isrB"W 
 
 
 (SnrnpU ?Iam ^t\\nn\ Hibraty 
 
Cornell University Library 
 KF 570.R49 
 
 A treatise on the modern law of real pro 
 
 3 1924 018 763 569 
 
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/cu31924018763569 
 
A TREATISE 
 
 ON THE 
 
 MODERN LAW OF REAL PROPERTY 
 
 AS EXPOUNDED BY OUR 
 
 Courts of Last Resort, 
 
 STATE AND FEDERAL. 
 
 By frank S. R I C E, 
 
 COUNSELLOR AT LAW. 
 Author of "Civil and Criminal Evidence" and "American Probate Law," 
 
 NEW YORK : 
 
 THE DIOSSY LAW BOOK COMPANY, 
 
 1897. 
 
COPYRIGHT, 1896, 
 
 By frank s. rice. 
 
PREFACE, 
 
 For nearly five centuries the judiciary of the EngHsh-speaking 
 race have been employed, with little intermission, in hearing 
 arguments, considering precedents, balancing effects, and reach- 
 ing conclusions regarding the law of real property. Their labors 
 have been herculean, and the stupendous volume of litigation on 
 this branch of law is something positively appalling. It would, 
 indeed, be a standing reproach to the judicial system of the civil- 
 ized world, if, after all these centilries of argument and reflection, 
 we had not reached bed-rock foundation at last for many 
 subordinate topics of this law which" have been most frequently 
 in the foreground. In the United States, we are especially 
 indebted to the phenomenal expansion of our equity jurispru- 
 dence, to which, unhampered by the manacles of precedent and 
 stare decisis, we may ascribe, in great measure, the stability and 
 certitude of our real property laws. While there are still obscuri- 
 ties to be illuminated, absurdities to be pruned away, and contra- 
 dictions to be reconciled ; while much remains to be done, yet 
 vastly more has been accomplished. If we have not succeeded in 
 coordinating all of the unruly topics into precise and epigram- 
 matic phrase, we have witnessed some remarkable achievements in 
 systematizing the law of " joint estates," " testamentary disposi- 
 tions," and " mortgage conveyances." 
 
 Indeed, topically considered, these three subjects may be 
 regarded as wholly removed from the debatable ground they 
 once occupied, and to now rest upon rules of interpretation and 
 procedure that are generally recognized by bench, bar, and com- 
 mentator alike. Such a conclusion is abundantly warranted by 
 the facts, and we have not far to go for the causes that have 
 effected such a result. The vast expansion of wealth, coupled 
 with our limitless opportunities for acquiring landed 'estates, has 
 fostered the morbid development of the legal and equitable prin- 
 ciples that underlie these subjects. And no court in any of our 
 
iv PREFACE. 
 
 jurisdictions ever passed a term without the mature consideration 
 of many cases expository of the laws that give strength and en- 
 tablature to our real property relations. The consequence has 
 been an immense volume of decision, from which equitable 
 formulas could be drawn and welded into a coherent and homo- 
 geneous system which strongly appealed to the educated intelli- 
 gence and judgment of our best equipped jurists. 
 
 Notwithstanding the great natural expansion of the subject 
 under review, it is believed that by the systematic application of 
 a few exclusionary rules that will in no wise affect its symmetrical 
 development, we can compass the entire discussion within the 
 covers of a single volume. These exclusionary rules, in their ulti- 
 mate expression, mean simply this : First, there must be no 
 protracted discussion of the settled law. Principles and their 
 applications that are beyond controversy, exception, or demur may 
 be briefly stated, a few of their supporting authorities cited, and then 
 left. " It is a great art to know when to have done," and nothing 
 is so exasperating to the modern student in this " lawless science 
 of the law '* as the constantly reiterated tendency to drone through 
 interminable reams of print in the extended discussion of a legal 
 proposition that has attained the full dignity of a settled law, 
 recognized in all our courts and by all our judges and capable of 
 epigrammatic statement. It is the controverted phases that need 
 exploiting. Illuminative comment and exposition is never out of 
 place when applied to the vexatious contradictions and intricacies 
 that so frequently present themselves in the law of real property, 
 and there is no lawyer of any repute or standing whatever, who 
 does not know that in the stress a-nd swirl of a hotly contested 
 case, his need is for authorities sustaining doubtful propositions — 
 that will present the contra view — or that will limit, distinguish 
 and even overrule the earlier adjudication. And upon the apt 
 collation and exegesis of controverted theories much of the true 
 value of a text-book depends. The debatable propositions 
 around which controversy is still surging — those that tenaciously 
 refuse to yield to assimilative and harmonious treatment — that 
 present doubts and obstacles, and obtrude a constant theme for 
 conjecture and argument — these are the ones pressing for inter- 
 pretation, and imperiously demanding the best efforts of scholar- 
 ship as to treatment and illustration. 
 
 Another rule has influenced this undertctking and made possi- 
 
PREFACE. V 
 
 ble the contraction of the subject to the space we have allotted 
 to it, and that rule reads : " portray the law as it is, and not as it 
 was or ought to be." This maniacal tendency to probe into the 
 root of things is highly commendable — in an antiquarian or a 
 scholarly recluse. But the active lawyer, with his case in court, is 
 rarely bent on poring over the law of Feoffment in the time of 
 Queen Anne, or the Shellyite controversy in the reign of Bloody 
 Mary. Conversely, he is not enthralled with Blackstone's specu- 
 lations on the advantages of Primogeniture, or that weirdly fasci- 
 nating topic of Praemunire. In other words, what the law was, or 
 what the law ought to be, is a matter of supreme indifference. 
 There is but one refrain in his ears, and it sounds like the thunder 
 of the Apocalypse. What is the law now ? 
 
 Again, we can greatly economize space by refraining from the 
 duplication of discussion in cognate topics. Take the subject of 
 waste as a fruitful instance of the effect of this observance. > It is 
 universally conceded that any real property relation that involves 
 the presence of mutual rights and joint interests has, as its invaria- 
 ble concomitant, the postulate that no one owner can imperil or 
 prejudice the rights and interests of his co-owner by any act 
 whatever in the nature of waste. Obviously, this proposition 
 applies with equal force to all the variant tenancies embraced 
 within the general scope and title of joint estates — tenants in 
 common — and all those sustaining the familiar attitude of land- 
 lord and tenant, mortgagor and mortgagee, fall within the prohi- 
 bitions of the settled rules regarding waste and its incidents. 
 Now it is very apparent that in the topical treatment of these 
 various subjects, waste may appropriately form the theme of 
 extended annotation and comment. But is it expedient or neces- 
 sary, after having given in a separate chapter a logical and discrim- 
 inating review of its nature, scope and incidents, to revamp the 
 same old arguments, restate the same restrictive laws, — cite the 
 same " formidable array of authority," and conclude with the 
 same cautionary suggestions ? True, we can inflate the volume 
 of the text — gain some applausive utterance from the " able critic " 
 for our " elaborate and scholarly treatment " — but the frigid and 
 indubitable fact remains that we have merely reiterated former 
 statements, and unconscionably padded an undertaking that at 
 best is one of great magnitude, and imperatively demands the 
 most concise statement consistent with intelligent exposition. 
 
VI PREFACE. 
 
 It is really astonishing to what extent a hearty dedication to these 
 two simple formulas can abridge and compress the subject-matter. 
 The attractions are all but irresistible to the literary enthusiasts to 
 develope side issues, bury himself in the historical ooze that is 
 everywhere around him, and trace the gradual evolution of this 
 sublime science of the law from the time of the Roman praetors, 
 and the medieval scholastics, on through the latter convulsions of 
 feudalism and the period of the common-law ascendancy, to the 
 present hour. Still others, infatuated with Sir Henry Maine and . 
 Mr. Hallam, must display their profundity and erudition in long 
 Latin excerpts from Glanville, Littleton and the late lamented Mr. 
 Coke. It is an evidence of scholarship too alluring to be successfully 
 resisted, and in Consequence, our legal text-books are quite- apt to 
 become the mere repositories of mouldy learning that only tends to 
 bewilder and exasperate. When we yearn for ancient history, feel 
 an insatiable and unstanchable longing for its assuagements and 
 benefactions, we are conceited enough to believe that we know 
 where to find them. But we are moved to remark that it should 
 not be, within the pages of a legal text-book that aims at an 
 exposition of the modern law, tributary to a great subject. 
 
 To the very flattering reception accorded to my previous efforts 
 in legal literature, the present volume is chiefly due. An author 
 easily persuades himself that the public is friendly to his efforts. 
 And when that persuasion is supplemented by a most generous and 
 even lavish patronage, it is apt to result in a partial justification 
 for future attempts. While this work, doubtless, hafe its imper- 
 fections, both of style and treatment, it is believed that it will 
 favorably compare with any work of similar compass now before 
 the public. It is submitted to the intelligent criticism of the 
 legal profession to whose indulgence the author already owes so 
 much. 
 
 Springfield, Mass., /anuary ist, 1897. 
 
 FRANK S. RICE. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 NATURE OF REAL PROPERTY. Pages 1-53. 
 Sec. I. Definition of real property. ^ 
 
 2. Land and its incidents. 
 
 3. The term real estate defined. 
 
 4. Classified as corporeal and incorporeal hereditaments. 
 
 5. Views of Mr. Digby on this classification. 
 -^6. Water and ice as real property. 
 
 -7. Heirlooms. 
 
 6. Crops and trees. 
 
 g^ Mines and minerals. 
 ' a. Coal in place, 
 b. Aerolites, 
 t. Oil and gas. 
 ^a. Water as a mineral. 
 
 10. Buildings regarded as real estate. 
 
 a. Water-mains, pipes, electric wires, frame of elevated road, etc., etc. 
 
 b. Different stories in a building may be realty. 
 
 11. Pews and tombs in churches. 
 
 12. Manure, etc., as realty. 
 
 13. Doctrine of equitable conversion examined. 
 
 a. What must appear before doctrine is applied. 
 
 14. Definition and nature of fixtures. 
 
 15.. Fixtures as between mortgagor and mortgagee, landlord and tenant. 
 
 16. Trade fixtures. 
 
 17. Removal of fixtures by tenant after expiration of term. 
 
 18. Tests by which the character is determined. 
 
 19. Effect of agreement. 
 
 CHAPTER n. 
 
 TENURE OF REAL PROPERTY. Pages 54-85. 
 Sec. 20. The term "tenure" defined. 
 
 21. Technical nature of the subject. 
 
 22. The feudal system in its relations to tenure. 
 
 a. Note on feoffment. 
 
 b. Note on the statute of guia emptores. ' 
 
 c. Views of Mr. Hallam and Mr. Pollock. 
 
 [vii] 
 
Vlll TABLE OF CONTENTS. 
 
 Sec. 23. Effects of the American Revolution on the law of tenure in this country. 
 
 24. Waning influence of feudal tenures. 
 
 25. The common law as affecting tenure. 
 
 a. Views of Judge Bouvier. 
 
 b. Of Professor Walker. 
 
 c. Of Mr. Burrill. 
 
 26. Analysis of the common-law system. 
 
 a.. How brought to this country. 
 
 b. Extent of its adoption in America. 
 
 c. Not known as a national customary law. 
 
 d. Its repellant features. 
 
 e. Great achievement of Sir William Blackstone. 
 Note on the craze of Blackstone. 
 
 f. Disintregration of early common-law methods. 
 
 27. All lands are allodial in this country. 
 
 28. Alienations under the mortmain statute. 
 2g. What law governs alienations. 
 
 30. The term title defined. 
 
 31. Discovery as affecting title. 
 
 a. Views of Chancellor Kent. 
 
 32. Indian titles abolished. 
 
 33. Classification of American estates. 
 
 CHAPTER III. 
 
 ESTATES IN FEE SIMPLE. Pages 86-116. 
 Sec. 34. Bouvier's definition of the term fee. 
 
 35. A doubt removed. 
 
 36. The doctrine of seizin examined. 
 
 37. What constitues disseizin. 
 
 38. Effect of the word heirs in a grant in fee. 
 
 39. Use of the word grant, estate, etc, and the effect of such use. 
 
 40. Legal incidents of estates in fee. 
 
 41. The principle of involuntary alienation examined. 
 
 42. Instances of involuntary alienation. 
 
 43. Who may be freeholders. 
 
 a. Incidents of corporate ownership. 
 
 b. Domicile of corporation. 
 
 c Rights of foreign corporations. 
 
 44. Federal legislation on the subject of alienage. 
 
 45. When fee is in abeyance — Views of Judge Dixon. 
 
 CHAPTER IV. 
 
 ESTATES IN FEE TAIL. Pages 117-133. 
 Sec, 46. Definition. 
 
 47. Origin and history. 
 
 48. Classification, general and special ; tail male and tail female. 
 4g. How created. 
 
TABLE OF CONTENTS. IX 
 
 Sec. 50. Incidents to a tenancy in tail. 
 
 51. Rules of construction. 
 
 52. What property Is subject to entailment. 
 
 53. Rules for barring the entail. Taltarum's case. 
 
 54. Statutory regulations on this subject. 
 
 55. Duty as to taxes, etc. 
 
 55. Estates tail will support both curtesy and dower. 
 
 57. The rule in Shelley's case. 
 
 58. Scant recognition of this estate in America. 
 
 59. Views of Chancellor Kent. 
 
 CHAPTER V. 
 
 ESTATES FOR LIFE. Pages 134-150. 
 
 Sec. 60. Definition and nature. 
 
 61. How created and classified. 
 
 62. Estates pur autre vie. 
 
 a. How created. 
 
 b. Incidents of this estate, 
 u. How determined. 
 
 63. How created by operation of law. 
 
 64. Right to emblements. 
 
 65. Right to reasonable estovers. 
 
 66. Incidents of life estates. 
 
 67. Life estates with power of disposition. 
 
 68. The doctrine of waste as applied to life tenancies. 
 
 69. " Praying in aid." 
 
 70. Rule as to taxes, incumbrances, etc. 
 
 71. Adverse possession as between life tenant and reversioner. 
 
 72. Possession of the muniments of title, 
 
 73. Termination of life estate. 
 
 74. Rule as to surrenders. 
 
 75. Value of life estate, how computed. 
 
 76. The doctrine of merger examined. 
 
 CHAPTER VI. 
 
 DOWER. Pages 150-202. 
 
 Sec. 77. Preliminary views. 
 
 78. Definition and nature. 
 
 79. Requisites at common law. 
 
 80. Doctrine of seizin examined. 
 
 81. Who may be endowed. 
 
 82. What property is subject to the dower. 
 
 83. Legal incidents of dower. 
 
 a. Subordinate to vendor's lien. 
 
 84. While inchoate it is regarded as a vested right. 
 
 85. Lex loci governs. 
 
X TABLE OF CONTENTS. 
 
 Sbc. 86. How barred, released or extinguished. 
 
 a. By express agreement. 
 
 b. By equitable estoppel. 
 
 c. By joint conveyance. 
 
 d. By acceptance of testamentary provision, 
 c. By divorce, adultery, etc. 
 
 f. By proceedings in the nature of eminent domain. 
 87. Doctrine of election examined. 
 83. Widow entitled to know the facts before being bound by an election. 
 
 89. Rules for estimating the value of the dower right. 
 
 90. Assignment of dower, 
 
 91. Outline of the method for the admeasurement of dower. 
 
 92. The incident of quarantine. 
 
 93. Typical legislation on the subject. 
 
 CHAPTER VII. 
 
 JOINTURE. Pages 203-215. 
 
 Sec. 94, The term defined. 
 
 95. Requisites of. 
 
 96. Incidents of jointure. 
 
 97. Distinction between legal and equitable jointure. 
 
 98. No set form of words necessary to create. 
 
 99. The settlement must not impair the rights of creditors. 
 100. Marriage settlements favored in the law. 
 
 loi. Review of the authorities on ante-nuptial settlements. 
 
 CHAPTER VIII. 
 
 ESTATES BY CURTESY. Pages 216-235. 
 
 Sec. 102. Origin and history. 
 
 (Note on civil law.) 
 
 103. Definition and nature. 
 
 104. Requisites of this estate. 
 
 105. How far recognized in this country. 
 
 106. When the right becomes initiate. 
 
 107. Rule as to seizin. 
 
 108. Birth of living issue. 
 
 109. Regarded as a legal estate, 
 no. What property is subject to. 
 
 111. Of curtesy in a determinable fee. 
 
 112. Alienage as affecting the right or curtesy. 
 
 113. Eflfects of enabling acts on curtesy. 
 
 a. Views of Mr. Justice Miller. 
 
 114. Not favored by our courts. 
 
 115. How the right may be barred or lost. 
 
 116. Mode of valuing an inchoate right of curtesy. 
 
 117. Typical legislation on the subject. 
 
TABLE OF CONTENTS. XI 
 
 CHAPTER IX. 
 
 OF ESTATES LESS THAN FREEHOLD. Pages 236-363. 
 
 Title I. Estates for years. 
 
 II, Estates at will or at sufferance — tenancies from year to year. 
 
 TITLE I. ESTATES FOR YEARS AND HEREIN. 
 Art. I. Of their Definition, Nature and Incidents. 
 Sec. 118. Preliminary — the conventional relation of landlord and tenant. 
 Note on tenant and terre tenant. 
 
 119. What is an estate for years. 
 
 120. How created. 
 
 121. Tenant for years has no seizin. 
 
 122. May commence in fuluro. 
 
 a. " Interesse termini." 
 
 123. Regarded in law as a chattel real. 
 
 124. Legal incidents of the estate. 
 
 Art. II. Of Leases and the Conventional Relation of Landlord and Tenant, 
 
 Sec. 125. Definition, form and nature of a lease. 
 
 a. Definition. 
 
 b. Operative words. 
 
 c. Form of lease. 
 
 d. Parol lease. 
 
 e. Requisites. 
 
 126. Distinction between a present lease and an agreement to lease. 
 
 127. What may be the subject of a lease. 
 
 a. Smith v. Marriable examined. 
 
 b. Lease of separate floors. 
 
 c. Demise of lodgings. 
 
 128. Delivery and acceptance of a lease. 
 
 I2g. Parties to a lease — their mutual obligation. 
 
 a. Rights and duties of landlord. 
 
 b. Rights and duties of tenant. 
 
 c. Cannot dispute the title of his landlord, 
 
 130. Beginning of a lease — length of term. 
 
 131. Covenants and conditions. 
 
 132. Improvements and repairs. 
 
 133. Assignment and subletting. 
 
 a. Distinction between assignment and subletting. 
 
 134. Termination of leases — how effected. 
 
 a. Destruction of premises by fire, 
 b.- By afflux of time. 
 
 c. By condemnation of the property under eminent domain. 
 
 d. Surrender, merger and forfeiture. 
 
 135. Effect of holding over. 
 
 136. Landlord's remedies on termination of lease. 
 
 137. Notice to quit. 
 
xii TABLE OF CONTENTS. 
 
 Sec. 138. Perpetual leases. 
 
 139. Statute of frauds as affecting leases. 
 
 140. Principles of eviction examined. 
 
 a. Tiie term defined. 
 
 b. Classified — active or constructive, total or partial. 
 
 c. What constitutes an eviction — special acts of. 
 
 d. Summary of the New Yorli adjudications. 
 
 e. Partial evictions under title paramount and eminent domain. 
 
 f. Effect of. 
 
 g. Remedies on covenant, 
 h. Measure of damages. 
 
 141. Letting " on shares." 
 
 142. Leasing land on shares. 
 
 143. Judicial construction of leases. 
 
 Art. III. Rents. 
 
 Sec. 144. Preliminary. 
 
 145. The term rent defined. 
 
 146. Kinds of rent. 
 
 147. When payable. 
 
 148. Landlord's security for the payment of rent. 
 
 149. Landlord's remedies on failure of payment. 
 
 a. Distraining property to secure rent. 
 
 150. Apportionment of rent. 
 
 CHAPTER IX — {Continued^, 
 
 ESTATES LESS THAN FREEHOLD. 
 
 TITLE n. Estates at will, at sufferance or from year to year. 
 
 Sec. 151. Definition and nature of estates at will. 
 
 152. Estates at sufferance. 
 
 153. Estates from year to year. 
 
 154. How created. 
 
 155. Incidents of. 
 
 156. Judicial hostility to this estate. 
 
 157. How determined. 
 
 158. Notice to quit. 
 
 159. Distinction between an estate at will and an estate at sufferance. 
 
 CHAPTER X. 
 WASTE. Pages 364-376. 
 
 Sec. 160. Definition and nature. 
 
 161. Common-law rules repudiated. 
 
 162. Waste either voluntary or permissive. 
 
 163. Never attributable to one holding the absolute fee. 
 
 164. Vis major, or act of God. 
 
TABLE OF CONTENTS. Xlll 
 
 Sec. 165. Instances of voluntary waste. 
 
 a. Cutting timber. 
 
 b. Opening mines. 
 
 c. Improper tillage. 
 
 166. Rule as to tenant at will. 
 
 167. Remedy by action — who may be plaintiffs. 
 
 168. Injunction relief. 
 
 169. Resume of the rules governing the subject of waste. 
 
 CHAPTER XI. 
 FRANCHISES AND CHARTER RIGHTS. Pages 377-403. 
 
 Sec. 170. Nature and definition. 
 
 171. Distinction between " charter" and " franchise." 
 
 a. Views of Mr. Justice Orton in a recent case. 
 
 172. What passes with the grant of franchise. 
 
 173. Construed in favor of the public, not in favor of the grantee. 
 
 174. Regarded as an irrevocable contract. 
 
 175. Synoptical review of Dartmouth College v. Woodward. 
 
 176. The power to repeal examined. 
 
 177. Lease or sale of franchise generally void. 
 
 178. Railway franchises from a judicial point of view. 
 
 179. Subject to the right of eminent domain. 
 
 180. How lost or forfeited. 
 
 a. Views of Justice Finch in a celebrated case. 
 
 CHAPTER XII. 
 EASEMENTS AND SERVITUDES. Pages 404-516. 
 
 Sec. iSi. Preliminarj-. 
 
 182. Definition and nature. 
 
 a. List of the principal easements. 
 
 183. Easements that run with the land. 
 
 184. Of rights appurtenant and in gross. 
 
 185. Natural easements and servitudes. 
 
 186. Implied easements. 
 
 187. Easements regarded as an incumbrance. 
 
 188. Easements granted by mortgagor before foreclosure. 
 
 189. Easements granted by way of reservation. 
 
 190. Evidence of the right. 
 
 191. By grant or deed. 
 
 192. By prescription. 
 
 193. By dedication. 
 
 a. The burden of proof. 
 
 b. Acceptance. ■ 
 
 c. Set form of words unnecessary. 
 
 d. Effect of platting. 
 
 e. A distinction noted. 
 
 f. Common-law dedications. 
 
XIV TABLE OF CONTENTS. 
 
 Sec. 194. Rule of strict necessity examined. 
 
 195. EflFect of dividing estates subject to. 
 
 196. Easements and servitudes of w^. 
 
 ii. The term "right of way" deined. 
 
 b. How acquired. 
 
 c. Rule as to street railways. 
 
 d. Of ways of necessity. 
 
 e. Miscellaneous authorities on the subject. 
 
 197. Easements of light and air. 
 
 a. The English doctrine considered. 
 
 b. The English doctrine repudiated in this country. 
 
 c. Right to light and air regarded as an easement. 
 
 d. Extended review of the elevated railway cases. 
 
 198. Of lateral and subjacent support. 
 
 a. Preliminary. 
 
 b. Views of eminent writers. 
 
 c. Quotations from a recent case. 
 
 d. Comments on this case. 
 
 c. Lansala v. Holbrook reviewed. 
 
 199. Party-walls. 
 
 a. Definition and nature. 
 
 200. Division fences. 
 
 a. Generally regulated by statute. 
 
 b. Railroad fences. 
 
 c. Barb wire fences. 
 
 d. Rules of the Massachusetts court regulating this subject. 
 
 e. When the doctrine of prescription applies. 
 
 201. Servitude of drip and drain. 
 
 202. Abandonment of easements. 
 
 203. The term license defined. 
 
 a. Its revocable and irrevocable features. 
 
 b. Right of the licensee. 
 
 c. Of parol licenses. 
 
 d. Who may grant. 
 
 e. Distinction between an easement and a license. 
 
 204. How lost or extinguished. 
 
 CHAPTER XIII. 
 
 USES AND TRUSTS. Pages 517-653. 
 
 Sec. 205. Nature and definition of a use. 
 
 206. Historical resume. 
 
 Note. Full text of the Statute of Uses, 27 Hen. VHI. c. lO. 
 
 207. Comments upon the Statute of Uses, 
 
 208. Doubts as to its introduction in this country. 
 
 209. Peculiar vices of the Statute of Uses. 
 
 210. Distinction between "uses" and "trusts." 
 
 211. New York system examined. 
 
 212. The doctrine of uses and trusts in the United States. 
 
TABLE OF CONTENTS. XV 
 
 Sec. 213. What is a trust? 
 
 214. How created. 
 
 a. Statutory regulations in California. 
 
 b. By precatory expressions. 
 
 c. Great caution in accepting precatory trusts. 
 
 215. For what purposes created. 
 
 216. Parties to a trust. 
 
 a-. Corporations as trustees. 
 
 b. Who may be cestuis que trust. 
 
 c. Quantity of interest held by trustee. 
 
 d. The beneficiary must be certain. 
 
 e. Review of the celebrated Til den case. 
 
 217. Trustees — their duties and liabilities. 
 
 a. Views of Story, Sugden, Walworth and Kent. 
 
 b. Fraudulent acts of trustees — -how established. 
 
 c. Rule as to preservation and care of trust property. 
 
 d. The measure of responsibility imposed. 
 
 e. Trustees are not guarantors of their investments. 
 
 f. Liability of co-trustees. 
 
 g. California code provisions on the subject. 
 h. Compensation of trustees. 
 
 i. Of trustees ex-maleficio. 
 
 218. Statute of Limitations and its effect upon trusts. 
 2lg. The declaration of trust. 
 
 220. Incidents of trust estates. 
 
 221. Classification of trusts. 
 
 a. Express trusts. 
 
 b. Executory and executed trusts. 
 
 c. Of so-called illegal trusts. 
 
 d. Implied trusts. 
 
 e. Resulting trusts. 
 
 f. Constructive trusts. 
 
 g. Voluntary trusts. 
 
 222. Charitable trusts. 
 
 a. The statute of 43 Elizabeth. 
 
 b. What is a charitable trust ? 
 
 c. Said to be favored in law. 
 
 d. Distinction between charitable and private trusts. 
 
 e. Judicial construction of charitable trusts. 
 i. Not forfeited by non-user. 
 
 g. Rules as to religious associations. 
 
 h. When charitable gifts will not be upheld. 
 
 i. Doctrine of charitable uses rejected in certain States. 
 
 j. The doctrine of cy fres examined. 
 
 223. The doctrine of spendthrift trusts considered. 
 
 a. When trust funds are beyond the reach of creditors. 
 
 Note from Professor Walker. 
 
 b. Partial review of the Pennsylvania case. 
 
 c. Attitude of the New York Court of Appeals. 
 
XVI TABLE OF CONTENTS. 
 
 Sec. 223. d. Views of Chief Justice Morton in Bank v. Adams, 
 
 c. Of Chief Justice Agnew in Overman's Appeal. 
 
 f. Of Mr. Perry in his work on Trusts. 
 
 g. Of Mr. Justice Miller in the great case of Nichols v. Eaton. 
 h. Comments. 
 
 224. Parol evidence to establish a resulting trust. 
 
 225. Trusts for married women. 
 
 226. Termination of the trust. 
 
 CHAPTER XIV. 
 
 REMAINDERS. Pages 654-716. 
 Sec. 227. Preliminary! 
 
 228. Definition and nature. 
 
 229. Classified as "vested," "contingent," and "cross." 
 
 230. Conditional limitations. 
 
 231. Of vested remainders. 
 
 232. Of contingent remainders. 
 
 232. Different kinds of contingent remainders. 
 
 234. Modern legislation not favorable to contingent remainders. 
 
 235. Partiality of the courts for vested remainders. 
 
 236. Is a freehold estate necessary to support a freehold contingent re. 
 
 mainder ? 
 
 237. Conveyances of property in expectancy. 
 
 238. Cross remainders. 
 
 239. Judicial construction of remainders. 
 
 240. Effect of power of sale annexed to a life estate. 
 
 241. Remainders, how destroyed. 
 
 242. Rule as to remoteness. 
 
 243. Limitations. 
 
 244. Merger. 
 
 245. Rare merits of the New York codification. 
 
 246. Judicial comment on this codification. 
 
 247. Origin and history of the rule in Shelley's case. 
 
 a. Theory of the rule. 
 
 b. Analysis of Mr. Hayes. 
 
 c. Of Chief Justice Gibson. 
 
 d. Of Chancellor Kent. 
 
 e. Of Mr. Preston. 
 
 f. Repudiation of the rule in several States. 
 
 g. Comments on the rule. 
 
 248. Future or contingent uses. 
 
 249. Of shifting and springing uses, 
 
 250. Suggestions from Prof. Walker. 
 
 ARTICLE II — Creation and Division of Estates in Expectancy. 
 
 Sec. 25. Estates in possession and expectancy. 
 
 26. Enumeration of estates in expectancy. 
 
 27. Definition of future estates. 
 
TABLE OF CONTENTS. XVU 
 
 Sec. 28. Definition of remainder. 
 
 29. Definition of reversion. 
 
 30. When future estates are vested ; when contingent. 
 
 31. Power of appointment not to prevent vesting. 
 
 32. Suspension of power of alienation. 
 
 33. Limitation of successive estates for life. 
 
 34. Remainders on estates for life to third person. 
 
 35. When remainder to take effect if estate be for lives of more than two 
 
 persons. 
 
 36. Contingent remainder on term of years. 
 
 37. Estate for life as remainder on term of years. 
 
 38. Meaning of heirs and issue in certain remainders. 
 
 39. Limitations of chattels real. 
 
 40. Creation of future and contingent estates. 
 
 41. Future estates in the alternative. 
 
 42. Future estates valid though contingency improbable. 
 
 43. Conditional limitations. 
 
 44. When heirs of life tenants take as purchasers. 
 
 45. When remainder not limited on contingency defeating precedent estate 
 
 takes effect. 
 
 46. Posthumous children. 
 
 47. When expectant estates are defeated. 
 
 48. Effect on valid remainders of determination of precedent estate before 
 
 contingency. 
 
 49. Qualities of expectant estates. 
 
 50. Disposition of rents and profits. 
 
 51. Accumulations. 
 
 52. Anticipation of directed accumulation. 
 
 53. Undisposed of profits. 
 
 54. When expectant estates are deemed created. 
 
 55. Estates in severalty, joint tenancy and in common. 
 
 56. When estates in common ; when in joint tenancy. 
 
 CHAPTER XV. 
 REVERSIONS. Pages 717-727. 
 Sec. 251. The term defined. 
 
 252. Views of Chancellor Kent. 
 
 253. Distinction between reversion and reverter. 
 
 254. The phrase " possibility of reverter" examined. 
 
 255. Incidents of reversions. 
 
 256. Sale of reversionary interest. 
 
 257. Incumbrance of reversions. 
 
 258. Reversions in land held by corporations. 
 
 CHAPTER XVI. 
 POWERS. Pages 728-740. 
 Sec. 259. Powers of attorney. 
 
 260. Construction of powers, 
 b 
 
xvm TABLE OF CONTENTS. 
 
 Nature and Scope of Powers as Regulated by Chapter 
 XLVI OF THE Laws of New York of 1896. 
 
 ;Skc. III. Definition of a power. 
 
 112. Definitions of grantor, grantee. 
 
 113. Division of powers. 
 
 114. General power. 
 
 115. Specal power. 
 
 116. Beneficial power. 
 
 117. General power in trust. 
 
 118. Special power in trust. 
 
 119. Capacity to grant a power. 
 
 120. How power may be granted. 
 
 121. Capacity to take and execute a power. 
 
 122. Capacity of married woman to take power. 
 
 123. Capacity to take a special and beneficial power. 
 
 124. Reservation of a power. 
 
 125. Effect of power to revoke. 
 
 126. Power to sell in a mortgage. 
 
 127. When power is a lien. 
 
 128. When power is irrevocable. 
 
 I2g. When estate for life or years is changed into a fee. 
 
 130. Certain powers to create a fee. 
 
 131. When grantee of power has absolute fee. 
 
 132. Effect of power to devise in certain cases. 
 
 133. When power of disposition absolute. 
 
 134. Power subject to condition. 
 
 135. Power of life tenant to make leases. 
 
 136. Effect of mortgage by grantee. 
 
 137. When a trust power is imperative. 
 
 138. Distribution when more than one beneficiary. 
 
 139. Beneficial power subject to creditors. 
 
 140. Execution of power on death of trustee. 
 
 141. When power devolves on court. 
 
 142. When creditors may compel execution of trust power. 
 
 143. Defective execution of trust power. 
 
 144. Effect of insolvent assignment. 
 
 145. How power must be executed. 
 
 146. Executed by survivors. 
 
 147. Execution of power to dispose by devise. 
 
 148. Execution of power to dispose by grant. 
 
 149. When direction by grantor does not render power void. 
 
 150. When directions by grantor need not be followed. 
 
 151. Nominal conditions may be disregarded. 
 
 152. Intent of grantor to be observed. 
 
 153. Consent of grantor or third person to execution of power. 
 T54. When all must consent. 
 
 155. Omission to recite power. 
 
 156. When devise operates as an execution of the power. 
 
TABLE OF CONTENTS. XIX 
 
 Sec. 158. Computation of term of suspension. 
 
 159. Capacity to take under a power. 
 
 160. Purchaser under defective execution. 
 
 161. Instrument affected by fraud. 
 
 CHAPTER XVII. 
 EXECUTORY DEVISES. Pages 741-754- 
 
 Sec. 261. The term defined. 
 
 262. Origin and history. 
 
 a. Note from Chancellor Kent. 
 
 b. From Professor Walker. 
 
 263. Two kinds of executory devises. 
 
 264. Distinction between executory devises and vested remainders. 
 
 265. Not favored by our courts. 
 
 266. Their tendency is to create a perpetuity 
 
 267. Construction and interpretation. 
 
 268. Note on the construction of wills. 
 
 269. The phrase "dying without issue" explained. 
 
 CHAPTER XVIII. 
 PERPETUITIES. Pages 755-764. 
 
 Sec. 270. Definition and nature. 
 
 271. Development \)f the doctrine. 
 
 a. Views of Mr. Jarman. 
 272 Hostility of the modern law. 
 
 273. Not applied to charitable trusts. 
 
 274. Judicial construction. 
 
 275. Tests applied. 
 
 276. Thellusson v. Woodford considered. 
 
 277. Statutory phases on the subject. 
 
 CHAPTER XIX. 
 ESTATES UPON CONDITION. Pages 765-788. 
 
 Sec. 278. Nature and definition. 
 
 279. Kinds of condition. 
 
 280. How created. 
 
 281. When conditions must be annexed. 
 
 282. Conditions not favored. 
 
 283. What conditions are repugnant to the estate granted. 
 
 284. Distinction between a condition precedent and a condition subsequent. 
 
 a. Partial review of the authorities. 
 
 285. Invalid or void conditions. 
 
 286. Time of performance. 
 
 287. Rules relating to conditions. 
 
XX TABLE OF CONTENTS. 
 
 Sec. 288. To what estates conditions are annexed. 
 
 289. Distinction between estates upon limitation and conditional limitations. 
 
 290. Distinction between a condition and a limitation. 
 
 291. Who may enter for breach of condition subsequent. 
 
 292. Rule against perpetuities does not affect. 
 
 CHAPTER XX. 
 
 MORTGAGES. Pages 789-815. 
 
 Sec. 293. Preliminary remarks. 
 
 294. Nature and definition. 
 
 a. Distinction between a mortgage and a conditional sale. 
 
 b. Regarded as a conveyance. 
 
 c. Trust deeds in the nature of a mortgage. 
 
 d. Absolute deeds construed as mortgages. 
 
 e. Competency of evidence to establish. 
 
 295. Objects of a mortgage. 
 
 296. Classified as legal and equitable — Welsh mortgages obsolete. 
 
 a. Vendor's lien for purchase price. 
 
 297. Essential elements. 
 
 a. No precise form required — Rule as to acknowledgment and 
 
 sealing. 
 
 b. The defeasance clause examined, 
 
 298. Covenants and their construction. 
 
 a. Agreement that the whole sum shall become due. 
 
 b. In default of payment mortgagee to have power to sell. 
 
 c. Mortgagor to keep buildings insured. 
 
 d. Mortgagor to give further assurance of title. 
 
 e. Covenants to bind representatives of grantor and mortgagor, and 
 
 inure to the benefit of whom ? 
 
 299. What property may be mortgaged. 
 
 a. Rule as to after-acquired property. 
 
 300. Parties to a mortgage. 
 
 301. Description of mortgaged premises. 
 
 302. Fixtures as between mortgagor and mortgagee. 
 
 303. Validity of the debt secured. 
 
 304. Mortgage for future advances. 
 
 305. Material alterations. 
 
 306. Reformation of mortgages. 
 
 307. Execution, delivery, acceptance and recording. 
 
 308. Rights of mortgagee in possession. 
 
 309. Liability of the grantee of mortgaged premises. 
 
 310. Junior encumbrancers and the principles of subrogation. 
 
 a. Volunteers cannot invoke the doctrine. 
 
 311. Merger and its incidents. 
 
 a. Where the intention is not expressed. 
 
 312. Assignment of mortgages. 
 
 313. The equity of redemption and its incidents. 
 
 314. Extinguishment aTid discharge. 
 
TABLE OF CONTENTS. XXI 
 
 Sec. 315. Foreclosure and its incidents. 
 
 a. Preliminary note. 
 
 b. The term foreclosure defined. 
 
 c. Largely regulated by statute. 
 
 d. The rule lis pendens. 
 
 e. The final decree of sale. 
 
 f. The doctrine of relation. 
 
 g. Redemption rights. 
 
 h. Rule as to surplus moneys. 
 
 CHAPTER XXI. 
 MECHANICS' LIENS. Pages 816-820. 
 
 Sec. 316. Preliminary note ; nature and object. 
 
 317. Such liens are the creation of statute; unicnown to the common law; 
 
 liberally construed. 
 
 318. Rule as to filing. 
 
 319. Cannot be assigned except when. 
 
 320. Extent of the lien. 
 
 321. Rule as to priority of encumbrances 
 
 322. When lien attaches.- 
 
 323. The remedy. 
 
 324. Construction of similar statutes. 
 
 CHAPTER XXn. 
 TITLE BY DESCENT. Pages 821-828 
 
 Sec. 325. Definition and nature. 
 
 326. Object of the statutes of distributions. 
 
 327. Local laws govern the descent of real property. 
 
 328. Who may inherit — views of Professor Walker. 
 
 329. Can a parricide inherit — an extreme case cited. 
 
 330. Rule as to bastards. 
 
 a. Review of the celebrated Miller case. 
 
 331. Legal status of an adopted child. 
 
 332. Advancements. 
 
 a. How adjusted. 
 
 CHAPTER XXni. 
 TITLE BY PURCHASE. Pages 829-914. 
 Art. I. Limitation and Adverse Posesssion 
 Sec. 333. Nature and scop of title by prescription. 
 
 334. Founded on public policy. 
 
 335. The Statute of Limitations in its relations to adverse possession. 
 
 a. Saving clauses. 
 
 336. The rule as to intention stated. 
 
 337. Presumptions arising from lapse of time and notorious possession. 
 
XXU TABLE OF CONTENTS. 
 
 Sec. 338. Actual residence not necessary, but occupancy must be open and 
 notorious. 
 
 339. Time required to perfect the title. 
 
 340. Cannot affect title of the government. 
 
 341. Continuity and privity of possession required. 
 
 342. Constructive adverse possession. 
 
 343. The doctrine of "tacking."' 
 
 344. What evidentiary facts are pertinent. 
 
 345. What constitutes color of title. 
 
 a. Not necessarily found on a written instrument. 
 
 b. Generally a question of law for the court to decide. 
 
 TITLE BY PURCHASE. —(Cff«riK«^</.) 
 Art. II. Estoppel. 
 Sec. 346. Nature and scope of the doctrine. 
 
 347. Office of estoppel. 
 
 348. Foundation of the rule. 
 
 349. Estoppel in pais — uses of. 
 
 350 EfTects of declaration or admissions. 
 
 351. Silence, when fatal. 
 
 352. The element of fraud considered. 
 
 353. Not applied to parties under disability. 
 
 TITLE BY PURCHASE. — (Continued.) 
 Art. III. Eminent Domain. 
 Sec. 354. Definition and nature. 
 
 355. Carefully guarded and strictly construed. 
 
 356. Due process of law. 
 
 357. No absolute right to trial by jury. 
 
 35B. Notice is implied in the phrase " due process of law." 
 
 359. Scope of the power. 
 
 360. What constitutes taking. 
 
 361. The mode of payment. 
 
 362. Evidence of value in condemnation proceedings. 
 
 TITLE BY PURCHASE.— (Co«^j««^</.) 
 Art. IV. Execution. 
 Sec. 363. Controlled by statutory enactments. 
 
 364. Outline of the proceedings to perfect title by execution. 
 
 365. Rights of purchaser. 
 
 366. Title becomes absolute on the issuance of the deed. 
 
 367. Delinquent taxes — execution to satisf)'. 
 
 a. What are taxes ? 
 
 b. Taxation for private purposes void, 
 t. Views of John Stuart Mill. 
 
 d. Taxes may become charge upon realty. 
 
 e. Execution must rigidly comply with the law. 
 
 f. Purchaser of defective title usually remediless. 
 
TABLE OF CONTENTS. XXIB' 
 
 Sec. 367, g. Tax deeds are evidence of what ? 
 h. Typical legislation on the subject, 
 i. All formalities must be cotnplied with, 
 j. Correction of tax deeds, 
 k. The right to redeem. 
 
 TITLE BY PU RCH AS'E —{Canlinued.) 
 Art. V, Accretion and Allu\/ion. 
 
 TITLE BY PURCHASE — (C»»rf««^</.) 
 Art VI. Escheat — Confiscation. 
 
 TITLE BY PURCHASE — (a>»^j»»,ri^.) 
 Art. VII. Occupancy. 
 
 TITLE BY PURCHASE— (C(!«rt»Kfrf.) 
 Art. VIII. Public Grant. 
 Sec. 368. Nature and scope of pre-emption rights. 
 
 369. Notice of claim must be filed. 
 
 370. What lands are subject to pre-emption. 
 
 371. What constitutes entry. 
 
 a. When it takes effect, 
 
 372. What is " patent for land." 
 
 373. Certificate of entry and receiver's receipt. 
 
 374. When pre-emption rights become vested interest. 
 
 375. Patent may be vacated for fraud. 
 
 376. Liberal policy of the government respecting public domain. 
 
 TITLE BY PURCHASE — (Cff»^j««,?ar.) 
 A rt IX. Private grants — deeds. 
 Sec. 377. Definition and nature. 
 
 378. Formal parts and general requisites. 
 
 379. Efiect of grant or mortgage of real property adversely possessed, 
 
 380. Consideration. 
 
 a. Parol evidence to contradict consideration expressed. 
 
 381. Sealing. 
 
 382. Rules as to acknowledgments. 
 
 383. What passes. 
 
 384. Delivery and its incidents. 
 
 a. Possession and record evidence of delivery and acceptance. 
 
 b. Intention largely governs the question of delivery. 
 
 c. Delivery in escrow. 
 3S5. Description of the premises. 
 
 a. General rule of construction. 
 
 b. Not void for uncertainty, unless. 
 
 c. When map or plat will govern the description. 
 
 d. Monuments conrlol courses and distances. 
 
 e. Ambigiuties removed by evidence aliunde. 
 
Xxiv TABLE OF CONTENTS. 
 
 Sec. 386. Judicial construction. 
 
 a. When deed construed to be a mortgage. 
 
 387. Reformation, cancellation, and surrender of deeds. 
 
 388. Nature and scope of quit-claim deeds. 
 
 a. No longer discredited in New York. 
 
 b. U. S. Supreme Court repudiates its doctrine concerning them. 
 
 389. Recording and its incidents. 
 
 a. Policy of the recording law. 
 3go. Nature and scope of covenants. 
 
 a. If against public policy, void. 
 
 b. Five covenants for title. 
 
 c. Collateral warranties discredited. 
 
 d. Construction of covenants in grants of freehold interest. 
 c. Seizin. 
 
 f. Quiet enjoyment. 
 
 g. Freedom from encumbrances, 
 h. Further assurance. 
 
 i. Warranty of title. 
 
 j. Grantor has not encumbered. 
 
 1. Of covenants that run with the land. 
 
 391. Deed-poll. 
 
 392. Fraudulent conveyance. 
 
 a. What fraud creates, justice will destroy — not true that fraud 
 
 never can be presumed. 
 
 b. The statute' of 13 Elizabeth. 
 
 c. Comments of Mr. May. 
 
 d. Doctrine of Twyne's case considered. 
 
 e. Direct proof of fraud unnecessary. 
 
 f. Indications of fraudulent transfer. 
 
 g. No length of time can purge a frand. 
 
 h. Distinction between "void" and "voidable." 
 
 i. Fraudulent intent a question of fact. 
 
 j. Debtor may prefer one creditor over another. 
 
 393. The Statute of Frauds in its relation to conveyances. 
 
 a. Extract from the fourth section. 
 
 b. Contracts within the statute not void but voidable. 
 I,. Does not apply to judicial sales. 
 
 d. The doctrine of part performance — views of Mr. Justice Earl. 
 
 c. Analysis of the " memorandum clause.'' 
 
 f. Parol evidence not admissible to vary the terms of a written 
 
 instrument. 
 
 g. Object of the last rule. 
 
 h. Relaxed in case of fraud or mistake. 
 i. Three celebrated cases. 
 
 TITLE BY PURCHASE- (Continued.) 
 Art. X. Devise or Will. 
 Sec. 394. What is a devise ? 
 
 395. The term " will " defined. 
 
TABLE OF CONTENTS. XXV 
 
 Sec. 396. The five essentials o( a will as stated by Judge Bouvler. 
 3g7. Who may make a will. 
 
 398. Who may be devisees. 
 
 399. Is the word " heirs " necessary to pass a fee ? 
 
 400. Construction and interpretation of wills. 
 
 a. Views of Mr. Jarman. 
 
 b. Of Baron Parke. 
 
 t. Of Vice-Chancellor Wigram. 
 
 401. Codicils and their significance. 
 
 a. Operate as a republication of the last will. 
 
 402. Revocation — how eflFected. 
 
 a. By subsequent marriage and birth of child. 
 
 403. Lapsed devises. 
 
 404. Nuncupative wills. 
 
 405. Probate procedure. 
 
 CHAPTER XXIV. 
 
 JOINT ESTATES. Pages 915-961. 
 Art. I. Estates in common — tenancies in common. 
 Sec. 406. Definition and nature, 
 
 a. Tenants in common may acquire their estate either by descent or 
 purchase. 
 
 407. Incidents of tenancies in common. 
 
 408. One tenant cannot convey a distinct parcel of the land, 
 
 409. Dissent from the view last stated. 
 
 410. Tenants in possession cannot assail the common title. 
 
 a. Effects of purchase of an outstanding tax title by a co-tenant. 
 
 b. Co-tenant purchasing tax title regarded as a trustee for his asso- 
 
 ciates. 
 
 c. Purchase of outstanding title by co-tenant inures to common 
 
 benefit. 
 
 411. Possession of one tenant is the possession of all, unless. 
 
 a. Principles of disseizin examined. 
 
 b. What acts constitute a disseizin. 
 
 412. Contribution between co-tenants. 
 
 413. Rules as to betterments — statement of Mr. Anderson — doctrine of 
 
 Green v. Putnam. 
 
 414. Accounting between co-tenants. 
 
 415. Partnership estates. 
 
 416. Incidents of the partnership relation. 
 
 a. Views of Justice Mitchell. 
 
 417. Partition and its incidents. 
 
 a. Objects of a partition suit. 
 
 b. Regarded as an absolute right. 
 
 c. Effect on dower. 
 
 d. Allowance for improvements and betterments. 
 
 e. Owelty defined. 
 
 f. Parol partition. 
 
XXVI TABLE OF CONTENTS. 
 
 JOINT F.ST:A.TZS~ (Continued.) 
 Art. 2. Joint tenancy — Copa?cenary — community property. 
 
 Sec. 418. Definition and nature. 
 
 419. Distinction between joint and several estates. 
 
 420. Survivorship the distinguishing attribute of joint tenancy. 
 
 421. Joint tenancies not favored — flickering to extinction. 
 
 422. How severed — by the construction of its constituent unities. 
 
 423. Estates in coparcenary. 
 
 424. Community property and its incidents. 
 
 a. Nevada statutory provisions relating to. 
 
 JOINT ESTATES — (Co»^!K««a'.) 
 Art. 3. Homestead exemptions. 
 
 Sec. 425. Nature of homestead estates — resemble joint tenancies. 
 
 426. Objects of the statutes relating to. 
 
 427. Characteristics of. 
 
 428. Rule in case of double house. 
 
 429. What necessary to create. 
 
 430. What constitutes a family. 
 
 431. Will an estate in severalty support the right? 
 
 432. How construed. 
 
 433. Homestead rights, how alienated. 
 
 434. Effects of divorce. 
 
 JOINT ESTATES— (G7»2"2«af(/.) 
 
 Art. 4. Estates by entireties. 
 
 Sec 435. How created. 
 
 436. Incidents of this estate. 
 
 437. How affected by married women's Acts. 
 
 438. The separate estate of a married woman. 
 
 439. Husband may convey his interest to his wife. 
 
 440. The separate estate of a married woman — Yale v. Dederer, examined. 
 
 441. Power of husband over. 
 
 a. Lease by husband. 
 
 442. Husband and wife may take as joint tenants or tenants in common. 
 
 443. Attitude of the courts as to estates by entirety. 
 
 444. Dissolution of the tenancy by death or divorce. 
 
 445. Rule as to moieties. 
 
TABLE OF CASES CITED. 
 
 [References are to pages.] 
 
 Abbott V. Bosworth, 315. 
 
 V. Lindendower, 857. 
 
 V. Stewartson, 445. 
 
 V. Stewart's Town, 446. 
 Abel V. Hutte, 833. 
 Abell V. Williams, 46. 
 Aberdeen Academy v. Mayor of Aber- 
 deen, 386. 
 Abraras v. Pomeroy, 336, 798, 899. 
 Abston V. Abston, 822. 
 Academy v. Clemmens, 629. 
 Ackerman v. Hunsicker, 803. 
 Ackley v. Chamberlain, 941. 
 Ackroyd v. Smith, 413, 414, 415,417. 
 Adair v. Brimmer, 574. 
 
 V. Lott, 226. 
 Adam v. Briggs Iron Co. 100. 
 Adams v. Adams, 593, 606. 
 
 V. Ames Iron Co. 922. 
 
 V. Andrews, 421. 
 
 V. Bass, 608. 
 
 V. Briggs, 17. 
 
 V. Chicago, B. & Q. N. R. R. Co 
 464. 
 
 V. Field, 820. 
 
 V. French, 242. 
 
 V. Goddard, 293. 
 
 V. Guerard, 529. 
 
 V. Ohio Falls Car Co. 455. 
 
 V. Ore Knob Copper Co., 787. 
 
 V. Pease, 426. 
 
 V. Perry, 621. 
 
 V. Valentine, 768. 
 
 V. Van Alstine, 502. 
 Adiar v. Mergentheim, 815. 
 Adier v. Pin, 840. 
 Adye v. Smith, 905. 
 ^tna L. Ins. Co. v. Buck, 806. 
 
 [xxvii] 
 
 Ahern v. Steele, 261. 
 Ahrens v. Odiorne, 796. 
 Ainsworth v. Barry, 307. 
 
 V. Ritt, 284, 285. 
 Alabama G. S. R. Co. v. Gilbert, 843. 
 Albany Northern R. Co. v. Brownell, 
 
 392. 
 Albert v. State, 261. 
 Alcorn v. Morgan, 247. 
 Alden v. Gregory, 893. 
 Aldrich v. Parsons, 42. 
 Alexander v, Alexander, 665. 
 
 V. Walter, 833. 
 Alger V. Kennedy, 325. 
 Allamon v. Albany, 883. 
 Allan V. Blackstone, 340. 
 Allegheny Valley R. Co. v. Dickey, 806. 
 Allen V. Allen, 171. 
 
 V. Anderson, 149, 722. 
 
 V. Armstrong, 854. 
 
 V. Culver, 287. 
 
 V. Deming, 894. 
 
 V. Evans, 490. 
 
 V. Jones, 843. 
 
 V. McCabe, 87. 
 
 V. McCoy, 189. 
 
 V. Mooney, 42. 
 
 V. Pass, 707. 
 
 V. Poole, 920. 
 
 V. Rundle, 891. 
 
 V. Russell, 605. 
 
 V. Tobias, 309. 
 
 V. Trustees, 128. 
 Allender v. Sussan, 753. 
 Allwood V. Ruckman, 334. 
 AUyn V. Mather, 132, 681. 
 Alshire v. Hulse, 877. 
 Alsop V. Swathel, 873. 
 
XXVIU 
 
 TABLE OF CASES CITED. 
 
 [References are 
 
 Althorf V. Wolfe, 143. 
 Alvord V. Ashley, 429. 
 
 V. Lent, 944. 
 Am. Academy v. Harvard College, 608, 
 
 625. 
 Am. Bible Soc. v. Marshall, 107. 
 Am. Co. V. Bradford, 418. 
 Americus v. Mitchell, 508. 
 Ames V. Jackson, 895. 
 
 V. Lake Superior & M. R. Co. 
 
 843- 
 
 V. Norman, 798, 948, 949, 957, 961. 
 Amory v. Kannoffsky, 293. 
 Amphlett v. Hibbard, 941, 943. 
 Anderson v. Brewster, 351. 
 
 V. Gary, 771, 779. 
 
 V. Henderson, 417. 
 
 V. Hubble, 841. 
 
 V. Jackson, 753. 
 
 V. Midland. R. Co 351. 
 
 V. Roberts, 894. 
 
 V. Weston, 798. 
 Andis V. Davis, 818. 
 Andrae a. Haseltine, 490. 
 Andrew v. New York Bible Soc. etc. 
 
 627. 
 Andrews v. Andrews, 160, 205, 212, 214, 
 760. 
 
 V. Jones, 210. 
 
 V. Senter, 786. 
 
 V. Spurlin, 709. 
 Andrus v. Vreeland, 808. 
 Angler V. Masterson, 795. 
 Annely v. De Saussure, 924. 
 Anthony v. Harvej', 370. 
 App. V. Lutheran Congregation, 617. 
 Armory v. Delamirie, 19. 
 
 V. Flyn,i9. 
 Armstrong v. Armstrong, gii. 
 
 V. Bicknell, 140. 
 
 V. Caldwell, io2, 251. 
 
 V. Morrell, 833. 
 
 V. Park, 185. 
 Arnold v. Arnold, 721. 
 
 V. Hudson River R. R. Co. 458, 
 468. 
 Arnwine v. Carroll, 652. 
 Assay v. Hoover, 662. 
 
 to the pages.] 
 Ashbrook v. Roberts, 881. 
 Ashcroft V. Eastern R. Co. 451. 
 Asher v. McCarty, 121. 
 Ashhurst v. Given, 635, 641, 645. 
 Ashley v. Port Huron, 846. 
 
 V. Robinson, 591, 650. 
 Astley V. Milles, 808. 
 Atkins V. Boardman, 441, 448. 
 
 V. Chilson, 374. 
 Atkinson v. Patterson, 837. 
 Atlantic Bank v. Demmon, 298. 
 
 Dock Co. V. Lavitt, 98. 
 
 & Gulf R. R. Co. V. State of 
 Georgia, 377. 
 Attorney-General V. Andrews, 625. 
 
 V. B. & A. R. R. Co. 395. 
 
 V. Cook, 610. 
 
 V. Dean of Christ Church, 625. 
 
 V Dublin, 610. 
 
 V. Haberdashers' Co. 615. 
 
 V. Hartley, 625. 
 
 V. Hubbock, 32, 33. 
 
 V. Jolly, 610. 
 
 V. Mansfield, 625. 
 
 V. Margaret «& R. Professors, 625. 
 
 V. Oxford, 625. 
 
 V. Pearson, 617. 
 
 V. Proprietor of the Meeting- 
 house in Federal St., Boston, 
 Mass., 25. 
 
 V. Stewart, 607. 
 
 V. Whitely, 625. 
 Attwood V. Williams, 818. 
 Atwater v. Underbill, 953. 
 Atwood V. Atwood, 153. 
 
 V. Norton, 319. 
 Auer V. Penn, 280, 287, 289. 
 Aultman v. Booth, 895. 
 Aurora v. Reed, 846. 
 
 & Lau. Turnpike Co. v. Holt- 
 house, 386. 
 Austin V. Austin, 794. 
 
 V. Hudson River R. Co. 474, 484. 
 
 V. R. R. Co. 705. 
 
 V. Sawyer, 335. 
 Averill v. Taylor,8o5. 
 Avery v. N. Y. C. & H. R. R. Co. 297. 
 Ayers v. Falkland, 721. 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 [References are 
 Ayres v. Methodist Church, 621, 627, 
 628. 
 
 V. Revere, 817. 
 Babbitt v. Babbitt, 593. 
 Babcock v. Ws'inan, 794. 
 Babka v. Eldred, 370. 
 Bacon v. Bowdoin, 167, 249. 
 
 V. Brown, 297, 299. 
 
 V. Goodnow, 805. 
 
 V. Van Schoonhoven, 811. 
 Bailey v. Bailey, goo. 
 
 V. Hoppin, 676. 
 
 V. Magwire, 820. 
 
 V. Mayor of New York, 385. 
 
 V. Myrick, 881. 
 Baily v. Railroad Co. 386. 
 
 V. Trammell, 922. 
 Bain v. Taylor, 502. 
 Bainbridge v. Mines, 141. 
 
 V. Wade, 898. 
 Baines v. Burbridge, 842. 
 Baird v. Bank, 107. 
 
 V. Cahoon, 854. 
 
 V. Jackson, 924. 
 Bakeman v. Talbot, 447, 450. 
 Baker v. Briggs, 906. 
 
 V. Brown, 640. 
 
 V. Fales, 617. 
 
 V. Kelley, 857. 
 
 V. Lamb, 959. 
 
 V. Lorillard, 143. 
 
 V. Oakwood, 834. 
 
 V. Robbins, 497. 
 
 V. Scott, 700, 702. 
 
 V. Stewart, 948. 
 Barker v. Dayton, 74. 
 Baldwin v. Jenkins, 792. 
 
 V. Morgan, 255. 
 Ballard v. Ballard, 659. 
 
 V. Dyson, 439. 
 Ballentine v. Poyner, 366. 
 Baltimore & O. R. R. Co. v. Sherman, 
 
 514. 
 Baltimore & O. R. R. Co. v. State, 514. 
 Baltimore Pass. Ry. Co. v. North Ave. 
 
 Co. 380. 
 Baltimore Perm. Bldg. & L. Soc. v. 
 Smith, 335, 899. 
 
 to the pages.] 
 
 Bancroft v. Boston & W. R. Corp. 514. 
 
 Bank v. Davis, 227. 
 
 V. Earle, 107. 
 
 v. Godfrey, 107. 
 
 V. Hazard, 841. 
 
 V. Knoop, 386. 
 
 V. Marchand, 210. 
 
 V. Montgomery, 107. 
 
 V. North, 107. 
 
 V. Sherman, 113. 
 
 V. Sprague, 953. 
 Bank of Augusta, v. Earle, 377, 381. 
 
 Commerce v. New York City, 
 852. 
 
 Hamilton v. Dudley, 257. 
 
 Niagara v. Johnson, 398. 
 
 Penn. v. Commonwealth, 386. 
 
 United States v. Beverly, 587. 
 
 Utica V. Finch, 803. 
 
 Utica V. Mersereau, 857. 
 Bankhead v. Brown, 845. 
 Banks v. Phelan, 751. 
 Bannon v. Bean, 896. 
 Baptist Asso. v. Hart, 620, 627. 
 
 Soc. V. Hail, 553. 
 Barber v. Babel, 937. 
 
 V. Harris, 948, 949, 957. 
 Barbour v. Barbour, 157, 164. 
 Barclay v. Maskelyne, 608. 
 
 V. Pickles, 267, 292, 328, 348. 
 Bardwell v. Weeks, 560. 
 Barker v Bates, 876. 
 
 v. Bell, 912. 
 
 v. Greenwood, 553. 
 
 V. Smith, 568. 
 Barksdale v. Hairston, 97 
 Barlow v. Wainwright, 317, 319. 
 Barnard v. Poor, 143. 
 Barnes v. Allen, 827. 
 
 V. Doe. 856. 
 
 v. Dow. 637. 
 
 V. Hathorne, 455 
 
 V. Lloyd, 439. 
 Barnett v. Nelson, 804 
 Barney v. Keokuk, 466, 470. 
 
 V. Leeds, 942. 
 
 V. Parsons, 572. 
 
 V. Saunders, 577. 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Barnhizel v. Ferrell, 827. 
 Barr v. Doe, 242. 
 
 V. Weld, 616. 
 Barrel! v. Barrel!, 925. 
 Barren Creelc Ditching Co. v. Beck, 951. 
 Barrett v. Failing, 180, 229. 
 Barrie v. Smith, 776. 
 Barron v. Barron, 549, 589. 
 
 V. Richard, 888. 
 Barrow v. Wadkin, 560. 
 Barry V. N. Y. Cent.& H. R. R .Co. 515. 
 Barth v. Lines, 169, 212, 214. 
 Bartle v. Vosbury, 570. 
 Bartlet v. King, 628. 
 Bartlett v. Boston Gas Light Co. 261. 
 
 V. Farrington, 323. 
 
 V. Harlow, gi6. 
 Bascom v. Albertson, 621, 628. 
 Bass V. Edwards, 445. 
 Bates V. Kelley, 597. 
 
 V. Nashville, C. & St. L. R. Co. 
 516. 
 Bath V. Valder, 322. 
 Battey v. Hopkins, 713. 
 Batturs v. Sellers, 335, 899. 
 Baugan v. Mann, 427. 
 Bawsy v. Lowdall, 94. 
 Baxter v. Evett, 877. 
 Bayler v. Com, 676. 
 Baylies v. Payson, 548. 
 Beach v. Parish, 286. 
 Beal V. Storm, 953. 
 Beale v. Sanders, 299. 
 Beal! v. Cunningham, 910, gn. 
 
 V. White, 801. 
 Bealor v. Hahn, 233. 
 Beamish v. Hoyt, 230. 
 Bean v. Coleman, 447. 
 
 V. French, 451. 
 Bear Camp River Co. v. Woodman, 398. 
 Beard v. Beard, 212. 
 
 V. Dansby, 923. 
 
 V. Murphy, 476, 479. 
 Beardsley v. Knight, goo. 
 Beatty V. Gregory, 511. 
 Beaty v. Harkey, 773, 786. 
 Beaudely v. Brook, 421. 
 Beaumont v. Fell, 751. 
 
 to the pages.] 
 Beaupland v. Keen, 840. 
 Beauregard v. New Orleans, 109. 
 Becar v. Flews, 320. 
 Becker v. Werner, 296. 
 Beckman v. Sikes, 13. 
 Beckwith v. Rector, etc. 610, 715, 
 Bedell v. Kennedy, 888. 
 Bedford v. McElherron, 283. 
 
 v. Terhune, 148. 
 Beecher v. Baldy, 942. 
 
 V. Parmalee, 310. 
 
 V. Wetherby, 80. 
 Beekman v. Bonsor, 620, 627. 
 Beggs V. Thompson, 851. 
 Belcher v. Burnett, 674. 
 
 v. Mulhall, 336, 899. 
 
 V. Weaver, 174. 
 
 Sugar Ref. Co. v. St. Louis Grain 
 Elevator Co. 843. 
 Belk V. Slack, 664. 
 Bell V. Farmers' Bank, 797. 
 
 V. Hoagland, 840. 
 
 V. Mayor of New York, 145. 
 
 V. Morrison, 831. 
 
 V. New York, 157. 
 Bellis V. Bellis, 921. 
 Bellows V. McGinnis, 266. 
 
 V. Stone, goo. 
 Belmont v. Coman, 805. 
 Below V. Robbins, 939, 944. 
 Belslay v. Engle, 705. 
 Bemey v. Pitt, 725. 
 Bemis v. Becker, 820. 
 
 V. Driscoll, 943. 
 Bender v. Fleurie, 710. 
 
 V. Fromberger, 333. 
 Benedict v. Gilman, 804. 
 
 V. Seymour, 234. 
 
 V. Webb, 599. 
 Benge v. Creagli, 833. 
 Benjamin v. Benjamin, 239. 
 
 V. ElmiraR. Co. 801. 
 Bennet v. Clemence, 921, 
 Bennett v. Bittle and Another, 324. 
 
 V. Child, 957. 
 
 V. Harns, 164. 
 
 V. Jackson, 913. 
 
 V. Lis Pendens, 814. 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 [References are 
 Bennock v. Whipple, 354 355. 
 Bercaw v. Cockerill, 8ig. 
 Berdan v. Van Riper. 933. 
 Bergan v. Cahill, 136. 
 Bergen v. Carman, 850. 
 Bernal v. Lynch, 919. 
 Berridge v. Glassey, 239. 
 Berry v. O'Conner, 803. 
 Berthelemy v. Johnson, 833. 
 Berdes v. Nunan, 948, 949, 955, 957, 
 
 958. 
 Bertram v. Curtis, 489. 
 Best V. Stow, 336. 
 Betts V. Wise, 160. 
 Bevan v. Hayden, 944. 
 Bevans v. Briscoe, 140. 
 Bickford v. Parson, 501. 
 Biddle v. Biddle, 913. 
 
 V. Hussman, 292, 328. 
 Bier v. Dozier, 833. 
 Bigelow V. Shaw, 9 
 Biggs V. McCarty, 709. 
 Billings V. Baker, 229. 
 
 V. Taylor, 157. 
 Binkley v. Forkner, 41. 
 Binks V. South Yorkshire R. & River 
 
 Dun Co. 452. 
 Binney v. Hull, 500. 
 Birkhead v. Cummins, 320. 
 Bird V. Greville, 254. 
 
 V. Ward, 866. 
 Birge v. Smith, 174. 
 Birke v. Abbott, 807. 
 Birmingham v. Anderson, 832. 
 
 Street Ry. Co. v. Birmingham 
 Street Ry. Co., 380. 
 Birtwhistle v. Vardill, 826. 
 Bisbee v. Hall, 315. 
 Bishop V. Bishop, 31. 
 
 V. Boyle, 162. 
 
 V. Hubbard, 943. 
 Black V. Black, 953. 
 Blackburn v. Stables, 94. 
 
 Bldg. Soc. V. Cunliffe, 806. 
 Blackstone Bank v. Davis, 638, 767, 776. 
 
 Manuf. Co. v. Inhabitants, 381. 
 Black well v. Barnett, 792. 
 Blain v. Harrison, 158. 
 
 to the pages.] 
 Blair v. Marks, 832. 
 
 V. Milwaukee & P. du Ch. E. 
 Co. 497, 498. 
 
 V. Wait, 841. 
 Blake v. Everett, 440. 
 
 V. Sanderson, 279. 
 
 V. Tucker, 840. 
 
 V. White, 892. 
 Blakeman v. Blakeman, 879. 
 Blanchard v. Blanchard, 661, 664. 
 
 V. Moore, 336. 
 
 V. Moulton, 423. 
 Blancke v. Rogers, 51. 
 Bland v. Bland, 136. 
 
 V. Lipscombe, 407. 
 Bleecker v. Ballou, 274. 
 Bliss V. Greeley, 449. 
 
 V. Whitney, 47. 
 Bloch V. Isham, 490. 
 Blodgett V. Hildreth, 585, 919. 
 Blood V. Blood, 221. 
 Bloom V. Noggle, 819. 
 Blumenberg v. Myers, 283. 
 Blundell v. Stanley, 808. 
 Board of Suprs. v. Patterson, 776. 
 Boardman v. Lessees of Reed, 876. 
 Boatman v. Lasley, 413. 
 Bodfish v. Bod fish, 438. 
 Bodine v. Kileen, 170. 
 Bogardus v. Trinity Church, 66. 
 Bogert V. United States, 853. 
 Bohall V. Dilla, S62. 
 Bolch V. Smith, 452. 
 BoUes V. State Trust Co. 590. 
 Bolman v. Lohman, 806. 
 Boltz V. Stolz, 196. 
 
 Bonaparte v. Camden, etc. R. R. Co. 397. 
 Bond V. Appleton, 820. 
 
 V. Hill, 924. 
 Boone v. Chiles, 587. 
 
 V. Stover, 239. 
 Boorman v. Sunnuchs, 859. 
 Booth v. Cleveland Roll. Mills Co. 883. 
 
 V. R. W. & O. R. R. Co. 472. 
 Borden v. Sackett, 155. 
 Boreel v. Lawton, 325, 
 Borie v. Crissman, 347. 
 Borron v. Sollibellos, 943. 
 
XXXll 
 
 TABLE OF CASES CITED. 
 
 [References 
 Boston V. Binney, 362. 
 
 Ferrule Co. v. Hills, 455. 
 
 Mfg. Co. V. Newton, 23. 
 
 & Lowell R. R. Corp. v. Salem 
 Lowell R. R. Co. 386. 
 Bostwick V. Leach, 18. 
 Boswell V. Laird, 491 . 
 Bottsford V. Burr, 604. 
 Bottomley v. United States, 570. 
 Bouton V. Thomas, 373. 
 Bowe V. Hunking, 262, 272. 
 Bowen V. Chase, 659. 
 
 V. Clark, 288. 
 
 V. Conner, 414, 451, 460. 
 
 V. Cross, 108. 
 
 V. Sullivan, 19. 
 
 V. Team, 407. 
 Bowker V. Pierce, 572. 
 Bowman v. Bittenbender, 900. 
 Box V. Lawrence, 840. 
 Boyce v. St. Louis, 822. 
 Boyd V. Cudderback, 105. 
 
 V. McCombs, 342. 
 
 V. McLean, 649. 
 
 V. Parker, 810. 
 
 V. Talbert, 315. 
 Boyle V. Boyle, 301. 
 Boyles v. Latham, 180. 
 Boynton v. Hoyt, 757. 
 
 V. Hubbard, 676, 724. 
 Bozeman v. Bozeman, 829. 
 Bracken v. Cooper, 918. 
 Bradbury v. Davis, 820, 880. 
 
 V. White, 336. 
 Bradford v. Bradford, 778. 
 
 v. Kent, 188. 
 
 V. Marvin, 796. 
 Bradish v. Gibbs, 209. 
 
 V. Schenck, 334. 
 Bradlay v.. Conner, 853. 
 Bradley v. Ballard, 108. 
 
 V. Bentley, 335, 899. 
 
 V. Bryan, 154. 
 
 V. Covel, 297. 
 
 V. Holdsworth, 382.' 
 
 v. Peixoto, 767. 
 Bradt v. Church, 316. 
 Brady v. Park, 651. 
 
 are to the pages.] 
 
 Brady v. Parker, 592. 900. 
 
 V. Spurck, 332. 
 Bragg V. Paulk, 549. 
 & Braman v. Stiles, 637. 
 
 Bramhall v. Ferris, 632, 776. 
 Branch v. Doane, 834. 
 
 V. Jesup, 393. 
 Brandon v. Robinson, 103, 630, 638. 
 
 Mfg. Co. V, Morse, 335, 899. 
 Brann v. Elgey, 121. 
 Branton v. Griffits, 11. 
 Brattle Square Church Proprs. v. Bul- 
 lard, 832. 
 
 v. Grant, 658, 721, 748, 751, 756, 
 
 757- 
 Braythwaite v. Hitchcock, 351. 
 Brazer v. Schofield, 930. 
 Breckenridge v. Bennett, 516. 
 
 V. Denn}', 121. 
 Breeding v. Davis, 229. 
 Breisch v. Coxe, 854. 
 Breit v. Yeaton, 659. 
 Brendle v. Jackson Twp. German Ref. 
 
 Cong. 616. 
 Bresnahan v. Bresnahan, 794. 
 Breuckraann v. Twibill, 289. 
 Brevort v. Brevoort, 143. 
 Brew V. Van Deman, 889. 
 Brewer v. Connell, 160. 
 
 V. Knapp, 299. 
 
 V. Marshall, 412. 
 Brewster v. Hill, 241. 
 ■ V. McCall, 608. 
 Brice v. Stokes, 582, 
 Bridge v. Eggleston, 850. 
 
 Proprs. of P. & H. Rivers v. Ho- 
 boken L. & Imp. Co. 379, 
 386. 
 Bridgers v. Howell, 939. 
 Bridges v. Hawkesworth, ig. 
 Brigham v. Shattuck, 774. 
 
 V. Smith, 418. 
 Bright V. Boyd, 806, 923. 
 Brightman v. Brightman, 744. 
 Briles v. Pace, 278. 
 Brimmer v. Sohier, 911. 
 Brine v. Hartford Fire Ins. Co. 76, 810. 
 Brinkman v. Jones, 792. 
 
TABLE OF CASES CITED. 
 
 XXXIU 
 
 [References are 
 
 Brittin v. Handy, 918. 
 Britton v. Thornton, 753. 
 Broadbent v. Barrow, 626. 
 Broadway v. Buxton, 878. 
 
 Bank v. Adams, 104, 630, 633, 
 635. 637,639, 647, 772, 779. ■■ 
 Brochett v. Richardson, 565. 
 Brock V. Brock, 587. 
 
 V. Eastman, 928. 
 Brodie v. Chandos, 610. 
 Broiestedt v. South Side R. Co. 458. 
 Brokaw v. Brokaw, 184. 
 Brolasky v. Ferguson, 345. 
 Bromfield v. Crowder, 663, 664. 
 Bromley v. Goodrich, 894. 
 Bronson v. Coffin, 411, 496. 
 Brookline v. Mackintosh, 829. 
 Brooks V. Bruyan, 836. 
 
 V. Burlington & S. W. R. Co. 818. 
 
 V. Curtis, 487, 489, 490. 
 
 V. Lester, 22. 
 
 V. Reynolds, 441, 457, 501. 
 Broome v. Davis, 939. 
 Brophy v. Bartlett, 484. 
 Brower v. Goodyer, 569. 
 Brown v. Banner C. Co. 880. 
 
 V. Barkham, 672. 
 
 V. Bragg, 242. 
 
 V. Brown, 960. 
 
 V. Butler, 293. 
 
 V. Cadwell, 776. 
 
 V. Crump, 44, 266. 
 
 V. Cunningham, 10. 
 
 V. French, 571, 572. 
 
 V. Gay, 831. 
 
 V. Guthrie, 605. 
 
 V. Hannibal, etc. R. R. Co. 498. 
 
 V. Harmon, 708. 
 
 V. Hoag, 896. 
 
 V. Homan, 920. 
 
 V. Jaquette, 334. 
 
 V. Kelsey, 613. 
 
 V. Keyser, 280. 
 
 V. McCune, 842. 
 
 V. McKinney, 832. 
 
 V. National Bank, 95. 
 
 V. New York, 817. 
 
 V. Peck, i6i. 
 
 to the pages.] 
 
 Brown v. Phillips, 107, 154. 
 
 V. Powell, 512. 
 
 V. Robbins, 477. 
 
 V. State, 873. 
 
 V. Storm, 929. 
 
 V. Straw, 803. 
 
 V. Thorndike, 912. 
 
 V. Vandergrift, 21. 
 
 V. Williamson, 632, 633, 633, 641, 
 645 
 
 V. Wright, 576, 577. 
 Brownell v. DeWolf, 911. 
 
 V. Welch, 318. 
 Brownfield v. Wilson, 136, 771. 
 Brownson v. Hull, 948. 
 Broyles v. Waddell, 924. 
 Brudenell v. Elwes, 627. 
 Bruen v. Gillett, 581. 
 Brupofield v. Reynolds, 307. 
 Brunt V. Gelston, 696. 
 Brusse v. Paige, 805. 
 Bryant v. Batcheller, 176, 180. 
 
 V. Bradley, 529. 
 
 V. Moore, 822. 
 
 V. Sharp, 849. 
 
 V. Winburn, 267. 
 Bryant v. Cowart, 798. 
 
 V. Crosby, 12. 
 
 V. Erskine, 794. 
 Bubb V. Tompkins, 858. 
 Bucher v. Cheshire R. Co. 820. 
 Buck V. Lantz, 674. 
 
 V. Pickwell, 12, 18. 
 
 V. Spofford, 925. 
 
 V. Swazy, 549. 
 Buckelew v. Snedeker, 925. 
 Buckingham v. Hanna, 108, 838. 
 Buckinghamshire v. Drury, 207. 
 Bucknall v. Story, 856. 
 Buckworth v. Thrikell, 233. 
 Budd V. New York, 395. 
 
 V. Van Orden, 793. 
 BuflFalo City Cemetery v. City of Buffalo, 
 
 28. 
 Buffalo Pipe Line Co. v. R. R. Co. 727. 
 Bull V. Griswold, 12. 
 BuUard v. Bowers, 163. 
 
 V. Briggs, 167. 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 [References 
 Bunce v. Gallagher, 850. 
 Bunker v. Anderson, 802. 
 Bunnell v. Read, 879. 
 
 V. Witherow, 210. 
 Bunting v. Saltz, 945. 
 
 V. Speaks, 675. 
 Burbank v. Pillsbury, 502, 889. 
 Burch V. Smith, 569. 
 Burdell v. Blain, 829. 
 Burden v. Sheridan,- 586, 604. 
 Burdick v. Briggs, 175. 
 Burgess v. Gray, 834. 
 
 V. Seligman, 820. 
 
 V. Wheate, 531, 543. 
 Burke v. Badlam, 598. 
 
 V. Roper, 761. 
 
 V. Valentine, 229, 230. 
 Burleigh v. Clough, 136, 144, 679. 
 
 V. Piper, 13. 
 Burley v. Flint, 810. 
 Burnet v. Dennison, 805. 
 Burnett v. Burnett, 168. 
 Burnham v. McQuesten, 440. 
 Burns v. Lynde, 167. 
 Burnside v. Terry, 792, 797. 
 Burr V. Lamaster, 489. 
 
 V. Mills, 436. 
 
 V. Stenton, 275. 
 Burress v. Blair, 908. 
 Burrows v. Ford, 817. 
 Burt V. Boston, 260. 
 
 V. Wigglesworth, 847. 
 Burtners v. Keran, 839. 
 Burton v. Scherpf, 504. 
 Bush V. Hicks, 879. 
 
 V. Lathrop, 809. 
 
 V. Shipman, 386. 
 
 V. Williams, 853. 
 Bushnell v. Robeson, 455. 
 Buss V. Dyer, 422, 436, 437. 
 Bussey v. Paige, 804. 
 Butler V. Cheatham, 153. 
 
 V. Palmer, 388. 
 Butner v. Bowser, 939. 
 Butterworth v. Crawford, 438, 503. 
 Buttlar V. Rosenblath, 951. 
 Button V. Hoffman, 384. 
 Butts V. Trice, 206. 
 
 are to the pages.] 
 
 Buttz V. Northern Pacific R. Co. 80. 
 Buxton V. Uxbridge, 122, 125, 126. 
 Buzzard v. Capel, 339. 
 Byassee v. Reese, 18. 
 Caddell v. Palmer, 757, 758. 
 Cadogan v. Kennett, 210, 891. 
 Cahhoon v. Hollenback, 237. 
 Cahoon v. Coe, 856. 
 Cain V. McGuire, 18. 
 Cake V. Peet, 879. 
 Calame v. Calame, 176. 
 Caldwell v. Alsop, 14. 
 
 V. Copeland, 102, 251. 
 
 V. Fulton, 100, 102, 251. 
 
 V. Lawrence, 818. 
 
 V. Smith, 267. 
 Calhoon v. Am. Emigrant Co. 875. 
 Call V. Barker, 877. 
 Callahan v. Davis, 863. 
 V. DonnoUy, 884. 
 Callender v. Marsh, 477. 
 Callis V. Rideout, 565. 
 Camarillo v. Fenlon, 268. 
 Cambridge v. Lexington, 832. 
 Camden v. Jones, 207. 
 Cameron v. Fay, 939. 
 Cameto v. Dupuy, 943. 
 Camp V. Clearly, 767. 
 Campau v. Godfrey, 917. 
 
 V. Lafferty, 267. 
 Campbell v. Adair, 944. 
 
 V. Foster, 633, 641, 646. 
 
 V. Messier, 487, 492. 
 
 V. Penn. L. Ins. Co. 565. 
 
 V. Quinlin, 820. 
 
 V. Rawden, 697. 
 
 V. Seaman, 455. 
 
 V. Shipley, 295. 
 
 V. Smith, 834. 
 
 V. Tompkins, 801. 
 
 V. Walker, 565. 
 
 V. Wenlock, 253. 
 
 V. Wilson, 423. 
 Campion v. Cotton, 210. 
 Canal R. R. Co. v. Crescent City R. R. 
 
 Co. 380. 
 Canedy v. Haskins, 126. 
 I Canmeyer v. United Churches, 557, 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 [References are 
 
 Cannon v. Collins, 897. 
 
 V. Hare, 49. 
 
 V. Phillips, 833. 
 Canterbury Aqueduct Co. v. Ensworth, 
 
 336. 
 Capen v. Peckham, 45. 
 Capron v. Capron, 185. 
 Carbon Block Coal Co. v. Murphy, 781. 
 Carder v. Fayette Co. 183. 
 Carey v. Rae, 445. 
 Carli V. Stillwater Street R. & Transfer 
 
 Co. 466. 
 Carlton v. Carlton, 3. 
 
 V. Vineland Wine Co. 335, 899. 
 Carpenter v. Gleason, 807. 
 
 V. Herrington,'944. 
 
 V. Jones, 355. 
 
 V. Van Olinder, 700. 
 Carr v. Branch, 32. 
 
 V. Georgia R. Co. 47. 
 Carrol v. Hancock, 659. 
 Carroll v. E. St, Louis, 108, no. 
 
 V. Mays, 833. 
 
 V. McCullough, 36. 
 Carson v. Miirray, 174. 
 Carter v. Balfour, 625. 
 
 V. Bennett, 840. 
 
 V. Bloodgood, 751. 
 
 V. Castleberry, 850. 
 
 V. Dale, 226, 227. 
 
 V. Denman, 489. 
 
 V. Harlan, 507. 
 Cartwright v. Maplesden, 504. 
 Caruthers v. McNeill, 136, 771. 
 Carver v. As tor, 840. 
 
 V. Jackson, 108, 662, 665. 
 
 V. Pierce, 31. 
 
 V. Smith, 951. 
 Gary v. Abbot, 627. 
 Case V. Minot, 265. 
 Casey v. Inloes, 832. 
 Cassey v. Casey, 765. 
 Cassilly v. Rhodes 851. 
 Cathcart v. Bowman, 418. 
 Cating V. Korfhage, 485. 
 Catlin V. Jackson, 663. 
 Catterlin v. Hardy, 840. 
 Cave V. Crafts, 438. 
 
 to the pages.] 
 
 Cavis V. Beckford, 43. 
 
 Central Nat. Bank of Baltimore v. Conn. 
 
 Mat. L. Ins. Co., 600. 
 Central Trans. Co. v Pullman's Palace 
 
 Car Co. 395. 
 Central Trust Co. of N. Y. v. Kneeland, 
 
 801. 
 Chadbourn v. Williams, 818. 
 Chadwick v. Trower, 482. 
 Chaffe V. Oliver, 806. 
 Chaffee v. Garrett, 80. 
 Chalker v. Chalker, 785. 
 
 v. Dickinson, 426, 
 Chamberlain v. Donahue, 361. 
 
 V. Stearns, 614, 615. 
 
 V. Thompson, 549, 552, 879, 900. 
 Chamberlayne v. Chamberlayne, 665. 
 Chambers v. Livermore, 336. 
 
 V. Matthews, 497. 
 
 V. Payne, 706. 
 
 V. St. Louis, 108, 608. 
 Chamness v. Crutchfield, 899. 
 Champion v. Plummer, 8g8. 
 Chandler v. Cheney, 949, 950. 
 
 v. White, 844. 
 Chapman v. Gray, 241, 242. 
 
 V. Price, 951. 
 
 V. Robertson, 822. 
 
 v. Veach, 13. 
 
 V. Wright, 296. 
 Charitable Corporations v. Sutton, 576. 
 Charles River Bridge v. Warren Bridge, 
 
 378, 385- 
 Charless v. Rankin, 474, 476, 479, 484. 
 Charsley v. Jones, 254, 255. 
 Chartier's Block Coal Co. v. Mellon, 
 
 20, lOI. 
 Chase v. Lowell, 898. 
 
 V. Peck, 795. 
 
 v. Second Ave. R. Co. 507. 
 Chasemore v. Richards, 21. 
 Chauntler v. Robinson, 491. 
 Chautauqua County Bank v. Risley, 
 
 850. 
 Cheatham v. Hatcher, 904. 
 Cheeseboro v. Green, 23, 494. 
 Cheney v. Gleason, 603. 
 Cherokees v. Georgia, 80. 
 
TABLE OF CASES CITED. 
 
 [References are 
 Cherry v. Mott, 625. 
 
 V. Slade, 877. 
 
 V. Stein, 454, 502. 
 Chesapeake & Ohio R. Co. v. Halstead, 
 846. 
 
 V. Miller, 378. 
 Cheshire Provident Inst. v. Stone, 818. 
 Chesley v. Welsh, 139, 283, 354. 
 Chester v. Powell, 254. 
 
 Emery Co. v. Lucas, 102. 
 
 Glass Co. V. Dewey, 398. 
 Chew V. Commissioners, 224. 
 Chicago V. Garrity, 291, 328. 
 
 V. Robbins, 491. 
 
 V. Taylor, 846. 
 
 V, Wright, 856. 
 
 Attachment Co. v. Davis Sewing 
 Machine Co. 318, 319. 
 
 B. & Q. R. Co. V. Grablin, 498. 
 V. Iowa, 395, 
 V. Porter, 484. 
 
 City Ry. Co. v. People, 380. 
 
 D. & V. R. Co. V. Fosdick, 810. 
 
 Dock Co. V. Kinzie, 895. 
 
 & E. I. R. Co. V. Wiltsie, 843. 
 
 Legal News Co. v. Browne, 324. 
 
 M. & St. P. R. Co. V. Dumser, 
 
 497- 
 Chickering v. Lovejoy, 155. 
 Child V. Chappell, 45S, 502. 
 
 V. Stenning, 322. 
 Chiles V. Conley, 832, 833. 
 
 V. Stephens, 307. 
 Chinoweth v. Haskell, 877. 
 Chipman v. Montgomery, 193. 
 Chism V. Williams, 753. 
 Choate v. Burnham, 439. 
 Chotard v. Pope, 863. 
 Choteau v. Jones, 876. 
 
 v. Thompson, 819. 
 Christ V. Diffenbach, goo. 
 Christie v. Phyfe, 697. 
 Christopher V. Austin, 276,328,330, 331. 
 
 v. Covington, 892. 
 Christy v. Brian, 895. 
 
 V Fisher, 920. 
 
 V. Pridgeon, 109. 
 Church V. Brown, 277. 
 
 to the pages.] 
 
 Church V. Holcomb, 193. 
 
 V. Meeker, 426. 
 
 V. Seeley, 316. 
 
 V. Wells, 25. 
 Churchill v. Holt, 260. 
 Chute V. Washburn, 770. 
 Cilley V. Childs, 878. 
 Cincinnati v. Penny, 476. 
 
 M. E. Church v. Wood, 617. 
 Citizens' Coach Co. v. Camden Horse 
 R. Co. 471. 
 
 Nat. Bank v. Green, 938. 
 City of Boston v. Richardson, 875. 
 
 Bridgeport v. New York, etc. R. 
 Co. 378. 
 
 Philadelphia v. Girard's Heirs, 
 760. 
 Claflin V. B. & A. R. R. Co. 420. 
 
 V. Carpenter, 15, 17, 
 Clancy v. Byrne, 261. 
 Clapp V. Fullerton, 905. 
 
 V. Stoughton, 774. 
 Clarendon v. Barham, 808. 
 Clark V. Anderson, 581. 
 
 V. Clark, 176, 574, 806, 949, 957. 
 
 V. Coolidge, 274. 
 
 V. Green, 346. 
 
 V. Harvey, 139, 140. 
 
 V. Jones, 295, 776. 
 
 V. Manchester, 516. 
 
 V. New York L. Ins. & T. Co. 
 335, 899. 
 
 V. Owens, 138. 
 
 V. Partridge, goo. 
 
 V. Piatt, 584. 
 
 V. Smith, 80. 
 
 V. Syracuse, etc. R. R. Co. 497. 
 
 V. Taylor, 625, 626. 
 Clarke v. Monroe, 155. 
 
 V. Providence, 876. 
 
 v. Strickland, 853. 
 Clarkson v. Skidmore, 333. 
 Clawson v. Primrose, 458. 
 Clayton v. Lowe, 753. 
 Clearwater v. Meredith, 402. 
 Cleaveland v. Flagg, 93. 
 Cleaves v. Willoughby, 254. 
 Cleland v. Taylor, 850. 
 
