 
 
 separate conveyance of interest of each joint tenant 404 
 
 separate mortgage of interest of each 406 
 
 no curtesy in 213 
 
 no dower in 166, 167 
 
 released by one to the other; word " heirs " not required 130 
 
 JOINTURE, legal and equitable 187-191 
 
 under modern statutes IS8-19I 
 
 JUDGMENT AND OTHER LIENS subsequent to unrecorded deed or 
 
 mortgage under recording act 817 
 
 in partition 44S 
 
 L. 
 LAKES. See Deeds; Boundaries. 
 
 LAND UNDER WATER, title to, in United States 751 
 
 LANDLORD AND TENAJJT 228-355 
 
 different kinds of tenancies 228 
 
 historical development 229 
 
 tenancies for years, distinguished from freehold estates 231 
 
 essentials of the relation 232 
 
 interessi termini, nature of 235 
 
 tenancies for years, nature of 236 
 
 license and tenancy distinguished 237 
 
 between master and servant 238 
 
 leases for advertising purposes 240 
 
 working land on shares 241 
 
 board and lodging contracts 243 
 
 form of lease, when writing necessary 244 
 
 contract to make lease 246 
 
 renewal of lease 247 
 
 tenancies from year to year, from month to montli, etc 248 
 
 nature and history 248 
 
 created by holding over 250 
 
 created by express agreement 2ii4 
 
846 Index. 
 
 LAITDLORD AND TEl'JAWF— Continued. P«g» 
 
 arising under void lease for years 257 
 
 tenancies at will, nature, etc 260 
 
 creation of 263 
 
 termination of 266 
 
 tenancies at sufferance, nature, etc 268 
 
 under statutes 270 
 
 covenants in leases, nature and effect 272 
 
 implied covenant of quiet enjoyment 273 
 
 covenant of power to demise 275 
 
 damages for breach of implied covenant 279 
 
 implied covenant to give possession 280 
 
 implied covenant to repair 282 
 
 express covenants to repair 285 
 
 no implied covenant of fitness for use 290 
 
 express covenants; covenant to pay rent 292 
 
 action for use and occupation 293 
 
 restrictive and other express covenants 296 
 
 covenants running with the land. See Easements 700-706 
 
 taxes and assessments payable by landlord 297 
 
 alterations required by law, who must make them 297 
 
 duty of tenant not to dispute landlord's title, and to give notice 
 
 of adverse action 298 
 
 dangerous condition of leased premises; responsibility of landlord 
 
 and tenant to third persons 300 
 
 liability of landlord to tenant 290-292, 301-302 
 
 leasing premises with nuisance thereon 303 
 
 effect of landlord's covenant to repair 306 
 
 Assignment and subletting — ^distinguished 308 
 
 formal requisites 311 
 
 effects of assignment, liabilities of assignee 312 
 
 liability of original assignor 315 
 
 effects of sublease 316 
 
 restrictions upon assigning and subletting 317 
 
 remedies for breach of covenant not to assign or sublet 319 
 
 transfer of the reversion by landlord 322 
 
 suspension and extinguishment of rent — eviction 323 
 
 eviction by act of landlord 324 
 
 eviction by paramount title 328 
 
 eminent domain ; tenant ousted by 329 
 
 surrender, effect on rent 331 
 
 express surrender 332 
 
 surrender by act or operation of law 336 
 
 cases of such surrender 336-344 
 
 forfeiture of term for breach of condition 844 
 
 destruction of leasehold premises by fire, etc., effect on rent 347 
 
 destruction of building, effect on lease of part of the building... 354 
 
IiTosz. 847 
 
 Pag« 
 
 LEASE, contract to make 248 
 
 form of. See Landlord and Tenant ' 244 
 
 renewal of 247 
 
 aa a conveyance at common law 756 
 
 LEASE AND RELEASE, deed of 769 
 
 LICENSEE, annexation of fixtures by 71 
 
 adverse possession by 822 
 
 LICENSES 726-730 
 
 nature and characteristics 726 
 
 distinguished from tenancies 237 
 
 creation of licenses 727 
 
 revocation of licenses 727-730 
 
 rights of licensee who has made permanent improvements, etc... 728-730 
 
 coupled with an interest 727 
 
 LIENS ON LAND, chattel interests 5 
 
 LIFE ESTATES, nature and incidents 141-144 
 
 relation between life tenant and reversioner or remainderman... 218 
 apportionment of rents between life tenant or his representative 
 