TABLE OF CASES CITED. 
 
 xxxvu 
 
 [References are to the pages.] 
 
 Clemence v. Steere, 143, 144, 371. 
 Clement v. Youngman, 102. 
 Cleveland v. Hallett, 552. 
 V. Obenchain, 836. 
 C. C. & I. R. Co. V. Newbran- 
 der, 497. 
 Clifford V. Farmer, 708. 
 Clift V. White, 242. 
 Clingam v. Mitcheltree, 312. 
 Clinton Wire Cloth Co. v. Gardner, 
 
 299, 318. 
 Clopton V. Martin, 900. 
 Close V. Styvesant, 864. 
 Clough V. McDonald, 818. 
 Clove V. Lambert, 802. 
 Glowers v. Sawyer, 495. 
 Coale v. H. & St. J. R. R. Co. 371. 
 Coates v. Cheever, 157. 
 Cobb v. Stokes, 313. 
 Coburn v. Litchfield, 39. 
 Cochran v. Flint, 36. 
 
 V. Kerney, 948. 
 Cockrum v. West, 806. 
 Coder v. Huling, 925. 
 Coe V. Columbus, Piqua & Indiana R. 
 R. Co. 394. 
 
 V. New Jersey M. R. Co. 819. 
 
 V. Wolcottsville Mnf. Co. 834. 
 Coffin V. Portland, 775. 
 CofFman v. Hauck, 355. 
 Cogan V. Cogan, 65o. 
 
 V. Cook, 881. 
 Cogshall V. Pelton, 609, 619. 
 Cogswell V. Reed, 916. 
 
 V. Tibbetts, 177, 181. 
 Colburn v. Morrill, 275. 
 Cole V. Dyer, 898. 
 
 V. Green, 297. 
 
 V. Howe, 798. 
 
 V. Hughes, 485. 
 
 V. McKey, 263. 
 
 V. Sewell, 683. 
 
 V. Smith, 911. 
 
 V. Terrell, 893. 
 
 V. Tyler, 890. 
 
 V. Van Reper, 954. 
 Coleman v. Coleman, 888. 
 
 V. Haight, 284. 
 
 Coles V. Browne, 900. 
 
 V. Coles, 926. 
 
 V. Trecothick, 725. 
 Collier V. Collier's Exrs. 911. 
 
 V. Falk, 803. 
 
 V. Pierce, 422, 458, 459. 
 Collin V. Barrow, 252. 
 Collins V. Benburry, 426, 908. 
 
 V. Castile, 803. 
 
 V. Chartiers Valley Gas Co. 20. 
 
 V. Collins, 131. 
 
 V. Foley, 739. 
 
 V. Hasbrouck, 242, 277, 281. 
 
 V. Prentice, 418. 
 
 V. Sullivan, 604. 
 
 V. Wickwire, 144. 
 
 V. Wood, 171. 
 Collogan V. Burns, 912. 
 Colrick V. Swinburne, 468. 
 Colton V. Colton, 545, 552. 
 Columbia Bank v. Jacobs, 881. 
 
 College Trustees v. Lynch, 415, 
 
 485- 
 
 First M. E. Church v. Old Colum- 
 bia Public Ground Co. 616, 
 775. 
 Columbus V. Columbus St. R. Co. 839. 
 Colvin V. Warford, 833. 
 Combs V. Young's Widow, 151. 
 Comins.v. Comins, 837. 
 Commissioners v. Walker, 576. 
 Commonwealth v. Belding, 429. 
 
 V. Gartner, 339. 
 
 V. Dudley, 302, 305. 
 
 V. Essex Go. 392. 
 
 V. Hartnett, 820. 
 
 V. Hersey, 7. 
 
 V. Hite, 860. 
 
 V. Knarr, 290. 
 
 V. Maxwell, 845. 
 
 V. Peters, 846. 
 
 V. Shattuck, 306. 
 
 V. Smith, 384, 394. 
 
 V. Steuffer, 780. 
 
 V. Union Insurance Co. 399. 
 Gomstock V. Smith, 840. 
 Conant v. Jackson, 569. 
 Condad v. Morehead, 882. 
 
XXXVUl 
 
 TABLE OF CASES CITED. 
 
 [References are to the pages.] 
 
 Condert v. Cohn, 248, 334. 
 Cone V. Lewis, 939. 
 Condon v. Goodman, 109. 
 Conklin v. Conklin, 751. 
 Connaughton v. Sands, 944. 
 Connecticut Ins. Co. v. Bulte, 
 
 919. 
 
 Mut. L. Ins. Co. V. Cushman, 
 810. 
 
 V. Talbot, 881. 
 Connehan v. Ford, 428. 
 Connell v. Brillhart, 898. 
 
 V. Chambers, 314. 
 Connelly v. Pardon, 751. 
 Conners v. Hennessy, 491. 
 Connor v. Bradley, 296. 
 
 V. Elliott, 164. 
 Conover v. Wardell, 336. 
 Conrad v. Atlantic Ins. Co. 791. 
 
 V. Long, 161. 
 Considerant v. Brisbane, 597. 
 Continental Nat. Bank v. Nat. Bank of 
 
 the Commonwealth, 841. 
 Conway v. Kinsworthy, 548. 
 
 V. Starkweather, 298, 299, 352. 
 Conway's Executors v. Alexander, 794. 
 Cook V. Babcock, 877. 
 
 V. Barr, 546. 
 
 V. Brown, 873. 
 
 V. Hammond, 89. 
 
 V. Knowles, 798. 
 
 V. Norton, 351. 
 
 V. Pridgen, 421. 
 
 V, Stearns, 505, 
 
 V. Tullis, 592. 
 
 V. Walker, 88. 
 
 V. Wardens, etc. of St. Paul's 
 Church, 782. 
 Cooley V. Warren, 840. 
 Coombs V. Jordan, 22. 
 Coon V. Brickett, 786 
 Cooney v. Cooney, 939. 
 Cooper V. Adams, 361. 
 
 V. Cooper, 949, 952, 957. 
 
 V. Corbin, 852. 
 
 V. Davidson, 893. 
 
 V. Davis, 375. 
 
 V. Hornesby, 895. 
 
 V. Louanstein, 461. 
 
 Cooper V. Ord, 837. 
 
 V. Remsen, 161. 
 Cooter V. Dearborn, 928. 
 Cope V. Romeyne, 44. 
 Corbett v. Corbett, 771. 
 
 V. Nutt, 858. 
 Corbin v. Healey, 125, 133. 
 Corbit V. Smith, 591, 651. 
 Corbley v. Wilson, 840. 
 Corby v. Hill, 452. 
 Corey v. Bishop, 30, 36. 
 Cornelius v. Giberson, 836. 
 Cornell v. Lamb, 342, 346. 
 Corning v. Lowerre, 466. 
 
 v. Troy I. & N. Factory, 458. 
 
 Town Co. V. Davis, 858. 
 Corr V. Porter, 911. 
 Corrigan v. Trenton Co. 258. 
 Cory V. Cory, 781. 
 
 Univ. So. Trustees at Sparta v. 
 Beatty, 6ro. 
 Coster V, Lorillard, 627. 
 
 V. Tide Water Co. 496. 
 Cottle V. Syndor, 840. 
 Cottman v. Grace, 608. 
 Coudert v. Sayre, 460. 
 Coursey v. Davis, 659. 
 Coutt V. Craig, 900. 
 Coutts V. Greenhow, 210. 
 Covel V. Hart, 417. 
 Cowell V. Colorado Springs Co. 767, 
 
 771, 788. 
 Cowels V. Kidder, 513. 
 Cowley V. Shelby, 802, 805. 
 Cox V. Tipton, 843. 
 Coxe V. Robbins, 500. 
 Crafts V. Crafts, 163. 
 Craig V. First Presbyterian Church of 
 Pittsburg, 25, 28 
 
 V. Harper, 256. 
 
 V. Kittredge, 900. 
 
 V. Leslie, 32, 127. 
 
 V. Rochester City & B. R. Co. 
 442. 
 
 V. Wells, 770. 
 Crain v. Cavana, 176. 
 
 V. Fox, 504. 
 Cram v. Dresser, 328. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 [References are to the pages.] 
 
 Cram v. Mitchell, 892. 
 Crane v. French, 67. 
 
 V. Hyde Park, 775. 
 
 V. O'Connor, 241. 
 
 V. Reader, 107, 860. 
 
 V. Turner, 800, 8og. 
 Cranson v. Cranson, 160. 
 Crary v. Caskey, 798. 
 Craweys v. Colman, 543. 
 Crawford v. Jones, 317. 
 
 V. Lockwood, 839. 
 Creedland v. Potter, 869. 
 Creighton v. Sanders, 318. 
 Cresswell v. Cresswell, 610. 
 Creswell v. Jones, 545. 
 Critchton v. Grieson, 615. 
 Crippen v. Morse, 458. 
 Criss V. Withers, 335, 899. 
 Croade v. Ingraham, 194, 297. 
 Croft V. Arthur, 210. 
 
 as executor, etc. v. William, 574. 
 Crofts V. Middleton, 665. 
 Cromie v. Hoover, 241. 
 Crook V. Vandevoort, 917. 
 Crosby v. Bessey, 834. 
 
 V. Loop, 347. 
 Cross V. Carstens, 894. 
 
 V. Marston, 35. 
 
 V. Petree, 581. 
 Crossley v. Lightowler, 503. 
 Crouch V. Puryear, 157. 
 Crow V. Brown, 939, 944. 
 
 V. Marshall, 833. 
 
 V. Ruby, 892. 
 Crowe V. Wilson, 241. 
 Croxall V. Sherrerd, 665. 
 Cruger v. McClaury, 782. 
 Cruikshank v. Home for the Friendless, 
 
 546. 
 Crump V. Lambert, 455. 
 Crystie v. Phyfe, 908. 
 Cuffee V. Milk, 126. 
 Cullen V. Sprigg, 770. 
 Cumberland v. Willison, 846. 
 Cummings v. Holt, 856. 
 Cunningham v. Shannon, 166, 184. 
 Currie v. White, 548. 
 Currier v. Webster, 804. 
 
 Curtis V. Galvin, 303, 304, 361, 507. 
 
 V. Hoyt, 428. 
 
 V. Price, 591. 
 Curtis V. Whitney, 858. 
 Curtiss V. Ayrault, 437. 
 
 V. Hoyt, 42. 
 
 V. Riddell, 53. 
 Cushman v. Smith, 845. 
 Cuthbert v. Kuhn, 342, 348. 
 Cutler V. James, 880. 
 
 V. Pope, 16. 
 Cuyler v. Bradt, 549. 
 Dabney v. Bailey, 189. 
 Dailey v. Beck, 889. 
 Dakin v. Ellen, 338. 
 Dalay v. Savage, 261. 
 Dale V. Lincoln, 208. 
 Dalrymple v. Van Syckel, 335, 899. 
 Dalton V. Laudahn, 345. 
 Dame v. Dame, 42, 354. 
 Dana v. Murray, 756. 
 Danforth v. Talbot, 664. 
 Daniel v. Leitch, 157. 
 
 v. Pond, 29, 31, 361. 
 
 V. Wood, 24, 26. 
 Daniels v. Eisenlord, 794. 
 
 V. N. Y. & N. E. R. Co. 516. 
 Darby v. Darby, 33. 
 Dartmouth College v. Woodward, 113, 
 
 380, 385, 386. 
 Daubenspeck v. Grear, 15. 
 Daubigny v. Duval, 818. 
 Dauchy v. Bennett, 805. 
 Dauenhauer v. Devine, 487. 
 Daugherty v. Daugherty, 184. 
 Davidson v. Little, 723. 
 
 v. New Orleans, 844. 
 
 V. Phillips, 307. 
 Davies v. Mayor, etc. of New York, 258. 
 
 V. Sear, 410. 
 Davila v. Davila, 207. 
 Davis v. Barrett, 808. 
 
 v. Billsland, 818. 
 
 V. Clark, 948, 951. 
 
 v. Duke of Marlborough, 726. 
 
 V. Farr, 817. 
 
 V. Gray, 766, 773. 
 
 V. Hayden, 125. 
 
xl 
 
 TABLE OF CASES CITED. 
 
 [References are 
 
 Davis V. Inscoe, 895. 
 
 V. King, 920. 
 
 V. Libert)' & C. G. Road Co. 336, 
 8gg. 
 
 V. Mason, 90. 
 
 V. McKinney, 213. 
 
 V. Moss, 48. 
 
 V. Murphy, 358. 
 
 V. Pierce, 807. 
 Davison v. Whittlesey, 195, 196. 
 Davol V. Rowland, 175. 
 Davone v. Fanning, 565, 567. 
 Dawes v. Boylston, 822. 
 Day v. Caton, 489. 
 
 V. Elmore, 898. 
 
 V. Rolh, 603. 
 
 v. West, 178. 
 Dayton v. Adkisson, 827. 
 Deaderick v. Cantrell, 582. 
 Dean v. Dean, 592, 651. 
 
 V. Hart, 184. 
 
 V. Metropolitan Elev. R. Co. 458. 
 
 V. O'Meara, 924. 
 
 V. Richmond, 176. 
 
 V. Sullivan Ry. 497. 
 Deanev. Caldwell, 288. 
 De Camp v. Dobbins, 610. 
 Decker v. Adams, 313. 
 Deere v. Chapman, 944. 
 Deering v. Adams, 553, 906. 
 De Haro v. United States, 512. 
 Deitrick v. Mason, S58. 
 Delancey v. Ganong, 294 
 Delano v. Montague, 352. 
 Delaware, L. &. W. R. Co. v. Sander 
 
 son, 102, 251. 
 Delaware & M. R. Co. v. Stump, 426. 
 Deleon v. Htguera, 797. 
 Demarest v. Hardham, 456. 
 
 V. Willard, 721. 
 Demi v. Bossier, 140. 
 Deming v. Williams, 208. 
 Demott v. Hagerman, 334. 
 Dempsey V. Kipp 265, 511. 
 Den V. Drake, 2B0, 313. 
 
 V. Hardenburgh, 943, 957, 960. 
 
 V. Hunt, 835. 
 
 V. Mitten, 904. 
 
 to the pages.] 
 
 Den V. Robinson, 131. 
 
 V. Spachius, 131. 
 
 V. Underwood, 850. 
 
 V. Wright, 804. 
 Dengler v. Kiehnet, 237. 
 Denike v. Rourke, 853. 
 Dennett v. Dennett, 680, 719. 
 
 V. Penobscot Fair Ground Co. 
 338. 
 Dennie v. Smith, 840. 
 Dennis v. Wilson, 440. 
 Dennison v. Foster, 917. 
 
 V. Goehring, 59B. 
 Denny v. Dobson, 863. 
 Denton v. Nanny, 153. 
 Denver & Rio Grande R. R. Co. v. 
 
 Harris, 303, 310. 
 Deobold v. Oppermann, 578. 
 De Pere Co. v. Reynen, 345. 
 Depeyster v. Gould, 586. 
 
 V. Michael, 60, 98. 
 Depond v. Olmstead, 270. 
 Dermott v. State, 883. 
 Derrickson v. Springer, 439. 
 Des Moine's Street Ry. Co. v. Broad 
 
 Gauge Street Ry. Co. 380. 
 Despatch Line of Packets v. Bellamy 
 
 Mfg. Co., 44. 
 De Themmines v. De Bonneval, 618. 
 Detroit v. Detroit Plank Road Com- 
 pany, 392. 
 Detwiller v. Hartman, 760. 
 DeVaughn v. McLeroy, 32. 
 Devine v. McCuUoch, 856. 
 Dewey v. Dewey, 904. 
 
 V. Williams, 778, 785, 787. 
 Dewire v. Bailey, 260. 
 Dewitt V. Hayes, 397. 
 
 V. Harvey, 414. 
 
 V. Pierson, 325, 331. 
 
 v. San Francisco, 932. 
 DeWoIf V. Lawson, 760. 
 Dexter v. Gardner, 610. 
 
 V. Phillips, 959. 
 Day V. Day, 603. 
 De Young v. Buchanan, 299. 
 Dezell V. Odell, 841. 
 Dias V. Glover, 948. 
 
TABLE OF CASES CITED. 
 
 xli 
 
 [References are to the pages.] 
 
 Dibble v. Rogers, 836. 
 Dick V. Pitchford, 638. 
 Dickenson v. Grand Junction Canal Co. 
 407. 
 
 V. McCamy, 831. 
 Dickerman v. Burgess, 848. 
 Dickerson v. Acosta, 857. 
 
 V. Colgrove, 838, 840, 879. 
 Dickinson v. Dickinson, 591, 650. 
 
 V. Hoomes, 884. 
 
 V. McLane, 945. 
 
 V. Worcester, 417. 
 Dickson v. Harris, 8gg. 
 
 V. Montgomery, 627. 
 
 V. Satterfield, 707. 
 Dietrich v. Berk, 495. 
 Dillenger v. Kelly, 920. 
 Diller'v. Roberts, 299. 
 Dingley v. Dingley, 659. 
 Dingman v. Dingman, 162. 
 Dittman v. Repp, 456. 
 Diver v. Diver, 951. 
 Dixon V. McCue, 188. 
 Dobson V. Butler, 175. 
 Dodd V. Burchell, 418, 458, 459. 
 
 V. Holme, 484. 
 Dodge V. Hopkins, 798. 
 
 V. Kinsey, 951. 
 
 V. Stevens, 143. 
 
 V. Williams, 32. 
 Doe V. Bell, 299, 319. 
 
 V. Benjamin, 249. 
 
 d. Darlington v. Bond, 297. 
 
 V. Burt, 23, 24. 
 
 V. Campbell, 653, 835. 
 
 d. Bingham v;. Cartwright, 239. 
 
 V. Considine, 591, 657, 659, 665, 
 
 743. 749- 
 V. Errington, 840. 
 V. Ewart, 664. 
 V. Hicks, 591. 
 V. Howland, 948. 
 V. Jackman, 708, 709, 
 V. Johnston, 834. 
 V. Killen, 225. 
 V. Linston, 138. 
 V. McKeag, 358. 
 V. McQuilkin, 856. 
 
 Doe V. Minge, 857. 
 
 V. Morgan, 662, 750. 
 
 V. Nowell, 663, 664. 
 
 V. Perryn, 663, 664. 
 
 V. Porter, 290. 
 
 V. Prigg, 658, 663, 664. 
 
 V. Provost, 659, 663. 
 
 d. Rogers v. PuUen, 239. 
 
 V. Ries, 249. 
 
 V. Rovve, 850. 
 
 v. Sparrow, 71,3. 
 
 d. Strickland v. Spence, 313. 
 
 V. Vardill, 826. 
 
 d. Forster v.Wandlass, 296. 
 
 V. Ward, 663. 
 Dogan V. Seekright, 877, 
 • Doherty v. Stimmel, 881. 
 Donkersley v. Levy, 280. 
 Donnegan v. Erhardt, 499. 
 Donodue v. Kendall, 262. 
 Donohue v. McNichol, 757. 
 Dooley v. Crist, 6. 
 Dooliner v. Rogers, S17. 
 Doran v. Chase, 321, 329. 
 Dorian v. East Brandywine & W. R. Co. 
 
 847- 
 Dorlarque v. Cress, 841. 
 Dormer v. Parkhurst, 670. 
 Dorrill v. Stevens, 299. 
 Dorsey v. Hall, 800. 
 
 V. Sheppard, 913. 
 Dostal V. McCaddon, 48, 241. 
 Doughaday v. Crowell, 924. 
 Dougherty v. Bull, 36. 
 
 V. Jack, 149. 
 Douglass V. Fulda, 268. 
 
 V. Wiggins, 266. 
 Douglass V. Howland, 
 
 V. Shunway, 17. 
 Dovaston v. Payne, 435. 
 Dow V. Jewel, 605. 
 
 V. McKinney, 831. 
 Dowd V. Fitzpatrick, 262. 
 Downard v. Groff, 13. 
 Downer v. Smith, 919. 
 
 v. Wilson, 806. 
 Downing v. Marshall, 75. 
 
 V. Wherrin, 749. 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Doyle V. Coburn, 942, 946. 
 
 V. Lord, 422. 
 Drake v. Brown, 674. 
 
 V. Moore, 941. 
 
 V. Starks, 335, 899. 
 
 V. Wells, 16, 18, 508. 
 Draper v. Snow, 798. 
 Dred Scott v. Sandford, 109. 
 Drennan v. People, 820. 
 Drew V. Swift, 877. 
 Driver v. Maxwell, 263. 
 Drown V. Smith, 144, 372. 
 Druid Park v. Dettinger, 593. 
 Drummond v. Drummond, 752. 
 Drury v. Natick, 608. 
 Dubber v. Trollope, 94. 
 Dubois V. Beaver, 14, 15. 
 
 V. Hepburn, 858. 
 Dubs V. Dubs, 226. 
 
 Dubuque & P. R. Co. v. Litchfield, 385. 
 Dudley v. Bachelder, 604. 
 
 V. Bosworth, 605. 
 
 V. Creighton, 50. 
 Duff V. Ivy, 336, 899. 
 
 V. Learey, 837. 
 DufTy V. Masterson, 604. 
 Dugan V. Gittings, 226. 
 Duinneen v. Rich, 421. 
 Duke v. Harper, 362. 
 
 V. Thompson, 832. 
 Duncan v. Cobb, 812. 
 
 V. Duncan, gir. 
 
 V. Smith 807. 
 
 V. Sylvester, 916. 
 
 V. Terre Haute, 159. 
 Dunham v. Cincinnati, P. & 0. R. Co. 
 
 801. 
 Dunlap V. BuUard, 278. 
 Dunlop V. Harrison, 560. 
 Dunn V. Rothernell, 908. 
 Dunne v. Trustees of Schools, 351, 357. 
 Dunnigan v. Chicago & N. W. R. R. 
 
 Co. 261. 
 Dunning v. Finson, 305. 
 Dunscomb v. Dunscomb, 226. 
 Dunseth v. Bank of United States, 194. 
 Durando v. Durando, 153, 721. 
 Durant v. Ashmore, gi2. 
 
 to the pages.] 
 
 Durant v. Palmer, 260. 
 
 Durfee v. Jones, 19. 
 
 Durham & S. R. Co. v. Walker, 450, 460. 
 
 Durrett v. Piper, 165. 
 
 Dusenbury v. Hulbert, 154. 
 
 Dustin V. Cowdrey, 311. 
 
 Dutcherv. Hobby, 806. 
 
 Dutton v. Gerrish, 253, 254, 255. 
 
 Duvall V. Waters, 144, 368, 848. 
 
 Dwight V. Cutler, 355. 
 
 Dwinnell v. Bliss, 874. 
 
 Dyckman v. New York, 843. 
 
 Dyer v. Clark, 926. 
 
 V. Dyer, 601. 
 
 v. Sanford, 501, 504, 516. 
 
 V. Wightman, 328. 
 
 V. Wilbur, 925. 
 Dyett V. Pendleton, 324, 326, 330.- 
 Dyke v. Randall, 207. 
 Dyson v. Sheley, 941, 942. 
 Eames v. Eames, 283. 
 Earl of Clarendon v. Hornby, 930. 
 Earle v. Earle, 177. 
 
 V. Washburn, 590. 
 
 v. Wood, 610. 
 East Hartford v. Hartford Bridge Co. 
 386. 
 
 Jersey Iron Co. v. Wright, 97, 
 509, 512. 
 
 P. R. R. Co. V. Schollenberger, 
 845. 
 
 Tenn. U. & G. R. Co. v. Tel- 
 ford, 449. 
 Easter v. Little Miami R. R. Co. 496, 
 
 500, 502. 
 Easterly v. Barber, 585. 
 
 v. Keney, 639. 
 Eastman v. Schettler, 850. 
 Eaton V. Boston, C. & M. R. Co. 470, 
 846. 
 
 V. Simonds, 167. 
 
 V. Whiting, 810. 
 Eaves v. Estes, 40. 
 Eberts v. Fisher, 296. 
 Edelen v. Gough, 898. 
 Edgerton v. Bird, 836. 
 
 V. Page, 325, 326, 327. 
 Edmonson v. Kite, 245. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 [References are 
 
 Edrington v. Harper, 797. 
 Edson V. Munsell, 830. 
 Edwards v. Etherington, 252. 
 
 V. Freeman, 821. 
 
 V. Grand Trunk R. Co. of Can- 
 ada, 18. 
 Edwards v. McLean, 254, 255. 
 
 V. New York & H. R. R. Co. 
 275. 
 
 V. Perkins, 27";. 
 
 V. Symons, 664. 
 
 V. The Countess of Warwick, 38. 
 EtBnger v. Hall, 32, 924. 
 Egerton v. Mathews, 898. 
 Ehrardt v. Boaro, 144. 
 Ehrisman V. Sener, 777. 
 Eidman v. Bowman, 382. 
 Ekinsv. Dormer, 663. 
 Elder V. Bradley, 831. 
 
 V. Reel, 178. 
 Elias V. Verdugo, 943. 
 EUicott V. Pearl, 833. 
 EUig V. Naglee, 581 . 
 Elliott V. Aikin, 277. 
 
 V. Connell, 336, 899. 
 
 V. Fair Haven & W. R. R. Co. 
 471. 
 
 V. Gower, 257. 
 
 V. Minto, 822. 
 
 V. Plattor, 155, 796. 
 Ellis V. Davis, 938. 
 
 V. Elkhart Car Works Co. 781. 
 
 V. Fisher, 553. 
 
 V. Selby, 614. 
 
 V. Welch, 291, 328. 
 Ellithorpev. Reidesil, 13. 
 Ellsworth V. Central R. Co. 798. 
 
 V. Cook, 91, 223. 
 
 V. Lockwood, 805. 
 Elmendorf v. Lockwood, 171 . 
 Elwes V. Maw, 46, 47. 
 Ely V. Yore, 303. 
 Embury V. Sheldon, 753. 
 Emery V. Owings, 908. 
 Emigrant Industrial Savings Bank v. 
 
 Clute, 806. 
 Emley V. Drum, 895. 
 Emmes V. Feeley, 356, 363. 
 
 to the pages.] 
 England v. Slade, 653. 
 English V. English, 188. 
 Eno V. Del Vecchio, 493. 
 Enyeart v. Davis, 280. 
 
 V. Kepler, 960. 
 Eppes V. Randolph, 210. 
 Erickson v. Willard, 552. 
 Ericson v. Jones, 48. 
 Erskine v. Plummer, 16, 18. 
 
 V. Townsend, 794. 
 
 v. Whitehead; 629. 
 Eslava v. Lepretre, 163 . 
 Espy V. Fenton 345. 
 Estey V. Baker, 355, 363. 
 Etheridge v. Osborn, 327. 
 Eton V. Luyster, 280, 293. 
 Evans v. Evans, 227. 
 Evans v. Robberson, 168. 
 Evansville & T. H. R. Co. v. GrifBn, 510. 
 Eveleth v. Wilson, 335, 399. 
 Everett v. Edwards, 487. 
 Everston v. Central Bank of Kansas, 
 
 806. 
 Evill V. Conwell, 305. 
 Ewen v. Bannerman, 615. 
 Ewer v. Hobbs, 794. 
 Ewing V. Bernett, 322, 836. 
 Fabri v, Bryan, 311. 
 Fadness v. Braunberg, 617. 
 Fain v. Smith, 874. 
 Fairbanks v. Williamson, 889. 
 Fairchild v. Chastelleaux, 948, 949, 957. 
 
 V. Fairchild, 102, 251, 925. 
 Fairfax v. Hunter, 107. 
 Falconer v. Garrison, 336, 899, 
 Fall v. Hazelrigg, 820. 
 Fallon V. Chichester, 913. 
 Faren v. Sellers, 484. 
 Farley v. Blood, 586. 
 
 V. EUer, 172. 
 Farmers' Loan and T. Co. v. Canada & 
 St. L. R. Co., 818. 
 
 V. Henrickson, 39. 
 
 V. McKinney, 107. 
 
 V. Minneapolis Engine and Ma- 
 chine Works, 50. 
 Farmers' & M. Nat. Bank v. Wallace, 
 881. 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Farnham v. Peterson, 93. 
 Farrar v. Fessenden, 83&. 
 
 V. Stackpole, 43. 
 Farrow v. Hayes, 335, 899. 
 Farwell v. Cotting, 167. 
 
 V. Ensign, 871. 
 Fassett v. First Parish in Boylston, 24. 
 Faught V. Halloway, 833. 
 Fay V. Gray, 335, 899. 
 
 V. Richardson, 873. 
 V. Whitman, 455. 
 Feeley v. Buckley, 948. 
 Feeney v. Howard, 871. 
 Feizel v. First German Soc. of M. E. 
 
 Church, 616. 
 Feldman v. Gamble, 802. 
 Felix V. Patrick, 585. 
 Fell V. Brown, 805. 
 Fellows V. Allen, 913. 
 Ferguson v. Brent, 369. 
 
 V. Firmenich Mfg. Co., 9. 
 V. Tweedy, 90. 
 Ferris v. Gibson, 751. 
 
 V. Houston, 267. 
 Fertilizing Co. v. Hyde ParK, 384. 
 Fettretch v. Leamy, 486. 
 Field V. Brown, 832. 
 V. Field, 617. 
 V. Herrick, 275. 
 V. Jackson, 374. 
 
 V. Leiter, 485, 487, 488, 929, 930- 
 V. Roosa, 263. 
 Fietsam v. Hay, 394. 
 Fifty Associates v. Howland, 295, 304. 
 Fillebrown v. Hoar, 328. 
 Finch V. Houghton, 807. 
 
 V. Riseley, 788. 
 Findlay v. Smith, 21, 366, 372. 
 Finger v. Finger, 193. 
 Finlay v. King, 662, 665, 774, 784. 
 V. Brown, 857. 
 V. Simpson, 461. 
 Finlinson v. Porter, 451. 
 Finney v. Bedford Commercial Ins. Co 
 335, 899. 
 V. City of St. Louis, 352. 
 Fire Ins. Patrol v. Boyd, 608. 
 Fireman's Ins. Co. v. Lawrence, 188. 
 
 to the pages.] 
 
 First Baptist Society v. Grant, 26. 
 
 First Cong. Soc. v. Atwater, 558. 
 
 First Constitutional Presby. Church v. 
 
 Cong. Soc. 617. 
 First National Bank v. Ocean Nat. Bank, 
 
 574 
 Firs. National Bank of Constantine v. 
 
 Jacobs, 941. 
 First Univ. Soc. in North Adams v. 
 
 Fitch, 610. 
 Fish V. Dodge, 261, 456. 
 V. Fish, 157. 
 V. Palmer, 224. 
 Fisher v. BennehofF, 836. 
 V. Bis^iop, 569, 893 
 V. Deering, 820 
 V. Fields, 549, 552. 
 V. Hall, 873. 
 V. Herron, 569, 993. 
 V. Milliken, 288. 
 V. Provin, 948, 949, 957. 
 V. Taylor, 633, 635, 644. 
 Fisk V. Attorney-General, 625, 626. 
 Fiske V. Fiske, 794. 
 Fitch V. Casey, 856. 
 V. Fitch, 724. 
 V. Weatherbee, 793. 
 Fitzgerald v. Faunce, 461. 
 Fitzhugh V. Croghan, 832. 
 Fladung v. Rose, 959. 
 Flagg V. Mann, 792. 
 Flanders v. Lamphear, 794. 
 Flannery v. Utley, 806. 
 Fleming v. Hislop, 455. 
 Fletcher v. Ashburner, 32, 36. 
 V. Fletcher, 95. 
 V. Oliver, 384. 
 V. Peck, 388. 
 V. Rylands, 491. 
 Flinn v. McKinley, 919. 
 Floyd V. Carow, 7. 
 Fobes V. Rome, W. & O. R. Co. 442, 
 
 464. 
 Foley V. Wyeth, 354, 474, 480, 484. 
 Folsom V. Freeborn, 829. 
 V. Underbill, 429. 
 Foltz V. Huntley, 314, 328, 348. 
 Fontaine v. Ravenel, 607, 627, 628. 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 [References are 
 
 Foose V. Whitmore, 555. 
 Foote V. Bryant, 601, 649. 
 
 V. Cincinnati, 291, 328, 347. 
 
 V. Foote, 546. 
 
 V. Gooch, 50. 
 Forbes v. Halsey, 568. 
 
 V. Smith, 226. 
 Ford V. Cobb, 48. 
 
 V. Ford, 32. 
 
 V. Knapp, 924, 928. 
 
 V. Stuart, 213. 
 
 V. Williams, 892. 
 Fordyce v. Jackson, 498. 
 Forrest v. Forrest, 175. 
 Forster v. Hale, 591,650. 
 Forsyth v. Forsyth, 32. 
 Fort Dearborn Lodge, No. 214, L O. O 
 
 F. V. Klein, 305, 309. 
 Fortescue v. Satterthwaite, 720. 
 Fortman v. Geopper, 52. 
 Forwood V. Forwood, 213. 
 Fosdick V. Fosdick, 757. 
 Foss V. Crisp, 228. 
 Foster v. Browning, 507. 
 
 V. Foster, 772. 
 
 V. Kelsey, 306. 
 
 V. Mansfield, 875. 
 
 V. Nat. Bank, 845. 
 
 V. Peyser, 253, 254. 
 Fouche V. Brower, 890. 
 Fountain County, etc. Co. v. Beckle 
 
 heimer, 709. 
 Fowler v. Fay, 807. 
 
 V. Payne, 284. 
 Fox V. Eraser, 793. 
 
 V. Hall, 880. 
 
 V. Hempfield R. Co. 237. 
 
 V. Minor, 598. 
 
 V. Rumery, 185. 
 Francescus v. Reigart, 526. 
 Francis and others v. Sayles, 726. 
 Francisco v. Fulde, 834. 
 Franklin v. Brown, 252. 
 
 V. Coifee, 944. 
 
 V Palmer, 349. 
 Frantz v. Ireland, 833. 
 Fratt V. Whittier, 53. 
 Frazer v. Barnam, 104. 
 
 to the pages.] 
 Frazier v. Hanlon, 304. 
 Frederick v. Missouri River, 841. 
 Freeman v. Carpenter, 944. 
 
 V. Hadley, 357. 
 
 V. Paul, 808. 
 Freese v. Tripp, 820. 
 Freligh v. Piatt, 27. 
 French v. Baron, 804. 
 
 V. Currier, 572. 
 
 V. Edwards, 652. 
 
 V. Martin, 447. 
 
 V. Patterson, 856. 
 
 V. Pearce, 832. 
 
 V. Wade, 861. 
 Frentz v. Klotsch, 918, 919. 
 Frey v. Ramsour, 548. 
 Friedman v. Steiner, 136. 
 Frisbey v. Thayer, 793. 
 Fritz V. Brandon, 832. 
 
 V, Pusey, 332. 
 Fronty v. Wood, 299. 
 Frost V. Brown, 832. 
 
 V. Earnest, 291, 328. 
 
 V. Eastern R. R. 516. 
 
 V. Yonkers Sav. Bank, 849. 
 Fry V. Hamner, 806. 
 
 V. Miller, 335. 
 Fryer v. Rockefeller, 808. 
 Fuller V. Sweet, 268, 317. 
 Fulton V. Stewart, 295. 
 Funk V. Creswell, 332. 
 
 V. Haldeman, 20. 
 Furman v. Fisher, 589. 
 Fusselman v. Worthington, 361. 
 Gable v. Miller, 617. 
 Gafiield v. Hapgood, 45. 
 Gage V. Gage, 925. 
 
 V. School Dist. No. 7, 776. 
 Gaines v. Poor, 889. 
 Gains v. Gains, 912. 
 Galbraith v. Fenton, 782. 
 
 V. Green, 153. 
 
 V. Lunsford, 841. 
 Gallego V. Attorney-General, 608. 
 Galpin v. Chicago, etc. R. R. Co. 498. 
 
 V. Page, 820. 
 Galsgow V. Baker, 840. 
 Gait V. Jackson, 793. 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Galveston, H. & H. R. Co. v. Cowdry, 
 
 8oi. 
 Galway v. Metropolitan E. Ry. Co. 468. 
 Gandolfo v. Hartman, 884. 
 Gandy v. Jubber, 260. 
 Gano V. Aldridge, 878. 
 Gans V. Thieme, 806. 
 Ganson v. Tifft, 281. 
 Garanflo v. Cooley, 13. 
 Gardner v. Aster, 291. 
 
 V. Brookline, 847. 
 
 V. Collins, lOg. 
 
 V. Diedricks, 922. 
 
 V. Heyer, 751, 905. 
 
 V. Klutts, 225. 
 
 V, Lightfoot, 871. 
 
 V. Newburgh, 853. 
 
 V. Ogden, 568. 
 Garland v. Crow, 149. 
 
 V. Furber, 421, 447. 
 
 V. Garland, 635. 
 
 V. Harrison, 822. 
 
 V. Wynn, 866. 
 Garner v. Green, 283. 
 Garrish v. Shattuck, 441. 
 Garrison v. Rudd, 413, 415, 417, 440. 
 Garton v. Botts, 193. 
 Garvey v. McDevitt, 546. 
 Gately v. Irvine, 798. 
 Gaunt V. Fynney, 456. 
 Gause v. Wiley, 133. 
 Gautier v. Franklin. 831. 
 Gautret v. Egerton, 452, 510. 
 Gay V. Baker, 24, 26. 
 
 V. Essex Electric Street R. Co. 
 516. 
 
 V. Hanks, 938. 
 
 V. Hunt, 592, 651. 
 
 V. Joplyn, 277. 
 Gaylor V. McHenry, 177. 
 Gaynor v. Old Colony & N. R. 514. 
 Gee V. Gee, 605. 
 
 V. Mayor of Manchester, 753. 
 
 V. Thompson, 176. 
 Geiges v. Greiner, 939. 
 Gellespie v. Worford, 90. 
 Genet v. Beekman, 633. 
 Georges Creek Co. v. Detmold, 374. 
 
 to the pages.] 
 
 Georgia Central R. Co. v. Brinson, 514. 
 
 R. &. B. Co. V. Smith, 395. 
 
 Southern R. R. v. Reeves, 890. 
 Gerber v. Grabel, 454. 
 Gerdine v. Menage, 806. 
 German v. Machin, 895. 
 Gibbs V. Larrabee, 449. 
 Gibson v. Baily, 857. 
 
 V. Crehore, 807. 
 
 V. Eller, 277. 
 
 v. Gibson, 913. 
 
 V. Holden, 485. 
 
 V. Zimmerman, 948. 
 Giddings v. Palmer, 548. 
 Gilbert v. Chapin, 553. 
 
 V. Gilbert, 806. 
 
 V. Holmes, 802. 
 
 V. Reynolds, 171. 
 Giles V. Giles, 177, 
 
 V. Simonds, 16, 18. 
 Gilhooley v. Washington, 327. 
 Gill V. Middleton, 260, 272. 
 Gillan v. Dixon. 947. 
 Gillespie v. Broas, 88, 
 
 V. McGowan, 516. 
 
 V. Moon, 597, 900. 
 Gillett V. Wiley, 841. 
 Gillispie v. Sawyer, 899. 
 Gilman v. Hamilton, 620. 
 
 V. McArdle, 548. 
 
 V. Tilton, 834. 
 
 V. Williams, 944. 
 Gilmer v. Lime Point, 847. 
 Gilmore v. Birch, 226. 
 
 V. DriscoU, 476, 479. 
 
 V. Ontario Iron Co. 244. 
 Girard v. Philadelphia, 559. 560, 905. 
 Gitchell v. Kreidler, 168 
 Given v. Hilton, 33. 
 Glass V. Ellison, 792. 
 
 V. Hulbert, 900. 
 
 Co. V. Dewey, 108. 
 Gleason v. Emerson, 175. 
 Glenn v. Davis, 495, 504. 
 
 V. Grover, 798. 
 Gloucester v. Osborn, 559. 
 Glover v. Manhattan R. Co. 458. 
 
 v. Payn, 792. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 [References are 
 
 Glover v. Powell, 845. 
 
 V. Stillson. 143. 
 Godcharles v. Wigeman, 4. 
 Goddard v. Dakin, 501. 
 
 V. Winchell, 18. 
 Godfrey v. Bryan, 597. 
 
 V. City of Alton, 858. 
 Godley v. Hagerty, 262. 
 GofT V. Robinson, 193. 
 Golconda v. Field, 397. 
 Gold V. Judson, 662, 663. 
 Goldman v. Clark, 940. 
 Goldsmith v. Wilson, 355. 
 GoUer v. Fett, 268. 
 Gomez v. Tradesman's Bank, 549. 
 Gonzales v. Barton, 708. 
 Gooch V. Atkins, 194. 
 Good V. Fogg, 944. 
 Goodell V. Field, 336. 
 Goodhue v. Clark, 616. 
 Goodman v. Randall, 797. 
 
 V. White, 812. 
 Goodnow V. Litchfield, 840. 
 Goodrich v. Burbank, 414, 415. 
 
 V. Jones, 29, 30. 
 
 V. Russell, 107. 
 Goodtitle v. Way, 351. 
 
 V. Whitby, 664. 
 Goodwin v. Smith, 14. 
 Goold V. Great Western Deep Coal Co. 
 
 451. 
 Gordon v. Bell, 795. 
 Gorham v. Daniels, 529. 
 Gorman v. Judge of Newago Circuit, 
 831. 
 
 V. Pacific R. Co. 497. 
 Gorton v. Hadsell, 24, 26. 
 Gottv. Cook, 757. 
 Gould V. Branch Bank of Mobile, 581. 
 
 V. Crow, 176. 
 
 V. Day, 853. 
 
 V. Norfolk Lead Co. 383. 
 
 V. Steenberg, 850. 
 
 V. Thompson, 338. 
 
 V.Washington Hospital for Found- 
 lings, 609. 
 Gouverneur v. Titus, 900. 
 Gove V. Gather, 162. 
 
 to the pages.] 
 Gowen v. Shaw, 925. 
 Gower v. Sterner, 900. 
 Gowland v. De Faria, 724, 725. 
 Grady v. Cassidy, 908. 
 Graff v. Middleton, 880. 
 Graham v. Dickinson, 223. 
 
 V. Lambert, 549. 
 
 V. Law, 178. 
 
 V. Pierce, 925. 
 
 V. Roder, 569. 
 Grand Rapids & Indiana R. R. v. Heisel, 
 
 443- 
 Grant v. Naylor, 316. 
 Graves v. Berdan, 264, 284, 285. 
 
 V. Dolphin, 639. 
 
 V. Shattuck, 466. 
 Gray v. Blanchard, 788. 
 
 V. Finch, 305. 
 
 V. Fox, 576. 
 
 V. Holdship, 43. 
 
 V. Liverpool & B. R. Co. 843. 
 
 V. Palmer, 925. 
 
 V. Portland Bank, 382. 
 
 V. Sherman, 911. 
 Greason v. Keteltas, 257. 
 Great Falls Mfg. Co. v. Garland, 844. 
 
 V. Worster, 916. 
 Greeley v. Spratt, 307. 
 Green v. Armstrong, 12, 334. 
 
 V. Biddle, 924. 
 
 V. Dietsch, 604. 
 
 V. Green, 545. 
 
 V. Jones, 897. 
 
 V. Liter, 89, 90. 
 
 V. Massie, 291. 
 
 V. Pallas, 953. 
 
 V. Pierse, 939. 
 
 V, Putnam, 17, 924. 
 
 V. Rutherford, 558. 
 
 V. Spicer, 630, 638. 
 
 V. Weller, 67. 
 
 Bay Lumber Co. v. Ireland, 928. 
 
 & M. R. Co. V. Union Steamboat 
 Co. 393 
 
 Rapids Co. v. Jarvis, 846. 
 Greene v. Linton, 516. 
 
 V. Munson, 294. 
 
 V. Warnick, 809. 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Greenfield Sav. Bank v. Stowell, 803. 
 Greenland v. Waddell, 32. 
 Greenlaw v. Greenlaw, 948. 
 Greenough v. Wells, 593. 
 Greenwood v. Llgon, 86g. 
 
 V. Maddox, 942, 943. 
 
 V. Murdock, 873. 
 Greenvault v. Davis, 332. 
 Gregg V. Bostwick, 939, 941 
 
 V. Von Phul, 290. 
 Gregor v. Brown, 368. 
 Gregory V. Nelson, 408. 
 
 V. Underbill, 908. 
 Gresham v. Ware, 807. 
 Grethen v. Chicago, M. & St. P. R. Co 
 
 514. 
 Griffin v. Bixby 14, 15. 
 
 V. Colver, 313, 
 Griffith V. Charlotte, etc. R. Co. 4. 
 
 V. Cope, 616. 
 
 V. Follett, 581. 
 Grigg V. Landis, 889. 
 Grimes v. Bastrop, 832. 
 
 V. Harmon, 608, 6l6. 
 Grim man v. Legge, 293. 
 Grimmet v. Henderson, 840. 
 Griswold v. Bragg, 923. 
 
 V. Johnson, gl6. 
 
 V. Metropolitan Kiev. R. Co. 458 
 Groesbeck v. Seeley, 604, 857. 
 Grogran v. Garrison, 203. 
 Grove v. Todd, 174. 
 Groves v. Fulsome, 866. 
 Guerin v. Hunt, 892. 
 Guest V. Opdyke, 334, 
 
 V. Reynolds, 454, 456. 
 Guion v. Anderson, 90, 300. 
 Gulf, C. & S. F. R. Co. V. Wilson, 498 
 Guphill V. Isbell, 652. 
 Gurly V. Gurly, 207. 
 Gustason v. Hamm, 466, 46" 
 Gutherie v. Jones. 41. 
 Guthrie v. Kahle, 798. 
 Gwinnell v. Earner, 261. 
 Gwyne v. Neiswauger, 854. 
 Gwynn V. Homan, 431. 
 Gwynne V. Cincinnati, 159. 
 Habershon v. Vardon, 618. 
 
 to the pages.] 
 
 Hadden v. Knickerbocker, 343, 346. 
 
 Hadley v. Baxendale, 313. 
 
 Hafer V. Hafer, 212. 
 
 Hagan v. Domestic S. Mac. Co. 898. 
 
 Hagar v. Brainard, 800. 
 
 Hageman v. Hageman, 700. 
 
 Hager v. Shindler, 850. 
 
 Hagey v. Hill, 335, 899. 
 
 Haggart v. Stehlin, 515. 
 
 Hague v. Wheeler, 20. 
 
 Hahn v. Hutchinson, 777. 
 
 Haight V. Price, 834. 
 
 Hail V. Reed, 21. 
 
 Haines v. Spanogel, 897. 
 
 Halden v. Chorn, 629. 
 
 Hale V. Everett, 617. 
 
 Hall v. Armstrong, 413. 
 
 V. Davis, 877. 
 
 V. Dewey, 294. 
 
 v. Jacob, 239. 
 
 v. Lawrence, 415. 
 
 V. Priest, 127. 
 
 V. Russell, 588. 
 
 V. Southmayde, 345. 
 
 V. Sullivan R. R. Co. 384. 
 
 V. Thayer, 117, 126, 128. 
 
 V. Wadsworth, 353. 
 
 V. Warren, 615. 
 
 V. Whitehall, 876. 
 
 V. Williams, 637. 
 Hallett V. Thompson, 103. 
 
 V. Wylie, 250. 
 Halligan v. Wade, 325, 328. 
 Halsey v. McCormick, 858. 
 
 V. Peters, 896. 
 Halsted v. Meeker's Exrs. 572. 
 Hamaker v. Blanchard, 19. 
 Hamden v. Rice, 368. 
 Hamerton v. Stead, 351, 358. 
 Hamill v. Thompson, 874. 
 Hamilton v. Austin, 145. 
 
 V. Conyers, 570. 
 
 V. Elliott, 787. 
 
 V. Hempstead, 132. 
 Hamlt V. Lawrence, 284. 
 Hamlin v. Osgood, 913. 
 
 V. United States Exp. Co. 136. 
 Hammersley v. Debiel, 212. 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 [References are 
 
 Hammersley V. Smith, 103. 
 Hammond v. Barker, 806. 
 
 V. Ridgley, 877. 
 Hancock v. Hancock, 663. 
 
 V. McAvoy, 25. 
 
 V. Titus, 586. 
 Handley v. Wrightson, 552. 
 Hanford v. Fitcli, 833. 
 
 V. St. Paul & D. R. Co. 876. 
 Hanham v. Sherman, 293. 
 Hank v. McComas, 930. 
 Hannon v. Osborn, 143, 664. 
 Hanrahan v. O'Riley, 48. 
 Hans V. Palmer, 904. 
 Happy V. Morton, 617. 
 Harber v. Evans, 487. 
 Harding v. Jasper, 431, 433. 
 Hargrave v. King, 277. 
 Harkins v Pope, 299, 
 Harkness v. Board of Public Works, 
 
 853. 
 
 V. Underhill, 864. 
 Harkrader v. Leiby, 793. 
 Harlow v. Thomas, 418. 
 Harmon v. Tappenden, 581. 
 Harnett v. Maitland, 371. 
 Harper v. Sexton, 857. 
 Harriman v. Grey, 175. 
 Harrin v. Allen, gi2. 
 Harrington v. Erie County Sav. Bank, 
 881. 
 
 V. Watson, 285. 
 Harris v. Barnett, 591, 650. 
 Harris v. Cohen, 261. 
 
 V. Columbiana County Mut. Ins. 
 Co. goo. 
 
 V. Doe, 908. 
 
 V. Frink, 139, 334, 354, 355. 
 
 V. Fly, 754. 
 
 V. Gillingham, 507. 
 
 V. Haines, 804. 
 
 V. Mclntire, 605. 
 
 V. Rucker, 593. 
 Harrison v. Forman, 663, 664. 
 
 V. Howard, 592, 651 
 
 V. Hoyle, 617. 
 
 V. Middleton, 362. 
 
 V. Sager, 820. 
 
 d 
 
 to the pages.] 
 Harrow v. Johnson, 157. 
 narrower v. Heat, 334. 
 Hart V. Benton, 47. 
 
 V. Farmers' & M. Bank, 881. 
 
 V. Gregg, 677. 
 
 V. Lyon, 492. 
 
 V. Marks, 751. 
 
 V. Tulk, 616. 
 
 V. Windsor, 252, 253, 254. 
 Hartford First Bapt. Church v. With- 
 
 erell, 617. 
 Hartford & S. Ore. Co. v. Miller, 916. 
 Hartmann v. Hartmann, 928. 
 Harvard College v. Amory, 570, 572. 
 Harvard College v. Soc. for Promoting 
 
 Theological Education, 625. 
 Harver v. Wallner, 961. 
 Harvey V. Bridges, 303, 310, 311. 
 
 v. Tyler, 853. 
 Haselinton v. Gill, 210. 
 Hasketh v. Murphey, 629. 
 Haslem v. Lockwood, 19, 32. 
 Hasler v. Hasler, 580. 
 Hastings v. Crunckleton, 366. 
 
 , V. Merriam, 834. 
 Hatch V. Skelton, 808. 
 Hatchett v. Banton, 926. 
 Hatfield v. FuUerton, 3x8, 346. 
 
 V. Sueden, 227. 
 Hathorn v. Maynard, 881. 
 Hathorne v. Caief, 386. 
 Hauft V. Duncan, 154. 
 Haugh V. Cook Co. Land Co. 107. 
 Haven v. Emery, 34, 40. 
 
 V. Foster, 911. 
 Haverly v. Alcott, 193. 
 Haverstick v. Sipe, 422, 457, 458, 459, 
 Haward v. Peavey, 32. 
 Hawkins v. Chace, 898. 
 Hawley v. Clowes, 373. 
 
 V. James, 581, 582, 666, 757. , 
 
 v. Moody, 319. 
 
 V. Northampton, 752, 753. 
 
 V. Northern Cent. R. Co. 262. 
 Hawthorne v. Smith, 944. 
 Hay V. Cohoes Co., 476, 479, 846. 
 Hayden v. Davis, 107. 
 
 V. Stoughton, 774. 
 
1 
 
 TABLE OF CASES CITED. 
 
 [References are 
 
 Hayes v. Jackson, 98. 
 
 V. Kennedy, 369. 
 Hayman v. Keally, 831. 
 Hayne v. Redfern, 108. 
 Hayner v. Smith, 324. 
 Haynes v. Bourn, 226. 
 
 V. Thomas, 430, 470. 
 Hays V. State, 428. 
 Hazard v. Robinson, 423. 
 Hazelton v. Putnam, 507, 50S. 
 Hazen v. Barnett, 930. 
 Hazelton v. Lesure, 155. 
 Head v. Prov. Insurance Co., 107. 
 Heald v. Heald, 762. 
 Heath v. Bishop, 638. 
 
 V. Richmond F. & P. Co. 590. 
 Heavilon v. Hcavilon, 11. 
 Hebron v. Centre Harbor, 797. 
 Heburn v. Warner, 792. 
 Hecht V. Dettman, 13. 
 Hedge v. Drew, 256. 
 Heflfernan v. Benlcard, 484. 
 Heffner v. Lewis, 241. 
 Hegeman v. Johnson, 895, 
 Heilner v. Imbrie, 335, 899. 
 Heiss V. Murphey, 608. 
 Helena v. Turner, 267. 
 Helfenstine T. Garrard, 529. 
 Helm V. Frisbie, 708. 
 
 Hempstead v. Easton, 840. 
 V. Johnson, 589. 
 
 Henagan v. Harllee, 157. 
 
 Hendershott v. Ottumwa, 845. 
 
 Henderson V. Blackburn, 136. 
 V. Cardwell,'i39, 355. 
 V. Henderson, 705. 
 V. Hunter, 88, 616. 
 
 Hendey v. Dinkerhoff, 40. 
 
 Hendricks v. Stark, 489. 
 
 Hendrickson v. Hendrickson, 305. 
 
 Hendrix v. McBeth, 157. 
 
 Heneage v. Lord Andover, 340. 
 
 Hennessy v. Carmony, 456. 
 V. Patterson, 673. 
 
 Henriques v. Dutch West India Co. 107 
 
 Henshawv. Bissell, 841. 
 
 Henwood v. Cheeseman, 345. 
 
 Hepburn v. Auld, 832. 
 
 to the pages.] 
 
 Herbert v. Wren, 189. 
 
 Herrell v. Sizeland, 357. 
 
 Herrick v. Randolph, 852. 
 
 Herman v. Roberts, 449, 450. 
 
 Herron v. Gill, 343. 
 
 Hershizer v. Florence, 223. 
 
 Hesketh v. Murphy, 608. 
 
 Heskett v. Wabash, St. L. & P. R. 
 
 Co. 497. 
 Heslop V. Heslop, 180. 
 Hess V. Pegg, 820. 
 
 v.Singler, 552, 555. 
 Hessel v. Johnson, 293. 
 Heuserv. Harris, 136, 620,629. 
 Hewitt V. Eankin, 943. 
 Hewlins v. Shippam, 407. 
 Heyer v. Deaves, 814. 
 Hiatt V. Miller, 351. 
 V. Parker, 794. 
 Hickman v. Trout, 893. 
 Hicks V. Hicks, 793. 
 Hidden v. Jordan, 604. 
 Hieatt v. Morris, 457. 
 Higginbottom v. Short, 928. 
 Higgins V. McCrea, goS. 
 Hildreth v. Conant, 361. 
 V. Sands, 849. 
 V. Thompson, 160, 194. 
 Hileman v. Bouslaugh, 695, 699, 709, 
 
 710. 
 Hill V. Burns, 615. 
 
 V. Epley, 840, 841. 
 V. Hill, 743, 744. 
 V. Lord, 407. 
 V. McNichol, 874. 
 V. Tupper, 416. 
 Hilliard v. Kearney, 665. 
 
 V. N. Y. & C. Gas Coal Co., 457. 
 Hills V. Miller, 415, 458, 502. 
 
 V. Simonds, 675. 
 Hillyard v. Miller, 75. 
 Hinchman v. Whetstone, 835. 
 Hinde v. Longworlh, 850. 
 Hindley v. Hindley, 188. 
 Hinds V. Stevens, 165. 
 Hine v. Wooding, 496. 
 Hinley v. Merriman, 581. 
 Hinsdale v. Humphrey, 8go. 
 
TABLE OF CASES CITED. 
 
 li 
 
 [References are 
 
 Hitchcock V. Skinner, 924. 
 
 Hittz V. Jenks, 872. 
 
 Hitz V. Nat. Metropolitan Bank, 229, 
 
 230, 231, 232. 
 Hobart v. Milwaukee City R. Co. 471. 
 Hobbs V. Smith, loi, 779. 
 
 V. Wetherwax, 897. 
 Hoboken City Bank v. Phelps, 873. 
 Hobson V. Hale, 32, 546. 
 Hochstedler v. Hochstedler, 709. 
 Hodges V. Eddy, 836. 
 
 V. New England Screw Co. 575, 
 581. 
 Hoeveler v. Fleming, 321. 
 Hoey V. Furman, 833. 
 Hoffman v. Armstrong, 14. 
 
 V. Kuhn, 484. 
 
 V. Steigers, 949, 953, 957, 960, 
 Hogan V. Chicago, M. & St. P. R. Co., 
 
 5I4. 
 
 V. Wyman, 557. 
 Hoge V. Hoge, 587. 
 Holdane v. Cold Spring, 427, 430. 
 Holden v. Shattuck, 497. 
 Holder v. Coates, 15. 
 Holderly v. Walker, 185. 
 Holdship V. Pattersqn, 635, 639, 641, 
 
 644. 
 Holford V. Bailey, 426. 
 
 V. Dunnett, 266. 
 
 V. Hankinson, 424. 
 Holiday v. Dixon, 136. 
 HoUaday v. Marsh, 500. 
 Holland v. Alcock, 546, 560, 561, 614, 
 620, 621, 761. 
 
 V. Cruft, 128. 
 
 V. Peck, 627. 
 HoUey v. Security Trust Co. 454. 
 HoUiday v. Shoop, 605. 
 HoUingsworth v. Sherman, 835. 
 HoUis V. Drew Theological Sem. 905. 
 HoUoway v. Holloway, 943. 
 Holmes v. Holloway, 307. 
 
 V. Mead, 548, 561, 621. 
 Holms V. Seller, 414, 492. 
 Holt V. Hemphill, 90. 
 
 V. Lamb. 748. 
 Holtzapple v. Phillibaum, 833. 
 
 to the pages.] 
 Homer v. Homer, 548. 
 
 V. Sheldon, 552. 
 Hood V. Hood, 283. 
 Hook V. Creamer, 803. 
 
 V. Joyce, 426. 
 Hooker v. New Haven Co. 846. 
 Hooks V. Lee, 212. 
 Hoole V. Attorney-General, 432. 
 Hooper v. Cummings, 778, 787. 
 
 V. Hooper, 757. 
 Hoopes V. Alderson, 447. 
 Hooton V. Holt, 360. 
 Hoots V. Graham, 160. 
 Hoover v. Epler, 806. 
 Hopkins v. Ladd, 854. 
 
 V. Seivert, 569. 
 Hoppin v. Hoppin, 171. 
 Horn v. Cole, 838. 
 
 V. Keteltas, 591, 651. 
 
 V. Pullman, 905. 
 
 v. Tufts, 943. 
 Home V. Lyeth, 707. 
 Horner v. Chicago R. R. Co. 788. 
 
 V. Watson, 17. 
 
 V. Webster, 953. 
 Hornsby v. United States, 3. 
 Horsefall v. Mather, 266. 
 Horton v. Sledge, 529. 
 Hosea v. Jacobs, 911. 
 Hosford V. Ballard. 236. 
 Hosmer v. Wallace, 862. 
 Hotchkiss V. Elting, 729. 
 Hough V. Birge, 355. 
 Houghton V. Lee, 939. 
 Hounsell v. Smith, 452. 
 Housatonic R. R. Co. v. Knowles, 498. 
 House v. Fuller, 920. 
 
 V. Jackson, 667. 
 
 v. McCormick, 839. 
 Houser v. Lament, 895. 
 Houston V. Laffee, 507, 508. 
 
 v. Randolph County Comrs. 775. 
 Houts V. Showalter, 851. 
 Houx V. Seat, 507. 
 How V. Stevens, 28. 
 Howard v. Am. Peace Soc. 608. 
 
 V. Carusi, 614, 771, 
 
 V. Chase, 837. 
 
Hi 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Howard v. First Parish in North Bridge- 
 water, 24, 26. 
 
 V. Merriam, 361. 
 Howe V. Adams, 944. 
 
 V. Batchelder, 12. 
 
 V. Read, 892. 
 
 V. Wilson, 613. 
 Howell V. McCrie, 937, 945. 
 Howey v. Goings, 233. 
 Howland v. Tin. The. Sem. gii. 
 Howton V. Frearson, 447. 
 
 V. Howton, 205, 206. 
 Hoxie V. Price, 850. 
 Hoyle V. Plattsburgh & M. R. C. 48. 
 Hoyte V. Jones, 881. 
 Hubbard v. Goodwin, 860. 
 
 V. Savage, 803. 
 
 V. Town, 454. 
 Hubbell V. East Cambridge Savings 
 Bank, 42. 
 
 V. Moulson, 804. 
 
 V. Vanhorne, 62. 
 
 V. Warren, 412. 
 Huffv. McCauley, 407. 
 Huffel V. Armistead, 313. 
 Huffman v. Ackley, 895. 
 
 V. Stark, 320. 
 Huger V. Dibble, 353. 
 Hughes V. Clarksville, 266. 
 
 V. Edward, 774. 
 Hughlett V. Harris, 144. 
 Hugunin v. Cochrane, 163. 
 Hulburt v. Emerson, 126. 
 Hulet V. Inlaw, 949, 957, 959. 
 Hulett V. Mutual L. Ins. Co. 237, 881. 
 Hull V. Holloway, 143. 
 Humphries v. Brogd^n, 23, 480. 
 
 V. Humphries, 139. 
 Hungerford v. Anderson, 678. 
 Hunt v. Bay State Iron Co. 34, 
 
 v. Comstock, 245. 
 
 v Gray, 803. 
 
 V. Hunt, 590. 
 
 V. Johnson, 208. 
 
 V. Morton, 353. 
 
 V. Wolf, 297. 
 
 V. Wright, 779. 
 Hunter v. Bilyeu, 570, 592, 651. 
 
 to the pages.] 
 
 Hunter v. Middleton, 721. 
 
 v. Reiley, 322. 
 
 V. Tarborough, 605. 
 Hunting v. Emmart, 335, 899. 
 Huntington v. Parkhurst,-3l8. 
 Hurd V. Rutland, etc., R. R. Co. 497. 
 Hurley V. Estes, 792. 
 Hurst V. Harper, 591, 651. 
 Huson V. Young, 447, 450. 
 Hutchings v. Low, 863. 
 Hutchins v. Heywood, 529. 
 
 V. Kimmell, 152. 
 
 V. Masterson, 44. 
 
 V. Smith, 598. 
 Hutchinson v. Lloyd, 576. 
 Hutchinson v. Tindall, 592, 651. 
 Huttemeierv. Albro, 452. 
 Button V. Williams, 896. 
 Huyck V. Andrews. 489. 
 Huyler v. Atwood, 953. 
 Hyatt V. Allen, 383. 
 
 v. Griffiths, 354. 
 
 V. Wood, 308, 310. 
 Hyde v. Tanner, 900. 
 
 V. Woods, 637, 639, 641, 646. 
 laege v. Bossieux, 198. 
 Iddings V. Nagle, 140. 
 Ide V. Ide, 746, 753. 
 Illinois Central R. Co. v. Cassell, go8. 
 
 V. Godfrey, 514. 
 Imboden v. Hunter, 564. 
 Imlay v. Union Branch R. R. 443. 
 Indiana, B. & W. R. Co. v. Bamhart, 
 
 510. 
 Indianapolis v. Emmelman, 510. 
 
 D . & S. R. Co. V. Pugh, 847. 
 
 R. R. Co. V. Hood, 788. 
 Ineals v. Plamondon et al. 494. 
 Ingersoll v. Sergeant, 339. 
 Inglis V. Trustees of Sailors' Snug Har- 
 bor, 608, 628. 
 Ingraham v. Regan, 820. 
 Inhabitants, etc., v. Wood, 258. 
 Inman v. Stamp, 255. 
 Innerarity v. Mims, 300. 
 International Bank v. Fife, 837. 
 Iowa Homestead Co. v. Des Moines 
 Nav. & R. Co. 806. 
 
TABLE OF CASES CITED. 
 
 liii 
 
 [References are 
 Iron City Bank v. Pittsburg, 386. 
 
 Tool Works v. Long, 806. 
 
 Mountain R. R. Co, v. Johnson, 
 302. 
 Irvine v. Wood, 260, 261. 
 Irwin V. Covode, 141, 142, 366. 
 
 V. Dixion, 434. 
 
 V. Ivers, 336, 605, Sgg. 
 Isaacs V. Greathart, 361. 
 Isabel V. Hannibal & St. J. R. Co. 498- 
 Ives V. Hazard, 898. 
 
 V. Ives, 303. 
 Ivory V. Burns, 552 
 Jackson v. Arlington ills, 260. 
 
 V. Brown, 681. 
 
 V. Bull, 144, 746. 
 
 V. Camp, 835. 
 
 V. Cary, 526. 
 
 V. Chew, 109. 
 
 V. Davis, 267. 
 
 V. Eddy, 325. 
 
 V. Farmer, 312. 
 
 V. Frost, 877. 
 
 V. Harrison, 296. 
 
 V. Harsen, 239. 
 
 V. Hartwell, 558. 
 
 v. Hudson, 80. 
 
 V. Ingraham, 80. 
 
 V. Jackson, 954. 
 
 V. Johnson, 91, 222, 223. 
 
 V. Kisselbrack, 249. 
 
 V. Leek, 873. 
 
 V. Loomis, 924. 
 
 V. McCall, 832. 
 
 V. McConnell, 948, 957: 
 
 V. Miller, 290. 
 
 V. Moncrief, 290. 
 
 V. Moore, 833. 
 
 V. Murray, 257. 
 
 V. Myers, 850. 
 
 V. Niven, 290. 
 
 V. Oltz, 833. 
 
 V. Parker, 850. 
 
 V. Patterson, 299. 
 
 V. Philadelphia, W. & B. R. Co, 
 505. S09. 
 
 V. Phillips, 609, 622, 623, 629. 
 
 v, Richards, 256. 
 
 to the pages.] 
 
 Jackson v. Robbins, 749. 
 
 V. Rounseville, 27. 
 
 V. Salmon, 359. 
 
 V. Schutz, 60. 
 
 V. Stevens, 948. 
 
 V. Tibbitts, 297. 
 
 V. Timmerman, 850. 
 
 V. Topping, 295, 782, 
 
 V. Van Hosen, 143. 
 
 V. Von Zedlitz, 640. 
 
 V. Waldron, 720. 
 
 V. Walsh, 568. 
 
 V. Waters, 80. 
 
 V. Woodruff, 835. 
 Jackson County Horse R. Co. v. Inter- 
 state Rapid Transit R. Co. 378. 
 Jacob V. State, 63. 
 Jacobs V. Jacobs, 212. 
 JafFe V. Harteau, 2^4. 
 Jamaica Pond Aqueduct Corporation v. 
 
 Chandler, 88,97,406. 
 James v. Allen, 614, 615. 
 
 v. Dean, 290. 
 
 V. Morey, 149, 242, 590. 
 Jamison v. Glascock, 593. 
 Jarnigan v. Jarnigan, 180. 
 JefFers v, Lampson, 665. 
 Jellett V. Rhode, 319. 
 Jenkins v. Continental Ins. Co. 805. 
 
 V. Fahey, 89, 143. 
 
 V. Freyer, 659. 
 
 V. Hughes, 615. 
 
 V. Jenkins, 296 
 
 V. Pye, 723. 
 
 V. Reynolds, 898. 
 
 V. Walter, 577. 
 Jenks V. Langdon, 823, 
 Jenny v. Jenny, 160. 
 Jersey City v. Central R. Co. 8,^3. 
 
 & Bergen R. R. v. Jersey City & 
 Hoboken Horse R. R. 443. 
 Jessup V. Bridge, 801. 
 Jeter v. Glenn. 888. 
 Jewell V. Warner, 132. 
 Jewett V. Slocton, 916. 
 Jiska V. Ringgold Co. 854. 
 Johnanson v. Boston & M. R. Co. 515. 
 Johnson v. Boston, 444. 
 
liv 
 
 TABLE OF CASES CITED. 
 
 [References 
 
 Johnson v. Brailford, 912. 
 
 V. Hargrove, 301, 302. 
 
 V. Hart, 948. 
 
 V. Hosford, 804. 
 
 V. Johnson, 136, 160, 355, 356. 
 
 V. Jordan, 436, 437, 873. 
 
 V. Mayne, 6ro. 
 
 V. McGrew, 795. 
 
 V. Mcintosh, 78, 80, 81. 
 
 V. Oppenheim, 284, 327. 
 
 V. Prussing, 318, 346. 
 
 V. Quaries, 650. 
 
 V. Richardson, 5. 
 
 V. Skillman, 505, 507. 
 
 V. Smith, 920. 
 
 V. Stevens, 916. 
 
 V. Taber, 878. 
 
 V. Valentine, 662, 663. 
 
 V. Webster, 808. 
 
 V. Wiseman, 45. 
 ohnston v. Glancy, 338. 
 
 V. Hyde, 407. 
 
 V. Spicer, 212, 214. 
 
 V. Vandyke, 165. 
 Jones V. Berkshire, 797. 
 
 V. Bramblet, 96, 136. 
 
 V. Bryant, 894. 
 
 V. Chantry, 484. 
 
 V. Clifton, 208, 209. 
 
 V. Collins, 858. 
 
 V. Dove, 267. 
 
 V. Fey, 959. 
 
 V. Habershan, 76, 610, 760. 
 
 V. Jones, 176. 
 
 V. Lamar, 193. 
 
 V. Lovelass, 874. 
 
 V. McPhillips, 841. 
 
 V. Miller, 708. 
 
 V. Shewmaker, 911. 
 
 V. Smith, 850. 
 
 V. Stanton, 920. 
 
 V. Strong, 957. 
 
 V. Towne, 28. 
 
 V. United States, 766. 
 
 V. Van Doren, 585. 
 
 V. Wagner, 17. 
 
 V. Williams, 619. 
 Jordan v. Cheney, 149, 807. 
 
 are to the pages.] 
 
 Jordan v. Rouse, 856. 
 
 Joscelyn v. Nott, 757. 
 
 Joslyn V. McCabe, 53. 
 
 Jubsom V. Malloy, 103. 
 
 Jungerman v. Bovee, 46. 
 
 Kabley v. Worcester Gas Light Co. 249. 
 
 Kade v. Lanber, 176. 
 
 Kaiser v. St. Paul, Stillwater & Taylor's 
 
 Falls R. R. 443. 
 Kane v. Gott, 761. 
 
 v. N. Y. Elev. R. Co. 442, 468. 
 
 V. Vandenburgh, 144. 
 
 V. Weigley, 890. 
 
 Co. Suprs. V. Hariington, 349. 
 Kansas v. Ziebold, 844. 
 
 Cent. R. Co. v. Allen, 449, 450. 
 Kaufifman v. Pres. Cong. 147. 
 Kavanaugh v. City of Brooklyn, 581. 
 Keane v. Cannovan, 283. 
 Kearnes v. Hill, 881. 
 Kearney v. Vaughn, 894. 
 Keating v. Cincinnati, 476. 
 
 Co. V. Marshall Co. 23. 
 Keats V. Hugo, 454, 456, 457. 
 Keegan v. Geraghty, 827. 
 Keele v. Cunningham, 919. 
 Keeler v. Eastman, 372. 
 Keenan v. Cavanaugh, 877. 
 Keener v. Union Pacific R. R. Co. 439. 
 Keffe v. Milwaukee & St. P. R. Co. 516. 
 Kehr v. Smith, 212. 
 Keiper v. Klein, 454, 457. 
 Keisselbrack v. Livingston, 900. 
 Keller v. Harper, 32. 
 Kellersberger v. Kopp, 943. 
 Kelley v. Mains, 144, 771. 
 
 v. Todd, 140. 
 Kellinger v. Forty-second St. & G. St. 
 
 Ferry R. Co. 442. 
 Kellog v. IngersoU, 418. 
 Kellogg V. Robinson, 496, 502, 890. 
 Kellum V. Janson, 312. 
 Kelly V. Rosenstock, 22, 
 Kenard v, Harvey, 343. 
 Kendall v. Gleason, 652. 
 
 V. Granger, 614. 
 
 V. Moore, 354. 
 Kendar v. Milward, 589. 
 
TABLE OF CASES CITED. 
 
 Iv 
 
 [References are to the pages.] 
 
 Kenedy v. Keating, 604. 
 Kenege v. Elliott, 339, 342. 
 Kennard v. Louisiana, 844. 
 Kennedy v. Hoy, 599. 
 Kent V. Dunham, 607. 
 Kenyon v. See, 674. 
 Kepner v. Keefer, 894. 
 Kepplel V. Bailey, 416. 
 Kerr V. Kingsbury, 49. 
 
 V. Merchants' Exchange, 284. 
 V. Merrill, 275. 
 V. Verner, 739. 
 Ketchum v. Buffalo, 107. 
 V. Walsworth, 948. 
 Kej'cs V. Dearborn, 270. 
 
 & Crawford v. Tail, 429, 431. 
 Keyser v. Chicago & G. T. R. Co. 498. 
 Kidd V. Cromwell, 908. 
 V. Dennison, 372. 
 Kidder v. Stevens, 283. 
 Kierv. Peterson, 20, 102, 141. 
 KifFv. Weaver, 808. 
 Killinger v. Reidenhauer, 160. 
 Kilmore v. Howlett, 12. 
 Kimbal v. Lohmas, 69. 
 Kimball v. Cochecho, R. R. Co. 445 . 
 V. Reding, 576. 
 
 V. Second Cong. Parish in Rowley 
 24, 26. 
 King V. Ballentine, 819. 
 V. Carpenter, 850. 
 V. Fowler, 139, 140, 355. 
 V. Lawson, 361. 
 V. Leighton, 883. 
 V.Minneapolis Union R. Co. 847. 
 V. Pardee, 605. 
 V. Rowan, gi8. 
 V. Stetson, 163. 
 V. Talbot, 579, 580. 
 V. Welborn, 940. 
 V. Withers, 774. 
 Kings Co. F. Ins. Co. v. Stevens, 445 . 
 King's Heirs v. King's Adm. 94. 
 Kingsbury v, Burnside, 589. 
 
 V. Collins, 140. 
 Kingsland v. Rapelye, 701. 
 Kingsley v. Hillside Coal and Iron Co. 
 251. 
 
 Kingsley v. Holbrook, 5, 12. 
 Kingsley v. Kingsley, 943. 
 Kinnard v. Daniel, 212. 
 Kinney v. Peclc, 318. 
 Kinsland v. Rapelyea, 696. 
 Kintz v. Long, 848. 
 Kip v. Deniston, 532. 
 Kirby v. Webb, 589. 
 Kirlc V. Hamilton, 841. 
 Kirkham v. Boston, 795. 
 
 V. Mills, 37. 
 Kirkpatrick v. McDonald, 603. 
 Kirtland v. Davis, 939. 
 Kitchen v. Pridgen, 355. 
 Kitteredge v. Woods, 11, 31. 
 Kline v. Beebe, 218. 
 
 V. Kline, 205. 
 Klix V. Nieman, 516. 
 Knapp V. Smith, 170, 953. 
 
 V. White, 879. 
 KnatchbuU v. Hallett,6oo. 
 Knight V. Earl of Plymouth, 581. 
 
 V. Indiana Coal and Iron Co. 
 244,247. 
 
 V. Knight, 614. 
 
 V. Lord Plymduth, 572. 
 Kniskern v. Lutheran Churches of St. 
 
 John and St. Peter, 616, 617. 
 Knolls v. Barnhart, 920. 
 Knowles v. Carpenter, 808. 
 Knowlton v. Bradley, 576, 577. 
 Knox V. Cleveland, 854. 
 
 V. Johnson, 810. 
 
 v. Jones, 599, 757, 761 
 
 V. Knox, 552. 
 Koehring v. MuemminghofF, 336, 899. 
 Kohl V. United States, 844. 
 Konvalinka v. Schlegel, 184. 
 Kraemer v. Deustermann, 585. 
 Kramer v. Cook, 287. 
 
 V. Knauif, 413. 
 Kratz V. Stocke, 895. 
 Kreuger v, Ferrant, 263, 275. 
 Krevet v. Meyer, 307, 310. 
 Krider v. Ramsay, 280. 
 Kucheman v. Chicago, Clinton and 
 
 Dubuque Ry. 443. 
 KuU v. Kull, 113. 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Kuntz V. Kinney, 944. 
 Kurtz V. Hibner, 924. 
 Kutterv. Smith, 44, 48. 
 Kyle V. Kavanaugh, 879. 
 La Bourgeois v. Blank, 930. 
 Lacey v. Clements, 943. 
 Lackman v. Wood, 842. 
 Lacy V. Arnett, 511. 
 Lade V. Holford, 652. 
 
 V. Shepard, 431. 
 La Farge v. Rickert, 335, 899. 
 Lafayette Ins. Co. v. French, 381. 
 Lafferty V. Turley, 917. 
 La Frombois v. Jackson, 831, 834. 
 Lahr v. Metropolitan Elev. Ry. Co, 
 
 461, 462, 465. 
 Laing v. Americus, 508. 
 
 V. Lee, 898. 
 Laird v. Moonan, 818. 
 Lake v. Freer, 591, 650. 
 Lakin v. Lakin, 176, 178. 
 Lamar v. Micou, 572. 
 
 V. Scott, 168, 195. 
 Lamb v. Montague, 922. 
 Lambert's Lessee v, Paine, 97. 
 
 Lamore v. Frisbie, 942. 
 
 Lampertv. Haydel, 635, 640. 
 
 Lamphere v. Low, 49. 
 
 Lampman v. Milks, 437. 
 
 Lamson v. Clarkson. 349. 
 
 Lancaster v. Lancaster, 191. 
 
 Lanfair v. Lanfair, 794. 
 
 Langdon v. Applegate, 820. 
 V. Ingram, 779. 
 V. Sherwood, 864. 
 
 Lange v. Benedict, 581. 
 
 Langford v. Gowland, 625. 
 
 Langley v. Chapin, 806. 
 
 Lanigan v. Kille, 333. 
 
 Laning v. New York Cent. R. Co. 262. 
 
 Lankford v. Green, 345. 
 
 Lansala v. Holbrook,474, 476, 479, 480. 
 481,482, 483. 
 
 Lansdale v. Daniels, 863. 
 
 Lansing v. Goelet. 813. 
 V. Gulick, 230. 
 
 Lapeer Ins. Co. v. Doyle, go8. 
 
 Lapere v. Luckey, 454. 
 
 to the pages.] 
 Lapham V. Martin, 748. 
 Larabee v. Van Alstyne, 188. 
 Larkin v. Avery 311. 
 
 V. Saffarans, 894. 
 Larmore v. Crown Point Iron Co. 510. 
 Lary V. Cleveland, 510. 
 Lassell v. Reed, 29, 31. 
 Lathrop v. Bank, 107, 
 V. Thayer, 371. 
 Lattimer v. Livermore, 407. 
 Laud V. Hoffman, 108. 
 Laughlinv. Wright, 939, 941. 
 Laughran v. Smith, 289, 317, 319. 
 Lavenson v. Standard Soap Co 42, 
 Lavery v. Egan, 194. 
 Lawe v. Hyde, 776. 
 Lawrence v. Combs, 500. 
 V. Haynes, 840. 
 v. McArter, 678. 
 v. Miller, 160. 
 v. Staigg, 336. 
 V. Taylor, 738. 
 v. Tucker, 796. 
 Lawson v. Kolbenson, 617. 
 Lawton v. Rivers, 447, 834. 
 Lawyer v. Cipperly, 617. 
 Lazear v. Porter, 169. 
 Lea V. Johnston, 843. 
 Leadbeater v. Roth, 325. 
 Leak v. Robinson, 760. 
 Leary v. Durham, 884. 
 Leather Manufacturers' Nat. Bank v. 
 
 Morgan, 842. 
 Leathers v. Gray, 696, 706. 
 Leavitt v. Beirne, 634, 635, 645. 
 Leazure v. Hillegas, 107. 
 Lechmere v. Curtler, 625 
 Lee v. Alexander, 803. 
 
 V. Bungardner, 101. 
 V. Fox, 917. 
 v. Lake, 432. 
 V. Lindell, 928. 
 Leech v. Waugh, 428. 
 Leesv. Whitcomb, 898. 
 LefBngwell v. Warren, 109. 
 Le Fort v. Delafield, 585. 
 Legard v. Hodges, 548. 
 Lehman v. Lewis, 605. 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 331 
 
 Lehndorf v. Cope, 665. 
 Leigh V. Barry, 582. 
 Leishman v. White, 276 
 Leitch V. Wells, 814. 
 Leitensdorfer v. Delphy, goo. 
 Leland v. Portland, 428. 
 Lemaster v. Burckhart, 8gg. 
 Lenior v. Rainey, 833. 
 Lennard v. Vischer, 899. 
 Lenow v. Fones, i6g. 
 Lent V. Howard, 33. 
 Leonard v. Burr, 88. 
 
 V. Storrer, 255, 261. 
 
 V. White, 452. 
 Lepage v. McNamara, 628. 
 Leroy v. Beard, 739. 
 
 V. Reeves, 853. 
 Leslie v. Lorillard, 400. 
 
 V. Marshall, 671. 
 Lesley v. Randolph, 35g. 
 Lessee of Borland v. Marshall, 221. 
 Lessees of Sicard v. Davis, 872. 
 Levy V. Brush, 8g7. 
 
 V. Levy, 560, 621. 
 
 V. Martin, 806. 
 Lewis v. Barksdale, 831. 
 
 v. Castleman, 840. 
 
 V. City of St. Louis, 2g5. 
 
 V. Hawkins, 266. 
 
 V. Jones, 44. 
 
 V. Lewis, 5gi, 650, 866. 
 
 V. Perkins, g53. 
 Libbey V. Hodgdon, 107. 
 Lide V. Hadley, 418. 
 Liebschutz v. Moore, 242. 
 Ligare v. Semple, 164. 
 Light V. Light, 187. 
 Lilliebridge v. Lackawanna Coal 
 
 lor. 
 Lincoln v. Edgecomb, 831. 
 
 & Kennebec Bank v. Drumir.ond, 
 786. 
 Lindley v. Miller, 326. 
 Lindsay V. Lynch, 895. 
 Lindsey v. Hawes, 866. 
 V. Leighton, 262. 
 V. Lindsey, 781. 
 Lingard v. Bromley, 922. 
 
 [References are to the pages.] 
 
 Lingart v,. Ridley, 780. 
 
 Linsley v. Coats, 64. 
 
 Linton v. Hart, 321, 329. 
 
 Linzee v. Mixer, g8. 
 
 Lipsky V. Borgmann, 22. 
 
 Liquidators of the Western Bank v. 
 
 Douglas, 576. 
 Litchfield v. Co. of Webster, 875. 
 
 V. White, 570. 
 Lithgow V. Kavenagh, 133. 
 Little V. Herndon, 856. 
 
 V. Lathrop, 500. 
 
 V. Livy, 239. 
 
 V. Ragan, 8g3. 
 
 V. Smith, 820. 
 
 v. Snedecor, g26. 
 
 Kanawha Nav. Co. v. Rice, 336, 
 Littlefield v. Paul, 180. 
 Lively v. Rice, 877. 
 Livemore v. White, ig. 
 Livett V. Wilson, 423. 
 Livingston v. Greene, 143, 753. 
 
 V. Hayward, 722. 
 
 V. Livingston, 239. 
 
 V. McDonald, 417. 
 
 V. Potts, 2g2. 
 
 V. Proseus, 93. 
 
 V. Rector of Trinity Church, 28. 
 
 V. Tanner, 284, 352. 
 
 V. Tomkins, 780. 
 Lloyd V. Inglis, 591, 650. 
 
 V. Lynch, 919, 920. 
 Locke V. Furze, 276. 
 Lockwood V. Lockwood, 2gg, 317, 353. 
 
 V. Marsh, 806. 
 
 V. N. Y. & H. R. R. Co. 858. 
 Logan V. Herron, 284. 
 
 V. Weinholt 212. 
 London v. Greyme, 2g7. 
 Long V. Fitzsimmons, 266. 
 
 V. McDow, 863. 
 
 V. Milford, 56g, 8g3. 
 
 V. Olmstead, 239. 
 Lonkeyv. Cook, 818. 
 Lonsdale Co. v. Moies, 414. 
 Loomis v. Bedel, 332. 
 Looney v. McLean, 262, 263, 274. 
 Lord v. Carton Iron Co. 417. 
 
 Co. 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 
 Lord V. Lord, i88. 
 
 V. Wormwood, 500. 
 Lore V. Stiles, 445. 
 Loring v. Bacon, 23. 
 
 V. Blake, 757. 
 
 V. Harmon, 267. 
 
 V. Melendy, 315. 
 Loughran v. Ross, 46. 
 
 V. Smith, 334. 
 Louisville v. Portsmouth Savings Banlc_ 
 
 343- 
 
 V. University of Louisville, 386. 
 
 Cincinnati & Charleston R. R. 
 Co. V. Letson, 381. 
 
 & N. R. R. Co. V. Koelle, 440. 
 Lounsbery v. Snyder, 327. 
 Love V. Howard, 274. 
 
 V. Wells, 894. 
 Lovell V. Minot, 570. 
 Lovering v. Lovering, 675. 
 Lovrein v. Humboldt Safe Deposit Co. 
 
 807. 
 Low V. Elwell, 311. 
 Lowber v. Bangs, 766. 
 Lowell V. Daniels, 842. 
 
 V. Spalding, 261. 
 
 V. Strahan, 255. 
 Lowman v. Lowman, 807. 
 LowDsdale v. Parrlsh, 428. 
 
 V. Portland, 427, 431. 
 Lowrie v. Ryland, 771. 
 Lucas V. Brooks. 266. 
 
 V. GofF, 913. 
 Lucking v. Wesson, 805. 
 Ludlow V. R. R. Co. 773, 786. 
 Luhrs V. Eimer, 107. 
 Lumb V. Jenkins, 106, 228. 
 Lumbard v. Aldrich, 107. 
 Lund V. Lund, 794. 
 Lunday v. Thomas, 570. 
 Lunt V. Aubers, 193. 
 
 V. Lunt, 763, 
 Lux V. Haggin, 839. 
 Lyles V. Digges, 707. 
 Lyman v. Arnold, 421. 
 
 V. Gedney, 876. 
 
 V. Gipsen, 500. 
 
 V. United Ins. Co. 592, 651, goo. 
 
 to the pages.] 
 Lynch v. Baldwin, 326, 
 
 V. Bernal, 815. 
 
 V. Prendergast, gii. 
 Lynde v. Hugh, 281. 
 Lynn v. Lynn, 604. 
 Lyon v. Odell, 316. 
 Lyons v. Merrick, 500. 
 Maas v. Amana Soc. 18. 
 Maccubbin v. Cromwell, 549. 
 Macdonel v. Weldon, 832. 
 Machias Hotel Co. v. Fisher, 297. 
 Mack V. Patchen, 327, 333. 
 
 v. Wetzlar, 792. 
 Mackey v. Proctor, 221. 
 Macknet v. Macknet, 187, 189. 
 MacLean v. Currie, 254. 
 Macomber v. Nichols, 466. 
 Macon v. Franklin, 511. 
 Madigan v. McCarthy, 42. 
 Maduskav. Thomas, 840. 
 Magill V. Brown, 608, 610. 
 Maginnis v. Brooklyn, 516. 
 Magniac v. Thompson, 210, 213. 
 Magnusson v. Johnson, 793. 
 Maguire v. Park, 42. 
 Mahana v. Blunt, 338. 
 Mahoney v. Libbey, 492. 
 Maier v. Homan, 884 
 Maine v. Cumston, 501. 
 Malcomb v. Malcomb, 126. 
 Malett V. Price, 40. 
 Malloney v. Horan, 158. 
 Mallory v. Hitchcock, 808. 
 Malone v. McLauren, 90. 
 Managh v. Whitewell, 53. 
 Manchester v. Doderidge, 353. 
 
 Bonded Warehouse Co. v. Carr, 
 254. 
 Manderson v. Lukens, 743, 750. 
 
 V. Solomon, 920. 
 Mandlebaum v. McDonnell, 98, 99, 130, 
 
 771, 772. 
 Mangold v. Barlow, 881. 
 Manhattan Bank v. Lydig, 581. 
 Manice v. Manice, 599, 66i, 744, 756. 
 Mann v. Edson, 153. 
 
 v. Mann, 591, 650, 751. 
 
 V. Rogers, 941. 
 
TABLE OF CASES CITED. 
 
 lix 
 
 [References are 
 Manning v. Pippen, 585. 
 
 V. Wasdale, 407, 414. 
 Maraman v. Maraman, 208, 
 Marburg v. Cole, 948, 957. 
 Marcy v. Taj-lor, 431. 
 Margraf v. Muir, 386. 
 Mark v. Murphy, 162. 
 
 V. Patchen, 271. 
 Markillie v. Ragland, 136, 771. 
 Markin v. Priddy, 497. 
 Markoe v. Wakeman, 916, 917. 
 Marquette H. & O. R. Co. v. Harlow, 
 
 345- 
 Marr v. Gilliam, 832. 
 
 V. Marr, gi2. 
 Marseilles v. Kerr, 288. 
 Marsellis v. Thalhimer, 664. 
 Marsh v. Means, 625. 
 Marshall v. Fisk, 529, 547. 
 
 V. Green, I2, 18. 
 
 V. The Baltimore & Ohio R. R. 
 Co. 381. 
 
 V. Trumbull, 445. 
 Marston v. Gale, 507. 
 Martin v. Alter, 793. 
 
 V. Funk, 589. 
 
 V. Knapp, 13, 355. 
 
 V. Martin, 347. 
 
 V. Pond, 812. 
 
 V. Rushton, 843. 
 
 V. Smith, 933. 
 
 V. Stimpson, 502. 
 
 V. Strachan, 658. 
 
 V. Waddell, 80. 
 Martindale v. Alexander, 924. 
 Martzv. Eggemann, 874. 
 Marvin v. Brewster, 17. 
 
 V. Marvin, 180, 343. 
 Marwick v. Andrews, 774. 
 Mason v. Beach, 811. 
 
 V. Pearson, 853. 
 
 V. Mason, 164, 196. 
 
 V. Powell, 309. 
 
 V. Robinson, 907. 
 
 V. Roe, 856. 
 Massey v. Goyder, 480, 481. 
 
 V. Young, 569. 
 Massot V. Moses, 102, 251. 
 
 to the pages.] 
 Massure v. Noble, 840. 
 Masters v. Madison County Ins. Co. 
 105. 
 
 V. PoUie, 15. 
 Masterson v. Beasley, 858. 
 Masuryv. Southworth, 485. 
 Mathes v. Smart, 616. 
 Mathews V. Bensel, 510. 
 Matlow v. Cox, 841. 
 Matson v. Calhoun, 495. 
 
 v. Melchor, 942. 
 Matteson v. New York Central R. Co, 
 
 959- 
 Matthews v. Bliss, 918. 
 
 V. Stevenson, 590. 
 
 V. Ward, 860. 
 Mattix V. Weand, 810. 
 Mauldin v. Cox, 267. 
 Maule V. Weaver, 890. 
 MauU V. Wilson, 143. 
 Maxcy v. Clabaugh, 857. 
 Maxon v. Grey, 196. 
 Maxwell v. Bay City Bridge Co. 513. 
 
 V. East River Bank, 412. 
 
 V. Featherston, 705. 
 
 V. McAtee, 421 446, 449. 
 May V. Adams, 879. 
 
 V. Le Claire, 879, 880. 
 
 V. Rumney, 160. 
 Maybee v. Moore, 895. 
 Mayburry v. O'Brien, 157, 163. 
 Mayer v. Adrian, 897, 899. 
 Maynard v. Cable, 290. 
 
 V. Esher, 422, 459. 
 
 v. Moore, 890. 
 Mayo V. Tudor, 193. 
 Mayor, etc. of Philadelphia v. Elliott, 
 
 761. 
 McAUester v. Landers, 271. 
 McAllister v. Norvenger, 177. 
 McArthur v. Scott, 659, 760. 
 McArther v. Carrie, 511. 
 McCabe v. Fowler, 573, 580. 
 McCafferty v. McCafTerty, 175. 
 McCafFrey v. Woodin, 801. 
 McCall V. Chamberlain, 261, 497. 
 
 v. Doe, 833. 
 McCartie v. Teller, 204, 207. 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 [References are 
 McCarthy V. White, 831. 
 McCartney v. Bostwick, 593. 
 McClanahan v. Porter, 189, 194. 
 McClaren v. Indianapolis & V. R. Co, 
 
 514. 
 McClary v. Bixby, 943. 
 McCleary v. Ellis, 98, 
 McClinton v. Dana, 141. 
 McClung V. Steen, 585. 
 McClure v. Jeffrey, 336, 8gg. 
 McComb V. Gilkey, 798. 
 McComble v. Davies, 818. 
 McConnell v. Blood, 41, 42, 46. 
 McCormicv. Horan, 417. 
 McCormick v. Baltimore, 426. 
 
 V. Huse, 876. 
 
 V. Irwin, 806. 
 McCormick Harvesting Machine Co. 
 
 Gates, 777. 
 McCorry v. King, 833. 
 McCosker v. Brady, 593. 
 McCoy V. Quick, 817. 
 
 V. Scott, 585. 
 McCraney v. McCraney, 175. 
 McCray v. Lipp, 708, 709. 
 McCrea v. Marsh, 504. 
 McCready v. Sexton, 857. 
 McCuUough V. Hutchinson, 891. 
 
 V. Md., 384,852. 
 McCullom V. McKenzie, 913. 
 McCurdy v. Canning, 948, 951. 
 McDaniel v. Grace, 90. 
 McDavid v. Wood, 50. 
 McDermott v. French, 960. 
 McDevitt V. Frantz, 604. 
 McDoald V. Kellogg, 793. 
 McDonald v. Lindall, 445. 
 McDonough v. Murdoch, 771. 
 McDougall V. Sitcher, 308, 
 McDuff, V. Beuchamps, 948, 957. 
 McEntire v. Brown, 856. 
 McFaddenv. Allen, 45. 
 McGary v. Hastings, 333. 
 McGaughey v. Brown, 565. 
 McGeev. Hall, 184. 
 
 V. McGee, 214. 
 McGinnis v. Watson, 617. 
 McGiveny v. McGivney, 585. 
 
 to the pages.] 
 McGoon V. Scales, 76. 
 McGowan v. Lufburrow, 193, 
 
 V. McGowan, 602. 
 McGrath v. City of Boston, 250. 
 McGuire v. Grant, 476, 479. 
 McHenry v. Philadelphia & C. R. Co. 
 
 369. 
 Mclvain v. Smith, 103, 63:, 640. 
 Mclverv. Cherry, 157. 
 McKeever v. Jenks, 496. 
 McKenna v. Railroad Co. go8. 
 McKinney v. Griggs, 616. 
 
 V. Peck, 299. 
 McKinster v. Babcock, 796. 
 McKissack v. Bullington, 242. 
 McKissick v. Pickle, 616, 617. 
 McLachlan v. McLachlan, 774. 
 McLaren v. Pennington, 386. 
 McLarren v. Brewer, 586, 603. 
 McLean v. Piedmont & A L. Ins. Co. 
 
 335, 899- 
 
 V. Rocky, 315. 
 McMahon v. Macy, 591, 651. 
 
 V. Newcomer, 708. 
 McMasters v. Negley, 228. 
 McMaugh V. Burke, 485. 
 McMillan v. Solomon, 284, 285. 
 
 V. Staples, 484. 
 McMillen v. Anderson, 844. 
 McMillian v. Lee Co. 854. 
 McMurray V. Moran, 411. 
 McNamara v. Culver, 793. 
 McNeer v. McNeer, 954. 
 McNeil V. Borland, 817. 
 
 V. Kendall, 242, 277, 295. 
 McPherson v. Snowden, 932. 
 McQuade v. Whaley, 937. 
 McRea v. Central Nat. Bank, 40, 41, 51, 
 
 52- 
 McRee v. Wilmington & R. R. Co. 370. 
 McWilliams v. Kalbach, 840. 
 Means v. Moore, 912. 
 Mebane v. Mebane, 631, 638, 639. 
 Mechelen v. Wallace, 254. 
 Meek v. Breckenridge, 509, 511. 
 Meeker v. Winthrop Iron Co. 258. 
 
 V. Wright, 948, 955. 
 Meigs V. Lister, 455. 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 R. Co. 
 
 P. R. Co. 
 
 R. Co. 395. 
 
 V. Fitchburg R. R. 
 
 900. 
 Bank 
 
 V. St. Louis 
 
 Meily v. Wood, 925. 
 Meinertzhagen v. Davis, 557 
 Mellen v. Morrill, 261. 
 Mellor V. Valentine, 818. 
 Memphis & Little Rock R. 
 
 Berry, 384. 
 Mercer v. Selden, 831. 
 Mercier v. Chase, 940. 
 Merrick v. Van Santvoord, 107. 
 Merrill v. Emory, 774. 
 
 V. Englesby, 894. 
 Merriman v. Chicago, R. L 
 
 516. 
 Merritt v. Home, 218, 222. 
 
 V. Judd, 43, 46. 
 
 V. Parker, 407. 
 
 V. Scott, 211. 
 
 Merry v. Hallett, 7. 
 Messenger v. Penn 
 Metallic C. C. Co. 
 
 Co. 446. 
 Metcalf V. Putnam 
 Metropolitan Nat. 
 
 Dispatch Co. 801. 
 Meyer v. Berlandi, 819. 
 Miami Coal Co. v. Wigton, 843. 
 Mibane v. Patrick, 434. 
 Michigan Bank v. Hastings, 386. 
 Michoud V. Girod, 564, 565. 
 Mickel V. Miles, 339, 341. 
 Middlebrook v. Corwin, 29, 31, 241. 
 Middlesex R. R. Co. v. Boston & Chel- 
 sea R. R. Co. 394. 
 Middleton v. Sinclair, 850. 
 Middletown Sav.Bank v. Bacharach, 920. 
 Midmer v. Midmer, 605. 
 Miles V. Lingerman, 842. 
 Miles V. Miles, 144. 
 MilhoUand v. Tiffany, 806. 
 Miller v. Gable, 616. 
 
 V. Lullman, 874, 
 
 V. Macomb, 751. 
 
 V. Mendenhall, 876. 
 
 V. Miller, 721, 722, 825, 933. 
 
 V. Plumb, 45. 
 
 V. Proctor, 581. 
 
 V. Rowan, 615. 
 
 V. Sherry, 894. 
 
 [References are to the pages.] 
 
 Miller v. Teachout, 608. 
 
 V. Thatcher, 589. 
 Millet V. Ford, 705. 
 Millett V. People, 4. 
 Milligan v, Wehinger, 497. 
 Millikin v. Welliver, 187. 
 Milling V. Becker, 287. 
 Mills V. Dennis, 813. 
 
 V. Farmer, 627. 
 
 V. Thorne, 706. 
 
 V. Van Voorhies, 164. 
 Milner v. Freeman, 604. 
 Miltimore v. Miltimore, 175. 
 Minar v. Brown, 958. 
 Minchell v. Minchell, 751. 
 Miner v. McLean, 853, 856. 
 
 V. N. Y. Central & H. R. R. Co. 
 
 393- 
 Minneapolis Co. v. St. Paul Co. 53. 
 Minnesota Co. v. St. Paul Co. 41. 
 Minnig v. Batdorff, 663, 664. 
 Minor v. Deland, 500, 501. 
 
 V. Rogers, 589. 
 
 V. Sharon, 262. 
 Minot V. Joy, 286. 
 
 V. Prescott, 773. 
 Minshall v. Lloyd, 47. 
 Minturn v. Smith, 856. 
 Missouri v. Lewis, 844. 
 
 Pac. R. Co. V. Humes, 498. 
 
 Valley Land Co. v. Barwick, 14. 
 Mitchell V. Burnham, 794. 
 
 V. Hamilton, 237. 
 
 V. Hazen, 916. 
 
 V. Read, 569. 
 
 V. Starbuck, 928. 
 
 V. Vickers, 913. 
 
 V. Warner, 418, 489. 
 
 V. Word, 168. 
 Mitford V. Reynolds, 609, 619. 
 Mix V. Coles, 803. 
 Mixner v. Munroe, 361. 
 Moale V. Buchanan, 900. 
 Mochon V. Sullivan, 816. 
 Moelle V. Sherwood, 880. 
 Moffat V. Strong, 327. 
 Moggridge v. Thackwell, 627. 
 Mohawk Bank v. Atwater, 850. 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 
 Mohawk Bridge Co. v. Utica & S. R. Co. 
 
 379- 
 Monroe v. VanMeter, 229. 
 Montague v. Dent, 45. 
 
 V. Richardson, 944. 
 
 V. Selb, gi8. 
 Montgomery v. Handy, 497. 
 
 Plank Road Co. v. Webb, 2S3. 
 Montooth V. Gamdle, 251. 
 Moody V. McClelland, 484. 
 Moody V.Moody, 806. 
 Mooers v. White, gri. 
 Moon V. Jennings, 920. 
 Moore V. Boyd, 304. 
 
 V. Brown, 853. 
 
 V. Cable, 804. 
 
 V. Harvey, 345. 
 
 V. Hegeman, 179. 
 
 V. Holmes, 191. 
 
 V. Jackson, 653. 
 
 V. Kent, i63. 
 
 V. Littel, 143, 665, 666, 668, 693. 
 
 V. Luce, 149. 
 
 V. Lyons, 66l, 662, 663, 664. 
 
 V. Miller, 244, 247, 908. 
 
 V. New York, 159, 165. 
 
 V. Page, 208, 212. 
 
 V. Pitts, 278. 
 
 V. Rawson, 503, 504. 
 
 V. Rollins, 157. 
 
 V. Stinson, 585. 
 
 V. The Mayor, 164. 
 
 V. Townsend, 371. 
 
 V. U. S. 68. 
 
 V. Wingate, 782. 
 
 V. Wood, 48, 890. 
 Moran v. Leazotte, 878. 
 Moreland v. Page, 877. 
 Moreno v. McCown, 193. 
 Morey v. Sohier, 913. 
 Morford v. Dieffenbacker, 136. 
 Morgan v. Clayton, 604. 
 
 V. Louisiana, 377. 
 
 V. Morgan, 355. 
 
 V. Stevens, 913. 
 
 V. Whitmore, 798 
 Morice v. Bishop of Durham, 545, 614, 
 615, 619. 
 
 to the pages.] 
 Morison v. Moat, 560. 
 Morland v. Cook, 410. 
 Morley v. Boothby, 8g8. 
 
 V. Taylor, 428. 
 Morrant v. Gough, 591. 
 Morrill v. Mackman, 318, 505. 
 
 v.Noyes, 801. 
 
 V. Robinson, 335, 899. 
 
 V. Wabash, 776. 
 Morris v. Nixon, 794. 
 
 V. Wallace, 578. 
 Morrison v. Bassett, 267. 
 
 V. Chadwick, 331. 
 
 V. King, 484. 
 
 V. Latimer, 485. 
 
 V. Marquardt, 454, 457. 
 Morse v. Copeland, 501. 
 
 V. Morse, 589. 
 Mortimer v. Brunner, 328. 
 Morton v. Noble, 158. 
 Morton v. Reeds, 856. 
 Mosher v. Yost, 136. 
 Moss V. Warnes, 944. 
 Motley V. Sargent, 876. 
 Mott V. Palmer, 5, 22, 35, 36, 496. 
 
 V. Pa, Cent. R R. Co. 845. 
 Mower V. Hanford, 892. 
 Mowry V. Stogner, 908. 
 Mugford V. Richardson, 303. 
 Mulford V. Peterson, 850, 89a 
 Mullen V. Prior, 283. 
 
 V. Strieker, 454, 456, 457. 
 Mumford v. Brown, 277. 
 
 V. Whitney, 18, 28, 513. 
 Mundy v. Mundy, 912. 
 Munger v. Curtis, 819. 
 
 V. Perkins, 151. 
 Munic. No. 2 v. Orleans Cotton Press, 
 
 860. 
 Munn V. 111. 388. 
 Munnay v. Smith, 805. 
 Munro V. Merchant, 835. 
 Murchie v. Gaytes, 417. 
 Murdock v. RatclifT, 315. 
 Murfitt V. Jessop, 771. 
 Murphy V. Hendricks, 802. 
 
 v. Rooney, 900. 
 Murray v. Balou, 814. 
 
TABLE OF CASES CITED. 
 
 Ixiii 
 
 [References are 
 Murray v. Dake, goo. 
 
 V. Lylburn, 814. 
 
 V. Oliver, gii. 
 
 V. Sermon, 859. 
 
 V. Van Derlyn, 496. 
 Murry V. Ballou, 193. 
 Musham v. Musham, 605. 
 Mussey v. Pierre, 228. 
 
 V. Scott, 306, 308. 
 Myer v. Hobbs, 484. 
 Myers v. Burns, 276. 
 
 V. Croft, 108. 
 
 V. Ford, 942. 
 
 V. Gemmel, 327, 422, 457, 459. 
 
 V. Myers, 659. 
 Mygatt V. Coe, 887. 
 Myrick v. Dame, 335, 899. 
 
 V. Hasey, 820. 
 Nail V. Maurer, 213, 214. 
 Nail V. St. Louis K. C. & N. R. Co. 497. 
 Nance v. Alexander, 345. 
 Nash V. Drisco, go8. • 
 
 V. Morley, 615. 
 Naumberg v. Young, 275. 
 Naylor v. Field, 953. 
 Neal V. Gillaspy, 848. 
 Neale v. Neale, 8g6. 
 Needles v. Needles, 724. 
 Neel V. Neel, 141, 142, 366. 
 Negus V. Negus, 913. 
 Neifert v. Ames, 343. 
 Neilson v. Harford, 908. 
 
 V. Lagow, 552 560, 591. 
 Neligh V. Michenor, 796, 800. 
 Nelson v. Boyce, 803. 
 
 V. Davis, 553. 
 
 V. Goebel, 856. 
 
 V. Liverpool Brewing Co. 260, 
 261. 
 Nestal V. Schmid, 604, 
 Nettleton v. Sikes, 16, 18. 
 Neves V. Scott, 212. 
 New V. NicoU, 590. 
 
 New England Trust Co. v. Eaton, 570. 
 New Jersey R. & Transp. Co. v. West, 
 
 452. 
 New Orleans Ins. Asso. v. Jameson. 
 939. - 
 
 to the pages.] 
 
 New Orleans M. & C. R. Co. v. Ban- 
 ning, 484. 
 
 Nat. Bank Asso. v. Adams, 791, 
 7g2. 
 Newark M. E. Church v. Clark, 608, 
 
 850. 
 Newbury v. Armstrong, 8g8. 
 Newell v. Hill, 501. 
 
 v. Minn., L. & M. R. Co. 466. 
 
 V. Woodruff. 322. 
 Newhall v. Burt, 881. 
 Newhoff V. Mayo, 461. 
 Newman V. Chapman, 813. 
 
 V. Studley, 832. 
 Newsom v. BuflFerlow, 900. 
 Newton v. Cook, 145. 
 
 v. McLean, 881. 
 
 v. Preston, 589. 
 Neyer v. Miller, 262. 
 Niagara Bank v. Rosevelt, 810. 
 Nichols v. Allen, 614. 
 
 V. Denny, 933. 
 
 v. Eaton, 103, 104, 105, 630, 632, 
 635, 637, 639, 641, 646, 647, 
 
 772. 779- 
 
 V. Levy, 633. 
 
 V. Luce, 418. 
 
 V. Marspand, 4gi. 
 Nicholson v. Erie R. Co. 452, 516. 
 Nickell et al. v. Hanqy et al. 645. 
 NicoU V. N. Y. & E. R. R. Co. 720, 727, 
 773. 777, 782, 786, 787. 
 
 V. Scott, 136. 
 
 Nightingale v. Burrell, 126, 133, 
 662, 745, 749, 750, 753, 757, 
 762. 
 
 V. Goulburn, 560. 
 
 v. Hidden, 529. 
 Niles V. Gray, 748. 
 Nimmo v. Davis, 723. 
 Noble v. Smith, 11. 
 Nobles V. Bates, 884. 
 Noel V. McCrory, 294. 
 Norfolk & W. R. R. Co. v. Harman, 515. 
 Norman v. Burnett, 589. 
 Norris v. Nilner, 778. 
 
 v. Thompson, 614. 
 Norse v. Ranno, 428, 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 [References are 
 North Penn. R. R. Co. v. Rehman, 500. 
 Northcut V. Whipp, 227. 
 Northeastern R. R. Co. v. Sineath, 497. 
 Northern Bank v. Roosa, 315, 
 
 Cent. R. Co. v. Canton Co. 46, 
 
 47, 53- 
 
 Trans. Co. v. Chicago, 846. 
 Northrop v. Boone, 897. 
 Norton v. Valentine, 503. 
 Nott V. Hill, 724. 
 Nourse V. Merriam, 681. 
 Nutwell V. Tongue, 840. 
 N. Y. C. & St. L. R. Co. V. Randall, 244. 
 N. Y. Dry Dock v. Hicks, 107. 
 
 & Erie Ry. Co. v. Skinner, 497. 
 
 & H. R. R. Co. V. Forty-Second 
 Street Co. 380. 
 
 L. Ins. Co. V. Milnor, 446. 
 
 etc., R. R. Co. V. Boston R. R- 
 
 397- 
 
 & S. C. Co. V. F. Bank, 402. 
 N. W. Conference v. Myers, 597. 
 Oakland R. R. Co. v. Brooklyn Co. 380. 
 Oates V. Cook, 553. 
 O'Brien v. Ball, 348. 
 
 V. Elliot, 184. 
 
 V. Wetherell, 788. 
 O'Connor v. Memphis, 275. 
 Odell V. Odell, 611, 757, 761. 
 O'Donnell v. Brehen, 12. 
 
 V. Segar, 569. 
 O'DriscoU v. Roger, 188. 
 O'Ferrall v. Simplot, i6o. 
 Offutt V. Scott, 926. 
 Ogden V. Harrington, 853. 
 
 V. Murray, 584. 
 
 V. Prentice, 597. 
 Ogilvie V. Hull, 327. 
 Oglesby Coal Co. v. Pasco, 842. 
 O'Hear v. De Goesbriand, 28. 
 Ohio & M. R. Co. V. Clutter, 497. 
 
 V. Wheeler, 381. 
 Oliver v. Robinson, 857. 
 
 V. Rumford Chemical Works, 505. 
 OUiver v. Piatt, 603. 
 Ommany v. Butcher, 614. 
 Onstott V. Murray, 429. 
 Ordway v. Remington, 343. 
 
 to the pages.] 
 
 Oregon R. & N. Co. v. Mosuer, 45. 
 
 V. Oregonian R. Co. 385, 393. 
 Oregon Steam Nav. Co. v. Windsor, 
 
 884. 
 O'Rieley v. Diss, 497. 
 Orleans v. Chatham, 549. 
 Ormiston v. Olcott, 578. 
 Ormsby v. Barr, 850. 
 O'Rorke v. Smith, 437. 
 Orviss V. Powell, 810. 
 Osborne v. Endicott, 605. 
 Osgood V. Howard, 42. 
 Oskaloosa Water Co. v. Oskaloosa 
 
 Board of Equalization, 23. 
 Osterberg v. Union Trust Co. 815. 
 Osterhout v. Shoemaker, 267. 
 Oswald V. Gilfert, 274. 
 Otis V. McLellan, 675. 
 
 V. Parshley, 721. 
 
 V. Prince, 780. 
 
 V. Smith, 24. 
 Ott V. Sprague, 945. 
 Ottenhouse v. Burleson, 897. 
 Ottumwa, C. F. & St. P. R. R. Co. v. 
 McWilliams, 876. 
 
 Woolen Mills Co. v. Hawley, 41, 
 52, 53- 
 Ould V. Washington Hospital, 760. 
 Oury V. Saunders, 806. 
 Outland v. Bowen, 757. 
 Overall v. Overall, 912. 
 Overdeer v. Lewis, 307. 
 Overend v. Gibb, 581. 
 
 V. Gurney, 581. 
 Overseers v. Bank, 605. 
 Overton v. Lacy, 932. 
 Owen V. Cowley, 170, 953. 
 
 V. Slatter, 172. 
 Owens V. Owens, 824. 
 Owings V. Jones, 260. 
 Oxley V. Lane, 772. 
 Pace V. Chadderdon, 804. 
 Pacific. Nat. Bank v. Windram, 640. 
 Packard v. Ames, 775. 
 Packer v. Rochester & Syracuse R. R. 
 
 Co. 419. 
 Pafaflf V. Terra Haute R. R. Co. 439. 
 Pa. Gas Co. v. Versailles Co. 102. 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 [References are 
 Pa. R. Co. V. St. Louis, A. & T. H. R. 
 
 Co. 393. 
 Page V. Dupuy, 311. 
 
 V. Heineberg, 107. 
 
 V. Palmer, 776. 
 
 V. Webster, 920. 
 Paine v. Bonney, 816. 
 
 V. Hatchings, 836. 
 Paley v. Umatilla County, 612. 
 Palmer v. Bearing, 262. 
 
 V. Grand Junction Railway, 395. 
 
 V. Hartford F. Ins. Co. 879. 
 
 V. Stebbins, 884. 
 
 V. Wetmore, 327, 457, 458, 459. 
 Pancake v. CaufTman, 881. 
 Pangborn v. Westlake, 820. 
 Panton v. Holland, 476. 
 Pardee v. Van Auken, 805. 
 Parish v. Whitney, 501. 
 Parjk V. Castle, 2g8. 
 Parker v. Converse, 659, 
 
 V. Foote, 454, 458. 
 
 V. Hollis, 319. 
 
 V. Ibbetson, 908. 
 
 V. Nightingale, 410, 411. 
 
 V. Overman, 853, 856. 
 Parker v. Parker, 127, 753. 
 
 V. Portland Pub. Co. 510. 
 
 V. Rule, 856. 
 
 et a1. V. Bethel Hotel Com. et al. 
 398. 
 Parkhurst v. Van Cortlandt, 895. 
 Parks V. Boston, 291, 328, 348. 
 Parrott v. Parrott, 569. 
 Parsons v. Camp, 507. 
 
 V. Ely, 676. 
 
 V. Livingston, 942. 
 
 V. Miller, 913. 
 
 v. Moses, 923. 
 
 V. New York Cent. & H. R. R. 
 Co. 262. 
 
 V. Parsons, 751. 
 
 V. Winslow, 780. 
 Partridge v. Cqpp, 210. 
 
 V. Gilbert, 493, 494. 
 Paschall v. Passmore, 775. 
 Pate V. Turner, 267. 
 Paton V. Bowen, 187. 
 
 lo the pages.] 
 
 Patrick v. Morehead, 136. 
 
 Patterson v. Bloomer, 336. 
 
 V. Boston, 2gi. 
 
 V. Ellis, 757. 
 
 V. Hickey, 912. 
 
 V. Mills, 807. 
 
 V. Stoddard, 354. 
 
 V. Winn, 64. 
 Patton V. Axley, 359. 
 
 V. Beacher, 587. 
 Patton V. Rankin, 951. 
 Paul V. Connersville &N. J. R. Co. 410. 
 
 V. Fulton, 548. 
 Paxton V. Marshall, 872. 
 Payne v. Avery, 795. 
 
 V. Becker, 195, 196. 
 
 V. Dotson, 180. 
 
 V. Hathway, 806. 
 
 V. Patterson, 801. 
 
 V. Payne, 911. 
 Payton, v. Smith, 906. 
 Peabody v. Minot, gi6. 
 Peabody v. Evans, 725. 
 Pearson v. East, 604. 
 Pearsons v. Tincker, 818. 
 Pease v. Allis, 904. 
 
 v. Peck, 109. 
 Peck V. Conway, 412. 
 
 V. Goodberlett, 417. 
 
 V. Hiler, 328. 
 
 V. Jones, 328. 
 
 V. Providence Steam Engine Co. 
 876. 
 
 V. Sherwood, 146. 
 
 V. Vandmark, 212. 
 Peckham v. Haddock, 792. 
 
 V. Lego, 143. 
 Peebles v. Pittsburg, 854. 
 Pell V. Mercer, 610, 629. 
 Pells V. Brown, 744, 745, 746, 747. 
 Peltier v. Collins, 898. 
 Pember v, Kingston, 610. 
 Penn. Coal Co. v. Sanderson, 417. 
 
 Mut. L. Ins. Co. V. Semple, 50. 
 Pennington v. Pennington, 126. 
 
 V. Seal, 891. 
 Pennock v. Coe. 801. 
 
 V. Eagles, 808. 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Pennsylvania v. Robison, 305. 
 
 & N. Y. Canal Co. v. Beets, 335. 
 Penny v. Allen, 531. 
 Pennybecker v. McDougal, 42, 43, 45. 
 Penton v. Robert, 47, 48, 49. 
 Peo. V. Caton, 869. 
 People V. Baker, 176. 
 
 V. B. & A. R. R. Co. 388 
 
 V. Brown, 787. 
 
 V. Bueddensick, 491. 
 
 V. City Bank of Rochester, 600. 
 
 V. Clark, 834. 
 
 V. Coleman, 820. 
 
 V. Cook, 892. 
 
 V. Haskins, 342. 
 
 V. Jennings, 136. 
 
 V, Jones, 429. 
 
 V. Knowles, 317. 
 
 V. Livingston, 79, 835. 
 
 V. Manhattan Co. 398, 399. 
 
 V. Mauran, 107. 
 
 V. Mitchell, 854. 
 
 V. Nash, 343. 
 
 V. National Trust Co. 391. 
 
 V. North River Sugar Refining Co. 
 
 399- 
 
 v. Rickert, 248, 319. 
 
 V. Salem, gg. 
 
 v. Smith, 844. 
 
 V. Utica Ins. Co. 378. 
 
 V. Van Rensselaer, 66. 
 
 V. Webster, 558. 
 People ex rel. v. K. & M. T. R. Co. 403. 
 
 N. Y. El. R. R. Co. v. Commis- 
 sioners, 23. 
 People's Nat. Bank of Charleston v. 
 Epstin, 806. 
 
 Sav. Bank v. Denig, 633. 
 Peoria v. Darst, 136. 
 
 V. Simpson, 260. 
 Pepper v. Rowley, 326. 
 Perez v. Raybaud, 277. 
 Perham v. Decatur Co. 854. 
 Perin v. Carey, 560, 607, 609, 619. 
 Perine v. Teague, 354. 
 Perkins v. Clay, 884. 
 
 V. Davis, 154. 
 
 V. Hays, 637. 
 
 to the pages.] 
 Perkins v. Mathes, 616. 
 Perrin v. Blake, 701, 702, 703. 
 
 V. Lepper, 103. 
 Perrine v. Cheeseman, 335, 899, 
 Perry v. Aldrich, 342. 
 
 V. Jackson, 605. 
 
 V. Pearson, 336. 
 Peter v. Beverly, 32. 
 Peterson v. Clark, 375. 
 
 v. Grover, 335, 335, 899. 
 
 V. Mulford, 953- 
 Pettigrew v. Evansville, 846. 
 Petty V. Petty, 160. 
 Peugh V. Davis, 794, 810. 
 Peverley v. Sayles, 944. 
 Pevey v. Skinner, 255. 
 Peynado v. Peynado, 607. 
 Peyton v. Bury, 774. 
 
 V. London, 474, 480. 
 
 V. Stith, 266. 
 Pfanner v. Sturner, 140. 
 Phelps, V. Greene, 929. 
 
 V. Jepsom, 933. 
 
 V. Phelps, 172. 
 Philadelphia v. Elliott, 559. 
 
 V. Fox, 558. 
 
 v. Girard, 755. 
 
 Baptist Asso. v. Hart, 612, 613. 
 
 & R. R. Co. V. Reading & P. R. 
 Co. 25. 
 Philbrick v. O'Connor, 893. 
 Philbrook v. Delano, 592, 651, 796. 
 Philip v. Pope, 831. 
 Phillips V. Boardman, 484, 488. 
 
 v. Burlington Library Co. 453. 
 
 V. Covert, 45g. 
 
 v. Ferguson, 32. 
 
 V. Low, 454. 
 
 V. Monges, izgg. 
 
 v. Thompson, 895. 
 
 V. Wickham, 388. 
 
 V. Winslow, 384, 801. 
 Philly V. Sanders, 840. 
 Phil pot V. Penn, 597. 
 Philpott Vj Elliott, 592, 651. 
 Phipps V. Ackers, 663, 664. 
 
 V. Johnson, 506. 
 
 V. State, 426. 
 
TABLE OF CASES CITED. 
 
 Ixvii 
 
 [References are 
 
 Phipps V. Williams, 662. 
 Phyfe V. Eimer, 329. 
 Piatt V. Oliver, 587. 
 
 V. St. Clair, 919. 
 Pickerell v. Carson, 41. 
 Pickering v. Reynolds, 848. 
 
 V. Shotwell, 557. 
 Pickett V. Ferguson, 336, 899. 
 Pickle V, McKissick, 616. 
 Picot V. Page, 917. 
 Pier V. Carr, 330. 
 Pierce v. Burroughs, 367. 
 
 V. Chase, 949. 
 
 V. Cleland, 508. 
 
 V. Cloud, 511. 
 
 V. Fuller, 884. 
 
 V. Keator, 406, 407. 
 
 V. Pierce, 212, 215, 345, 913. 
 
 V. Sellick, 439, 445, 446. 
 
 V. Somersworth, 388. 
 
 V. Wilson, 570. 
 Pierre v. Fernald, 454. 
 Pifer V. Ward, 162. 
 Pike V. Witt, 307. 
 Pilkington v. Bagley, 592, 651. 
 Pillow V. Roberts, 856. 
 Pinckney v. Pinckney, 187. 
 Pingree v. Coffin, 548. 
 
 V. McDuffie, 445, 
 Pinnock v. Clough, 605. 
 Pitkin V. L. I. R. R. 28. 
 Pitney v. Glens Falls Ins. Co. 597. 
 Pitts V. Cable, 793. 
 
 Pittsburg, F. W. & C. R. Co. v. Bing- 
 ham, 510. 
 
 & Lake Erie R. R. Co. v. Bruce, 843. 
 V. Jones, 397. 
 Place V. Klink, 827. 
 Plum V. Tubbs, 779, 788. 
 Plumer v. Plumer, 30. 
 Plymale v. Comstock, 896. 
 Plympton v. Converse, 516. 
 Poer V. Peebles, 346. 
 Poertner v. Russell, 820. 
 Poindexter v. Henderson, 374. 
 Polhemus v. Empson, 849. 
 Poller v. Barkley, 177. 
 Polk V. Faris, 694. 
 
 to the pages.] 
 
 Polk V. Reynolds, 807. 
 
 V. Rose, 856. 
 Pollingsworth v. Sherman, 835. 
 Pollock V. Webster, 959. 
 Polluck V. Kelly, 949, 957- 
 Polly V. McCall, 834. 
 Poison V, Ingram, 407. 
 Pomeroy V. Lambeth, 355. 
 Pomfrey v. Saratoga Springs, 262. 
 Pomfrit V. Ricroft, 447. 
 Pond V. Bergh, 7. 
 Pool V. Blakie, 136, 229. 
 Poole V. Girard, 945. 
 Poor V. Consadine, 665. 
 
 V. Hazelton, 723. 
 
 V. Oakman, 16. 
 Pope V. Brandon, 382. 
 
 V. Devereux, 504. 
 
 V. Elliott, 104, 631, 633, 635, 639, 
 641, 645. 
 
 V. Henry, 837. 
 
 V. Mead, 195. 
 Porch V. Fries, 218. 
 Porter v. Bradley, 746. 
 
 V. Lazear, 158. 
 
 V. Robinson, 198. 
 
 V. Sandige, 336, 899. 
 
 V, Stone, 428. 
 Portland v. Terwilliger, 775. 
 
 & H. H. S. Co. V. Locke, 605. 
 
 Sec. Unitarian Soc. v. Woodbury, 
 
 549- 
 Post V. Pearsall, 413, 417. 
 
 V. Post, 697. 
 Poston V. Jones, 328. 
 Potter V. Arnold, 279. 
 
 V. Chapin, 620, 628. 
 
 V. Cromwell, 41, 52. 
 
 V. Everitt, 195. 
 
 V. McAlpine, 191. 
 
 V. Mercer, 249. 
 
 V. Thornton, 610. 
 
 V. Titcomb, 822. 
 Potts V. Gilbert, 835. 
 Ponder V. Ritzinger, 155. 
 Powell V. Greenstreet, 168. 
 
 V. Monson & B. Mfg. Co. 190, 
 
 V. Powell, 604. 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 
 Powell V. Smith, 808. 
 Power V. Cassidy, 905. 
 Powers V. Fowler, 898. 
 
 V. Manhattan R. Co. 465 
 Pownal V. Taylor, 548. 
 Pratt V. Attwood, 825. 
 
 V. Bank of Bennington, 149. 
 V. Douglass, 184. 
 Pray v. Hegeman, 548. 
 
 V. Stebbins, 954, 957. 
 Preachers' Aid Soc. v. England, 552. 
 
 V. Rich, 6io. 
 Preble v. Brown, 426. 
 Prentice v. Geiger, 450. 
 Prescott V. Nevers, 835, 922. 
 V. Trueman, 418. 
 V. Williams, 418. 
 Preston v. Bowmar, 877. 
 
 V. Cutter, 894. 
 Prett V. Flamar, 905. 
 Pretty v. Buckmore, 260, 261. 
 Prevost V. Gratz, 588, 893. 
 Prewit V. Wilson, 892. 
 Prince v. Maxwell, 610, 619. 
 V. Minot, 548. 
 V. Price, 179, 379. 
 V. Reeves, 548. 
 V. Thompson, 430. 
 Prichard v. Thompson, 560. 
 Prickett v. Ritter, 318, 354. 
 Priest V. Cummings, 174. 
 Prince V. Case, 42, 507, 513. 
 Pringle v. Dorsey, 620. 
 Pritchard v. Brown, 590. 
 Pritts V. Ritchey, 153. 
 Proprietors v. Lovell, 23. 
 
 etc. V.Grant, 712, 744, 785. 
 Providence County Sav. Bank v. Phalen, 
 267. 
 Steam Engine Co. v. Providence 
 & S. A. R. Co. 876. 
 Pruden v. Love, 508. 
 Prutsman v. Baker, 873. 
 Puget Sound Dressed Beef & Packing 
 
 Co. V. Jeffs, 938. 
 Pugsley V. Aikin, 353. 
 Pumpelly V. Green Bay& M. Canal Co. 
 470, 845. 
 
 to the pages.] 
 
 Purcell V. English, 263, 274. 
 
 Purdy V. Hayt, 762. 
 
 V.Huntington, 149. 
 Purefoy v. Rogers, 662, 742, 750. 
 Purinton v. Northern 111. R. R. Co. 876. 
 Pursell V. Pursell, 191. 
 Pusey V. Desbouveir, 188. 
 
 V. Pusey, 8. 
 Putnam v. Boyd, 877. 
 
 V. Story, 674. 
 
 V. Wise, 334. 
 Putney v. Day, 507. 
 Putzell V. Drovers & Mechanics' Nat. 
 
 Bank of Baltimore, 488. 
 Pynchon v. Stearns, 366. 
 Quackenboss v. Kingsland, 753. 
 Quick V. Milligan, S81. 
 Quidort v. Pergeaux, 953. 
 Quimby v. Manhattan Cloth Co. 51. 
 Quinby v. Conlan, 864. 
 Quincy v. Jones, 474, 484. 
 Quinn v. Britian, 804. 
 
 V. Roath, 336, goo. 
 
 V. Shields, 610. 
 Rabun v. Rabun, 548. 
 Race V. Ward, 414. 
 Railroad Co. v. Skinner, 498. 
 
 V. Sly, 258. 
 Railsback v. Lovejoy, 659. 
 Raines v. Walker, 798. 
 Raley v. County of Umatilla, 775. 
 Ramsdell v. Ramsdell, 144. 
 Ramsey v. Ins. Co. 107. 
 
 V. Jones, 881. 
 Randal v. Kreiger, 152. 
 
 V. Sanderson, 426. 
 Randall v. Rich, 288. 
 Randoll v. Doe, 664. 
 Rangeley v. ^lidland R. Co. 414. 
 Rankin v. Shaw, 938. 
 Rannels v. Rannels, 837. 
 Ranney v. Hardy, 809. 
 Ransom v. Ransom, 229. 
 Rapp v. Matthias, 70S. 
 Raritan Water Power Co. v. Veghte, 
 
 410. 
 Ratliffv. Warner, 748. 
 Raventas v. Green, 11. 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 [References are 
 Rawlins v. Buttell, 178. 
 Rawson v. Uxbridge School Dist. No. 5, 
 
 775- 
 Ray V. Gardner, 840. 
 
 V. Simmons, 589, 
 Raybold v. Raybold, 549. 
 Raynor v. Drew, 804. 
 Read v. Williams, 560, 561. 
 Reade v. Livingston, 212. 
 Reading & P. R. Co. v. Balthaser, 847. 
 Readman v. Conway, 273. 
 Ready v. Kearsley, 529. 
 Reardon v. Thompson, 510. 
 Rector v. Gibbon, 266. 
 
 etc., of Christ P. E. Church v. 
 Mack, 420. 
 Redees v. Hayden, 227. 
 Reed v. Lukens, 548. 
 
 V. Ward, 347. 
 Reeder v. Purdy, 300. 
 
 V.' Sayre, 289. 
 Rees T. Livingston, 548. 
 Reese T. Wallace, 897. 
 Reeves v. Garrett, 187. 
 Reformed Church v. Schoolcraft, 831. 
 Reg. V. Chorley, 503, 5C4. 
 
 V. Wright, 225. 
 Rehden v. Wesley, 573. 
 Reichenbacher v. Pahmeyer, 262. 
 Reider v. Sayer, 334. 
 Reimer v. Stuber, 424, 831. 
 Reinback v. Walter, 939. 
 Reinboth v. Zebre Run Imp. Co. 919. 
 Reining v. N. Y., L. & W. R. Co. 442. 
 Remington v. Campbell, 605. 
 
 Paper Co. v. O'Dougherty, 850. 
 Remsen v. Brinckerhoff, 904. 
 Reno v. McCully, 914. 
 Rerick v. Kern, 507, 513. 
 Respass v. Breckenridge, 924. 
 Rewan v. Lytle, 314. 
 Rex V. Amery, 399. 
 v. Bath, 23. 
 V. Brighton Gas Light & Coke 
 
 Co. 23. 
 V. Enoch, 225 . 
 V. Pasmore, 399. 
 Reynard v. Spence, 188. 
 
 to the pages.] 
 Reynolds v. Hanes, 939. 
 
 V. Pixley, 943. 
 
 V. Reynolds, 178, 334. 
 
 V. Root, 905. 
 
 V. Stark County, 315. 
 Rhoades v. Otis, 507. 
 Rhodes v. Cleveland, 846. 
 
 v. Dunbar, 454. 
 
 V. Magonigal, 850. 
 
 v. McCormick, 24, 941. 
 
 V. Whitehead, 832. 
 Rice V. Boston & Worcester R. R. Co. 
 780. 
 
 V. Lumley, 175. 
 
 V. Nelson, 858. 
 Rich V. Bolton, 355, 356, 357. 
 
 V. Keiser, 283, 289, 
 Richard v. Scott, 479. 
 Richards v. Lady Bergavenny, 94. 
 
 V. Manson, 604. 
 
 V. Northwest Church, 28. 
 
 V. Seal, 581. 
 Richardson v. Butler, 940. 
 
 V. Ellett, 798. 
 
 v. Giiford, 299, 319. 
 
 V. Levi, 879. 
 
 V. Noyes, 744. 
 
 v. Pond, 426, 
 
 V. Stodder, 529. 
 
 V. Vermont Cent. R. R. 476. 
 
 V Woodbury, 798. 
 Richart v. Richart, 187, 189. 
 
 V. Scott, 476. 
 Richl V. Bingenheimer, 529. 
 Richman v. Lippencott, 54. 
 Richmond v. Sacramento Valley R. R. 
 Co. 498. 
 & L. T. Road Co. v. Rogers, 
 3-15- 
 Ricker v. Kelly, 507. 
 Rickey v. Hinde, 345. 
 Rickhow V. Schauck, 358. 
 Riddle v. Littlefield, 255. 
 Ridgeley v. Stillwell, 359. 
 Ridgeway v. Lamphear, 709. 
 Ridgway v. Ingram, 896. 
 Rife V. Geyer, 632, 633, 639. 
 Riggs V. Cragg, 193. 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 [References 
 Riggs V. Palmer, 824. 
 
 V. Sally, 133. 
 Riggs V. Sterling, 941, 942. 
 Right V. Creber, 664. 
 
 V. Darby, 313, 359. 
 Riley, v. Griffin, 877. 
 Ring V. Hardwick, 751. 
 Ringo V. Richardson, 650. 
 Ringgold V. Ringgold, 578, 582. 
 Rippon V. Norton, 638. 
 Ritger V. Parker, 516. 
 Ritter v. Worth, 853. 
 Riverside Co. v. Townshend, 300. 
 Rives V. Frizzle, 663. 
 Robbins v. Deverill, 596. 
 Roberts v. Bye, 485. 
 
 v. Corning, 762. 
 
 V. Hughes, 848. 
 
 V. Moore, 831. 
 
 V. Thorn, 918. 
 
 V. Ware, 605. 
 Robertson v. Wilson, 674. 
 Robie V. Flanders, 195. 
 Robinson v. Brennan, 796. 
 
 V. Campbell, 76. 
 
 V. Eagle, 957. 
 
 V. Harrison, 185. 
 
 V. Mauldin, 560. 
 
 V. McDonald, 924. 
 
 V. Pates, 158. 
 
 V. Peckrell, 76. 
 Robinson v. Perry, 242. 
 
 V. Robinson, 605, 874. 
 
 v- Wiley, 944. 
 Robson V. Osborn, 856. 
 Roch V. Emerson, 615. 
 Roche V. Ullraan, 485. 
 Rockafeller v. Arlington, 876. 
 Rockford v. Hackman, 638. 
 Rockwell V. Hubbell, 939. 
 
 V. Morgan, 157. 
 Rodermund v. Clark, 182. 
 Rodgers v. Cox, 509. 
 Roe V. Bedford, 699. 
 
 V. Trummar, 526. 
 Rogers v. Benson, 948. 
 
 V. Brent, 866. 
 
 V. Brokaw, 51. 
 
 are to the pages] 
 
 Rogers v. Colt, 908. 
 
 V. Crider, 933, 948, 957, 
 
 V. Higgins, 842. 
 
 V. Kneeland, 898. 
 
 V. Libb, 346. 
 
 V. MacKenzie, 922. 
 
 V. Omaha Hotel Co. 817. 
 
 V. Plattville Mfg. Co. 50. 
 
 V. Rogers, 659. 
 
 V. Saunders, 336. 
 Rolf V. Rolf, 458. 
 Roll V. Rea, 881. 
 Rollings V. Evans, 942. 
 Rollins V. Clay, 394. 
 
 V. Fuller, 596. 
 
 V. Moores, 304. 
 
 V. Riley, 529. 
 Roman Catholic Orphan Asylum 
 
 Emmons, 751. 
 Ronkendorffv. Taylor, 853. 
 Rooker v. Perkins, 832. 
 Roosevelt v. Roosevelt, 581. 
 
 V. Thurman, 771. 
 Root V. Godard, 107. 
 
 V. Wadhams, 437. 
 Rose V. Bunn, 502. 
 
 V. Drayton, 911. 
 
 V. Hayden, 586. 
 Roseboom v. Van Vechten, 138. 
 Rosenkrans v. Snover, 461. 
 Rosevelt v. Bank of Niagara, 805. 
 
 v. Fulton, 900. 
 Rosholt V. Mehus, 946. 
 Ross V. Butler, 455. 
 
 V. Gould, 831. 
 
 V. Norvell, 592, 651. 
 
 V. Ross, 825, 826, 827. 
 
 v. Welch, 12. 
 
 V. Whitman, 854. 
 
 v. Worthington, 797. 
 Rottman v. Wasson, 738. 
 Rottmann v. Bartling, 616. 
 Rountree v. Talbot, 136, 771. 
 Rowan v. Portland, 434. 
 Rowbotham v. Wilson, 421. 
 Rowe v. Beckett, 880. 
 
 V. Ware, 738. 
 Rowell V. Doggett, 439. 
 
TABLE OF CASES CITED. 
 
 [References are to the pages,] 
 
 Rowell V. Jewett, 781. 
 Royce v. Guggenheim, 276. 
 Royston v. Royston, 928. 
 Ruch V. Rock Island, 766, 786. 
 Ruckman v. Outwater, 30. 
 
 V. Ruckman, 874. 
 Ruder v. Sayer, 317. 
 RufBer v. Womack, 793. 
 Rugg V. Rugg, 904. 
 Ruggles V. Sherman, 574, 
 Rugh V. Ottenheimer, 232. 
 Ruiz V. Norton, 899. 
 Rumpp V. Gerkens, 808. 
 Runyan v. Coster, 107, 109. 
 Russell V. Allen, 629. 
 
 V. Fabyan, 352, 361, 363. 
 V. Grinnell, 637. 
 V. Howard, 805. 
 V. Hubbard, 509. 
 V. Kellett, 625. 
 Russell V. Richards, 42. 
 
 V. Southard, 794, 810. 
 Rust V. Low, 499, 500. 
 Rutland v. Mandon, 820. 
 Ryan v. Dox, 650. 
 
 V. New York Cent. R. R. Co. 370. 
 V. United States, 802. 
 Ryno V. Darby, 336. 
 Sackett v. Sackett, 64. 
 Sadler v. Hobbs, 582. 
 Saginaw Gas L. Co. v. Saginaw, 379. 
 Salisbury v. Andrews, 501. 
 V. Clarke, 871. 
 V. Marshall, 252. 
 Salmon v. Hoffman, 795. 
 
 Falls Mfg. Co. V. Goddard, 898. 
 Salter v. Salter, 581. 
 Saltonstall v. Banker, 260. 
 Saltonstall v. Sanders, 608, 611, 615. 
 Sampson v. Graham, 53. 
 V. Henry, 306. 
 V. Security Ins. Co. 875. 
 V. ShaefFer, 361. 
 Samson v. Rose, 140. 
 Sanderlin v. Baxter, 406. 
 
 V. Deford, 666. 
 Sanders v. Partridge, 279. 
 V. Wilson, 804. 
 
 Sanderson v. Scranton, 102, 250, 251. 
 
 V. White, 611. 
 Sandford v. McLean, 174. 
 Sands v. Hughes, 568. 
 
 V. Lindham, 98. 
 San Leandro v. Le Breton, 434. 
 Santa Clara Female Academy v. Sullivan, 
 
 659- 
 Sarback v. Newell, 924. 
 Sargent v. Howe, 792. 
 
 V. Salniond, 840. 
 Sari V. Borrdillon, 898. 
 Sarle v. Arnold, 892. 
 Sarles v. Sarles, 15. 
 Saunders v. Mathewson, 906 
 
 V. Pakefield, 898. 
 
 V. Woolman, 917. 
 Savage v. Lee, 895. 
 Sawyer v. Cubby, 88. 
 
 v. Kendall, 835. 
 Say V. Stoddard, 357. 
 Say ward v. Sayward, 656. 
 Scammon v. Chicago, 856. 
 Scanlan v. Wright, 147. 
 Schafer v. Reilly, 809. 
 Schench v. Stumpf, 840. 
 Schenk v. Peay, 858. 
 Schermerhorn v. Negus, 767. 
 Schettler v. Smith, 757, 762. 
 Schier v. Eldridge, 146. 
 
 V. Trinity Church, 28. 
 SchiflFerv. Pruden, 175. 
 Schilling V. Holmes, 283, 328. 
 Schimer v. Mann, 709. 
 Schmaunz v. Goss, 125, 126. 
 Schoch's App. 224. 
 Schoonmaker v. Shelley, 701. 
 Schulenburg v. Harriman, 370, 766, 788. 
 Schultz V. Byers, 475. 
 
 V. Coon, 899. 
 
 V. Lindell, 835. 
 
 V. Pulver, 574. 
 
 V. Schultz, 113. 
 Schuman v. Garratt, 840. 
 Schuyler v. Leggett, 319, 320. 
 
 V. Smith, 294. 
 Schuylkill R. R. Co. v. Schmoele, 271, 
 348. 
 
Ixxii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Schwartz v. Gilmore, 484. 
 Schwoerer v. Boylston Market Asso. 
 
 501. 
 Scott V. Babcock, 856. 
 
 V. Beecher, 318. 
 
 V. Cheatam, 940. 
 
 V. De Peyster, 575, 580. 
 
 V. Guernse)', 924, 928. 
 
 V. Hale 372. 
 
 V. Lunt, 342. 
 
 V. Simons, 262, 325. 
 
 V. State, gi6. 
 Scranton v. Booth, 883. 
 
 V. Phillips, 102, 251. 
 Scribner v. Crane, 904. 
 Seagrave v. Seagrave, 176, 180. 
 Search v. Search, 193. 
 Searle v. Sawyer, 374. 
 Searles v. Ogden, 11. 
 Sears v. Brink, 8q8. 
 
 V. Putnam, 757. 
 
 V. Russell, 560, 
 
 V. Sears, 194. 
 Seaton v. Son, 943. 
 Seawell v. Bunch, 831. 
 Seckler v. Fox, 336, 899. 
 Secombe v. Milwaukee, & St. P. R. Co. 
 
 820. 
 Security Company v. Bryant, 188. 
 Seebold v. Shitler, 775. 
 Seeger v. Pettit, 45. 
 Seeley v. Bishop, 418. 
 Seguine v. Seguine, 905. 
 Seidensparger v. Spear, 507. 
 Sellick V. Sellick, 204. 
 
 V. Starr, 832. 
 Semmes v. U. S. 86i. 
 Senhouse v. Christian, 414. 
 Sergeant v. Steinberger, 933, 
 Serrin v. Grefe, 9. 
 Serviss v. Stockstill, 336, 798, 899. 
 Settembre v. Putnam, 586. 
 Seward v. Jackson, 213. 
 Sewell V. Crewe-Read,6io. 
 
 V. Watson, 840. 
 Sexton V. Chicago Storage Co. 278, 283 
 Seymore v. Freer, 548. 
 Seymour v. Fellows, 170. 
 
 to the pages.] 
 
 Shaeffer v. Weed, 162. 
 
 Shafer v. Wilson, 474, 482, 483, 484. 
 
 Shaffer v. Richardson's Adm'r, 180, 181. 
 
 Shaffner v. Shaffner, 585. 
 
 Shall V. Cisco, 796. 
 
 Shapley v. Abbott, 839, 841. 
 
 Sharp V. Cheatham, 486. 
 
 V. Speir, 856. 
 Sharpe v. Kelley, 361. 
 Shattuck V. Lovejoy, 297. 
 Shaw V. Beveridge, 28. 
 
 V. Carpenter, 802. 
 
 V. Ford, 771. 
 
 V. Hearset, 948. 
 
 V. Hoffman, 305. 
 
 V. Spencer, 559. 
 Shawmut Bank v. Boston, 255, 285. 
 Sheafe v. O'Neil, 195. 
 Shearer v. Shearer, 925. 
 Sheehy v. Flaherty, 300. 
 Sheets v. Selden, 343. 
 Sheffield v. Collier, 511. 
 Shelby v. Smith. 900. 
 Sheldon v. Atkinson, 836. 
 
 V. White, 840. 
 Shell V. Duncan. 166, 168. 
 
 V. Walker, 920. 
 Shellhouse v. State, 427. 
 Shepard v. Manhattan R. Co. 458. 
 
 V. McEvers, 652. 
 
 V. Shepard, 208. 
 Shepardson v. Johnson, 818. 
 
 V. Rowland, 916. 
 Shepherd v. White, 908. 
 Sheppard v. Hunt, 461. 
 Sheridan v. House, 143, 667. 
 
 V. Mayor, T93. 
 Sherin v. Brackett, 835. 
 Sherman v. Champlain Transportation 
 Co. 269, 294. 
 V. Dodge, 529. 
 V. Milwaukee, Lake Shore & 
 
 Western R. R. 443. 
 V. Williams, 276. 
 Sherred v. Cisco, 493. 
 Sherry v. Picken, 12. 
 Sherwood v. Collier, 807. 
 V. Vliet, 834. 
 
TABLE OF CASES CITED. 
 
 Ixxiii 
 
 [References are 
 Shields v. Whitaker, 548. 
 Shillaber v. Robinson, 810. 
 Shinn v. Shinn, 951, 952. 
 Shipley v. Ritter, 15. 
 Shirras v. Caig, 796. 
 Shoemaker's App. 141. 
 Shore v. Wilson, 907. 
 Shores v. Carley, 90. 
 Short V. Coulee, 871. 
 Shotwell V. Harrison, 880. 
 Shrieve v. Stokes, 473, 476, 479, 482. 
 Shriever v. Lynn, 705. 
 Shuee v. Shuee, 212. 
 Shuffleton v. Nelson, 835. 
 Shyrock v. Waggoner, 557. 
 Siceloff V. Redman, 708, 709. 
 Sidener v. Pavey, 806. 
 Sillowayv. Brown, 942. 
 Silsby V. Bullock, 233. 
 Simar v. Canaday, 159, 164, 
 Simmons v. Cloonan, 437. 
 
 V. Gooding, 226. 
 Simms v. Smith, 591, 650. 
 Simon v. Walker, 943. 
 Simons v. French, 876. 
 
 V. Pollard, 502. 
 Simpkins v. Rogers, 355. 
 Simpson v. Ammons, 934. 
 
 V. Pearson, 840, 951. 
 
 V. Sotherne, 349. 
 
 V. Welcome, 905. 
 Sims V. Rickets, 208. 
 Sinclair v. Armitage, 800. 
 
 V. Baggalay, 798. 
 Singleton v. Eastern Counties R. Co 
 
 498. 
 Sinnett v. Herbert, 625. 
 Sick V. Crump, 499. 
 Sisson V. Hibbard, 40. 
 
 V. Seabury, 664, 884. 
 Sistare v. Sistare, 177. 
 Six V. Shaner, 604. 
 Skally V. Shute, 324. 
 Skinner v. Newberry, 171. 
 Slade V. Patten, 560. 
 Slater v. Breese, 802, ' 
 
 Slee V. Boom, 399. 
 Slidell, V. Grandjean, 385. 
 
 to the pages.] 
 Slocum V. Barry, 598. 
 
 V. Seymour, 12. 
 Slowey V. McMurray, 793. 
 Slutz V. Desemberg, 792. 
 Small V. Chicago, R. 1. & P. R. Co. 497. 
 Smalley v. Hale, 569. 
 Smiley V. Gambill, 912. 
 Smith V. Alabama, 68. 
 
 V. Allen, 900. 
 
 V. Barrie, 767. 
 
 V. Bell, 136, 771. 
 
 V. Benson, 18, 42, 916. 
 
 V. Chapney, 12. 
 
 V. Clark, 912. 
 
 V. Cleveland, 855. 
 
 V. Crawford, 876. 
 
 V. Deschaumes, 943. 
 
 V. Dickinson, 738. 
 
 V. Dodge, 877. 
 
 V. Dolby, 912. 
 
 V. Edwards, 761. 
 
 V. Faulkner, 908. 
 
 V. Gibbs, 335, 899. 
 
 V. Gowdy, 256. 
 
 V. Greeley, 900. 
 
 V. Hague, 13. 
 
 V. Hollenback, 604. 
 
 V. Jewett, 141, 780. 
 
 V. Kemp, 426. 
 
 V. Kerr, 284. 
 
 V. Kinard, 418. 
 
 V. King, 840. 
 
 V. Littlefield, 363. 
 
 V. Marriable, 251, 252, 253, 254. 
 
 V. Meiser, 708. 
 
 V. Moore, 212, 632. 
 
 V. Odom, 336, 899. 
 
 V. Osborne, 209. 
 
 V. Parkhurst, 125. 
 
 V. Pbrter, 440. 
 
 V. Puryears, 911. 
 
 V. Quiggans, 939. 
 
 V. Rathbun, 581. 
 
 V. Roberts, 807. 
 
 V. Rowland, 796. 
 
 V. Scholtz, 143. 
 
 V. Sharpe, 144. 
 
 V. Shaw, 160. 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Smith V. Sheeley, io8. 
 
 V. Shepard, 342. 
 
 V. Simons, 244. 
 
 V. Smith, 571, 751, 929, 930. 
 
 V. State, 428. 
 
 V. Stewart, 290. 
 
 V. Suriman, 17. 
 
 V. Taylor, 136, 
 
 V. The Mayor, 397. 
 
 V. Towers, 635, 637, 640. 
 
 V. Townsend, 752. 
 
 V. West, 659, 665. 
 
 V. Woodworth, 180. 
 
 V. Young, 557. 
 
 Paper Co. v. Servin, 42. 
 Smitheal v. Gray, 604. 
 Smither v. Willock, 663. 
 Smyles v. Hastings, 445. 
 Snavely v. Pickle, 792. 
 Snedecker v. Warring, 43. 
 Snell V. Levitt, 504. 
 Snelling v. Mclntyre, 806 . 
 
 V. Utterback, 589, 592, 651. 
 Snow V. Caffe, 170. 
 
 V. Foley, 911. 
 Snowden v. Dales, 630, 638. 
 
 V. Wylas, 511. 
 Snowhill V. Snowhill, 353. 
 Snyder v. Snyder, 157. 
 Society Prop. Gosp. v. Young, 832. 
 Sohier v. Trinity Church, 776. 
 Soulard v. United States, 2. 
 South Carolina R. C. Co. v. Steiner, 
 
 470. 
 Fork Canal Co. v. Gordon, 817. 
 Southard v. Central R. Co. 776, 778, 787. 
 Southern L. Ins. Co. v. Wilkinson, 569. 
 Southern Pacific R. R. v. Reed, 443. 
 Southmayd v. McLaughlin, 484. 
 Southwestern R. R. v. Mitchell, 511. 
 Southwick V. Ellison, 29. 
 Sovern v. Yoran, ig. 
 Sowers v. Cyrenius, 610. 
 Sparhawk v. Bagg, 93. 
 
 V. Cloon, 632, 637, 638. 
 Sparks v. Rawls, 833. 
 Spaulding V. Chicago & C. R. R. Co. 143. 
 
 V. Taylor, 908. 
 
 to the pages.] 
 
 Spealman v. Missouri Pac. R. Co. 497. 
 
 Speed V. Atlantic & P. R. Co. 484. 
 
 Speer v. Fuller, 296. 
 
 Spence v. McDonough, 9. 
 
 V. Steadman, 793. 
 Spencer v. Barnett, 817. 
 
 V. Carr, 256. 
 
 V. Tilden, 335, 899. 
 Spensley v. Valentine, 414. 
 Spessard v. Rohrer, 552. 
 Spindle v. Shreve, 640. 
 SpofFord V. Bucksport & B. R. Co. 843. 
 Sprague v. Baker, 332. 
 
 V. Waite, 448. 
 Spring V. Gray, 831. 
 Springstein v. Schermerhorn, 148. 
 St. Aurorer v. Rivard, 750. 
 
 Felix V. Rankin, 924. 
 
 John V. Quitzow, 349. 
 
 Joseph & D. C. R. Co. v. Ryan, 
 
 839- 
 
 Louis, A. & T. H. H. R. Co. v. 
 Belleville, 839. 
 
 Paul & P. R. Co. V. Schurmeier, 
 470. 
 Stadt V. Lill, 898. 
 
 Stafford Nat. Bank v. Sprague, 793. 
 Stall V. Fulton, 955. 
 Stanfield v. Stilz, 569. 
 Stanley v. Brunswick Hotel Co. 249, 258. 
 
 v. Colt, 765. 
 
 V. Stanley, 664. 
 Stannard v. McCarty, 570. 
 Stanron v. Hitchcock, 939. 
 Stansbury v. Hubner, 777. 
 Staples V. Emery, 29, 30, 31. 
 Stark V. Mercer, 813. 
 
 V. Starr, 866. 
 Starkweather v. Am. Bible Soc. 108, no. 
 Starling v. Blair, 802. 
 Starr v. Starr, 592, 651. 
 State V. Atherton, 431. 
 
 V. Brown, 88. 
 
 v. Carr, 398. 
 
 V. Donnelly, 908. 
 
 V. Farris, 616. 
 
 V. Gerard, 608. 
 
 V. Hayw. 386. 
 
TABLE OF CASES CITED. 
 
 Ixxv 
 
 [References are 
 State V. Hudson Terminal R. Co. 843. 
 
 V. Nudd, 428. 
 
 V. O'Gorman, 840. 
 
 V, Pottmyer, 9. 
 
 V. Ravine Road Sewer Comrs. 846. 
 
 V. Romer, 944. 
 
 V. R. R. Co. 107. 
 
 V. Sherman, 107. 
 
 V. Smith, 185. 
 
 V. Turnpike, 399. 
 
 V. Warren, 608. 
 
 Bank of Bay City v. Chappelle, 
 793- 
 Stanton v. Norfolk & C. R. Co. 470. 
 Stauffer v. Young, 569. 
 Stead V. Course, 856. 
 Stearns v. Palmer, 553. 
 
 V. Richmond, 476. 
 
 V. Sampson, 305, 306, 311. 
 
 V. Washburn, 11. 
 Stebbins v. Jennings, 617. 
 Stedwell v. Anderson, 879. 
 Steel V. Hoe, 898. 
 Steere v. Steere, 549, 591, 650. 
 Steib V. Whitehead, 640, 771, 777. 
 Steines v. Dorman, 98. 
 Steinlein v. Halstead, 307. 
 Stephens v. McCormick, 831. 
 
 V. Sinclair, 850. 
 Stephenson v. Goff, 858. 
 Sterling V. Warden, 310, 312, 507. 
 Steevns v. Gourley, 22. 
 
 V Palmer, 856. 
 
 V. Pierce, 253, 254. 
 
 V, Smith, 153. 
 
 V. State, 4. 
 
 V. Williams, 853. 
 Stevenson v. CofFerin, 934. 
 
 V. Jackson, 942. 
 
 V. Maxwell, 584. 
 
 v. Wallace, 484. 
 Stewart v. Brand, 942. 
 
 V. Clark, 143. 
 
 V. Corbin, 854. 
 
 V. Doughty, 139, 140, 358. 
 
 V. Drake, 332. 
 
 V. Long Island R. R. Co. 281, 282, 
 283. 
 
 to the pages.] 
 
 Stewart v. Preston, 803. 
 
 V. Ross, 229. 
 Still V. Spear, 104; 641, 645. 
 Stilley V. Folger, 210. 
 Stillwell V. Foster, 835. 
 
 V. Doughty, 146. 
 Stilson V. Stilson, 180. 
 Stinson v. Sumner, 158, 175. 
 Stock Growers' Bank v. Newton, 850. 
 Stockard v. Stockard, 589. 
 Stockham v. Stockham, 798. 
 Stockston & C. R. Co. v. Galgiani, 847. 
 Stockwell V. Hunter, 24 284, 285. 
 
 v. Silloway, 892. 
 Stoddard v. Gibbs, 221. 
 Stoddert v. Tuck, 897. 
 Stokes V. Solomones, 616. 
 Stokoe V. Upton, 45. 
 Stone V. Bohn, 343. 
 
 V. Ellis, 786. 
 
 V. Griffin, 593. 
 
 V. Jackson, 452. 
 
 V. Oil. Co., 108. 
 Stonehewer v. Thompson, 805. 
 Storm V. Mann, 374. 
 Story V. Marshall, 208. 
 
 V. N. Y. Elev. R. Co. 442, 458, 
 461, 462, 464, 465, 470. 
 Stott V. Rutherford, 266, 267. 
 Stoubridge Canal Proprs. v. Wheeley, 
 
 378. 
 Stoughton V. Leigh, 157. 
 Stoughton's App. 20. 
 Stout V. Stoppel, 45. 
 Stover V. Kendall, 911. 
 Stow V. Tifft, 163. 
 
 V. Wyse, 840. 
 Stowe V. Peacock, 11. 
 Strader v. Graham, 109. 
 Stratton v. Physio-Medical Institute, 629. 
 Straus v. Rost, 675. 
 Street Ry. Co. v. West Side Street Ry. 
 
 Co. 380. 
 Strickland v. Parker, 43. 
 Strong v. Clem, 195. 
 
 V. Glasgow, 592, 651. 
 
 v. Hines, 569, 
 Stroyan v. Knowles, 477. 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Struettgen v. Wis. Cent. Co. 498. 
 Stuart V. Melish, 543. 
 
 V. Palmer, 844. 
 
 V. Walker, 143. 
 Stubbings v. Evanston, 329. 
 Stuckey v. Keefe, 948. 
 
 V. Stuckey, 604. 
 Studwell V. Ritch, 496. 
 Stultz V. Dickey, 140. 
 Sturtevant v. Norris, 168. 
 
 V. Sturtevant, 591, 650, 651. 
 Stuyvesant v. Woodruff, 516. 
 Sullings V. Richmond, 206, 208. 
 Sullivan v. Davis, 853. 
 
 V. Grafford, 486. 
 
 V. Lafayette Co. Supervisors, 397. 
 
 v. Sullivan. 656. 
 Summers v. Babb, 158, i8g. 
 
 V. Howland, 892. 
 Sun Printing Asso. v. Tribune Asso. 505. 
 Sumner v. Darnell, 770. 
 Susquehanna Ins. Co. v. Perrine, 900. 
 Sutphen v. Therkelson, 454. 
 Sutter v. First Dutch Reformed Church, 
 
 617. 
 Sutton v. Askew, 168. 
 v. Calhoun, 856. 
 
 v. N. Y. Cent. & H. R. R. Co. 516. 
 V. Temple, 252, 253, 254. 
 Suydam v. Jackson, 284. 
 
 V. Williamson, 6. 
 Svfan v. Middlesex Co. 847. 
 
 v. Swan, 924. 
 Swart v. Fitch, 345. 
 Swartz V. Swartz, 508. 
 Sweeny v. Old Colony & N. R. Co. 452, 
 
 515. 
 Sweet y. Jacocks, 566. 
 Sweetser v. Lowell, 798. 
 Swift v. Goodrich, 406. 
 
 v. Smith, 810. 
 
 V. Staten Island Rapid Transit R. 
 Co. 515. 
 
 v. Wiley, 904. 
 Swinfer v. Swinfer, 808. 
 Swinton v. Legare, 659. 
 Swords v. Edgar, 260. 
 Sykes v. Sykes, 241. 
 
 to the pages ] 
 Symmes v. Strong, 953. 
 Taber v. Jenny, 19. 
 Tabor v. Cilley, 879. 
 
 V. Fay, 809. 
 Taggert v. Newport St. Ry. Co. 471. 
 Taliaferro v. Burwell, 227. 
 Tallmadge v. East River Bank, 412. 
 Tallman v. Ely, 804. 
 
 v. Metropolitan Elev. R. Co. 458, 
 468. 
 
 V. White, 856. 
 
 V. Wood, 696. 
 Talmo V. Spitzmiller, 354. 
 Tameling v. U. S. F. & D. Co. 160. 
 Tarrant v, Swain, 943. 
 Taul V. Campbell, 948. 
 Taylor v. Benham, 32, 587. 
 
 V. Bentley, 168. 
 
 v. Bradley, 334. 
 
 V. Collins, 53. 
 
 V. Davis, 562. 
 
 V. Delaware & H. Canal Co. 515. 
 
 V. Foster, 748. 
 
 V. Gould, 221. 
 
 V. Hamton, 516. 
 
 V. Henry, 589. 
 
 V. Hopkins, 576. 
 
 V. Hopper, 458. 
 
 V. McCracken, 290. 
 
 V. Plumer, 600, 603. 
 
 V. Porter. 845. 
 
 V. Taylor, 125, 591, 650. 
 
 V. Warnaky, 445. 
 
 V. Watkins, 832. 
 
 V. Young, 959. 
 TeafT V. Hewitt, 40, 41, 44, 51, 52. 
 Teague v. Downs, 233. 
 Temple v. Whittier, 809. 
 Tenant v. Braies, 161. 
 
 V. Goldwin, 23, 480. 
 Tennessee & C. R. Co. v. East Alabama 
 
 R. Co. 33b, 899. 
 Terpening v. Skinner, 751. 
 Terrell v. Allison, 791. 
 Terrett v. Taylor, 108. 
 Testart v. Belot 880. 
 Texas & St. L. R. Co. v. Young, 497. 
 Thackara v. Mintzer, 637, 640. 
 
TABLE OF CASES CITED. 
 
 Ixxvii 
 
 [References are 
 Tharp v. Allen, 941. 
 Thatcher v. Powell, 853, 856. 
 Thayer v. Arnold, 500. 
 
 V. Thayer, 176. 
 Theall v. Theall, 906. 
 Thellusson v. Woodford, 763. 
 Theobold v. Louisville, N. O. & T. R. 
 
 Co. 470. 
 Theological Educational Soc. v. Attor- 
 ney-General, 756. 
 Thiele v. McManus, 510. 
 Thomas v. Cook, 293. 
 
 V. Davis, 39. 
 
 V. England, 829. 
 
 V. Evans, 146. 
 
 V. Howell, 774. 
 
 V. Nelson, 287. 
 
 V. West Jersey R. Co. 393, 395. 
 Thomason v. Odum, 840. 
 Thompson v. Brown, 572, 574, 581. 
 
 V. Building Asso. 802. 
 
 V. Carroll, 853. 
 
 V. Cragg, 835. 
 
 v. Gibson, 529. 
 
 V. Gotham, 856. 
 
 V. Hoop, 748. 
 
 V. Kauffeit, 834. 
 
 V. Mills, 208. 
 
 V. Morrow, 189, igo. 
 
 V. New York & H. R. Co. 379. 
 
 V. People, 400. 
 
 V. Shannon, 569. 
 
 V. Swoop, 107. 
 
 V. Thompson, 614. 
 
 V. White Water Valley R. Co. 
 801. 
 
 Sch. Dis. V. Lynch, 833. 
 Thorn v. Thorn, 928, 943. 
 
 V. Ingram, 814. 
 Thornburg v. Thornburg, 177. 
 Thornburn v. Doscher, 189. 
 Thorndike v. Loring, 757. 
 Thornton v. Thornton, 948. 
 
 V. Trammell, 776. 
 
 V. York Bank, 922. 
 Thornton's Exrs. v. Krepps, 227. 
 Thorpe v. Fowler, 343. 
 Thurston v. Hancock, 480. 
 
 to the pages.] 
 
 Thurston v. Maddocks, 943. 
 Tice v. Derby, 919. 
 Ticknor v. McClelland, 12. 
 Tide Water Canal Co. v. Archer, 847. 
 Tiernan v. His Creditors, 941. 
 Tiers v. Tiers, 756. 
 Tifft V. Horton, 53. 
 Tilbury v. Barbut, 751. 
 Tilden v. Green, 561. 
 
 V. Tilden, 911. 
 Tilford V. Torrey, 586. 
 Tilghman v. Little, 349. 
 Tillinghast v. Bradford, 103, 631, 632, 
 638. 
 
 V. Coggeshall, 226. 
 Tillman v. DeLacy, 50. 
 Tillotson V. Boyd, 805. 
 
 V. Wolcott, 939. 
 Tilton V. Tilton, 616, 897, 900. 
 Timms v. Shannon 792. 
 Tinges v. Baltinr.ore, 426, 
 Tinicum Fishing Co. v. Carter, 407,415, 
 
 426. 
 Tinkham v. Arnold, 832. 
 
 v. Erie R. R. Co. 778. 
 Tippets V. Walker, 382. 
 Tisdale v. Tisdale, 917. 
 Tisher v. Beckwith, 797. 
 Titsworth v. Stout, 920. 
 Titus v. Morse, 838. 
 Tobin V. Young, 290. 
 Todd V. Flight, 261. 
 
 V. Jackson, 310. 
 ■ V. Outlaw, 797. 
 
 v.Oviatt, 224. 
 Toledo, D. & B. R, Co. v. Hamilton, 801. 
 Tolle v. Orth, 237, 287, 287, 318. 
 Tomlinson v. Jessup, 390. 
 Tompkins v. Fonda, 195, 196. 
 Tone V. Columbus, 841. 
 Tooke v. Hardeman, 188. 
 Toole V. Backett, 263. 
 Topping V. Sadler, 949, 957. 
 Torey v. Cameron, 604. 
 
 V. Minor, 171. 
 Torrence v. Carbry, 153. 
 Torrey v. Bank of Orleans, 565. 
 
 V. Burnett, 45, 241. 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Torrey v. Torrey, 948. 
 Totum V. Sharpless, ig. 
 Towle V. Ayer, 92. 
 
 V. Larabee, 894. 
 Town of Paulet v. Clark, 113, 385. 
 Towne v. Campbell, 313. 
 Townley v. Sherbourne, 574, 582. 
 Townsend v. Cowles, 570. 
 
 V. Downer, 832. 
 
 V. Townsend, 206. 
 Towsley v. Johnson, 840. 
 Tracy v. Atherton, 831. 
 
 V. Watheton, 445. 
 Trappes v. Meredith, 638. 
 Trask v. Patterson, 445. 
 Trelawaney v. Booth, 36. 
 Trenouth v. San Francisco, 862. 
 Trentman v. Fletcher, 336, 899. 
 Treusch v. Shyrock, 818. 
 Tribune Asso. v. Sun, 484. 
 Trice v. Hannibal & St. J. R. Co. 497. 
 Trigg V.Taylor, 803. 
 Trimm v. Marsh, 792. 
 Tripp V. Hasceig, 11. 
 Trowbridge v. True, 484. 
 Trower v. Chadwick, 481, 482. 
 True V. Nicholls, 121. 
 Truesdell v. Gay, 22. 
 Trull V. Eastman, 889. 
 Trustees v. Peaslee, 616. 
 
 etc. V. Colgrove, 751. 
 
 V. Smith, 841. 
 Trustees of Phillips Academy v. King, 
 558. 
 
 Schools V. Schroll, 876. 
 
 Watertown v. Cowen, 889 
 Ttyon V. Sutton, 802. 
 Tucker v. Conrad, 427. 
 
 V. Drake, 940. 
 
 V. Tucker, I2i, 577. 
 Tulk V. Moxhay, 410. 
 Tunno v. Trezeant, 210. 
 Turner v. Goodrich, 332. 
 Turney v. Massingill, 633. 
 Tuttle V. Church, 455. 
 
 V. Reynolds, 362. 
 
 V. Robinson, 584. 
 Twisleton v. Griffith, 725. 
 
 to the pages.] 
 
 Twist V. Winona & St. P. R. Co. 516. 
 
 Twitty V. Camp, 771, 772. 
 
 Twombley v. Cassidy, 806. 
 
 Tyler v. Houghton, 598. 
 
 V. Peo, 854. 
 
 V. Wilkerson, 848. 
 
 V. Wilkinson, 424. 
 Tyson v. Post, 53. 
 Ulbricht v. Eufaula Water Co. 490. 
 Uline V. N. Y. C. & H. R. R. R. 468. 
 Underbill v. Collings, 288. 
 
 V. Saratoga & Washington R. R. 
 Co. 778. 
 Underwood v. Waldron, 502. 
 Unglish V. Marvin, 334. 
 Union B. Co. v. Gittings, 320. 
 
 Co. V. Sprague, 793. 
 
 College V. Wheeler, 809. 
 
 Depot S. R. & T. C- v. Bruns- 
 wick, 847. 
 
 Dime Savings Inst, v. Andariese, 
 814. 
 
 Mut. L. Ins. Co. v. Wilkinson, 
 899. 
 
 Pac. R. Co. V. McAlp'ine, 411. 
 
 Petroleum Co. v. Bliven Petro- 
 leum Co. 18. 
 
 Trust Co. V. Weber, 47. 
 United States v. Arredondo, 775. 
 
 V. Bostwick, 365. 
 
 V. Cook, 80. 
 
 V. Duncan, 184. 
 
 V. Fisher, 384, 793. 
 
 V. Fox, 76, 164. 
 
 V. Gratiot, 242. 
 
 V. Jones, 844. 
 
 V. LeBaron, 798. 
 
 V. Lee, 844. 
 
 V. Murphy, 379. 
 
 V. New Orleans R. Co. 801. 
 
 V. Repentigny, 787, 788. 
 
 V. Schurz, 105. 
 
 V. Slices, 370. 
 
 V. Stone, 864. 
 
 V. Waddell, 863. 
 
 V. Wilder, 831. 
 
 V. Wiley, 831. 
 
 Bank v. Carrington, 597. 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 [References are 
 University of Maryland v. Williams, 
 386. 
 
 Vermont v. Joslyn, 93. 
 Updegraph v. The Commonwealth, 599. 
 Upton V. Townsend, 320, 331. 
 Urann v. Coates, 589. 
 Urquhart v. Mclvers, 818. 
 Usher v. Richardson, 172. 
 Usina v. Wilder, 802. 
 Utica V. Churchill, 383. 
 Valentine v. Jackson, 318. 
 
 V. Piper, 832. 
 Van Alstyne v. Van Alstyne.gii. 
 Van Amee v. Jackson, 552. 
 Vanborne v. Dorrance, 846. 
 Vance v. Vance, 203, 205, 213. 
 Van Cortland v. Kipp, 911. 
 Vanderbeck v. Hendry, 452. 
 Vandergrift v. Delaware R. R. Co. 497. 
 Vanderheyden v. Young, 581. 
 Vandever v. Freeman, 591, 651. 
 Vandiveer v. Stickney, 800. 
 Van Doren v. Everitt, 140. 
 Vanduyn v. Hepner, 240. 
 Van Epps v. Van Epps, 565, 567. 
 Van Horn v. Goken, 343. 
 Van Home v. Campbell, 144. 
 
 V. Dorrance, 773. 
 
 V. Fonda, 917, 919, 920. 
 Van Kirk v. Wilds, 892. 
 Van Leuven v. Lyke, 496. 
 Van Loon v. Lyons, 817. 
 Van Ness v. Packard, 45, 47. 
 
 V. Washington, 336. 
 Van Rensselaer v. Ball, 295. 
 
 V. Barringer, 779, 782. 
 
 V. Chadwick, 316. 
 
 V. Gallup, 316. 
 
 V. Hays, 60, 67, 314, 316. 
 
 V. Jewett, 296. 
 
 V. Kearney, 131, 838. 
 
 V. Slingerland, 782. 
 
 V. Smith, 271. 
 
 V. Snyder, 271. 
 
 V. Van Wie, 267. 
 Van Shujrver v. Mulford, 599. 
 Van Steenwyck v. Washburn, 185. 
 Vanthornilly v. Peters, 797. 
 
 to the pages.] 
 
 Van Vechten v. Van Vechten, 33. 
 Varick v. Edwards, 724. 
 Vason V. Ball, 792. 
 Vaugham v. Suggs, 193. 
 Vaughan v. Blanchard, 321, 329. 
 Vaux V. Parke, 633. 
 
 Veghte V. Raritan Water Power Co. 504. 
 Venable v. Beauchamps, 919. 
 Ventress v. Collins, 943. 
 Vernon Society v. Hills, 399. 
 Vessey v. Janson, 614. 
 Viall V. Carpenter, 418, 445. 
 Vicksburg and J. R. Co. v. Patton, 67. 
 Victory V. Baker, 510. 
 Vidal V. Girard's Executors, 558, 559, 
 599, 5i2, 613, 620. 
 
 V. Philadelphia, 559. 
 Vincent v. Spooner, 207. 
 Viner v. Francis, 659. 
 Virden v. Bowers, 857. 
 Vivan v. Champion, 276. 
 Voorhees v. McGinnis, 53, 802. 
 
 V. Presbyterian Church at Am- 
 sterdam, 533. 
 Voris V. Thomas, 919. 
 Vreeland v. New Jersey Stone Co. 890. 
 
 V. Vreeland's Adm. 193, 953. 
 Vrooman v. McKaig, 354. 
 Waddell v. Glassell, 570. 
 Wadding V. Loker,'548. 
 Wager v. Troy Union R. R. 443. 
 Wagner v. Cleveland and T. R. Co. 46, 
 53- 
 
 V. Hanna, 407. 
 
 V. White, 328. 
 Wain V. Warlters, 898. 
 Waitv. Wait, 176, 178, 179, 234. 
 Wake ». Wake, 188. 
 Walden v. Bodley, 266. 
 
 V. Gratz, 831. 
 Waldo V. Cummings, 763. 
 Waldron v. McCarty, 332. 
 Walker v. Bank of Washington, 908. 
 
 V. Cincinnati, 820. 
 
 v. Engler, 295. 
 
 V. Johnston, 659. 
 
 V. Marks, 820. 
 
 V. Moore, 853. 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 [References are 
 Walker v. Old Colony & Newport Ry. 
 444- 
 
 V. Sauvinet, 844. 
 
 V. Simpson, 836. 
 
 V. State Harbor Comrs. log. 
 
 V. Stetson, 490, 494. 
 
 V. Vincent, 98, 710. 
 Wall V. Hinds, 45. 
 Wallace v. Duffield, 603. 
 
 V. Harmstad, 62, 342. 
 Wallace v. Long, 895. 
 
 V. Reddick, 164. 
 Wallach v. Van Reswick, 113, 861. 
 Walls V. Preston, 334. 
 Walsh V. Agnew, 840. 
 
 V. Fitchburg R. Co. 515. 
 
 V. Kelly, 176. 
 
 V. Washington Ins. Co. 597. 
 Walter V. Selfe,455. 
 Walters V. Jordan, 180,181. 
 
 V. Pfeil, 480, 481. 
 Waltham Bank v. Waltham, 382. 
 Walton V. Walton, 840. 
 Ward V. Fuller, 147. 
 
 V. Goggan, 939. 
 
 V. Jones, 706, 708. 
 
 V. Matthews, 604. 
 
 V. Ward, 193, 957. 
 Warden v. Etter, 362. 
 Ware v. Cann, 751, 771. 
 
 V. Owens, 168. 
 
 V. Richardson, 531. 
 
 V. Walker, 409. 
 Warfield v. Lindell, 922. 
 Waring v. Indemnity Fire Ins. Co. 597. 
 Warner v. Abbey, 334. 
 
 V. Bates, 552, 555. 
 Warner v. Bennett, 780. 
 
 V. Hale, 318, 319. 
 
 V. Thompson, 908. 
 Warren v. Chambers, 859. 
 
 V. Jones, 908. 
 
 V. Kelley, 307. 
 
 V. Lovis, 797. 
 
 V. Morris, 184. 
 
 V. Paul, 852. 
 
 V. Swett, 874. 
 
 V. Wagner, 325, 326. 
 
 to the pages.] 
 Warren v. Warren, 896. 
 
 V. Williams, 850, 892. 
 Warter v. Hutchinson, 553. 
 Washburn v. Burns, 949, 957. 
 
 V. Gould, 505. 
 
 V. Sewall, 613, 911. 
 Washington v. Pratt, 853. 
 Wassell V, Tunnah, 944. 
 Wasson v. Rowe, go8. 
 Waterford & W. Turnp. Co. v. People, 
 
 820. 
 Waters V. Lilley, 407. 
 
 V. Waters, 711. 
 Watkins v. Eaton, gig. 
 
 V. Nash, 875. 
 
 V. Watkins, 176. 
 
 V. Wyatt, 801. 
 Watriss v. Cambridge Nat. Bank, 48. 
 Watson V. Avquacksnonack Water Co. 
 
 843. 
 
 V. Bioren, 439. 
 
 V. Dodd, 659. 
 
 V. Hewitt, 840. 
 
 V. Jones, 617. 
 
 V McLaren, 8q8. 
 
 V. Sherman, 738. 
 Weare v. Van Meter, 920. 
 Weatherhead v, Baskerville, 832. 
 Weaver v. Trustees, etc., of Wabash, 
 
 etc., Canal Co. 596. 
 Webb V. Deane, 850. 
 
 V. Jones, 913. 
 Webber v. Christen, 874. 
 Webster v. Cooper, 591, 773, 785, 786. 
 
 V. Ellsworth, 224. 
 
 V. Harris, 900. 
 
 V. Nicholas, 297, 299. 
 
 V. Stevens, 504. 
 
 V. Webster, 368, 371. 
 Weeton v. Woodcock, 49. 
 Weiler v. Hottenstein, 335, 899. 
 Weir V. Simmons, 776. 
 
 V. Tate, 153. 
 Welch V. Buckins, 153. 
 
 V. Sackett, Ii6. 
 Welcome v. Hess, 280, 288. 
 
 V. Upton, 414. 
 Welde v. Williams, 126. 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 Welder v. Hunt, 877. 
 Wellbeloved v. Jones, 610. 
 Wells V. Castles, 277. 
 