 and reversioner or remainderman 219 
 
 attempt to convey fee by life tenant 220 
 
 taxes, payment of, by life tenant 221 
 
 apportionment of assessments for permanent ImprovementB be- 
 tween life tenant and remainderman, etc 223 
 
 insurance by life tenant and reversioner or remainderman 224 
 
 interest on mortgages, payable by life tenant 225 
 
 mortgages, payment of principal 226-227 
 
 no curtesy in 213 
 
 no dower in • I'*'© 
 
 LIFE TENANTS, fixtures annexed by 85 
 
 waste. See Waste. 
 repairs. See Waste ; Permissive. 
 LIGHT AND AIR, easements of, by natural right and by implied 
 
 grant (555-657 
 
 LIGHT, AIR AND ACCESS, right of abutting owner 738, 740 
 
 LIMITATION, estates upon, defined 123-126 
 
 nature of ^^ ' 
 
 distinguished from conditional estates 452 
 
 curtesy in 210 
 
 dower in ^''■ 
 
 LIVERY OF SEISIN. See Seisin. 
 
 LIVES IN BEING, under rule against perpetuities 666, 689-592 
 
 LOST GRANT, fiction of 6*4 
 
 M. 
 
 MANOTU" 115,116 
 
 JiIANORIAL COURT •. 118 
 
848 Indsz. 
 
 Page 
 MANURE 26 
 
 HAPS, easement's in streets as laid down in 621 
 
 MAELBRrDGE, statute of. See Waste. 
 
 MAEEXAGE, as a, requisite of curtesy 205 
 
 as a requisite of dower 147-153 
 
 illegal conditions in restraint of 475, 476 
 
 as a consideration for covenants to stand seized. See Uses 758 
 
 MARRIED WOMAN'S PROPERTY ACTS, effect on curtesy 214 
 
 MARITAL EIGHT, estate by, nature, etc 202-204 
 
 in wife's real property 802, 203 
 
 in leasehold interests of wife 203 
 
 effect of modern statutes on 204 
 
 MASTER AND SERVANT, whether tenancy or license exists between 
 them 238 
 
 MERGER of precedent estate with reversion or remainder 511 
 
 MINES, nature of ownership and incidents 30 
 
 gold and silver 31 
 
 when waste to open 92 
 
 MONTH TO MONTH TENANCIES. See Landlord and Tenant, 
 Tenancies from Month to Month. 
 
 MONUMENTS vs. COURSES AND DISTANCES 769, 770,771 
 
 MOETGAGES, as affecting curtesy 212 
 
 as affecting dower 157-162 
 
 payment of principal and interest as between life tenant and re- 
 versioner or remainderman 225—227 
 
 MORTMAIN, statute of. See Uses. 
 
 N. 
 
 NAMES of grantor and grantee, errors and discrepancies 763-765 
 
 NATURAL EIGHTS, light and air, percolating and surface waters, 
 
 streams, natural support of land. See Easements 655-676 
 
 NAVIGABLE WATERS in United States 750 
 
 NAVIGABLE WATERS, rights of owner of upland 670 
 
 grant of land under water 671 
 
 NAVIGATION. See Public Rights 749-753 
 
 NEGATIVE COVENANTS. See Covenants in Equity 715-735 
 
 NECESSITY, ways of. See Ways of Necessity; Easements. 
 
 NEGLIGENCE in excavating on adjoining land 674 
 
 as between landlord and tenant. See Landlord and Tenant 291-292 
 
 as between tenant or landlord and third person 300-307 
 
 NOTICE required to terminate tenancy from year to year, from month 
 
 to month, etc 949-250 
 
 to terminate tenancy at will or by sufferance 266, 270, 371 
 
 by tenant to landlord of action affecting title 3G0 
 
Index. 849 
 
 NOTICE— Continued. Page 
 
 by subsequent purchaser of covenants enforceable in equity by 
 
 specific performance 715 
 
 constructive notice by record of instruments under recording 
 acts. See Recording of Deeds. 
 
 possession of real property, notice from 805, 806 
 
 NUISANCE, on leased property, liability. See Landlord and Tenant. 
 
 0, 
 OBSTRUCTION, adverse, as extinguishing easements. See Easemesta. 
 