 V. Garbutt, 436. 
 
 V. Mason, 349. 
 
 V. Robinson, 188. 
 
 V. Smith, 773, 786. 
 Welsh V. Woodbury, 143, 144. 
 Wendall v. Crandall, 88. 
 Wenlock v. River Dee Co. 806. 
 Wentworth v. First Parish in Canton, 26. 
 
 V. Wentworth, 213, 214. 
 Wentz's App. 141. 
 Wesley v. Thomas, goo. 
 Wesson v. Washburn Iron Co. 455. 
 West V. Fitz, 553. 
 
 V. Hendrix, 793. 
 
 V. Klotz, 819. 
 
 V. Shaw, 877. 
 
 V. Ward, 943. 
 
 River Bridge Co. v. Dix, 152,853. 
 
 Virginia Trans. Co. v. Ohio River 
 P. L. Co. 440. 
 Westbrook v. Gleason, 809. 
 Westcott v. Cady, 910, 911. 
 
 v. Middletown, 455. 
 Westerfield v. Westerfield, 761. 
 Western v. Macdermott, 411. 
 
 Granite & Marble Co. v. Knick- 
 erbocker, 454. 
 
 U. Tel. Co. V. Fain, 351. 
 Westfall V. Lee, 174. 
 Westgate v. Wixon, 23. 
 Westmoreland & Cambria Nat. Gas Co. 
 
 V. DeWitt, 20, 21, 22, 295. 
 Westmoreland Coal Co.'s App. 141. 
 Weston V. Charleston, 852. 
 Wetherbee v. Ellison, 29. 
 Weyman v. Ringold, 888. 
 Whalen v. Cadman, 942. 
 Whaley v. Stevens, 412. 
 
 v. Whaley, 604. 
 Wharton v. Stoutenbargh, 897. 
 Wheatland v. Dodge, 126. 
 Wheatley v. Baugh, 20. 
 
 v. Calhoun, 163. 
 Wheaton v. Peters, 67. 
 Wheeldon v. Burrows, 436. 
 
 f 
 
 [References are to the pages.] 
 
 Wheeler v. Collier, 898. 
 
 V. Earl, 296. 
 
 V. Frankenthal, 318, 319. 
 
 V. Hotchkiss, 233. 
 
 v. Kirtland, 159. 
 
 V. Merriman, 924. 
 
 V. Reynolds, 601. 
 
 V. Walker, 767. 
 Wheeley v. Reynolds, 897. 
 Wheelock v. Noonan, 507. 
 Whicker v. Hume, 615. 
 Whipple V. Tool, 30. 
 White V. Cannon, 866. 
 
 V. Crawford, 413, 414. 
 
 V. 
 V. 
 
 V. 
 
 V. Fisk, 627, 628. 
 
 V. Foster, 15. 
 
 V. Graves, 174. 
 
 V. Hildreth, 231. 
 
 V. Howard, 546, 611. 
 
 V. Lunning, 875. 
 
 v. Maynard, 236, 504. 
 
 v. McPheeters, 674. 
 
 V. Miller, 818. 
 
 v. Montgomery, 263. 
 
 V. N. Y. & N. E. R. Co. 451. 
 Sayre, 917. 
 White, 631, 632, 635, 639, 640, 
 
 641. 
 Williams, 336. 
 Winnie, 857. 
 Whitemarsh v. Walker, 504. 
 Whiteside v. Jackson, 290. 
 Whiting V. Brastow, 48, 49. 
 
 V. Independent Mut. Ins. Co. 840. 
 
 V. Olert, 320. 
 
 V. Wilkins, 94. 
 
 Whitely v. Foy, 600. 
 Whitman v. Lex, 627, 628, 761. 
 Whitmarsh v. Cutting, 139, 140, 242. 
 Whitney v. Allaire, 270. 
 
 V. French, 797. 
 
 V. Morrell, 144. 
 
 V. Richardson, 929. 
 
 V. Salter, 147, 
 
 V. Spencer, 775 
 
 V. Sweet, 304. 
 
 V. Union R. Co. 410, 411. 
 Whiton V. Snyder, 959. 
 
Ixxxii 
 
 TABLE OF CASES CITED. 
 
 Whitsell V. Mills, 175. 
 Whittaker v. Whittaker, 128. 
 Whitenton Mills v. Upton, 402. 
 Whittier v. Varney, 892. 
 Whitton V. Whitton, 7S1. 
 Whitwell V. Warner, 382. 
 Wickham v. Hawker, 460. 
 Wiggin V. Buzzell, 946. 
 
 V. Wiggin, 604. 
 Wiggings V. Wiggings, 345. 
 
 Ferry Co. v. Ohio & M. R. Co. 88. 
 Wight V. Baury, 126. 
 
 V. Geer, 894. 
 
 V. Shaw, 659, 
 
 V. Thayer, 117, 125, 126, 12S. 
 Wilber v. Sisson, 334. 
 
 V. Wilber, 159. 
 Wilcox V. Morris, 791. 
 
 V. Wheeler, 553. 
 Wild V. Deig, 438. 
 Wilde V. Jenkins, 383. 
 Wilder v. Maine Cent. R. Co. 497. 
 Wilderman v. Baltimore, 620. 
 Wilding V. Bolder, 557. 
 Wiley V. Bradley, 897. 
 Wilhelm v. Wilken, 879. 
 Wilkes V. Collins, 808. 
 Wilkesbarre v. Wyoming Historical and 
 
 G. Soc. 616. 
 Wilkinson v. Adams, 905. 
 
 V. Clauson, 275. 
 
 V. Kettler, 344, 
 
 V. Wilkinson, 771. 
 Willard v. Eastham, 956. 
 
 V. Reas, 796. 
 
 V. Warren, 306, 308 
 Willey V. Conner, 139, 240. 
 Williamette Mfg. Co. v. Bank 
 Williams v. Burrell, 276. 
 
 V. Chandler, 840. 
 
 V. Downing, 242. 
 
 V. Gideon, 917. 
 
 V. Hale, 180. 
 
 V. Hensman, 933. 
 
 V. Hollingsworth, 605. 
 
 V. Jackson, 880. 
 
 V. Kershaw, 614. 
 
 V. Kirtland, 109. 
 
 [References are to the pages.] 
 
 Williams v. Mich. Cent. R. R. Co. 497. 
 
 V. Morris, 266, 897. 
 
 V. Nolan, 334. 
 
 V. N. Y. C. R. R. 443. 
 
 V. Pierson, 608. 
 
 V. Potter, 271. 
 
 V. Roberts, 795. 
 
 V. Urmston, 257. 
 
 V. Waters, 908. 
 
 V. Weaver, 581. 
 
 V. Western Union R. Co. 438. 
 
 V. Wethered, 943. 
 
 V. Williams, 177, 553, 555, 610. 
 
 V. Winsor, 8or. 
 
 V. Woods, 798. 
 
 V. Worthington, 614. 
 Williamson v. Berry, 665. 
 
 V. Field, 664. 
 
 V. Steele, 12. 
 Williard v. Williard, 141. 
 Willis V. Watson, 136. 
 Willison V. Watkins, 266, 269, 294. 
 Wilmerdingv. McKesson, 563. 
 
 V. Mitchell, 791. 
 Wilmes v. Minneapolis R. R. Co. 845. 
 Wilms V. Jess, 17. 
 Wilson V. Arentz, 220. 
 
 V. Brown 953. 
 
 V. Edmonds, 143. 
 
 V. Glenn, 833. 
 
 V. Hatton, 253, 254. 
 
 V. Martin, 256. 
 
 V. Mineral Point, 15. 
 
 V. O'Connell, 128. 
 
 V. Soper, 806. 
 
 V. Troup, 739. 
 Windham v. Portland, 160, 195. 
 Winfield v. Henning, 412, 889. 
 Wing V. Cooper, 794. 
 Winham v. McGuire, 511. 
 Winkler v. Winkler, 226. 
 Winn V. Abeles, 482, 483. 
 Winona v. Thompson, 899. 
 
 etc. R. Co. V. County, 149. 
 & St. P. R. R. Co. V. St. P. & 
 S. C. R. R. Co. 383. 
 Winship v. Pitts, 366. 
 IWinslowv. Leland, 193. 
 
 309. 
 
 791- 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 [References are to the pages.] 
 
 Winters v. Jacob, 497. 
 Winton v. Cornish, 284, 285. 
 Wiseman v. Wiseman, 180. 
 Withers v. Jenkins, 227. 
 Witherspoon. v. Duncan, 864. 
 Withinton v. Withinton, 904. 
 Witman v. Watrv, 280. 
 Wolcot V. Knight, 840. 
 Wolf V. Dozer, 319. 
 
 V. Fleischacker, 943. 
 
 V. Fletemeyer, S71. 
 
 V. Kilpatrick, 261. 
 Wolfe V. Frost, 28, 407, 412, 485, 
 
 V. Van Nastrond, 473, 750. 
 Wolff V. Walter, 806. 
 Wollaston v. Hakewell, 291. 
 Womack v. McQuarry, 347. 
 
 V. Woniack, 193. 
 Wood V. Berkshire Ins. Co. 841. 
 
 V. Bishop, 905. 
 
 V. Boyd, 451. 
 
 V. Cherry, 548. 
 
 V. Comrs. of West Boston & C. 
 Bridge, 876. 
 
 V. Griffin, 722. 
 
 V. Hubbell, 240, 241, 337. 
 
 V. Morgan, 357. 
 
 V. Phillips, 308. 
 
 V. Seward, 555. 
 
 V. Veal, 428. 
 
 V. Wood, 184, 582. 
 
 County Petroleum Co. v. West 
 Virginia Transp. Co. 21. 
 Woodbourne v. Woodbourne, 753. 
 Woodbury V. Aikain, 811. 
 
 V. Bowman, 589. 
 
 V, Parshley, 511. 
 
 V. Woodbury, 338. 
 Wooden v. Haviland, 900. 
 Woodford v. Stevens, 586. 
 WoodhuU V. Longstreet, 930. 
 
 V. Rosenthal, 282. 
 Woodman v. Chesley, 908. 
 Woodridge v. State, 856. 
 Woodruff V. Adams, 339. 
 
 V. Frost, 335, 899. 
 
 V. Morristown Inst. 809. 
 
 V. Trenton Water Co. 440. 
 
 Woods V. Banks, 835. 
 
 V. Davis, 946. 
 
 V. Gilson, 806. 
 
 V. Naumkeag S. C. Co. 274. 
 
 V. Wallace, 797. 
 Woodside v. Ridgeway, 301. 
 Woodward v. Brown, 266. 
 
 V. Delaware, L. & W. R. Co. 
 102. 
 
 v. Sartwell, 155. 
 Woodward-Holmes Co. v. Nudd, 927. 
 Woodworth v. Paige, 158, 172. 
 
 v. Payne, 27. 
 Worcester v. Georgia, 80. 
 
 V. Lord, 831. 
 Workman v. Miffin, 291, 328, 347. 
 Worley v. Tuggle, 900. 
 Worrill v. Barnes, 343. 
 Worthington v. Staunton, 916, 917. 
 Wright V. Cradlebaugh, 857. 
 
 v. Douglass, 546. 
 
 V. Hazen, 840. 
 
 V. Jones, 212, 895, 930. 
 
 V. Lassiter, 881. 
 
 V. Lattin, 325, 326. 
 
 V. Linn, 616. 
 
 V. Matteson, 836. 
 
 V. Roberts, 354. 
 
 V. Saddler, 959. 
 
 V. Stavert, 256. 
 
 V. Wilkins, 765. 
 
 V. Wright, 209, 501, 912, 95g. 
 Wrightson v. Macauley, 662. 
 WyckofFv. Gardner, 953. 
 Yale V. Dederer, 171, 954, 935, 956. 
 Yandes v. Wright, 17. 
 Yarborough v. Wood, 796. 
 Yarmouth v. N. Yarmouth, 386. 
 Yates V. Van De Bogert, 877. 
 
 V. Yates, 621, 757. 
 
 County Nat. Bank v. Carpenter, 
 939- 
 Yeates v. Compton, 36. 
 Yeatman, v. Woods, 925. 
 Yeaton v. Roberts, 659. 
 York v. Davis, 496. 
 
 Borough v. Welsh, 159. 
 Young v. Dake, 248. 
 
Ixxxiv 
 
 TABLE OF CASES CITED. 
 
 [References are to the pages.] 
 
 Young V. Frost, 335, 899. 
 
 V. Gregory, 176. 
 
 V. Harrison, 386. 
 
 V. Heermans, 891. 
 
 V. Hichens, 19. 
 
 V. Robertson, 615. 
 
 V. Young, 589. 
 Youngblood v. Lowry, 312, 346, 
 Younge v. Guilbeau, 873. 
 
 Younge v. Heffner, 924. 
 Youngman v. Linn, 832. 
 Youngs V. Carter, 160. 
 Zeisweiss v. James, 599, 761. 
 Zell V. Reame, 310. 
 Zerbe v. Miller, 569. 
 Zorntlien v. Bram, 955. 
 Zuck V. Culp, 595. 
 Zule V. Zule, 347. 
 
REAL PROPERTY. 
 
 CHAPTER I. 
 
 NATURE OF REAL PROPERTY. 
 
 Sec. I. Definition of real property. 
 
 2. Land and its incidents. 
 
 3. The term real estate defined. 
 
 4. Classified as corporeal and incorporeal hereditaments. 
 
 5. Views of Mr. Digby on this classification. 
 
 6. Water and ice as real property. 
 
 7. Heirlooms. 
 
 8. Crops and trees. 
 
 9. Mines and minerals. 
 
 a. Coal in place. 
 
 b. Aerolites. 
 
 c. Oil and gas. 
 
 d. Water as a mineraL 
 
 10. Buildings regarded as real estate. 
 
 a. Water-mains, pipes, electric wires, frame of elevated road, 
 
 etc., etc. 
 
 b. Different stories in a building may be realty 
 
 11. Pews and tombs in churches. 
 
 12. Manure, etc., as realty. 
 
 13. Doctrine of equitable conversion examined. 
 
 a. What must appear before doctrine is applied. 
 
 14. Definition and nature of fixtures. 
 
 15. Fixtures as between mortgagor and mortgagee, landlord and 
 tenant. 
 
 16. Trade fixtures. 
 
 17. Removal of fixture by tenant after expiration of term. 
 
 18. Tests by which the character is determined. 
 
 19. Effect of agreement. 
 
 § I. Definition of real property.— Old Bracton — a legist and 
 institiitiomal -writer of some celebrity — seems to have been 
 familiar with the now well-known classification of "prop- 
 erty " by which we designate it as " real " or " personal." 
 
2 REAL PROPERTY. 
 
 As a justiciary of the thirteenth century, an Oxonian of high 
 repute, and as a Doctor of Laws, who spent a lifetime in 
 codification, we may at least presume his familiarity with 
 the technical learning of his day, and quiet a quarrel of long 
 standing by reminding the respective disputants that it is a 
 matter of small consequence here or hereafter when the sub- 
 division took place, or by whom it was first suggested. 
 Certain it is that for centuries the English speaking race has 
 cherished the distinction, and among them and us, all prop- 
 erty is and always has been either ' ' real " or " personal. ' ' 
 Real or immovable property consists of : 
 
 1. Land; 
 
 2. That which is affixed to land; 
 
 3. That which is incidental or appurtenant to land. 
 
 4. That which is immovable by law. 
 
 Land is the solid material of the earth, whatever may be 
 the ingredients of which it is composed ; whether soil, rock, 
 or other substance. 
 
 A thing is deemed to be affixed to land when it is attached 
 to it by roots, as in the case of trees, vines, or shrubs; or 
 imbedded in it, as in the case of walls ; or permanently rest- 
 ing upon it, as in the case of buildings; or permanently 
 attached to what is thus permanent, as by means of cement, 
 plaster, nails, bolts, or screws. 
 
 A thing is deemed to be incidental or appurtenant to land 
 when it is by right used with the land for its benefit ; as in 
 the case of a way, or water-course, or of a passage for light, 
 air, or heat from or across the land of another. 
 
 Every kind of property that is not real is personal. Cal. 
 Civil Code, sec. 657 et seq. 
 
 ' ' Property, ' ' it will be observed, is a term of wide signifi- 
 cance; it may embrace everything that is the subject of 
 ownership as restricted in its application to land ; it denotes 
 every species of title vested in absolute ownership or in- 
 choate ; it embraces rights that lie in contract, those which 
 are executory as well as those which are executed. ' So the 
 mere possession of real property is constantly treated as 
 property; it includes choses in action as well as those in 
 
 ' Soulard v. United States, 4 Pet. 512. 
 
NATURE OF REAL PROPERTY. 3 
 
 possession." The term mixed property signifies such as has 
 the dual characteristics of real estate and personalty, as, a 
 leasehold.' 
 
 ' ' Real property with us does not serve as the foundation 
 for personal distinction or family grandeur, and is vested 
 with no peculiar sanctity. Its uses are those of property 
 simply. It is an article of commerce, and its free circula- 
 tion is encouraged. Without going into details I insist that 
 the law of real property in this country ought to be assimi- 
 lated as nearly as possible to the law of personal property. 
 
 ''Carlton v. Carton, 72 Me. 116; 
 Hornsby v. United States, 10 Wall. 
 242. 
 
 ' 3 Bl. Com. 144. Property signi- 
 fies "ownership; " " dominion ; " the 
 unrestricted and exclusive right to 
 a thing; the right to dispose of the 
 substance of a thing in every legal 
 way, to possess it, to use it, and to 
 exclude every one else from inter- 
 fering with it. I Mackeld. Civ. 
 Law, 269, sect. 259. It imports the 
 exclusive right of using and dispos- 
 ing of a subject as one's own. Bell's 
 Diet. Tayl. Civ. Law, 476. This is 
 the strict legal sense of the word, 
 as in the expressions " property 
 in land," "property in chattels." 
 Things are regarded in law not as 
 property, but as the objects of prop- 
 erty. 2 Bl. Com. 1 5. Property has 
 been judiciallj' defined as the right 
 or interest which one has in lands 
 or chattels. Tilghman, C. J., 6 
 Binney's R. 94; Spencer, C. J., 17 
 Johns. R. 283; see i Comstock's R. 
 20, 24 ; 3 Kernan's R. 396. Black- 
 stone says : The right of property 
 is that sole and despotic dominion, 
 which one man claims and exercises 
 over the external things of the 
 world, in total exclusion of the 
 right of any other individual in the 
 universe. 2 Com. 2. The right of 
 
 property consists in the free use, 
 enjoyment and disposal of all a per- 
 son's acquisitions, without any con- 
 trol or diminution, save only by the 
 laws of the land, i Id. 138. 
 
 Property is the highest right a 
 man can have to any thing; being 
 used for that right which one has 
 to lands or tenements, goods or 
 chattels, which no way depends on 
 another man's courtesy. Spencer, 
 Ch. J., 17 Johns. R. 281, 283. As ap- 
 plied to lands, the term includes 
 every species of title, inchoate or 
 complete. It is supposed to em- 
 brace those rights which lie in con- 
 tract, those which are executory, as 
 well as those which are executed. 
 Marshall, C. J., 4 Peters' R. 512. 
 
 The interest which can be ac- 
 quired in external objects or things 
 is "property." The things them- 
 selves are not, in a true sense, prop- 
 erty, but they constitute its founda- 
 tion and material, and the idea of 
 property springs out of the connec- 
 tion, or control, or interest which, 
 according to law, may be acquired 
 in or over them. This interest is 
 " absolute " when a thing is object- 
 ively and lawfully appropriated by 
 one to his own use in exclusion of 
 all others ; and " limited " or " quali- 
 fied " when the control acquired 
 
4 REAL PROPERTY. 
 
 and that it is practicable to emancipate it from all the per- 
 nicious consequences of tenure, whether existing by the com- 
 mon law, or growing out of the doctrine of uses, and to make 
 it as simple and as easily understood as the law concerning 
 personalty. I do earnestly maintain that it is owing simply 
 to the inertia and conservatism of our bar, that it is willing 
 to let this great department of our law remain in its present 
 condition — chaotic, uncertain, complex, and abounding in 
 subtleties and refinements. Let us at length have deliver- 
 ance from the remaining vestiges of the bondage of the Nor- 
 man conqueror, and from the heavy burdens which a long 
 succession of English Chancellors have imposed upon us." 
 From Dillon's "Laws and Jurisprudence of England and 
 America." Sec. 8.' 
 
 § 2. Land and its incidents. The word land is a compre- 
 hensive term including standing trees, buildings, fences, 
 stones, and waters, as well as the earth we stand on ; and all 
 pass under the general description of land, in a deed. Stand- 
 ing trees must be regarded as part and parcel of the land in 
 which they are rooted, and from which they draw their sup- 
 port ; and upon the death of the ancestor, they pass to the 
 
 falls short of that. To entitle one prevailed, the terms of use in its 
 
 to bring an action for an injury to stead were lands, tenements, and 
 
 any specific object or thing, he hereditaments ; and these acquired 
 
 must have a property therein of the epithet of real, from the nature 
 
 one kind or the other. (Griffith of the remedy applied by law, for 
 
 V. Charlotte, etc. R. Co., 23 S. C. the recovery of them, as disting- 
 
 38, Simpson, C. J.) uished from that provided in case 
 
 Anderson's Law Diet. of injuries, contracts broken, and 
 
 Blackstone makes "the free use, the like. In the one case, the claim- 
 enjoyment and disposal " of one's ant or demandant recovered the 
 own an essential element of prop- real thing sued for — the land itself 
 erty. — while ordinarily, in the other. 
 
 See also Stevens v. State, 2 Ark. he could only recover recompense 
 
 291, 35 Am. Dec. 74; Millett v. in the form of pecuniary damage. 
 
 People, 117 111. 296; Godcharles v. The term, as a means of designa- 
 
 Wigeman, 113 Pa. 431. tion, did not come into general use 
 
 " Though the term real as applied until after the feudal system had 
 
 to property, in distinction from lost its hold ; nor till even as late 
 
 personal, is now so familiar, it as the commencement of the 17th 
 
 is one of a somewhat recent in- century. Bouvier Law Diet, title, 
 
 troduction. While the feudal law Real Prop. 
 
NATURE OF REAL PROPERTY. 5 
 
 heir as a part of the inheritance, and not to the executor as 
 emblements or as chattels.' 
 
 Lord Coke says that the word land, in its legal significa- 
 tion, comprehends any ground, soil, or earth whatsoever, as 
 meadows, pastures, woods, moors, waters, marshes, furzes, 
 and heath; it also legally includes all houses and other 
 buildings standing thereon.' 
 
 The attributes of permanency and immovability are among 
 those that most conspicuously distinguish real from personal 
 property, although other distinctions are constantly recog- 
 nized — as for instance — the method of its alienation, which 
 must be by deed, and its peculiar descendible qualities, 
 which, on the death of the owner intestate, inexorably 
 demand the investiture of the title in the heir, to the utter 
 exclusion of the administrator or executor. It is a term co- 
 extensive and interchangeable with that of real estate, and 
 both import either corporeal or incorporeal interests in lands, 
 tenements, and hereditaments. 
 
 The word land includes not only the soil, but everything 
 attached to it ; whether attached by the course of nature, as 
 trees, herbage, and water, or by the hand of man, as build- 
 ings, and fences. This is but common learning, and there is 
 no more room for question, that a grant of land, eo nomine, 
 will carry buildings and fences, than there is that it will 
 carry growing trees and herbage upon, or mines and quarries 
 in, the ground.' 
 
 " In its more limited sense, the term land denotes the 
 quantity and character of the interest or estate which the 
 tenant may own in lands." "When used to describe the 
 quantity of the estate, 'land' is understood to denote a free- 
 hold estate at least.'" 
 
 Philosophically it seems more correct to say that the word 
 land means, in law, as in the vernacular, the soil or portion 
 of the earth's crust ; and to explain or justify such expres- 
 sions as that, whoever owns the buildings above, and the 
 minerals below, upon the view, not that these are within the 
 
 'Kingsley v. Holbrook, 45 N. H. 'Mott v. Palmer, i N. Y. 564. 
 
 3'9- ' Johnson V. Richardson, 33 Miss. 
 
 ° I Inst. 4, a. Cruise Dig. i (Ed. 464. 
 1808.) 
 
6 REAL PROPERTY. 
 
 extension of the term land, but that they are so connected 
 with it, that by rules of law, they pass by a conveyance of 
 the land. This view makes land, as a term, narrower, in its 
 signification, than realty, though it would allow an instru- 
 ment, speaking of land, to operate co -extensively with one 
 granting "realty" or "real property" by either of those 
 terms.' 
 
 ' ' The English law of land is of a mixed origin. The cus- 
 toms of the early Teutonic invaders ; the inevitable effect of 
 conquest and settlement of the land on a large scale ; the 
 gradual and what may be called the natural growth of feudal 
 ideas; the effect of the Norman Conquest in developing 
 these ideas into a system of law and imparting doctrines un- 
 known before ; the subsequent influence of the Roman and 
 Canon law, all these are elements of which account must be 
 taken in attempting to trace the growth of the law of land."" 
 
 "Of all subjects of property," says Lord Kaimes, "land is 
 that which engages our affections the most, and for this 
 reason the relation of property respecting land grew up 
 much sooner to its present firmness and stability, than the 
 relation of property respecting movables. " 
 
 There is nothing which so generally strikes the imagina- 
 tion and engages the affections of mankind as the right of 
 property, or that sole and despotic dominion which one man 
 claims and exercises over the external things of the world in 
 total exclusion of any other individual in the universe." 
 
 § 3. The term " Real Estate " defined. The term real 
 estate embraces not only lands, but all improvements of a 
 permanent character placed upon land. These are regarded as 
 a part of the land. In the case of Dooley v. Crist, 25 111. 556, 
 the court held that when a stranger constructs a building upon 
 the land of another, without his consent, it becomes a part of 
 the land, and he will become a trespasser by removing it. 
 It is said in Hillard on Real Prop. Vol. I, p. 5, if one man 
 erects buildings upon the land of another, voluntarily and 
 without any contract, they become a part of the land, and the 
 
 ' 2 Abbott's Law Diet. 4. " Tracts, p. 96. 
 
 '" Digby Hist. Law Real Prop. " 2 Bl. Comm. 2. 
 
 sec. I. 
 
NATURE OF REAL PROPERTY. 7 
 
 former has no right to remove them. Such buildings are 
 prima facie part of the realty. 
 
 The term includes every freehold estate and interest in 
 lands ; that is, an estate in fee or for life. This is understood 
 to include every interest and right, legal and equitable, in 
 lands, tenements, and hereditaments, except such as are 
 determined or extinguished by the death of an intestate 
 seized or possessed thereof, or in any manner entitled thereto, 
 and except leases for years and estates for the life of another 
 person. This is but an elaboration of the common law defi- 
 nition of the term." 
 
 A remainder in fee in lands is clearly "real estate." 
 
 The words in legal signification include all interests in 
 land, whether in possession, reversion, or remainder. They 
 are used in the Statutes, as co-extensive in meaning with 
 "lands, tenements and hereditaments.'"* 
 
 In New York, the term "real estate"has been declared by 
 statute to be equivalent in meaning to "land," (i R. S. [387], 
 379, sec. 2), and to "lands, tenements and hereditaments," 
 (Id. [750], 141, sec. 10), and has been otherwise "construed to 
 include every estate, interest and right, legal and equitable, 
 in lands, tenements and hereditaments, except such as are 
 determined or extinguished by the death of an intestate, 
 seized or possessed thereof, or in any manner entitled thereto, 
 and except leases for years, and estates for the life of another 
 person.'' 
 
 '^ Merry v. Hallett, 2 Cow. 497. note a room or suite of rooms in a 
 "Floyd V. Carow, 88 N. Y. 560. dwelling house. Commonwealth 
 " Tenement signifies a thing v. Hersey, 144 Mass. 298. 
 which is the subject of tenure. The term hereditaments is quite 
 Pond V. Bergh, 10 Paige, 157; as extended in its significance as 
 Shep. Touch, 91. In legal import the term property itself. They are 
 it is everything that may be holden. usually designated as corporeal and 
 It is of much greater significance incorporeal, a classification which, 
 than the term '' land " or houses as subsequently appears, has been 
 "and buildings" or "messuage," considered as particularly unfortu- 
 although in popular apprehension nate. Corporeal hereditaments con- 
 there is a tendency to so limit it. sist of such as affect the senses • 
 But a personal hereditament such such as may be seen and handled 
 as an annuity, is not a tenement, by the body ; incorporeal are not 
 In modern usage it may mean or de- the object of sensation, can neither 
 
» REAL PROPERTY. 
 
 § 4. Classified as corporeal and incorporeal hereditaments. 
 
 From the medieval times in which Glanville wrote, real prop- 
 erty has been characterized either as corporeal or incorporeal. 
 By the term corporeal such property is meant as is of a sub- 
 stantial and permanent character, and the term land may 
 briefly designate what is generally known as corporeal prop- 
 erty, always assuming that the term embraces such perma- 
 nent erections as may be found upon it. Incorporeal prop- 
 erty consists chiefly in rights and privileges arising out of 
 land. Rents and easements may be regarded as ordinary 
 instances of incorporeal property. Cruise says : 
 
 "Corporeal property consists wholly of substantial, perma- 
 nent objects which may be comprehended under the general 
 denomination land. Incorporeal property consists of rights 
 and profits arising from or annexed to land. Land has also, 
 in its legal signification, an indefinite extent, upwards as 
 well as downwards. For it is a maxim of law that, cujus est 
 solum, ejus est usque ad caelum, and downwards, whatever is in 
 a direct line between the surface and the center of the earth, 
 such as mines of metal and other fossils, is the property of 
 the owner of the surface." 
 
 § 5. Views of Mr. Digby on this classification. Mr. Digby, 
 in his History of the Law of Real Property, 2d edition, page 
 270, note, vigorously objects to this classification. He says : 
 "The division of hereditaments into corporeal and incorpo- 
 real, though deeply rooted in our legal phraseology, is most 
 unfortunate and misleading. The confusion is inherited 
 from the Roman lawyers (see Justinian, Inst. ii. tit. 2), but 
 has been made worse confounded by our own authorities. 
 Following the Romans, our lawyers distinguished between 
 hereditaments as meaning the actual corporeal land itself, 
 and another kind of hereditaments as not being the land itself 
 but 'the rights annexed to or issuing out of the land.' A 
 
 be seen nor handled, are creatures 1 comprehended under the general 
 
 of the mind, and exist only in con- denomination of land only. Bl. 
 
 templation. Com. Book 2, Ch. 2. 
 
 Corporeal hereditaments consist '* Cruise Dig. 4 ; Pusey v. Pusey, 
 
 wholly of substantial and perma- i Vern. 273. 
 nent objects ; all which may be 
 
NATURE OF REAL PROPERTY. 9 
 
 moment's reflection is sufficient to show that the distinction 
 is untenable. The lawyer has nothing whatever to do with 
 the material corporeal land, except so far as it is the subject 
 of rights. It is the distinction between different classes of 
 rights, and not between land on the one side and rights on 
 the other, that he is concerned with. In such phrases as 'the 
 land descends to the heir, ' what is meant is, not that some- 
 thing happens to the land itself, but that a particular class of 
 the ancestor's rights in relation to the land descends to the 
 heir. The names " corporeal and incorporeal' are most unfor- 
 tunate, because if by 'corporeal' is meant 'relating to land,' 
 then a large class of incorporeal hereditaments are also 
 entitled to the name ; if by ' incorporeal ' is meant that they 
 are mere rights, then all hereditaments are incorporeal, 
 because the lawyer is only concerned with different classes of 
 rights. In reality, however, it appears that the names point 
 to different classes of rights; and in fact, Stephen, in his 
 edition of Blackstone (5th ed., vol. i. p. 656), almost confines 
 incorporeal hereditaments to jura in alieno solo. ' ' (Austin 
 Jurisp. ii. 707, 708.) 
 
 § 6. Water and ice as real property. It is well settled that, 
 under some conditions, water and ice are to be regarded as 
 real estate, belonging to the owner of the land which is be- 
 neath it." 
 
 And, when that is the case, the landowner or his assign has 
 the exclusive right to gather and dispose of the ice for his 
 own benefit, subject to the rights of other riparian owners." 
 
 In Iowa the owner of land has the right to use so much of 
 the water of a stream flowing over it as is necessary to supply 
 what are termed his "natural wants."" 
 
 Where he does not own the soil under the stream, as where 
 it is meandered, and his ownership does not include its bed, 
 he has no exclusive right to the ice which forms in it. " 
 
 In such cases, whoever has lawful access to the stream may 
 
 " See State v. Pottmeyer, 33 Ind. " Spence v. McDonough, 77 Iowa, 
 
 402 ; 5 Am. Rep. 224, and cases 461 ; Ferguson v. Firmenich Mfg. 
 
 therein cited ; 9 Am. & Eng. En- Co. 77 Iowa, 576. 
 
 cyclop. Law, 853. "Serrin v. Grefe, 67 Iowa, 
 
 '*See Bigelow v. Shaw, 65 Mich. 197. 
 341, and cases therein cited. 
 
10 REAL PROPERTY. 
 
 use the water and the ice which forms therein in such man- 
 ner as does not interfere with the rights of the riparian 
 owners." 
 
 § 7. Heirlooms. The immense display of learning on the 
 subject of heirlooms — so frequently met with in the English 
 adjudications — is, with us, entirely useless, except as a 
 reminder of the extreme length to which our ancestors pur- 
 sued a right in the form of a phantom. At best the law in 
 the mother country, relating to the subject, was based on 
 mere custom. Why swans and doves, rabbits and pet 
 squirrels, old ancestral paintings, or an antique horn should 
 be regarded as "real estate" in this country is an unrevealed 
 mystery. I have been entirely unable to discover any direct 
 adjudications upon the subject on this side of the Atlantic, 
 and certainly, no court would care to converge upon itself 
 the dubious attention of bench, bar, and commentator, by 
 solemnly declaring that such property as we have last enu- 
 merated should pass to the heir as real estate Indeed, Mr. 
 Anderson says, as a subordinate definition of the word heir- 
 looms, that they are properly portraits, coats of arms, paint- 
 ings, and such like pf the former owners of an inheritance. 
 (Citing Brown's Law Diet.) In a subsequent paragraph he 
 declares that heirlooms are not recognized by the laws of this 
 country, and cites in support of his averment i Wash. R. P. 
 4th ed. 20, and Moseley's Est. W. N. C. Professor Walker 
 also appears as a sceptic on the question of their recognition 
 with us, and in my opinion the word should be banished from 
 the vocabulary of real property as one that an American stu- 
 dent has nothing whatever to do with." 
 
 " Brown V. Cunningham, 82 Iowa, disposition itself, beyond a certain 
 
 515; 12 L. R. A. 583. point, effectual; for the articles 
 
 "The term heirlooms is often ap- will, in such case, belong absolutely 
 
 plied in practice to certain chattels to the first person who, under the 
 
 — for example, pictures, plate, or limitations, would take a vested es- 
 
 furniture — which are directed by tate of inheritance in them, suppos- 
 
 will or settlement to follow the ing them to be real estate ; and, if 
 
 limitations thereby made of some he die intestate, will pass to his 
 
 family mansion or estate. But the personal representative, and not to 
 
 word is not here employed in its his heir. Co. Litt. iSb-iSjb; 2 
 
 strict and proper sense, nor is the Steph. Com. bk. 2, pt. 2 ; Wharton. 
 
NATURE OF REAL PROPERTY. II 
 
 § 8. Crops and Trees. So a crop of corn fully matured but 
 standing uncut in the field, passes by deed with the freehold. 
 {Tripp V. Hasceig, 20 Mich. 254.) In Kitteredge v. Woods, 3 
 N. H. 503, Judge Ritchardson maintains the proposition that 
 when the land is conveyed without any reservation, what- 
 ever crop is upon the land passes, and after stating that ripe 
 grain in the field is subject to execution as a chattel, his 
 Honor adds : ' ' Yet no doubt seems ever to have been enter- 
 tained that it passes with the land when sold without any 
 reservation." And in the case of Heavilon v. Heavilon, 29 
 Ind. 509, the court expressly admits that until severance, the 
 crop, as between vendor and purchaser of the land, is part of 
 the realty. The authorities are quite decisive that whether 
 the crop of the seller goes with the land to the purchaser 
 when there is no reservation or exception, depends upon 
 whether the crop is at the time attached to the soil, and not 
 upon its condition as to maturity. And this seems to be the 
 most natural and practical rule. When parties are bargain- 
 ing about land, the slightest observation will discover 
 whether the crops are severed or not, and there will be no 
 room for question or mistake as to whether they belong to 
 the land or not, if owned by the vendor. If, however, the 
 crops are to be considered as land or personal chattels, as 
 they continue, or do not continue, to draw nourishment from 
 the soil, the instances will be numerous in which very difii- 
 cult inquiries will be requisite to settle the point." 
 
 It was stated by Judge Metcalf, in Stearns v. Washburn, 7 
 Gray, 1 88, that, until severed, grass was not personalty, nor 
 goods or chattels, but was part of the realty." 
 
 In Br anion v. Griffits, 2 C. P. Div. 212, the court said: 
 ' ' Now it is impossible that there can be present delivery of 
 growing crops. In a popular and practical sense, growing 
 crops are no more capable of removal than the land itself. I 
 do not know that corn growing is susceptible of delivery in 
 any other way than by putting the donee into possession of 
 the soil. " Per Chief Justice Kent, in Noble v. Smith, 2 Johns. 
 
 '' Tripp V. Hasceig, supra, op. by 562 ; Raventas v. Green, 57 Cal. 
 Graves J. 254; Stowe v. Peacock, 35 Me. 
 
 '*'• Searles v. Ogden, 15 Reporter, 385. 
 
12 REAL PROPERTY. 
 
 52, 56; Smith V. Champney, 50 Iowa, 174. There are, however, 
 cases which hold that the possession is in the vendee until he 
 is prepared to harvest the crops, and until then he is not 
 required to take manual possession of them." 
 
 Mr. Benjamin thus sums up the law on the subject per- 
 fectly, and what he declares, is good law everywhere, except 
 as to sales of young growing timber." 
 
 "Growing crops, if fructus industriales, are chattels, and 
 an agreement for the sale of them, whether mature or imma- 
 ture, whether the property in them is transferred before or 
 after severance, is not an agreement for the sale of any 
 interest in land, and is not governed by the fourth section of 
 the Statute of Frauds."" 
 
 "Growing crops, if fructus naturales, are part of the soil 
 before severance, and an agreement therefore, vesting an 
 interest in them in the purchaser before severance is gov- 
 erned by the fourth section ; (Lord Coleridge, C. J. , in Mar- 
 shall'^. Green, i C. P. Div. 38-40 ; Slocum v. Seymour, 7 Vroom, 
 138) but if the interest is not to be vested until they are con- 
 verted into chattels by severance, then the agreement is an 
 executory agreement for the sale of goods, wares, and mer- 
 chandise, governed by the seventeenth and not by the fourth 
 section of the Statute of Frauds." " 
 
 The case of Marshall v. Green must be viewed with con- 
 siderable suspicion. The American cases are not all in har- 
 mony, but the tendency is toward the doctrine that the 
 Statute of Frauds applies. Such sales involve an interest in 
 land, and if resting in oral agreement merely, they are 
 voidable." 
 
 Growing wheat sown by the owner of the soil is a part of 
 the realty until ripe and ready to sever from the soil, and 
 
 "Ticknor v. McClelland, 84 111. v. Griswold, 19 111. 631; Ross v. 
 
 471; Williamson v. Steele, 3 Lea Welch, 11 Gray, 235. 
 
 (Tenn.), 527. ssSee Benjamin on Sales (4th 
 
 "Benjamin on Sales (4th Am. Am. ed.), p. 147, note, 
 
 ed.), sec. 126. "Green v. Armstrong, i Den. 
 
 " Kingsley V. Holbrook, 45 N. H. 550; O'Donnell v. Brehen, 36 N. J, 
 
 313, 318; Buck V. Pickwell, 27 Vt. L. 257: Howe v. Batchelder, 49 N. 
 
 157; Bryant v. Crosby, 40 Me. 9; H. 204; Kilmore v. Hewlett, 48 N. 
 
 Sherry v. Picken, 10 Ind. 375 ; Bull Y. 569. 
 
NATURE OF REAL PROPERTY. 1 3 
 
 therefore is not subject to attachment as personalty. In sup- 
 port of this proposition, Washb. Real Prop. 2d ed. , p. 4 ; Bur- 
 leigh V. Piper, 51 Iowa, 649, and Ellithorpe v. Reidesil, 71 Iowa, 
 315, are cited. The last of these authorities, which is a case 
 decided by the Supreme Court of Iowa, fully sustains this 
 contention; and it is said in the opinion: "The whole pro- 
 ceeding was on the theory that the crops were personal prop- 
 erty, and could be levied on and sold as such ; but while they 
 remained immature, and were being matured by the soil, 
 they were attached to and constituted part of the realty ; they 
 could no more be levied on and sold on execution as person- 
 alty than could the trees growing upon the premises. This 
 doctrine is elementary, and it has frequently been declared 
 by this court.'"" 
 
 It must be conceded that there is much force in the reason- 
 ing to sustain this position. It is a well-established rule that 
 a conveyance of land, either by voluntary deed or judicial 
 sale without reservation, carries all growing crops with the 
 title to the land." 
 
 The value of the growing crop depends upon the soil for 
 its support and nourishment, and if disconnected at once, in 
 a case like this, would be nothing. A levy and sale usually 
 affords but little return to the creditor, while it is a serious 
 loss oftentimes to the debtor; but, whatever may be our 
 individual views as to the policy of the law, we must be 
 governed by it as we find it. In the case of Beckman v. Sikes, 
 35 Kan. 120, it was held that a sale under a mortgage fore- 
 closure carried to the purchaser growing crops planted after 
 the decree of foreclosure was entered as against a purchaser, 
 who bought from the mortgagor the growing crop one day 
 before the sale by the sheriff. In the opinion the court says : 
 " The lien of the mortgage and the judgment, however, 
 attached to the growing crops until they were severed, as 
 well as to the land. The mortgagor planted the crop, know- 
 ing that it was subject to the mortgage, and liable to be 
 devested by the foreclosure and sale of the premises. Any 
 
 *" Downard V. Groff, 40 Iowa, 597 ; ''' Garanflo v. Cooley, 33 Kan. 
 
 Burleigh v. Piper, 51 Iowa, 650; I37 ; Smith v. Hague, 25 Kan. 246; 
 
 Hecht V. Dettman, 56 Iowa, 679 ; Chapman v. Veach, 32 Kan. 167. 
 Martin v. Knapp, 57 Iowa, 336. 
 
14 REAL PROPERTY. 
 
 one -who purchased said crops from him took them subject to 
 the same contingency, as the recorded mortgage and the 
 decree of foreclosure were notice to him of the existence of 
 the lien. If the land is not sold until the crops ripen and are 
 severed, the vendee of the mortgagor would ordinarily get a 
 good title ; but if the land was sold and conveyed while the 
 crop was still growing, and there was no reservation, or 
 waiver of the right to the crop, at such sale the title to the 
 same would pass with the land. ' ' Goodwin v. Smith, 49 Kan. 
 351, holds: "The purchaser at a judicial sale of mortgaged 
 premises is entitled to the growing crop of wheat on the land 
 against the tenant of the mortgagor, who took a lease of the 
 land after a suit for foreclosure had been commenced, and 
 planted the wheat after judgment had been rendered in the 
 foreclosure action; the purchaser having acquired a sheriff's 
 deed on the 2d day of February, and the wheat not ripening 
 and being ready for harvesting until the 20th day of June."" 
 
 In Caldwell \. Alsop, 48 Kan. 571, 782, "an owner of mort- 
 gaged land leased the same to another, and reserved as rent 
 a share of the crop. He was in default in the payment of 
 the mortgage, and insolvent. After default was made, and 
 after the leasing of the premises, but before the rent was 
 due, he sold his share of the crop rent to one who had notice 
 of the mortgage and of the default. After the crop had fully 
 matured, but while it was standing upon the land, foreclo- 
 sure proceedings were begun, and a receiver of the land 
 appointed, but the court refused to authorize the receiver to 
 take possession of the crop. Held, that the order of refusal 
 was not error. ' ' 
 
 Trees standing and growing on a division line are com- 
 mon property, as to which the owners of adjoining parcels of 
 land are tenants in common ; and an action of trespass will 
 lie by the one against the other who attempts to cut down 
 and destroy them without the consent of his co-tenant." 
 
 If the trees have special value and one of the co-tenants 
 derives from them some special advantage, benefit or enjoy- 
 ment, beyond the actual value of trees as trees, courts of 
 
 '' See, also, Missouri Valley Land 337; Griffin v. Bixby, 12 N. H. 
 Co. V. Barwick, 50 Kan. 57. 454; DuBois v. Beaver, 25 N. Y. 
 
 2' Hoffman v. Armstrong, 46 Barb. 1 23. 
 
NATURE OF REAL PROPERTY. 15 
 
 equity -will not hesitate to interfere by injunction to restrain 
 his co-tenant from cutting down and destroying the same and 
 depriving him of the special value, benefit and enjoyment 
 which he enjoys therefrom." 
 
 Although different opinions have been held as to the rights 
 of owners of adjoining land in trees planted, the bodies of 
 which are wholly upon that of one, while the roots extend 
 and grow into that of the other and derive nourishment 
 therefrom, it was considered by Allen J., in giving the opin- 
 ion of the court in Dubois v. Beaver, 25 N Y. Rep. 123, etc., 
 that the tree is wholly the property of him upon whose land 
 the trunk stands. This principle is sustained in Masters v- 
 Pollie, 2 Rol. Rep. 141 ; Holder v. Coates, i Moody & Malkin, 
 112. 
 
 The ground or reason assigned in these cases for holding 
 that the owner of land on which no part of a tree stands, but 
 into which the roots extend, has any interest, is that the tree 
 derives its nourishment from both estates. 
 
 The adjacent owner may cut off the branches or roots of 
 trees up to the line of his land ; but, if he use them, he will 
 be obliged to pay the owner of the tree what they are worth. 
 
 Where a tree stands upon the boundary line between 
 adjoining owners, so that its body extends into the land of 
 each, they own the tree and fruit in common, and neither is 
 at liberty to cut the tree without the consent of the other, 
 nor to cut away the part which extends into his land, if he 
 thereby injures the common property." 
 
 But in White v. Foster, 102 Mass. 375-379, Judge Colt said: 
 "A simple oral contract for the sale of trees, to be removed 
 in a definite time, would be construed as not intended to 
 convey any interest in the land. ' ' 
 
 And in Claflin v. Carpenter, 4 Met. 580, Judge Wilde said: 
 "A contract for sale of standing timber, to be cut and severed 
 from the freehold by the vendee, does not convey to him any 
 interest in land within the meaning of the statute. Such a 
 
 "2 Story Eq. Jur. sec. 928; 8 Wis. 160; Shipley v. Ritter, 7 Md. 
 
 Pom. Eq. Jur. sec 1357 ; Sarles v. 408. 
 
 Sarles, 3 Sandf. Ch. 601, 7 L. ed. =' Griffin v. Bixby, 12 N. H. 454; 
 
 772; Daubenspeck V. Grear, 18 Cal. Dubois v. Beaver, 25 N. Y. 123; 
 
 443; Wilson V. Mineral Point, 39 Austin Farm Law, 170. 
 
l6 REAL PROPERTY. 
 
 contract is to be construed as passing an interest in trees 
 ■when they are severed from the freehold, and not any inter- 
 est in the land."" 
 
 § 9. Mines and minerals. Bouvier defines a mine as an ex- 
 cavation made for obtaining minerals from the bowels of the 
 earth ; and the minerals themselves are known by the name 
 of mine. Mines are considered as open and not open. An 
 open mine is one at which work has been done, and a part of 
 the materials taken out. When land is let on which there is 
 an open mine, the tenant may, unless restricted by his lease, 
 work the mine (i Cru. Dig. 132; 5 Co. R. 12; i Chit. Pr. 184, 
 5) ; and he may open new pits or shafts for working the old 
 vein, for otherwise the working of the same mine might be 
 impracticable. (2 P. Wms. 388; 3 Tho. Co. Litt. 237; 10 
 Pick, R. 460.) A mine not opened cannot be operated by a 
 tenant for years unless authorized, nor even by a tenant for 
 life, without being guilty of waste." Unless expressly 
 excepted, mines would be included in the conveyance of 
 land, without being expressly named, and so vice versa, by a 
 grant of a mine, the land itself, the surface above the mine, 
 if delivery be made, will pass.°* 
 
 Bainbridge on the Law of Mines and Minerals, at page 
 129, says: "When mines form part of the general inherit- 
 ance, they will, of course, be transferred along with lands, 
 without being expressly mentioned in the conveyance ; but 
 when they form a distinct possession or inheritance, a dis- 
 tinct title to them must also be established. In the latter 
 situation the mines will still, of course, retain the qualities 
 of real estate, and will be transferred by conveyances appli- 
 cable to the particular disposition of them intended to be 
 made." 
 
 Taking out mineral is a natural use of mining property, 
 
 '^Nettleton v. Sikes, 8 Met. 34; Shep. To. 26. Vide, generally, 15 
 
 Giles V. Simonds, 15 Gray 441; Vin. Abb. 401 ; 2 Supp. to Ves. jr. 
 
 Drake v. Wells, 11 Allen, 141 ; Poor 257, and the cases there cited, and 
 
 V. Oakman, 104 Mass. 309; Erskine 448; Com. Dig. Grant, G 7; Id. 
 
 V. Plummer, 7 Me. 447 ; Cutler v. Waifs, H i ; Crabb, R. P. sees. 98- 
 
 Pope, 13 Me. 377. loi ; 10 East, 273 ; i M. & S. 84; 2 
 
 «'5Co. 12. B. & A. 554; 4 Watts, 223-246: 
 
 28 Co. Litt. 6 ; I Tho. Co. Litt. 218 ; Bouvier's Law Diet. 165. 
 
NATURE OF REAL PROPERTY. 1/ 
 
 and no adjoining proprietor can complain of the result 
 of careful, proper mining operations, and the cases have 
 decided that where the maxim sic utere tuo iit alienum non 
 laedas is applied to land and property, it is subject to a cer- 
 tain modification ; it being necessary for the plaintiff to show- 
 not only that he has sustained damage, but that the defend- 
 ant has caused it by going beyond what is necessary in order 
 to enable him to have the natural use of his own land. * * 
 The right to mine coal is not a nuisance in itself. It is a 
 right incident to ownership of property, but should be exer- 
 cised in the ordinary manner, and with due care. 
 
 Distinct ownerships may, however, exist as to the surface 
 lands, and the different stratifications of mineral deposit 
 beneath the surface. Each proprietor must exercise his 
 rights in due subordination ' to those of the other owners. 
 For instance, the particular owner of the surface must allow 
 free access to and from the shaft or tunnel which extends to 
 the mineral deposits of another proprietor, and both of these 
 must respect and countenance the rights of a third proprie- 
 tor who has acquired dominion over the oil or gas underlying 
 the coal strata. His rights allow him to pass through the 
 •coal stratification with a drill or tubing, to properly encase 
 the same, and to make repairs thereto when injured. So the 
 proprietor of the surface may require the mineral proprietor 
 to so develop his mine as not to endanger the natural surface 
 grade. In other words, the law accords impartial respect to 
 every individual right, and will not tolerate the least un- 
 necessary infringement of one upon the other. ''' 
 
 a. Coal in place. Coal in place on land is a part of the land, 
 but the coal may be sold or leased to be mined and removed 
 and paid for by the ton after it is taken out and cleaned. In 
 such cases the subject of the sale ceases to be a part of the 
 real estate and becomes personal property, and the rights of 
 the parties depend upon the contract alone.*" 
 
 "Horner v. Watson, 79 Pa. St. Yandes v. Wright, 66 Ind. 319; 
 
 242; Wilms V. Jess, 94 111. 464; Adams v. Brigg-s, 7 Cush. 361. 
 
 Marvin v. Brewster I. N. Co. 55 N. ■"• Douglass v. Shunway, 13 Gray, 
 
 Y. 538; Green v. Putnam, 8 Cush. 502; Claflin v. Carpenter, 4 Met. 
 
 21 ; Jones v. Wagner, 66 P. St. 429; 580:38 Am. Dec. 381; Smith v. 
 
 2 
 
1 8 REAL PROPERTY. 
 
 b. Aerolites as realty. In the American and English Ency- 
 clopedia of Law (vol. 1$, p. 388), is the following language: 
 "An aerolite is the property of the owner of the fee upon 
 which it falls. Hence a pedestrian upon the highway who is 
 first to discover such a stone is not the owner of it ; the high- 
 way being a mere easement for travel. ' ' It cites the case of 
 Maas V. Amana Soc, i'6 Alb. L. J. jS, and 13 Ir. L. T. 381, 
 each of which periodicals contains an editorial notice of such 
 a case having been decided in Illinois, but no reported case 
 is to be found. Anderson's Law Dictionary states the same 
 rule of law, with the same references, under the subject of 
 Accretions. In 20 Alb. L. J. 299, is a letter to the editor 
 from a correspondent, calling attention to a case determined 
 in France, where an aerolite found by a peasant was held not 
 to be the property of the ' ' proprietor of the field, ' ' but that 
 of the finder. These references are entitled, of course, to 
 slight, if any, consideration; the information as to them 
 being too meager to indicate the trend of legal thought. 
 
 The Supreme Court of Iowa, with some doubts as to the 
 correctness of its decision decided, that an aerolite, falling upon 
 the earth, becomes the property of the owner of the land 
 upon which it falls, and the mere fact that a stranger has 
 discovered it, does not alter the question as to who is its 
 legal owner." 
 
 There is a great deal, however, to be said on the other 
 side. Scientists inform us that between six and seven hun- 
 dred of these strangers come to our earth every year. Their 
 chief value is for scientific purposes, and as museum curios. 
 Their legal status as a matter of ownership is what concerns 
 us, and there is much reason for holding that the principle 
 
 Suriman, 9 Barn & C. 561; Mar- 105 ; Giles v. Simonds, 15 Gray, 441 ; 
 
 shall V. Green, L. R. i C. P. Div. ^^ Am. Dec. 373 ; Bostwick v. 
 
 35; Mumford V. Whitney, 1 5 Wend. Leach, 3 Day, 484; Smith v. Ben- 
 
 380; 30 Am. Dec. 60; Drake v. son, i Hill, 176; Am. Lead. Cas. 
 
 Wells, I r Allen, 141; Nettleton v. (4th Am ed.), 739, 752; Buck v. 
 
 Sikes, 8 Met. 34; Byasseev. Reese, Pickwell, 27 Vt. 157; Sugd. Vend. 
 
 4 Met. (Ky.), 372 ; 83 Am. Dec. 481 ; & P. Perkin's ed. note n, pp. 125, 
 
 Erskine v. Plummer, 7 Me. 447 ; 22 126 ; Union Petroleum Co. v. 
 
 Am. Dec. 216 ; Cain v. McGuire, 13 Bliven Petroleum Co. 72 Pa. 173. 
 B. Mon. 340 ; Edwards v. Grand *' Goddard v. Winchell, — Iowa, 
 
 Trunk R. Co. of Canada, 54 Me. • — p. (1892). 
 
NATURE OF REAL PROPERTY. 19 
 
 applicable to such a case is that of original acquisition. 20 
 Albany L. J. 299. 
 
 Under the Roman law, when treasure was found by one per- 
 son on the land of another, one-half thereof was given to the 
 finder and other half went to the owner of the land. Code 
 Civil Act, 713; Mackenzie, Roman Law, 170; cited in Liver- 
 more V. White, 74 Me. 452; 43 Am. Rep. 600. 
 
 But in English and American law the finder of property 
 not claimed by an owner is entitled to the whole of it, even 
 though it be found on the land of another. 
 
 The finder of lost articles acquires a good title to them, 
 against every one except the former owner." 
 
 The place in which a lost article is found does not consti- 
 tute any exception to the general rule of law that the finder 
 is entitled to it as against all persons except the owner." 
 
 The authorities regard such lost articles as things fallen 
 back into the common stock, and purely upon the ground of 
 prior occupancy is the finder's title made to rest." 
 
 Practically the same rule is held regarding things aban- 
 doned. They fall back into the "common stock" and are the 
 property of him who first possesses himself of them." 
 
 As to things which were never owned, which have never 
 yet been out of the "common stock and mass of things," the 
 same rule holds in the main, and the person who first cap- 
 tures the chattel may hold it against the world." 
 
 We shall not indulge ourselves in any pangs of mental 
 parturition over Judge Granger's refusal to recognize the 
 theory that the Iowa meteorite ' ' was supposed to have been 
 abandoned by the last proprietor," but we may note, as he 
 does, the trend of the argument of the counsel for the appel- 
 lant to the effect that all real estate is acquired by the rules 
 
 *' Armory V. Delamirie, i Strange, ■" 2 BI. Com. sec. 402; cases above 
 
 505. cited ; Sovern v. ; Ypran, , 16 Or. 
 
 *' Bridges v. Hawkesworth, 7 Eng. 269. 
 
 L. & Eq. 424 ; Durfee v. Jones, 11 "^ Haslem v, Lockwood, 37 Conn. 
 
 R. I. 588; 23 Am. Rep. 528; Bowen 500: 9 Am. Rep. 350. 
 
 V. Sullivan, 62 Ind. 281; 30 Am. '''Taber v. Jenny, i Sprague, 315 ; 
 
 Rep. 172 ; Hamaker v. Blanchard, Young v. Hichens, i Dav. & Meriv. 
 
 90 Pa. 377 ; 35 Am. Rep. 664 ; 592 ; Amory v. Flyn, 10 Johns. 102 ; 
 
 Totum V. Sharpless, 6 Phila. 18. 6 Am Dec. 316. 
 
20 REAL PKOPERTV. 
 
 of the common law either by escheat, occupancy, prescrip- 
 tion, forfeiture, or some species of alienation. These were 
 all the methods known, barring inheritance. We are entirely 
 at a loss to determine any other method of acquiring realty, 
 and are very much gratified to know that the court itself was 
 in grave doubt as to the correctness of its ruling. Indeed, it 
 is admitted that the question has been decided bj' the French 
 courts in favor of regarding an aerolite as personal property. 
 
 c. Oil and gas. The authorities now very generally hold 
 petroleum to be a mineral, and as much a part of the realty 
 as timber, coal, or iron ore, except that in proper cases its 
 mobility as a subterranean liquid must be taken into con- 
 sideration, as in the case of salt water, etc." 
 
 The courts of the State of Pennsylvania have had many 
 cases, some involving property rights of great value, in 
 which the point arose, and have examined the question 
 thoroughly, considered it with great care with reference to 
 its being property where it is found, and its character and 
 nature as property in general. ' ' Oil is a mineral, and, being 
 a mineral, is part of the realty." " 
 
 In this it is like coal, or any other natural product, which 
 in situ forms part of the land. It may become, by severance, 
 personalty, or there may be a right to use or take it, origi- 
 nating in custom or prescription ; as the right of a life tenant 
 to work open mines, or to use timber for repairing buildings 
 or fences on a farm, or for firebote. Nevertheless, whenever 
 conveyance is made of it, whether that conveyance be called 
 a lease or deed, it is, in effect, the grant of a part of the 
 corpus of the estate, and not of a mere incorporeal right. 
 Not infrequentl}' the oil forms by far the most valuable part 
 of an estate." 
 
 ■" Kier v. Peterson, 41 Pa. St. waters, see Collins v. Chartiers 
 
 ^362. Valley Gas Co. (1890), 131 Pa. 143; 
 
 ■"Funk V. Haldeman (1866), 53 6 L. R. A. 280; as to ownership by- 
 Pa. St. 229, 249. different ones of the surface, coal, 
 
 "' Stoughton's App. (1878), 88 Pa. iron, ore, oil, gas, etc., see Char- 
 
 198, 201 ; Westmoreland & C. Nat. tiers Block Co.il Co. v. Mellon 
 
 Gas Co. V. DcWitt, 130 Pa. 235 ; 5 (1893); 152 Pa. 286, 293 ; 18 L. R. A. 
 
 L. R. A. 731 ; Hague v. Wheeler, 702 ; Wheatley v. Baugh, 25 Pa. 
 
 157 Pa. 324; 22 L. R. A. 141. As to 52S ; 64 Am. Dec. 721, where there 
 
 ownership in situ of subterranean is a full note on the subject. 
 
NATURE OF REAL PROPERTY. 21 
 
 "Where percolating water is found, it belongs to the realty 
 ■where it is found. "°° 
 
 In Findlay v. Smith {\%\%), 6 Munf. 134; 8 Am. Dec. 733, 
 subterranean salt water is treated as part of the inheritance 
 of which waste could be committed. And for a like or a 
 stronger reason should rock oil be so regarded." 
 
 I do not understand the case of Wood County Petroleum Co. 
 V. West Virginia Transp. Co., 28 W. Va. 211 ; 57 Am. Rep. 659, 
 to lay down a different doctrine, even as to natural gas, so 
 long as it is confined in the strata where it is found. It is 
 only when it escapes out of the possession of the owner that 
 the right of property is gone. This follows as an inevitable 
 result of its fugitive nature. 
 
 The description of property rights in respect to gas is very 
 clearly made in Westmoreland & Cambria Nat. Gas Co. v. De Witt, 
 130 Pa. St. 235. In this case the master said : " Gas is a mineral, 
 and while in situ is a part of the land, and, therefore, possession 
 of the land is possession of the gas. ' ' But after quoting this 
 the court said: "This deduction must be made with some 
 qualifications. Gas, it is true, is a mineral, but it is a mineral 
 with peculiar attributes which require the application of pre- 
 cedents arising out of ordinary mineral rights, with much 
 more careful consideration of the principles involved than the 
 mere decision. Water also is a mineral, but the decisions in 
 ordinary cases of mining, etc. , have never been as unqualified 
 precedents in regard to flowing or even to percolating water. 
 Water, and oil, and still more strongly, gas, may be classed 
 by themselves, if the analogy be not too fanciful, as minerals 
 ferae naturae. In common with animals and unlike other 
 minerals, they have the power and tendency to escape with- 
 out the volition of the owner ; their ' fugitive and wandering 
 existence within the limits of a particular tract is uncertain, ' 
 as said by Chief Justice Agnew in Brown v. Vandergrift, 80 
 Pa. 147, 148. They belong to the owner of the land and are 
 part of it so long as they are on or in it, and are subject to 
 his control ; but when they escape or go into other land or 
 come under another's control, the title of the former owner 
 
 "Chasemore v. Richards, 7 H. "Hail v. Reed, 15 B. Mon. 479. 
 
 L. Cas. 349. 
 
22 REAL PROPERTY. 
 
 is gone. Possession of the land, therefore, is not necessarily 
 possession of the gas. If an adjoining or even distant owner 
 drills his own land, or taps your gas so that it comes into his 
 well or under his control, it is no longer yours but his. ' ' 
 
 They belong to the owner of the 1^^, and are part of it so 
 long as they are on or in it, and ar^^ubject to his control. 
 But when they escape and go into other land, or come under 
 another's control, the title of the former owner is gone." 
 
 Houses, Buildings, Water Mains, Pipes, Electric Wires, 
 Frame of Elevated R. R. etc 
 
 § 10. Buildings regarded as real estate. It is familiar learn- 
 ing that whatever is firmly affixed to the soil is a part of it, 
 and will be included in the term real estate. Every day 
 illustrations of the rule occur in the constant reference to 
 houses, stores, buildings of all descriptions, as real property. 
 And such erections invariably pass with a conveyance of the 
 land on which they stand, unless owing to some peculiarity 
 of the erection, and some express reservation relating thereto, 
 a particular structure is regarded as personal property." 
 
 As a general rule, buildings" are a part of the realty, and 
 belong to the owner of the land on which they stand. Even 
 if built by a person who has no interest in the land, they 
 become a part of the realty, unless there is an agreement by 
 
 " Westmoreland N. Gas. Co. v. least to endure for a considerable 
 
 DeWitt, 130 Pa. St. 235. time. Stevens v. Gourley, 97 E. C. 
 
 "2 Bl. Com. 17; Lipsky v. Borg- L. 112 (tSsp), Byles J. 
 mann, 52 Wis. 256 ; Coombs v. Jor- The " commencement " of a build- 
 dan, 2 Bland. Ch. 284; Mott v. ing imports some work and labor 
 Palmer, i N. Y. 564. on the ground, the effect of which 
 
 " Anderson says : — A building, in is apparent, as, beginning to dig 
 
 its broadest sense, an erection in- the foundation, or other work of 
 
 tended for use and occupation as a like description, which every one 
 
 habitation or for some purpose of can readily recognize as the com- 
 
 trade, manufacture, ornament, or mencement of a building. Brooks 
 
 use, constituting a fabric or edifice, v. Lester, 36 Md. 70 (1872). Work 
 
 such as a house, a store, a church, being done with the purpose then 
 
 a shed. Truesdell v. Gay, 13 Gray, formed to continue it to the com- 
 
 312(1859), Bigelow, C.J. pletion of the building. Kelly v. 
 
 A structure of considerable size, Rosenstock; 45 Md. 392 (1876), 
 
 intended to be permanent or at cases. Anderson's Law Diet. 
 
NATURE OF REAL PROPERTY. 23 
 
 the owner of the land, either express or implied, from the 
 relation of the parties, that they shall remain personal 
 property. " 
 
 a. Water mains, pipes, etc. Water mains, pipes, etc., may be 
 considered real estate, ^M so taxable where they are located, 
 to the person or companjr owning them. The idea that they 
 may be considered appurtenances to the place of supply and 
 taxable there is untenable. There is no principle upon which 
 it can rest. " 
 
 The Iowa doctrine, that water works are real estate, and 
 taxable as an entirety at the place of supply, is not supported 
 by authority. Oskaloosa Water Co. v. Oskaloosa Board of Equal- 
 ization, 84 Iowa, 407, and similarly the superstructure of an 
 elevated railway is regarded as realty." 
 
 The reasoning will also apply to the poles of an electrical 
 lighting plant or of a telegraph line." 
 
 b. Different stories in a buildiug may be realty. Where one 
 person owns the lower story of a building, and another the 
 upper story, with right of way thereto, the latter cannot 
 recover of the former for necessary repairs of the roof, made 
 by him. Although this mode of ownership is not at all un- 
 usual in large cities, yet the common law does not clearly 
 define the relative rights and duties of persons so situated. 
 2 Wash, on Real Est. 79; see Loring v. Bacon, 4 Mass. 575 ; 
 contra. Tenant v. Goldwin, 2. Ld. Raym. 1091, where it is held 
 that each may compel the other to repair. As a ruling that 
 commends itself to even a crude notion of justice the Massa- 
 chusetts decision in Loring v. Bacon, supra, is utterly inde- 
 fensible. 
 
 Mr. Washburn says :" "One may have an estate in a single 
 chamber in a dwelling house. (Doe v. Burt, i Tr. 701 ; Pro- 
 prietors V. Lovell, I Met. 538; Cheeseboro v. Green, \o Conn. 
 318; Co. Litt. 48b.; Loring v. Bacon, 4 Mass. 576; i Prest. 
 Est. 214; Humphries v. Brogden, 12 Ad. & El. n. s. 747, 756; 
 
 " Westgate v. Wixon, 128 Mass. "People, ex rel. N. Y. El. R. R. 
 
 304, 306. Co., V. Commissioners, 82 N.Y. 459. 
 
 " Rex V. Bath, 14 East., 610, and '' Keating Co. v. Marshall Co., 74 
 
 Rex V. Brighton Gas Light & Coke Tex. 605. 
 
 Co., 5 Barn. & C. 466. See Boston *' i Real Prop., ch. I, § 12. 
 Mfg. Co. V. Newton, 22 Pick. 22. 
 
24 REAL PROPERTY. 
 
 Rhodes v. McCormick, 4 Iowa, 375), and may have a seizin of 
 such house or chamber, and maintain ejectment therefor, if 
 deprived of its possession {Doe v. Burt, ub. sup. ; Otis v. 
 Smith, 9 Pick. 293), although if such house or chamber be 
 destroyed, all interest of the owner thereof in the land on 
 which it stood might thereby be lost.'"" 
 
 ^11. Pews and tombs in churches. Church pews have 
 been the subject of considerable controversy, in recent years, 
 and the line of decisions in regard to the subject is anything 
 but satisfactory. It may be assumed, however, that the 
 parish, or the proprietors, may abandon their former place of 
 worship, without infringing the rights of the -pew-holders, 
 even where, as a natural consequence, the pew is rendered use- 
 less, and it would seem that the fact that the church edifice 
 was still in a tenable condition, does not alter the absence of 
 liability. {Fassett v. First Parish in Boylston, 19 Pick. 361.) 
 It seems that if "it has become necessary" to remove the 
 church structure, the pew holders are powerless to prevent. 
 But if the church is demolished or the pews removed merely 
 as a matter of expediency, the pew-holder may recover." 
 
 In the absence of any statute, pews in a church are held to 
 be real estate. Such is the law in Maine and Connecticut; 
 while in New Hampshire, Massachusetts and New York, 
 they are held to be personal property. In Indiana they 
 belong to the church. The property in a pew, whether the 
 owner be a member of the society or not, is not absolute, but 
 qualified and usufructuary — an exclusive right to occupy a 
 certain part of the meeting-house for the purpose of attend- 
 ing public worship, and no other — and is necessarily subject 
 to the right of the proper church authorities to remove, take 
 down or repair the pew, although it is thereby destroyed." 
 
 A pew right is not of such a character as to prevent an ab- 
 solute sale of the church edifice, either by contract or by 
 
 '» Stockwell V. Hunter, 11 Met. Cush. 508; Gay v. Baker, 17 Mass. 
 
 448. 435 ; In re New South Meeting- 
 
 " Howard V. First Parish in North House, 13 Allen, 497, 517. 
 
 Bridgewater, 7 Pick. 138; Kimball *' Daniel v. Wood, i Pick. 102; 
 
 V. Second Parish in Rowley, 24 Austin, Farm Game Laws, 96. 
 Pick. 347 ; Gorton v. Hadsell, 9 
 
NATURE OF REAL PROPERTY. 25 
 
 judicial process; by itself it was never known as a subject of 
 taxation ; if the edifice burns down the pew right is gone ; it 
 does not prevent the society from tearing down and rebuild- 
 ing the edifice, or from altering the whole interior arrange- 
 ment of it ; it does not authorize the pew-holder to change 
 and decorate the pew according to his fancy, or to cut it down 
 and carry it away ; and it gives him no right to the ground 
 on which it stands." 
 
 "The right to a pew, although everywhere in Massachusetts 
 it is regarded as property, and in every part of the State ex- 
 cept Boston, as real estate (by St. 1855, c. 122, pews in all 
 houses of public worship are made personal property), and 
 in Boston as personal estate, yet it is property of a peculiar 
 nature, derivative and dependent. It is an exclusive right to 
 occupy a particular portion of a house of public worship, 
 under certain restrictions. The owner of a pew is not a ten- 
 ant in common of the estate on which the house stands ; the 
 legal estate is in the corporation, if the religious society be 
 one, or in the trustees, if the property be vested in them to 
 the use of the congregation, forming a religious society for 
 public worship. Whoever else, therefore, may be, or claim 
 to be, cestuis que trust, the holders of pews are clearly 
 entitled to stand in that relation. For whom then were these 
 grantees constituted trustees? The answer is, for a body of 
 individuals who had united together and contributed of their 
 means to purchase land and erect a house of public worship 
 — a body of individuals as capable at that time of being desig- 
 nated, ascertained and identified as proof, as if they had been 
 actually enumerated in the deed. ' ' " 
 
 "The parish corporation is the legal owner of the house and 
 the land on which it stood. It had the control of the house, 
 the right to determine at what hours on the Sabbath and at 
 other times it should be open for public worship ; to select 
 the pastor ; to contract with him as to the terms of his settle- 
 
 «' Church V. Wells, 24 Pa. 250; Hancock v. McAvoy, 31 W. N. C. 
 
 Kincaid's App., 66 Pa. 412; Craig 257. 
 
 V. First Presby. Church of Pitts- '* Attorney -General v. Proprie- 
 
 burg, 88 Pa. 51, 32 Am. Rep. 417; tprs of the Meeting-house in Fede- 
 
 Philadelphia & R. R. Co. v. Read- ral Street in Boston, Mass.; 3 
 
 ing & P. R. Co., 31 W. N. C. 187; Gray, i 
 
id REAL PROPERTY. 
 
 ment ; to determine who should be admitted to the pulpit 
 in his absence, and to see that the house should be kept in a 
 proper condition for its public use. The pew-holder has 
 certain privileges by reason of his ownership — such as pass- 
 ing through the aisles, being addressed from the pulpit, etc. 
 His property is not absolute but qualified. He may own a 
 pew and yet not be a member of the parish corporation. 
 The corporation may own the land and building thereon, 
 while the pew-holder has only a qualified property in his 
 pew."" 
 
 It is within the power of the parish or the proprietors to 
 determine whether to take down a church or to make altera- 
 tions and repairs. The pew-holder cannot prevent them from 
 doing this. The parish or the proprietors are the owners of 
 the soil, and they may determine all matters relative to the 
 structure to be maintained thereon." 
 
 Nevertheless the right of the pew-holder is held to be of 
 such a nature that he is entitled to an indemnity if the parish 
 or the proprietors exercise their right to take down the 
 church when it is in such a condition that its demolition is 
 not actually necessary. If it has become necessary to take 
 down a meeting-house — that is to say, if a meeting-house 
 has become so old and ruinous that its future use is not prac- 
 ticable — the parish or proprietors need not make payment to 
 a pew-holder for the removal of his pew. But if a meeting- 
 house is taken down as a matter of expediency, the pew- 
 holders are entitled to payment. This rule has been so often 
 stated and maintained that it must be taken to be the settled 
 law of this commonwealth however the law may be else- 
 where." 
 
 It is obvious that if, for any reason, the place of public wor- 
 ship has been changed so that religious services are no longer 
 held in the church which was formerly used for that purpose, 
 
 "'^ First Baptist Society v. Grant, '' Howard v. First Parish in North 
 
 59 Me. 250. Bridgewater, 7 Pick. 138; Kimball, 
 
 *' Daniel v. Wood, i Pick. 102, 11 v. Second Cong. Parish in Rowley, 
 
 Am. Dec. 151; Gay v. Baker, 17 24 Pick. 347, 349; Gorton v. Had- 
 
 Mass. 435, 9 Am. Dec. 159; Re New sell, 9 Cush. 508; Wentworth v. 
 
 South Meeting-house in Boston, 13 First Parish in Canton, 3 Pick, 
 
 Allen, 497, 507. 344- 
 
NATURE OF REAL PROPERTY. 27 
 
 the value of the pew is much diminished; but when such 
 change has been merely made from reasons of expediency, 
 the parish or proprietors cannot go on and demolish the pew 
 without making compensation to the owner of it. He still 
 has an existing right, which may not be very valuable, but 
 which, nevertheless, is entitled to recognition under the 
 laws. 
 
 The fee of the land and the use of the pews are placed on 
 a different footing. The former may be transferred, because 
 such transfer is not forbidden and is not inconsistent with 
 either the purpose or the condition of the conveyance. If 
 the pews are disposed of, the condition is violated, the grant 
 becomes void, and the land reverts as provided. The interest 
 in the pew is separate from the fee, and the owner of the 
 former may maintain an action against a trespasser or any 
 person who infringes upon his rights, and they may be leased 
 and held distinct from the fee." 
 
 So long as pews are considered in point of law as real 
 estate, we can perceive no reason why the actual form of 
 action, given by the common law, to redress a wrong done to 
 the right of possession of real estate, is not the legal and 
 proper remedy." 
 
 In the case of Freligh v. Piatt, 5 Cow. (N. Y.), 494, the court 
 say : " A sale of real estate ex vi termini means an absolute 
 transfer of the property. But the sale of pews in a church is 
 not a sale of real estate within the New York Act regulating 
 religious societies. By the grant of a pew the grantee 
 acquires a limited usufructuary right only. He must use it 
 as a pew in a house of worship, but has not an unlimited, 
 absolute right. He cannot use it lawfully for purposes incom- 
 patible with its nature. The right too, is limited as to 
 time." 
 
 Whether, in the event of failure to dispose of it by will, a 
 pew passes to the owner's heirs, or to his executor or admin- 
 istrator, depends upon the question whether, by the law of 
 the State, pew rights are real or personal property. In Con- 
 necticut, Louisiana and Maine, pews are realty, and descend 
 
 " Woodworth v. Payne, 74 N. Y_ *' Jackson v. Rounseville, 5 Met. 
 
 200. (Mass.), 132. 
 
28 REAL PROPERTY. 
 
 to the heir-at-law ; in Massachusetts and New Hampshire — 
 in most of the States — they are personalty, and, unless dis- 
 posed of by will, vest in the administrator or the executor.'" 
 
 Mr. Wait says: "The owner or holder of a pew may bring 
 trespass if he is disturbed in the possession {Shaw v. Beve- 
 ridge, 3 Hill, [N. Y.], 26), even against the society or person 
 in whom the title to the land and building is vested." But 
 he cannot maintain trespass for the mere breaking and entry 
 of the meeting-house in which his pew is situated."" 
 
 Owners of tombs in the church edifice of a religious body 
 have likewise no title in the land, but merely an interest in 
 the structures and in their proper use, and they cannot pre- 
 vent a sale of the land and building by the society, nor the 
 removal of the remains from the tombs, when such removal, 
 in other respects, is conducted according to law." 
 
 Sepulture in churchyards and private cemeteries belonging 
 to churches, though paid for, never created or implied 
 any right or title to the land. It is merely a privilege to be 
 used in the mode permitted by the religious society." 
 
 The individual has only a right, exclusive of any other 
 person, to bury upon the subdivided plat assigned to him. 
 He holds a position analagous to that of a pew-holder in a 
 house of public worship.'^ 
 
 The right of burial is in the nature of an easement in the 
 land, and every purchaser of a burial lot does so with the full 
 knowledge and implied understanding, that change of cir- 
 cumstances may, in time, require a change of location, and 
 that the law looking to such exigency authorizes the Ceme- 
 tery Corporation to sell the soil in absolute fee, discharged of 
 all easements." 
 
 '" See Strong, Relations of Civil " How v. Stevens, 47 Vt. 262. 
 
 Law to Church Polity, &c., 126-32 " Schier v. Trinity Church, 109 
 
 (1875); Washb. Easem. 515 ; Craig Mass. i ; 2 Wait's Ac. & Def. 261. 
 
 v. First Presby. Church, 88 Pa. 51 '"'Pitkin v. L. I. R. R., 2 Barb. 
 
 (1878); Jones V. Towne, 58 N. H. Ch. 230; Mumford v. Whitney, 15 
 
 464 (1878), cases; Livingston v. Wend. 380 ; Wolf v. Frost, 2 Sandf. 
 
 Rector of Trinity Church, 45 N. J. Ch. 72. 
 
 L. 232-37 (1883), cases; Anderson's ■" BufTalo City Cemetery v. City 
 
 Law Diet. of Buffalo, 46 N. Y. 505. 
 
 " O'Hear v. DeGoesbriand, 33 " Richards v. Northwest Church, 
 
 Vt. 593. 32 Barb. 42. 
 
NATURE OF REAL PROPERTY. 29 
 
 It is an easement even where the deed purports to convey 
 a fee, but equity will protect all rights that are not inconsist- 
 ent with those of the society or with public health and safety. 
 
 § 12. Manure, etc., as realty. In this country, in some of 
 the States, it has been held that the manure made on the 
 leasehold premises during the tenant's term, is his property, 
 which he has the right to remove or sell, and which may be 
 attached and holden as his property for the payment of his 
 debts." 
 
 In others, it is held that in the absence of special agree- 
 ment, or a special custom, the rules of good husbandry 
 require that the manure made upon a farm, in the ordinary 
 course, should be expended upon it ; that such manure is an 
 incident of the freehold, and belongs to the landlord, subject 
 to the right of the tenant to use it in the cultivation of the 
 land ; and that the tenant has no right to remove or dispose 
 of it, or to apply it to any other use, either during or after 
 the expiration of his tenancy." 
 
 Chief Justice Shaw in Daniels v. Pond, 21 Pick. 371, said: 
 ' ' Manure made on a farm occupied by a tenant at will or for 
 years, in the ordinary course of husbandry, consisting of the 
 collections from the stable and barnyard, or of composts 
 formed by an admixture of these with soil or other sub- 
 stances, is, by usage, practice, and the general understand- 
 ing, so attached to and connected with the realty, that, in the 
 absence of any express stipulation on the subject, an out- 
 going tenant has no right to remove the manure thus col- 
 lected, or sell it to be removed, and that such removal is a 
 tort, from which the landlord may have redress ; and such 
 sale will vest no property in the vendee. ' ' 
 
 The tenant, of course, has a qualified possession of the man- 
 ure, for the purpose of using it on the farm ; but a sale by 
 him vests the right of possession in the landlord." 
 
 " Staples V. Emery, 7 Greenl. 201 ; 6 Greenl. 222; Daniel v. Pond, 21 
 
 Southwick V. Ellison, 2 Iredell, 326. Pick. 371, to which add Kent's 
 
 " Wetherbee v. Ellison, 19 Vt. opinion, 2 Com. 347, n. a. 
 
 {4 Wash.), 379; Middlebrook v. " Middlebrook v. Corwin, 15 
 
 Corwin, 15 Wend, 169; Goodrich v. Wend. 169; Lassell v. Reed, 6 
 
 Jones, 2 Hill, 142 ; Lassell v. Reed, Greenl. 223. 
 
30 REAL PROPERTY. 
 
 ' ' Where manure is made in a livery stable, ' ' says Judge Sar- 
 gent {Corey v. Bishop, 48 N. H. 146), " or in any manner not con- 
 nected with agriculture, the tenant of the livery stable, or the 
 person thus making manure upon land of another, owns 
 the manure entirely distinct from the real estate, and has 
 the right to remove it or dispose of it as he pleases, by 
 parol or bill of sale, as of any other chattel or personal 
 property. ' ' 
 
 A learned judge, Eastman J. in Plumer v. Plumer, 30 N. H. 
 558, in New Hampshire, states the law as follows: "It must 
 be regarded as settled in this State that, as between grantor 
 and grantee, all manure made in the ordinary course of carry- 
 ing on the farm, and which is upon the premises at the time 
 of the sale and conveyance, will pass to the grantee as an 
 incident to the land conveyed, unless there be a reservation 
 in the deed ; and that it makes no difference whether it be in 
 the field, or in the yard, or in heaps at the windows, or under 
 cover. It is an incident and appurtenance to the land, and 
 passes with it, like the fallen timber and trees, the loose 
 stones lying upon the surface of the earth, and like the wood 
 and stone fences erected upon the land, and the materials of 
 such fences when placed upon the ground for use or accident- 
 ally fallen down. ' ' 
 
 But in New Jersey {Ruckman v. Outwater, 4 Dutch. 581), it 
 is held to be personal property and not to pass with the real 
 estate as an incident, or part of it. 
 
 Manure made upon a farm is personal property, and may 
 be seized and sold upon execution. °° So wheat or corn grow- 
 ing is a chattel, and may be sold on execution." Yet it is 
 held that growing crops and manure, lying upon the land, 
 pass to the vendee of the land, if not excepted in the deed 
 (2 Kent. 346), or by statute. Fencing materials on a farm, 
 which have been used as a part of the fences, but are tempo- 
 rarily detached, without any intent of diverting them from 
 their use as such, are a part of the freehold, and pass by a 
 conveyance of the farm to a purchaser. {Goodrich v. Jones, 2 
 Hill, 142.) Hop-poles, used necessarily in cultivating hops, 
 which were taken down for the purpose of gathering the crop 
 
 '" Staples V. Emery, 7 Greenl. 201. " Whipple v. Tool, 2 Johns. 419. 
 
NATURE OF REAL PROPERTY. 3^ 
 
 and piled in the yard, with the intention of being replaced in. 
 the season of hop raising, are part of the real etate." 
 
 Timber trees, if blown down, or severed by a stranger, 
 pass by a deed of the land. "We think that it cannot admit 
 of a doubt," remarks Richardson, C. J., in Kittredge v. Wood, 
 3 N. H. 503, "that trees felled and left upon the land, fruit 
 upon trees, or fallen and left under the trees where it grew, 
 and stones lying upon the earth, go with the land, if there be 
 no reservation." 
 
 With regard to the manure, as between landlord and ten- 
 ant, it belongs to the former ; in other words, it belongs to 
 the farm whereon it is made. This is in respect to the 
 benefit of the farm, and the common course of husbandry. 
 The manure makes a part of the freehold. °' Nay, though it 
 be laid up in heaps in the farm yard." The rule has always 
 been still stronger in favor of the vendee as against the 
 vendor, and heir as against the executor. In Kittredge v. 
 Woods, 3 N. H. Rep. 503, it was accordingly decided, that 
 manure lying in a barnyard passes to the vendee. Vide, also, 
 Datiiels v. Pond, before cited. 
 
 The case of Kittredge v. Woods, was very well considered ; 
 and the right of the vendee to the manure, whether in heaps 
 or scattered in the barnyard, vindicated on principle and 
 authority I think quite satisfactorily. 
 
 There are several English dicta which conflict with our 
 views of the right to manure, as between landlord and ten- 
 ant, and that of the court in New Hampshire, as between 
 vendor and vendee." 
 
 Manure which had accumulated in a public street, the fee 
 of which belonged to the borough, was raked into heaps by 
 the plaintiff during the evening of one day, to be removed 
 the next evening. In this he was prevented by the defend- 
 ant, who carted the manure away to his own land. In an 
 
 '* Bishop V. Bishop, i Kenan, *"And vide 2 Kent's Com. 346, note 
 
 123. c, 4th ed., and Carver v. Pierce, 
 
 *^ Middlebrook v. Corwin, 15 Sty. 66. But they may all be con- 
 Wend. 169. sidered as repudiated by Middle- 
 
 ** Lassell v. Reed, 6 Greenl. 222; brook v. Corwin. Vide the intro- 
 
 Daniels V. Pond, 21 Pick. 367 ; see ductory remarks of Mr. Justice Nel- 
 
 Staples V. Emery, 7 Greenl. 203. son, 15 Wend. 170. 
 
32 REAL PROPERTY. 
 
 action of trover by the plaintiff for the value of the manure, 
 it was held that the manure was personalty ; that it belonged 
 originally to the owners of the animals that dropped it, but 
 was to be regarded as abandoned by such owners ; that the 
 first occupant had a right to appropriate it ; that after the 
 plaintiff had added to its value by the labor of raking it into 
 heaps he was entitled to it ; and that he had a reasonable time 
 in which to remove it." 
 
 § 13. Doctrine of equitable conversion examined. It is an 
 
 established principle in equity that when money is directed 
 or agreed to be turned into land, or land agreed or directed 
 to be turned into money, equity will treat that which is 
 agreed to be, or which ought to be done, as done already, and 
 impresses upon the property that species of character for 
 the purpose of devolution and title into which it is bound 
 ultimately to be converted." 
 
 Courts of equity frequently regard that as done which 
 ought to be done, and say where land is directed to be sold 
 and converted into money, or money is directed to be in- 
 vested in land, that for certain purposes the property will be 
 considered of that character or species into which it is directed 
 to be converted. But it would be a fundamental error to 
 assume that this court held that the real estate actually be- 
 came personal property, and might be treated as such for all 
 purposes. The land is still real estate. Its physical charac- 
 ter has not been changed, and it is subject to the rules and 
 principles governing the disposition of real estate, and must 
 be sold and conveyed as such. 
 
 *' Haslem v. Lockwood, 37 Conn. Williams, 46 Wis. 97 ; Carr v. 
 
 500, 505 (1871), cases; Anderson's Branch, 85 Va. 597; Effinger v. 
 
 Law Diet. Hall, 81 Va. 91, 107; Phillips v. 
 
 *' Attorney-General v. Hubboclc, Ferguson, 85 Va. 509, 511; De 
 
 L. R. 13 Q. B. Div. 275, 289. See, Vaughan v. McLero)-, 82 Ga. 687; 
 
 also, Ford v. Ford, 70 Wis. 19,46; Forsyth v. Forsyth, 46 N. J. Eq. 
 
 5 Am. St. Rep. 534; Haward v. 400; Craig v. Leslie, 3 Wheat. 577; 
 
 Peavey, 128 111. 430; 15 Am. St. Peter v. Beverl)-, 10 Pet. 532; Tay- 
 
 Rep. 120; Ford v. Ford, 80 Mich. lor v. Benham, 5 How. 233; Notes 
 
 42; Keller v. Harper, 64 Md. 74: to Fletcher v. Ashburner, i Lead. 
 
 Greenland v. Waddell, 116 N. Y. Cas. Eq. 968; Phillips v. Ferguson, 
 
 234; 15 Am. St. Rep. 400; Hobson 85 Va. 507; 17 Am. St. Rep. 78. 
 V. Hale, 95 N. Y. 588 ; Dodge v. 
 
NATURE OF REAL PROPERTY. 33 
 
 The rule has been thus stated by the Supreme Court of the 
 United States : "It is undoubtedly the established doctrine 
 that when a will directs conversion of the realty only for 
 certain purposes, which are limited — for example, for the 
 payment for particular legacies — and follows the direction 
 of a bequest of the residue of personal estate, the conversion 
 takes place only so far as the proceeds of the sale are needed 
 to pay the legacies prior to the residuary one, and the gift of 
 the personalty will not carry the produce of the sale of the 
 lands in the absence of a contrary intent plainly manifested. 
 The surplus or excess retains the quality of realty, and is 
 transmitted by a devise of the realty, if there be one, or 
 descends under the intestate laws. Hence it is often a ques- 
 tion, and frequently a difHcult one, whether the direction to 
 sell was for a limited purpose or for all purposes, and conse- 
 quently whether the testator's intent was to impress upon all 
 the proceeds the quality of personalty."" 
 
 It is incumbent upon the court to consider the real prop- 
 erty of the testator as converted into money under a full 
 power of sale entrusted to the executor, if by so doing it can 
 best effectuate the testamentary intent. "' 
 
 This doctrine of conversion necessarily affects partner- 
 ships ; partnership property is that which is held by the part- 
 ners as such for the purposes of the partnership ; it is held 
 for the purpose of carrying on the adventure of the part- 
 nership, and may be wanted for that purpose ; and, moreover, 
 at the time of the winding up of the partnership the debts of 
 the partnership will have to be paid, the question of their 
 amount settled between the partners, and the unexhausted 
 assets divided between them. The partnership property 
 must thus be treated in the end as subject to a trust for sale, 
 and therefore it is personal property.'" 
 
 In this case in the court below (L. R. lo, Q. B. Div. i88), 
 the court cited with approval the following from Darby v. 
 Darby, 3 Drew. 495, as a correct statement of the rule of the 
 ■court with regard to the conversion of partnership property, 
 
 '« Given v. Hilton, 95 U. S. 591, 8 Paige, 104; Lent v. Howard, 8 N. 
 596. Y. 169. 
 
 '"Attorney-General v. Hubbuck, 
 *» Van Vechten v. Van Vechten, l. R. 13 Q. B. Div. 275, 289. 
 
 3 
 
34 REAL PROPERTY 
 
 in the absence of any binding agreement between the parties 
 to the contrary: "Irrespective of authority and looking at 
 the matter with reference to principles well established in 
 this court, if partners purchase land merely for the purpose 
 of their partnership, and pay for it out of the partnership 
 property, that transaction makes the property personalty and 
 effects a conversion out and out. What is the clear principle 
 of this court as to the law of partnership? It is that, on the 
 dissolution of the partnership, all the property belonging to 
 the partnership shall be sold, and the proceeds of the sale, 
 after discharging all the partnership debts and liabilities, 
 shall be divided among the partners according to their 
 respective shares in the capital. That is the general rule, 
 and it requires no special stipulation ; it is inherent in the 
 very contract of partnership." 
 
 Upon the question whether the character of property can 
 be changed by agreement from realty to personalty as 
 against a bona fide purchaser without notice, there is not 
 entire harmony of the authorities ; but we regard the better 
 opinion as being that such a purchaser must have notice of 
 the agreement before he acquires title, or he will be entitled 
 to claim and hold everything which appears to be, and by its 
 ordinary nature is, a part of the realty. To hold otherwise 
 would contravene the policy of the laws requiring convey- 
 ances of interests in real estate to be recorded, seriously 
 endanger the rights of purchasers, afford opportunities for 
 frauds, and introduce uncertainty and confusion into land 
 titles.'- 
 
 In Haven v. Emery, 33 N. H. 66, 68, 69, the plaintiffs 
 delivered iron rails to a railway company under an agree- 
 ment written that the title should remain in the plaintiffs 
 until they were paid. The defendants were mortgagees of 
 the road. In the opinion the court says : ' ' As between the 
 parties to the contract, the intention is plain that the prop- 
 erty should not vest in the road until the iron was paid for, 
 and that intention will prevail between the parties, unless 
 the laying of the rails in the track necessarily made them an 
 intrinsic and insteparable part of the road in spite of the 
 
 ^r— ■ • ' ■ ■- 
 
 " Hunt V. Bay State Iron Co., 97 Mass. 279, 283. 
 
NATURE OF REAL PROPERTY. 35 
 
 agreement whicli reserved the property in them to the plain- 
 tiffs. * * * The rails were laid, according to the provi- 
 sions of the agreement, in a particular part of the track, and 
 that part designated by a written certificate. There is, there- 
 fore, no difficulty in tracing and identifying the iron 
 which the plaintiffs claim. It is not like a case where 
 bricks or nails or other materials are used in the construction 
 of a house, and so incorporated with the building that they 
 cannot be separated and traced." We see nothing in the way 
 in which the rails are annexed to the road, or in the manner 
 in which they are used upon it, that incorporates them more 
 essentially with the road than in the case of a house or fence 
 set on land of another, with his assent, and under an agree- 
 ment that the house or fence shall remain the personal prop- 
 erty of the original owner. And a house built on land of 
 another, or a fence set on his land, with his assent, and under 
 an agreement that the house or fence shall remain the per- 
 sonal property of the party who places it on the land, does 
 not become annexed in law to the land. The agreement of 
 the parties in such case supersedes the general rule of the 
 law. * * * As between the parties then, to this contract, 
 we are of opinion that the rails remain the property of the 
 complainants. Has the right of the complainants been di- 
 vested or affected by the mortgage to the trustees for the 
 bondholders? * * * There are some cases which might 
 seem to carry the idea that a purchaser of land would be 
 bound by an agreement of the seller, which gives to what 
 would otherwise be part of the land, the character of per- 
 sonal property, and vested the title to it in another, though 
 the purchaser had no notice of the agreement." We are not 
 yet prepared to acquiesce in such a doctrine. Primarily, and 
 in the absence of notice to the contrary, the purchaser would 
 seem to have a right to suppose that he was buying with all 
 the incidents and appurtenances which the law, as a general 
 rule, annexed to his purchase ; and we should hesitate before 
 we held that he could be affected by a private agreement not 
 brought to his knowledge, which changed the natural and 
 legal character of the property. ' ' 
 
 »^ Cross V. Marston, 17 Vt. 540; ''Mott v. Palmer, i N. Y. 564. 
 
 44 Am. Dec. 353. 
 
36 REAL PROPERTY. 
 
 In Cochran v. Flint, 57 N. H. 514, 545, it was said that the 
 consent of a conditional vendor of a saw-mill machinery that 
 it should be affixed to real estate in such way that it would 
 pass by a deed of the land if it belonged to the land-owner 
 ought to be inferred from the nature of the thing and the 
 ordinary mode of its use ; but the inferred consent was held 
 to be that it should be affixed to the mill of the conditional 
 vendee, and not to a mill of a third person or a mill pre- 
 viously mortgaged to a third person. The view that a pur- 
 chaser of land has a right to suppose he is buying with all 
 the incidents and appurtenances which the law, as a general 
 rule, annexes to his purchase, was apparently accepted in 
 Corey v. Bishop, 48 N. H. 146, 150, was expressly approved in 
 Carroll v. McCullough, 63 N. H. 95, 96; and was the basis of 
 the decision in Mott v. Palmer, i N. Y. 564. But the question 
 against whom this right operates is one on which the autho- 
 rities are not agreed. 
 
 In the case of Fletcher v. Ashburner, i Bro. Ch. Cas. 497, the 
 master of the rolls says that ' ' nothing is better established 
 than this principle, that money directed to be employed in 
 the purchase of land, and land directed to be sold and turned 
 into money, are to be considered as that species of property 
 into which they are directed to be converted, and this, in 
 whatever manner the direction is given." He adds: "the 
 owner of the fund, or the contracting parties, may make land 
 money, or money land. The cases establish this rule uni- 
 versally." This declaration is well warranted by the cases 
 to which the master of the rolls refers, as well as by many 
 others." 
 
 The principle upon which the whole of this doctrine is 
 founded, is that a court of equity, regarding the substance, 
 and not the mere forms and circumstances of agreements and 
 other instruments, considers things directed or agreed to be 
 done, as having been actually performed, where nothing has 
 intervened which ought to prevent a performance. This 
 qualification of the more concise and general rule, that equity 
 considers that to be done which is agreed to be done, will 
 
 " See Dougherty v. Bull, 2 P. 358 ; Trelawney v. Booth, 2 Atk. 
 Wms. 320; Yeates v. Compton, Id. 307. 
 
NATURE OF REAL PROPERTY. 37 
 
 comprehend the cases which come under this head of 
 equity. 
 
 Thus, where the whole beneficial interest in the money in 
 the one case, or in the land in the other, belongs to the per- 
 son for whose use it is given, a court of equity will not com- 
 pel the trustee to execute the trust against the wishes of the 
 cestui que trust, but will permit him to take the money or 
 the land, if he elects to do so before the conversion has actu- 
 ally been made ; and this election he may make, as well by 
 acts or declarations, clearly indicating a determination to 
 that effect, as by application to a court of equity. It is this 
 election, and not the mere right to make it, which changes 
 the character of the estate so as to make it real or personal, 
 at the will of the party entitled to the beneficial interest. 
 
 If this election be not made in time to stamp the property 
 with a character different from that which the will or other 
 instrument gives it, the latter accompanies it, with all its 
 legal consequences, into the hands of those entitled to it in 
 that character. So that in the case of the death of the cestui 
 que trust, without having determined his election, the prop- 
 erty will pass to his heirs or personal representatives, in the 
 same manner as it would have done had the trust been exe- 
 cuted, and the conversion actually made in his lifetime. 
 
 In the case of Kirkham v. Mills, 1 3 Ves. , which was a devise 
 of real estate to trustees upon trust to sell, and the moneys 
 arising, as well as the rents and profits till the sale, to be 
 equally divided between the testator's three daughters, 
 A, B and C, the estate was, upon the death of A, B and C, 
 considered and treated as personal property, notwithstanding 
 the cestui que trust, after the death of the testator, had 
 entered upon, and occupied the land for about two years 
 prior to their deaths ; but no steps had been taken by them, 
 or by the trustees, to sell, nor had any requisition to that 
 effect been made by the former to the latter. The master of 
 the rolls was of opinion that the occupation of the land for 
 two years was too short to presume an election. He adds : 
 " The opinion of Lord Rosslyn, that property was to be 
 taken as it happened to be at the death of the party from 
 whom the representative claims had been much doubted by 
 Lord Eldon, who held, that without some act, it must be 
 
38 REAL PROPERTY. 
 
 considered as being in the state in which it ought to be ; and 
 that Lord Rosslyn's rule was new, and not according to the 
 prior cases. ' ' 
 
 The same doctrine is laid down and maintained in the case 
 of Edwards v. The Countess of Warwick, 2 P. Wms. 171, which 
 was a covenant on marriage to invest £\o,(X)0, part of the 
 lady's fortune, in the purchase of land in fee, to be settled 
 on the husband for life, remaining to his first and every 
 other son in tail male, remainder to the husband in fee. 
 The only son of this marriage having died without issue, and 
 intestate, and the investment of the money not having been 
 made during his life, the chancellor decided that the money 
 passed to the heir-at-law ; that it was in the election of the 
 son to have made this money, or to have disposed of it as 
 such, and that, therefore, even his parol disposition of it 
 would have been regarded ; but that something to determine 
 the election must be done. 
 
 The doctrine is well established by the cases which have 
 been referred to, and by many others which it is unnecessary 
 to mention. 
 
 a. What must appear before doctrine is applied. In Hunt's 
 and Lehrman's Appeals, 105 Pa. St. 128, 141, it was said that 
 the rule is well settled that in order to work a conversion 
 there must be either (i) a positive direction to sell in order 
 to execute the will ; or (2) an absolute necessity to sell in 
 order to execute the will ; or (3) such a blending of real and 
 personal estate by the testator in his will as to clearly show 
 that he intended to create a fund out of both real and per- 
 sonal estate, and to bequeath the said fund as money. In each 
 of the two latter cases an intent to convert will be implied. 
 
 "The question of conversion is one of intention, and the 
 question is, did the testator intend to have his real estate 
 converted into personalty immediately upon his death? If 
 he did, a court of equity must give such intent effect, and 
 treat the realty as personal property from that time. If, 
 however, he intended to give the executor or trustee under 
 his will a power to convert, leaving it discretionary with 
 them to convert or not, the conversion will depend on the 
 will or discretion of the executor or trustee, and will not be 
 regarded as consummated in fact." 
 
NATURE OF REAL PROPERTY. 39 
 
 § 14. Definition and nature of fixtures. Any text- writer 
 -who is covetous of distinction may employ his faculties 
 upon the definition of a fixture and if he should, through rare 
 dexterity and exceptional aptitude in expression, find himself 
 in possession of a formula that will meet all the varient 
 phases of our complex business and social relations the pres- 
 ent writer will be the first to congratulate him upon his dis- 
 covery. Heretofore our lexicographers have been singularly 
 unfortunate in their attempts to please the judiciary in this 
 respect, and it is extremely doubtful if a definition can be 
 framed that will be regarded as satisfactory. 
 
 The term fixture as employed in real estate denotes a thing 
 fixed in a greater or less degree to realty. (2 Kent, 343). 
 As a rule, articles to become fixtures must either be fastened 
 to the realty or to what is clearly a part of it, or they must 
 be placed upon the land with a manifest intent that they 
 shall permanently remain there, and should be peculiarly 
 fitted to something that is actually fastened upon it and 
 essential to its profitable enjoyment." 
 
 There is, however, no universal test for determining 
 whether an article, personal in its nature, has acquired the 
 character of realty. In each case regard is to be had to the 
 nature of the chattel itself, the injury that would result from 
 its removal and the intention in placing it upon the premises 
 with reference to trade agriculture and ornament." 
 
 The cases, both English and American, present an endless 
 diversity and positive contradiction on this subject of fix- 
 tures. It is utterly impossible to reconcile them. The 
 deepest and the most evanescent ideas have found expression 
 in the various reports and both natural genius and acquired 
 expertness are baffled in the attempt to formulate some 
 decisive and positive rule that will suffice for all emergen- 
 cies. An inward persuasion has long been diffusing itself 
 and now comes to utterance that the views expressed in the 
 preceding paragraph embody the sentiments of the judicial 
 mind regarding this vexed and incongruous topic. 
 
 '^ Farmers' Loan & Co. v. Hend- Coburn v. Litchfield, 132 Mass. 
 rickson, 25 Barb. 489. 448; Anderson Law Diet., Tit. Fix- 
 
 •• Thomas v. Davis, 76 Mo. 76 ; ture. 
 
40 REAL PROPERTY. 
 
 While some rules of general application have been formu- 
 lated, the very nature of the subject must in some degree 
 be controlled by the varient circumstances peculiar to it. 
 The united application of three requisites is regarded as the 
 true criterion of an immovable fixture, (i) Real or construc- 
 tive annexation to the realty ; (2) adaptation to the use or 
 purpose of that part of the realty with which it is connected ; 
 (3) the manifest intent of the parties in making the an- 
 nexation." 
 
 The diversities of trade and the development of manufac- 
 tures have imperatively called for relaxation of the old com- 
 mon law rule relating to fixtures and other factors are 
 controlling in determining this question, than those formerly 
 employed. Where chattels are of such a character as to 
 retain their identity and distinctive characteristics after the 
 annexation, and do not become an essential part of the build- 
 ing so that their removal materially injures either the build- 
 ing or the chattels themselves, a mutual agreement as to how 
 the chattels shall be regarded will have the effect to pre- 
 serve the personal character of the chattels if the agreement 
 mentioned is to that effect. As between the parties this view 
 will prevail. " The execution of a chattel mortgage on machin- 
 ery evidences an intention that the property shall retain its 
 original character of a chattel." Except where the rights of 
 innocent purchasers are involved it is the policy of the law 
 to uphold this view of the question in the interests of trade 
 and manufacturing industry. 
 
 What constitutes a fixture, in a given case, is a question 
 upon which the authorities are not agreed, and we shall not 
 undertake the unprofitable task of attempting to reconcile or 
 classify them. The trend of modern decisions is that, sub- 
 ject to the manner of annexation to the realty, and to the 
 use and purposes of the realty, with which a thing in contro- 
 versy is connected, its character as a fixture or not, is to be 
 
 »' Teafif V. Hewitt, i Ohio St. 530; Hendey v. Dinkerhoff, 57 Cal. 3; 
 
 McRea v. Central Natl.^ Bank, 66 Haeven v. Emery, 33 N. H. 66. 
 
 N. Y. 489; Ewell on Fix.'2i; Tyler »» Sisson v. Hibbard, 75 N. Y- 
 
 on Fix. 114. 542; Eaves v. Estes, 10 Kan. 314; 
 
 '* Malett V. Price, 109 Ind. 22; Jones, Chat. Mort. sec. 125. 
 
NATURE OF REAL PROPERTY. 4I 
 
 determined by the intention of the party making the annex- 
 ation."" 
 
 It is said in the case last cited that the intention is the 
 controlling consideration in determining the whole question. 
 The Iowa court has held that ' ' fixtures are personal chattels 
 annexed to the freehold, and which may be severed and 
 removed by the party who has annexed them, against the 
 will of the owner of the freehold.'"' 
 
 The subject of the rolling stock being a fixture to a rail- 
 road was discussed by the court of the United States, and 
 held to be such, in technical language, "so far as in its 
 nature and use it can be called a fixture. " It is such, not 
 upon any particular part of the road, but attaches to every 
 part and portion. And the reporter has an extended note to 
 the same case in which he learnedly discusses the question, 
 "Is rolling stock a fixture?" He examines the general sub- 
 ject of the law of fixtures and ' ' the conclusion is, that rolling 
 stock put and used upon a railroad passes with a conveyance 
 of the road, even without mention or specific description.'"" 
 
 Gas fixtures whether in the form of chandeliers suspended 
 from the ceiling or projected as brackets from a perpendicu- 
 lar wall, attached by screws or cemented to the gas pipe 
 assume the nature of furniture and do not lose that character 
 by reason of this method of fastening.'" So a portable fur- 
 nace is regarded as a stove and falls within the classification 
 of a chattel.""' 
 
 A portable furnace may or may not be a part of the realty. 
 Whether it is or not may be a question of law, or of fact, or 
 a mixed question of law and fact. The test is usually one of 
 intention as between landlord and tenant, grantor and gran- 
 tee or mortgagor and mortgagee. But whatever it is this 
 
 """ Ewell, Fixtures, 21 ; Tyler, Fix- Hawley, 44 Iowa, 57, 24 Am. Rep. 
 
 tures, 114; I Jones, Mort. sec. 429; 719. 
 
 Cobbey, Chat. Mort. sec. 204,205; "" Pickerell v. Carson, 8 Iowa, 551. 
 
 Teaff V. Hewitt, i Ohio St. 530, 59 "" Minnesota Co. v. St. Paul Co., 
 
 Ain. Dec. 634 ; Potter v. Cromwell, 2 Wallace, 644, 645-649. 
 
 40 N. Y. 296, 100 Am. Dec. 485 ; Mc- "" Gutherie v. Jones, 108 Mass. 
 
 Rea V. Central Nat. Bank, 66 N. Y. 191. 
 
 489; Binkley v. Forkner, 117 Ind. '»^ McConnell v. Blood, 123 Mass. 
 
 176; Ottumna Woolen Mill Co. v. 47. 
 
42 REAL PROPERTY. 
 
 test is certainly not whether the part claimed as personalty 
 can be removed without injury to what remains."' 
 
 So it is settled that where one erects a building for a tem- 
 porary purpose on another's land, with the owner's knowledge 
 and consent, an agreement for the separate ownership of the 
 building so erected may be implied from the circumstances 
 and conduct of the parties. It is unnecessary to prove a con- 
 tract in express terms in order to justify the conclusion that 
 the owner of the fee is not the owner of the building."' 
 
 Generally, we may assume that whatever is placed in a 
 building subject to a mortgage, by a mortgagor or those 
 claiming under him, to carry out the purpose for which it 
 was erected and permanently to enhance its value for the 
 purpose of its erection, although its removal may be effected 
 without injury to the main structure, may not be removed, as 
 the law assumes that it has become a part of the realty and 
 cannot be disconnected until after the payment of the mort- 
 gage.'" 
 
 The later Massachusetts decisions establish that ma- 
 chines may remain chattels for all purposes, even though 
 physically attached to the freehold by the owner, if the mode 
 of attachment indicates that it is merely to steady them for 
 their more convenient use, and not to make them an adjunct 
 of the building or soil.'"' 
 
 Whether in any case, buildings that are placed upon land 
 become fixtures is a question of fact to be determined upon 
 the evidence of that particular case. The mere erection of 
 a building upon land does not necessarily make it a fixture 
 {Pennybecker v. McDougal, 48 Cal. 160), and in order to deter- 
 mine whether it be a fixture depends upon various circum- 
 stances and relations connected with its being placed upon 
 the land.'"' 
 
 "' Allen V. Mooney, 130 Mass. 155. "" Smith Paper Co. v. Servin, 130 
 
 '»« Dame V. Dame, 38 N. H. 429; Mass. 511. 
 
 Russell V. Richards, 2 Fair, 271 ; "" McConnell v. Blood, 123 Mass. 
 
 Madigan v. McCarthy, 108 Mass. 47 ; Hubbell v. East Cambridge 
 
 376; Aldrich v. Parsons, 6 N. H. Savings Bank, 132 Mass. 447; Ma- 
 
 555 ; Curtiss v. Hoyt, 19 Conn. 154; guire v. Park, 140 Mass. 21. 
 
 Smith V. Benson, i Hill, 176; Os- '»» Lavenson v. Standard Soap Co., 
 
 good V. Howard, 6 Greenf. 452 ; 80 Cal. 250. 
 Prince v. Case. 10 Conn. 375. 
 
NATURE OF REAL PROPERTY. 43 
 
 The term "fixture" is used in different senses. Some- 
 times it is used in its general sense of a thing which is 
 affixed to land."" Sometimes it is used to designate a thing 
 ■which can be severed from land after having been affixed to 
 it. In this sense it is a term "denoting the very reverse of 
 the name."' Less frequently it is used to designate a thing 
 -which cannot be removed after having been affixed to the 
 land.'" If not affixed to the land in any sense, its owner 
 may remove it about with pleasure. The rule of the com- 
 mon law was that a thing was not to be deemed affixed to 
 land unless fastened to it in some manner. And in Penny- 
 becker v. McDougal, 48 Cal. 160, it was held that a cabin set 
 on wooden blocks not attached to the soil was personal prop- 
 erty. But the value of the cabin was only $25.00, and it must 
 have the characteristics, more or less, of a temporary struc- 
 ture. ' ' 
 
 In New York and other States the common rule was relaxed 
 so as to include things permanently resting upon the soil, 
 though not fastened thereto. Thus, in Sn&decker v. Warring, 
 12 N. Y. 175, it was held that a statue resting upon a pedes- 
 tal in front of a building was a part of the realty, the court 
 saying : " A thing may be as firmly affixed to the land by 
 gravitation as by clamps or cement.'"" 
 
 The cases, both English and American, upon the subject 
 of fixtures, are so thoroughly in conflict that any attempt to 
 reconcile them or to draw from them any rules of general 
 application as to what articles are or are not fixtures, as 
 between heir and executor, landlord or tenant, or mort- 
 gagor and mortgagee, would be of more than doubtful suc- 
 cess."* 
 
 There are many cases which hold that the true test of a 
 fixture (or immovable article) is the adaptation of the article 
 to the use or purpose to which the realty is appropriated, 
 however slight its physical connection with it may be."' 
 
 "" Merritt v. Judd, 14 Cal 63, 64. '" Rapalje & Lawrence Law Diet., 
 
 '" I Chitty Gen. Pr. 161. title Fixtures, p. 524. 
 
 '"Ewell, Fixtures, p. and note. "= Farrar v. Stackpole, 6 Me. 157, 
 
 '" And see Striclcland v. Parker, 19 Am. Dec. 201 ; Gray v. Holdship, 
 
 54 Me. 266; Cavis v. Beckford. 62 17 Serg. & R. 413, 17 Am. Dec. 
 
 N. H. 229. 680. 
 
44 REAL PROPERTY. 
 
 Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, 
 rules that actual annexation and adaptation to the purpose 
 to which the realty is appropriated must both unite. These 
 tests are so manifestly appropriate that they need no argu- 
 ment to commend them. 
 
 Other authorities add a third test to the two above men- 
 tioned, viz., the intention of the tenant in making the 
 annexation."' 
 
 As to the first two tests — annexation and adaptation both 
 confessedly exist in most cases. It is clear that the third test 
 may exist also. A tenant who has rented a farm is under an 
 implied obligation, even if the contract is silent on the subject, 
 to conduct his farm operations according to the requirements 
 of good husbandry, preserving the fixtures that he finds.'" 
 
 Questions regarding fixtures ordinarily arise in controver- 
 sies between landlord and tenant, mortgagor and mortgagee 
 and heir and executors. 
 
 § 15. Fixtures as between mortgagor and mortgagee, land- 
 lord and tenant. As between mortgagor and mortgagee, the 
 former may remove that which is not a fixture, and was 
 placed upon the ground after the mortgage was executed. '" 
 And it is also settled that the landlord is under no obligation to 
 pay the tenant for buildings erected on the demised premises. 
 The common law rule is that all buildings become part of the 
 freehold and the innovations upon this rule have extended 
 no further than the right of removal while the tenant is in 
 possession."" If the rule that fixtures form part of the free- 
 hold were invariable it would have the effect of entitling 
 every heir, devisee and reversioner of land to the fixtures 
 left on the land by the ancestor, testator, or tenant for life, 
 instead of passing to his personal representatives with his 
 other chattels ; it would also entitle every freeholder to all 
 the fixtures set up by his tenants ; but the rules are greatly 
 relaxed as between landlord and tenant. Washburn very 
 
 "* 3 Dane Abr. 156; TeafF v. Am. Dec. 550; Brown v. Crump, i 
 
 Hewitt, I Ohio St. 527, 59 Am. Dec. Marsh. 567. 
 
 648 ; Hutchins v. Masterson, 46 "* Cope v. Romeyne, 4 McLean, 
 
 Tex. 551, 26 Am. Rep. 286. 484. 
 
 '" Lewis V. Jones, 17 Pa. 262, 55 '" Kutter v. Smith, 2 Wall. 497. 
 
NATURE OF REAL PROPERTY. 45 
 
 pertinently remarks :" Articles that may assume the charac- 
 ter of realty or personalty according to the circumstances are 
 'fixtures' — things substantially affixed to the soil though in 
 their nature removable. The old notion of physical attach- 
 ment is, by some courts, regarded as exploded. Whether a 
 structure is a fixture depends uponthe nature and character 
 of the act by which the structure is put in its place, the policy 
 of the law connected with its purpose, and the intent of those 
 concerned in the act. Other courts still hold that it is essen- 
 tial that the article should not only be annexed to the free- 
 hold, but that it should clearly appear that a permanent 
 accession was intended." "" 
 
 In determining as between mortgagor and mortgagee 
 whether or not things are fixtures, the same rule applies as 
 between grantor and grantee, and a concise formula may be 
 this, "give him all that was regarded as realty, when he 
 accepted the security.""' 
 
 As between landlord and tenant the court will indulge in 
 great liberality toward the latter. The harshness of the old 
 common law system has been very much relaxed, and modern 
 judges are not only prone but absolutely certain to respect 
 the tenant's claim and allow him to remove chattels which 
 have been actually annexed to the realty, where it appears 
 that such removal can be accomplished without special loss 
 or damage to the freehold, and where the articles sought to 
 be removed were bought by the tenant.'" 
 
 In the case last cited it was held that a house built by a 
 tenant upon land primarily for the purpose of a dairy, and 
 incidentally for a dwelling house for the family, did not pass 
 with the land. The earlier authorities are reviewed in that 
 case by Mr. Justice Story, and the conclusion reached, that 
 whatever is afiixed to the land by the lessee for the purpose. 
 
 ""Wash. R. P. 6-18; Stout v. Or. 519; Wall v. Hinds, 70 Mass. 
 
 Stoppel, 30 Minn. 58, and cases 256 ; Seeger v. Pettit, 77 Pa. St. 
 
 cited ; Capen v. Peckham, 35 Conn. 437 ; Johnson v. Wiseman, 4 Met. 
 
 93; Montague v. Dent, 10 Rich. (S. 360; Gaffield v. Hapgood, 34 Mass. 
 
 C), 135. 192 ; Pennybecker v. McDougal, 48 
 
 >" McFadden v. Allen, 134 N. Y. Cal. 160; Stokoe v. Upton, 40 Mich. 
 
 189. 581 ; Torrey v. Burnett, 38 N. J. 457 ; 
 
 '" Miller v. Plumb, 6 Cow. 665 ; Van Ness v. Packard, 27 U. S. 
 
 Oregon R. & N. Co. v. Mosuer, 14 137. 
 
46 REAL PROPERTY. 
 
 of traae, whether it be made of brick or wood, is removable 
 at the end of the term. Indeed, it is difficult to conceive 
 that any fixture, however solid, permanent and closely 
 attached to the realty, placed there for the raere purposes of 
 trade, may not be removed at the end of the term. In the 
 case of Wagner v. Cleveland and T. R. Co., 22 Ohio St. 563, it 
 was held that stone piers built by a railroad company as part 
 of its road on lands over which it had acquired the right of 
 way, did not, though firmly imbedded in the earth, become 
 the property of the owner of the land, as part of the realty ; 
 and that, upon the abandonment of the road, the company 
 might remove such structures as personal property. 
 
 So in Northern Cent. R. Co. v. Canton Co. , 30 Md. 347, it was 
 held that the rails fastened to the road bed of a railroad, as 
 well as the depots and other buildings, might, under certain 
 circumstances, be treated as trade fixtures, and removable by 
 the company, if the surrounding circumstances showed that 
 at the time the rails were laid upon the land it was not 
 intended that they should be merged in the freehold. 
 
 In Loughran v. Ross, 45 N. Y. 792, it was held that, if a ten- 
 ant, having a right to remove fixtures erected by him on the 
 demised premises, accepts a new lease of such premises, 
 including the buildings, without reservation or mention of 
 any claim to the buildings, and enters upon a new term 
 thereunder, the right to removal is lost, notwithstanding his 
 occupation has been continuous^" 
 
 Many things which as between landlord and tenant are 
 considered as chattels and as such removable, become, as 
 between mortgagor and mortgagee, a part of the realty. 
 Whatever is placed in the building by the mortgagor to carry 
 out the obvious purposes for which it was erected, or to per- 
 -manently increase its value for occupation, becomes a part of 
 the realty, though not so fastened that it cannot be removed 
 without serious injury to the building or to the thing itself.'" 
 
 "' See also Abell v. Williams, 3 ed.), sec. 552 ; 2 Smith's Lead. Cas. 
 
 Daly, 17; Merritt v. Judd, 14 Cal. (7th Am. ed.), 228, 245, 257. 
 
 59; Jungerman v. Bovee, 19 Cal. "* McConnell v. Blood, 124 Mass. 
 
 354 ; Elwes v. Maw, 3 East. 38 ; Tav- 49. 
 lor on Landlord and Tenant (5th 
 
NATURE OF REAL PROPERTY. 47 
 
 § i6. Trade fixtures. The cases as to trade fixtures are in- 
 numerable, and apparently not all reconcilable on principle. 
 Many of them turn on special contracts. The decisions are 
 affected by the relationship of the parties, as between execu- 
 tors and heirs, mortgagor and mortgagee, purchaser and 
 seller, landlord and tenant, etc. Some turn on the mode of 
 annexation while that is ignored by others. 
 
 A review of all the cases pro and con, would be impracti- 
 cable and unprofitable. Many of them concern the relation 
 of the owners of land, onto which tenants brought something 
 not to improve the land but to carry on their business. Such 
 was the leading case of Elwes v. Maw, 3 East. 38. That case 
 was approved by the Supreme Court of the United States in 
 Van Ness v. Packard, 27 U. S. 2 Pet. 137; 7 L. Ed. 374, and in 
 Carr v. Georgia R. Co., 74 Ga. 74, where a brick depot was 
 {obiter) said to be removable under certain circumstances. 
 
 A railroad is real estate, including its roadbed, rails, ties in 
 track, depots, tanks, etc.'" 
 
 The general rule appears well settled that trade fixtures 
 become annexed to the realty but the tenant may remove 
 them during his term, and, if he fails to do so, he cannot 
 afterwards assert a right in the property as against the owner 
 of the land. '" This rule may be regarded as always in the 
 ascendancy where the term is of a certain period and there is 
 no certain stipulation in the lease regarding the ultimate 
 ownership of the fixtures. But if the lease is for an uncer- 
 tain time as where a party is a tenant for life, or at will, 
 fixtures are removable by the tenant within a reasonable 
 period after the termination of the lease. We detect a dis- 
 position on the part of the courts to extend this rule and 
 allow the tenant to remove his fixtures at any time after the 
 expiration of the lease regardless of the character of the ten- 
 ancy provided he is still in possession at the time of the 
 removal.'" 
 
 "» Northern Cent. R. Co. v. Can- "« Bliss v. Whitney, 9 Allen, 
 
 ton Co., 30 Md. 347 ; Hunt v. Bay 114 ; Minshall v. Lloyd, 2 M. & W. 
 
 State Iron Co., 97 Mass. 283 ; Hart 450. 
 
 V. Benton, Bellefontaine R. Co., 7 "'.Penton v. Robert, 2 East. 
 
 Mo. App. 446 ; Union Trust Co. v. 88. 
 Weber, 96 111. 346. 
 
48 REAL PROPERTY. 
 
 An article does not cease to be a trade fixture because, in 
 order to be removed it must be taken to pieces."" Usually 
 in determining whether an addition is removable or not the 
 chief element to be considered is the manner of its annexa- 
 tion and whether it can be removed without substantial 
 injury to the premises. The intent of the parties, while 
 important, is of secondary consideration.*" 
 
 The case of Kutter v. Smith, 2 Wall, 491, appears to recog- 
 nize a restricted rule, though without any extended discus- 
 sion of the rule. Certainly, on principle the court should 
 refrain from extending the right of removal so far as to 
 include a thing which cannot be separated from the realty 
 without the utter destruction of the thing removed, in other 
 words, without being reduced to a mass of raw material in 
 no way recognizable as the thing removed.'" 
 
 As to the distinction between structures, etc. , erected by a 
 tenant for use in his own trade and which may not be useful 
 to a succeeding tenant, whose business may be different, the 
 rule is stated to be that if equally adapted to the use of every 
 succeeding tenant of the property they become part of the 
 freehold and are not removable; they are fixtures.'" 
 
 If the fixtures have been put there in lieu of others already 
 used by former tenants, they are the landlord's property.'" 
 
 § 17. Removal of fixtures by tenant after the expiration of 
 his term. A tenant in possession under a lease which does 
 not provide that he may remove his fixtures and improve- 
 ments, cannot, after he has surrendered possession to his 
 landlord, re-enter and remove his fixtures. (Taylor L. & T. 
 § 551 ; Wood L. & T. § 532: Ericson v. Jones, 37 Minn. 459.) 
 And the modern cases are inclined to restrict the removal of 
 fixtures and improvements erected by him to those — and 
 
 "«Dostal V. McCaddon, 35 la. ""See Ford v. Cobb, 20 N. Y. 
 
 318; Watriss V.Cambridge National 344; Ex parte Bentley, 2 M. D. & 
 
 Bank, 124 Mass. 571 ; Moore v. DeG. 591. 
 
 Wood, 12 Abb. Pr. 393 ; Penton V. '" Hill, Fixtures, sees. 22-24; 
 
 Robert, 2 East. 88; Davis v. Moss, Hoyle v. Plattsburgh & M. R. Co., 
 
 38 Pa. St. 346. 51 Barb. 62; Brown, Fixtures, sec. 
 
 "' Hanrahan V. O'Riley, 102 Mass. 18. 
 
 201 ; Amos & Farrard on Fixtures '*» Whiting v. Brastow, 4 Pick. 
 
 (3d ed.), 7, 65. 310. 
 
NATURE OF REAL PROPERTY. 49 
 
 those only — -wMcli will not materially injure the premises 
 by the process of removal or put them in a worse condition 
 than he found them.'" 
 
 Against this doctrine Judge Cooley enters a vigorous pro- 
 test {Kerr v. Kingsbury, 39 Mich. 150; s. c. 33 Am. Rep. 362, 
 364), saying among other things, " The requirements that the 
 tenant shall remove during his term whatever he proposes to 
 claim a right to remove at all is based upon a corresponding 
 rule of public policy for the protection of the landlord, and 
 which is, that the tenant shall not be suffered, after he has 
 surrendered the premises, to enter upon the possession of the 
 landlord or of a succeeding tenant, to remove fixtures which 
 he might and ought to have taken away before. A regard 
 for the succeeding interests is the only substantial reason for 
 the rule which requires the tenant to remove his fixtures 
 during the term; indeed, the law does not in strictness 
 require of him that he shall remove them during the term, 
 but only before he surrenders possession, and during the 
 time he has a right to regard himself as occupying in the 
 character of a tenant.""* 
 
 The right of a tenant for years and of a life tenant to 
 remove fixtures erected by the tenant within his term has 
 been much discussed, but generally not very satisfactorily. 
 But we are relieved of the necessity of an extended discus- 
 sion of it by the researches and able consideration and dis- 
 cussion of the identical question by Chancellor Cooper in th6 
 case of Cannon v. Hare, i Tenn. Ch. 22, in which he said: 
 "The law of fixtures, particularly in the form of actual 
 buildings, seems to be in a distressing state of uncertainty. ' ' 
 And after a full and satisfactory review of the text-writers, 
 and the leading cases upon this subject, he thus sums up his 
 conclusions: " (i) That the general rule is that everything 
 affixed to the freehold passes with the freehold, and that the 
 rigor of this rule is only relaxed in exceptional cases; (2) 
 that this general rule will prevail, even between landlord and 
 tenant for years, unless the circumstances are such as to 
 
 "^ Lamphere v. Low, 3 Neb. 131 ; s. c, 6 Rev. Rep. 376 ; Weeton v. 
 Whiting V. Brastow, 4 Pick. 311. Woodcock, 7 Mees. & W. 14. 
 
 '" Penton v. Robart, 2 East. 88 ; 
 
50 REAL PROPERTY. 
 
 create an exception ; (3) that an exception does exist in favor 
 of tenant for years in the case of buildings erected princi- 
 pally for the purpose of trade, or in the nature of trade, 
 or out buildings not attached to the soil ; (4) that no excep- 
 tion exists in favor of such tenant, where the buildings are 
 erected for use principally as dwelling houses, or with a 
 view of adding to the yearly income ; (5) that it is doubtful 
 how far a tenant for life is entitled to the exceptions in favor 
 of a tenant for years, but it is certain that the rule of excep- 
 tions as to him is of more limited range ; (6) that the decisions 
 of late years lay little stress upon the mode of attachment to 
 the soil, and more upon the relation of the parties, the inten- 
 tion with which the buildings are erected and the uses to 
 which they are put." '" 
 
 § 18. Tests by which the character is determined. It is ex- 
 tremely difficult to establish any general test by which a 
 fixture may be in all instances determined. The exigencies 
 of modern trade and industry have necessitated a wide 
 departure from the early decisions and mere annexation is 
 no longer regarded as determining the question. The intent 
 is considered. Its peculiar adaptation to the use with which 
 it is connected, and the effect of its removal.'" Machines 
 may remain chattels, and as such may be mortgaged, even 
 though physically attached to the realty, if it sufficiently 
 appears that the method of annexation was designed to steady 
 the mechanism while in operation and thus give effective 
 impulse to its use. In other words, the use, nature and 
 character of the annexation must be considered.'" 
 
 First, last and always the intention of the parties in mak- 
 ing the annexation is of great importance in determining 
 this question of what constitutes a fixture. In all of its 
 aspects it is a matter of great delicacy to reach a satisfactory 
 determination. '" 
 
 "' See McDavid v. Wood, 5 Co. v. Minneapolis Engine and Ma- 
 
 Heisk, 95. chine Works, 35 Minn. 543. 
 
 "° Dudley v. Creighton, 67 Md. "' Penn Mutual Life Ins. Co. v. 
 
 44; Tillman v. DeLacy, 80 Ala. 103. Semple, 38 N. J. Eq. 575; Foote v. 
 
 '" Rogers v. Plattville Mfg, Co. Gooch, 96 N. C. 265. 
 81 Ala. 483; Farmers' Loan & T. 
 
NATURE OF REAL PROPERTY. 51 
 
 The criterion for determining whether property ordinarily 
 regarded as personal becomes annexed to and part of the 
 realty, is the union of three requisites : 
 
 First, Actual annexation to the realty or something appur- 
 tenant thereto. 
 
 Second, Application to the use or purpose to which that 
 part of the realty with which it is connected is appropriated. 
 
 Third, The intention of the party making the annexation 
 to make a permanent accession to the freehold. "° This cri- 
 terion was adopted by the Chancellor in Quintby v. Manhattan 
 Cloth Co., 9 C. E. Gr. 260, and by the Court of Appeals of 
 New York in McRae v. Central Nat. Bank, 66 N. Y. 489. 
 
 Whether a chattel is a fixture or not depends upon the 
 facts. The mere intention of the parties to make it part of 
 the freehold does not make it a fixture. To accomplish that 
 result there must be an actual annexation to the freehold, 
 though the strength of the union is not material, if in fact it 
 be annexed. The intent of the party affixing it is only 
 important on the question whether he intended to make the 
 chattel so annexed a temporary or permanent accession to 
 the freehold. "° Cases of what is called constructive annexa- 
 tion are only apparent exceptions to this rule. The instances 
 of constructive annexation such as the keys, doors and win- 
 dows of a house removed for a temporary purpose, a mill- 
 stone taken out of the mill to be picked, and saws and leather 
 belting taken out to be repaired or laid aside for future use, 
 and the like, are all cases where the chattel, by -actual 
 annexation, was once part of the realty and had been de- 
 tached for temporary purposes without the intent to sever it 
 from the freehold. Having once been part of the realty, 
 removal temporarily without intent to sever permanently 
 does not reconvert the chattel into personalty, and destroy 
 its character as a fixture. (Ewell on Fixtures, 43.) This is 
 all that is meant by constructive annexation. Cases of this 
 description do not militate against the rule that actual 
 annexation is the condition upon which a chattel in the first 
 instance becomes part of the realty ; and while the degree of 
 
 "'Teaffv. Hewitt, i Ohio St. 511. 497; s. c, sub. nom., Blancke v. 
 "" Rogers v. Broltaw, 10 C. E. Gr. Rogers, supra. 
 
52 REAL PROPERTY. 
 
 annexation is unimportant, it will be found that the attach- 
 ment to the realty is invariably such as to give a fixedness in 
 location or localization in use. 
 
 In the States of New York, Ohio, Iowa, and in other juris- 
 dictions, the courts have established the following general 
 rules as a criterion by which to determine whether an im- 
 movable fixture is personal property or real estate : 
 
 1. Real or constructive annexation of the article in ques- 
 tion to the freehold. 
 
 2. Appropriation or adaption to the use or purpose of that 
 part of the realty with which it is connected. 
 
 3. The intention of the party making the annexation to 
 make the article a permanent accession to the freehold. '" 
 
 Another test made by the cases is that where the fixture is 
 not accessory to the land or realty, but accessory to a trade, 
 which is the principal thing, then it is removable. 
 
 That distinction is well stated in Fortman v. G copper, 14 
 Ohio St. 566, by the court as follows: "The principle to be 
 kept in view underlying all questions of this kind is the dis- 
 tinction between the business which is carried on in or upon 
 the premises and the premises or locus quo. The former is 
 personal in its nature, and articles which are merely acces- 
 sory to the business and have been put on the premises for 
 this purpose and not as accessory to the real estate, retain the 
 personal character of the principal to which they appropri- 
 ately belong and are subservient. ' ' 
 
 To the like effect we quote from Brown's Law of Fix- 
 tures, section 18, as follows: 
 
 ' ' Having regard in each case to the nature of the principal 
 subject matter, all such additions to it as partake of its 
 nature, and, in consequence of that similarity of character, 
 readily unite with it, are prima facie to be regarded as becom- 
 ing instantly, upon their union with it, part and parcel with 
 it, subject only to the one qualification that they are not of 
 an extravagent, unnecessary or temporary character. * * * 
 It becomes, in all cases, a preliminary, and indeed an indis- 
 
 >« See Teaff v. Hewitt, i Ohio St. of Troy, 66 N. Y. 489 ; Ottumwa 
 
 530, 59 Am. Dec. 634 ; Potter v. Woolen Mill Co. v. Hawley, 44 
 
 Cromwell, 40 N.Y. 296, 100 Am. Dec. Iowa, 59, 24 Am. Rep. 719. 
 485 ; McRea v. Central Nat. Bank 
 
NATURE OF REAL PROPERTY. 53 
 
 pensable step in determining whetlier and by whom a par- 
 ticular fixture is removable, to first ascertain the proper and 
 distinctive character of the res principalis itself. 
 
 Tyler, on page loi of his Treatise on Fixtures, says: "The 
 simple criterion of physical annexation is so limited in its 
 range, and so productive of contradiction, that it will not 
 apply with much force except in respect to fixtures in dwell- 
 ings," and in Meigs Appeal, 62 Pa. 28, it is said: "In deter- 
 mining what is a fixture the notion of physical attachment is 
 exploded, it is now determined by the character of the act by 
 which the structure is put in its place, the policy of the law 
 connected with its purpose, and the intention of those con- 
 cerned. This Pennsylvania case lays down the law more 
 broadly, than that of some other courts, yet it shows the ten- 
 dency of modern decisions. (See, also, Ewell on Fixtures, 
 20, 293.) The test of whether real estate is benefited by 
 the annexation has been repeatedly applied by the courts to 
 determine whether the chattel annexed became a fixture or 
 not.'" 
 
 § 19. Effect of agreement. The contractual relation be- 
 tween parties may lawfully extend and embrace any conceiv- 
 able subject and it is entirely competent for the parties at 
 any time to enter into an agreement as to whether articles, 
 originally of a chattel nature, shall be deemed fixtures, or 
 vice versa. Such stipulations will be upheld and enforced."" 
 
 '■" Taylor V. Collins, 51 Wis. 123; Voorhees v. McGinnis, 48 N. Y. 
 Ottumwa Woolen Mill Co. v. Haw- 278; Fratt v. Whittier, 58 Cal. 126 ; 
 ley, 44 la. 57 ; Northern Central R. Joslyn v. McCabe, 46 Wis. 591 ; 
 R. Co. V. Canton Co., 30 Md. 347 ; Sampson v. Graham, 96 Pa. St. 405; 
 Wagner v. Cleveland T. R. Co., 2 Tyson v. Post, 108 N. Y. 217; Cur- 
 Ohio St. 563 ; Minneapolis Co. v. tiss v. Riddell, 89 Mass. 185 ; Ma- 
 St. Paul Co., 69 U. S. 645. nagh v. Whitwell, 52 N. Y. 146. 
 
 '«Tifft v. Horton, 53 N. Y. 377; 
 
CHAPTER II. 
 
 TENURE OF RH«L PROPERTY. 
 
 I 
 
 Sec. 20. The term "tenure " defined! 
 
 21. Technical nature of the suh 
 
 22. The feudal system in its relations to tenure. 
 
 a. Note on feoffment. 
 
 b. Note on the statute of quia emptores. 
 
 c. Views of Mr. Hallam and Mr. Pollock. 
 
 23. Effects of the American Revolution on the law of tenure in this 
 country. 
 
 24. Waning influence of feudal tenures. 
 
 25. The common law as affecting tenure. 
 
 a. Views of Judge Bouvier. 
 
 b. Of Professor Walker. 
 
 c. Of Mr. Burrill. 
 
 26. Analysis of the common law system. 
 
 a. How brought to this country. 
 
 b. Extent of its adoption in America. 
 
 c. Not known as a national customary law. 
 
 d. Its repellant features. 
 
 e. Great achievement of Sir William Blackstone. 
 Note on the study of Blackstone. 
 
 f. Disintegration of early common law methods. 
 
 27. All lands are allodial in this country. 
 
 28. Alienations under the mortmain statute. 
 
 29. What law governs alienations. 
 
 30. The term title defined. 
 
 31. Discovery as affecting title. 
 
 Views of Chancellor Kent. 
 
 32. Indian titles abolished. 
 
 33. Classification of American estates. 
 
 §20. The term " tenure " defined. This term " tenure " sig- 
 nifies the mode of holding an estate in realty and may include 
 the naked possession of a squatter or the proprietorship of one 
 holding by fee simple.' In America the title to land is essen- 
 tially allodial and every tenant in fee simple has an absolute 
 
 ' Richman v. Lippencott, 20 N. J. L. 59. 
 [54] 
 
TENURE OF REAL PROPERTY. 55 
 
 and perfect title, yet, in technical language, his estate is 
 called an estate in fee simple, and the tenure free and com- 
 mon socage. This technical language is very generally 
 interwoven into the jurisprudence of the States, though no 
 vesture of feudal tenure may remain." 
 
 Land, then, is the object of tenure, and the law of tenure 
 was applied only to land. ^Jhattels were not treated as fit 
 objects of feudal tenure. ^Rie transient nature of goods, 
 and the uses to which theyHre commonly put, are opposed 
 to any such arrangement They are looked upon as objects 
 of property merely.' 
 
 ' ' Some mode of tenure is incident to every government ; and 
 the highest estate which a man can have in land has direct 
 reference to his duty to the State, being called a tenancy in 
 fee simple ; while the occupant is a tenant in fee, and is said 
 to have and to hold his lands, to him and to his heirs. He 
 holds of the State to which he owes fealty and service ; and, 
 if he fails in his allegiance to her, or dies without heirs upon 
 whom the duty may devolve, the tenure is at an end, his land 
 returns to the common stock from which he had it, and vests 
 again in the State sovereignty as the lord paramount."" 
 
 The doctrines derived from the feudal law, which so closely 
 limited the creation and transfer of future estates, have 
 passed or are fast passing away. Any reasons for their 
 existence are gone, and under the joint actions of the Legis- 
 latures and courts, they have themselves almost disappeared, • 
 Of all that forest of learning there remains here and there 
 only a stump over which an unlucky testator may stumble.' 
 
 Under the word tenure is included every holding of an 
 inheritance, but the signification of this word, which is a 
 very extensive one, is usually restrained by coupling other 
 words with it ; this is sometimes done by words which denote 
 the duration of the tenant's estate; as, if a man holds to 
 himself and his heirs, it is called tenure in fee simple. At 
 other times, the tenure is coupled with the words pointing 
 out the instrument by which an inheritance is held ; thus, if 
 the holding is by copy of court-roll, it is called tenure by copy 
 
 '' 3 Kent, 487. * Taylor's Landlord and Tenant, p. i. 
 
 ' Williams Real Prop. 5. ' Preface Gray on Perpetuities. 
 
56 REAL PROPERTY 
 
 of court-roll. At other times this word is coupled with words 
 that show the principal service by which an inheritance is 
 held ; as, where a man held by knight-service, it was called 
 tenure by knight-service. 5 New Abr." 
 
 The only feudal fictions and services which can be pre- 
 sumed to be retained in any part of the United States, con- 
 sist of the feudal principle, that the lands are held of some 
 superior lord, to whom the obligation of fealty, and to pay a 
 determinate rent, are due.' 
 
 §21. Technical nature of the subject. The law concerning 
 real property forms a technical and very artificial system ; 
 and though it has felt the influence of the free and commer- 
 cial spirit of modern ages, it is still very much under the 
 control of principles derived frora the feudal policy. We 
 have either never introduced into the jurisprudence of this 
 country, or we have, in the course of improvements upon 
 our municipal law, abolished all the essential badges of the 
 law of feuds ; but the deep traces of that policy are visible in 
 every part of the doctrine of real estates, and the technical 
 language, and many of the technical rules and fictions of 
 that system are still retained.' 
 
 We may add that the entire subject has been encumbered 
 by visionary speculations of doubtful value, and has been 
 especially unfortunate in being fettered in technical lan- 
 guage that has long survived the reason of its employment. 
 To the pedants of the dark ages, who were the exclusive cus- 
 todians of the little learning that then flickered in the world, 
 it was a matter of mighty concern that the administration of 
 law should be confined within a narrow circle, and that a 
 monopoly of learning would diffuse itself among a coterie of 
 ecclesiastics whose constant struggle was to make that learn- 
 ing more difficult to obtain. In consequence we have had 
 transmitted to us a vast and intricate system founded upon 
 innumerable precedents and enactments, and interpreted by 
 a horde of acute logicians, who pursued every ramification of 
 the subtlety to its earliest source, and literally thatched 
 every topic in the law with refinements and technique, until 
 
 ' Jacob's Law Diet. ' 3 Kent's Com. p. 501. 
 
 ■■ 3 Kent's Com. p. 676. 
 
TENURE OF REAL PROPERTY. 57 
 
 SO late as the time of Lord Mansfield it had become an im- 
 penetrable jungle to all but the elect. 
 
 y §22. The feudal system in its relations to tenure. The 
 
 ''learning upon this subject is both various and profound. It 
 has engrossed the attention of many acute and brilliant 
 minds and has been enriched by the scholarly researches of 
 such celebrated historians as Freeman, Maine, Hallam and a 
 host of others. The morbid excess of such exposition in our 
 modern text-books offers a perpetual snare to the peace of 
 mind as well as to the patience of the student who is too 
 deeply infatuated with the actualities of the law to admire 
 the effete learning of the dark ages. If we were to obey and 
 follow the manifold caprices of text- writers and were solicit- 
 ous for an opportunity to display an abyssmal pedantry we 
 might exploit ourselves upon this senseless topic "ad nau- 
 seum " and yield a hasty self -surrender to impulses of per- 
 manent disgust. To those fond of historical research the 
 topic will yield many attractions especially if perused in the 
 delightful pages of so accomplished an author as Sir Wil- 
 liam Blackstone. In the modern law of real property it is 
 about as important as the Ante Nicene views of the Trinita- 
 rian doctrine or the speculations of the old Ptolmeites over 
 the Lost Pleiad. The Psalmist limits life to "three score 
 years and ten," and within this limitation we shall not 
 attempt the absorption of the entire gamut of human knowl- 
 edge or indulge in froth-eddys of talk about so bed-ridden 
 a theme as the feudal system. However, a brief synoptical 
 review of the prominent incidents of that system may be 
 considered opportune, and certainly is in strict conformity 
 with time-honored usage. The manner in which real prop- 
 erty was held and owned in England, subsequent to the 
 Norman conquest, and which has modified and given great 
 impulse and direction to the law of realty in that country, 
 and to a certain extent in this, was based upon the political 
 institution known as the feudal system. 
 
 This was introduced into England by William the Con- 
 queror purely as a military measure — one best calculated to 
 conserve the interests of the new proprietors and cement 
 and seal the conquest they acquired. Its pivotal concept was 
 
58 REAL PROPERTY. 
 
 the legal fiction that to the " sovereign " belonged the soil. 
 The use of the land was granted to others upon certain stipu- 
 lated conditions, usually in the way of service. The entire 
 country was subjected to an accurate survey, and was appor- 
 tioned among the officers and soldiers of the invading army. 
 A curious survival of this survey is still to be seen in the 
 famous Doomsday Book, which recorded the respective 
 boundaries of the sixty thousand Feifs into which the 
 country was divided. The one who had the use of the land 
 was termed a vassal or feudatory, and his holding was sup- 
 posed to be in strict subordination to that of his lord. The 
 holding itself was termed a feof, fued or feud, and the man- 
 ner in which this was held was termed a tenure, while the 
 right to hold constituted his seisin. The Lord was called the 
 Feoffer, the vassal the Feoffee, the act confirming his right 
 was termed a feoffment," and this investiture was otherwise 
 known as the livery of seisin, usually a symbolical process 
 invested with more or less solemnity. 
 
 The process of granting an estate by the original feoffee 
 out of his fee was what constituted the subinfeudation. The 
 entire system of feudal tenures was originally a temporary 
 expedient, terminable on the mere whim of the lord, and 
 usually existed from year to year. Gradually they became 
 extended for the lifetime of the particular vassal, and this 
 method in its turn gradually gave way to an hereditary 
 right, usually reposing in the eldest son. 
 
 The services rendered for the use of the land were some- 
 
 ■3.?Note on feoffment. In the United required is where an infant tenant 
 
 States the only method of transfer- of gavelkind land wishes to dis- 
 
 ring real estate is either by deed or pose of his estate; this he can do 
 
 will, hence the mediaeval terms by "feoffment" at the age of fif- 
 
 " feoffment," "feoffor" and " feof- teen. (Williams Real Prop. 129.) 
 
 fee" have become practically obse- The subject is bereft of all import- 
 
 lete. It may be said, however, that ance on this side of the Atlantic 
 
 under the Plantagenets and Tudors and is only referred to in this con- 
 
 the only mode of converting free- nection because we are facing a 
 
 hold land in possession from one perpetual anxiety to make this 
 
 person (the feoffor) to another (the present undertaking as instructive 
 
 feoffee) was by this process of feoff- and exhaustive as our limits will 
 
 ment. Williams says that the only allow, 
 case in which a " feoffment " is now 
 
TENURE OF REAL PROPERTY. 59 
 
 ■what varied, those of a military nature assuming the name of 
 knight-service, while others were peaceful and certain, gen- 
 erally consisting in the payment of rent or the performance 
 of labor, and were called socage. The incidents attaching to 
 knight-service — which was regarded as the most honorable 
 of all the feudal tenures — was service on the lord in time of 
 war, payment of certain stipulated sums, in some cases, in 
 order to ransom him if taken prisoner, and reliefs or fines 
 paid to him by the heir of the vassal as a condition precedent 
 to succeeding, to the estate. Wardship and marriage, or the 
 right which the lord had to dispose of the person and prop- 
 erty of the ward during minority, was another incident of the 
 system. A niarriage without the consent of the lord para- 
 mount gave the latter the right to impose a fine. Escheat 
 was the right which the lord had to the entire real and per- 
 sonal property of the vassal, when the latter died without 
 heirs, or when his civil death had been decreed as a result 
 of treason or felony. This was a most exasperating and 
 offensive measure and led to great abuses. The more 
 wealthy and prominent a vassal became the more liable he 
 was to some trumped up charge of treason or felony, proved 
 without due evidence, and instituted solely in order to vest 
 the lord paramount with his property. 
 
 Military tenures of every description were formally abol- 
 ished at the restoration of the Stuarts in 1660, and all lands 
 were declared to be holden in free and common socage, with 
 a few trifling exceptions. By the practice of subinfeudation" 
 many of the observed feudal incidents were evaded, and these 
 perpetual evasions resulted in the passage, toward the close 
 of the thirteenth century, of the celebrated statute of quia 
 emptores,^^ (18 Edward First, chap, i), the purposes of which 
 
 '" Subinfeudation denotes the act the Statute of Quia Emptores, 18 
 
 of an inferior lord by which he Ed. I; 2 BI. Com. 91; 3 Kent Cora. 
 
 carved out a part of an estate 406; 2 Bouvier's Law Diet. 553. 
 
 which he held of a superior, and h. ^^ Note on ike Statute Quia Emp- 
 
 granted it to an inferior tenant to tores. The Statute Quia Emptores 
 
 be held of himself. It was an indi- Terrarum (18 Edw. i, c, i A. D. 1289) 
 
 rect mode of transferring the fief, enacts that on all conveyances in 
 
 and resorted to as an artifice to fee, the tenant shall not hold of the 
 
 elude the feudal restraint upon grantor, but of the grantor's lord, 
 
 alienation ; this was forbidden by This puts an end to the subject of 
 
6o REAL PROPERTY. 
 
 were primarily the recognition of the vassal's right to alien 
 his estate, but enacted that the sub-tenants should still be 
 regarded as holding of the lord in precisely the same manner 
 as the original vassal had done. 
 
 Feudal tenures in England were : 
 
 Tenures by knight-service. 
 
 Tenures by socage. 
 
 Tenures at burgage. 
 
 Tenures at gavelkind. 
 
 Tenures at copyhold. 
 
 Tenures in frankalmoigne. 
 
 Tenures by petit serjeanty. 
 
 For an extended account of the feudal system in its juristic 
 relations see Sullivan's lectures (University of Dublin); 
 Spence's Eq. Jur. ; 2 Bl. Com. 44, while for its social and 
 political peculiarities the student should consult Hallam's 
 Middle Ages; Maine's Ancient Law, and Guizot's History of 
 Civ. 
 
 c. Views of Mr. Hallam and of Mr. Pollock. Mr. Hallam 
 says: "Whether the law of feudal tenures can be said to 
 have existed in England before the conquest, must be left to 
 every reader's determination. Perhaps any attempt to 
 decide it positively would end in a verbal dispute. In trac- 
 ing the history of every political institution, three things are 
 to be considered, the principle, the form and the name. The 
 last will probably not be found in any genuine Anglo-Saxon 
 record ; of the form of the peculiar ceremonies and incidents 
 
 subinfeudation. In Jackson v. R. 503, the court referred to a pre- 
 
 Schutz, 18 Johns. R. 179, Chief vious statute of New Yorlc, essen- 
 
 Justice Spence remarked, in the tially affecting tenures. And it was 
 
 course of the argument for the assumed that the Statute of Quia 
 
 plaintiff, that the Statute of Quia Emptores had never been in force 
 
 Emptores never existed in New within the colony of New York. 
 
 York. But the opinion of the But in Van Rensselaer v. Hays, 19 
 
 court, delivered by Piatt J., was N. Y. (5 Smith) 68, the Court of 
 
 different, it holding that the Act of Appeals held that the Statute of 
 
 1787, simply adopted in express Quia Emptores was brought by our 
 
 terms such of the English Statutes ancestors to the colony of New 
 
 respecting tenures, as were deemed York, and became a part of its law 
 
 to be in force in New York. In and the law of this State, independ- 
 
 DePeyster v. Michael, 2 Selden ent of the statute of 1787. 
 
TENURE OF REAL PROPERTY. 6 1 
 
 of a regular fief, there is some, but not much appearance. 
 But they who reflect upon the dependence in which free and 
 even noble tenants held their estates of other subjects, and 
 upon the privileges of territorial jurisdiction, will, I think, 
 perceive much of the intrinsic character of the feudal rela- 
 tion, though in a less mature and systematic shape than it 
 assumed after the Norman Conquest." " 
 
 What is characteristic of the feudal period is not the rela- 
 tionship between letter and hirer, or lender and borrower of 
 land, but the relationship between lord and man, or between 
 lord and vassal, or, rather, it is the union of these two rela- 
 tionships. Were we free to invent new terms, we might find 
 ' ' f eudo-vassalism ' ' more serviceable than feudalism. But 
 the difficulty is not one which could be solved by any merely 
 verbal devices. The impossible task that has been set before 
 the word "feudalism" is that of making a single idea repre- 
 sent a very large piece of the world's history — represent the 
 France, Italy, Germany, England of every century from the 
 8th or 9th to the 14th or 15th. The history of feudal law is 
 the history of a series of changes, which leave unchanged 
 little that is of real importance." 
 
 § 23. Effects of the American revolution on the law of tenure 
 in this country. The revolution and subsequent legislation 
 emancipated the soil from the chief characteristic of the 
 feudal system. After this change, the proprietaries held 
 their land as other citizens under the commonwealth, by a 
 title purely allodial. Lands are now held mediately or imme- 
 diately of the State, but by titles cleared of the rubbish of 
 the dark ages, excepting only the feudal names of things no 
 longer feudal. * * * The State sold her lands for the 
 best price she could get, and conferred upon the purchasers 
 the same absolute estate she held, excepting the fifth part of 
 any gold or silver found, and six acres in the hundred for 
 roads ; and these have been reserved, as everything else has 
 been granted, by contract. Her patents acknowledge a 
 pecuniary consideration, and stipulate for no fealty, escheat, 
 rent-service, or other feudal incident. The State is the Lord 
 paramount as to no man's land. When any of it is wanted 
 
 " Hallam's Middle Ages, p. 88. " History of English Law (Pollock:),44. 
 
62 REAL PROPERTY. 
 
 for public purposes, the State, in virtue of her political sov- 
 ereignty, takes it, but she compels herself, or those who 
 claim under her, to make full compensation to the owner." 
 
 §24. Waning influence of feudal tenures. Mr. Washburn's 
 unrivalled power of generalization is never more seductively- 
 displayed, than when in elaboration of some recondite topic 
 connected with mediaeval law. His incomparable diction 
 will always charm if it does not convince, and while we may 
 dissent from his conclusions, we invariably yield all homage 
 to the graces of a style that is seldom rivalled in the entire 
 domain of legal literature. It is with a regret that is border- 
 ing on remorse, that we feel impelled to dissent from his 
 averment regarding the necessity for a close and accurate 
 study of feudal tenures, in order to clearly comprehend the 
 intricate mazes of our modern law. Few practitioners, in the 
 stress and swirl of a hotly contended case, care to disturb the 
 rubbish of the dark ages in order to reach the root of things ; 
 and however entrancing the study, and desirable the result, 
 disquisitions of this character are entirely out of place in a text- 
 book that aims at both brevity and usefulness. We are some- 
 what familiar with the ' ' grandeur that was Greece, and the 
 glory that was Rome, ' ' but we submit with due deference that 
 the histories of Grote and Gibbon are the appropriate reposi- 
 tories of all this, and that it is bordering on rank pedantry to 
 introduce th6 polity of forgotten ages to the American stu- 
 dent who is struggling to comprehend the law of real prop- 
 erty in these closing hours of the nineteenth century. Such 
 studies only " lead to bewilder, and dazzle to betray." It 
 has been truthfully remarked by Chancellor Kent that the 
 modern law of real property forms the most intricate and 
 subtle topic known to the science of the law. Why add to 
 this intricacy in confusion by disquisitions upon the system 
 that never had the least hold upon the jurisprudence of the 
 western world, and only survives to a limited extent in tech- 
 nical terminology. 
 
 In this country none of the peculiar incidents of feudal 
 
 "Wallace v. Harmstad, 44 Pa. Gibson, J.; 3 Id. 447 ; 9 Id. 333 ; see 
 500 (1863), Woodward, J.; Hubley Green, Short Hist. Eng. Peop. 
 V. Vanhorne, 7 S. & R. 188 (1821), 112-14; Anderson's Law Diet. 
 
TENURE OF REAL PROPERTY. 63 
 
 tenure attach to an estate granted by one person to another. 
 For example, the notion no longer prevails that an ultimate 
 estate remains in the grantor of a fee-simple ; or that he has 
 a possible reversion, by escheat or otherwise; or that the 
 estate, granted by him, is subject to certain inseparable con- 
 ditions implied by law in his favor ; such as that the grantee 
 shall not alien, or shall render service or rent, and in case of 
 default shall forfeit the estate. These rules, and many others 
 that might be referred to, which were of feudal extraction, 
 or resulted from the obligations arising out of the feudal 
 relation, are now abrogated. 
 
 §25. The common law as affecting tenure. The common 
 law is not in its nature and character an absolutely fixed and 
 inflexible system like the statute law providing only for 
 cases of a determinate form, which fall within the letter of 
 the language in which a particular doctrine or legal proposi- 
 tion is expressed. It is rather a system of elementary prin- 
 ciples and of general juridical truths, which are continually 
 expanding with the progress of society, and adapting them- 
 selves to the gradual change of trade and commerce, and the 
 mechanic arts, and the exigencies and uses of the country. 
 There are certain fundamental maxims in it which are never 
 departed from. There are others again, which, though true 
 in a general sense, are at the same time susceptible of modi- 
 fications and exceptions to prevent them from doing manifest 
 wrong and injury. See, "Report of the Committee on Codi- 
 fication"to the Legislature of Massachusetts, Dec. 1836. 
 
 "Its sources are to be found in the usages, habits, manners 
 and customs of a people ; its seat, in the breasts of the judges 
 who are its expositors and expounders."" It is supposed to 
 develop new principles, and extend old ones by analogy. 
 But in this country the appalling mass of our statutory law 
 has left little for the English common law to act upon, and 
 when we consider that our ancestors only brought such por- 
 tions of it as were applicable to our condition, and that the 
 legislation of nearly 300 years has had a very demoralizing 
 effect upon that portion, it will be grudgingly admitted, 
 even by common law pundits, that the American law is 
 
 " Jacob V. State, 3 Humph. 493. 
 
64 REAL PROPERTY. 
 
 essentially an indigenous growth, based, of course, upon 
 the primitive notions of our English and Norman-French 
 ancestry. 
 
 a. Views of Judge Bouvier. The common law is that which 
 derives its force and authority from the universal consent 
 and immemorial practice of the people. It has never 
 received the sanction of the Legislature, by an express act, 
 which is the criterion by which it is distinguished from the 
 statute law. It has never been reduced to writing ; by this 
 expression, however, it is not meant that all those laws are at 
 present merely oral, or communicated from former ages to 
 the present solely by word of mouth, but that the evidence 
 of our common law is contained in our books of reports, and 
 depends on the general practice and judicial adjudications 
 of our courts. 
 
 The common law is derived from two sources, the com- 
 mon law of England, and the practice and decision of our 
 own courts. In some States the English common law has 
 been adopted by statute. There is no general rule to ascer- 
 tain what part of the English common law is valid and bind- 
 ing. To run the line of distinction, is a subject of embarrass- 
 ment to courts, and the want of it a great perplexity to the 
 student. (Kirb. Rep. Pref.) It may, however, be observed 
 generally, that it is binding where it has not been super- 
 seded by the Constitution of the United States, or of the 
 several States, or by their legislative enactments, or varied 
 by custom, and where it is founded in reason and consonant 
 to the genius and manners of the people." 
 
 b. Of Prof . Walker^'' It is said to be unwritten, because 
 there is no record of its formal enactment. It is sometimes 
 pretended that it consists of statutes worn out by time, their 
 records having been lost. It is also called a collection of 
 customs and traditions commencing in immemorial times, 
 acquiesced in by successive generations, and gradually 
 enlarged and modified in the progress of civilization. The 
 true account, however, is, that it is the stupendous work of 
 judicial legislation. Theorize as we may, it has been made 
 
 '* Bouvier's Law Diet., title Law. 243, 312 ; Sackett v. Sackett, 3 
 "See I Story Const, sees. 156-- Pick. 309; Patterson v. Winn, 5 
 158 ; Linsley v. Coats, i Ohio Rep. Pet. 233, 8 Id. 637. 
 
TENURE OF REAL PROPERTY. 65 
 
 from first to last by judges ; and the only records it ever had 
 are the reports of their decisions, and the essays, commen- 
 taries, and digests founded thereon." 
 
 c. Of Mr. Burrill. But to what extent the common law 
 has been adopted in the federal jurisprudence of the United 
 States, does not seem to be settled. It has indeed been 
 expressly held, that there can be no common law of the 
 United States, and that the common law of England is not 
 in force in the United States as a federal government.'" 
 According to other authority, the Constitution and laws of 
 the United States are predicated upon the existence of the 
 common law, and that law is appealed to by the Constitu- 
 tion, for the construction and interpretation of its powers." 
 
 § 26. Analysis of the common law system. Comprehensively, 
 the common law of England is the unwritten law of that 
 country, as distinguished from the written or statute law. 
 This is the definition of the Commentaries and there may 
 have been a time when it was applicable, but in a strict sense 
 it has long since ceased to be so. Except when law is known 
 exclusively to a privileged minority "there is no such thing 
 as unwritten law in the world. There was once a period 
 when the English common law might reasonably have been 
 termed unwritten. The elder English judges did really pre- 
 tend to a knowledge of rules, principles and distinctions, 
 which were not entirely revealed to the bar and the lay- 
 public. Whether all the law which they claimed to monopo- 
 lize was really unwritten, is exceedingly questionable ; but, 
 at all events, on the assumption that there was once a large 
 mass of civil and criminal rules known exclusively to the 
 judges, it presently ceased to be unwritten law. As soon as 
 the courts began to base their judgments on recorded cases, 
 whether in the year-books or elsewhere, the law became 
 written — written case law and only different from code law 
 because written in a different way."" 
 
 "Walker's Am. Law, 53. 338, 339; United States Digest, 
 
 "McLean, J., 8 Pet. R. 658; Common Law; i Burrill's Law 
 
 Blackford, J., Blackf. 'R. 205. Diet. 
 
 "Story, J., I Gallison's R. 488, °' Maine's Ancient Law, 12, 13; 
 
 489, 520 ; See 3 Wheaton's R. 223 ; see 4 Broom & Had. Com. 498 to 
 
 I Gallison's R. 20 ; i Kent's Cora. 505 ; 2 Id. 652 to 656, Wait's ed. 
 
 5 
 
66 REAL PROPERTY. 
 
 In the time of Lord Eldon the unwritten law of England 
 (so-called), was admitted to be so completely expressed by 
 written case law, that so careful a writer as Mr. Maddock 
 did not hesitate to emphasize the fact in the following strong 
 language which also approves copious citations of authorities. 
 ' ' To some, the numerous citations of cases may seem like an 
 ostentation of reading; but every careful professional man 
 is fully aware that the greatest merit in a legal writer will 
 not compensate for the want of cases in support of his posi- 
 tions. In an English court of justice, the veriest dolt that 
 ever stammered a sentence would be more attended to with 
 a case in point, than Cicero, with all his eloquence unsup- 
 ported by authorities ; and it is iit it should be so, for how 
 otherwise can law be what it ought to be — a certain rule of 
 conduct." 
 
 a. How brought to this country. Our ancestors, in emigrat- 
 ing to this country, brought with them such parts of the 
 common law and such of the English statutes as were of a 
 general nature and applicable to their situation." 
 
 The law as to holding lands and of transmitting the title 
 thereto from one subject to another must have been a matter 
 of the first importance in our colonial state ; and there can 
 be no doubt but that the great body of the English law upon 
 that subject, so far as it regarded the transactions of private 
 individuals, immediately became the law of the colony, sub- 
 ject to such changes as were introduced by colonial legisla- 
 tion. The lands were holden under grants from the Crown, 
 and as the king was not within the statute quia emptores a 
 certain tenure, which after the act of 12 Charles II (ch. 24), 
 abolishing military tenures, must have been that of free and 
 common socage, was created as between the king and his 
 grantee. I have elsewhere expressed the opinion that the 
 king might, notwithstanding the statute against subinfeuda- 
 tion, grant to his immediate tenant the right to alien his 
 land to be holden of himself, and thus create a manor, where 
 the land was not in tenure prior to the i8th Edward I." But 
 
 '''Madd, Ch. Pref. XIV. gardus v. Trinity Church, 4 Paige, 
 
 178. 
 '' I Kent, 473, and cases cited " The People v. Van Rensselaer, 
 in note A to the 5th ed. ; Bo. 5 Seld. 334. 
 
TENURE OF REAL PROPERTY. 6/ 
 
 -with the exception of the tenure arising upon royal grants, 
 and such as might be created by the king's immediate gran- 
 tees under express license from the Crown, I am of opinion 
 that the law forbidding the creating of new tenants by means 
 of subinfeudation was always the law of the colony, and that 
 it was the law of this State, as well before as after the pass- 
 age of our act concerning tenures, in 1787. A contrary 
 theory would lead to the most absurd conclusions. We 
 should have to hold that the feudal system during the whole 
 colonial period and for the first ten years of the State govern- 
 ment, existed here in a condition of vigor which had been 
 unknown in England for more than three centuries before 
 the first settlement of this country. We should be obliged 
 to resolve questions arising upon early conveyances, under 
 which many titles are still held, by the law which prevailed 
 in England during the first two centuries after the conquest, 
 before the commencement of the Year Books, and long before 
 Littleton wrote his treatise upon Tenures."" 
 
 b. Extent of its adoption in America. It is a mistake to 
 assume that the common law of England, though adopted 
 and accepted as the law of the States, and though unchanged 
 by statute, is under all circumstances and conditions to be 
 applied as the local common law. In many instances a 
 directly opposite rule is the common law of the State. In 
 Vicksburg and J. R. Co. v. Patton, 31 Miss. 156; 66 Am. Dec. 
 552, the rule of the common law that a man should fence in 
 his cattle was declared to be ' 'inapplicable to our condition," 
 and the right of free pasturage was held to exist as a part of 
 our common law, and the duty of fencing them out was 
 devolved upon other land owners desiring to exclude them 
 from cultivated or other lands." 
 
 c. Not known as a national customary law. There is no com- 
 mon law of the United States, in the sense of a "national 
 customary law, ' ' distinct from the common law of England, 
 as adopted by the several States each for itself, applied as 
 its local law, and subject to such alteration as may be pro- 
 vided by its own statutes." A determination in a given case 
 
 "Per Denio, J., in Van Rensse- Miss. 650; Crane v. French, 38 
 laerv. Hays, 5 N. Y. 68, 73. Miss. 503. 
 
 "See also Green v. Weller, 32 " Wheaton v. Peters,33 U. S. 591. 
 
68 REAL PROPERTY. 
 
 of what that law is may be different in a court of the United 
 States from that which prevails in the judicial tribunals of 
 a particular State. This arises from the circumstance that 
 the courts of the United States, in cases within their juris- 
 diction, where they are called upon to administer the law of 
 the State in which they sit or by which the transaction is 
 governed, exercise an independent though concurrent juris- 
 diction, and are required to ascertain and declare the law 
 according to their own judgment. * * * There is, how- 
 ever, one clear exception to the statement that there is no 
 national common law. The interpretation of the Constitu- 
 tion is necessarily influenced by the fact that its provisions 
 are framed in the language of the English coramon law, and 
 are to be read in the light of its history. The code of consti- 
 tutional and statutory construction which, therefore, is grad- 
 ually formed by the judgments of this court, in the applica- 
 tion of the Constitution and the laws and treaties made in 
 pursuance thereof, has for its basis so much of the common 
 law as may be implied in the subject, and constitutes a 
 common law resting upon national authority." 
 
 As for the states themselves, the common law of England, 
 as it existed at the time of the revolution, together with 
 such of its statutes as reasonably applied to the colonies, 
 became at that time the common law of the States. In this 
 country, as in England, of course, the body of the common 
 law has developed with growing industrial conditions and 
 has on the other hand been from time to time restricted by 
 statutes of the States or of the United States. What we 
 have said in regard to the common law of the States has 
 one exception, Louisiana, which, when ceded to this country 
 retained in the main the system of Roman civil law already 
 existing. The common law on a given point is always set 
 aside by a statute covering that point ; thus, in the United 
 States, the order of authority of law is : the federal Consti- 
 tution ; the treaties and acts of Congress ; the Constitution 
 of the State ; the statutes of the State, and finally the com- 
 mon law. When a statute is rescinded the common law on 
 
 "Smith V. Alabama, 124 U. S. ing Moore v. U. S., 91 U. S. 270; 
 478 (1888), cases, Matthews, J., cit- 23 Led, 346. 
 
TENURE OF REAL PROPERTY. 69 
 
 that point again becomes of force unless there be an older 
 statute, in which case that revives." 
 
 d. Its repellant features. Notwithstanding the veneration 
 with which all lawyers are expected to regard the common 
 law, its mode of procedure, in many respects, had but little 
 to recommend it as a direct and convenient medium for the 
 administration of justice. Many of its rules were technical 
 and arbitrary, and, to the understanding of the present age, 
 founded upon no substantial reasons, and in many cases the 
 alleged reasons upon which they are founded have become 
 misty or forgotten." 
 
 In all of the American States, the scope and nature of 
 landed property has been specifically defined and regulated 
 by statutory law, and many of the old common law incidents 
 have been abolished. 
 
 e. Great achievement of Sir William Blackstone. We yield 
 to none in admiration of the mighty achievement of Sir Wil- 
 liam Blackstone in the digesting and codification of that 
 "abyssmal welter" known as the English common law. He 
 brought to the consideration of his task a classic elegance of 
 diction, phenomenal zeal, rare attributes of classification and 
 all the ripened experience of a peerless legal mind. His 
 fame is imperishable; and it is furthest from our purpose 
 to attempt the belittlement either of the man or his achieve- 
 ments. 
 
 It will be observed in this connection that our hostility to 
 Blackstone relates merely to its preliminary study. If read 
 under the more favorable auspices that always accompany 
 the expansion of professional research, the rare fascination 
 of the style and the felicitious evasion of the many embar- 
 rassments that form the "mingled lock of Teutonic, Feudal, 
 Parliamentary and Ecclesiastical legislation" give to the 
 ' ' Commentaries ' ' every quality of a classic written for all 
 times and creeds. 
 
 Especially taken in connection with the equally sumptuous 
 work of Sir Henry Maine on "Ancient Law, "and with Mr. 
 Hallam's celebrated " Constitutional History," we have an 
 elaborate presentation of the inception and development of 
 
 ''4 International Cyclopaedia. ^ Kimbal v. Lohmas, 31 Cal. 158. 
 
yo REAL PROPERTY. 
 
 English jurisprudence that no legal equipment is complete 
 without. Far from deploring this study, we would encour- 
 age and stimulate it, but we would inexorably stipulate that 
 it be undertaken at a time when its want of adaptability 
 and adjustment to existing conditions can be more readily 
 discerned, to the end that the student may evade the 
 insidious approaches of a false theory that must be first 
 learned with great study and promptly forgotten with great 
 pains. 
 
 Further, we may be allowed to say that a course of study that 
 aims at the laborious exposition of principles of law that 
 have lost their efficacy or application ; of theories that have 
 been exploded beyond the influence of gravitation ; of a ter- 
 minology that has not even a hospitable reception in our 
 language; of rules of pleading that have no affinities in 
 our codes ; of criminal laws that are a smear alike upon our 
 civilization, our humanity and our common sense, is now, 
 and ever shall be, an imposition upon practical methods, a 
 prostitution of mental energy, a useless and senseless parade 
 of pedagogic whim-wham, that stuffs the receptive minds of 
 our most brilliant and assiduous scholars with a pestiferous 
 mass of unassimilative matter. 
 
 Who quotes a paragraph from Blackstone? Where, 
 throughout the entire tenor and trend of our voluminous 
 litigation, do you ever hear a sentence that is solely attribut- 
 able to him? At rare intervals, some venerable anatomical 
 ruin that has miraculously eluded burial, and makes longevity 
 disreputable by still persisting in it, electrifies both bench 
 and bar by quoting some bedridden truism that nobody 
 doubts or nobody knows, but it is like opening the ' ' Sixth 
 Seal, ' ' in Revelation, and only emphasizes the truth of Ben 
 Butler's sententious remark, "Law must be of divine origin 
 to have survived the fools hired to expound it during the last 
 hundred years." 
 
 In a spirit of expostulation and of entire seriousness, let us 
 
 earnestly request a careful consideration of the views we 
 
 have here outlined to the end that some correction of this 
 
 intolerable abuse may be effected. These views are entirely 
 
 ^ impersonal in their aim, are merely suggestive in their 
 
 "si^port; and are "respectfully submitted" in the hope, and 
 
TENURE OF REAL PROPERTY. 
 
 71 
 
 with the conviction, that the agitation of the subject will dis- 
 close the merits of our contention, and vindicate the position 
 we assume." 
 
 " Note on the Blacksione Craze. 
 Why this abject Persian adoration 
 for a classic one hundred years be- 
 hind its time ? Why this prostra- 
 tion before a luminary that has long 
 since set? Why drone over mil- 
 dewed laws that have long since 
 been relegated to the "impalpable 
 inane," and have been discredited 
 for a hundred years, even in tne 
 land that gave them birth ? It is a 
 rank and driveling insult to the 
 common intelligence of our profes- 
 sion to seriously refer to the major 
 portion of Blackstone's Commen- 
 taries as affording even a feeble ex- 
 position of the modern law. Whole 
 chapters devoted to the govern- 
 mental and ecclesiastical policy of 
 Great Britain have not even a nebu- 
 lous bearing upon any rule what- 
 ever in vogue in this country; and, 
 in fact, they have long been super- 
 seded by elaborate works on the 
 British Constitution that have been 
 out of print for half a century. 
 What species of mental leprosy 
 will still insist upon feeding legal 
 minds on such Blackstonian draff 
 as is found in his chapters on the 
 " Benefit of Clergy,'' the " Feudal 
 System," "King's Royal Family," 
 and particularly the chapters on 
 English Criminal law ? What be- 
 wildering results are the legitimate 
 outcome (in view of our various 
 practice acts and codes of civil pro- 
 cedure), of study upon " Pleading 
 and Practice at Common Law ? " 
 Glance at the subjects of bailment, 
 easements, fixtures, etc., and con- 
 sider the monumental importance 
 
 of these topics under our present 
 scheme of law. Refer to Black- 
 stone's chapter on "Trial by Jury," 
 and introduce us to one line that 
 can safely be regarded as elucida- 
 tive or even suggestive of that pro- 
 cedure under modern rules. Con- 
 sider in its entirety the treatment 
 he accords to "real property," and 
 you will find that, aside from the 
 mere tabulation of definitions, the 
 entire topic serves no practical 
 purpose here or hereafter, and only 
 " leads to bewilder and dazzles to 
 betray." It is quite time that this 
 extravagant estimate of Blackstone 
 was called to a new audit. 
 
 Judge Cooley, whose legal acu- 
 men is above compare, whose logi- 
 cal perceptions are of the keenest, 
 whose eloquence always charms if 
 it does not always convince ; Judge 
 Cooley, whose reputation as a text 
 writer is second only to his national 
 reputation as a scholar and a jurist, 
 devotes some of the most brilliant 
 paragraphs he ever penned to an 
 elaborate special plea, based upon 
 the proposition, by no means con- 
 ceded, that the best aid to a proper 
 understanding and interpretation 
 of the law is founded upon the 
 study of Blackstone. His Honor 
 says (see preface) : "Although there 
 are many things in Blackstone 
 which have ceased to be important 
 in the practical judgment of the 
 law, can we with prudence or pro- 
 priety omit to make ourselves ac- 
 quainted with them ? Things which 
 are abolished or obsolete may, 
 nevertheless, have furnished the 
 
^2 
 
 REAL PROPERTY. 
 
 f . Disintegration of early common law methods. A steady pro- 
 cess of disintegration has been affecting the common law ever 
 since its formal adoption in this country. In the first place, 
 it must be borne in mind that only such portions were 
 
 reasons for the things which re- 
 main, and to study rules, while 
 ignoring their reasons, would be 
 like studying the animal anatomy, 
 while ignoring the principle of life 
 which animates it." In effect His 
 Honor makes it appear that in the 
 present inchoate state of legal 
 science, unless we resort to Black- 
 stone, it is impossible to find good 
 rules for study that are still at- 
 tached to some equally good rea- 
 son, where both the rule and the 
 reason for it are equally important 
 to know, and where a want of that 
 knowledge is alike fatal to the at- 
 torney's reputation and the success 
 of his client's cause. Just how far 
 an "abolished" or "obsolete" 
 thing can furnish the reason for the 
 things which remain, is an enigma 
 for Jesuitical causists; but we sub- 
 mit that "Cessente ratione legis cessat 
 ipso lex" is a maxim of extended 
 application. If the rule and the 
 reason for it both cease, why study 
 it? "Why, nursing fathers, why?" 
 The fate of the Roman world was 
 once decided by the flight of the 
 twelve vultures. Later on the 
 Roman augurs cast the horoscope 
 of the Imperial City after the due 
 inspection of chicken bowels and 
 the fall of the Midriff, but the rea- 
 son for all this has vanished ages 
 ago. Why study it ? 
 
 What the practitioner of the pres- 
 ent day demands in the stress and 
 swirl of titanic litigation is not 
 metaphysical disquisition upon the 
 reasons that led to the abolition of 
 
 the " Feudal System " or the re- 
 vamping of the law of "feoffment" 
 in the reign of Queen Anne. He 
 is not in a maniacal panic to probe 
 the entire "Polity of the Colonial 
 Possessions," nor to surmount the 
 difficulties of chapter 8, book 4, on 
 the wierdly fascinating topic of 
 "Pr3emunire," that few doctors of 
 law can spell correctly, fewer still 
 define, and none expound. We 
 suspect that it will considerably 
 corrode the fragile tendrils of his 
 recollection to get the law reduced 
 to its ultimate essence without lum- 
 bering his capacious mind with 
 moss-grown and mildewed theories 
 about "entail," "livery of seizin" 
 and "primogeniture." 
 
 He is quite likely to grapple with 
 a large-sized conundrum when he 
 undertakes to absorb the principles 
 of our equity jurisprudence and the 
 varient applications of our statu- 
 tory law. He is on " desperate 
 seas with the lost digamma '' when 
 he undertakes to explore the laby- 
 rinth of our " code practice," and 
 the subject of " Evidence '' alone is 
 quite likely to procure cerebral 
 congestion and dire tarantula jig- 
 ging, unless his capacities for as- 
 similation are of the Napoleonic 
 type. 
 