 OIL, percolating, rights of property in 663 
 
 OWNERSHIP, absolute and limited 1 
 
 P. 
 PAEMOUNT TITLE, erection by. See Landlord and Tenant; Termi- 
 nation of Tenancy by. See Emblements. 
 PARTICULAR ESTATE. See Future Estates; Remainders. 
 
 PAROL contracts for easements 619 
 
 for sale of trees and other parts of land 12-16 
 
 leases. See Landlord and Tenant. 
 
 PAROL GRANT, void under statute; user thereunder is adverse 653 
 
 PARTITION, between cotenants '. 442-448 
 
 voluntary partition 443 
 
 oral partition followed by separate possession 443 
 
 , voluntary partition of estates in entirety 444 
 
 involuntary partition 445 
 
 parties to action 446 
 
 judgment in partition 448 
 
 PARTNERSHIP ESTATES 411-413 
 
 legal title in partners as tenants in common 411 
 
 conveyance to firm 411 
 
 in equity title held in trust for firm .,. 411-413 
 
 dower in partnership property 167-170, 413—413 
 
 equitable conversion of partnership property 413-413 
 
 PARTY WALLS. See Easements 676-683 
 
 PARTY WALL COVENANTS, how they run with the land 712-715 
 
 PASSIVE TRUSTS. See Trusts. 
 
 PERCOLATING WATERS, rights in. See Easements. 
 
 PERIODICAL TENANCIES 248 
 
 PERMISSIVE WASTE. See Waste. 
 
 PERPETUITIES, rule against 558-588 
 
 nature and object 558 
 
 origin and historical development 661 
 
 elements of the rule: 
 
 (a) The estate must be certain to vest within the required 
 
 period 563 
 
850 Index. 
 
 P'E'RPKTUlTlEa—Oon.titMed. Page 
 
 (b) Lives in being 565 
 
 (c) A future interest is valid if it must vest within twenty- 
 
 one years 566 
 
 (d) The period of gestation added to period of suspension 
 
 allowed 667 
 
 (e) If the future interest begins within the required limits it 
 
 is valid 667 
 
 interests aflfeoted by the rule: 
 
 (a) Executory interests 568 
 
 (b) Remainders and reversions 671 
 
 (c) Possible rights of reverter and of entry for breach of 
 
 condition 574 
 
 (d) Equitable estates 576 
 
 (e) Personal property 577 
 
 gifts to a class as affected by the rule 577 
 
 powers, under the rule 581 
 
 charitable trusts, under the rule 583 
 
 accumulations S8S 
 
 statutory changes in rule, general nature of changes, suspension 
 
 of the absolute power of alienation 589-693 
 
 suspension caused by contingent remainders 693 
 
 suspension caused by future executory interests 69S 
 
 stispension caused by powers 698 
 
 suspension due to trusts 601 
 
 common law principles apply except as expressly modified by 
 
 statute 608 
 
 possibility of undue suspension makes the future estate void. 608 
 
 liens of any two persons may be taken to measure the 
 
 suspension 609 
 
 preceding estates not violating the rule are valid — only the 
 
 offending future interest is void 609 
 
 personal property subject to rule 611 
 
 statutory changes in different states 613 
 
 PIPES, water, easements, etc 633 
 
 PERSONAL PROPERTY. See Crops, Trees, Fixtures. 
 
 PERSONAL PROPERTY under rule against perpetuities 577,611 
 
 POLL, deed. See Deeds. 
 
 POLLUTION OF WATER. See Easements; Streams; Percolating 
 
 Waters 665 
 
 POSSESSION. See Adverse Possession; Unity of. See Joint Ten- 
 ancies; Tenancies in Clommon. 
 
 POSSESSION as constituting notice of prior deed 805, 806 
 
 POSSESSION, implied covenant by landlord to give possession to 
 
 tenant 880 
 
 POSSIBILITY OF ENTRY. See Conditional Estutes; Possibility of 
 reverter. See Limitation; Estates Upon. 
 
IzroBz. 851 
 
 Page 
 
 POSTHUMOUS OHrUJRBN, remainders to 513 
 
 POWERS under rule against perpetuities 581,593 
 
 POWEBS 543-557 
 
 nature and development 543 
 
 creation and incidents of powers 647-549 
 
 execution of powers 549 
 
 revocation and eztinguishment 555 
 
 kinds of powers — general, special or limited, powers in trust or 
 
 imperative powers, discretionary, appendant and in gross S4S 
 
 PRACTICAL LOCATION OP BOXnTOARIES. See Boundaries. 
 