 What has made the writer's con- 
 tention so peculiarly offensive is 
 the impossibility of refuting it. 
 After struggling against our in- 
 stincts and with a paralytic fiux of 
 words, we conclude that the com- 
 mon law professors (who are the 
 
TENURE OF REAL PROPERTY. 
 
 73 
 
 adopted as were "applicable to our condition." In the 
 second place, it must be remembered that a vast portion of 
 our territory — that acquired by the Louisiana purchase 
 from Napoleon, as well as the immense domain acquired by 
 conquest from Mexico — have never been under the influences 
 of the common law system or procedure, while, since the 
 Revolution, the entire tenor and trend of legislation have 
 been in direct impairment of any survivals of the common 
 law previously in vogue. 
 
 When we comprehend the stupendous mass of our varient 
 State and Federal legislation — legislation which has affected 
 almost every conceivable phase of property and individual 
 rights — and when we consider that this legislation is in 
 every instance an abrogation of common law text, although 
 it may be a confirmation of some common law principle, the 
 fact remains that the statute is the controlling incident. It 
 
 ones chiefly infatuated with Black- 
 stone) should vindicate themselves 
 from the suspicion of being biased 
 by reading and digesting some 
 wholesome American law extracted 
 from the works of Dillon, Pomeroy, 
 Wharton, Redfield, Abbott et al. 
 
 But it is urged in behalf of the 
 Blackstone craze, ''that its mental 
 discipline is of an exceptional or-, 
 der." Indeed! And are there no 
 other ways known under heaven 
 and among men by which the sen- 
 sitized minds of our law students 
 can be "disciplined?" Is there no 
 tenacity of memory or mental dis- 
 cipline required in the study of Mr. 
 Chancellor Kent? Does not ro- 
 busticity of thinking lurk in the 
 pages of Judge Story, or infest the 
 screeds of the late lamented Theo- 
 philus Parsons (now with God) ? 
 Is it not possible to block out a 
 course of study based upon the 
 virile living law that will enlist the 
 surplus energies, and tax to a rea- 
 sonable extent the thinking ganglia 
 
 of the average student to the ex- 
 tent of retiring him temporarily 
 from the maddening pursuits of the 
 world, the flesh and the devil ? 
 
 We are grievously misinformed, 
 our preconceptions are hopelessly 
 awry, our theories, of which we 
 have been excessively vain, are 
 spectral inanities, if the average 
 collegian, under the robust mental 
 pabulum here outlined, doesn't 
 wrestle with about all the " mental 
 discipline " his god-like image cares 
 to caress, at least until the fibres 
 and the tendons of his callow years 
 have attained a little more consist- 
 ency and vigor. "Don't muzzle 
 the ox that thresheth out the 
 corn " is the suggestive injunction 
 of Holy Writ, and don't narcotize 
 the grey matter in a student's skull 
 with the putrefactions of a plod- 
 ding brain that ceased to act long 
 before the birth of our century. — 
 Cited from Columbia Law Times, 
 Vol. VI. 
 
74 REAL PROPERTY. 
 
 is idle to insist that because many of these statutes merely 
 crystallize and give fixity and brevity to a common law prin- 
 ciple, that a study of the common law is the only method of 
 acquiring absolute knowledge of the subject embraced. The 
 abominations of the common law undoubtedly inspired much 
 of our remedial legislation, but whatever the original springs 
 and sources of our statutory law the fact remains that the 
 statute is the sole repository of it. 
 
 § 27. All lands allodial in this country. By constitutional 
 provision in all of the American States lands are declared 
 allodial and feudal tenures are prohibited. This implies that 
 all land is held in free and absolute ownership in contradis- 
 tinction from feudal tenures which last, as we have seen, was 
 a cumbersome device tending to hinder a free and ready 
 transfer of realty." An immense amount of vehement and 
 rather turgid eloquence has been squandered on various 
 anathemas of the old feudal tenures which in no wise con- 
 cerns our present purpose ; but it is pertinent to remark that 
 the American courts universally condemn any attempt to 
 fetter the free and speedy transmission of real property. 
 
 The character of the title to lands in the United States since 
 the Revolution has become allodial and as we have stated. 
 Many of the States have so declared ; notably Arkansas, Cali- 
 fornia, Colorado, Connecticut, Maryland, Michigan, Minne- 
 sota, New York, New Jersey, North and South Dakota, 
 Ohio, Pennsylvania, South Carolina, Virginia, West Virginia 
 and Wisconsin. Even in those jurisdictions where there has 
 been no express declaration on the subject, lands have 
 become, in effect, allodial, by virtue of our emancipation 
 from English rule. Tenure and its feudal incidents perished 
 with the British sovereignty, and it is a pure parade of 
 pedantry to revamp the musty learning of the past century, 
 in serious support of the contention that lands in this coun- 
 try are anything but allodial. 
 
 § 28. Alienations under the mortmain statutes. The early 
 English works on the law of real property are offensively op- 
 pressive with long discussions upon the force and effect of the 
 
 '^ Rakrker v. Dayton, 28 Wis. 384. 
 
TENURE OF REAL PROPERTY. 75 
 
 "mortmain statutes" as passed by the English parliament. 
 There is nothing in our early annals showing that these laws 
 were ever engrafted upon our system of jurisprudence, and 
 the subject is of little or no concern to an American student 
 at the present day. 
 
 But, although we never adopted or enacted the English stat- 
 ute of mortmain, yet we have a decided mortmain policy. It 
 is found in our statutes in relation to wills, prohibiting a 
 devise to a corporation unless specially permitted by its 
 charter or by some statute to take property by devise. 
 
 "It is a statute of mortmain, resting on a mortmain policy 
 as distinctly as any act of the British parliament. * * * 
 The necessity is recognized of forbidding the acquisition by 
 will, unless the Legislature in granting the charter, and in 
 full view of the reasons for so doing, think proper to confer 
 the power in express terms. * * * Nor is this necessity 
 by any means a fanciful one. It is eminently praiseworthy 
 to give in the interest of charity and religion. But in the 
 last hours of life, exaggerated impressions of charitable or 
 religious duty often obscure the judgment of men and sub- 
 ject them to undue influence and persuasion. Against these 
 the statute is intended to guard, because it is in behalf of 
 associations incorporated for pious and benevolent purposes 
 that the sentiments of men in such situations are most gen- 
 erally appealed to. The enactment is, therefore, prohibitory, 
 and it ought to be expounded and applied in that sense." " 
 
 Judges have given the widest possible scope to statutes in 
 restraint of the disposal of property in mortmain, and have 
 been astute in their arguments for the application of such stat- 
 utes to cases as they arose." 
 
 The courts ought not to impute an intent to the Legisla- 
 ture not clearly expressed, in direct hostility to -the traditions 
 and policy of the past. * * * Claiming property and 
 seeking the aid of the courts to reach it, the corporation can 
 rely only on the warrant and authority of its charter. 
 
 The nature of the tenure of real property at the time of 
 the passage of the early mortmain acts in England bears no 
 resemblance to the tenure by which a citizen of this State 
 
 s' Per Comstock, Ch. J., in Down- ^4 pg^ Gibson, Ch. J., in Hillyard 
 
 ing V. Marshall, 23 N. Y. 366, 387. v. Miller, 10 Pa. 326. 
 
76 REAL PROPERTY 
 
 holds lands, Here there is no vassal and superior, but the 
 title is absolutely in the owner, and subject only to the lia- 
 bility to escheat." The escheat takes place when the title to 
 lands fails through defects of heirs. " 
 
 § 29. What law governs alienations. The lex loci rei citce 
 exclusively governs the alienation of land, and the instru- 
 ment purporting to convey it must be construed by the 
 rules affecting the property in the jurisdiction where it is 
 situated. The formalities of the transfer are here alluded 
 to — these must substantially conform to the legal methods 
 sanctioned in the particular jurisdiction where the contro- 
 versy arises — and similarly all remedies touching real prop- 
 erty must comply with the legal or equitable procedure 
 adopted in the State where the realty is located." And 
 hence titles acquired through probate proceedings, instituted 
 in another jurisdiction, do not affect lands situated beyond 
 the limits of that jurisdiction." 
 
 § 30. The term title defined. Title, in popular apprehen- 
 sion, refers rather to the instruments which are usually 
 relied upon to evidence the title, and to the outward asser- 
 tive acts that import dominion, than to the strict legal means 
 "whereby the owner of lands hath the just possession of his 
 property. A title is a lawful cause or ground for that which 
 is ours." (Co. Litt. 345b.) An interest, though primarily it ~ 
 includes title, has latterly acquired a subordinate meaning, 
 and usually suggests some fractional share or fugitive con- 
 cern in property, inconsistent with the absolute and arbitrary 
 sole domination over it. The term has been one of no ordi- 
 nary vexation to lexicographers who quarrel with Black- 
 stone's and Coke's definition, and are equally dissatisfied 
 with both." To me the definition of the Georgia Code is the 
 most concise and accurate. ' ' Title is the means whereby a 
 
 '' N. Y. Const, art. i, sec. 13. Brine v. Hart Fire Ins. Co., 96 U. 
 
 3« N. Y. Const, art. i, sec. 11. S. 624. 
 
 *■■ Robinson v. Campbell, 3 Wheat. *' Robinson v. Peckrell, 109 U. S. 
 
 207; U. S. V. Fox, 94 U. S. 315; 608. 
 
 McGoon V. Scales, 9 Wall. 23 ; Jones "' Stevens and Brown, sec. 2 ; Ab- 
 
 v. Habershan, 107 U. S. 174 ; Suy- bott's L. Diet. 565-6-7. 
 dam v. Williamson, 24 How. 427 ; 
 
TENURE OF REAL PROPERTY. 77 
 
 person's right to property is established." Actual or con- 
 structive possession, coupled with the legal right of posses- 
 sion, will constitute a good and sufficient title. This legal 
 right of possession must be such as would authorize a court 
 of competent jurisdiction — possessing full information of 
 all the facts and .circumstances connected with the right 
 claimed — to award a possessory writ, and enforce its award 
 by the aid of a posse comitatus if necessary. 
 
 There are but two modes of acquiring title : (i) by pur- 
 chase; and (2) by descent. Title by purchase may be 
 acquired in a variety of ways — as by forfeiture, gift, grant 
 (public or private), escheat, eminent domain, prescription, 
 accretion, judicial decree, and contract, in short, by every 
 conceivable legal mode except descent or hereditary succes- 
 sion. This method (of descent) presupposes the death of the 
 ancestor, and the acquisition of the property by his legal 
 heirs. 
 
 Title is the lawful cause or ground of possessing that 
 which is ours [justa causa possidendi quod nostrum est.)" The 
 means whereby the owner of lands has the just possession of 
 his property.^' The means whereby the owner of lands, or 
 other real property, has the just and legal possession and 
 enjoyment of it." The means whereby a man cometh to 
 land." These definitions, it will be seen, confine the appli- 
 cation of the word to real property. In modern law, however, 
 it is constantly applied to personal property also. When 
 two titles concur, the best is preferred." 
 
 According to Lord Coke, the word title seems strictly to 
 have imported, in the old law of real property, something 
 less than right, or, as he describes it, "title properly is, as 
 some say, where a man has a lawful cause of entry into 
 lands, whereof another is seized, for the which he can have 
 no action."" "But legally," he adds, "it includes a right 
 also, for every right is a title, but every title is not such a 
 right for which an action lies."" Hale and Finch make a 
 
 * Co. Litt. 345 b. *' Co. Litt. ub. sup., see Titulus. 
 
 *' 2 Bl. Com. 195. ** Finch's Law, b. i, c. 4, n. 82. 
 
 " Cruise Dig. tit. XXIX, chap, i, " Co. Litt., 345 b., 8 Co., 153 b. 
 
 sec. 2. "Co. Litt. ub. sup. 
 
78 REAL PROPERTY. 
 
 distinction between the terms." In modern practice, how- 
 ever, they are constantly associated together. 
 
 A title is further described in the old books as consisting 
 for the most part of muniments, which fortify and protect 
 the ground of possession." 
 
 With the establishment of national independence in 1783," 
 the legal theory became, in the United States, that all titles 
 to lands are derived from the government of the United 
 States, as in England it had been that all lands are held im- 
 mediately or ultimately of the king. Within the original 
 States, only the lands remaining unappropriated, and those be- 
 longing to Tory owners, and passing by forfeiture to the gov- 
 ernment, ever actually vested in the United States. By the 
 acquisition of the Northwest Territory and Louisiana it de- 
 volved on the government to become the distributor, to pri- 
 vate owners, of an area east of the Rocky mountains, as large 
 as China, and half as large as Europe. The present total 
 area of the United States, including Alaska, is 3,603,884 
 square miles, exclusive of the lakes and other waters, while 
 that of Europe is 3,828,328 square miles. 
 
 In the United States, government is theoretically con- 
 sidered the source of all titles to land, but in the proper 
 feudal sense, the principle of tenure seems to be abrogated ; 
 tenants in fee being to all intents and purposes the absolute 
 owners of their estates." In some of the States, tenure in 
 socage is said still to exist in theory, but in others it has 
 been expressly abolished, and practically all land is now 
 held by an allodial title." There is high authority, however, 
 for the opinion that the great feudal principle of tenure has 
 been acknowledged in American jurisprudence, that we 
 have no lands which are properly allodial, that is, which are 
 not holden." The idea of tenure certainly pervades, to a 
 considerable degree, the law of real property in this country, 
 and the language of tenure is everywhere in constant use, 
 
 " See Hale's Anal. sec. XXXII ; ™ See i Milliard's Real Prop. 79- 
 
 Finch's Law, b. 2, chap. 2. 81 (37). 
 
 «2 Burrill's Law Diet. " See 3 Kent's Com. 488, 509-514; 
 
 " Supreme Ct., Johnson v. Mcln- i Hilliard's Real Prop. 80, 81 (39). 
 
 tish, 8 Wheat. 543, IT 3 Op. Atty.- " i Greenleaf's Cruise Dig. 23, 
 
 Gen. 333. note. 
 
TENURE OF REAL PROPERTY. 79 
 
 all proprietors, owners, or holders of real estate being tech- 
 nically denominated tenants." 
 
 The Revised Constitution of New York, of 1846, declares 
 that the people, in their right of sovereignty, are deemed to 
 possess the original and ultimate property in and to all lands 
 within the jurisdiction of the State ; and that all lands, the 
 title to which fails from a defect of heirs, reverts or escheats 
 to the people." 
 
 To have a good title to land is to have the essential power 
 of ownership, viz. , the right to maintain or recover posses- 
 sion of the land as against all others. 
 
 §31. Discovery as affecting — Views of Chancellor Kent. 
 
 The rights of the British government within the limits of the 
 British colonies, passed to the United States by the force 
 and effect of the act of independence ; and the uniform asser- 
 tion of those rights by the crown, by the colonial govern- 
 ments, by the individual states, and by the Union, is, no 
 doubt, incompatible with an absolute title in the Indians. 
 That title has been obliged to yield to the combined influ- 
 ence which military, intellectual, and moral power gave 
 to the claim of the European emigrants. The right of dis- 
 covery was not recognized in the Roman law. It is an 
 imperfect title unless followed by occupation, and unless the 
 intention of the sovereign or State to take possession be 
 declared or made known to the world. " This is the language 
 of the modern diplomatists and publicists, on the part of 
 England, Spain, Russia and the United States. Mere trans- 
 ient discovery amounts to nothing, unless followed in a rea- 
 sonable time by occupation and settlement, more or less per- 
 manent, under the sanction of the State." 
 
 The English possessions in America were not claimed by 
 right of conquest, but by right of discovery. According to 
 the principles of international law, as then understood, the 
 Indian tribes were regarded as the temporary occupants of 
 the soil, and the absolute rights of property and dominion 
 
 " 2 Burrill's Law Diet. Martens' Precis. 37 ; Cluber, Droit 
 
 "Art. I, sec. 11; People v. Liv- des Gens Modernes de I'Europe, 
 
 ingston, 8 Barb. R. 253. sec. 126. 
 
 " Vattel, b. i. c. 18, sees. 207, 208; " 3 Kent, 506. 
 
8o REAL PROPERTY. 
 
 were held to belong to the European nations by whicli any 
 portion of the country was first discovered." 
 
 The Europeans respected the right of the natives as occu- 
 pants, but asserted the ultimate dominion to be in them- 
 selves, and exercised, as a consequence, a power to grant the 
 soil while it was yet in the possession of the natives." 
 
 § 32. Indian titles abolished. In epitome, the American 
 doctrine on the subject of Indian title is this: The Indians 
 have no fee in the lands they occupy. The fee is in the 
 government. They cannot, of course, alien them either 
 to nations or individuals, the exclusive right of pre-emption 
 being in the government. Yet they have a qualified right of 
 occupancy which can only be extinguished by treaty, and 
 upon fair compensation ; until which they are entitled to be 
 protected in their possession." 
 
 As said in United States v. Cook, 19 Wall, 591, they are life 
 tenants and cannot cut timber except for improvement, for 
 that is waste. It will thus be seen that all valid individual 
 title must be traced to some one of the governments for 
 whom the discoveries were made, or who claim title under 
 them." 
 
 To leave the Indians in possession of the country was to 
 leave the country a wilderness, and to govern them as a dis- 
 tinct people, or to mix with them, and admit them to an 
 intercommunity of privileges, was impossible under the cir- 
 cumstances of their relative condition. The peculiar charac- 
 ter and habits of the Indian nations rendered them incapable 
 of sustaining any other relation with the whites than that of 
 dependence and pupilage. There was no other way of deal- 
 
 " Martin v. Waddell, 16 Pet. 409 Intosh, 8 Wheat. 543 ; Jackson v. 
 
 (1842), Taney, C. J. Hudson, 3 Johns. 375 ; Cherokees 
 
 '* Johnson v. Mcintosh, 8 Wheat. v. Georgia, 5 Pet. i ; Worcester v. 
 
 572 (1823), Marshall, C. J.; Buttz v. Georgia, 6 Pet. 515 ; Clark v. Smith, 
 
 Northern Pacific R. Co., 119 U. S. 13 Pet. 195; Chaffee v. Garrett, 6 
 
 67 (1886); 3 Kent, 379; Anderson's Ohio, 421 ; Beecher v. Wetherby, 5 
 
 Law Diet. Otto, 517. 
 
 " See the third article of the ordi- '° See 3 Kent's Com. 377 ; Jackson 
 
 nance of 1787; Vattel, chap, i, sec. v. Ingraham, 4 Johns. 16; Jackson 
 
 81, 209 ; 3 Kent's Com. 386 ; i Story, v. Waters, 12 Johns.- 365 ; Walker's 
 
 Const., sec. 7, 153; Johnson v. Mc- Am. Law, 33. 
 
TENURE OF REAL PROPERTY. 81 
 
 ing with them than that of keeping them separate, subordi- 
 nate and dependent, with a guardian care thrown around 
 them for their protection. "' 
 
 So early as 1823 the Supreme Court of the United States 
 refused to recognize any grant made to a private individual, 
 by ^ny Indian or Indian tribe, as effective." In New Eng- 
 land alone realty seems to have been held under Indian 
 deeds that the laws respected. But this was a startling 
 anomaly arising from peculiar political causes, as were the 
 purchases made from the Lenni-lennape Indians by William 
 Penn. Such titles were merely adroit measures of passifica- 
 tion and expediency. Nowhere have the courts recognized 
 such titles as valid, since the treaty with the Seminoles in 1 8 1 9. 
 The contention that they had a proprietary interest in the 
 lands they wandered over, would, if carried to its logical 
 conclusion, support the view that they acquired a proprietor- 
 ship in tide water by fishing in it. The title of the British 
 crown was founded upon the dual incidents of discovery and 
 conquest. Both methods have been the foundation of title 
 from time immemorial, and are distinctly recognized by the 
 great publicists in International Law, Vattel, Puffendorf and 
 others. The European potentates, found no difficulty in 
 convincing themselves that they made ample compensation 
 to the aborigines for the summary appropriation of their 
 lands by bestowing upon them the inestimable advantages of 
 Christianity, as typified in the first settlers. The entire 
 question sinks into utter insignificance at the present day, in 
 view of the fact, that treaty stipulations, between the Fed- 
 eral government and all existing Indian tribes, have com- 
 pletely abolished the last vestige of what might have once 
 been recognized as an Indian title. We are happily rid of a 
 factor in the law of real property, that at one time, approached 
 perilously near to being a perpetual source of disturbance. 
 In 1809 the Supreme Court of New York refused to notice 
 any title not derived from our own government. And the 
 Legislature of that State, as early as 18 13, by statute, author- 
 ized the governor "to hold a treaty or treaties on the part 
 of the people of this State with the Oneida nation of Indians, 
 
 " 3 Kent's Com. 506. '^ Johnson v. Mcintosh, 8 Wheat. 543. 
 
 6 
 
82 REAL PROPERTY. 
 
 or any other of the Indian nations or tribes within this 
 State, for the purpose of extinguishing their claim to such 
 part of their lands lying within this State as he might deem 
 proper, for such sums and annuities as might be mutually 
 agreed upon by the parties." 
 
 § 33. Classification of American tenures. In any logical 
 classification of estates the mind instinctively reverts to the 
 four fundamental principles that regulate their subdivision. 
 Firstly, we regard the estate with reference to its " dura- 
 tion." Secondly, the quality of the interest held or con- 
 veyed. Thirdly, the time when the interest in the property 
 is to commence, and, Fourthly, with regard to the number 
 of persons who are to participate in the enjoyment. Under 
 this first subdivision we tabulate freeholds " and leaseholds. 
 Freehold interests naturally subdivide into those of ' ' inherit- 
 ance" and those "not of inheritance;" both MAY endure dur- 
 ing the life of some person in being — the grantor, the grantee, 
 or a third party. While leaseholds, which are regarded as 
 inferior to freeholds, are created for a certain or uncertain 
 period, the uncertainty being dependent upon the will of 
 either or both of the parties who call the estate into exist- 
 ence. Familiar every-day illustrations of this estate arise in 
 the constantly recurring practice of leasing. We all readily 
 
 =3 Laws of New York, 36th ses., duration, and the comparative free- 
 
 c. 130. dom of tenure, are, and always have 
 
 " Note on freeholds. Freehold is been, the peculiar qualities of free- 
 an estate in real property, either of holds. A term for years, for how- 
 inheritance or for life. It is often ever long a period and though far 
 defined as including any estate of exceeding the duration of human 
 uncertain duration which may pos- life, is not a freehold, i Abb. Law 
 sibly last for the life of the tenant Diet. 524. 
 
 at the least. Thus an estate granted It must possess these two quali- 
 to a widow during her widowhood ties : (i) Immobility, that is, the 
 is usually considered an estate of property must be land, or some in- 
 freehold. The term had become terest issuing out of land, or an- 
 completely established in this sense nexed to land; and (2) a sufficient 
 long before the abolition of feudal legal indeterminate duration. For 
 tenures, and by far the greater part if the utmost period of time to 
 of the real property in England and which an estate can endure be fixed 
 the United States is now freehold and determined, it cannot be a free- 
 property. The quality of indefinite hold. Wharton. 
 
TENURE OF REAL PROPERTY. 83 
 
 recognize tlie interest so created. "It maybe for years," 
 or from year to year, or at sufferance. The active mani- 
 festation of these estates is in the conventional relation 
 of landlord and tenant or lessor and lessee. Recurring to 
 our second original subdivision — that of quality — we find 
 that an estate is, in legal contemplation, either ' ' absolute 
 or ' ' determinable. ' ' Absolute estates are, as the term im- 
 ports, estates of freehold relieved of any condition whatever, 
 and are of indefinite duration. They are also frequently 
 denominated estates in fee or " fee simple." (The word 
 " simple " adding nothing to the force of the expression.) 
 These estates, like all others, are subject to condemnation by 
 the State or Federal government in the exercise of the right 
 of eminent domain, a subject to which we shall accord elab- 
 orate expansion in subsequent pages of this work. It is 
 therefore becoming in this immediate connection, to qualify 
 and limit the. phrase ' ' any condition whatever ' ' as character- 
 izing this absolute estate, by italicizing the incident of emi- 
 nent domain as a proceeding which may defeat an absolute 
 estate against the most strenuous efforts of the owner. 
 
 Resuming our analysis as to " determinable estates' ' it may 
 be observed that they are under the constant menace of some 
 possible event or contingency which may annihilate them 
 even when a set period has been designated for their natural 
 expiration. They are known in legal phraseology as 
 " estates conditional," " estates upon condition," " estates 
 upon limitation, ' ' and ' ' conditional limitations. ' ' These 
 arbitrary distinctions are often of great subtlety and corre- 
 sponding perplexity, but in modern law are bereft of much 
 of their former refinement. Yet as the distinctions are still 
 recognized, I will elaborate them further on. Estates as 
 regards their quality are also divisible into legal and equit- 
 able estates. The first imports such as are dependent upon 
 some statutory law for their existence. While the second is 
 a creation of equity jurisprudence exercised in furtherance 
 of some principle clearly cognizable by equity courts, of 
 which the entire gamut of uses and trusts furnish an apt 
 illustration. (See p. .) 
 
 Considering estates with reference to the "time of their 
 enjoyment," they are treated as estates in possession or estates 
 
84 REAL PROPERTY. 
 
 in expectancy. In the first, the right of possession is 
 assumed to be immediate ; in other words it is an executed 
 estate. An estate in expectancy imports a postponement 
 of the right of possession to some future time more or less 
 remote ; in other words it is an executory estate. The well 
 known terms ' ' vested ' ' and ' ' contingent ' ' may well appear 
 in this connection. An estate is referred to as " vested ' ' 
 when there is a person in being who is entitled to a present 
 fixed title concerning which there is no speculation or uncer- 
 tainty. And an estate is contingent when the title depends 
 upon the happening of some future event. 
 
 Again, we find that vested estates possess the attributes 
 both of executed and of executory estates. But it is only 
 an executed estate that can be vested. Although an execu- 
 tory estate may under certain favoring conditions be either 
 vested or contingent. One distinction must be made promi- 
 nent, viz. , the law will not recognize such an anomaly as an 
 "executed contingent estate;" but will acknowledge, under 
 appropriate conditions, the presence of a "vested executory 
 estate." 
 
 Estates considered with reference to the number of per- 
 sons in whom the title reposes, have been treated from the 
 period of the Lombard Invasion, either as joint estates or 
 estates in severalty. In the former class the title is vested 
 in two or more persons. In the latter class it rests with one 
 only. I merely perpetuate a time-honored scheme of subdi- 
 vision in recognizing joint estates under five different head- 
 ings, viz., joint tenancy, tenancy in common, tenancy in 
 coparcenary, tenancy by the entireties, and tenancy in co- 
 partnership. 
 
 It is upon the intelligent elaboration of the legal principles 
 associated with these various estates that the success of the 
 present undertaking largely depends. We have already a 
 reasonably clear apprehension of land and its incidents, of the 
 tenure of landed property, and the infiuence that the feudal 
 system and the English common law have impressed upon 
 its present characteristics. We have seen that all lands, in 
 this country, are substantially allodial. That Indian titles 
 have been extinguished, and all traces of foreign sover- 
 eignty, whether reposing upon discovery rights or the rights 
 
TENURE OF REAL PROPERTY. 85 
 
 of conquest, have disappeared witli them. And we are now 
 prepared to enter upon the minutiae and detail that should 
 accompany the close analysis of the various subdivisions 
 that comprise in their entirety the present law of real prop- 
 erty. First among these subdivisions we find estates in fee 
 simple ; a topic which it is our purpose to examine in the 
 paragraphs of the succeeding chapter. 
 
CHAPTER III. 
 
 ESTATES IN FEE SIMPLE. 
 
 Sec. 34. Bouvier's definition of the term fee. 
 
 35. A doubt removed. 
 
 36. The doctrine of seizin examined. 
 
 37. What constitutes disseizin. 
 
 38. Effect of the word heirs in a grant in fee. 
 
 39. Use of the word grant, estate, etc., and the effect of such use. 
 
 40. Legal incidents of estates in fee. 
 
 41. The principle of involuntary alienation examined. 
 
 42. Instances of involuntary alienation. 
 
 43. Who may be freeholders. 
 
 a. Incidents of corporate ownership. 
 
 b. Domicile of corporation. 
 
 c. Rights of foreign corporations. 
 
 44. Federal legislation on the subject of alienage. 
 
 45. When fee is in abeyance — Views of Judge Dixon. 
 
 § 34. Bouvier's definition of the term fee. Estates in fee are 
 of several sorts, and have different denominations, according 
 to their several natures and respective qualities. They may 
 with propriety be divided into: i, fees simple; 2, fees deter- 
 minable; 3, fees qualified; 4, fees conditional, and 5, fees 
 tail.' A fee simple is an estate in lands or tenements which 
 
 ' Note on determinable, qualified place (Cro. Jac. 593 ; 10 Vin. Abr. 
 
 and conditional fees. A determina- 1 33) : till debts shall be paid fFearne, 
 
 ble fee is an estate which may con- 187) ; until a minor shall attain the 
 
 tinue forever. (Plowd. 557; Shep. age of twenty-one years (3 Atk. 
 
 Touch. 97.) It is a quality of this 74; Ambler, 204; 9 IVfod. 28; 10 
 
 estate while it falls under this de- Vin. Abr, 203 ; Fearne, 342) ; are 
 
 nomination, that it is liable to be instances of such a determinable 
 
 determined by some act or event, fee. 
 
 expressed on its limitation, to cir- Qualified fee is an interest given 
 
 cumscribe its continuance, or infer- on its first limitation, to a man and 
 
 red by the law as bounding its ex- to certain of his heirs, and not to 
 
 tent. (2 Bl. Com. 109.) Limitations extend to all of them generally, nor 
 
 to a man and his heirs, till the mar- confined to the issue of his body, 
 
 riage of such a person shall take A limitation to a man and his heirs 
 
 [86] 
 
ESTATES IN FEE SIMPLE. 87 
 
 in reference to the ownership of individuals, is not restrained 
 to any heirs in particular, nor subject to any condition or col- 
 lateral determination, except the laws of escheat and the 
 canons of descent, by which it may be qualified, abridged or 
 defeated. In other words, an estate in fee simple absolute, 
 is an estate limited to a person and his heirs general or 
 indefinite.' And the omission of the words "his heirs" will 
 not vitiate the estate, nor are the words "and assigns for- 
 ever" necessary to create it, although usually added.' The 
 word fee simple is sometimes used by the best writers on the 
 law as contrasted with estates tail.* In this sense, the term 
 comprehends all other fees as well as the estate, properly, 
 and in strict propriety of technical language, peculiarly dis- 
 tinguished by this appellation. 
 
 Mr. Tiedeman, in his work on Real Property, sec. 36, says : 
 "The word 'fee' without any qualifying adjective, implies an 
 unlimited estate of inheritance. Such is also the case with 
 the term 'fee simple,' and 'fee simple absolute.' The three 
 terms 'fee,' 'fee simple' and 'fee simple absolute,' may be 
 used interchangeably; the adjectives in the last two are sur- 
 plusage.'" 
 
 The highest estate by an allodial title is denominated a fee 
 simple. The word "fee" is the usual term, "simple" adding 
 nothing to the force of the expression. 
 
 It is an incontrovertible rule, that whenever an estate is 
 given, either by deed or will, to a person generally or indefi- 
 nitely, with an unlimited power of disposition annexed, it 
 
 on the part of his father affords an heirs, to commence on the perform- 
 
 example of this species of estate. ance of a condition, is also fre- 
 
 Litt., sec. 254; I Inst. 27, a 220; i quently described by this appella- 
 
 Prest. on Estates, 449. tion. Prest. on Est. 476 ; Fearne, 
 
 A conditional fee, in the more 9. — Bouvier's Law Diet, 
 
 general acceptation of the term, is " Watk. Prin. Con. 76. 
 
 when, to the limitation of an es- 'Co. Litt. 7, b; 9, b; 237, b; 
 
 tate, a condition is annexed which Plowd. 28, b; 29, a ; Bro. Abr. Es- 
 
 renders the estate liable to be de- tates, 4; i Co. Litt. i, b; Plowd. 
 
 feated. (10 Rep. 65, b.) In this 557; 2 Bl. Com. 104, 106; Hale's 
 
 application of the term, either a de- Analysis, 74. 
 
 terminable or a qualified fee may at * i Co. Litt. 19. 
 
 the same time be a conditional fee. * See, also, Allen v. McCabe, 93 
 
 An estate limited to a man and his Mo. 138. 
 
88 REAL PROPERTY. 
 
 invariably vests an absolute fee, and neither a remainder nor 
 an executory devise can be limited on such an estate.' ^ 
 
 The term "fee" denotes the quantity of interest the owner 
 has in land.' They are of two principles, classes, fee simple 
 and fee tail. And the terms fee, fee simple and fee absolute 
 are synonymous.' 
 
 An estate in fee simple denotes the highest possible inter- 
 est a person can hold in real property. Under such an inter- 
 est the owner is at liberty to devote the premises to any 
 object not inconsistent with law, that he may deem proper. 
 He may mortgage, lease it, sell it, give it away, or allow it 
 to remain unoccupied. If he dies without disposing of it the 
 property will descend to his heirs under the rules of descent. 
 It is a pure inheritance, free from any qualification. It is an 
 estate of perpetuity and confers an unlimited power of alien- 
 ation.' 
 
 The test of what constitutes a suspension of the power of 
 alienation as to real estate is that it occurs only when there 
 are no persons in being, by whom an absolute estate- in pos- 
 session can be conveyed." 
 
 §35. A doubt removed. A question or doubt has arisen 
 whether, after all, there is now any such estate as a qualified 
 or determinable fee, or whether this form of estate was done 
 away with by the statute quia emptor es. See Gray, Perp.sec. 
 31-40, where the question is discussed, and authorities are 
 cited. Whatever may be the true solution of it in England, 
 where the doctrine of tenure still has some significance, the 
 existence of such an estate as a "qualified or determinable 
 fee' ' must be recognized in this country, and such is the gene- 
 ral consensus of opinion of courts and text-writers." 
 
 «Cook V. Walker, 15 Ga. 459. Ferry Co. v. Ohio & M. R. Co. 94 
 
 ' Wendall v. Crandall, I N. Y.49S. III. 83, 93 ; i Wash. Real. Prop., 3d 
 
 "2 Bl. Com. 106. ed. 76-78; 4 Kent Com. 9, 10 129; 
 
 »4 Kent, 5 ; 42 Vt. 620. See, also, of English works in addi- 
 
 '» Sawyer v. Cubby, 146 N. Y. 192. tion to citations above ; Shep. 
 
 "Jamaica Pond Aqueduct Corp. Touch. loi ; 2 Bl. Com. 109, 154, 
 
 V. Chandler, 9 Allen, 159, 168; 155; I Cruise Dig., title i, sec. 72- 
 
 Leonard v. Burr, 18 N. Y. 96; Gil- 76; 2 Flint Real Prop. 136-138. 
 
 lespie V. Broas 23 Barb. 370; State Preston Estates, 431 441 ; Challis 
 
 v. Brown, 27 N. J. L. 13 ; Hender- Real Prop. 197-208. 
 
 son V. Hunter, 59 Pa. 335 ; Wiggins 
 
ESTATES IN FEE SIMPLE. 89 
 
 §36. The doctrine of seizin examined. Under the im- 
 pulse of modern forms of conveyancing the ancient doc- 
 trine of "seizin" has lost much of its importance. Origi- 
 nally, seizin was the completion of the feudal investiture ; it 
 now means ownership. A covenant of seizin and a covenant 
 of right to convey are synonymous." It imports a possession 
 in fact by one having or claiming a freehold interest. Such 
 a possession is known as a seizin in deed ; while the right of 
 immediate possession is a seizin in law ; constructive seizin 
 is also recognized as the legal equivalent of seizin in deed. 
 {Jenkins v. Fahey, 73 N. Y. 362'.) 
 
 Seizin denotes, ordinarily, a possession in fact by one hav- 
 ing or claiming a freehold interest, which is known as a 
 seizin in deed, or a right of immediate possession which is 
 seizin in law. There may be a constructive seizin, the equiva- 
 lent of a seizin in deed." It is quite evident that a remainder- 
 man, when the particular estate is a freehold, is not seized 
 within this limited definition of the term ; for he is not in 
 possession, and has no right of possession. He cannot enter 
 either to take the profits or to make livery of seizin to 
 another. 
 
 Seizin is a technical term denoting the completion of that 
 investiture by which the tenant was admitted into the ten- 
 ure, and without which no freehold could be constituted or 
 pass. It is a word common as well to the French as to the 
 English law. It is either in deed, which is, when the person 
 has the actual seizin or possession ; or in law, when, after a 
 descent, the person, on whom the land descends, has not actu- 
 ally entered, and the possession continues vacant, not being 
 usurped by another. When lands of inheritance are carved 
 into different estates, the tenant of the freehold in possession, 
 and the persons in remainder or reversion, are equally in the 
 seizin of the fee. But, in opposition to what may be termed 
 the expectant nature of the seizin of those in remainder or 
 reversion, the tenant in possession is said to have the actual 
 seizin of the lands. The fee is intrusted to him. By any 
 act which amounts to a disaffirmance by him of the title of 
 
 "Cook V. Hammond, 4 Mass. 488. Mansfield; Coke Litt. 17 a; Green 
 " Com. Dig. A. I, 2. Per Ld. v. Liter, 8 Cranch. 229. 
 
go REAL PROPERTY. 
 
 those in the reversion, he forfeits his ectate, and any act of a 
 stranger which disturbs his estate is a disturbance of the 
 whole fee."" 
 
 Justice Story says in Green v. Liter, 12 U. S. (8 Cr.), 243, 
 bk. .3, L. ed. 545, that "the object of the law in requiring 
 actual seizin was to evince notoriety of title to the neighbor- 
 hood and the consequent burthens of feudal duties. * * * 
 But in a mere uncultivated country, in wild and impenetrable 
 woods, in the sullen and solitary haunts of beasts of prey, 
 what notoriety could an entry or gathering of a twig or acorn 
 convey to civilized man at the distance of one hundred 
 miles?"" 
 
 Livery of seizin imports a delivery of possession of lands, 
 tenements and hereditaments, unto one entitled to the same. 
 This was a ceremony used in the common law for the convey- 
 ance of real estate ; and the livery was in deed, which was 
 performed by the feoffor and the feoffee going upon the land, 
 and the latter receiving it from the former ; or in law, where 
 the same was not made on the land, but in sight of it. '° In 
 most of the States, livery of seizin is unnecessary, it having 
 been dispensed with either by express law or by usage. The 
 recording of the deed has the same effect. In Maryland, 
 however, it seems that a deed cannot operate as a feoffment 
 without livery of seizin. " 
 
 As to livery of seizin, the court, in Holt v. Hemphill, 3 Ohio, 
 232, say: "We have always held that a complete title may be 
 created, without an actual entry, and where the grantee may 
 never have been within hundreds of miles of the property 
 granted. The delivery of the deed has been considered as 
 giving possession, in contemplation of law, and the grantee 
 is presumed to have entered, unless that presumption is 
 
 '* Hargrave's note, 217. son, 36 U. S. (i Pet.) 503; bk. 7, L. 
 
 ■' See McDaniel v. Grace, 15 Ark. ed.^239. 
 
 468; Shores V. Carley, 90 Mass. (8 "^ ^]- ^°'^- 3' 5- 3i6. 
 
 »„ N »T , \, T "sHarr. & John. 158; vide, 4 
 
 Allen) 425 ; Malone v. McLauren, ^^^^ ^^^ ^g^ . ^ ^j.jj ^^ ^ ^g^ ^ 
 
 40 Miss. 161 ; Ferguson v. Tweedy, 4. , ^o. R. 553 ; i Pet. R. 508; i 
 
 43 N. Y. 543 ; S. c. 56 Barb. (N. Y.) gay's R. 107 : 5 Harr. & John. 158; 
 
 168; Gellespie v. Worford, 2 Cald. 2 Fairf. R. 318; Dane's Abridge- 
 
 (Ten.) 632; Guion v. Anderson, 8 ment, h. t., and the article Seisin; 
 
 Humph. (Tenn.) 298 ; Davis v. Ma- 2 Bouvier's Law Diet. 80. 
 
ESTATES IN FEE SIMPLE. 9 1 
 
 rebutted by facts. * * * And that I may not be mis- 
 understood on this important point, I repeat that I do not 
 consider a formal livery of seizin, as practiced in former 
 times, or an actual corporeal entry, as being at all necessary 
 to consummate a title, or to vest a seizin in deed, in any case 
 where the premises are vacant, or occupied by a person hold- 
 ing under the grantor, or otherwise, without claim of title. 
 In all such cases, the execution and delivery of the deed 
 vests the seizin, completes the title, and puts the grantee in 
 the same situation as if he had made a formal entry, and 
 received the twig and turf from the hand of the grantor." 
 
 In the light of these decisions, and the considerations upon 
 which they rest, we can hardly err in holding that the rea- 
 son, or reasons, of the rule requiring seizin in deed, having 
 no existence, the rule itself does not exist. And, certainly, 
 the symmetry of our law demands this. It would be strange, 
 indeed, and only lead to confusion and perplexity, if, while 
 every oth.er tenancy may be created without entry, or regard 
 to the fact of adverse possession, a tenancy by the curtesy 
 could not. Nor does a rule strongly commend itself to the 
 good sense of men that makes the existence of the estate de- 
 pend upon an almost, or quite, imaginary distinction between 
 seizin in law and constructive seizin in deed. It is a mere 
 fiction to say that a man is actually possessed of that which 
 is in no one's possession, and it is plainly untrue to say so 
 when the thing is in the possession of another. The reason- 
 ing of the courts in all these cases, if carried to its legitimate 
 result, makes seizin in deed, either actual or constructive, 
 wholly unnecessary ; and this result is not in conflict with 
 the principles of the common law. For even at common law 
 a seizin in law is sufficient to give curtesy in all inheritances 
 created without entry." 
 
 §37- What constitutes disseizin. Disseizin, according to 
 the definition given by Mr. Preston, "is the privation of 
 seizin. It takes the seizin or estate from one man and 
 places it in another. It is an ouster of the rightful owner of 
 the seizin. It is the commencement of a new title, producing 
 
 "3 Bac. Abr. 12 ; Jackson v. Johnson, 5 Cow. 98 ; Ellsworth v. Cook 8 
 Paige, 643. 
 
92 REAL PROPERTY. 
 
 that change by which the estate is taken from the rightful 
 owner and placed in the wrong-doer. Immediately after a 
 disseizin, the person by whom the disseizin is committed has 
 the seizin, or estate, and the person on whom this injury is 
 committed has merely the right or title of entry. * * » 
 As soon as a disseizin is committed, the title consists of two 
 divisions; first, the title under the estate, or seizin; and, 
 secondly, the title under the former ownership."" 
 
 Descents which take away entries are, when anyone seized 
 by any means whatsoever of the inheritance of a corporeal 
 hereditament, dies, whereby the same descends to his heir ; 
 in this case, however feeble the right of the ancestor might 
 be, the entry .of any other person who claims title to the 
 freehold is taken away; and he cannot recover possession 
 against the heir by any summary method, but is driven to 
 his action to gain a legal seizin of the estate. The right of 
 entry may be tolled, or taken away by a descent cast, in 
 cases of abatement, intrusion and disseizin." 
 
 Bouvier says that disseizin may be effected either in cor- 
 poreal inheritances, or incorporeal. Disseizin of things cor- 
 poreal, as of houses, lands, etc., must be by entry and actual 
 dispossession of the freehold ; as if a man enters, by force or 
 fraud, into the house of another, and turns, or at least, keeps 
 him or his servants out of possession. Disseizin of incorpo- 
 real hereditaments cannot be an actual dispossession, for the 
 subject itself is neither capable of actual bodily possession 
 nor dispossession." 
 
 It has never been held so far as the cases show, that mere 
 words, or the taking of a deed of land without entry under 
 it, can be considered as a disseizin. There must be some 
 actual interference with the land, some actual physical asser- 
 tion of dominion over it, to constitute what may be con- 
 sidered by the owner as a disseizin at his election." 
 
 " Preston's Abst. 284. 408, 11 Pick. 193; 8 Pick. 172; 8 
 
 ="3 Bl. Com. 176. Vin. Ab. 79; i Swift's Dig. 504; i 
 
 "3 Bl. Com. 169, 170; See 15 Cruise, *65 ; Arch. Civ. PI. 12; 
 
 Mass. 495 ; 6 John. R. 197 ; 2 Watts, Bac. Ab. h. t. ; 2 Supp. to Ves. Jr. 
 
 23; 6 Pick. 172: I Verm. 155; 11 343; Dane's Ab. Index, h. t.; i 
 
 Pet. R. 41 ; 10 Pet. R. 414 ; 14 Chit. Pr. 374, note r. 
 
 Pick. 374 ; I Dana's R. 279 ; 2 Fairf. =« Towle v. Ayer, 8 N. H. 57. 
 
ESTATES IN FEE SIMPLE. 93 
 
 The ancient rule that a disseisee cannot convey land was 
 founded partly upon the peculiar nature of livery of seizin 
 under the common law, and partly upon considerations of 
 public policy. Sir William Blackstone states the rule to be 
 ' ' lest pretended titles might be granted to great men, whereby 
 justice might be trodden down, and the weak oppressed."" 
 In this country such reasons, if they ever existed, are of no 
 practical moment and the modern tendency is to modify the 
 ancient rule." It is now ruled that such a conveyance is 
 binding upon the grantor and that it entitles the grantee to 
 recover the land in the name of the grantor but to his own 
 use, even as against the disseizor." In the case last cited the 
 tenant held under a deed given to him when his grantor 
 was disseized ; but it was held that as he had entered and held 
 possession under his deed, he could avail himself of his title 
 in defence to a writ of entry, to avoid circuity of action. In 
 University of Vermont v. Joslyn, 21 Vt. 52, it was held that a 
 deed by a disseizee was invalid only as to the person holding 
 adversely at the time of the deed, or those who subsequently 
 came in under him, but as to all other persons valid, and 
 passed the title to the grantor. The same rule is recog- 
 nized in New York."" 
 
 This reasoning is impregnable. If a person who is dis- 
 seized conveys land, and the disseizor abandons possession, 
 and the grantee enters and occupies it, he acquires an inde- 
 feasible title. He thus acquires an actual seizin under a title 
 which his grantor is estopped to deny, and a stranger who 
 subsequently disseizes him cannot set up the invalidity of his 
 title or rather of his deed. 
 
 If the disseizor abandons his possession, and the grantee 
 does not enter into actual occupation, but allows the land to 
 remain vacant there is no reason why the same result should 
 not follow. Livery of seizin, so essential at common law, is 
 no longer regarded, Delivery of the deed is now delivery 
 of siezin unless the land is adversely occupied at the time. 
 If it is, and the disseizor abandons his possession, it enures 
 
 ''2 Bl. Com. 290. 148 ; Cleaveland v. Flagg, 4 Church. 
 
 "Sparhawk v. Bagg-, 16 Grey, 76. 
 
 583- '''' Livingston v. Proseus, 2 Hill, 
 
 " Farnham v. Peterson, 1 1 1 Mass. 526. 
 
94 REAL PROPERTY. 
 
 to the benefit of the grantee and gives him a seizin, so that 
 he has a title which is valid as against a stranger who subse- 
 quently disseizes him. This result is an obvious matter of 
 justice and enforces no hardship to allow the grantee to bring 
 action in his own name as the real party in interest, instead 
 of resorting to the old fiction of a suit in the name of his 
 grantor. 
 
 §38. Effect of the word "heirs" in a grant in fee. The 
 
 word heir is, at common law, necessary to be used, if the 
 estate is to be created by deed. A grant to a man and 
 his right heirs is the same as a grant to a man and his 
 heirs ;" but Lord Coke, in Co. Litt. 8, b, says, that a grant to 
 a man and his heir, in the singular number, conveys only an 
 estate for life, because the heir is but one. This is a strange 
 reason to be given, under a system of law which prefers 
 males to females in the course of descent, and in which the 
 right of primogeniture among the males is unrelentingly 
 enforced. Mr. Hargrave, note 45 to Co. Litt. 8, b, questions 
 the doctrine, and he says that there are authorities to show 
 that the word heir, in a deed, as well as in a will, may be 
 taken for nomen collectivum, and stand for heirs in general. 
 The doctrine of Coke was very rigorously attacked by Lord 
 Ch. J. Eyre, over a century ago, in Dubber v. Trollope, Amb. 
 453, and Lord Coke himself showed, in Co. Litt. 22, a, that 
 an estate tail, with the word heir in the singular number, 
 was created and allowed in 39 Ass. pi. 20." Notwithstanding 
 all this authority in opposition to the rule as stated by Lord 
 Coke, and the unintelligible reason assigned for it, Mr. 
 Preston states the rule as still the existing law." In the case 
 of Kings Heirs ^.King's Adm., 15 Ohio, 559, a case distin- 
 guished for the most learned and elaborate discussion, the 
 court held that the word heir in the singular number in a 
 will, was to be construed the same as the word heirs. The 
 limitation to the heirs must be made in direct terms, or by 
 immediate reference, and no substituted words of perpetuity, 
 
 "Co. Litt. 22, b. Wilkins, i Bulst. 219; Blackburn v. 
 
 '' See also Richards v. Lady Ber- Stables, 2 Ves. & Bea. 371. 
 
 gavenny, 2 Vern. 324 ; Bawsy v. " Treatise on Estates, vol. II, 8. 
 Lowdall, Styles, 249; Whiting v. 
 
ESTATES IN FEE SIMPLE. 95 
 
 except in special cases, will be allowed to supply their place, 
 or make an estate of inheritance of feoffments and grants." 
 The location of the word in any particular part of the grant 
 is not essential ; for a grant of a rent to A, and that he and 
 his heirs should distrain for it, will pass a fee. " 
 
 That "heirs" or other appropriate word of perpetuity in a 
 deed conveying land is essential to pass a fee simple estate is 
 not a ruling admitting of no exception. When, for example, 
 a mortgage evidences an intention to pass the entire estate 
 as security, and express provisions cannot otherwise be car- 
 ried into effect, the instrument will pass such an estate, 
 although no formal words of perpetuity are employed. " Where 
 an estate is granted subject to some condition in the instru- 
 ment creating it, or to some condition implied by law, to be 
 thereafter performed it is called a ' ' conditional fee. ' ' A de- 
 terminable fee embraces all fees which are determined by 
 some act or event expressed, in their limitation to circum- 
 scribe their continuance, or inferred by law as bounding 
 their extent. In its broader sense, a "determinable fee" 
 embraces what is known as a "conditional fee." Where it 
 becomes an established fact that the event which may termi- 
 nate the estate will never occur, a determinable fee enlarges 
 into a fee simple absolute. So where the condition upon 
 which a conditional fee rests has been performed, the estate 
 becomes an "absolute fee."" 
 
 Thus stands the law of the land, without the aid of legis- 
 lative provision. But in this country the statute law of some 
 of the States has abolished the inflexible rule of the common 
 law, which had long survived the reason of its introduction, 
 and has rendered the insertion of the word heirs no longer 
 necessary. In Virginia, Kentucky, Mississippi, Missouri, Ala- 
 bama and New York the word "heirs," or other words of in- 
 heritance, are no longer requisite, to create or convey an 
 estate in fee ; and every grant or devise of real estate made 
 subsequent to the statute, passes all the interest of the 
 grantor or testator, unless the intent to pass a less estate or 
 
 '»Litt. sec. I. ^* Brown v. National Bank, 44 
 
 "Lord Coke, in 3 Bulst. 128; ^^'° ^*^- f 73- 
 . „ „ ^ ' '33 Fletcher v. Fletcher, 88 Ind. 
 
 4 Kent s Com. 5. ,^„ ,.,.,, , , 
 
 ^ ^ 420, Niblack, J. 
 
96 REAL PROPERTY. 
 
 interest appears in express terms or by necessary implica- 
 tion. In Illinois, words of perpetuity or inheritance are still 
 essential to create a fee, and the same general rule is implied 
 to a devise." The statute of New York also adds, for greater 
 caution, a declaratory provision, that in the construction of 
 every instrument creating or conveying any estate or inter- 
 est in land, it shall be the duty of the courts to carry into 
 effect the intention of the parties, so far as such intention 
 can be collected from the whole instrument, and is consistent 
 with the rules of law." 
 
 Mr. Humphreys, in his Essay on Real Property, and Out- 
 lines of a Code, 235, first edition, has proposed the same 
 reform, of rendering the word heirs no longer necessary in 
 conveyances in fee ; and the American lawyer cannot but be 
 forcibly struck, on the perusal of that work, equally remark- 
 able for profound knowledge and condensed thought, with 
 the analogy between his proposed improvements and the 
 actual condition of the jurisprudence of this country. But I 
 think it very probable that the abolition of the rule requiring 
 the word heirs to pass by a free deed, will engender litiga- 
 tion. There was none under the operation of the rule. The 
 intention of the grantor was never defeated by the applica- 
 tion of it. He always used it when he intended a fee. 
 Technical and artificial rules of long standing, and hoary 
 with age, conduce exceedingly to certainty and fixedness in 
 the law, and are infinitely preferable, on that account, to 
 rules subject to be bent every way by loose latitudinary rea- 
 soning. A lawyer always speaks with confidence on ques- 
 tions of right under a deed, and generally circumspectly as 
 to questions of right under a will." 
 
 §39. Use of the word grant, estate, etc., and the effect of 
 such use. By statute in several states all corporeal heredita- 
 ments, as regards the conveyance of the immediate freehold 
 thereof, are deemed to lie in grant as well as in livery, so 
 that "grant" is now not only a sufficient, but a proper tech- 
 nical word of conveyance of any freehold estate and a simple 
 deed of grant has superseded the old-fashioned feoffments, 
 
 '■■Jones V. Bramblet, i Scam- '° 4 Kent's Com. 7. 
 nion's Rep. 276. '* 4 Kent's Com. 7-8. 
 
ESTATES IN FEE SIMPLE. 97 
 
 leases and releases which were formerly required to convey 
 freehold estates in possession. The word ' ' grant, ' ' however, 
 is not absolutely necessary in a deed of grant, for other words 
 indicating an intention to grant will answer the purpose." 
 It is briefly defined as a generic term applicable to all trans- 
 fers of realty." 
 
 By a grant everything passes which is necessary to the full 
 enjoyment of the right, title or estate which is included in 
 the words of a grant, but nothing more ; so a grant of a mere 
 right of way carries an easement only — the ownership of 
 the soil not being essential to the free use of the right and in 
 some instances the grant of an estate designated and de- 
 scribed only by the particular use and purpose for which the 
 land is appropriated, will be held to pass a fee." 
 
 "We hold it to be an incontrovertible rule that whenever 
 an estate is given, either by deed or will, to a person gen- 
 erally or indefinitely, with an unlimited power of disposition 
 annexed, it invariably vests an absolute fee in the first taker, 
 and that neither a remainder nor an executory devise can be 
 limited on such an estate." 
 
 Justice Johnson says in the case of Lambert's Lessee v. Paine, 
 7 U. S. (3 Cr.), 97, 130; bk. 2, L. ed. 377, 388, "I consider the 
 doctrine as well established, that the word estate, made use 
 of in a devise of realty, will carry a fee, or whatever other 
 interest the devisor possesses. And I feel no disposition to 
 vary the legal effect of the word, whether preceded by my 
 or the, or followed by at or in, or in the singular or plural 
 number. The intent with which it is used is the decisive 
 consideration; and I should not feel myself sanctioned in 
 refining away the operation of that intent by discriminations 
 so minute as those which have been attempted at different 
 stages of English jurisprudence. The word estate, in testa- 
 mentary cases, is sufficiently descriptive both of the subject 
 and the interest existing in it. It is unquestionably true, 
 that its meaning may be restricted by circumstances or ex- 
 pressions indicative of its being used in a limited or particu- 
 
 " Williams' Real Prop. 203; East *'3 Wash. R. P. 181. 
 
 Jersey Iron Co. v. Wright, 32 N. J. ^s Jamaica Pond Aqueduct Corpo- 
 
 Eq. 252 ; Barksdale v. Hairston, 81 ration v." Chandler and others, 91 
 
 Va. 765- Mass. 159, Bigelow, J. 
 7 
 
98 REAL PROPERTY. 
 
 lar sense, so as to confine it to the subject alone ; but cer- 
 tainly, in its general use, it is understood to apply more 
 pertinently to the interest in the subject." 
 
 § 40. Legal incidents of estates in fee. There are certain 
 ineradicable features that characterize every estate in fee 
 simple, and most prominent among those features is that of 
 free alienation. Any attempt to fasten such conditions upon 
 the estate, -which in any way abridges the power of aliena- 
 tion is absolutely void. Such restraints are fundamentally 
 hostile to the very nature and idea of a fee simple." The 
 integrity of the estate as a fee simple is annihilated by the 
 intrusion of any principle that subverts the right of the 
 owner to dispose of it unconditionally. 
 
 The language of the foregoing text may be subject to some 
 modification in regard to partial restrictions affecting the 
 future use of the property. And numerous instances may 
 be adduced where the grantee, although taking an estate in 
 fee simple, is obliged to observe the condition that the prem- 
 ises shall not be used for the distilling or vending of intoxi- 
 cants or for hospital purposes, or like employments obnoxious 
 to the peace and morality of the community. Another neces- 
 sary incident of a fee simple estate is its liability to sale 
 upon execution by the sheriff of the county in satisfaction of 
 debts due from its owner." So, too, it is subject to the rights 
 of dower and curtesy. But these topics are reserved for dis- 
 cussions in subsequent chapters. It should be added that 
 their use, during the lifetime of the owner of the fee, may 
 be forfeited for treason. See U. S. Const, art. 3, sec. 3, but 
 it is customary to speak of the fee simple as an absolute 
 estate in lands, an estate that is beyond the control of any 
 limitation or condition whatever, and it must always be 
 borne in mind that even this estate is subject to the para- 
 mount right of the State in the exercise of eminent domain. 
 
 ^"McCleary V. Ellis, 54 Iowa, 311; 380 ; Atlantic Dock Co. v. Lavitt, 
 
 Mandlebaum v. McDonnell, 29 54 N. Y. 35 ; Linzee v. Mixer, loi 
 
 Mich. 78; Walker v. Vincent, 19 Mass. 512. 
 
 Pa. St. 369; Depeyster v. Michael, *' Hayes v. Jackson. 6 Mass, 149; 
 
 6 N. Y. 467. Sands v. Lindham, 27 Gratt. 91. 
 
 *' Steines v. Dorman, 25 Ohio St. 
 
ESTATES IN FEE SIMPLE. 99 
 
 No man s property can be held absolutely inviolate. It is not 
 his to do with as he pleases in legal strictness, and repeated 
 instances occur in which the State arbitrarily appropriates 
 either all or a portion of his landed property for public pur- 
 poses, while in doing this it incurs no further liability than 
 is represented by the payment of such actual damages as the 
 proprietor can show he had received. Again, there is an 
 implied obligation on the part of every owner to so use his 
 property as to avoid unnecessary Joss and damage to his 
 neighbor." 
 
 It is an estate of perpetuity, and confers an unlimited power 
 of alienation, and no person is capable of having a greater 
 estate or interest in land. Every restraint upon alienation is 
 inconsistent with the nature of a fee simple, and if a partial 
 restraint be annexed to a fee, as a condition not to alien for 
 a limited time, or not to a particular person, it ceases to be a 
 fee simple, and becomes a fee subject to a condition." 
 
 In the case of Mandelbaum v. McDonnell, 29 Mich. 78 ; s. c. 
 18 Am. Rep. 61, decided by the Supreme Court of Michigan in 
 1874, it is declared that, "there never has been a time since 
 the statute quia emptores when a restriction in a conveyance 
 of a vested estate in fee simple, in possession or remainder, 
 against selling for a particular period of time, was valid by 
 the common law, and a condition of restriction which would 
 suspend all power of alienation for a single day is inconsist- 
 ent with the estate granted, unreasonable and void. ' ' (Good 
 prior to statute quia emptores.^ In this case Justice Christiancy 
 says that "At common law, however, prior to the statute 
 quia emptores, a condition against alienation would in England 
 have been good, because prior to that statute the feoffor or 
 grantor of such an estate was entitled to the escheat on fail- 
 ure of heirs of the grantee, which was properly a possibility 
 of reverter, and was treated as a reversion ; so that the vendor 
 did not, by the feoffment or conveyance, part with the entire 
 estate; but this reversion, dependent on this contingency, 
 remained in him and his heirs, which gave them an interest 
 to insist upon the condition and take the benefit accruing to 
 them upon the breach," and that "whether the statute quia 
 
 *^ People V. Salem, 20 Mich. 479. " 4 Kent's Com. 5. 
 
lOO REAL PROPERTY. 
 
 emptores ever became effectual in any of the United States by 
 express or implied adoption, or as a part of the common law, 
 we need not inquire, since it is clear enough that no such 
 statute was ever needed in this State, if in any of the West- 
 ern States, as no such right of escheat or possibility of 
 reverter ever existed here in the party conveying the estate ; 
 but the escheat could only accrue to the sovereignty — the 
 State. And, therefore, the question of the right to impose 
 such conditions or restrictions stands here upon common law 
 reasons, as it has stood in England since the statute in 
 question. ' ' 
 
 An estate in fee in land carries with it all metals and min- 
 erals thereunder, unless the metals and minerals are excepted 
 in the conveyance or ' ' have been before severed in ownership, 
 and the right thereto vested in some other person." The sur- 
 face and the metals and minerals may be a distinct property 
 from each other by separate conveyances from individuals." 
 Minerals in place are land. They are subject to conveyance. 
 The surface right may be in one man and the mineral right 
 in another. Both in such a case are land owners. They own 
 separate and distinct corporeal hereditaments."" 
 
 The owner of land may convey a surface estate in fee in 
 it, and reserve to himself an estate in fee in the minerals, or 
 any particular species of them, in which case the vendee 
 holds a distinct and separate estate in the surface or soil, 
 and the vendor holds a distinct and separate estate in the 
 minerals. By this severance each estate is subject to the 
 laws of descent, of devise, of conveyance." 
 
 Also, by the severance, each estate is as distinct property 
 in the respective owners as is the property in a two-story 
 house, where the title to the lower story is in one person and 
 the title to the upper story is in another person. An action 
 of ejectment will lie in behalf of the owner of the surface to 
 recover it ; also an action will lie in behalf of the owner of 
 the mineral estate to recover it; also the right of either 
 owner may be barred by the~ statute of limitations. 
 
 By the policy of our laws it is of the very essence of an 
 
 *^ Bingham, Sales of Real Prop- *' Adam v. Briggs Iron Co. 7 
 arty, p. 288. Cush. 361. 
 
 "Caldwell v. Fulton, 31 Pa. 475. 
 
ESTATES IN FEE SIMPLE. lOI 
 
 estate in fee simple absolute, tliat the owner, who is not 
 under any personal disability imposed by law, may alien it 
 or subject it to the payment of his debts at any and all times ; 
 and any attempt to evade or'eliminate this element from a fee 
 simple estate, either by deed or by will, must be declared 
 void and of no force." 
 
 A conveyance of coal underlying land is not only a fee 
 simple grant of the coal, but also of the space left after the 
 removal of the coal. The tunnel, or shaft bore is, in other 
 words, included in the fee" So the surface of the land may 
 be separated from the different stratifications underneath, 
 and there may be as many different owners as there are 
 stratifications. {lb.) These different ownerships may involve 
 rights of access in the nature of an easement upon the land 
 of the surface proprietor, who has made the first grant to 
 other parties of sub-surface rights.'" As the cases last cited 
 have attracted considerable attention, I would especially 
 invite attention to the concurring opinion of Judge Williams 
 m the Mellon case, where these peculiar rights are elabo- 
 rated in the most instructive manner. 
 
 It is familiar law that the owner of the surface may sell 
 the right to mine beneath the surface, and again sell to 
 others the right to bore for oil or gas under the coal stratum. 
 In such instances, each has a way of necessity to reach his 
 possession ; the grantee of the coal owns the coal, but noth- 
 ing else save the right of access to it. The estate is deter- 
 minable upon the removal of the coal, and the estate so 
 acquired owes a servitude of support to the surface. To 
 accomplish this support of the surface, the proprietor of the 
 coal stratum must leave pillars of sufficient size to prevent 
 the caving in, or settling, of the land above his grant, and he 
 is obliged in all respects, to observe the just rights of other 
 owners above or below him. Such rights are corporeal 
 hereditaments, and as such, the subjects of both legal and 
 equitable cognizance." 
 
 *«See Hobbs v. Smith, 15 Ohio "Chartier's Block Coal Co. v. 
 
 St. 419. Mellon, 152 Pa. St. 286. 
 
 " Lillebridge v. Lackawanna Coal "Lee v. Bungardner, 86 Va. 
 
 Co., 143 Pa. St. 15. 315; Chartier's Block Coal Co. v. 
 
T02 REAL PROPERTY. 
 
 The Pennsylvania courts have decided that a transfer of 
 all the coal, in or under a given surface, even though taking 
 the form of a lease, which is terminable at a fixed period, is in 
 contemplation of law, and in matter of fact, a sale of the coal, 
 and a valid grant of it in fee as a severed parcel of land. 
 This doctrine is fully developed in Sanderson v. Scr anion, 105 
 Pa. St. 472. It should be added that the doctrine so an- 
 nounced, is not free from doubt, and if decided to be of gen- 
 eral application, it should be rigidly restricted to mineral 
 leases. The argument by which the decision is sustained, is 
 grounded upon those well recognized rules of interpretation 
 which require such a construction as will effectuate the intent 
 of the parties, wherever this can be done without violence to 
 legal rules and maxims. 
 
 A grant of the exclusive right to take all the coal in a 
 piece of land, without limit as to time, and coupled with an 
 obligation to mine the coal or to pay for it if not mined, is a 
 grant of an estate in fee in the coal as a separate parcel of 
 land." 
 
 It has come to be the generally accepted doctrine in this 
 country that a person who is owner of real estate, personal 
 property or choses in action, or who has an interest therein 
 may grant, convey or assign his right or interest, without 
 the assent or acquiescence of any third person, and that the 
 grantee or assignee will take, hold and enjoy the property so 
 acquired in the same manner and with the like rights that 
 his grantor or assignor had. The law has always been very 
 liberal in permitting assignments of choses in action, and 
 
 Mellon, 152 Pa. St. 286: Pa. Gas. Pa. 15; 14 Morrison, Min. Rep. 48; 
 
 Co. V. Versailles Co., 131 Pa. St. Sanderson v. Scranton, 105 Pa. 469; 
 
 532. Delaware, L. &. W. R. Co. v. Sander- 
 
 " Caldwell V. Fulton, 31 Pa. 475; son, 109 Pa. 583; 50 Am. Rep. 743: 
 
 3 Morrison, Min. Rep. 238; Cald- Woodward v. Deleware, L. & W. R- 
 
 well V. Copeland, 37 Pa. 427 ; i Co. 121 Pa. 344; Eley's Estate, 103 
 
 Morrison, Min. Rep. 189; Arm- Pa. 300; Fairchild v. Fairchild (Pa.) 
 
 strong V. Caldwell, 53 Pa. 284; 13 April 25, 1887; Chester Emery Co. 
 
 Morrison, Min. Rep. 252; Clement v. Lucas, 112 Mass. 424; 3 Morri- 
 
 V. Youngman, 40 Pa. 341 ; 5 Morri- son, Min. Rep. 343; Massot v. 
 
 son, Min. Rep. 230: Kierv. Peter- Moses, 3 S. C. N. S. 168; 16 Am. 
 
 son, 41 Pa. 357 ; 8 Morrison, Min. Rep. 697 ; 8 Morrison, Min. Rep. 
 
 Rep. 499; Scranton v. Phillips, 94 607. 
 
ESTATES IN FEE SIMPLE. IO3 
 
 now permits the assignee to sue and recover thereon in his 
 own name. The lessor of real estate may convey his rever- 
 sion, and his grantee will be entitled to the rents accruing 
 thereafter, or he may assign the reversion, reserving the 
 rents, or assign the rents due and to become due. In either 
 case when the rents are assigned, the assignee may sue and 
 collect them in his own name under our statute." 
 
 Property is abandoned when it is thrown away or its posses- 
 sion is voluntarily forsaken by the owner — in which case it 
 will become the property of the first occupant. To abandon 
 land there must be a concurrence of the act of leaving the 
 premises vacant, so that they may be appropriated by the 
 next comer, with an intention of not returning." 
 
 Forfeiture of estate, and corruption of blood, under the 
 laws of the United States, and including cases of treason, are 
 abolished." Forfeiture of property, in cases of treason and 
 felony, was a part of the common law, and may exist at this 
 day in the jurisprudence of those States where it has not 
 been abolished by their constitutions or by statute. But it 
 is understood that there is at present no forfeiture in the 
 United States for felony ; and in only a few of the States for 
 treason." 
 
 § 41. The principle of involuntary alienation examined. 
 
 Involuntary alienation. The celebrated case of Brandon v. 
 Robinson, 18 Ves. 429, has been a prolific source of legal con- 
 troversy both in England and in this country. In that case 
 Lord Eldon, acting in the interests of the creditor class, for- 
 mulated the doctrine that real property could not be so 
 limited as to vest in one man for life without being sub- 
 jected to the payment of his debts. This theory has had a 
 partial recognition on this side of the Atlantic." But the 
 more humane policy of the New York statute law admits of 
 inalienable trusts for the maintenance of the unfortunate. 
 And the great case of Nickols v. Eaton, 91 U. S. 716, has seri- 
 
 " Perrin v. Lepper, 34 Mich. 292. " See Tillinghast v. Bradford, 5 
 
 " Jubsom V. Malloy, 40 Cal. 310. R. I. 206; Mclvain v. Smith, 42 Mo. 
 
 "Laws of U.S. of 1790, ch. 9, 45; Haramersley v. Smith, 4 Whart. 
 
 sec. 24. (Pa.) 122; Hallett v. Thompson, 5 
 
 '« Vide, 2 Kent's Com. 386. Paige, 583. 
 
I04 REAL PROPERTY. 
 
 ously demoralized the Brandon decision of Lord Eldon. In 
 an opinion of exceptional vigor, Mr. Justice Miller argues 
 for the proposition that where the estate has been created 
 for the benefit of another, and by the terms of the instru- 
 ment so creating, it is expressly provided that the estate 
 shall be free from any liability for the grantee's debts, cred- 
 itors must respect this exemption. It will be readily con- 
 ceded that it is the first duty of a parent or near relative to 
 provide for those of his kindred who, from vicious habits 
 or incurable disease, are in danger of becoming a charge 
 upon the community. It will be also admitted that the estate 
 so created comprises nothing which a creditor of the donee 
 originally had any right to look to for indemnity — it repre- 
 sents no fund created from the property of the debtor — it is 
 not the result of his thrift or self-denial, but comes entirely 
 from an outside source, and there is neither justice nor good 
 sense nor any requirement of public policy that should pre- 
 vent the donor from hedging his benefaction with such safe- 
 guards as may best protect the improvident objects of his 
 bounty from the greed of creditors. Nichols v. Eaton has 
 been subjected to some very drastic criticisms from eminent 
 specialists in the law, and it is still fashionable, in certain 
 quarters, to refer to it with scant respect. The wind always 
 howls loudest around the highest peaks. But we have suffi- 
 cient confidence in the exalted character of the tribunal that 
 pronounced that decision to believe that it will never recede 
 from the rule it formulated. It is bottomed upon sturdy 
 good sense, an element too frequently lacking, in judicial 
 exposition, and the Anglo-maniacs who always see celestial 
 marvels in the mere dictum of an English peer, must digest 
 their spleen in the reflection, that other courts of last resort^ 
 in our various State jurisdictions, sanction and uphold the 
 ruling of the Supreme Court of the United States. " 
 
 § 42. Instances of involuntary alienation. This term im- 
 ports an alienation of property by judicial decree, under the 
 sanction of which, real property is sold, usually by the sheriff 
 
 "See Broadway Bank v. Adams; nett's App. 46 Pa. St. 392; Still v. 
 Frazer v. Barnam, 4 Greene, 316; Spear, 45 Pa. St. 168. 
 Pope V. Elliott, 8 B. Mon. 56; Bar- 
 
ESTATES IN FEE SIMPLE. I03 
 
 or a referee appointed for the purpose, in order to satisfy 
 the claim of some judgment creditor. The subject is only- 
 alluded to in this connection, as it more properly appertains to 
 "title acquired by execution," extended treatment of which 
 will be found at page . Perhaps we should add that pro- 
 ceedings, under the power of eminent domain, afford an apt 
 illustration of this particular species of alienation. The 
 term is used in contradistinction of what is commonly recog- 
 nized as a pure volitional act — one to which the party fully 
 and freely consents, without being moved thereto by some 
 judicial process. Blackstone enumerates four distinct 
 methods of alienation, or common assurances: i, by deed; 
 2, by matter of record; 3, by special custom; and 4, by 
 devise. (2 Bl. Com. c. 20.) In this country, the power of 
 alienation is not a necessary incident to a life estate in real 
 property, whether the interest is legal or equitable." In- 
 stances of involuntary alienation frequently occur in cases 
 where real property has been sold for unpaid taxes and a 
 sheriff's deed has issued after the period of redemption to 
 the purchaser of the tax certificate. °° 
 
 § 43. Who may be freeholders. When it is considered that 
 all investiture of property is the direct result of some con- 
 tractual relation existing between grantor and grantee, we 
 
 '' Nichols V. Eaton, 91 U. S. 725. Absolute alienation is a transfer of 
 '"Alienation is any method where- realty without conditioner qualifi- 
 by an estate is voluntarily resigned cation. Conditional alienation is a 
 by one man and accepted by an- transfer of realty made to rest upon 
 other, whether that be effected by some event yet to happen, or upon 
 sale, gift, marriage, settlement, de- some act yet to be done ; as a cove- 
 vise, or other transmission of prop- nant to convey an estate. (See 
 erty by the mutual consent of the condition.) Blackstone describes 
 parties. (2 Bl. Com. 287.) An act four modes of alienation or transfer 
 whereby one man transfers the of title to real estate which he calls 
 property and possession of lands, "common assurances;" by matter 
 tenements, or other things, to an- z« ^aw or deed ; by matter of record 
 other. (Boyd v. Cudderback, 31 in the courts; by special custom; 
 111. 119 [1863]; I N. Y. 48.) Atrans- by devise. (United States v. 
 fer short of a conveyance of the Schurz, 102 U. S. 397 [1880] ; 2 Bl. 
 title is not an alienation of an es- Com. 294.) Cited from Anderson's 
 tate. (Masters v. Madison County Law Diet. 
 Ins. Co., II Barb. 630, 629 [1852]; 
 
I06 REAL PROPERTY. 
 
 shall have no difficulty in determining the question, who 
 may be freeholders. In a general sense all persons are capa- 
 ble of holding real estate. Theoretically, it may be claimed, 
 that even persons non compos possess this capacity. And in 
 the broadest equitable sense, there are but few instances 
 where the disability is of so serious a character as to exclude 
 the right of possessing property. Both law and equity at all 
 times favor the free interchange of property as comporting 
 with our instincts as a free and commercial people, and there 
 is no record of any legislation that has attempted to abridge 
 or restrict this right. A vendor is never required to inquire 
 into the mental status or social status of his vendee, and the 
 law would indulge a presumption of the perfect sanity of 
 all persons as one of natural condition. 
 
 It is only where the mental condition of the vendee is 
 openly and obviously trenching upon a state of utter irre- 
 sponsibility, that the contract by which he becomes a free- 
 holder may be avoided. This subject will be critically 
 examined further on. But here it is sufficient to remark 
 that such avoidance is based upon a violent presumption of 
 fraud, on the part of the vendor or grantor. Even infancy, 
 which forms a sufficient plea, in many instances, for the 
 annulment of a contract, is, as regards a freeholder, an un- 
 availing plea, because the law assumes that some species of 
 estate is absolutely essential to his welfare. 
 
 A broad generalization is usually subject to the criticism 
 of inaccuracy, and perhaps is not calculated to meet every 
 conceivable case, and hence, when it is asserted that all per- 
 sons are capable of holding freehold estates or estates in fee, 
 it must be understood that there are a few exceptions. Under 
 the common law alienage was conspicuously one of those ex- 
 ceptions, but on this side of the Atlantic this disability has 
 almost entirely disappeared, through the influence of express 
 legislation. The Massachusetts statute goes so far as to de- 
 clare that non-resident aliens may take land by descent. *' And 
 in New York the extreme limit of comity is reached by declar- 
 ing that the children of a resident alien inherit his real estate 
 interest on his death intestate, as legal heirs ; although they 
 
 " Lumb V. Jenkins, loo Mass. 537. 
 
ESTATES IN FEE SIMPLE. 10/ 
 
 are themselves non-resident aliens." In a few jurisdictions, 
 however, the common law rules in this respect are still 
 enforced." 
 
 In regard to corporations the rule is universal in this 
 country that they may take, hold and dispose of real estate, 
 for any purpose whatever not inconsistent with their charter 
 rights that may advance or facilitate the object of their cre- 
 ation." 
 
 a. Incidents of corporate ownership. The corporation is 
 clothed everywhere with the charter and the powers given 
 to it by the statute creating it, where its existence is recog- 
 nized by State comity." 
 
 The rule firmly established by authority is, that a corpo- 
 ration of one State can take and hold lands in another State 
 by purchase or mortgage, when consistent with its charter, 
 and not prohibited by positive law. " 
 
 The capacity of a foreign corporation to take and hold title 
 to real estate cannot be raised collaterally. Such a question 
 can only be made in behalf of the State in a direct pro- 
 ceeding." 
 
 In the case of Ramsey v. Ins. Co., 55 111. 314, the court uses 
 this language : " It is the settled rule, that a party who has 
 contracted with a corporation de facto, is never permitted to 
 
 "Goodrich v. Russell, 42 N. Y. ij Ohio St. 537; Leazure v. Hille- 
 
 177 ; Luhrs v. Eimer, 80 N. Y. 171. gas, 7 Serg. & R. 313 ; Fairfax v. 
 
 ^' Crane v. Reader, 21 Mich. 24, Hunter, 7 Cranch, 603; Runyan v. 
 
 "Ketchum v. Buffalo, 14 N. Y. Coster, 14 Pet. 123; Bk. v. Mont- 
 
 356. gomery, 2 Scam. 423 ; Merrick v. 
 
 65 Bk. V. Earle, 13 Pet. 519 ; Story, Van Santvoord, 34 N. Y. 214 ; Bk. 
 
 Confl. L. (2d ed.), sees. 37, 38 ; Head v. Godfrey, 23 111. 579 ; State v. 
 
 V. Prov. Ins. Co., 2 Cranch, 127; Sherman, 22 Ohio, 433; Page v. 
 
 Root V. Godard, 3 McLean, 102 ; Heineberg, 40 Vt. 81 ; N. Y. Dry 
 
 Hayden V. Davis, Id. 276. Dock v. Hicks, 5 McLean, in; 
 
 6* Note to 2 Kent's Com. (12th Farmers' Loan- & Trust Co. v. Me- 
 ed), 283 ; Lumbard v. Aldrich, 8 N. Kinney, 6 McLean, i ; Henriques 
 H. 31 ; Libbey v. Hodgdon, 9 N. H. v. Dutch West India Co., 2 Ld. 
 396; State V. R. R. Co., 25 Ver. Raym. 1533. 
 
 433; Lathrop v. Bk., 8 Dana (Ky.), " Haugh v. Cook Co. Land Co. 
 
 114; Bk. V. North, 4 Johns. Ch. 73 HI- 23; People v. Mauran, 5 Den. 
 
 370; Baird v. Bk., 11 Serg. & R. 399; Page v. Heinberg, 40 Ver. 81 ; 
 
 411 ; Thompson v. Swoop, 24 Pa. Brown v. Phillipps, 16 Iowa, 210. 
 474; Am. Bible Society v. Marshall. 
 
I08 REAL PROPERTY. 
 
 allege any defect in its capacity to contract or sue. All such 
 obligations, if valid, are duly available on behalf of the sov- 
 ereign power of the State."" 
 
 Where there is a right in the grantee to take and hold land 
 for any purpose, if there is a capacity in the vendor to con- 
 vey, there is a complete sale as soon as the conveyance is 
 made, and if the corporation in purchasing violates or abuses 
 the power to do so, that does not concern the vendor or 
 his heirs; it is a matter between the State and the cor- 
 poration." 
 
 Even if the society was unincorporated, so that it would 
 have no legal capacity to take by deed, the grantor and his 
 heirs are estopped by the covenant of warranty from ques- 
 tioning the capacity of the grantee." 
 
 The power of a foreign corporation to hold lands in the 
 State of Illinois has been denied by its highest judicial 
 authorities. The Supreme Court has held that ' ' A corpora- 
 tion created in another State for the sole purpose of buying 
 and selling lands, has no power to purchase and hold the title 
 to lands in this State, as it is against the general policy of 
 our legislation on the subject of domestic corporations, and 
 would tend to create perpetuity ; that it is well settled that a 
 corporation created in our State cannot exercise its functions 
 in another State or sovereignty, without permission of the 
 latter, express or implied ; that the right to such exercise of 
 its functions depends upon comity, and that such comity is 
 inadmissable when contrary to its policy or prejudicial to its 
 interests."" 
 
 The principles above enunciated were afterwards, by the 
 same court, fully recognized and affirmed in Starkweather v. 
 Am. Bible Society, 72 111. 55. 
 
 88 Stone V. Oil Co., 41 111. 85; 96; Myers v. Croft, 13 Wall. 295; 
 
 Bradley v. Ballard, 55 111. 414; 80 U. S. XX. 563; Laud v. Hoff- 
 
 Bowen v. Cross, 4 Johns. Ch. 373; man, 12 Am. Law Reg. (N. S.), 146. 
 
 Glass Co. V. Dewey, 16 Mass. 94; '"Terrettv. Taylor, 9Cranch.43; 
 
 Smith V. Sheeley, 12 Wall. 361; 79 Carver v. Jackson, 4 Pet. i; Big. 
 
 U. S. XX. 431. Estop. 276; Buckingham v. Hanna, 
 
 " Chambers v. St. Louis, 29 Mo. 2 Ohio St. 558. 
 
 576; Grant, Corp. 113; Doe, ex "Carroll v. E. St. Louis, 67 111. 
 
 dem. Hayne v. Redfern, 12 East. 568. 
 
ESTATES IN FEE SIMPLE. IO9 
 
 The principle thus established has become a rule of prop- 
 erty, and will be recognized by the courts as such." 
 
 The State courts will follow State rulings though un- 
 settled, taking the last decision as their guide." 
 
 b. Domicile of corporation. Although, as a general proposi- 
 tion, a corporation must dwell in the State under whose laws 
 it was created, its existence as an artificial person may be 
 acknowledged and recognized in other States. ' ' Its residence 
 in one State creates no insuperable objection to its power of 
 contracting in another." If the policy of the State or Terri- 
 tory does not permit the business of the foreign corporation 
 in its limits, or allow the corporation to acquire or hold real 
 property, it must be expressed in some affirmative way ; it 
 cannot be inferred from the fact that its Legislature has 
 madfe no provision for the formation of similar corporations, 
 or allows corporations to be formed only by general law. 
 Telegraph companies did business in several States before 
 their Legislatures had created or authorized the creation of 
 similar corporations ; and numerous corporations existing by 
 special charter in one State are now engaged, without ques- 
 tion, in business in States where the creation of corporations 
 by special enactment is forbidden." In harmony with the 
 general law of comity obtaining among the States composing 
 the Union, the presumption should be indulged that a cor- 
 poration of one State, not forbidden by the law of its being, 
 may exercise within any other State the general powers con- 
 ferred by its own charter, unless it is prohibited from so 
 doing, either in the direct enactments of the latter State or 
 by its public policy to be deduced from the general course of 
 legislation or from the settled adjudications of its highest 
 court. 
 
 « Beauregard v. New Orleans, 18 U. S., XVII, 261 ; Williams v. Kirt- 
 
 How. 497, 59 U. S., XV, 469; Pease land, 13 Wall. 306, 80 U. S., XX., 
 
 V. Peck, 18 How. 595, 59 U. S., XV, 683 ; Walker v. State Harbor 
 
 518; Congdon v. Goodman, 2 Comrs. 17 Wall. 650, 84 U. S., XXI 
 
 Black, 574, 67 U. S., XVII, 257 ; 744 ; Strader v. Graham, 10 How. 
 
 Gardner V. Collins, 2 Pet. 58. 82; Jackson v. Chew, 12 Wheat. 
 
 "Dred Scott v. Sandford, 19 153; Christy v. Pridgeon, 4 Wall. 
 
 How. 393, 60 U. S., XV, 691 ; Lef- 196, 7i U. S., XVIII, 322. 
 
 fingwell V. Warren, 2 Black, 599,67 " Runyan v. Coster, 14 Pet. 122. 
 
TIO REAL PROPERTY. 
 
 c. Rights of foreign corporations. In Carroll v. E. St. Louis, 
 6y 111. 568, the question before the court was, whether the 
 Connecticut Land Company, a corporation created in another 
 State for the sole purpose of buying and selling lands, had 
 power to purchase and hold title to lands in the State of Illi- 
 nois. The decision was that it could not, for the reason — 
 and no other is assigned — that if the company were per- 
 mitted to exercise its functions in Illinois to the full extent 
 authorized by its charter, it could acquire lands without 
 limit as to quantity, and hold them in perpetuity ; that such 
 privileges had never been accorded by Illinois to her own 
 domestic corporations, and were inconsistent with her settled 
 public policy against perpetuities ; as indicated not by direct 
 express enactment, but with absolute certainty, by the gen- 
 eral course of its legislation from the very organization of 
 the State. 
 
 Two of the judges dissented from the opinion, so far as it 
 held invalid a transfer of land by the corporation to a pur- 
 chaser. 
 
 The subsequent case of Starkweather v. Bible Society, 72 111. 
 50, involved the title to certain real estate, an undivided in- 
 terest in which was devised by one Starkweather to the trus- 
 tees of the American Bible Society, established in 18 16, to 
 have and to hold the same for its use, but not to be entitled 
 to the same, or its income, until his youngest child became 
 of age. The claim of the Bible Society was denied by the 
 court, upon the following grounds: i. That by the laws of 
 New York, as declared by the highest court of that State, it 
 had not the capacity to take title to real property in New 
 York by devise; 2, That New York had no power to create 
 a body incapable of taking land in that State by devise, and 
 yet with power to so take lands in a foreign jurisdiction ; 3, 
 And by way of argument, that if New York was to so enact, 
 and other States were to so consent, then such bodies might 
 so receive and hold lands; but, said the court, the former 
 had not so enacted, nor had Illinois so consented, since, when 
 the will of Starkweather was probated, September 16, 1867, 
 there was no statute of Illinois which authorized foreign cor- 
 porations to hold lands by devise in that State ; 4, The prin- 
 ciples announced in Carroll v. E. St. Louis were regarded as 
 
ESTATES IN FEE SIMPLE. 1 1 I 
 
 conclusive against the claim of the Bible Society, " as, " said 
 the court, "all of the inconveniences and injuries are as 
 likely to ensue in this, and other cases like it, as in that;" 
 5, The devise being' illegal and void, the court could not de- 
 cree a sale of the real estate devised and direct the payment 
 of the proceeds to the society. 
 
 § 44. Federal legislation on the subject of alienage. By 
 
 Congressional enactment in 1888, Congress placed itself on 
 record in positive and unequivocal terms in regard to a very 
 essential feature of alien holdings, as will be seen from the 
 subjoined text. Nothing but the chronic inertia of the Attor- 
 ney-General's department interferes with some very spirited 
 litigation. It will be observed that the restrictions apply to 
 the territories only and to the District of Columbia, but the 
 scope of this restrictive legislation will be more clearly appre- 
 hended when we consider that similar enactments are now in 
 force in many of the Western States. 
 
 An act of Congress, approved March 3, 1887 (24 St. L. 476), 
 provides that it shall be unlawful for any person or persons 
 not citizens of the United States, or who have not lawfully 
 declared their intention to become citizens, or for any corpo- 
 ration not created by or under the laws of the United States 
 or of some State or Territory, to hereafter acquire, hold, or 
 own real estate so hereafter acquired, or any interest therein, 
 in any of the Territories or in the District of Columbia, ex- 
 cept such as may be acquired by inheritance or in good faith 
 in the ordinary course of justice in the collection of debts 
 heretofore created. Provided, that the prohibition of this 
 section shall not apply to cases in which the right to hold or 
 dispose of lands in the United States is secured by existing 
 treaties to the citizens or subjects of foreign countries, which 
 rights, so far as they may exist by force of any such treaty 
 shall continue to exist so long as such treaties are in force, 
 and no longer. 
 
 Sec. 2. That no corporation or association more than twenty 
 per centum of the stock of which is or may be owned by any 
 person or persons, corporation or corporations, association or 
 associations, not citizens ^oi the United States, shall here- 
 
112 REAL PROPERTY. 
 
 after acquire or hold or own any real estate hereafter acquired 
 in any of the Territories or of the District of Columbia. 
 