 PREMISES of a deed 763 
 
 PRESCRIPTION. See Easements; Creation 642-655 
 
 PRESCRIPTION, creation of highways and streets as affected by 745 
 
 PRIORITIES, among deeds. See Recording of Deeds. 
 
 PRIVITY OF ESTATE, required where covenants run with the land. 707 
 
 PROFIT A PRENDRE. See Profits. 
 
 PROFITS, appurtenant and in gross 613-615 
 
 PROPERTy, defined 1 
 
 real and personal distinguished 5-23 
 
 PUBLIC RIGHTS 731-753 
 
 highways and streets 731 
 
 rights of owner of land used as highway 732 
 
 right to hold as trespasser any person entering on and 
 using his part of highway for a purpose not included 
 
 within the public right 733 
 
 right to sue in ejectment any person inclosing part of 
 
 his land used as highway 733 
 
 right to trees, grass, minerals, etc., on his land used as 
 
 highway 733 
 
 duty of ovmer not to obstruct highway 734 
 
 right to load and unload on highway in front of premises 734 
 
 right of access to his premises as abutting owner 734 
 
 right to compensation for additional losses not included 
 within original rights of the public in highway, sewer, 
 
 water and gas mains, etc 734, 735 
 
 telegraph and telephone lines 736 
 
 horse, cable or electric cars 737 
 
 steam railroad on public streets 738 
 
 rights of abutting owners, fee in public 738-740 
 
 right of passage, and to light, air and access 738, 740 
 
 no damages for using streets for street car lines 739 
 
 changes of grade 739 
 
 right of deviation on adjoining land 740 
 
 creation of highways and streets 741-746 
 
 (a) Dedication 741-745 
 
852 IiTBEZ. 
 
 PUBLIC 'BZCrH.'m— Continued. Piige 
 
 (b) Prescription 745 
 
 (c) Eminent domain 746 
 
 extinction of higliways and streets 746-749 
 
 abandonment 746 
 
 adverse user 748 
 
 statutory proivisions 748, 749 
 
 navigation 749-752 
 
 in England confined to tidal waters 749 
 
 in United States extended to streams in fact navigable 750 
 
 title to land under public waters 751 
 
 nature of right to navigation 752 
 
 rights of fishing 753 
 
 PUR AUTRE VIE, estates 144,145 
 
 no dower in 170 
 
 PURCHASE and sale of realty. See Trusts; Constructive. 
 
 PURCHASE for value without notice, effect on trusts 396 
 
 PURCHASE MONEY MORTGAGES, dower subject to 159-162 
 
 PURCHASER FOR VALUE, what constitutes under recording acts. . 807 
 
 nominal consideration not value 807 
 
 past indebtedness not value 807 
 
 binding extension of time to pay debt is value 808 
 
 Q. 
 
 QUALIFIED ESTATES. See Limitation, Estates Upon; Conditional 
 Limitation, Estates Upon; Conditional Estates. 
 
 QUARANTINE, widow's right of 201 
 
 QUIA EMPTORES, statute of 117 
 
 QUIET ENJOYMENT, implied covenant of in leases 273 
 
 covenant of in deeds 782 
 
 QUITCLAIM DEEDS 760, 761 
 
 RACE-WAYS— easements 633 
 
 R. 
 
 RAILROADS, Steam, right to use streets aiid highways for 738 
 
 rolling stock personalty 48, 49 
 
 REAL AND PEPvSONAL PROPERTY ; distinction between 5 
 
 " REA,L " AND " PERSONAL "—origin of the terms 8 
 
 RECORD. See Recording of Deeds. 
 
 KECORDING OF DEEDS AND CONVEY.\NCES 800-817 
 
 recording acts, general purpose 800 
 
 instruments that must be recorded 801 
 
 Bubseciuent purchaser without notice, what constitutes 803 
 
 mere rumor not enough 803, 804 
 
 possession as amounting to notice 805. 808 
 
Index. 853 
 
 BECORDING OF DEEDS AND CONVEYANCES— Continued. Page 
 
 *hat constitutes purchaser for value 807 
 
 nominal consideration not value 807 
 
 past indebtedness not value 807 
 
 binding extension of time to pay a debt is value 808 
 
 value must be parted with before purchaser gets notice of 
 
 the prior deed or mortgage 809 
 
 instrument must appear in chain of title 809-812 
 
 recorded instrument must be entitled to record 812 
 
 defects in the record 813 
 
 errors of recording officer 813, 814 
 
 record is notice to subsequent purchasers or encumbrancers only, 
 
 not to the general public 814 
 
 purchaser with notice from purchaser for value without notice. . 815 
 subsequent conveyances by a purchaser with notice after first deed 
 
 has been recorded 817 
 
 subsequent liens of judgments 817 
 
 RECOVERY, common. See Deeds, at Common Law. 
 
 REDEMPTION from forfeiture for breach of condition 471 
 
 RELEASES. See Deeds 755 
 
 RELEASES OP EASEMENTS, etc 689 
 
 RELEASE OF INCHOATE DOWER 179 
 
 See Dower, Release of Inchoate Dower. 
 
 RELIEFS 109, 110 
 
 REMAINDERS AND REVERSIONS— relation of, to prior life estates 218 
 
 REMAINDERS, nature of 487 
 
 vested and contingent remainders 493 
 
 rules of construction relating thereto 495 
 
 remainders to unascertained persons 498 
 
 remainders to a class 503 
 
 remainders in the alternative and cross remainders 507 
 
 destruction of contingent remainders by destructive or ter- 
 mination of precedent life estate 610 
 
 remainders to posthumous children 513 
 
 transfer and inheritance of vested and contingent remainders... 513 
 REMAINDERS AND REVERSIONS under rule against perpetuties. 571, 592 
 
 the modern law of remainders 516-519 
 
 after life estate easement cannot be gained against by prescrip- 
 tion. See Easements 653 
 
 under rule against perpetuities 571, 593 
 
 REMOTENESS. See Perpetuities; Rule Against. 
 
 RENEWAL OF LEASE 247 
 
 KENT. 
 
 apportionment between life estate and remainder or reversion ... 21!) 
 nature of, remedies for collection, debt, assumpsit, use and occu- 
 pation 292-294 
 
854 Index. 
 
 RENT— Continued. Page 
 
 suspension and extinguishment of. See Landlord and Tenant; 
 Suspension, etc., of Rent 822-331 
 
 KEPAIKS, express covenant to make by tenant or landlord 285 
 
 implied covenant to make, by tenant 282-284 
 
 duty of life tenant to make. See Waste 98, 9& 
 
 of party walls 681, 682 
 
 right to recover or to be allowed for as between cotenants 429-432 
 
 RESERVATIONS AND EXCEPTIONS 622 
 
 RESERVATION, implied, easement created by 637 
 
 See Easements. 
 
 RESTRAINT on marriage, when illegal condition in deed or will .... 475, 476 
 on alienation, when illegal condition in deed or will 476 
 
 RESTRICTIVE COVENANTS. See Covenants Running with the 
 Land; Covenants in Equity 715-725 
 
 RESULTING TRUSTS. See Trusts. 
 
 REVERSIONS, nature and incidents 486 
 
 REVERTER, possibility of. See Limitation, Estates Upon. 
 
 REVOCATION AND EXTINGUISHMENT OF POWERS 547-549 
 
 REVOCATION OF LICENSES 727-730 
 
 RIGHTS OF ENTRY FOR BREACH OF CONDITION 457 
 
 effect of attempt to assign or convey 458 
 
 right to assign it as incident of reversion 459-460 
 
 RIGHTS OP ENTRY and of reverter under rule against perpetuities 674 
 
 RIGHT TO CONVEY, covenant of 779 
 
 RIGHT OF WAY. See Ways. 
 
 RIPARIAN RIGHTS. See Streams; Public Rights. 
 
 ROADS. See Highways; Public Rights. 
 
 ROLLING STOCK OF RAILROADS personalty 48, 49 
 
 RULE AGAINST PERPETUITIES. See Perpetuities. 
 
 RULE IN SHELLEY'S CASE. See Shelley's Case; Rule in. 
 
 RUNNING OF COVENANTS WITH LAND. See Covenants Running with 
 the Land. 
 
 S. 
 