 Sec. 3. That no corporation other than those organized for 
 the construction or operation of railways, canals, or turn- 
 pikes, shall acquire, hold, or own more than five thousand 
 acres of land in any of the Territories ; and no railroad, canal, 
 or turnpike corporation shall hereafter acquire, hold, or own 
 lands in any Territory, other than as may be necessary for 
 the proper operation of its railroad, canal, or turnpike, ex- 
 cept such lands as may have been granted to it by Act of 
 Congress. But the prohibition of this section shall not affect 
 the title to any lands now lawfully held by any such corpo- 
 ration. 
 
 Sec. 4. That all property acquired, held, or owned in vio- 
 lation of the provisions of this act shall be forfeited to the 
 United States, and it shall be the duty of the Attorney-Gen- 
 eral to enforce every such forfeiture by bill in equity or other 
 proper process. And in any suit or proceeding that may be 
 commenced to enforce the provisions of this act, it shall he 
 the duty of the court to determine the very right of the mat- 
 ter without regard to matters of form, joinder of parties, 
 multifariousness, or other matters not afifecting the substan- 
 tial rights either of the United States or of the parties con- 
 cerned in any such proceeding arising out of the matters in 
 this act mentioned. 
 
 Aliens who become bona fide residents may, in most of the 
 United States, inherit real property. In some jurisdictions 
 they are required to declare their intention to become citi- 
 zens, and this intention is usually evidenced by some set 
 formula duly subscribed and sworn to. In four of our States, 
 (Illinois, Iowa, Kansas and Texas), full naturalization is 
 required, time being given for that purpose. 
 
 Rights of non-resident aliens by treaty. Treaty stipulations 
 with foreign countries quite generally provide for the hold- 
 ing of lands by non-resident alien heirs for a specified 
 term (usually three years), during which they can effect a sale 
 of the property, and remove the proceeds. They have, dur- 
 ing this period, in all essentials, the co-extensive rights of 
 resident heirs, and they are held to take the fee, which is, 
 however, determinable by the non-exercise of the power of 
 
ESTATES IN FEE SIMPLE. 113 
 
 sale within the three years specified. Non-resident aliens 
 can bring a partition suit to enforce their respective rights, 
 and comprehensively it may be said, that in all particulars, 
 the remedial measures of our courts may be invoked to 
 secure any relief necessary to the preservation of their just 
 rights." It should be added, that all treaty stipulations en- 
 tered into by the federal department of State, and formally 
 ratified, become by virtue of the federal Constitution, the 
 supreme law of the land, effectually superseding all local 
 statutes that contravene in any particular the recitals of the 
 treaty. 
 
 § 45. When fee is in abeyance — Views of Judge Dixon. 
 
 A fee or freehold is said to be in abeyance when there is no 
 person in esse, in whom it can rest and abide. Though the 
 ■ law considers it as always potentially existing, when a 
 proper owner appears. It is a maxim of the common law 
 that a fee cannot be in abeyance. The maxim rests upon 
 reasons that have no existence, and it is not now of universal 
 application. Even where it still applies, it must yield to a 
 statutory provision inconsistent with it — as the confiscation 
 act of 1862; and it appears that the franchise of a corpora- 
 tion may be in abeyance — or a grant of land to a charity. 
 In this category also are all property rights of a bankrupt, 
 until final adjudication." 
 
 The exigencies of tenure required that the seizin or imme- 
 diate freehold should never be in abeyance, but that there 
 should at all times be a tenant invested with the seizin ready, 
 on the one hand, to meet the claims of the lord for the duties 
 and services of the tenure, and, on the other hand, to meet 
 adverse claims to the seizin, and to preserve it for the suc- 
 cessors in the title." 
 
 This rule had important effects upon the creation of free- 
 hold estates ; for it followed, as an immediate consequence of 
 the rule, as also from the nature of the essential act of con- 
 
 ■""Schultz V. Schultz, 144 111. 290; 691 ; Town of Paulet v. Clark, 9 
 
 Kull V. Kull, 37 Hun, 476. Cranch. 332; Bank v. Sherman, loi 
 
 "Andersons Law Diet, Title U. S. 406. 
 
 Abeyance. Citing Wallach v. Van " Co. Lit. 342, b ; Butler's Note, 
 
 Reswick, 92 U. S. 212; Dartmouth lb; see i Hayes Conv. (sth ed.), 
 
 College V. Woodward, 4 Wheat. 12, 14. 
 
114 REAL PROPERTY. 
 
 veyance by livery of seizin, that a grant of the freehold could 
 not be made to commence at a future time, leaving the ten- 
 ancy vacant during the interval. "Livery of seizin must 
 pass a present freehold to some person and cannot give a 
 freehold in futuro." "If a man makes a lease for life to 
 begin at Michaelmas it is void, for he cannot make present 
 livery to a future estate, and therefore in such case nothing 
 passes."" 
 
 If a conveyance be made to A for life, the remainder to the 
 heirs of B then living, and livery be made to A, Mr. Fearne 
 contends that the inheritance continues in the grantor, be- 
 cause there is no passage open for its transition at the time 
 of the livery. The transition itself may rest in abeyance or 
 expectation, until the contingency or future event occurs to 
 give it operation; but the inheritance, in the meantime, 
 remains in the grantor, for the very plain and unanswerable 
 reason that there is no person in reriim natura to receive it ; 
 and he or his heirs must be entitled, on the determination of 
 the particular estate, before the contingent remainder can 
 take place, to enter and resume the estate. He treated with 
 ridicule the notion that the fee was in abeyance, or in nubihus 
 or in mere expectation or remembrance, without any definite 
 or tangible existence, and he considered it as an absurd and 
 unintelligible fiction." 
 
 That an estate in abeyance is to be considered as in nubibus, 
 was a doctrine frequently suggested and admitted in Plow- 
 den (29 a, 35 a, 556, 563, 564), and Lord Coke, in Co. Litt. 342 b, 
 said, that an estate placed in such a nondescript situation, 
 had the quality of fame ; inter nubila caput. Such an occa- 
 sional glimpse at fairy land, serves at least to cheer us amidst 
 the disheartening gloom of the subject. °° 
 
 The argument is of a piece with that kind of reasoning once 
 employed to prove that titles to estates were "in abeyance," 
 " in nubibus" and " in gremio legis" th.e folly of which is so 
 thoroughly exposed and exploded by the severe and searching 
 logic of Mr. Fearne, in his admirable treatise on Remainders. 
 It was held, in case of a lease to one person for life, remain- 
 der to the right heirs of another still living, that no estate 
 
 "Co. Lit. 217, a; 5 Co. 94, b; " Fearne on Remainders, 452-458. 
 
 Barwick's Case. *" 4 Kent's Com. 290. 
 
ESTATES IN FEE SIMPLE. II 5 
 
 remained in the grantor ; and because there was no heir, for 
 the reason that no one can be heir during the life of his 
 ancestor, but only after his death, and because the tenant 
 took only a life estate, the remainder was said to be in abey- 
 ance, in the clouds, or in the bosom of the law. These opin- 
 ions were founded upon the very same assumption as that of 
 Justice Ventris, namely, that the remainder passed out of the 
 donor at the time of livery, and consequently that no estate 
 remained in him thereafter; and because the title must 
 always be somewhere, the advocates of the doctrine sent it 
 to the clouds; "though," says Mr. Fearne, "by some sort of 
 compromise between common sense and the supposition of 
 an estate passing out of a man, when there is no person in 
 rerum natura, no object beside hard and hardly intelligible 
 words, for the reception of it at the time of the livery, they 
 are compelled to admit such -a species of interest to remain 
 in the grantor, as upon the determination of the estate be- 
 fore the contingent remainder can take place, entitles the 
 grantor, or his heirs, to enter and reassume the estate. ' ' 
 
 The questions are so closely allied, and the substrata of 
 the two follies are so exactly alike, that Mr. Fearne's reason- 
 ing is fully in point. And it is certainly refreshing, after a 
 perplexing and vain effort to understand that which never 
 was and never will be intelligible, to take up an author, who, 
 like Mr. Fearne, treats the subject upon the principles of 
 common sense. He intimates a conviction, that instead of 
 the title to estates being in the clouds, there is a much 
 stronger possibility of caput inter nubilia condit, of the head of 
 the inventor of the fiction having been buried or hidden in 
 them. He says : " I cannot but think it a more arduous under- 
 taking, to account for the operation of a feoffment or convey- 
 ance, in annihilating an estate of inheritance, or transferring 
 it to the clouds, and afterwards regenerating or recalling it 
 at the beck of some contingent event, than to reconcile to the 
 principles as well of common law as of common sense, a sus- 
 pension of the complete, absolute operation of such feoff- 
 ment or conveyance, in regard to the inheritance, till the 
 intended channel for the reception of such inheritance comes 
 into existence." The same is true of the delivery of a deed 
 to a third person for the use of the grantee, without his 
 
Il5 REAL PROPERTY. 
 
 knowledge or previous direction. It is far more compatible 
 with common law and common sense, to say tliat its opera- 
 tion is suspended until the happening of the event indispen- 
 sable in the law to its validity, namely, an acceptance by the 
 grantee, than to make the law perform the wonderful ex- 
 ploits of vesting and recalling the title contrary to its best 
 settled and soundest principles." 
 
 In many of its essential details this entire undertaking may 
 be regarded as an amplification of the legal principles that 
 underlie estates in fee simple. The meagre treatment of the 
 topic, in this immediate connection, results from the attempt 
 to avoid reiterations, and develope the entire science of the 
 law tributary to the subject within the compass of one com- 
 pact volume. By consulting the elaborate index, the practi- 
 tioner will readily discern the scope and nature of related 
 topics, and have no difficulty in finding whatever may legiti- 
 mately appertain to a full discussion of the many ramifica- 
 tions and incidentals that accompany an estate in fee. 
 
 8' Welch V. Sackett, 1 2 Wis. 243. 
 
CHAPTER IV. 
 
 ESTATES IN FEE TAIL. 
 
 Sec. 46. Definition. 
 
 47. Origin and history. 
 
 48. Classification, general and special ; tail male and tail female. 
 
 49. How created. 
 
 50. Incidents to a tenancy in tail. 
 
 51. Rules of construction. 
 
 52. What property is subject to entailment, 
 
 53. Rules for barring the entail. Taltarum's case. 
 
 54. Statutory regulations on this subject. 
 
 55. Duty as to taxes, etc. 
 
 56. Estates tail will support both curtesy and dower. 
 
 57. The rule in Shelley's case. 
 
 58. Scant recognition of this estate in America. 
 
 59. Views of Chancellor Kent. 
 
 §46. Definition. An estate in fee tail (generally termed an 
 estate tail, is an estate of inheritance which a man has, to 
 hold to him and the heirs of his body, or to him and par- 
 ticular heirs of his body, (i Steps. Com. 228.) It is an 
 estate of inheritance by force of the statute De donis, limited 
 and restramed to some particular heirs of the donee, in exclu- 
 sion of others.' 
 
 This estate is otherwise described as having many of the 
 attributes of an estate of inheritance." The cases last cited 
 are both Massachusetts decisions, and that jurisdiction seems 
 to retain some lingering fondness for this all but obselete 
 species of estate. 
 
 Estates tail, therefore, to quote Mr. Washburn's definition, 
 "are estates of inheritance, which, instead of descending to 
 heirs generally, go to the heirs of the donee's body, which 
 means his lawful issue, his children, and through them to his 
 
 ' 2 Crabb's Real Prop. 22, 23, sec. teresting discussion of the subject 
 971 ; Cruise's Dig., tit. ii, ch. j, sec. in Wight v. Thayer, i Gray, 287, 
 12; Burrill's Law Diet. and Hall v. Thayer, 5 Gray, 523. 
 
 ' See 2 Prest. Est. 453, and an in- 
 
 ["7] 
 
Il8 REAL PROPERTY. 
 
 grandchildren, in a direct line, so long as his posterity- 
 endures in a regular order and course of descent, and upon 
 the death of the first owner without issue, the estate deter- 
 mines.'" 
 
 An estate tail is an estate given to a man and some particu- 
 lar description of his heirs, to the exclusion of all other heirs. 
 It was originally treated as a fee simple, upon condition that 
 the grantee had the required heirs ; and, accordingly, as soon 
 as the condition was performed, by the birth of the specified 
 heirs, the estate became absolute. But as this construction 
 tended to defeat the design of creating the estate — which 
 was to tie up the property from alienation, and create a per- 
 petuity in particular families — the aristocracy of England 
 had influence enough to procure the enactment of the famous 
 statute de donis conditionalibus, the effect of which was to 
 fetter an estate tail, with the ancient restraints upon aliena- 
 tion. The estate was to go to the stipulated heirs at all 
 events, if there were such; and if not, to revert to the 
 donor.' 
 
 §47. Origin and history. The expression "fee tail" was 
 borrowed from the feudists, among whom it signified any 
 mutilated or truncated inheritance, from which the heirs 
 general were cut off ; being derived from the barbarous verb 
 tiliare, to cut ; from which the French tailler, and the Italian 
 tagliare, are formed. In a word, a fee tail is really a lesser 
 estate of inheritance, cut or carved out of a fee simple. If I 
 give land to a man and the heirs of his body, this is an estate 
 tail, for here I explain the general import of the word "heirs' ' 
 to the descendants of the body of the donee. Estates tail 
 have no practical existence in the United States, and in some 
 of the States they are wholly unknown.' 
 
 The early English judges, in their mode of constructing 
 conditional fees, gave great offense to the landed aristocracy 
 who were exceedingly solicitious for the rights of strict 
 entailment and primogeniture, as the most effectual means 
 of sustaining the grandeur and importance of the privileged 
 
 "I Washb. on Real Prop, 99; 2 * Walker's Am. Law, p. 351. 
 Prest. Est. 360 ; Williams on Real ' Tyler on Ejectment, 48. 
 Prop. 43i 44- 
 
ESTATES IN FEE TAIL. II9 
 
 classes, and preventing the free alienation of landed prop- 
 erty. To restrain this tendency on the part of the judges, 
 and to effect ulterior purposes as well, they procured the 
 enactment of the celebrated statute " de donis conditionalibus," 
 technically known as the statute of Westm. 2, 13 Edw. I, C. 
 I, but familiarly referred to as the statute •' de donis.'" The 
 judicial interpretation of this statute was to the effect that 
 where an estate was limited to a man and the heirs of his 
 body, the donee should no longer receive a conditional fee, 
 which became absolute the instant issue was born, but they 
 divided the estate into two parts, leaving the donee a new 
 kind of particular estate, which they denominated a fee tail, 
 and vesting in the donor the ultimate fee simple of the land 
 expectant on the failure of issue, which expectant estate 
 we now call a "reversion." And hence it is that tenancy 
 in fee tail is by virtue of the statute De donis conditionalibus.'' 
 It was upon the construction of this statute that estates in fee 
 tail were instituted. It was held that the donee no longer 
 had a conditional fee simple but a particular estate which 
 they denominated a fee tail as above stated. As the word 
 heirs is necessary to create a fee, so "body" or some other 
 word of procreation is necessary to create a fee tail.' Estates 
 tail general exist where lands and tenements are given to 
 one and the heirs of his body begotten. Estates tail special 
 exist where the gift is restricted to certain heirs of the donee's 
 body as "to the heirs of his body, to be begotten by his 
 present wife." 
 
 §48. Classification, general or special; tail male and tail 
 female. Estates tail are either general or special. 
 
 Tail general is where lands and tenements are given to 
 one and the heirs of his body begotten ; which is called tail 
 general, because how often soever such donee in tail be mar- 
 ried, his issue in general by all and every such marriage is, 
 in successive order, capable of inheriting the estate tail, per 
 formamdoni.' 
 
 Tenant in tail special is where the gift is restrained to cer- 
 
 ' See Co. Litt. 21. ' 2 Bl. Com. 1 14. 
 
 ' 13 Edwd. I, A. D. 1286, chap, i ; » Litt. sec. 14, 15. 
 2 Bl. Com. 112. 
 
I20 REAL PROPERTY. 
 
 tain heirs of the donee's body, and does not go to all of them 
 in general. And this may happen several ways. One is, 
 where lands and tenements are given to a man, and the heirs 
 of his body, on Mary his now wife to be begotten. Here no 
 issue can inherit, but such special issue as is engendered be- 
 tween them two ; not such as the husband may have by 
 another wife, and therefore it is called special tail. And 
 here we may observe that the words of inheritance (to him 
 and his heirs) give him an estate in fee, but they being heirs 
 to be by him begotten, this makes it a fee tail ; and the per- 
 son being also limited, on whom such heirs shall be begotten 
 (viz. , Mary, his present wife), this makes it a fee tail special. '° 
 Estates, in general and special tail, are farther diversified 
 by the distinction of sexes in such entails ; for both of them 
 may either be in tail male or tail female. As if lands be 
 given to a man, and his heirs male of his body begotten, this 
 is an estate in tail male general ; but if to a man and the 
 heirs female of his body on his present wife begotten, this 
 is an estate in tail female special. And in an entail male, 
 the heirs female shall never inherit, nor any derived from 
 them ; nor e converso, the heirs male, in case of a gift in tail 
 female." Thus, if the donee in tail male hath a daughter, 
 who dies leaving a son, such grandson in this case cannot 
 inherit the estate tail, for he cannot deduce his descent 
 wholly by heirs male." And as the heir male must convey 
 his descent wholly by males, so must the heir female wholly 
 by females. And therefore if a man hath two estates tail, 
 the one in tail male, and the other in tail female ; and he hath 
 issue a daughter, which daughter hath issue a son, this grand- 
 son can succeed to neither of the estates, for he cannot con- 
 vey his descent wholly either in the male or female line." 
 
 §49. How created. The words "heirs of the body" or 
 "heirs lawfully begotten of the body" are appropriate to 
 create an estate tail, and it is well settled that their use or 
 an equivalent expression are words of limitation to be con- 
 strued as creating such an estate in the absence of any other 
 words in the conveyance, from which it can be reasonably 
 
 '"> See Litt sec. 16, 27, 28, 29. '« Litt. sec. 24. 
 
 " Litt. sec. 21, 22. " I Inst. 25; Jacob's Law Diet. 
 
ESTATES IN FEE TAIL. 121 
 
 inferred that they were not used in their technical sense." 
 An instrument "will not be construed to create an estate tail, 
 if it will allow any other construction without destroying 
 the language." 
 
 So long as there are heirs in tail capable of taking by the 
 form of the gift, there can be no limitation over to heirs gen- 
 eral. The very nature of an estate tail is, that it is an estate 
 of inheritance limited to a particular class of heirs ; the legal 
 construction put on it is, that it divides the inheritance, or 
 general estate in fee, making a particular estate to the donee 
 in tail and the special heirs, and leaving an estate in the 
 donor, which he may limit over, by way of remainder, and 
 which without such limitation will revert to the donor or his 
 general heirs." It has been said, upon the authority of Lord 
 Coke (Co. Litt. 21, a,), that when a person, in the premises 
 of a deed, gives land to another and the heirs of his body, 
 habendum to him and his heirs forever, he will take an estate 
 tail, with a fee simple expectant. In tracing this proposition, 
 it will be found to be this : When it is manifest by the prem- 
 ises that the donor intends to give an estate tail, and from 
 the subsequent parts of the deed it is equally manifest that 
 he intends to give ultimately an estate in fee, it will operate 
 as a grant of a present estate tail, with a fee simple expect- 
 ant. But expectant upon what event or contingency? 
 Clearly, upon the determination of the particular estate, the 
 estate tail, by the failure of heirs in tail, which is its own 
 proper limitation. It operates by way of gift of the particu- 
 lar estate in tail, with a limitation over, by way of remain- 
 der, to the general heirs of the same donee in fee. Of course, 
 such remainder over in fee cannot take effect until the failure 
 of issue in tail. It is a question of intent, upon the particular 
 terms of the deed or will. It sometimes happens, that where 
 there is clearly a gift in tail in the premises, and the haben- 
 dum is to heirs generally, without saying "heirs of the 
 body, ' ' the subsequent words will be qualified by the preced- 
 ing, and "heirs," though not expressly qualified in the haben- 
 
 '* See True v. Nicholls, 2 Duvall, '* Breckenridge v. Denny, 8 Bush. 
 
 547 ; Brann v. Elgey, 83 Ky. 440 ; 527 ; Tucker v. Tucker, 78 Ky. 503. 
 
 Asher v. McCarty, 2 Ky. Law Rep. " 2 Inst. 335. 
 218 
 
122 REAL PROPERTY. 
 
 dum will be limited and qualified by what went before, and 
 be held to mean "heirs of the body."" 
 
 A devise to a person during his natural life, and, if he 
 leaves lawful issue, to such issue, but in case of his dying 
 without issue, or they dying under twenty-one years, then to 
 another, gives an estate tail. The word "issue" is a limita- 
 tion." 
 
 As the word ' ' heir" is necessary to create a fee, so in farther 
 limitation of the strictness of the federal donation, the word 
 ' ' body, ' ' or some other words of procreation, are necessary to 
 make it a fee tail, and ascertain to what heirs in particular 
 the fee is limited. If, therefore, either the words of inherit- 
 ance or words of procreation be omitted, albeit the other 
 words are inserted in the grant, this will not make an estate 
 tail. As, if the grant be to a man and his issue of his body, 
 to a man and his seed, to a man and his children, or off- 
 spring ; all these are only estates for life, there wanting the 
 words of inheritance, his heirs. " So, on the other hand, a gift 
 to a man, and his heirs, male or female, is an estate in fee 
 simple, and not in fee tail, for there are no words to ascertain 
 the body out of which they shall issue."" Indeed, in last wills 
 and testaments, wherein greater indulgence is allowed, an 
 estate tail may be created by a devise to a man and his seed, 
 or to a man and his heirs male ; or by any words which show 
 an intention to restrain the inheritance to the descendants of 
 the devisee." 
 
 Further, as to the effect of particular words in creating 
 estates tail. 
 
 If lands are given to the husband and wife, and to the heirs 
 of their bodies, both of them have an estate in special tail ; 
 by reason of the word heirs, for the inheritance is not lim- 
 ited to one more than the other. Where lands and tenements 
 are given to a man and his wife, and to the heirs of the body 
 of the man, the husband hath an estate in general tail, and 
 the wife an estate for life ; as the word heirs relates generally 
 to the body of the husband. And if the estate is made to the 
 
 " Buxton V. Uxbridge, lo Met. " i Inst. 20. 
 
 90. ''' Litt., sec. 31 ; i Inst. 27. 
 
 "James' Claim, i Dall. 47 (Sup. " i Inst. 9, 27; see title Will. 
 Ct. Pa.) 
 
ESTATES IN FEE TAIL. 1 23 
 
 husband and wife, and to the heirs of the body of the wife 
 by the husband begotten ; there the wife hath an estate in 
 special tail, and the husband for term of life only ; because 
 the word heirs hath relation to the body of the wife, to be 
 begotten by that particular husband. If an estate be limited 
 to a man's heirs which he shall beget on his wife, it creates 
 a special tail in the husband ; but the wife will be entitled to 
 nothing, etc." 
 
 Lands given to a man an.d woman unmarried, and to the 
 heirs of their bodies, will be an estate in special tail ; for they 
 may marry." And though lands are given to a married man 
 and another man's wife, and the heirs of their two bodies, it 
 may be a good estate tail, for the possibility of their inter- 
 marrying." 
 
 A general tail, and a special tail, may not be created at one 
 and the same time ; if they are, the general, which is greater, 
 will frustrate the special."" 
 
 It is the word ' ' body, ' ' or other words amounting to it, 
 make the entail; and a gift to the heirs male, or heirs 
 female, without anything further, is a fee simple estate, be- 
 cause it is not limited of what body. And hence a corpora- 
 tion cannot be seized in tail." 
 
 § 50. Incidents to a tenancy in tail, under the Stat. Westm. 
 2, are chiefly these : i , A tenant in tail may commit waste on 
 the estate tail, by felling timber, pulling down houses, or 
 the like, without being impeached or called to account for 
 the same ; 2, The wife of the tenant in tail shall have her 
 dower, or thirds, of the estate tail; 3, The husband of a 
 female tenant in tail may be tenant by the curtesy of the 
 estate tail ; 4, An estate tail may be barred, or destroyed, by 
 a fine, by a common recovery, or by lineal warranty descend- 
 ing with assets to the heir.^' 
 
 The establishment of this family law (as the statute de 
 donis is properly styled by Pigott), has occasioned, from time 
 to time, infinite difficulties and disputes. Children grew dis- 
 
 »'Litt , sec. 26, 28; Co. Litt., 22, « i Inst. 28. 
 26. «» I Inst. 13, 20, 27 ; Jacob's Law 
 
 " I Inst. 25 ; 10 Rep. 50. Diet. 
 
 " 15 Hen. 7. " I Inst. 224; 10 Rep. 38. 
 
124 REAL PROPERTY. 
 
 obedient when they knew they could not be set aside ; farm- 
 ers were ousted of their leases made by tenants in tail ; for, 
 if such leases had been valid, then, under color of long leases, 
 the issue might have been virtually disinherited. Creditors 
 were defrauded of their debts ; for, if tenant in tail could 
 have charged his estate with their payment, he might also 
 have defeated his issue, by mortgaging it for as much as it 
 was worth. Innumerable latent entails were produced to 
 deprive purchasers of the lands they had fairly bought ; of 
 suits in consequence of which our ancient books are full. 
 And treasons were encouraged, as estates tail were not 
 liable to forfeiture, longer than for the tenant's life. So 
 that they were justly branded, as the source of new conten- 
 tions, and mischiefs unknown to the common law, and 
 almost universally considered as the common grievance of 
 the realm.^ But as the nobility were always fond of this 
 statute, because it preserved their family estates from for- 
 feiture, there was little hope of procuring a repeal by the 
 legislature; and, therefore, by the connivance of an active 
 and political prince, a method was devised to evade it." 
 
 An estate tail may, no doubt, be subject to an executory 
 devise over on some condition or event to take effect in 
 abridgment or derogation of it. (i Preston on Abstracts, 
 401.) Though such an executory devise can be destroyed by 
 a common recovery suffered by the tenant in tail, which en- 
 larges his estate into a fee, and excludes all subsequent limi- 
 tations, whether in remainder or by the way of springing 
 use or executory devise.'" This destructability deprives any 
 limitation after an estate tail of all objection on the score of 
 tending to create a perpetuity, however remote may be the 
 event on which it is limited to vest.'" A devise over after 
 an estate tail on a definite failure of issue is not an executory 
 devise, but a remainder ; for it takes effect, not in derogation 
 or abridgment of the preceding estate, but on its regular 
 determination, though only in the event of the determina- 
 tion of the estate upon the death of the tenant. This 
 
 ^'Co, Litt. 19; Moor, 156; 10 ^"2 Preston on Estates, 460; i 
 
 Rep. 38. Preston on Abstracts, 401 ; 4 Kent's 
 
 " 2 Com., c. 7 ; Jacob's Law Diet. Com. 13. 
 
 (Ed. 1811.) '■ Lewis on Perpetuities, 663. 
 
ESTATES IN FEE TAIL. 125 
 
 Temainder has been authoritatively settled as vested," though 
 the principle of that determination had been very seriously 
 questioned." 
 
 As late as 1854 Shaw, C. J. says, in Wight v. Thayer, 67 
 Mass. 284, that estates tail, with their legal incidents, have 
 been too long and too often recognized by the comonwealth 
 to be now questioned." And the law of descent in Massa- 
 chusetts by force of which children all take equally "limits 
 the rule to estates in fee simple, ' ' and does not abrogate the 
 common law in regard to estates tail. An estate tail, though 
 created and brought into existence by deed or will, is still 
 an estate of inheritance, and when once vested, and until 
 barred, passes like other estates of inheritance by opinion of 
 the law. And though it is competent for a devisor to create 
 as many particular estates as he will to hold in succession, 
 yet it is not competent for him to alter the rules of law which 
 govern the descent of an estate, either in fee or in tail, which 
 has once vested as an estate tail. So long as there are heirs 
 in tail capable of taking by the form of the gift, there can be 
 no limitation over to heirs general. 
 
 §51. Rules of construction. It is an established rule of law 
 in Massachusetts that a devise to one, and, if he die without 
 heirs of his body, then over to another, creates an estate tail 
 in the first taker, whatever the actual intention of the tes- 
 tator may have been ; but words qualifying such a devise, 
 which show that the testator had in mind a definite failure of 
 issue on the decease of the first taker, and made provision 
 for that, will defeat such a construction." 
 
 Whether words importing a failure of issue of him to 
 whom an estate is first given import an indefinite failure of 
 issue, or a definite failure at the death of the first taker, de- 
 termines what estate has been given to him. It is only when 
 they should receive the former construction that an estate 
 tail is created. So a devise to one, and if he die without 
 
 " Smith V. Parkhurst, 18 Viner's "See Davis v. Hayden, 9 Mass. 
 
 Abr. 413 ; 4 Bro. P. C. 353. 514; Corbin v. Healey, 20 Pick. 
 
 *' Smith on Executory Interests, 514; Buxton v. Uxbridge, loMet. 87. 
 
 116; Taylor v. Taylcr, 63 Pa. St. '' Schmaunz v. Goss, 132 Mass 
 
 481. 141. 
 
126 REAL PROPERTY. 
 
 heirs of his body, then over to another, would create an 
 estate tail in the first taker, without reference to the testa- 
 tor's intent. But such qualification of the devise as would 
 conclusively show that the testator had the failure of issue 
 distinctly in mind, would prevent such a construction." 
 
 InHulburtv. Emerson, 1 6 Mass. 241, the devise was to the tes- 
 tator's son John, his heirs, executors and assigns, subject to 
 the payment of a legacy, but in case John should leave no male 
 issue, then one-half to be equally divided among his children, 
 and the other half equally among all the surviving children 
 of the testator. This was held to give John an estate in tail 
 male, with contingent remainders over ; and that the surviv- 
 ing children were such as should be living whenever John 
 died without male issue. No reasons are given by the court 
 for the latter opinion, nor authorities cited to support it; 
 and the heirs of the children who survived the testator, but 
 did not survive John, were not parties to the suit. But read 
 in this connection Pennington v. Pennington, 60 Md. 418. 
 
 As it is probable that very few testators desire to create 
 an ' ' estate tail, ' ' the following points may be of some service, 
 particularly in avoiding the creation of such an estate. An 
 estate tail may be created as follows : 
 
 1 . By a devise to one and his issue, whether they are or 
 are not issue of the devisee living at the date of the will or 
 at any other period." 
 
 2. By a devise to one and the heirs of his body." So a 
 devise to the testator's son W, and his oldest male heir for- 
 ever."" 
 
 3. By a devise to one and his children, he having no chil- 
 dren at the time ; it being equivalent to him and his issue." 
 
 4. By a devise to one, and if he dies without issue (or 
 words of similar import) then over to another in fee, the 
 
 ^'Schmaunz V. Goss, 132 Mass. ^'Cuffee v. Milk, 10 Met. 389; see 
 
 141. Canedy v. Haskins, 13 Id. 389. 
 
 " 2 Jarmin on Wills, 320. .. -t- i.^- 1 -o n ,, x>;^\r 
 
 „,. , ^, Z^ „ ■•» Nightinffale V. Burrell, 15 Pick. 
 
 38 Wight V.Thayer, i Gray, 284; °^^ ° . _, , ,, . 
 
 XT „ Tu tj D i 104 ; Wheatland V. Dodge, 10 Met. 
 
 Hall V.Thayer, 5 Id. 523; Buxton *' ^ 
 
 V. Uxbridge, 10 Met. 87 ; Malcomb 5o2 : see, however, Wight v. Baury, 
 
 V. Malcomb, 2 Cush. 472 ; Welde v- 7 Cush. 105. 
 Williams, 13 Met. 486. 
 
ESTATES IN FEE TAIL. 12/ 
 
 devise over, "looks to an indefinite failure of issue, and 
 therefore cannot take effect as an executory devise, but the 
 first devisee in fee is cut down by the subsequent devise, to 
 an estate tail, and the subsequent devisee takes an estate in 
 remainder. The same rule of construction applies when the 
 first devise is to two persons, and the devise over, in case of 
 the death of either, leaving no issue, is not to the survivor."" 
 
 §52. What property is subject to entailment. The familiar 
 principles of equitable conversion referred to in a preceding 
 chapter regard money, under certain conditions, as real 
 estate, and in such cases it may form the corpus of an entailed 
 estate." And, as a general proposition, all grades of incor- 
 poreal property that savor of the realty may be the subject of 
 entail." It will be observed that personal property held dis- 
 tinctively as such, is not within the principle of the statute 
 de donis, and cannot claim the privilege of entailment. 
 
 §53. Rules for barring the entail. Taltarum's Case. A curi- 
 ous procedure invented by the old English judges in the 
 time of the Plantaganets, has come down to us in the year- 
 books of that period under the title of Taltarum's case. The 
 design was to ignore the provisions of the statute de donis, 
 or rather to obviate the effects of it, through the medium of 
 a fictitious action at law, based upon some fair semblance of 
 the facts, and nominally contested by one of the parties in 
 interest. The nominal defendant in this solemn farce, after 
 duly appearing, and filing an answer, suddenly vanishes like 
 an exhalation ; whereupon the woolsack goes through the 
 farce of entering a judgment by default. With this as a 
 basis the court proceeded to award the estate to the person 
 entitled. It is doubtful if ever since the beginning of 
 recorded time a more idiotic farce was ever enacted under 
 the Kgis of the law. Heathen Rome, in the zenith of its 
 abuse of judicial process, never adopted so childish a fiction 
 as the means to an end. The zealots who still descry celes- 
 tial marvels in the English common law, would do well to 
 employ their energies in defense of this and kindred mon- 
 
 "' School Fund, 102 Mass. 262; « In re Miller, 48 Cal. 165 ; Craig 
 Parker V. Parker, 5 Met. 134; Hall v. Leslie, 3 Wheat. 563. 
 V. Priest. 6 Grey, 18. «2 Bl. Com. 113. 
 
128 REAL PROPERTY. 
 
 strosities. Even English veneration for the antique, and 
 deification of precedent, proved unable to sustain this rank 
 iniquity, and it has been abolished by statute. But not until 
 it had pestered the minds of American law students, and 
 fastened itself upon the legal nomenclature under the 
 euphonious name of " conveyance and fine by common 
 recovery. ' ' It will ever stand as a monumental exhibit of 
 human stupor, legal pedantry, a senseless piece of circum- 
 locution adopted chiefly to mystify and bewilder an igno- 
 rant age. 
 
 A tenant in tail actually seized of lands, may by a deed, 
 bar the entail and convey the land in fee simple." But a life 
 tenant alone cannot do this." 
 
 When the right of entry or of action of a tenant in tail, or 
 of a person entitled to a remainder in tail, is barred, the 
 estate tail and all remainders and reversions expectant 
 thereon shall also be barred, as fully as they might have 
 been by a conveyance made by the tenant in tail. 
 
 But in Massachusetts, the remainder in tail is not liable 
 for the debts of the remainder-man." And under statute of 
 1 79 1, ch. 60, a tenant in tail may convey by deed an indivi- 
 dual part of the estate tail." As to descent of estates tail in 
 Massachusetts, see Wight v. Thayer, i Gray, 284. Equitable 
 estates tail may be conveyed and remainders barred as in 
 the case of legal estates, and the grantee may call for a con- 
 veyance of the outstanding legal estate." 
 
 Wherever estates in fee tail have any recognition in this 
 country, it will be found that the old form of conveyance by 
 fines and common recoveries has given place to a more sim- 
 plified method. The nonsense of instituting a fictitious suit 
 for the purpose of making a conveyance must be patent to 
 all, and is one of the innumerable instances in which the old 
 common law secured justice through interminable mazes of 
 injustice. What wonder that the great master of the rolls, 
 
 ** Wilson v. O'Connell, 147 Mass. *' Holland v. Cruft, 3 Gray, 
 
 17. 162. 
 
 « Holland v. Cruft, 3 Grey, 162 ; " Hall v. Thayer, 5 Gray (Mass.), 
 
 Whittaker v. Whittaker, 99 Mass. 523. 
 
 364; Allen v. Trustees, etc., 102 " Statutes of Mass., 1851, ch. 14. 
 Mass. 262. 
 
ESTATES IN FEE TAIL. 1 29 
 
 Sir George Jessel, in speaking of these rules of entailment 
 was moved to say : ' ' The law is founded on the extraordinary 
 caprices of ancient real-estate lawyers, and it is impossible 
 to find the principle upon which a decision is founded or 
 whether there is any principle at all. 
 
 §54. Statutory regulations on this subject. Sec. 15. A per- 
 son actually seized of land as a tenant in tail may convey 
 such lands in fee simple by a deed in common form, in like 
 manner as if he were seized thereof in fee simple ; and such 
 conveyance shall bar the estate tail and all remainders and 
 reversions expectant thereon. 
 
 Sec. 16. When lands are held by one person for life with 
 a vested reniainder in tail in another, the tenant for life and 
 the remainder may convey such lands in fee simple by their 
 deeds in common form, in like manner as if the remainder 
 had been limited in fee simple ; and such deed or deeds shall 
 bar the estate tail and all remainders and reversions expect- 
 ant thereon. 
 
 Sec. 17. Equitable estates tail, in possession or remainder, 
 and all remainders or reversions expectant thereon, may be 
 barred in the same manner as legal estates tail and the remain- 
 ders and reversions expectant thereon. 
 
 Sec. 18. The person to whom an equitable fee simple is 
 conveyed pursuant to the preceding section shall upon request 
 therefor be entitled to a conveyance of the outstanding legal 
 estate from the person in whom such legal estate is then or 
 thereafter vested in trust." 
 
 § 55. Duty as to incumbrances, taxes, etc. A tenant in 
 tail occupies a position similar to that of a life tenant so far 
 as regards the payment of tax assessments, ordinary repairs, 
 and interest on incumbrances. His interest in the property 
 itself is considerably restricted, and it would hardly comport 
 with a refined sense of justice to compel him to discharge a 
 preexisting debt, or make himself liable for some permanent 
 improvement, either or both of which would accrue to the 
 advantage of the remanider-man or to the heir in tail. 
 
 § 56. Estates tail will support both curtesy and dower. 
 
 The statute de donis, the enactment of which created estates 
 
 « Chap. 120, Mass. R. S. 1882. 
 
I30 REAL PROPERTY. 
 
 tail, is silent as to the rights of dower and curtesy in such an 
 estate. But judicial construction soon fastened such rights 
 upon it, and statutory enactment in this country, at least, 
 has not in any way interfered with the right." 
 
 § 57. The rule in Shelley's case. Estates tail are subject to 
 the rule in Shelley's case; but, as an extended analysis of 
 that celebrated rule will be found under the chapter on 
 Remainders a discussion of its merits in this particular con- 
 nection would seem undesirable. 
 
 § 58. Scant recognition of this estate in America. The 
 
 doctrine of entailment is utterly repugnant to the spirit of 
 our institutions, and in those few jurisdictions where estates 
 tail are still tolerated, instances of their creation are very 
 rare. The constant tendency in judicial circles is toward 
 the discouragement of their application, and the readiness of 
 our courts to entertain any scheme for avoiding them renders 
 the entire subject of little practical importance. They may 
 be barred by fine and common recovery, or by deed. And 
 the estate is generally limited to the first taker, while the 
 remainder carries the fee simple absolute. 
 
 There is very decisive condemnation of estates tail in the 
 statutory law of many of the States. Quite generally words 
 which ordinarily, under the statute de donis, would raise an 
 estate tail, are now construed to establish a fee simple, or at 
 most, an estate for life in the first donee, with a remainder 
 in fee simple to his children." In Kentucky remedial legis- 
 lation has made short work with this vexatious problem, and 
 the enactment now in force provides that "All estates 
 heretofore or hereafter created, which in former times would 
 have been deemed estates in tail, shall henceforth be held to 
 be estates in fee simple. ' ' 
 
 Happily, estates tail have been rare in this country. They 
 were introduced here before the revolution, but were so mani- 
 festly opposed to the spirit of our Republican institutions, 
 which favor a free distribution of property, that most, if not 
 all the States, have altogether prohibited them. 
 
 '» Mandlebaum v. McDonnell, 29 2, sec. 3 ; N. J. R. S., tit. Descent, 
 Mich. 78. sec. 11. 
 
 " See N. Y. R. S., Pt. 2, c. i, tit. 
 
ESTATES IN FEE TAIL. 13 1 
 
 Estates tail are not favored, and the presumption is against 
 the intention to create them, and the presumption must be 
 overcome by language free from ambiguity." The estates 
 can be in any way limited to any persons, but such as are in 
 being at the time, and their immediate issue or descendants ; 
 and all estates attempted to be entailed, become absolute 
 fees in the issue of the first grantee in tail. Thus, by a stat- 
 ute of ten lines, while che dead are prevented from domi- 
 neering over their posterity, by means of restraints upon 
 their property, the students of law are relieved from investi- 
 gating this extensive and intricate branch of English juris- 
 prudence." 
 
 § 59. Views of Chancellor Kent. The doctrine of estates 
 tail, and the complex and multifarious learning connected 
 with it have become quite obsolete in most parts of the United 
 States. In Virginia, estates tail were abolished as early as 
 1776; in New Jersey, estates tail were not abolished until 
 1 820; and in New York, as early as 1782, and all estates tail 
 were turned into estates in fee simple absolute." This is so 
 construed as to include estates tail in remainder." So, in 
 North Carolina, Kentucky, Tennessee, and Georgia, estates 
 tail have been abolished, by being converted by statute into 
 estates in fee simple." 
 
 Entails are also prohibited in Florida (Thompson's Digest, 
 p. 191); in Texas, by the State Constitution (art. i, sec. 18); 
 and are no longer recognized in Wisconsin where estates 
 heretofore entailed are now regarded as allodial." In the 
 States of South Carolina and Louisiana, they do not appear 
 to be known in their laws, or ever to have existed ; but in 
 
 " Collins v. Collins, 40 Ohio York Revised Statutes, vol. I, 722, 
 
 State, 353, 363. sec. 3. 
 
 "Walker's Am. Law, p. 351. "See Van Rensselaer v. Kear- 
 
 "Act of Virginia of 7th Octo- ney, 11 How. U. S. 297. 
 
 ber, 1776 ; acts of Assembly of New " Act of North Carolina, 1784 ; 
 
 Jersey, 1784, 1786 and 1820; R. S. Act of Kentucky, 1796; Griflfith's 
 
 N. J., 1847 ; Den v. Robinson, 2 Reg., under the appropriate heads ; 
 
 South. 713; Den v. Spachius, i No. 8 Prince's Dig. of the Laws of 
 
 Harrison's Rep. 172; Laws of New GJeorgia, 1837, pp. 231, 246. 
 
 York, ees. 6, c. 2, ses. 9, c. 12; New " Revised Statutes of Wis'., 1849, 
 
 ch. 56, sees. 3, 4. 
 
132 REAL PROPERTY. 
 
 several of the other States, they are partially tolerated, and 
 exist in a qualified degree. The Civil Code of Louisiana, 
 art. 1507, prohibits substitutions and fidei commissa. It is 
 more rigorous than the Code Napoleon. In New Hampshire 
 estates tail are said to be retained, but I should have in- 
 ferred from statutes passed in 1789, 1791, and 1792, respect- 
 ing conveyances by deed and by will, and the ccourse of 
 descents, that estates tail were essentially abolished. But it 
 was not so, for by statute in 1837, any tenant in tail, in New 
 Hampshire, may convey by deed his estate, and bar all 
 remainders and reversions as effectually as by a fine or com- 
 mon recovery. But it was held in Jewell v. Warner, 35 N. H. 
 I "jd, that the statute de donis was impliedly repealed by the 
 statutes of 1 789, and that, consequently, estates tail no longer 
 exist in New Hampshire. So a tenant for life, with the per- 
 son having a vested remainder in tail, may by deed convey 
 the whole estate, as if the remainder was in fee simple. In 
 Alabama and Mississippi, a man may convey or devise land 
 to a succession of donees then living, and to the heirs of the 
 remainder-man." But this provision seems to have been 
 omitted in the last revision of the Alabama Code, and estates 
 tail whenever created are converted into fees simple. °° In 
 Connecticut", and in Vermont, Ohio, Illinois, and Missouri, 
 if an estate tail be created, the first donee takes a life estate, 
 and a fee simple vests in the heirs, or person having the 
 remainder after the life estate of the grantee, or first donee 
 in tail." This is also the case in New Jersey by the Act of 
 1820. (Elmer's Dig, 130.) The estate on the death of the 
 tenant for life vests in his children, though difficulty has 
 been suggested to exist if the grantee has no children, or 
 their issue. °' The tenant in tail in those states, is in realty 
 but a tenant for life without the power to do any act to defeat 
 or encumber the estate in the hands of the heir or person in 
 
 '' Statute of Alabama, 1812. 1839, p. 310; Statutes of Ohio, 1831; 
 
 " Alabama Code of 1852, sec. 1300. Statutes of Connecticut, 1784; lb. 
 
 ^'Kirby's Rep. 118, 176, 177; 1821; lb. 1838; Revised Laws of 
 
 Hamilton v. Hempstead, 3 Day, Illinois, 1833; Revised Statutes of 
 
 332; Swift's Dig., vol. I, 79; AUyn Missouri, 1835. 
 
 v. Mather, 9 Con. Rep. 114. «' GrifBth's Reg. 
 
 " Revised Statutes of Vermont, 
 
ESTATES IN FEE TAIL. 133 
 
 remainder. In Indiana a person may be seized of an estate 
 tail, by devise or grant, but he shall be deemed seized in fee 
 after the second generation.'" But entails are now abolished 
 in Indiana, by. the Revised Statutes of 1852, vol. i, p. 238. 
 In Connecticut there may be a special tenancy in tail, as in 
 the case of a devise to A, and to his issue by a particular 
 wife. The estate tail, in the hands of the issue in tail, as 
 well special as general issue, male or female, is enlarged into 
 an estate in fee simple. In Rhode Island, estates tail may 
 be created by deed, but not by will, longer than to the chil- 
 dren of the devisee, and they may be barred by deed or will. 
 Estates tail exist in Maine, Massachusetts, Delaware, and 
 Pennsylvania, subject, nevertheless, to be barred by deed, 
 and by common recovery, and in two of these States by will, 
 and they are chargeable with the debts of the tenant." A 
 fee simple passes on a judicial sale to satisfy a charge. This 
 is so decided in one of those States, and the same consequence 
 must follow in all of them, when the land is chargeable with 
 debt." In Maryland, estates tail general, created since the 
 Act of 1786, are now understood to be virtually abolished, 
 since they descend, and can be conveyed, and are devisable, 
 and chargeable with debts, in the same manner as estates in 
 fee simple. Docking estates tail by common recovery had 
 been previously abolished by statute in 1782, and they were 
 to be conveyed as if they were in fee." 
 
 Estates tail were introduced into this country with the 
 other parts of the English jurisprudence, and flourished in 
 full vigor until the Revolution, which, in effect, by destroy- 
 ing all titles of nobility in the United States, swept away the 
 chief incentive to the maintenance of this species of estates, 
 and they are now practically obsolete in this country, and in 
 most of the States have been abolished by legislative enact- 
 ments, as above outlined. 
 
 *' Revised Statutes of Indiana, c. 50; Jackson on Real Actions, 299; 
 
 1838, 238. American Jurist, vol. 11, No. 4, 392 ; 
 
 " Dane's Abr., vol. IV, 621 ; Lith- Purdon's Dig. 353 ; Riggs v. Sally, 
 
 gow V. Kavenagh, 9 Mass. Rep. 167, 1 5 Maine Rep. 408. 
 
 170,173; Nightingale V. Burrell, 15 «» Gause v. Wiley, 4 Serg. & 
 
 Pick. 104; Corbin v. Healy, 20 Id. Rawle, 509. 
 
 514; Statutes of Mass., 1791, c. 60; '' Kent's Com. 13. 
 Mass. Revised Statutes, 1836, part 2, 
 
CHAPTER V. 
 
 ESTATES FOR LIFE. 
 
 Sec. 6o. Definition and nature. i 
 
 6i. How created and classified. 
 
 62. Estates pur autre vie. 
 
 a. How created. 
 
 b. Incidents of this estate. 
 
 c. How determined. 
 
 63. How created by operation of law. 
 
 64. Right to emblements. 
 
 65. Right to reasonable estovers. 
 
 66. Incidents of life estates. 
 
 67. Life estates with power of disposition. 
 
 68. The doctrine of waste as applied to life tenancies. 
 
 69. " Praying in aid." 
 
 70. Rule as to taxes, incumbrances, etc. 
 
 71. Adverse possession as between life tenant and reversioner. 
 
 72. Possession of the muniments of title. 
 
 73. Termination of life estate. 
 
 74. Rule as to surrenders. 
 
 75. Value of life estate, how computed. 
 
 76. The doctrine of merger examined. 
 
 § 60. Definition and nature. In contemplation of law a life 
 estate ranks next to an estate in fee. There is no logical 
 reason why this should be so, as an estate for years — nine 
 hundred and ninety-nine years, for instance — would approach 
 nearer to our ideals of a fee simple than an estate for life. 
 However, it is not our province to quarrel with a classifica- 
 tion, that has the sanction of immemorial usage, and I shall 
 proceed to consider estates for life as a higher dignity, in the 
 law of real property, than any possible estate for years. It 
 is an estate of freehold coupled with the right of alienation 
 — to reasonable estovers — and to all emblements. It is 
 created either by express act of the parties or by operation 
 of law. It can never be an estate of inheritance. 
 
 This term imports a vested right in realty conditioned 
 upon one or more lives. They naturally bisect themselves 
 
 [134] 
 
ESTATES FOR LIFE. 135 
 
 into conventional life estate and legal life estates. The 
 former is always created by act of the parties ; the latter by 
 operation of law. Legal life estates comprise tenancy in 
 tail, after possibility of issue is extinct ; tenancy in curtesy, 
 tenancy in dower. Conventional life estates comprise an 
 estate for the term of the grantee's own life ; an estate for 
 the life of another or the lives of others. That for another's 
 life is the lowest species of freehold. A grant not fixing the 
 term nor mentioning heirs is construed a life estate ; so is an 
 estate held on the uncertain contingency that it may possibly 
 last for life. And so also is a conveyance to a woman so 
 long as she remains a widow, or during coverture ; or as long 
 as one shall live in a certain house or place ; or till a sum be 
 paid out of the income of an estate.' 
 
 § 6i. How created and classified. Life estates are, in con- 
 templation of law, either conventional or legal, and they ' 
 may be created by deed or grant under which method they 
 are regarded as properly conventional life estates. Their 
 other mode of creation, as we have seen in the previous 
 section, is by arbitrary action at law. Estates for life may 
 be created not only by express words, but also by a general 
 grant without defining or limiting any specific estate. As, 
 if one grants to A B, the manor of Dale, this makes him ten- 
 ant for life. For though, as there are no words of inherit- 
 ance, or heirs, mentioned in the grant, it cannot be construed 
 to be a fee, it shall, however, be construed to be as large an 
 estate as the words of the donation will bear, and therefore 
 an estate for life. Also such a grant at large or a grant for 
 term of life generally, shall be construed to be an estate for 
 the life of the grantee ; in case the grantor hath authority to 
 make, such a grant; for an estate for a man's life is more 
 beneficial and of a higher nature than for any other life ; and 
 the rule of law is, that all grants are to be taken most strongly 
 against the grantor, unless in the case of the king. 
 
 Such estates for life will, generally speaking, endure as 
 long as the life for which they are granted ; but there are 
 some estates for life, which may determine upon future con- 
 tingencies, before the life, for which they are created, expires. 
 
 ' 2 Bl. Com. 130. 
 
136 REAL PROPERTY. 
 
 As, if an estate be granted to a woman during her widow- 
 hood, or to a man until he be promoted to a benefice ; in 
 these, and similar cases, whenever the contingency happens, 
 when the widow marries, or when the grantee obtains a 
 benefice, the respective estates are absolutely determined 
 and gone." 
 
 It is not opposed to any rule of law to create a life estate, 
 with power to sell and convey, and limit a remainder after its 
 determination. Indeed it is a very common incident in this 
 grade of estate.' 
 
 § 62. Estates " pur autre vie." Estates for life fall into two 
 classes: i, those created by operation of law; and, 2, those 
 created by act of the party. In the first class we may cata- 
 logue dower, curtesy, tenancy in tail, and homestead estates. 
 In the second class estates are either for the life of the 
 grantee, or some other person, the latter known as "estates 
 pur autre vie." 
 
 Such estates are frequently termed a descendible freehold, 
 but such a designation is glaringly inaccurate as it is not an 
 estate of inheritance.* It only endures for the life of some 
 particular person other than the grantee, and is the least 
 valuable form of life estate. In some jurisdictions it degene- 
 rates into a chattel real, on the death of the grantee or 
 devisee, although during his lifetime it has reached the dig- 
 nity of a freehold. It has many of the characteristics of per- 
 sonal estate, and may be devised by a will. They are of 
 rare occurrence in this country, but occasionally appear wher- 
 
 ^ 2 Bl. Com. backer, 54 Mich. 593; Patrick v. 
 
 ' 3 Hamlin v. United States Exp. Morehead, 85 N. C. 62, 39 Am. Rep. 
 Co. 107 111. 443; Rountree v. Tal- 684; Smith v. Taylor, 21 111. 296; 
 hot, 89 Id. 249 ; Brownfield v. Wil- Willis v. Watson, 5 Id. 64 ; Cam- 
 son, 78 Id. 467 ; Peoria v. Darst, thers v. McNeill, 97 Id. 256 ; John- 
 loi Id. 609 ; Bland v. Bland, 103 Id. son v. Johnson, 98, Id. 564 ; Jones 
 II ; Henderson v. Blackburn, 104 v. Bramblet, 2 Id. 276; Heuser v. 
 Id. 227; 44 Am. Rep. 780; Bergan Harris, 42 Id. 425; People v. Jen- 
 V. Cahill, 55 111. 160; Friedman v. nings, 44 Id. 488 ; Holiday v. Dixon, 
 Steiner, 107 Id. 125; Smith v. Bell, 27 Id. 33; Pool v. Blakie, 53 Id. 
 31 U. S., 6 Pet. 68, 8 L. ed. 322; 495; Markillie v. Ragland, 77 Id 
 Burleigh v. Clough, 52 N. H. 267, 98 ; Nicoll v. Scott, 99 Id. 531. 
 13 Am. Rep. 23 ; Morford v. Dieffen- ''Mosher v. Yost, 33 Barb. 77. 
 
ESTATES FOR LIFE. 137 
 
 ever a tenant, for his own life, conveys his estate to a third 
 person. 
 
 a. How. created. There is but one' method of creating the 
 estate, viz., by the life tenant assigning or conveying his 
 interest to a third person. This is literally all there is of it, 
 and momentary reflection will conclusively establish the 
 infrequency of the estate. Here is a life interest depending 
 upon the frail and uncertain tenure of natural breath. At 
 any instant the tenancy may be annihilated, and the rever- 
 sioner invested with his rights. Under the most favorable 
 auspices then, the tenure is exceedingly dubious. Few 
 would care to purchase it, and if there are no purchasers, 
 syllogistic reasoning will say there are no sellers. In fact, 
 the reports on this side of the Atlantic are conspicuously 
 silent on the subject of estates pur autre vie. They have 
 occurred, and they will, doubtless, occur agam. But it is 
 not a subject that is capable of much expansion. 
 
 b. Incidents of the estate. It is the lowest estate of free- 
 hold, not of inheritance, that a man can have, and Chancel- 
 lor Kent denies it any descendible qualities." Under the old 
 common law, if the owner died before the man for whose life 
 it was held, it was regarded as a vacant or abandoned estate, 
 and any stranger was permitted to take possession by way of 
 special occupancy. Our laws are intolerant of such non- 
 sense. Logic and reason would suggest that under the stat- 
 ute of distribution, the heirs of the deceased owner would be 
 entitled to the unexpired term.' 
 
 Generally, we may say, with reference to the estate pur 
 autre vie, that in scope and nature it had all the attributes of 
 a conventional life estate; no more, no less. The owner 
 cannot commit waste, he must keep down the taxes, make 
 ordinary repairs. He must do all that the remainder-man 
 can reasonably expect of the cestui qui vie. In this country it 
 
 'Some text writers mention three has convinced him that the other 
 
 distinct methods of raising the es- methods would not be counte- 
 
 tate. My authority for asserting nanced under our present laws, 
 
 the single method is Judge Samuel ' 4 Kent's Com. 27. 
 
 }. Treat, who asserts that 50 years' ' 2 BI. Com. 258 ; see Walker 
 
 experience at the bench and bar Am. Law, 275. 
 
138 REAL PROPJiRTY. 
 
 is largely regulated by statute." And in several States it is 
 regarded as a chattel interest, and hence will not pass to the 
 heir of the deceased owner, but constitutes an asset in the 
 hands of the executor or administrator. It is hardly neces- 
 sary to add that the estate terminates with the death of the 
 cestui qui vie.^ 
 
 c. How determined. It is very generally settled law in this 
 country that in a devise of real property the presumption 
 will be indulged, in the absence of any direct language to the 
 contrary, that the intention was to create an estate in fee 
 simple. This rule directly antagonizes the old common law 
 regulations affecting the subject, and is more in harmony 
 with the growing hostility for estates clogged by some tech- 
 nical limitations that debase the purity of the fee. Estates 
 hampered by a condition are not easily alienable, and our 
 policy has always been to favor the free transmission of 
 landed property. 
 
 As we have observed the death of the cestui qui vie ope- 
 rates as a determination of this species of estate. It cannot 
 survive the personality of its creator. And, although it is 
 not a chattel interest, still, in the language of Lord Kenyon, 
 ' ' It partakes somewhat of the nature of personal estate, though 
 it still remains a freehold interest for many purposes. And 
 a will to dispose of it must always be attested under the stat- 
 ute of frauds. "'° Kent says it is a freehold estate j«^ »«o^i9, 
 even in the hands of the executor or administrator of the 
 former owner." 
 
 § 63. How created by operation of law. Dower and curtesy 
 are the only species of life estates that are created by opera- 
 tion of law. In all other instances they spring into being 
 through some act of the parties. But when created by law, it 
 is through the pitiless operation of some statute that arbi- 
 trarily gives to some person a life estate. All publicists, from 
 the earliest times, have regarded marriage as the mainspring 
 of the social fabric, and that relation has come to be highly 
 favored in the law. Both dower and curtesy are incidents of 
 
 » See I N. Y. Rev. Stat. 722. '" Doe v. Linston, 6 Tr. 291. 
 
 »See Clark v. Owens, 18 N. Y. "See Roseboom v. Van Vech- 
 434- ten, 5 Den. 424. 
 
ESTATES FOR LIFE. 139 
 
 this relation, and are given as life estates by the law in all 
 cases where one survives the other — dower to the wife, 
 where she survives the husband, and curtesy to the husband 
 where he survives the wife. As both these species of life 
 estates are made the subject of extended treatment further 
 on, it will be unnecessary in this immediate connection to 
 pursue the subject. 
 
 § 64. Right to emblements. It is a well settled rule of pub- 
 lic policy, grounded upon the most obvious principles of 
 equity, that a man who is diligent in seed time, should be 
 rewarded in harvest. That one who has planted should be 
 given the opportunity to reap, and hence it is a rule of ex- 
 tended application, that a tenant for life whose estate is for 
 any reason terminated through some act which it was impos- 
 sible for him to foresee, may gather the crops which he has 
 sown. " For similar reasons the law will sanction his right 
 of entry upon the premises that he may remove the crops 
 harvested during his term, and which have been either 
 stacked upon the field or sheltered in a barn or cellar. " 
 
 Generally it may be said that the right to emblements 
 applies only to " fructus industrials," and in many localities, 
 by customs and uses, the tenant for life may exercise the 
 privilege of removal. From the foregoing text it follows by 
 necessary implication that the tenant for life, having sown 
 the crop, in good faith, and with no warning as to the termi- 
 nation of his tenancy, has a right, at all reasonable hours, 
 and in all reasonable ways, to enter upon the land and culti- 
 vate the crop sown, and to harvest the same when it has 
 reached maturity. '* 
 
 This right to emblements is conceded only to those whose 
 tenure is uncertain and dependent upon some contingency, 
 such as tenants for life or at will ; or is unexpectedly deter- 
 mined before harvest, by the act of God or of the law, and 
 
 "King V. Fowler, 14 Pick. 238 ; '"Humphries v. Humphries, 3 
 Whitmarsh v. Cutting, 10 Johns. Ired. 362; Harris v. Frink, 49 N. 
 361 ; Chesley v. Welsh, 37 Me. 106 ; Y. 24 ; but see Henderson v. Card- 
 Stewart V. Doughty, 9 Johns. 108. well, 9 Baxt. 389. 
 
 " Willey V. Conner, 44 Vt. 68 ; ' 
 Clark V. Harvey, 54 Pa. St. 142. 
 
I40 REAL PROPERTY. 
 
 without fault on the part of the tenant, as by death, or by- 
 notice to quit." If his tenure is so uncertain that he cannot 
 know when he sows whether it will continue until he shall 
 reap, the tenant is entitled to emblements; otherwise not." 
 The custom of the country or locality where the lease is 
 made, however, sometimes enters into the contract, and gives 
 emblements to lessees whose terms are certain ; but custom 
 will prevail only where the contract is silent or uncertain, 
 and there is no express covenant." 
 
 If a lease contains no reservations, the tenant is entitled 
 to remove all the crops harvested during his term." A lease 
 terminable in the spring of any year, in case the farm is sold, 
 is practically one at will, and the tenant is entitled to a crop 
 of grain sown by him in the fall. '" So, also, where the lease 
 terminates absolutely in the spring, if the tenant sows wheat 
 in the fall in pursuance of a stipulation in his lease, or by 
 direction of his landlord. " 
 
 Undertenants are entitled to emblements and have a right 
 to the possession so far as is necessary to preserve and gather 
 them." 
 
 On grounds of public policy if the tenancy was in full 
 force at the time of planting, a tenant at will or for life is 
 entitled to ingress and egress to secure the fruits of his labor." 
 
 By the term emblements is understood the crops growing 
 upon the land. By crops is here meant the products of the 
 earth which grow yearly and are raised by annual expense 
 and labor, or "great manurance and industry," such as grain; 
 but not fruits which grow on trees which are not to be 
 planted yearly, or grass, and the like, though they are 
 annual." It is a general rule, that when the estate is termi- 
 
 '* Gland's case, 5 Coke, 116 b; " Pfanner v. Sturner, 40 How. 
 
 Stewart v. Doughty, 9 Johns. 108; Pr. (N. Y.) 401. 
 
 King V. Fowler, 14 Pick. 238; =° Kelley v. Todd, i W. Va. 197 ; 
 
 Kingsbury V. Collins, 4 Bing. 207. Armstrong v. Bicknell, 2 Lans. (N. 
 
 "Id.; Whitmarsh v. Cutting, 10 Y.) 216; Van Doren v. Everitt, 2 
 
 Johns. 361. South. (N. J.) 460. 
 
 " Stultz V. Dickey, 5 Binn. 285 ; " Bevans v. Briscoe, 4 Har. & J. 
 
 Demi V. Bossier, i Penn. 224; Id- (Md.) 139. 
 
 dings V. Nagle, 2 Watts & S. 22. ^» Samson v. Rose, 65 N. Y. 411. 
 
 "Willey V. Conner, 44 Vt. 68; "Co. Litt. 55, b; Com, Dig. 
 
 Clark V. Harvey, 54 Penn. St 142. Biens, G; Ham. Part. 183, 184. 
 
ESTATES FOR LIFE. I4I 
 
 nated by the act of God in any other way than by the death 
 of the tenant for life, or by act of the law, the tenant is en- 
 titled to the emblements ; and when he dies before harvest 
 time, his executors shall have the emblements, as a return 
 -for the labor and expense of the deceased in tilling the 
 ground." 
 
 § 65. The right to reasonable estovers. The term estovers 
 is one of frequent occurrence in connection with the correla- 
 tive term emblements. It merely signifies the right which a 
 tenant for life or for years has to the use of sufficient fire- 
 wood, and fencing and repairing material belonging to the 
 reversioner, and which is found upon the premises by the 
 tenant. In this country the question is somewhat regulated 
 by custom and usage, but may be restrained in all cases by 
 positive agreement."' All regulations on the subject are 
 simply declaratory of this, that he is entitled to nothing 
 more than is necessary to the reasonable enjoyment of the 
 estate. It should be added that the term estovers is synony- 
 mous with the homely old compounds " house bote," "hay 
 bote," and "plough bote" and "stone bote."" 
 
 § 66. Incidents of estates for life. The rule is well settled 
 that a tenant for life, when not precluded by restraining 
 words, may not only work open mines, but may work them 
 to exhaustion," and it is settled law that the rents of an open 
 mine are income, and go to the tenant for life."' The latter 
 two cases also rule that, when land is chiefly valuable for coal 
 mining purposes, although the mines are unopened the power 
 to lease the real estate includes the power to lease the coal 
 lying under the surface. A life tenant of land, whereof the 
 timber is the intended source of profit may cut it for profit." 
 Where the mines are severed from the surface, the ordinary 
 rules respecting waste have no application. °° 
 
 " I Bouvier's Law Diet. 357; Neel v. Neel, 19 Pa. 323; Irwin 
 
 "4 Paige, 174; 2 Hill, 157. v. Covode, 24 Pa. 162. 
 
 " Smith v. Jewett, 40 N. H. 532 ; ^' Cases cited above ; and see 
 
 2 Bl. Com. 35. Wentz's App., 106 Pa. 301 ; McClin- 
 
 " Shoemaker's App., 106 Pa. 392 ; ton v. Dana, Id. 386. 
 
 Westmoreland Coar Co.'s App., 85 " Williard v. Williard, 56 Pa. 119. 
 
 Pa. 344; Kier v. Peterson, 41 Pa. "" Bainbridge v. Mines, 53. 
 
142 REAL PROPERTY. 
 
 In Neel v. Neel, supra, it is said : " As to all tenants for life, 
 the rule has always been that the working of open mines of 
 all sorts is not waste. The tenant for life has the usufruct 
 of the whole land, and takes the whole profit that can be 
 derived from it in following out the use made of it by the 
 donor. * * * And the tenant for life is not at all limited 
 by the extent of the use made of the property by the author 
 of the gift. It is sufficient that he opened them (the pits) 
 and derived any profit from them, even if it were only fire 
 bote. The fact of his opening the pits made the coal a part 
 of the profits of the land, and the right to them will pass as 
 such by a devise of a life estate. If he meant otherwise, he 
 should have said so, not having said so, this is the legal 
 inference of his intention. * * * And the tenant for life 
 may work them, even though the working of them may have 
 been discontinued before the death of him through whom 
 the estate comes. ' ' 
 
 In Irwin v. Covode, supra, the court says : "As yet the Legis- 
 lature have prescribed no limitation to the use which a ten- 
 ant for life may make of open mines. In virtue of their 
 common law powers, the court might doubtless restrain un- 
 skillful mining and wanton injury to the inheritance, but 
 not such proper mining as is subject to no other objection 
 than its liability to exhaust the mine. The profits of coal 
 mines depend much on expensive preparations for working 
 them, and in order to compensate this necessary investment, 
 as well as to compete successfully with rival operations, a 
 large amount of coal must be mined and sold. To deny a 
 tenant for life to mine largely, would be to deny him the 
 right to mine profitably — to shut him up to mining for his 
 own fuel merely. * * * "^ot are such improvements 
 necessarily injurious to the remainder-man, for the estate is 
 liable to fall in at any moment, and when it comes to him he 
 takes it with all that has been added to develop and improve 
 it." Should the tenant for life exhaust lands so held, and 
 leave them ruined on the hands of those in succession, "it 
 would be no more than occurs in every life estate in chattels 
 which perish with the using. So long as the estate is used 
 according to its nature — in for man doni — it is no valid ob- 
 
ESTATES FOR LIFE. 143 
 
 jection that the use is consumption of it ; and it is no fault of 
 the tenant that it is not more durable. ' ' 
 
 If a life estate be devised to one with remainder to his 
 children, if there be a child in being at the death of the tes- 
 tator, the -whole remainder in fee simple vests in such child 
 liable to be partially divested by the coming in esse of other 
 children. " 
 
 In such a case the child in being or coming into being and 
 taking a vested remainder in fee subject to open and let in 
 the after born children might be regarded in some sense as 
 holding the legal estate of after born children." That there 
 is no rule of law which converts a life estate expressly cre- 
 ated into a fee absolute or qualified, or into any other form 
 of estate greater than a life estate, by reason of there being 
 coupled with it a power of sale, has been repeatedly declared." 
 And no rule of law prohibits a life tenant from either assign- 
 ing or subletting a part or the whole of his interest unless 
 precluded from so doing by the express terms of his grant. 
 He cannot, however, make a conveyance of his estate except 
 by deed." In the matter of repairing dilapidated buildings it 
 may be said that if they were in a state of decay and ruin at the 
 commencement of the life tenant's term, he cannot be called 
 upon to make any extended repairs." And loss or damage 
 by fire, if the result of unavoidable accident, will in no way 
 compromise the life tenant." 
 
 § 67. Life estates with power of disposition. Where a will 
 gives an absolute ownership of property, with full power of 
 
 2' Baker V. Lorillard, 4 N. Y. 266 ; 58 Conn. 210; see also Stuart v. 
 
 Hayes, 29; see also Hannan v. Os- Walker, 72 Me. 145, 39 Am. Rep. 
 
 born, 4 Paige, 336, 3 L. Ed. 460. 311 ; Welsh v. Woodbury, 144 Mass. 
 
 "Moore v. Littel, 41 N. Y. 66; 542. 
 
 Jenkins v. Fahey, 73 N. Y. 355; " Jackson v. Van Hosen, 4 Cow. 
 
 Dodge V. Stevens, 105 N. Y. 585 ; 325; Stewart v. Clark, 13 Met. 79. 
 
 see also Livingston v. Greene, 52 ^^ Wilson v. Edmonds, 24 N. H. 
 
 N. Y. 118; Smith V. Scholtz, 68 N. 517; Clemence v. Steere, i R. \. 
 
 Y. 42; Sheridan v. House, 4 Abb. 272. 
 
 App. Dec. 218; Brevort v. Bre- '* Barnard v. Poor, 38 Mass. 378 ; 
 
 voort, 70 N. Y. 140. Spaulding v. Chicago & C. R. R. 
 
 ''Glover v. Stillson, 56 Conn. Co., 30 Wis. no; Maull v. Wilson, 
 
 316; Peckham v. Lego, 57 Id. 553; 2 Har. 443; Althorf v. Wolfe, 22 N. 
 
 7 L. R. A. 419; Hull V. Holloway, Y. 366. 
 
144 REAL PROPERTY. 
 
 disposition, a limitation over is void because it is inconsist- 
 ent witli the absolute title given to the first devisee." On 
 the other hand, in Massachusetts, and generally elsewhere, 
 the principle will not apply where the will purports to give 
 only a life estate to the first taker, with merely the power of 
 disposition of the remainder as a separate interest. In such 
 a case the property passes under the original will through 
 the execution of the power to the person designated, and if 
 it is not executed it remains to be affected by the other pro- 
 visions of the will, or to pass, an undevised estate of the 
 testator.'' 
 
 § 68. The doctrine of waste as applied to life tenancies. The 
 
 doctrine of waste is of wide application. In the case of a fee 
 simple, as we have previously noted, it is entirely destitute 
 of force. The owner of such an estate is at liberty to create 
 all the devastation about the premises he sees fit. His caprice 
 is practically without limit in this respect. But in all in- 
 stances of inferior tenancies the doctrine of waste applies, 
 and it is because of its diversified application, that any ex- 
 tended treatment of the topic is omitted. It is my purpose 
 to devote a subsequent chapter to the consideration of this 
 subject, and to accord it such extended treatment as will 
 suffice for all the purppses of this present undertaking. By 
 this method tedious duplications of topics can be easily 
 avoided without disturbing the symmetrical development of 
 the general scheme. In this immediate connection it will 
 suffice to say that the courts are very indulgent to the de- 
 mands of the reversioner, and will grant injunctive relief in 
 all cases where it appears that the life tenant is injuring or 
 even threatens to injure the inheritance. This attitude of 
 the court is fully sanctioned by the following authorities." 
 
 "Ramsdell v. Ramsdell, 21 Me. ^'Duvall v. Waters, i Bland Ch. 
 
 288 ; Jackson V. Bull, 10 Johns. 19 ; 569; Kane v. Vandenburgh, i 
 
 Kelley v. Meins, 135 Mass. 235; Johns. Ch. 11; Hughlett v. Harris, 
 
 Van Home v. Campbell, 100 N. Y. i Del. Ch. 348 ; Ehrardt v. Boaro, 
 
 287. 113 U. S. 539; Whitney v. Morrell, 
 
 »' Welsh V. Woodbury, 144 Mass. 34 Wis. 644; Smith v. Sharpe, i 
 
 542 ; Collins V. Wickwire, 162 Mass. Busbee, 91; Drown v. Smith, 55 
 
 143 ; Burleigh v. Clough, 52 N. H. Me. 143 ; Clemence v. Steere, i R. 
 
 567. I. 272; Miles V. Miles, 32 N. H. 147; 
 
ESTATES FOR LIFE. 145 
 
 § 69. " Praying in aid." In the interests of full discussion, 
 it may be considered necessary to refer to a once honored 
 method of common law procedure, by which the holder of an 
 estate for life might summon to his assistance the remainder- 
 man on the theory that the latter held the muniments of title, 
 and hence was in a position, in the event of suit being 
 brought against the tenant for life, to successfully defend 
 the same by the production of title deeds and other necessary 
 documents. This right, as we have said, was an incident of 
 common law procedure, but is of little or no consequence on 
 this side of the Atlantic, as with the general abolition of 
 what were distinctively known as real actions under the com- 
 mon law system, the importance of the subject has all but 
 disappeared. Those anxious for information upon subjects 
 of no practical concern will find this topic treated in Spence 
 Eq. Jur. and in Mr. Preston's well known Treatise on Estates. 
 
 § 70. Rule as to taxes, incumbrances, etc Primarily it is 
 the duty of the reversioner to pay all incumbrances upon the 
 estate. But it is entirely competent for the grantor to place 
 this duty upon the life tenant. In the absence of any recital 
 to that effect, the rule holds true that the reversioner is the 
 proper party to make such payment. Instances, however, 
 frequently arise where, on the maturity of a mortgage debt, 
 the life tenant in order to prevent an involuntary alienation 
 of his holding is obliged to discharge the incumbrance. In 
 such a case the courts resort to the principles of equitable 
 apportionment. The tenant being charged with a certain 
 amount of interest — which it is his duty to pay, together 
 with the taxes, repairs, etc. And the reversioner becomes 
 chargeable with the difference between the entire sum paid 
 and the amount of this interest which is ascertainable by the 
 aid of life insurance mortuary tables. The costs of suit 
 should also be assessed against him, as it is presumptively 
 his neglect of duty that necessitated the payment." In the 
 case first cited the rule was enforced in an action for dower, 
 and the decision turned upon the wording of a Massachusetts 
 
 and see the opinion of Chief Justice ■"Newton v. Cook, 4 Gray, 46; 
 
 FoUett in Hamilton v. Austin, 36 Bell v. Mayor of New York, 10 
 
 Hun, 143. Paige Ch. 71. 
 10 
 
146 REAL PROPERTY. 
 
 statute which is merely declaratory of a well recognized rule. 
 The phraseology of the law in question is as follows : "If 
 the husband shall be seized of land, subject to any mortgage 
 which is valid and effectual as against his wife, she shall, 
 nevertheless, be entitled to dower in the mortgaged prem- 
 ises, as against every person except the mortgagee and those 
 claiming under him ; provided, that if the heir, or other per- 
 son, claiming under the husband, shall redeem the mortgage, 
 the widow shall either repay such part of the money paid by 
 him as shall be equal to the proportion which her interest in 
 the mortgaged premises bears to the whole value thereof, 
 or she shall, at her election, be entitled to dower only accord- 
 ing to the value of the estate, after deducting the money so 
 paid for the redemption thereof."" 
 
 Life tenant cannot charge the remainder-man with the 
 value of improvements on the property." Taxes are always 
 charged to the former; but assessments for permanent 
 improvements are apportionable, in equity, according to the 
 circumstances of the case, and their respective interest in 
 the property. Obviously, where the life tenant is an octo- 
 genarian, in feeble health, and the remainder-man just 
 approaching his majority, to charge the former with the 
 entire cost of permanent improvements, such as flagging, 
 curbing, paving, and the like, would hardly accord with any 
 refined sense of justice." 
 
 Where there is an estate for life, and a remainder over in 
 fee, the obligation is imposed upon the life tenant to pay all 
 taxes, interest on any mortgaged indebtedness, and the ex- 
 penses incident to insurance and repair ; but this general rule 
 is liable to be changed by the party creating the estate." 
 
 § 71. Adverse possession as between life tenant and rever- 
 sioner. The doctrine of adverse possession, which may be 
 invoked in so many cases, has no application to the relation 
 existing between the life tenant and his reversioner. No act 
 of the tenant can possibly be construed as working a dis- 
 
 *' Rev. Stats, chap. 60, sees, i 2. 359; Schier v. Eldridge, 103 Mass. 
 
 *' Thomas v. Evans, 105 N. Y. 601. 343. 
 
 «Peck V. Sherwood, 56 N. Y. "Matter of Albertson, 113 N. Y. 
 
 615; Stillwell v. Doughty, 3 Brad. 434. 
 
ESTATES FOR LIFE. 147 
 
 seizin of the latter, but the life tenant himself may be dis- 
 seized through the machinations of a stranger to the title, 
 and twenty years adverse possession of the estate, would 
 create an extinguishment of the tenant's interest. Such ad- 
 verse possession, however, can in no way affect the rights of 
 the reversioner. He is not chargeable with knowledge of 
 the nature of the occupancy, and his rights cannot be sub- 
 verted by the acts of others over whom he has no control." 
 
 § 72. Possession of the muniments of title. This sub- 
 division need not detain us long. In the colonial days and in 
 the mother country at the present time possession of the title 
 deeds is a matter of considerable consequence. In this 
 country, however, the all but universal system of recording 
 any document effecting the tenure of real property has 
 largely superseded the necessity of holding title deeds. If 
 there is any rule affecting the subject, it should be one in 
 favor of allowing the owner of an estate for life .to retain the 
 possession. This would harmonize with the English rule 
 affecting the subject, and perhaps give some additional secu- 
 rity to the life tenant." This case was decided in 1821 — 
 before the revision of 1830 — and can no longer be regarded 
 as establishing a rule of any particular importance. Senten- 
 tiously, we may say, registration accomplishes all that was 
 originally claimed as an advantage in possessing the actual 
 deeds by which the property was conveyed. Under the Tor- 
 rens system, which now bids fair to become domesticated in 
 the United States, there is even less call than ever for the 
 presence of title deeds". 
 
 § 73. Termination of life estates. In this country an estate 
 for life terminates only with the natural death of the life ten- 
 ant. This is the only method, unless it be that the action of 
 the State in its exercise of the right of eminent domain, can 
 be said to work a termination. Even where the entire prop- 
 erty is taken through condemnation proceedings full com- 
 
 ** Whitney v. Salter, 36 Minn, and the Massachusetts case of 
 
 103; KauflFman v. Pres. Cong., 6 Scanlan v. Wright, 13 Pick, 523. 
 
 Binn. 59. ■" i Sugden, Vendors, 468; Ward 
 
 "See Williams, Real Prop. 375, v. Fuller, 32 Mass. 15. 
 
148 REAL PROPERTY. 
 
 pensation must be made, and the rights of the life tenant to 
 interest on the sum so obtained, would remain inviolate and 
 enforceable in equity. So that, in reality, the original pos- 
 tulate holds true — the estate is only determined by the natural 
 death of the life tenant. The organic law of this country, 
 expressly provides that bills of attainder shall not be passed, 
 and that no crime, however heinous, shall work forfeitures 
 of estate, or corruption of blood. So, too, the old rule of 
 common law extraction, which declared a forfeiture of the 
 estate, whenever the life tenant attempted to grant a greater 
 estate than the one he was possessed of, has no recognition 
 in this country. Generally, it may be said, that all forms of 
 forfeiture are abhorrent in our laws, and the courts are 
 inexorably hostile to any attempts in that direction. 
 
 § 74. Rule as to surrenders. A surrender is defined by 
 Lord Coke, and by other authorities, to be a yielding up of 
 an estate for life or years to him that has an immediate estate 
 in reversion or remainder, or the resignation of a particular 
 estate for life or for years to him in the immediate reversion 
 or remainder ; and it can only be to the person who has the 
 reversion or remainder." It is a conveyance, the converse of 
 a release. The release operates by the greater estate de- 
 scending upon the less ; the surrender is the falling of the 
 less estate into the greater." 
 
 The surrender may be express or implied. The latter is 
 where an estate, incompatible with the existing estate, is 
 accepted by the tenant for life ; as if the lessee take a new 
 lease of the same land.'" But in order that the second lease 
 may operate as a surrender of the first, it is essential that 
 the lease be a valid one ; although it is not necessary that the 
 second lease should be to the first lessee. If given to a third 
 person by the consent of the first lessee, it operates as a sur- 
 render." 
 
 <«Co. Litt. 338, a; Springstein " Willard on Real Prop. 437; 
 
 V. Schermerhorn, 12 Johns. R. Touchstone, 300, 301. 
 357; Comyn's Digest, tit. Surren- '"2 Bouv. Inst. 263. 
 der, a. " Bedford v. Terhune, 30 N. Y. 
 
 R. 453- 
 
ESTATES FOR LIFE. 149 
 
 § 75. Value of life estate, how computed. In Garland v. 
 Crow, 2 Bailey, 24, the court say : " In contemplation of law, 
 an estate for life is equal to seven years' purchase of the fee. 
 To estimate the present value of an estate for life, interest 
 must be computed on the value of the whole property for 
 seven years; and perhaps interest on the several sums of 
 annual interest from the present time to the period at which 
 they respectively fall due, ought to be abated. ' ' The Ameri- 
 can mortuary tables are frequently resorted to as furnishing 
 valuable and reliable data for estimating the probabilities of 
 one's life expectancy. 
 
 § 76. The doctrine of merger examined. The doctrine of 
 merger in its entire scope is one of overshadowing importance, 
 but as applied to estates for life it has little significance. 
 The only functions that merger can perform in so far as this 
 particular estate is concerned, is to declare the lesser estate 
 as absorbed in the greater estate, whenever there is a union 
 of the two in one and the same person." But this union 
 must comprise both the legal and the equitable estate." 
 And here we encounter a familiar principle of the equity 
 jurisdiction, which will refuse to allow the least scope to the 
 doctrine of merger where it will work an obvious injustice or 
 contravenes the declared or presumed intent of the parties." 
 In fact, merger has never been a special pet of the equity 
 jurisprudence." And it is swift to condemn any transaction 
 that presents special features of hardship or of gross 
 inequality. 
 
 "James v. Morey, 2 Cow. 246; i "Winona, etc., R. Co. v. County, 
 
 Greenl. Cruise, 104; Moore v. Luce, 3 Dak. 21; Dougherty v. Jack, 5 
 
 29 Pa. St. 260. Watts, 456 ; Purdy v. Huntington, 
 
 " Jordan v. Cheney, 74 Me. 362 ; 42 N. Y. 334. 
 
 Pratt V. Bank of Bennington, 10 " Bispham's Principles of Eq., 
 
 Vt. 293 ; Allen v. Anderson, 44 Ind. sec. 160. 
 395- 
 
CHAPTER VI. 
 
 DOWER. 
 
 Sec. ^^. Preliminary views. 
 
 78. Definition and nature. 
 
 79. Requisites at common law. 
 
 80. Doctrine of seizin examined. 
 
 81. Who may, be endowed. 
 
 82. What property is subject to the dower. 
 
 83. Legal incidents of dower. 
 
 a. Subordinate to vendor's lien. 
 
 84. While inchoate it is regarded as a vested right. 
 
 85. Lex loci governs in all cases. 
 
 86. How barred, released, or extinguished. 
 
 a. By express agreement. 
 
 b. By equitable estoppel. 
 
 c. By joint conveyance. 
 
 d. By acceptance of testamentary provision. 
 
 e. By divorce, adultery, etc. 
 
 f. By proceedings in the nature of eminent domain. 
 
 87. Doctrine of election examined. 
 
 88. Widow entitled to know the facts before being bound by an elec- 
 
 tion. 
 
 89. Rules for estimating the value of the dower right. 
 
 90. Assignment of dower. 
 
 91. Outline of the method for the admeasurement of dower. 
 
 92. The incident of quarantine. 
 
 93. Typical legislation on the subject. 
 
 § 77. Preliminary. Dower, like most of the incidents of the 
 common law that were brought by the colonists to this coun- 
 try has undergone many serious statutory modifications. In 
 some of the States it has been utterly abolished, and in 
 others never existed. Wherever it is still recognized, like 
 the cognate estate of curtesy, it passes through three dis- 
 tinct gradations before reaching its consummation. It is an 
 estate highly favored in law, although its origin is lost in the 
 mists of pre-historic tradition. As a provision for a depend- 
 ent widow, and as an effective devise for the protection of a 
 maturing family, it has many attributes that commend it to 
 
 [150] 
 
DOWER. 151 
 
 the favorable consideration of the law, and the courts are 
 zealous in preserving its incidents, and protecting its bene- 
 ficiaries.' In treating of the subject, however, it must be 
 borne in mind that the variant character of the legislation in 
 the different States will prevent the co-ordination of the topic 
 into any set series of rules, and it is perhaps inexpedient in 
 a general treatise to attempt any classification or grouping 
 of the different States having analogous provisions on the 
 subject. 
 
 § 78. Definition and nature. Our statutes respecting ' ' dower' ' 
 define it as the use for life of one third of all the lands of 
 which the husband was seized during the marriage relation. 
 "Dower" is defined by the English authorities as the provi- 
 sion which the law makes for a widow out of the lands or 
 tenements of her husband for her support and the nurture of 
 her children.' The rules applicable to a country where landed 
 estates are large and diversified, where the laws of inherit- 
 ance are exclusive, where the theory of dower is subsistence 
 merely, and where there is a strong disposition to free estates 
 from even that charge, do not obtain in a country like ours, 
 where estates are small, and the policy of our laws is to dis- 
 tribute them with each generation, where dower is one of the 
 positive institutions of the State founded in policy and the 
 provision of the widow is a part of the law of distribution and 
 the aim of the statute is not subsistence alone, but provision 
 commensurate with the estate. 
 
 Dower is founded on the wisdom of ages ; so ancient that 
 neither Coke nor Blackstone can trace it to its origin ; wide- 
 spread as the Christian religion ; and entering into the con- 
 tract of marriage of all Christians ; the husband on the most 
 solemn occasion of his life contracting that of all his worldly 
 goods he endows his wife.' 
 
 The power to take private property for public uses is 
 termed the right of eminent domain. In every political sov- 
 ereign community there inheres, necessarily, the right and 
 the duty of guarding its own existence, and of protecting 
 and promoting the interests and welfare of the community 
 
 ' Munger v. Perkins, 62 Wis. 499. " Combs v. Young's Widow, 4 
 'Co. Litt. 30a; 2 Bl. Com. 130. Yerg. (Tenn.), 218. 
 
152 REAL PROPERTY. 
 
 at large. This power, denominated the "eminent domain" 
 of the State, is as its name imports, paramount to all private 
 rights vested under the government and these last are by- 
 necessary implication, held in subordination to this power, 
 and must yield in every instance to its proper exercise. The 
 whole policy of the country relative to roads, mills, bridges 
 and canals, rests upon this single power, under which lands 
 have always been condemned; without the exertion of the 
 power no one of these improvements could be constructed. 
 The exercise of a franchise is subject to the power.* With 
 us dower is of purely statutory origin and is determined by 
 the law of the State where the property is situated. During 
 the life of the husband the right is a mere expectancy or 
 possibility, not being a natural right but rather the creature 
 of statute. The power that gives may increase, diminish or 
 wholly annul the right. Upon the death of the husband the 
 right of the widow becomes vested, prior to that event it is 
 inchoate.' Usually it attaches to wild or unproductive lands 
 — to an equity of redemption and to all real estate of which 
 the husband died seized. It does not affect a pre-emption 
 claim nor estates held by virtue of a trust express or implied, 
 nor in partnership lands until after the payment of the debts 
 and all outstanding obligations of the partnership nor in 
 land contracts that are void for some illegality. 
 