 SALE, conditional, as affecting fixtures 66-70 
 
 SCUTAGE 109 
 
 SEALS, deeds and conveyances 763, 787-790 
 
 SEISIN AND LIVERY OF SEISIN 119, 120 
 
 conveyance by liAery of 75i 
 
 as a requisite of dower 153 
 
 as a requisite of curtesy 206 
 
 See Curtesy. 
 
 covenant of 779' 
 
 abeyance of. See Future Estates. 
 
 in fact and in law. See Dower ; Curtesy 155, 206 
 
 SERGE ANTY, grand and petty, form of tenui-e 114 
 
Index. 855 
 
 Pago 
 
 SERVIENT ESTATES. See Easements and Profits. 
 
 SERVITUDES. See Easements. 
 
 SEWERS, gas mains, etc.; right to use highways and streets for... 734,735 
 
 SHARES OF CROPS, working land for 241 
 
 SHELLEY'S CASE, rule in 520 
 
 SHIFTING USES. See Uses and Trusts 629 
 
 SHORE, rights in upland; public waters. See Public Rights. 
 
 SIGNATURE TO DEEDS 763, 787 
 
 SOCAGE TENURE 111,112 
 
 SOIL OR MINERALS severed from land 10 
 
 support of. See Easements 671-676 
 
 SPRINGING USES 529 
 
 See Perpetuities; Rule Against. 
 
 STATUTE OF FRAUDS, sale of trees, etc 12-15 
 
 leases. See Landlord and Tenant. 
 
 deeds. See Deeds and Conveyances. 
 
 STATUTE OF USES, deeds under 758, 759 
 
 effect on uses. See Uses. 
 
 STATUTORY DEEDS 760,761 
 
 STOCK IN LAND CORPORATIONS 27 
 
 STREAMS AND WATER COURSES. See Easements 663-671 
 
 STREAMS, boundaries on 772 
 
 STREETS. See Public Rights 731 
 
 SUBINFEUDATION, defined and explained 107,108 
 
 SUBSEQUENT PURCHASER without notice, what constitutes, un- 
 der recording acts. See Recording of Deeds 803-806 
 
 SUBTENANTS taking with notice of restrictive covenant enforceable 
 
 specifically in equity 722 
 
 SUFFERANCE, tenants by. See Landlord and Tenant 268-271 
 
 SUPPORT, easements of. See Easements 671-676 
 
 SUPPORT OF ADJOINING BUILDINGS, easement by implied 
 
 grant or reservation 637 
 
 SURFACE WATERS. Sea Easements 657-663 
 
 SURPLUS MONEY after foreclosure of mortgage, dower in 161 
 
 SURRENDERS, deeds 756 
 
 SURRENDER, of tenancy for years, effect on rent 331 
 
 express surrenders 332 
 
 surrender by act or operation of law 335 
 
 cases of such surrender 836-344 
 
 SURVIVORSHIP, in joint tenancies 409 
 
 in estates in entirety 414 
 
 SUSPENSION and extinguishment of rent, eviction 323 
 
 eviction by act of landlord 824 
 
 eviction by paramount title •• 828 
 
 eminent domain, tenant ousted by 329 
 
 SUSPENSION of the abstract power of alienation 589-592 
 
856 IiTDBX. 
 
 T. 
 
 Page 
 
 TACKINO of succession nsers, easements by prescsription 655 
 
 of successive adverse possessions £3<3 
 
 TAIL, ESTATES. See Fee Tail Estates. 
 
 TAXES AND ASSESSMENTS, payment of by landlord 297 
 
 TAXES, payment of by life tenant 221 
 
 contribution for between cotenants 4au 
 
 TELEGRAPH AND TELEPHONE LINES, right of pubUc to use 
 
 streets and highways for 736 
 
 TENANTS in common 409 
 
 incidents, etc. See Cotenants. 
 
 Curtesy in 213 
 
 Dower in 166, 167 
 
 TENANCIES at sufferance, nature, etc 26S 
 
 under statutes 270 
 
 TENANCIES at will, nature, etc 260 
 
 creation of 263 
 
 termination of 26C 
 
 TENANCIES from year to year, from month to month, etc 248 
 
 nature and history 24S 
 
 created by holding over 250 
 
 created by express agreement 254 
 
 arising under void lease for years 257 
 
 TENANCIES FOR YEARS. See Landlord and Tenant. 
 
 TENANCIES FOR YEARS, chattel interests in land 88. 29 
 
 right to remove fixtures 73-82 
 
 TENURE 109 
 
 knight service or military 109 
 
 reliefs 110 
 
 aids 110 
 
 wardship and marriage 110 
 
 escheat Ill 
 
 free and common socage 112 
 
 burgage tenure 113 
 
 villienage, copyhold tenure 113 
 
 grand sergeanty, petty sergeanty and frankalmoin 114 
 
 TENtrRE IN UNITED STATES 121,122 
 
 TESTAMENTARY provision in lieu of dower 191 
 
 election by widow 194 
 
 TIDAL WATERS, rights of navigation 749,750 
 
 TIMBER, what is, under law of waste. See Waste. 
 
 TITLE. See Deeds; Covenants in Deeds; Estoppel; Adverse Pouat- 
 sion; Eminent Domain, etc. 
 
 TREES, growing, real property 10 
 
 nursery trees, personalty 18, 19 
 
Indsz. 867 
 
 TSEBS-Continued. Pag, 
 
 cjianged i.u personalty by severance H 
 
 blo'wn down by storm H 
 
 cut dotrn and abandoned , 11 
 
 severed by separate sale H 
 
 Bale under statute of frauds 18-lS 
 
 removal in time specified in sale » 16 
 
 TREES AND TIMBER, when waste to cut ......^........ 90 
 
 TRESPASSERS, annexation of fixtures by 71 
 
 TRUSTEES, take fee if the trust so requires through word heirs not 
 
 used in deed 131 
 
 TRUSTS. Equitable estates after the statute of uses 374 
 
 express trusts 375, 
 
 charitable trusts, nature 378 
 
 creation of express trusts, form, etc 381 
 
 statutory changes aflfeoting express trusts 384 
 
 implied trusts; resulting and constructive 387 
 
 resulting trusts; legal title taken by one and consideration 
 
 paid by another 887, 388 
 
 statutory changes 38> 
 
 In case of failure of attempted express trust 390 
 
 conveyance without consideration 391 
 
 purchase of land by fiduciary with trust funds 392 
 
 constructive trusts 393 
 
 conveyance induced by fraud 393 
 
 conveyance to hinder, delay or defraud creditors 394 
 
 executory contract to sell real property 395 
 
 purchase for value without notice; effect on trusts 396 
 
 uses surviving the statute of uses 368-371 
 
 TEUST ESTATES under rule against perpetuities 576,601 
 
 curtesy in 211 
 
 dower in (United States) 163-166 
 
 n. 
 
 UNITIES. See Estates in Entirety; Joint Tenancies. 
 
 USE AND OCCUPATION, action for 293 
 
 USER, prescription. See Prescription. 
 
 USES, nature and origin 358 
 
 creation and incidents before the statute of uses 301 
 
 bargain and sale before statute 363 
 
 covenant to stand seised before statute 363 
 
 statute of uses, nature and purpose 367 
 
 effect of the statute; uses surviving the statute are trusts 368 
 
 springing uses 372 
 
 shifting uses 372 
 
 UNIFORM PLAN OF RESTRICTIONS. See Covenants in Equity.. 718-721 
 
858 Index. 
 
 V. 
 
 Pag« 
 
 VENDOR'S LIEN, dower subject to 160 
 
 VESTED REMAINDERS. See Remaindera. 
 
 VILLIENAGE, copyhold tenure 113 
 
 W. 
 WAIVER OF BREACH OF CONDITION. See Conditional Estates. 
 
 WARDSHIP AND MARRIAGE HO 
 
 WARRANTY, covenant of 783 
 
 deeds of 761 
 
 WASTE BETWEEN COTENANTS 436 
 
 WASTE 8ft-101 
 
 definition 86 
 
 buildings, changes and improvements 96 
 
 cultivation and use of the land 94 
 
 equitable waste •. 99 
 
 permissive waste 98 
 
 mines, quarries, etc 92 
 
 ownership of timber, buildings, etc., wrongfully severed, stranger's 
 
 acts of destruction 101 
 
 trees and timber 87 
 
 between cotenants. See Cotenants 90 
 
 WATER, property rights in 23-25 
 
 WATERS, percolating and surface. See Easementi; Streams; Pub- 
 lic Waters 657-662 
 
 WAY-GOING CROPS, tenant's right to 43 
 
 WAYS. See Easements 683-689 
 
 Set Highways and Streets. 
 
 WAYS OF NECESSITY, nature and incidents 825-627 
 
 WILD ANIMATES 33, 34 
 
 Y. 
 YEAR TO YEAR, estate from. See Tenancies from Year to Year.