 Dower is an estate for life which the law gives the widow 
 in the third part of the lands and tenements, or heredita- 
 ments of which the husband was solely seized, at any time 
 during the coverture, of an estate in fee or in tail in posses- 
 sion, and to which estate in the lands and tenements the 
 issue, if any, of such widow, might, by possibility, have 
 inherited. In Pennsylvania the sole seizin of the husband is 
 not necessary.' To create a title to dower, three things are 
 indispensable: i. Marriage.' This must be a marriage not 
 
 ' West River Bridge Co. v. Dix, the form of ceremony, or even if all 
 
 6 How. 531. (Per Daniels, J.) ceremony was dispensed with, if 
 
 " Randal v. Kreiger, 23 Wall, 147. the parties agreed presently to 
 
 * Watk. Prin. Con. 38. take each other for husband and 
 
 ' Judge Cooley says in Hutchins wife, and from that time live to- 
 
 V. Kimmell, 31 Mich. 126; s. c. 18 gether professedly in that relation. 
 
 Am. Rep. 164, 166, that "whatever proof of these facts would be suffi- 
 
DOWER. 153 
 
 absolutely void, and existing at the death of the husband ; 
 a wife de facto, whose marriage is voidable by decree, as 
 well as a wife de jure, is entitled to it ; and the wife shall 
 be endowed, though the marriage be within the age of con- 
 sent, and the husband dies within that age." 
 
 2. Seizin. The husband must have been seized some time 
 during the coverture of the estate of which the wife is dow- 
 able.° An actual seizin is not indispensable, a seizin in law 
 is sufficient." 
 
 3. Death of the husband. This must be a natural death ; 
 though there are authorities which declare that a civil death 
 shall have the same effect." 
 
 § 79, Requisites at common law. The three requisites of 
 dower at common law are marriage, seizin of the husband at 
 some time during coverture; and death of the husband." 
 The seizin referred to must be a valid seizin in law." And 
 it has been further held that he must have been seized of a 
 present freehold interest in the land.'* 
 
 Marriage is an institution founded upon mutual consent. 
 That consent is a contract, but it is one sui generis. Its pecu- 
 liarities are very marked. It supersedes all other contracts 
 between the parties, and with certain exceptions it is incon- 
 sistent with the power to make any new ones. It may be 
 entered into by persons under the age of lawful majority. 
 It can be neither canceled nor altered at the will of the parties 
 
 cient to constitute proof of a mar- " i Bouvier Law Diet. tit. Dower, 
 riage binding upon the parties, and " i Greenl. Cruise, 154; Stevens 
 which would subject them and v. Smith, 4 J. J. Marsh, 64; Den- 
 others to legal penalties for a dis- ton v. Nanny, 8 Barb. 618. 
 regard of its obligations. This has '' Durando v. Durando, 23 N. Y. 
 become the settled doctrine of the 330 ; Butler v. Cheatham, 8 Bush. 
 American courts ; the few cases of 594; Atwood v. Atwood, 22 Pick, 
 dissent or apparent dissent being 283 ; Galbraith v. Green, 13 Serg- 
 borne down by a great weight of & R 85. 
 
 authority in favor of the rule as we " Weir v. Tate, 4 Ired. Eq. 264 ; 
 
 have stated it." Torrence v. Carbry, 27 Miss. 697; 
 
 ' Co. Litt. 33, a ; 7 Co. 42 ; Doct. Mann v. Edson, 39 Me. 25 ; Welch 
 
 & Stud. 22 ; Cruise Dig. t. 6, c. 2, s. v. Buckins, 9 Ohio St. 331 ; Pritts 
 
 2, et seq. v. Ritchey, 29 Pa. 71 ; Stevens v. 
 
 ' Co. Litt. 31, a. Smith, supra. 
 
 '"Co. Litt. 31, a. 
 
154 REAL PROPERTY. 
 
 upon any new consideration. The public will and policy- 
 controls their will. An entire failure of the power to fulfill 
 by one of the parties, as in cases of permanent insanity, does 
 not release the other from the pre-existing obligation. In 
 view of the law it is still as binding as if the parties were as 
 they were when the marriage was entered into. Perhaps 
 the only element of a contract, in the ordinary acceptation 
 of the term that exists is, that the contract of the parties is 
 necessary to create the relation. It is the most important 
 transaction of life. The happiness of those who assume its 
 ties usually depends upon it more than upon anything else. 
 An eminent writer has said it is the basis of the entire fabric 
 of all civilized society.'' 
 
 § 80. Doctrine of seizin examined. The rule of excluding 
 dower, where the seizin of the husband was only moment- 
 ary," is not confined to cases where the grantor acts in carry- 
 ing out a naked trust. When a mortgage is given by grantee, 
 at the same time that a conveyance of the land is executed to 
 him, no right of dower attaches, especially where the incum- 
 brance exceeds the value of the estate." 
 
 Transitory or instantaneous seizin. Dower never can attach 
 to the real property of the husband when the seizin of the 
 husband is merely instantaneous, as where he is the inter- 
 mediary, through whom a conveyance is made, or where for 
 ■purposes of raising the money to pay upon the purchase 
 price he is temporarily invested with the title (as for few 
 moments only), and gives a mortgage to secure the purchase 
 price as part of the same transaction." 
 
 The law does not require a release of dower where the 
 husband's seizin was only instantaneous, nor is any release 
 of homestead required in a like case. The intermediary, in 
 whom the fee reposes for an instant, cannot equitably claim 
 to be the owner — he instantly deeds to another person — no 
 consideration passes, to or from him, and the law treats his 
 
 " Story, Confl. L. sec. 109. Y. 541 ; Bradley v. Bryan, 43 N. J. 
 
 "4 Kent Com. 38 ; i Co. Litt. ch. Eq. 400; Brown v. Phillips, 40 
 
 5, sec. 36; 4 Mast. 566; 14 Id. 352; Mich. 270; Perkins v. Davis, 120 
 
 15 Johns. 485 ; 2 Gill. & J. 324. Mass. 408 ; Hauft v. Duncan, 40 la, 
 
 " lb. 254. 
 
 '8 Dusenbury v. Hulbert, 59 N. 
 
DOWER. 155 
 
 relation witli the property as part of a general transaction in 
 wMch lie has no personal concern." 
 
 The doctrine of instantaneous or temporary seizin which 
 excludes dower, whenever such cases occur, is grounded 
 upon the most obvious principles of equity." 
 
 When a person to whom land is conveyed by deed imme- 
 diately conveys to a third party so that in effect both deeds 
 are a part of the same transaction and in furtherance of the 
 same design, the seizin of the grantee is only instantaneous 
 and for a specific purpose and hence the dower interest of 
 the wife does not attach. The fact that the deeds were exe- 
 cuted on the same day is not conclusive evidence that the 
 seizin was instantaneous, indeed, this would seem to be a 
 question for the jury to decide in the light of surrounding 
 facts and circumstances. " 
 
 Such a regulation must be regarded as one of doubtful pro- 
 priety, conditions may not only be conceived but actualized, 
 by which fraudulent transactions can be successfully sup- 
 ported as by the simple devise of withholding the second 
 deed from record and then treating the seizin as perfected, 
 thus investing the wife with all the attributes of the inchoate 
 dower estate, upon which, with favoring co-incidents, vast 
 schemes of fraudulent manipulations may be based. The 
 mere fact that a question is always presented, as, to the 
 instantaneousness of the seizin, which question must be sub- 
 mitted to the interpretation of such juries as by curtesy, we 
 must, editorially, designate as "intelligent, "and then apolo- 
 gize abjectly for the perverted use of the term — is all suffi- 
 cient in itself to condemn the rule as an unfit one to foist 
 upon the law of real property — to add one more uncertainty 
 to the devolution of estates is senseless, and when that ele- 
 ment of uncertainty is one that requires a jury trial to deter- 
 mine, the expense, vexation and delay make the objection 
 all the more italicized. 
 
 "Borden v. Sacket, 113 Mass. '^ Chickeringv. Lovejoy, 13 Mass. 
 
 214: Woodward v. Sartwell, 129 51; Clarke v. Monroe, 14 Mass. 
 
 Mass. 210. 351; Borden v. Sackett, 113, 214; 
 
 ''° Elliott V. Plattor, 43 Ohio St. Hazelton v. Lesure, 9 Allen, 24. 
 i98;Pouderv.Ritzinger, 102 Ind.571. 
 
1S6 REAL PROPERTY. 
 
 § 8l. Who may be endowed. This quegtion is very easy. 
 The Ohio statute has answered it for us — "the widow of any 
 person dying. " At the time of the husband's death she must 
 occupy the legal status of wifehood. It matters not whether 
 the community so regarded her, if, as matter of law, she 
 would be recognized as occupying that relation, her right is 
 inviolable. Even an adulterous intrigue will not affect it, 
 where there has been a condonation of the offense, and while 
 adultery may furnish a valid ground for divorce until the 
 decree is rendered the marital relation exists. Death, of 
 course, severs this relation, and there can be no annulment 
 of the marriage after the death of either party to it. Such a 
 proceeding, if attempted, would outrage our sense of decency 
 as well as our sense of justice, as death has prevented one 
 party from having his or her day in court, and whatever 
 advantages or disadvantages may have accompanied the mar- 
 riage relation are over and gone. Instances are said to have 
 arisen, in the English practice, where the attempt has been 
 made to avoid a marriage after the death of one of the parties 
 to it, in order to bring the survivor within the provisions of 
 a devise, and thus give to him or her certain benefits, but I 
 have been quite unable to discover any such case and none 
 have ever appeared under the American practice. 
 
 § 82. What property is subject to the dower. Generally it 
 may be assumed that dower will attach to all of the lands 
 and tenements of which the husband was seized as an estate 
 of inheritance at any time during the existence of the cover- 
 ture, and also to all lands and tenements of which he held 
 the fee simple in remainder or reversion at the time of his 
 death. This, it will be observed, extends the right of dower 
 to all equitable estates in fee. But it is of the utmost import- 
 ance to note a certain subtlety that lurks even in words of 
 direct import as are here employed. Dower will attach to all 
 legal estates held at any time during the coverture. But it 
 only attaches to such equitable estates as were owned at the 
 time of the husband's death. 
 
 A widow is entitled to dower in all estates of inheritance 
 of which her husband had at any time during coverture been 
 
DOWER. 157 
 
 seized, and in all corporeal hereditaments and incorporeal 
 hereditaments savoring of realty." 
 
 After considerable controversy, in the early stages of our 
 jurisprudence the old common law theory that dower did not 
 attach to the equity of redemption {Mayburry v. O'Brien, 40 
 U. S. 21; Mclver w. Cherry, 8 Humph, Tenn. 713), has been 
 overthrown, and a more liberal policy has been inaugurated. 
 Dower now extends to the equity of redemption, and the 
 courts are swift to protect the widow's rights in such cases." 
 
 The right of dower extends to a share of the proceeds of 
 mines although not opened until after the husband's death, 
 where they are opened on lands held only for mining pur- 
 poses and available only for the minerals and the statutes 
 gave to the widow the ' ' use during her natural life of one- 
 third of all the lands whereof her husband was seized' ' dur- 
 ing marriage. 
 
 The cases are all agreed that a right to dower exists in 
 mines opened during the husband's lifetime." 
 
 The doctrine that a widow is not dowable of mining lands, 
 unless at the time of the death of her husband mines had 
 been opened, is traceable to Stoughton v. Leigh, i Taunt. 402. 
 There the decedent left a large estate, upon which there was a 
 lead and a coal mine, neither of which had been opened ; two 
 other lead and coal mines, which he had leased to tenants, 
 reserving certain rents which were to be paid whether the 
 tenant did or did not open the mines. One of each class of 
 mines had been opened at the time of his death — a lead and 
 a coal mine — which he had leased reserving royalties pay- 
 able in ore and coal. The coal mines had been opened at the 
 time of his death, but the lead mine had not. Two other 
 lead mines and two other coal mines had been opened. 
 
 " I Bishop, Married Women, sec. " Moore v. Rollins, 45 Me. 495 ; 
 
 256. Hendrix v. McBeth, 61 Ind. 473; 
 
 '* Daniel v. Leitch, 13 Grat. 195; 28 Am. Rep. 680; Rockwell v. Mor- 
 
 Harrow v. Johnson, 13 Met. 578; gan, 13 N. J. Eq. 384; Coates v. 
 
 Snyder v. Snyder, 6 Mich. 470; Cheever, i Cow. 460; Stoughton v. 
 
 Fish V. Fish, i Conn. 539 ; Bell v. Leigh, i Taunt, 402 ; Crouch v. 
 
 "Mew York, 10 Paige Ch. 49; Hena- Puryear, i Rand. (Va.), 258; Bil- 
 
 gan V. Harllee, 10 Rich. Eq. 285; lings v. Taylor, 10 Pick. 460; 20 
 
 Barbour v. Barbour, 46 Me. 9. Am. Dec. 533. 
 
158 REAL PROPERTY. 
 
 Deceased was also entitled to minerals lying under lands not 
 his own, and had operated certain mines thereon, and others 
 were unopened. The court held that the wife was dowable 
 of all the open mines but was not dowable of the mines or 
 strata which had not been opened, whether owned by lease 
 or not. The decision may not be without reason, but cer- 
 tainly no reasons are given in the opinion. Clearly as to 
 those lands which had been leased, they had been by the 
 deceased devoted to mining purposes, and the mode of enjoy- 
 ment and source of profit, under all the authorities, had been 
 fixed and determined by the decedent ; and as to the rents 
 which were to be paid whether the mines were opened or 
 not, under all the authorities on. the subject of dower, the 
 widow was entitled to participate in them. 
 
 In Malloney N. Horan, 49 N. Y. iii; s. c. 10 Am. Rep. 335 
 the decisions are examined by Judge Folger, and the conclu- 
 sion is reached that the wife is entitled to dower when the 
 conveyance of the husband in which she joined is set aside 
 as fraudulent as to creditors. The decision seems to settle 
 the law in New York in conformity to the weight of authority 
 elsewhere. As to the effect and operation of a release by a 
 wife of her inchoate right of dower. Judge Folger observes 
 that the wife cannot, neither can a widow, until admeasure- 
 ment, convey or assign her dower. The joining with the 
 husband in his conveyance is but a release by the wife of a 
 contingent future right, and operates against her by way of 
 estoppel. And inasmuch as the release of dower, to be 
 operative, must be in conjunction with the conveyance or 
 other instrument which transfers title to real estate, it fol- 
 lows that if the conveyance or instrument is void, or ceases 
 for any reason to operate, and no title has passed, or none 
 remained, the release of dower does not after that operate 
 against the wife, and she is again clothed with the right she 
 had released. Essentially to the same effect are decisions in 
 Stinson v. Sumner, 9 Mass. 143 ; Robinson v. Pates, 44 Mass. (3 
 Met.), 40; Woodworthy. Paige, 5 Ohio St. 70; Blain v. Harri- 
 son, II 111. 384; Summers v. Babb, 13 111. 483; Morton v. Noble, 
 57 111 176; Porters. Lazear, 109 U. S. 84; bk. 27 L. ed. 865; 
 3 Sup. Ct. Rep. 58. These cases and others which support 
 the claim of dower where the wife joined the husband in a 
 
DOWER. 159 
 
 fraudulent conveyance wliich creditors avoided, we have 
 examined, also all tlie authorities cited upon the other side 
 of the question, but shall not comment on them. It is a 
 familiar remark that dower is a highly favored right in the 
 law ; certainly the right ought to be upheld where it can be 
 without a violation of the legal principles. " As the prevailing 
 current of authority supports the right in most cases, we are 
 disposed to yield to that authority. We think it plain that an 
 inchoate right of dower is not a future estate. The wife's 
 interest is contingent ; does not become vested until the death 
 of her husband, and cannot be conveyed or relinquished ex- 
 cept in the manner pointed out by the statute." The wife 
 cannot, during coverture, convey or release her right of 
 dower to one having no interest in the land, except that 
 which he derived from her release, or to a stranger to the title." 
 Dower right. As dower is not the result of contract, but is 
 a positive legislative institution, it is constitutionally compe- 
 tent for the legislature to authorize lands to be taken by a 
 municipal corporation for a market, street, or other public 
 use, upon an appraisement and payment of their value to the 
 husband, the holder of the fee ; and such taking and payment 
 will confer as absolute title, divested of any inchoate right 
 of dower." This case is commented upon and limited in 
 Simar v. Canaday, 53 N. Y. 298 (1873); Post, sec. 635; Lewis, 
 Em. Dom. sec. 323, and cases; Wheeler y. Kirtland, 27 N. J. 
 Eq. 534. Nor is a widow dowable in lands dedicated by her 
 husband in his lifetime to the public, where the dedication 
 is complete, or has been accepted or acted upon by the 
 municipal authorities." But where land, charged with a 
 dower interest, was taken for a street without notice to the 
 widow, it was held that the municipal corporation was liable 
 for the income therefrom, to be recovered in an action of 
 debt." 
 
 § 83. Legal incidents of dower. No estate actually vests in 
 the wife until the death of the husband, and the assignment 
 
 " r Scrib. Dow., 2d. ed., ch. 30. 25 (1827); Duncan v. Terre Haute, 
 
 ^^ Wilber v. Wilber, 52 Wis. 298. 85 Ind. 104. 
 
 "Moore v. New York, 8 N. Y. ''York Borough v. Welsh, 117 
 
 110(1853). Pa. St. 174; see Mills Em. Dom. 
 
 "Gwynne v. Cincinnati, 3 Ohio, sec. 7; 2 Dillon onMun. Corp. 695. 
 
l6o REAL PROPERTY. 
 
 of the dower interest." These events terminate the uncer- 
 tainty that has heretofore characterized the estate, and it is 
 at once divested of its contingent character and becomes a 
 fixed and positive interest in real property legally designated 
 as an estate for life created by law." A Vermont case holds 
 that the right vests absolutely on the husband's natural 
 death." But her possession is regarded, in law, as a mere 
 elongation of the husband's seizin." Right here it is well to 
 observe a close distinction. While it is true that the hus- 
 band's death is an absolute prerequisite to the vesting of the 
 estate, still that occurrence gives her merely a chose in 
 action, and until the actual assignment of the dower interest 
 the estate is in a nebulous condition which equity will protect 
 from infringement." 
 
 The right of dower is a vested interest." The courts uni- 
 versally protect it, and regard it as a humane and politic 
 provision conducive to the stability of family ties, and the 
 nurture of the children of the marriage. They will not allow 
 the husband to defraud the wife of this expectant right by 
 making a secret conveyance of his property on the eve of 
 marriage, and where the facts were known to the grantee, 
 such conveyances will be promptly set aside as fraudulent, 
 or the incident of dower will be fastened upon the property 
 so conveyed." But the contra view seems to have been 
 adopted in Jenny v. Jenny, 24 Vt. 324. 
 
 It is a general rule that provisions in a will intended for 
 the support of the wife will receive the most favorable con- 
 struction to accomplish the purpose intended. Upon a criti- 
 cal examination of the cases I find none which embarrass or 
 conflict with this proposition ; indeed, it may be said that the 
 
 ™ Hildreth V. Thompson, 16 Mass. 93 U. S. 663; Betts v. Wise, 11 
 
 191; Smith V. Shaw, 150 Mass. 297. Ohio, 219; O'Ferrall v. Simplot, 4 
 
 "Hoots V. Graham, 23 111. 81; Iowa, 381 ; May v. Rumney, i Mich. 
 
 Lawrence v. Miller, i Sandf. 516. 4. 
 
 '"Johnson V. Johnson, 41 Vt. ^* Cranson v. Cranson, 4 Mich. 
 
 '^Windham v. Portland, 4 Mass. 230; Brewer v. Connell, 11 Humph. 
 
 384. 500; Petty V. Petty, 4 B. Men. 215; 
 
 "Andrews V.Andrews, 14 N.J. Youngs v. Carter, 10 Hun, 194; 
 
 L. 141. Klllinger v. Reidenhauer, 6 Serg. 
 
 "^Tameling V. U. S. F. & D. Co., & R. 531. 
 
DOWER. l6l 
 
 principle of interpretation derives its strength not so much 
 from authority as from its own inherent force. 
 
 The law regards with favor the marital relation, and frowns 
 upon the attempts of individuals to sever or interrupt it. In 
 Tenant v. Braies, Tothill, 78, there was a bequest made to the 
 daughter of the testator of a sum of money "if she will be 
 divorced from her husband." The gift was held good, but 
 the condition void. In Brown v. Peck, i Eden's Ch. 140, a 
 testator directed his executors to pay to his niece, Rebecca, 
 "if she lived with her husband, £2 per month and no more; 
 but if she lived from him and with her mother, to allow her 
 ^5 per month." The condition was held to be contra bonos 
 mores, and the legacy of ;£■$ per month simple and pure. In 
 Conrad v. Long, 33 Mich. 78, one-half of the testator's real 
 estate was devised ,to his sister, Elizabeth, "if at any subse- 
 quent time she should conclude not to live with her present 
 husband, Henry Long, as his wife. But if she did continue 
 to live with him, then to the testator's brother." It was held 
 that she took the estate clear of conditions." 
 
 The rule of the common law as to the effect of a husband's 
 acts during the coverture, on the dower interest of his wife 
 in his real estate, is thus stated by Scribner on Dower, vol. I, 
 p. 603, sec. I : "After the right of dower has once attached, 
 it is not in the power of the husband alone to defeat it by any 
 act in the nature of an alienation or charge. It is a right 
 attaching in law, which, although it may never become abso- 
 lute — as if the wife died in the lifetime of the husband — 
 yet, from the moment that the facts of marriage and seizin 
 concur, it is so fixed on the land as to become a title para- 
 mount to that of any person claiming under the husband by 
 subsequent act. The alienation of the husband, therefore, 
 whether voluntary, as by deed or will, or involuntary, as by 
 bankruptcy or otherwise, will confer no title on the alienee 
 as against the wife in respect of her dower, but she will be 
 entitled to recover against such alienee in the same manner 
 as she would have recovered against the heir of the husband 
 had the latter died seized." 
 
 "See, also, Cooper v. Remsen, 5 Johns. Ch. 459; Rice's Probate Law, 151. 
 II 
 
1 62 REAL PROPERTY. 
 
 In Pifer v. Ward, 8 Blackf. 252, it was held that "if a 
 mechanics' lien accrue after the employer's marriage, and 
 the employer die after the accruing of the lien, the right of 
 dower of the employer's widow will be paramount to the 
 lien." And in Bishop v. Boyle, 9 Ind. 169; 68 Am. Dec. 615, 
 it was held that "the widow's right of dower extends to and 
 includes a house erected on land of her husband, and her 
 claim is superior to a mechanics' lien for which the property 
 was sold under a decree against the husband to enforce the 
 lien." The court said: "The wife's dower is a favorite of 
 the law, not resting in contract or resulting from the mar- 
 riage relation. Hers is the elder lien. The mechanic 
 bestows his labor with a knowledge of her prior right to the 
 real estate, and he knows that the house he is building, as 
 brick is added to brick and nail after nail is driven, becomes 
 real estate. He may protect himself by security, or not ven- 
 ture. She is passive, and can do nothing. It is for this 
 reason that she is declared to be a favorite of the law."" In 
 Shaeffer v. Weed, 8 U. S. 511, it was held that "a widow's 
 dower cannot be affected by the lien created by the statute 
 for the benefit of mechanics," etc., "but she is entitled to 
 dower of all the real estate of which her husband was seized 
 during coverture, unless she had released it in the form pre- 
 scribed by law." In Gove v. Gather, 23 111. 634; 76 Am. Dec. 
 711, it was held: "The enforcement of a mechanic's lien 
 for improvements made by the husband in his lifetime will 
 not cut off his wife's right of dower, even to the extent of 
 the value of such improvements."" 
 
 a. Subordinate to vendor s lien. A simple rule may be said 
 to govern this and cognate subjects. All species of liens for 
 the purchase price of the land are accorded superior equities, 
 and in no case are such liens made subordinate to the right 
 of dower. The authorities are not only decisive but unani- 
 mous on this subject, and in cases where the lien assumes the 
 form of a mortgage given to the vendor to secure the pay- 
 ment of the purchase price, the right of dower is subordi- 
 nated to the lien, even where the wife neglects or refuses to 
 
 ^' See, also, Mark v. Murphy, 76 " See, also, Dingman v. Ding- 
 
 Ind. 534. man, 39 Ohio St. 172. 
 
DOWER. 163 
 
 sign the mortgage." And a third party advancing the funds 
 for the first payment on the purchase price, securing himself 
 by a purchase-money mortgage, will acquire superior rights 
 to those of dower." 
 
 As a general rule every kind of lien for the purchase 
 money is superior to the right of dower." In Hugunin v. 
 Cochrane, 51 111. 302, the court said: "There is no doubt that 
 the husband of the plaintiff became invested with a dry naked 
 fee, in law ; but there is as little doubt that Hugunin held a lien 
 as vendor of the premises. That lien was superior to her 
 claim of dower both in law and justice." The wife must take 
 her dower as she takes her husband, cum onere. She may 
 come in and redeem the property, and then and not until then 
 is she entitled to her dower." So a purchase-money mort- 
 gage is good and effectual against the wife of the mortgagor, 
 without her joining in the execution of it. The seizin of the 
 husband is instantaneous only, and it is a well settled rule 
 that in such a case no estate nor interest can intervene." By 
 parity of reasoning if a man purchases land and as a part of 
 the same transaction gives back a mortgage for the purchase 
 price, the widow of the purchaser will be denied a dower 
 interest in the land so purchased, until the property is cleared 
 of the incumbrance." 
 
 § 84. While inchoate it is regarded as a vested right. While 
 the inchoate right of dower must be regarded as a vested 
 right of value, dependent upon the contingency of survivor- 
 ship for its complete enjoyment, it is not that separate prop- 
 erty that passes by a conveyance, but a right, that under 
 appropriate circumstances, the beneficiary may release. It 
 is of a peculiar character and before assignment, under the 
 decree of some court of competent jurisdiction, the wife has 
 no seizin. Dower rights are among the most salutory provi- 
 sions of the common law. They were originally created 
 
 "Wheatley v. Calhoun, 12 Leigh « Crafts v. Crafts, 2 McCord. L. 
 
 (Va.), 264; Eslava v. Lepretre, 21 54. 
 
 Ala. 504; Stow v.Tiflft, 15 Johns. 459. ■" i Jones Mort, sec. 464. 
 
 "Kingv. Stetson, 11 Allen, 407; « 4 Kent Com. 38; Maybury v. 
 
 see, also, Scribner on Dower, 555. Brien, 40 U. S. 21 ; Bullard v. 
 
 ^' Stewart, Husband and Wife, sec' Bowers, 10 N. H. 500. 
 258 ; Scribner on Dower, 441, 555. 
 
164 REAL PROPERTY. 
 
 and enforced as a provision for the wife on the decease of 
 the husband. But it is not such an interest as the wife can 
 control by way of active interference in the realty, during 
 coverture. The husband retains, for all practical purposes, 
 the direction of the estate, and the wife, in harmony with 
 other common law precepts, is considered as a cypher unless 
 she should have the hardihood to survive him. There are, 
 however, certain well recognized methods by which the 
 dower interest may be effectually barred, during coverture, 
 even as when the wife executes a formal release of the in- 
 terest, which is only made to the one who holds the estate 
 in which the right might otherwise be asserted. This mode 
 is held to be exclusive." 
 
 The last case cited holds that a married woman, during the 
 husband's lifetime, cannot convey her inchoate right of dower 
 and she is not estopped even by the solemn recitals of her 
 own deed, from asserting her right and she may also success- 
 fully contest any attempt, on the part of the grantee, to 
 require her to refund the consideration paid. The convey- 
 ance is simply void for any purpose except as cumulative 
 evidence of the purchaser's imbecility in attempting to create 
 an interest that the law will not uphold. The inchoate right 
 of dower is a valuable right which will be guarded and pre- 
 served. This right of the wife appeals as strongly for judi- 
 cial protection as the vested rights of the widow. Notwith- 
 standing this dictum it is held that the wife has no interests 
 in the lands of her husband that requires compensation to be 
 allowed her where such lands are seized by virtue of the emi- 
 nent domain." 
 
 The right of the wife to an interest in the real estate of the 
 husband is contingent, and is not a vested or existing right 
 such that the Legislature may not at any time modify, 
 change, or entirely abolish." 
 
 " Mason v. Mason, 140 Mass. 63. American Law of Administration, 
 
 *' Simar v. Canaday, 53 N. Y. 298; 225; Ligare v. Semple, 32 Mich. 
 
 Moore V. The Mayor, 8 N. Y. no; 438; Bennett v. Harns, 51 Wis. 
 
 Mills V. Van Voorhies, 20 N. Y. 251 ; Wallace v. Reddick, 6 West 
 
 412. Rep. 769; 119 111. 151 ; United 
 
 « Connor v. Elliott, 59 IT. S. ; 18 States v. Fox, 94 U. S. 315; 24 L. 
 
 How. 59t; 15 L. Ed. 497; Barbour Ed. 192; Cooley Const. Lim. 360, 
 
 V. Barbour, 46 Me. 9; i Woerner 361. 
 
DOWER. , 165 
 
 McLean J., in Johnston v. Vandyke, 6 McLean, 422, says: 
 "It is not easy to define the right of dower before the death 
 of the husband. It is not only an inchoate right, but contin- 
 gent. It depends upon the death of the husband. If he sur- 
 vive his wife, she has no right transmissible to her heirs, nor 
 during the life of her husband can she give it any form of 
 property to her advantage. * * * So long as the hus- 
 band shall live, it is only a right in legal contemplation, 
 depending upon the good conduct of the wife and the death 
 of the husband. Until the death of the husband, the right, 
 if it may be called a right, is shadowy and fictitious, and, 
 like all rights that are contingent, may never be vested. ' ' 
 
 In Moore v. New York, 8 N. Y. no, the court says, in 
 speaking of the inchoate right to a claim for dower, that it is 
 a right ' ' contingent upon the death of the husband. Such a 
 possibility may be released, but it is not, it is believed, the 
 subject of grant or assignment. It is not of itself property, 
 the value of which may be estimated, but an inchoate right, 
 which, on the happening of certain events, may be consum- 
 mated so as to entitle the widow to demand and receive a 
 freehold estate in the land." 
 
 In Hinds v. Stevens, 45 Mo. 209, Judge Bliss, in discussing 
 the effect of a partition proceeding on this right says : " If 
 the land be divided in specie, her inchoate right attached at 
 once to the land thus set apart, to the husband in severalty ; 
 and if it be sold, I know not how it would be possible to so 
 estimate the value of that shadowy right, as to pay her or 
 invest for her any portion of the proceeds of the sale. ' ' And 
 in Durrett v. Piper, 58 Mo. 551, the court, through Wagner J., 
 says : " A dower interest upon the part of the wife, while the 
 husband is living, is an inchoate and contingent right. Its 
 value depends wholly upon the death of the husband. It is 
 a mere possibility, which may be released, but cannot be the 
 subject of the grant or assignment. The covenant being for 
 an indemnity against a claim of dower, it is obvious that no 
 breach could happen till the contingency arose which would 
 legally vest in the wife a valid or substantial claim. ' ' From 
 all the authorities, we conclude that the wife is not the 
 owner of any estate or vested right in the property of which 
 her husband is seized. But she is the owner of a contingent 
 
1 66 REAL PROPERTY. 
 
 interest to dower, however ; and the question is whether the 
 owner of such a contingency in real estate is an owner of 
 property in such a sense as to require that she be made a 
 party to a tax suit in order to bar that right. 
 
 "It is difficult," says Mr. Scribner," "to state with preci- 
 sion the nature and quality of inchoate dower interest when 
 considered as a right of property. It is 'a right attaching by 
 implication of law, which although it may possibly be never 
 called into effect (as when the wife dies in the lifetime of the 
 husband), yet, from the moment that the fact of marriage 
 and of seizin have occurred, is so fixed on the land as to be- 
 come a title paramount to that of any other person claiming 
 under the husband by a subsequent act. "° It is a substantial 
 right, possessing in contemplation of law, attributes of prop- 
 erty, and to be estimated and valued as such." It is not a 
 lien." After this right has once attached, it is held by the 
 wife entirely independent of the husband, and it cannot be 
 affected by any act or omission on his part."" 
 
 Upon general principles of equity, it is difficult to find a 
 reason why an inchoate right of dower should not be pro- 
 tected against extinguishment by the foreclosure of a naort- 
 gage; especially where the husband has parted with his 
 whole estate in the land, and can no longer be regarded as, 
 in any sense, representing the interests of the wife. Cover- 
 ture is no bar to the maintenance of a suit in equity, and it 
 is the policy of our legislation to permit married women to 
 assert, protect, and sue for their separate rights of property. 
 A woman entitled to an inchoate right of dower cannot be 
 regarded as "holding" under her husband, as she certainly 
 has no estate in possession. But she may well enough be 
 considered as "claiming" under him. When her dower is 
 assigned, her estate is a continuance of her husband's. Her 
 inchoate right of dower is a right of a very peculiar nature. 
 It is a right of which nothing but her death or voluntary act 
 can deprive her, and so it is something more than a mere 
 possibility. Ordinary Statutes of Limitations do not run 
 
 " 2 Scribner, Dower, 5. m Shell v. Duncan, 31 S. C. 565. 
 
 '"Park, Dower, 237; Cunning- "shell v. Duncan, supra, and 
 
 ham V. Shannon, 4 Rich. Eq. 140. cases there cited. 
 " 2 Scribner, Dower, 5. 
 
DOWER 167 
 
 against it, so that adverse possession as against her husband 
 will not deprive her of it. And although she cannot convey- 
 or alienate it, except by joining in a deed with her husband 
 to release it, and cannot protect it from waste, and it is not 
 liable to be taken by legal process, yet her husband cannot 
 bar or encumber it. As was said 'by Chief Justice Parker in 
 Bullardw. Briggs, 7 Pick. 533, it is "a valuable interest, which 
 is frequently the subject of contract and bargain." "It is 
 more than a possibility, and may well be denominated a con- 
 tingent interest. " In that case it was held that where a wife 
 joined with her husband in releasing her dower to a mort- 
 gagee, and the husband, in consideration of such release, 
 conveyed the equity of redemption to a trustee for her 
 benefit, the conveyance could not be avoided by his credit- 
 ors, if the value of the dower was equal to that of the equity 
 conveyed. 
 
 In Bacon v. Bowdoin, 22 Pick. 401, it was decided that a ten- 
 ant for years, or even the owner of a mere easement in land, 
 might bring a bill to redeem a mortgage. And we think it 
 could not be doubted that the owner of a life estate in 
 remainder, or other contingent estate, might redeem. After 
 the death of the husband, and before assignment of dower, 
 the widow has no estate which she can enter upon or con- 
 vey ; yet undoubtedly she has an interest sufficient to sup- 
 port a suit for redemption." <■ { \ 
 
 In Burns v. Lynde, 6 Allen, 305, a wife having an inchoate 
 right of dower was allowed to maintain a suit in equity to 
 set aside a deed purporting to release her dower, which had 
 been executed by her in blank and afterwards filled up ; and 
 a decree was made for a reconveyance to her of the right of 
 dower by the grantee in the deed. That case goes very far 
 in principle to sustain the conclusion to which we have come 
 on reading the cases. 
 
 An inchoate right of dower is not defeated by a tax sale, 
 instituted under a statute demanding such a sale, if the lien 
 for the taxes attached after the dower right had become a 
 fixity by the concurring facts of marriage and seizin on the 
 
 "Eaton V. Simonds, 14 Pick. 98; Farwell v. Cotting, 8 Allen, 211. 
 
l68 REAL PROPERTY. 
 
 part of the husband." And generally the -widow is not 
 chargeable with taxes or assessments.'" 
 
 An ordinary execution sale conveys to the purchaser all 
 the right, title and interest of the defendant in execution, 
 but it has no effect upon the inchoate dower of the wife. It 
 was clearly the intention of the Legislature to give the same 
 effect to a tax deed, under regular and valid proceedings, 
 that a deed under a general judgment would have — "no 
 more, no less. " "A tax title is a derivative title."" Says 
 Judge Black: "It must be taken as settled law that pur- 
 chasers at these sheriff's sales, raade on executions in tax 
 suits, acquire only the right, title and interest of the defend- 
 ant in the tax suits.'"" 
 
 § 85. Lex loci governs in all cases. It is an elementary rule 
 of law that all regulations affecting real property are peculiar 
 to the State in which such regulations originate, and the 
 property itself is found. Our scheme of government would 
 never tolerate the interference of one jurisdiction with an- 
 other with regard to landed property situated in one State, 
 and which the legislation of another State sought to regulate. 
 Dower is in all instances under the absolute control of State 
 legislation, and so long as this legislation does not contra- 
 vene some expressed or implied recital of the organic or fed- 
 eral law it is of controlling weight in determining all ques- 
 tions relating to the topic. We must then look exclusively 
 to the statutory enactments of the State for the rules govern- 
 ing dower, and we must always remember that those rules 
 must be the ones that were in force at the time of the hus- 
 band's decease — an entirely new code may have gone into 
 effect the day after his death, but the dower rights of his 
 widow would be in no wise affected thereby." 
 
 § 86. How barred, released or extinguished. The right 
 may be defeated in various ways; as by the wife's elopement 
 
 " Shell V. Duncan, 31 S. C. 565. 65; Ware v. Owens, 42 Ala. 212; 
 
 "Taylor V. Bentley, sRedf. 41. Burnett v. Burnett, 46 N. J. Eq. 
 
 " Gitchell V. Kreidler, 84 Mo. 472. 144; Mitchell v. Word, 60 Ga. 525 ; 
 
 "Powell V. Greenstreet, 95 Mo. Moore v. Kent, 37 Iowa, 20; Lamar 
 
 13; Evansv. Robberson, 92M0. 192. v. Scott, 3 Strob. 562; Sutton v. 
 
 "Sturtevant v. Norris, 30 Iowa, Askew, 66 N. C. 172. 
 
DOWER. 169 
 
 or adultery, by a joint conveyance duly executed and 
 acknowledged, by marriage settlement, or ante-nuptial con- 
 tracts, stipulating for the relinquishment of dower rights. 
 It is also inoperative as to property foreclosed by virtue of a 
 mortgage given for the purchase price of the estate ; and as 
 against a mortgage given before marriage. In some of the 
 States a sale on execution by a referee or sheriff of the prop- 
 erty in order to satisfy a debt, bars the dower interest and 
 so of a sale to satisfy a delinquent tax. A dedication of the 
 real estate for the uses of the public, is entirely free from all 
 incumbrance in the way of dower, and similarly an equitable 
 estoppel may be relied upon to defeat a dower right and a 
 divorce a vinculo, in case the wife is the transgressor, will 
 prevent the successful assertion of the claim. The right of 
 dower being no part of the husband's estate is not defeated 
 by insolvency proceedings against him." 
 
 The right may be defeated by any claim which would have 
 defeated the husband's seizin at common law, by alienage — 
 a rule now generally changed ; by foreclosure of a mortgage 
 made by him before marriage, or made for purchase money 
 after marriage ; in some States, by sale on an execution for a 
 debt ; by sale for taxes ; by an exercise of the right of emi- 
 nent domain ; by dedication to a public use ; but not by an 
 assignment in insolvency or bankruptcy. The right raay be 
 barred by divorce a vinculo, she being the delinquent; by 
 elopement and adultery; by a jointure; by a joint convey- 
 ance duly acknowledged — the common method; by equit- 
 able estoppel; or by taking what he wills her." 
 
 Release of dower is not required in a conveyance of real 
 property held by the grantor in his capacity of trustee and 
 without any beneficial interest in himself." So, in a deed 
 from joint tenants no release of the wife's dower is required ; 
 nor is it required in a conveyance of wild land; nor is a 
 release of dower required when a jointure is settled upon the 
 wife in lieu of her dower interest." 
 
 «» Lazear v. Porter, 87 Pa. St. 513; Eq. Jur., vol. I, sec. 624 et sec ; 4 
 Barth v. Lines, 118 111. 382; Lenow Kent, 35 ; Scribner on Dower, 
 v. Fones, 48 Ark, 560 ; see Pome- " Anderson's Law Diet, 
 roy's Eq. Jur., vol. 3, index ; Story, *' 4 Kent's Com. 42. 
 
 «5Id. 
 
170 
 
 REAL PROPERTY. 
 
 a. By express agreement. In New York it has been held 
 that husbands and wives may legally contract with each 
 other in reference to their separate estates." That they may 
 become agents for each other." That a husband may assign 
 to his wife a chose in action," and i.t has been recently held 
 that the common law disability of a married woman to engage 
 in a business as a copartner or jointly with her husband, was 
 removed by chapter 90 of the Laws of i860." Under these 
 decisions if a married woman can release her dower rights 
 through an attorney, she can appoint her husband such 
 attorney. 
 
 Mr. Bishop says: "It is duly affirmed that the law abso- 
 lutely casts upon the wife an estate in the lands of the hus- 
 band, whereas it does not undertake to do so where, by 
 agreement, the parties have the fixed rule which shall gov- 
 ern. The law operates in cases where there is no contract, 
 but does not operate where the parties have for themselves 
 agreed upon the mode in which marital rights shall attach. 
 The law does not assume to override the agreement of the 
 parties, but to furnish a rule where there is no agreement. 
 To be sure, there must be an effective agreement or convey- 
 ance. If there is not, the law will prevail. There is little, 
 if any, diversity of opinion upon the general proposition that 
 parties may, by contract, intercept the line of descent, 
 although there is some conflict as to what must be shown to 
 support the contract. The rule long has been that dower 
 and kindred rights may be excluded by the contract of the 
 parties."" 
 
 Speaking of contracts of this class, Mr. Bishop says: "It is 
 doing what is done every day in other things, namely : pro- 
 viding a rule by agreement to be applied instead of the rule 
 which the law would furnish in the absence of an agree- 
 ment."" 
 
 b. By equitable estoppel. Before the principles of equity juris- 
 prudence became firmly established in this country, it was 
 
 " Owen V. Cawley, 36 N. Y. 600; " Snow v. CaflEe, 122 N. Y. 308; 9 
 
 Bodine v. Kileen, 53 N. Y. 93. L. R. A. 593. 
 
 " Knapp V. Smith, 27 N. Y. 277. ^^ jj. 
 
 "" Seymour v. Fellows, 77 N. Y. " i Bishop, Married Women, sec. 
 
 178. 418, 427. 
 
DOWER. 171 
 
 quite fashionable in legal circles to indulge in long tirades 
 upon the general odiousness of the rules of estoppel. But, 
 fortunately, with the continued exposition of the true prin- 
 ciples that underlie the doctrine of estoppel, the former pre- 
 judice is fading away. It is now generally admitted that the 
 old theory of the common law as to the oneness of husband 
 and wife is no longer tenable, and consequently we are 
 obliged to recognize the force and legality of contracts made 
 between them. It is undoubtedly competent for a wife to 
 enter into an agreement, ante-nuptial or otherwise, by which, 
 for a valuable consideration, her right of dower may be de- 
 feated through the application of the principles of estoppel." 
 And the celebrated case of Yale v. Dederer, 68 N. Y. 329, 
 places this right of contract and the rule in estoppel solely 
 on the ground that the enabling acts have given her the 
 right to contract with reference to any interest, legal or 
 equitable that she may hold. We need not pursue this sub- 
 ject further, as the proposition is not disputed by any recent 
 case in this country. 
 
 In Gilbert v. Reynolds, 51 111. 513, it was held that a widow 
 may by her laches, estop herself from claiming dower, and 
 in Collins v. Wood, 63 111. 285, and Aliens. Allen, 112 111. 323, 
 it was held that acts and conduct sufficient to constitute an 
 equitable estoppel would bar the right. In Hoppin v. Hoppin, 
 96 111. 265, it was held that her covenant of warranty against 
 all incumbrances would operate to prevent her from after- 
 wards setting up a claim of dower. In Torey v. Minor, i 
 Smedes & M. Ch. 489, it was held that a covenant of the 
 ancestor of the widow barred her claim to dower. And in 
 Skinner v. Newberry, 51 111. 203, where moneys were due the 
 testator at his decease upon executory contracts for the sale 
 and conveyance of real estate, it was held that the widow 
 "by claiming her share of the purchase money, cuts off her 
 right of dower in the lands sold. ' ' 
 
 The widow's right of dower is unaffected by a sale of the 
 property unless she bars her right by some act which, in a 
 court of equity, would constitute it a fraud in her to insist 
 upon it. All purchasers are supposed to examine the records 
 
 "> Elmendorf v. Lockwood, 57 N. Y. 322. 
 
172 REAL PROPERTY. 
 
 and know what they are buying and to purchase with a 
 knowledge of the state of the dower interest. The familiar 
 maxim "caveat emptor" applies, and if they blindly bid off the 
 land without inquiring whether the widow has relinquished 
 her dower rights, or consented to a sale by electing to take a 
 share of the proceeds in lieu thereof, it is their folly and they 
 have no one to blame but themselves." 
 
 A woman cannot, under the New York statutes, enforce 
 dower rights in land purchased with her husband's money 
 and conveyed to a third person, who has contracted in writ- 
 ing to permit the husband to receive all the benefit of and 
 have full control over the property." 
 
 It is very logical from the principles already stated to 
 formulate the rule that a married woman who relin- 
 quishes her right of dower in the lands of her husband 
 shall not be heard to dispute the deed by which such relin- 
 quishment was accomplished." There is, however, a spe- 
 cies of conveyance, quite common in actual experience, where 
 the wife joins in a conveyance of the husband's realty with 
 the intent upon his part to defraud his creditors. The ques- 
 tion — and it is an important one — is "can the wife be 
 estopped to claim dower against a purchaser for a valuable 
 consideration from the grantee?" The decision of Allen G. 
 Thurman, when chief justice of Ohio, in the celebrated case 
 of Wood-worth v. Paige, 5 Ohio St. 70, is illustrative of the 
 learning upon this question. His honor says: " It would 
 seem obvious that if the deed of the husband and wife was 
 executed for a sufficient consideration, and was invalid only 
 by reason of the intent to defraud creditors, she ought to be 
 barred of her dower as against the grantee and his privies. 
 For as between her and them, there is no reason why her 
 release, made for a sufficient consideration, should be avoided. 
 But the case is quite different, I apprehend, where there is 
 no consideration to uphold the deed ; and it can only be up- 
 held by the application of the doctrine that as between 
 fraudulent grantor and grantee, the title of the latter is good. 
 For why, and in what sense is the deed fraudulent? And 
 
 " Owen V. Slatter, 26 Ala. 547. " Usher v. Richardson, 29 Me. 
 
 "Phelps V. Phelps, 143 N. Y. 415; Farley v. Eller, 29 Ind. 322. 
 197. 
 
DOWER. 173 
 
 why is it that the title of the grantee, who has paid no con- 
 sideration, is nevertheless good? It is fraudulent simply be- 
 cause it is an attempt to place the property beyond the reach 
 of the husband's creditors; and the title of the grantee is 
 good, except as against the creditors, simply because no court 
 will aid a party to avoid his executed contract made for a 
 fraudulent purpose. But so far as the wife is concerned, she 
 places nothing beyond the reach of the creditors to which 
 they are entitled. It is the husband's estate alone, and not 
 her dower right, that is liable for his debts, and that estate he 
 can convey without her joining in the deed. Her execution of 
 the deed adds nothing to its efficacy so far as his estate is 
 concerned; it simply releases her dower, which the credit- 
 ors have no right to touch. How then can it be said that she 
 is a fraudulent grantor? Whom does she defraud? Either by 
 deed or by avoiding it so far as to claim dower? Not the 
 creditors, for they had no right to her dower. Not the gran- 
 tee, for he paid no consideration for the conveyance. Not a 
 purchaser with notice from the grantee, for such purchaser 
 is in no better condition than the grantee himself. How 
 then, can it properly be said that the deed is her executed, 
 fraudulent contract or conveyance, against which she ought 
 not to be relieved, when its execution does not, and cannot 
 defraud anybody?" This reasoning seems invulnerable and 
 embodies a rule of real property that must be of frequent 
 application. A failure to observe it has led to rank injustice, 
 as it has been supposed by many lawyers skilled in the law 
 of real property that her deed executed under such circum- 
 stances will estop all assertion of any interest in the estate 
 conveyed, whereas, her dower rights remain intact and can 
 be enforced before the appropriate tribunal. 
 
 c. By joint conveyance, how barred or released. In the vast 
 majority of cases, dower is barred by the wife's joining with 
 the husband in the alienation of the property. The deed or 
 instrument of conveyance should contain a specific recital to 
 the effect that the wife relinquishes all right of dower to the 
 premises, and in most of the states it is the duty of the officer 
 taking the acknowledgment, to certify that on a separate 
 examination, apart from her husband, the wife, being duly 
 apprised of the nature of the instrument, admitted that she 
 
174 REAL PROPERTY. 
 
 signed it for all the purposes therein expressed. This is de- 
 cidedly the better method, but there are cases holding that 
 these latter formalities may be dispensed with, and resort 
 had to the facts surrounding the transaction to show that 
 she intended to release her dower interest." Generally the 
 law will not indulge the presumption that she intended to 
 release her dower interest where the deed itself is silent on 
 the subject." The statutes vary on this subject, and the 
 statutory requirements in the various States should be 
 strictly observed." But if the wife be an infant her right of 
 dower is not barred by joining in the conveyance with her 
 husband." There are two well known maxims of the com- 
 mon law that are very much in evidence in this connection, 
 viz.. No right can be barred until it is accrued, and no title 
 to a freehold can be barred by a collateral satisfaction. 
 Dower may be barred by the jointure, but this subject will 
 be treated specifically." 
 
 Dower, release of. If a married woman of sufficient mental 
 capacity, without duress or misrepresentation as to the nature 
 of the instrument, joins in a deed of her husband's to release 
 her dower, and suffers it to be delivered to the grantee, she 
 cannot afterwards avoid it on the ground that she was 
 induced to execute it by fraud or undue influence of her hus- 
 band, or of another co-grantor, without showing that the 
 grantee knew of or participated in the fraud." 
 
 It has been said that a wife cannot execute any valid 
 release of her dower in the real estate of her husband in any 
 other way than by joining with him in a conveyance to a 
 third person." The release must, at all events, accompany 
 or be incident to the conveyance to another. And the right 
 of dower again attaches, upon a reconveyance of the real 
 estate to the husband, or upon his becoming in any other 
 manner vested in his own right with the title thereto." And 
 if the conveyance is declared to be void or ceases for any 
 
 " Birge V. Smith, 27 N. H. 332. 617; Sandford v. McLean, 3 Paige 
 
 " Westfall V. Lee, 7 la. 12. Ch. 117. 
 
 " Grove v. Todd, 41 Md. 633 ; Car- " i Cruise's Dig. 213. 
 
 son V. Murray, 3 Paige Ch. 483 ; " White v. Graves, 107 Mass. 305. 
 
 Belcher v. Weaver, 46 Tex. 293. '° Carson v. Murray, 3 Paige, 483. 
 
 '' Priest V. Cummings, 16 Wend. " Id. 
 
DOWER. 175 
 
 reason to operate, and no title has passed, or none remained, 
 the release of dower does not operate against the wife and 
 she is again cloched with the right which she had released. 
 Such is the familiar case of a wife joining with her husband 
 in the execution of a mortgage, and thereby releasing her 
 right of dower. On the satisfaction of the mortgage her 
 right is restored. And so where a deed has been executed 
 by the husband with full covenants, in which the wife has 
 joined and afterwards the grantee has sued for a breach of 
 the conveyance, and has recovered full damages, it has been 
 held, the husband dying, that the widow has a right of 
 dower in the premises." The principle which governs is 
 this: The release of an inchoate right of dower operates 
 against a married woman only by way of estoppel. An 
 estoppel must be reciprocal, and binds only in favor of those 
 who are privy thereto. Such a release can be availed of only 
 by one who claims under the very title created by the con- 
 veyance, with which the release is joined. A release to a 
 stranger to that title does not extinguish the right of dower. '^ 
 
 d. By acceptance of testamentary provision. It must never be 
 inferred that the law will sanction the acceptance by the 
 widow of a provision made by a testate husband, and at the 
 same time and in addition thereto, extend to her the right of 
 dower; one or the other must be relinquished, she cannot 
 have both, and, as we have seen in» a previous section, she 
 must exercise her right of election. It will be seen then 
 that a widow by accepting the provisions in her favor con- 
 tained in her husband's will, is barred of her dower right. 
 This rule is universal. 
 
 e. By divorce, adultery, etc. A divorce a vinculo matrimonii 
 bars the right of dower, but in those States where such 
 divorce is authorized by statute, provision is made for pre- 
 serving the dower right of the wife, unless the divorce be 
 granted for her misconduct." 
 
 ^'' Stinson v. Sumner, 9 Mass. 143. more v. Miltimore, 40 Pa. 151 ; Rice 
 
 ^ Harriman v. Grey, 49 Me. 537. v. Lumley, 10 Ohio St. 596 ; Schif- 
 
 *^ McCraney v. McCraney, S la. fer v. Pruden, 64 N. Y. 47 ; Forrest 
 
 232 ; Dobson v. Butler, 17 Mo. 87 ; v. Forrest, 6 Duer, 102 ; McCafiferty 
 
 Whitsell V. Mills, 6 Ind. 229; Bur- v. McCafferty, 8 Blackf. 218; Davol 
 
 dick v. Briggs, 11 Wis. 126; Milti- v. Rowland, 14 Mass. 219; Gleason 
 
176 REAL PROPERTY. 
 
 A divorce a mensa et thoro is not a bar of dower." 
 In the leading case of People v. Baker, 76 N, Y, 78 ; 32 Am. 
 Rep. 274, the husband had been married in the State of Ohio 
 in the year 1871, and thereafter the married couple resided 
 in the State of New York. Some time afterwards the wife 
 returned to the State of Ohio, and began her action against 
 the husband for an absolute divorce on the ground of gross 
 neglect of duty. The husband was domiciled in the State of 
 New York during the pendency of such divorce proceedings 
 in the State of Ohio, and did not appear in or plead to such 
 action. Divorce was granted. The husband, still domiciled 
 in the State of New York, after such judgment of divorce, 
 married again, whereupon he was indicted in the court of 
 New York for bigamy. Being convicted, an appeal was 
 taken. Thereafter the appeal from such judgment was 
 finally considered in the Court of Appeals of the State of 
 New York, and the conviction was then affirmed. The court, 
 among other things, considered fully the question: "Can 
 a court in another State adjudge to be dissolved, and at an 
 end, the matrimonial relation of a citizen of this State, domi- 
 ciled and actually abiding here throughout the pendency of 
 the judicial proceedings there, without a voluntary appear- 
 ance by him therein, and with no actual notice to him 
 thereof, and without personal service of process on him in 
 that State?" The court answered this question squarely in 
 the negative, and that, too, after reviewing the federal deci- 
 sions bearing on the subject. Many citations are made of 
 New York decisions and those of other States by Judge Fol- 
 ger, who pronounced the judgment of that court. So, too, 
 in the case of Jones y. Jones, 108 N. Y. 415, although the Court 
 of Appeals of New York upheld a divorce of a New York 
 marriage by the courts of Texas, it was done because the 
 
 V. Emerson, 51 N. H. 405; Gould 85; Grain v. Cavana, 36 Barb. 410; 
 
 V. Crow, 57 Mo. 200 ; Calame v. Dean v. Richmond, 5 Pick. 461 ; 
 
 Calame, 24 N. J. Eq. 440 ; Lakin v. Gee v. Thompson, 11 La. Ann. 657 
 
 Lakin, 2 Allen, 45 ; Wait v. Wait, 4 Watkins v. Watkins, 7 Yerg. 283; 
 
 N. Y., 95; Kade v. Lauber, 16 Abb. Walsh v. Kelly, 34 Pa. 84; Thayer 
 
 Pr. (N. S.), 288 ; 48 How. Pr. 382 ; v. Thayer, 14 Vt. 107 ; Bryan v. 
 
 Young V. Gregory, 46 Mo. 475. Batcheller, 6 R. I., 546; Seagrave 
 
 *" Clark V. Clark, 6 Watts & S. v. Seagrave, 13 Ves. Jr. 443. 
 
DOWER. 177 
 
 husband, who was domiciled in the State of New York when 
 the wife began her action for divorce in the courts of the 
 State of Texas, appeared in said action, and answered to the 
 merits of the action. The Court of Appeals of the State of 
 New York was careful to announce in its judgment "that the 
 -marriage relation is not a 'res' within the State of a party 
 invoking the jurisdiction of a court to dissolve it, so as to 
 authorize the court to bind the absent party, a citizen of an- 
 other jurisdiction, by substituted service, or actual notice of 
 the proceeding, given without the jurisdiction of said court ; 
 and, like other contracts, the contract of marriage cannot be 
 annulled by judicial sanction without jurisdiction of the 
 person of the defendant. ' ' And also the case of Williams v. 
 Williams, 130 N. Y. 193; 14 L. R. A. 220, decided in Decem- 
 ber, 1 89 1, is in point, as illustrating the attitude of the courts 
 of New York on this question of divorce, so far as concerns 
 a judgment rendered by the courts of a State different from 
 that in which the domicil of the defendant was had, and to 
 which action for divorce he neither appeared nor answered. 
 
 Mr. Joel Bishop in his recent elaborate work on ' ' Marriage, 
 Divorce and Separation," says (vol. i, § 1523): "In law and 
 commonly in morals, adultery in one of the married parties 
 is deemed the highest matrimonial offense against the other, 
 and wherever the right to dissolve the marriage bond is 
 acknowledged, adultery is accepted as adequate cause for it. 
 In a part of our States it is a crime punishable by indictment. 
 To be ground for divorce it must partake of the criminal 
 quality, so that the carnal act committed by an insane per- 
 son, or through an innocent mistake of facts, will not 
 suffice. By an ancient English statute, which is accepted as 
 common law in considerable numbers of our States, and with 
 more or less modifications re-enacted in most of the others, 
 it bars dower though there has been or can be no divorce for 
 it.'° According to a Delaware case, a wife does not forfeit 
 dower, by eloping from her husband and living in adultery 
 
 **The distinguished author cites 251; Thornburg v. Thornburg, 18 
 
 in support of these assertions inter W. Va. 522 ; Gaylor v. McHenry, 
 
 alia Giles v. Giles, 22 Minn. 348; 15 Ind. 383; Earle v. Earle, 9 Tex. 
 
 Cogswell v. Tibbetts, 3 N. H. 41 ; 630; Sistare v. Sistare, 2 Root, 468; 
 
 McAllistei V. Norvenger, 54 Mo. Polier v. Barkley, 15 Ala. 439. 
 12 
 
178 REAL PROPERTY. 
 
 ■with another man, if the husband was guilty of adultery and 
 caused her to leave him by his cruelty, neglect, and aban- 
 donment." It is now held in Massachusetts that elopement 
 and living in adultery do not bar dower." Mr. Bishop will 
 be recognized as abundant authority for the statement that 
 the statute of Westminster 2 (13 Edw. I stat. i) c 34, is not 
 received as law in Massachusetts, Missouri, Rhode Island or 
 Iowa, but is accepted or re-enacted in some other of our 
 States, though not in identical terms ; as for example. South 
 Carolina, New Hampshire, Minnesota, Missouri, North Caro- 
 lina and West Virginia. 
 
 Kent says that the statute of Westm. made adultery of the 
 wife accompanied by elopment, a forfeiture of dower by way 
 of penalty ; but reconciliation with the husband would rein- 
 state the wife in her right. The statute of Westminster was 
 re-enacted in New York in 1787, but has undergone very 
 serious modification under the code. The same provision 
 was made by statute in Connecticut ; and there is so much 
 justice in it, that an adulterous elopement is probably a plea 
 in bar of dower in all the States in the Union which protect 
 and enfore the right of dower. New York must be con- 
 sidered an exception, that there the wife only forfeits her 
 dower in cases of divorce a vinculo for misconduct, or on con- 
 viction for adultery on a bill in chancery by the husband for 
 a divorce, °° and a note to the tenth edition states that, by the 
 laws of Maine, a woman divorced from her husband because 
 of his drunkenness is dowable in his estate. In New Jersey 
 a decree of divorce a vinculo for the fault of the wife, forfeits 
 her dower. So does a voluntary elopement with an adul- 
 terer, or consent to a ravisher unless her husband be recon- 
 ciled to her, and suffer her to live with him.'" 
 
 In an Upper Canada case (Graham v. Law, 6 U. C. 310) it 
 was held that where the husband deserted his wife and then 
 she lived in adultery she wa^ held not to be barred and this 
 view is receiving quite general recognition." 
 
 In Wait V. Wait, 4 N. Y. 95, the court, overlooking Day v. 
 West, 2 Edw. Ch. 592; 6 L. ed. 515, and Reynolds v. Reynolds, 
 
 "Rawlins v. Buttell, i Houst. "4 Kent, 54. 
 224. 90 Elmer's Dig. 145. 
 
 »» Lakin v. Lakin, 2 Allen, 45. " See Elder v. Reel 62 Pa. St. \o%. 
 
DOWER. 1 79 
 
 24 Wend. 193, "held that a judgment dissolving a valid mar- 
 riage for the adultery of the husband did not cut off the 
 wife's inchoate right to dower in lands of which he was at 
 the date of the judgment or theretofore, had been, seized." 
 In speaking of the decree dissolving the marriage in that 
 case, the court said : ' ' The statutory divorce is limited in its 
 operation, and only affects the rights and obligations of the 
 parties, to the extent declared by statute. * * * It is 
 true that the decree is that the marriage be dissolved, and 
 that each party be freed from the obligations thereof. This 
 dissolution and release, however, is not absolute. The wife, 
 when the husband is the guilty party, is still entitled to her 
 support ; and the obligation of the marriage still rests upon 
 the husband so far as to render it unlawful for him again to 
 marry. When the wife is the guilty party, the marriage still 
 continues in force so far as to give the husband a title to her 
 property, and to render it unlawful for her to marry. As a 
 further penalty for the offense, the Legislature have declared 
 that when the wife is convicted of adultery she shall not be 
 entitled to dower in her husband's real estate." 
 
 Holding that a decree of divorce has no other effect than 
 that declared by the statute, and finding that the dissolution 
 of marriage by the decree was not absolute, but that the 
 obligation of marriage, according to the statutes of New 
 York, still rested upon the husband so far as to render it un- 
 lawful for him again to marry, the court rested its decisions 
 in Wait v. Wait, on the ground that the section which pro- 
 vided that, "in case of divorce dissolving the marriage con- 
 tract for the misconduct of the wife, she shall not be en- 
 dowed," by denying a wife's right to dower when divorced 
 for adultery, by fair implication saved it when a divorce was 
 granted for the adultery of the husband. This decision, 
 even under the peculiar laws of New York, has been ques- 
 tioned." 
 
 It has generally been held that a valid divorce cuts off the 
 wife's right of dower unless expressly or impliedly pre- 
 
 " Moore v. Hegeman, 27 Hun, 70, 12 L. R. A. 359; 2 Bishop, Mar., 
 affirmed 92 N. Y. 521; 44 Am. Rep. Div. & Sep., sec. 1635. 
 408; Price V. Price, 124 N. Y. 599, 
 
I80 REAL PROPERTY. 
 
 served by statute." That divorce does not bar dower has 
 also been held in a number of cases." The adultery of the 
 wife without divorce is no bar to the right of dower in Iowa 
 or in Maine." And in Indiana the right of a surviving wife 
 can only be defeated by showing that at the time of her hus- 
 band's death she was living apart from him in adultery." A 
 woman who has been divorced from her husband cannot be 
 deemed "a surviving wife," but unless there has been a judi- 
 cial decree dissolving the marital relation, the wife who out- 
 lives the husband is the "surviving wife" within the meaning 
 of the Indiana statute, no matter how bad her conduct may 
 have been." 
 
 Under well recognized postulates of the old common law 
 adultery was not a bar to dower; for says Lord Coke: "It is 
 necessary that the marriage do continue, for if that be dis- 
 solved the dower ceases, ubi tnat nullum matrimonium, ibi lulla 
 dos. But this is to be understood where the husband and 
 wife are divorced a vinculo matrimonii, as in the case of pre 
 contract, consanguinity, affinity, etc., and not a mensa et 
 thoro, only for adultery." But the law was changed in this 
 respect by the statute of Westminster, 13 Edw. I, st. i, c. 34, 
 by which it was provided that "if a wife willingly leave her 
 husband and go away with her adulterer, she shall be 
 barred forever of action to demand her dower, that she ought 
 to have of her husband's lands, if she be convicted there- 
 upon, except that he willingly and without coercion of the 
 church, reconcile her and suffer her to dwell with him ; in 
 which case, she shall be restored to action." As well by 
 the express words of this statute as the uniform construction 
 put upon it by the courts, elopement, or to speak more 
 
 "Barrett v. Failing, iii U. S. Richardson's Adm'r, 27 Ind. 122; 
 
 523; Boyles v. Latham, 61 la. 174; see also Payne v. Dotson, 81 Mo. 
 
 Marvin v. Marvin, 59 Id. 699; 3 145; 51 Am. R. 225; Heslop v. Hes- 
 
 Wait's Act. & Def. 661. lop, 82 Pa. St. 537; Walters v. Jor- 
 
 " Williams v. Hale, 71 Ala. 83; dan, 13 Ired. 361. 
 
 Jarnigan V. Jarnigan, i2Lea. (Tenn.) "Wiseman v. Wiseman, 73. Ind. 
 
 292; Stilson V. Stilson, 46 Conn. 15. 112; 8 Wait's Act. & Def. 313. 
 
 " Littlefield v. Paul, 69 Me. 527 ; «« Co. Litt. 32, a ; 2 West, 435 ; Sir 
 
 Smith v. Woodworth, 4 Dill. 584. William Grant in Seagrave v. Sea- 
 
 " Wiseman v. Wiseman, 73 Ind. grave, 13 Ves. 443; Bryan v. 
 
 112; 38 Am. R. 115; Shaffer v. Bachseller, 6 R. I. 546. 
 
DOWER. l8l 
 
 accurately, a voluntary separation, or departure of the wife 
 from the husband, as well as adultery, is necessary to make 
 the bar complete." 
 
 f . By proceedings in the nature of eminent domain. ' ' One mode 
 in which dower may be defeated remains to be mentioned, 
 and that is by the exercise of eminent domain during the life 
 of the husband, or what is equivalent to it, dedication of land 
 to the public use. This grows out of the nature of the wife's 
 interest in the lands, and whether it is such as ought to be 
 regarded in giving compensation. * * * Moore v. New 
 York, 4 Seld. i lo ; Gwynne v. Cincinnati, 3 Ohio, 24. The princi- 
 ple involved in the above and similar cases is a pretty import- 
 ant one, nor has it been heretofore well defined. * * * It 
 is di£&cult to see why it should not apply in all cases where 
 the law authorizes the husband's land to be taken in invitum, 
 and compensation therefor made for the fee of the same, as 
 for instance, in those States where the mill owner is author- 
 ized to flow lands which he does not own. At common law a 
 widow cannot have dower of a castle, since among other rea- 
 sons, she could not put it to profitable use, and the same rea- 
 soning would apply as to lands, though granted by the hus- 
 band, which have been appropriated to public uses, such as 
 cemeteries, public parks and the like. "'°° Treating of the same 
 point. Judge Dillon says: "As dower is not the result of con- 
 tract, but is a positive legislative institution, it is constitu- 
 tionally competent for the Legislature to authorize lands to 
 be taken by a municipal corporation for a market, street, or 
 other public use, upon an appraisement and payment of their 
 value to the husband, the holder of the fee, and such taking 
 and payment will confer an absolute title divested of any 
 inchoate right of dower. Nor is a widow dowable of lands 
 dedicated by her husband in his lifetime to the public, where 
 the dedication is complete, or has been accepted and acted 
 upon by the municipal authorities.""' In a recent work of 
 pronounced merit, it is said: "A married woman cannot 
 claim dower in lands dedicated by her husband to the public. 
 
 " Co. Litt. 32, b ; 2 Inst. 405 ; see "^ i Washb. Real Prop, (sth ed.), 
 
 Cogswell V. Tlbbits, 3 N. H. 41 ; 279. 
 
 Shaffer v. Richardson, 27 Ind. 132 ; "" 2 Mun. Corp. (4th ed.), sec. 594. 
 Walter v. Jourban, 13 Ired. 361. 
 
I 82 REAL PROPERTY. 
 
 It is settled that dower is created by law, and does not exist 
 by virtue of contract and that it is therefore within the power 
 of the Legislature to change or destroy the rights of a mar- 
 ried woman at any time before they have vested. This rule 
 prevails where dower has been abolished and estate in fee 
 substituted. Dedication of land to public use is placed upon 
 the same general principle as that on which rests the right 
 of eminent domain, and it is held that the property interests 
 of the married woman must yield to public necessity.'""" 
 Another author says : ' ' An inchoate right of dower may be 
 taken during the lifetime of the husband, on giving full com- 
 pensation to the husband. The inchoate right of dower is 
 not such an interest as is capable of assessment. During the 
 life of the husband he represented the fee, and compensation 
 to him appropriated the fee. It has been well held, when 
 an estate is taken before the decease of the husband, the 
 value of the widow's inchoate right of dower is deemed too 
 uncertain to admit of compensation ; that the husband must 
 be regarded as the owner of the entire estate ; and that as 
 such he is entitled to full compensation for it.'"" 
 
 § 87. Doctrine of election examined. A party cannot be in- 
 dulged in a vacillating and inconsistent position with refer- 
 ence to his legal rights, and where he has the option of seve- 
 ral courses and deliberately selects one he is confined to the 
 selection and will not be heard to dispute or abandon it in 
 favor of some other selection that the logic of events has 
 made more desirable. Any decisive line of conduct that dis- 
 closes an intention to adopt a certain position, if entered into 
 with a full knowledge of his rights, will create an estoppel.'" 
 The peculiar hardships of this rule have been illustrated by 
 a decision of the Supreme Court of Ohio, where the rule was 
 invoked by the proponents of a will under which the widow 
 of the testator had made an election to accept the provisions 
 therein contained in her favor ; subsequently she sought to 
 annul her election and demand her dower rights, the court 
 say: "We hold that the election of the widow to take under 
 
 "« Elliott, Roads & Streets, 108. '"* Roderraund v. Clark, 46 N. Y. 
 
 "" Mills, Em. Dom. (2d ed.), sec. 354. 
 71. 
 
DOWER. 183 
 
 the will does not estop her from contesting the will, denying 
 the validity of its devises, or setting up her claim as heir. 
 She can do all or either of these without having her election 
 set aside. Her right to elect is the creature of statutory law, 
 and we must look to the statutes creating it alone, for the 
 estoppel it is to work. These statutes make her election to 
 take under the will a bar to dower, and to her distributive 
 part of the personal estate due her as widow, and to nothing 
 else. A contrary reading of the statutes would, in many 
 instances, result in the greatest injustice to her. She is com- 
 pelled to make an election and is only allowed one year for 
 that purpose. The heirs may contest the will, or not, at 
 their discretion, and they are allowed two years in which to 
 commence the contest. How can the widow know, at the 
 time of making her election, whether there will be a contest? 
 And if she could know that, must she at her own peril, pre- 
 determine the rights of the parties thereto. There would be 
 no safety to her in such a construction of the law. She 
 might validate the will by such an election, and the heirs 
 invalidate it by a contest. It would then seem to be a will 
 as to her, and no will as to them. On the other hand should 
 she decide that the will was invalid, and would be set aside, 
 and therefore decline to take under it, the will might ulti- 
 mately be established, and she be made to lose all benefit, 
 however great, of its provisions in her favor. Thus an elec- 
 tion which was intended for the benefit of the widow would 
 become a means to entrap her, and would render her right 
 uncertain and impracticable. Such is not the law. If there 
 is no valid will there is no valid election, and of course no 
 estoppel or bar, and it matters npt whether the invalidation 
 takes place before or after the election, or at whose instance 
 it takes place. It is only in the event that the document 
 probated becomes or remains established as a valid will that 
 her election can have any effect whatever, and when such is 
 the case, the effect of the election is confined to her rights as 
 widow, and cannot reach her rights as heir to property not 
 effectually and legally disposed of by the will.'"" 
 
 Dower is a clear legal right, and cannot be divested except 
 upon full knowledge of the widow's rights; and if, in ignor- 
 
 '»' Carder v. Fayette Co. 16 OKio St. 353. 
 
1 84 REAL PROPERTY. 
 
 ance of the extent of the estate, the widow accept a provision 
 of her husband's will in lieu of dower, she may, even after 
 the lapse of years, renounce under the will, and claim her 
 dower.'" 
 
 If the provisions of the will manifest a clear intent on the 
 part of the testator to bar the dower right it is sufficient, 
 without express declaration, to put her to an election be- 
 tween the provisions of the will for her benefit and those 
 provided for her by statutory law.'" Where there is a mani- 
 fest incompatability between the dower right and the recitals 
 of the will — in other words, a clear repugnancy between the 
 two claims — both cannot stand but the widow must elect 
 between them. '" This proposition is elementary and authori- 
 ties are superfluous. A devise in lieu of dower is the price 
 put by the testator himself on that right'"* and the intention 
 to exclude this right of dower is to be gathered from the will 
 alone."" 
 
 The widow may be entitled to dower where she takes other 
 real estate devised to her under the same will unless there 
 be an express provision in the will to the contrary, or by so 
 doing she will defeat the operation of some other provision 
 in the instrument.'" 
 
 Judge Woerner, in his Law of Administration, p. 1 19, says 
 on this subject: "The rejection by the widow of the provi- 
 sions made for her by will generally results in the diminution 
 or contravention of devises and legacies to other parties. 
 The rule in such case is that the devise or legacy which the 
 widow rejects is to be applied in compensation to those 
 whom her election disappoints. ' ' To the same effect are 
 Wood V. Wood, I Met. [Ky.], 512, and Dean v. Hari, 62 Ala. 
 308. This same result in principle is reached by accelerating 
 the enjoyment of the remainder, when the election of the 
 
 ™ United States v. Duncan, 4 Rich. Eq. 150; Warren v. Morris, 4. 
 
 McLean, 99. Del. Ch. 289; i Pom'y Eq. Jur. sec. 
 
 "" Brokawv. Brokaw, 41 N. J. Eq. 139, 488, 493, 550; 4 Kent's Com. 58. 
 
 403- "" Scribner on Dower, 496. 
 
 ™ Pratt V. Douglass, 38 N. J. Eq. "» McGee v. Hall, 26 S. C. 182. 
 
 536; Konvalinka v. Schlegel, 104 "> Daugherty v. Daugherty, 69 
 
 N. Y. 130; O'Brien v. Elliot, 15 Me. la. 677. 
 125; Cunningham v. Shannon, 4 
 
DOWER. 185 
 
 ■widow only affects equally those to whom the remainder is 
 given.'" 
 
 Van Steenwyck v. Washburn, 59 Wis. 483, 505. In this case it 
 was said by Cole, J. : "Independently of the statute, proba- 
 bly no one would question the power of a court of equity, 
 where the application was in time, to elect for an insane 
 widow, or other person incapable for want of capacity of per- 
 sonally making it. Such a power has often been exercised 
 by courts of chancery in England and in this country, and 
 the jurisdiction is well established. Does, then, the statute 
 which requires the widow to elect, limit or abrogate this 
 jurisdiction, so that a court can no longer exert it on behalf 
 of an insane widow ? We perceive no sufficient ground for 
 saying that it does. The object of the statute is to regulate 
 dower, declare when and under what circumstances it shall 
 exist, define its extent, and prescribe the manner in which it 
 may be barred. True, it provides that when the widow is 
 put to an election she shall be deemed to have elected to 
 take the jointure, devise, or other provision, unless, within a 
 year from the death of her husband, she file a notice that she 
 elects to take the share of his estate which the law gives her. 
 But we do not think it was the design of the statute to abro- 
 gate the jurisdiction of a court of equity in a proper case. 
 Such an inference should not be made without a clear expres- 
 sion of such legislative intent. ' ' 
 
 The court said in this case : ' ' Prior to the adoption of the 
 statute fixing the time within which the widow is required to 
 make the election, although she was then, as now, com- 
 pelled to elect between a provision made for her in lieu of 
 dower and her right to dower, still if she, in making the elec- 
 tion, acted in ignorance of her rights, and had no means of 
 knowing what they were, a court of equity would grant her 
 relief ; and in cases where no election had or could be made, 
 for the reason that the widow could not ascertain or know 
 the condition or character of the estate, the chancellor post- 
 poned her election until an account was taken and the condi- 
 
 "'"Foxv. Rumery, 68 Me. 121; Armstrong v. Park, 9 Humph. 195 ; 
 
 State V. Smith, 16 Lea. 662; Hoi- Capron v. Capron, 6 Mackey, 225; 
 
 derly v. Walker, 56 N. C. 46; Rob- 12 Cent. Rep. 43. 
 inson v. Harrison, 2 Tenn. Ch. 11; 
 
1 86 REAL PROPERTY. 
 
 tion of the estate ascertained. * * * If a court of equity, 
 after an election has been made by the -widow, will, upon a 
 state of case showing that she has been imposed upon, or has 
 made her choice when in ignorance of the condition of the 
 estate and without the means of ascertaining it, relieve her 
 in order that the election may be made understandingly, we 
 see no reason why before an election is made, although the 
 time may be limited by statute, relief may not be granted 
 when the chancellor himself sees that no intelligent choice 
 can be made. It is obvious in the present case that the pro- 
 vision of the will is much more beneficial than the dower, 
 and it would be not only a great hardship on the widow, but 
 a violation of a plain rule of equity, to deprive her of the 
 property intended for her use and benefit by her husband, in 
 requiring an election to be made when the whole estate is 
 imperilled by litigation, and so unsettled as to preclude the 
 chancellor, even if he desired, from making a judicious choice 
 for her." 
 
 The widow's statutory rights in her husband's estate are 
 paramount to his will, and he is presumed to know that fact. 
 It is, therefore, not accurate to say that his whole scheme of 
 disposition of his property is destroyed by the widow's elec- 
 tion. It is disarranged /r(? ianto hut, in the absence of any 
 reference to such contingency or provision for it in the will, 
 there is ordinarily nothing on which to found a presumption 
 that he would have made any specific difference in distribu- 
 tion had he known she would exercise her right — certainly 
 not that he would have decreased any of the definite pecu- 
 niary legacies to swell the amount going at the end of the 
 list to the residuaries. No court is authorized to make a new 
 distribution for the sake of equality. The testator's scheme 
 must be carried out as he made it, except so far as that has 
 been rendered impossible by the widow's action, and in so 
 far a court of equity interferes to preserve an intent which 
 would otherwise be sacrificed. Such interference is the pure 
 creation of equity, and had its origin in the doctrine of equit- 
 able election, which compelled one taking a benefit under a 
 will to acquiesce in other provisions of the same instrument 
 which for any reasons were not binding upon him. Equity 
 compelled him to elect and if he chose to assert his prior 
 
DOWER. 187 
 
 rights against the will, the chancellor treated the provision 
 of the will in his favor as forfeited, and then used the benefit 
 " created by such provision as a fund to be adnainistered so as 
 to carry out as nearly as might be the purposes of the tes- 
 tator, which would otherwise fail. 
 
 § 88. Widow entitled to know the facts before being bound 
 by an election. It would, indeed, be an anomaly if, after a 
 combination of both law and equity to cast upon the widow 
 certain privileges which are said to be highly favored, she 
 should be compelled to accept her beneficial right in a blind 
 and haphazard way without the least opportunity to inform 
 herself of the various equities to which she is entitled, and to 
 make an intelligent selection therefrom. We find nothing 
 sanctioning su^h an iniquity in any system of jurisprudence. 
 It is true the law compels an election between the testament- 
 ary devise and the statutory dower. It is true that the same 
 law inexorably refuses to give her both, but it also compels 
 all interested parties to respect her right of full information 
 as to any and all facts which might reasonably be expected 
 to influence an election. Generally, it may be said that she 
 is not bound by an election made in ignorance unless she 
 wilfully refuses to inform herself."' 
 
 It would seem to be a corrollary from the above proposi- 
 tion that the widow is entitled to a reasonable time in which 
 to make her election, and once having made it, after being 
 placed in possession of the facts necessary to an intelligent 
 choice, she makes a disadvantageous election through a mis- 
 take of law, she is still bound by it. Her ignorance of her 
 legal rights will not shield her."* 
 
 The familiar doctrine of election as applied to wills may 
 be thus stated: A beneficiary who chooses to accept the 
 bounty of a testator must do so upon such terms and condi- 
 tions as the testator has seen fit to impose. He cannot iiisist 
 
 "' Reeves v. Garrett, 34 Ala. 563; 219; Paton v. Bowen, 14 R. I. 375 ; 
 
 Richart v. Richart, 30 la. 465; Millikin v. Welliver, 37 Ohio St. 
 
 Kreiser's App. 69 Pa. St. 200 ; Mack- 460. 
 
 net v. Macknet, 29 N. J. Eq. 34; '"Light v. Light, 21 Pa. St. 407. 
 Pinckney v. Pinckney, 2 Rich. Eq. 
 
I 88 REAL PROPERTY. 
 
 that provisions in his favor shall be enforced and that those 
 to his prejudice shall be ignored or set at naught.'" 
 
 Story, in his work on Equity Jurisprudence, § 1098, says :' 
 ' ' The general rule is that the party is not bound to make any 
 election" (where no time to make it is fixed) "until all of the 
 circumstances are known, and the state and condition, and 
 value of the funds are clearly ascertained, for until so known 
 and ascertained, it is impossible for the party to make a dis- 
 criminating and deliberate choice, such as ought to bind him 
 in reason and justice.""" 
 
 In order that acts of a widow shall be regarded as equiva- 
 lent to an election to waive dower, it is essential that she act 
 with a full knowledge of all the circumstances and of her 
 rights, and it must appear that she intended, by her acts, to 
 elect to take the provision which the will gave her. These 
 acts must be plain and unequivocal, and be done with a full 
 knowledge of her rights and the condition of the estate. A 
 mere acquiescence, without a deliberate and intelligent 
 choice, will not be an election."' 
 
 The law is well settled by the uniform current of authori- 
 ties that a bequest in lieu of dower, accepted by election, is 
 so far based upon a valuable consideration that it has priority 
 over all other legacies and will not abate with them."' 
 
 The general rule applicable to cases where a party is com- 
 pelled to make election, is : If one should make a choice in 
 ignorance of the real state of the funds, or under a miscon- 
 ception of the extent of the claims on the fund he elects to 
 receive, it will not be conclusive on him."" This rule is appli- 
 cable to dower. '" 
 
 '" Matter of Noyes, 5 Dem. Rep., Spence, 4 Beav. 103; Tooke v. 
 
 Surr. Ct. 313. Hardeman, 7 Geo. 20; Dixon v. Mc- 
 
 "' See also Chitty on Cont. 742, Cue, 14 Grat. 540. 
 
 note ; Fireman's Ins. Co. v. Law- "^ Lord v. Lord, 23 Conn. 327 ; 
 
 rence, 14 Joiins. 46. Security Company v. Bryant, 52 
 
 "'I Lead. Eq. Cas., title " Elec- Conn. 311. 
 
 tion ; " Anderson's Appeal, 36 Penn. "» Wells v. Robinson, 13 Cal. 133, 
 
 St. 476, 496; Bradford v. Kent, 43 142; Kerr on Fraud and Mistake, 
 
 Penn. St. 474 ; English v. English, 453 ; Pusey v. Desbouveir, 3 P. 
 
 5 Green's Ch. 504; O'Driscoll v. Wms. 315. 
 
 Roger, 2 Dessaus. 295; Wake v. ™ Hindley v. Hindley, 29 Hun, 
 
 Wake, I Ves. Jr. 335; Reynard v. 318; Larabee v. Van Alstyne, i 
 
DOWKR. 189 
 
 When it appears from the face of the -will of a deceased 
 husband that the testator did not intend a provision which it 
 contains for his widow to be in addition to her dower, but to 
 be in lieu of it, and his intention disclosed in other parts of 
 the will must be defeated by the allotment of dower to the 
 widow, she must make her election, and either renounce her 
 dower, or the benefit she claims under the will."" 
 
 § 89. Rules for estimating the value of the dower right. In 
 
 Thornburn v. Doscher, 32 Fed. Rep. 810, the precise question 
 arose, and the court held that : " In estimating the value of a 
 widow's dower in land aliened by the husband in his lifetime, 
 she ought to have the benefit of the increase in value between 
 the date of such alienation and the death of the husband, not 
 arising from improvements made or placed thereon." In 
 Allen v. McCoy, 8 Ohio, 418, it is said: "In making assign- 
 ments of dower, the rule of value is to be taken at the time 
 of assignment, but all increased value from actual improve- 
 ments on the ground is to be excluded." In McClanahan v- 
 Porter, 10 Mo. 746, it was held that: "Where lands have 
 increased in value from intrinsic causes not connected with 
 the labor or expenditures of the alienee, the widow takes 
 according to the value at the time of the assignment. ' ' In 
 Summers v. Babb, 13 111. 483, it was held that "a widow is only 
 entitled to take her dower according to the valuation of the 
 land at the time of the alienation. She is not dowable of 
 improvements put upon the land, but she is entitled to the 
 benefit of its increased value, arising from other causes than 
 the labor and expenditures of the alienee. ' ' In Thompson v. 
 Morrow, 5 Serg. & R. 289; 9 Am. Dec. 358, Tilghman, Ch. J., 
 discussing the point under consideration, said: "So far as 
 concerns improvements made by the alienee, it is agreed that 
 the tenant shall be protected from this hardship ; but as to 
 any value which may chance to arise from the gradually 
 increasing prosperity of the country, and not from the labor 
 or money of the alienee, it would be hard indeed upon the 
 
 Johns. 307, 308 ; Macknet v. Mack- sec. 97 ; Richart v. Richart, 30 la. 
 
 net, 29 N. J. Eq. 54; 2 Scribneron 465, Dabney v. Bailey, 42 Ga. 521. 
 
 Dower (2d ed.), 519, 523; Cameron '"Herbert v. Wren, 7 Cranch. 
 
 on Dower, 489, sec. 94; Id., 490, 370. 
 
igO REAL PROPERTY. 
 
 widow if she were precluded from taking her share of it. 
 She runs the risk of any deterioration of the estate which 
 may arise either from public misfortune or the negligence, 
 or even the voluntary act, of the alienee ; for, although he 
 destroys the buildings erected by the husband, the widow 
 has no remedy, nor can she recover any more than one-third 
 of the land as she finds it at the death of her husband. ' ' And 
 in Powell v. Monson & B. Mfg. Co., 3 Mason, 347 ; Fed. Cas. 
 No. II, 356, Mr. Justice Story, referring to the opinion in 
 Thompson v. Morrow, supra, said : ' ' This doctrine appears to 
 me to stand upon solid principles and the general analogies 
 of the law. If the land has in the intermediate period risen 
 in value, she receives the benefit ; if it has depreciated, she 
 sustains the loss. If, on the other hand, the value of the 
 land has increased solely from the improvements made upon 
 it, and without those improvements it would have remained 
 of the same value as at the time of the alienation, the old 
 value, and not the improved value, is to be taken into con- 
 sideration. For practical purposes, it is impossible to make 
 any distinction between the value of the improvements and 
 the value resulting from the improvements; between im- 
 provements which operate on a part of the land, and those 
 which operate upon the whole. Upon the whole, my judgment 
 is that the dower must be adjudged according to the value of 
 the land in controversy at the time of the assignment, exclud- 
 ing all the increased value from the improvements actually 
 made upon the premises by the alienees, leaving to the dow- 
 ress the full benefit of any increase of value arising from cir- 
 cumstances unconnected with those improvements. ' ' 
 
 The depreciation in the value of land which is subject to 
 dower after alienation by the husband whether from natural 
 causes or from the mere negligence of the purchaser or 
 alienee in keeping the property in repair is not suffi- 
 cient cause for assigning compensation to the widow accord- 
 ing to the value at the time of the alienation, instead of 
 setting off the dower by metes and bounds. 
 
 The business of life insurance has made rapid advance- 
 ment in modern times, especially within the past twenty 
 years. New fields of observation have been explored, based 
 upon the combined and actual experience of American life 
 
DOWER. 191 
 
 insurance companies. This has led to the tabulation of the 
 results in what is now known as the ' ' American Table of 
 Mortality," which is now regarded as the orthodox standard 
 throughout the United States and the Canadas. This table 
 is based on the lives of the insurable, or healthy perso;ns, and 
 is known to be now in use generally by modern life insurance 
 companies, for the arithmetical estimate of valuations. We 
 are of the opinion that for these reasons our courts should 
 resort to the ' ' American Table of Mortality " as a basis for 
 the calculation of annuities dependent on the probabilities of 
 human life in this country.'" Besides the tables above 
 referred to are those compiled by Professor Bowdich, 
 adopted by the Kentucky Court of Appeals in Lancaster v. 
 Lancaster, 78 Ky. 193. 
 
 Giauque and McClure's "Dower and Curtesy Tables" are 
 believed to be the most recent, as well as the fullest and most 
 accurate work on the subject, embracing tables of the present 
 value of contingent dower and curtesy estates.'"' 
 
 § 90. Assignment of dower. This is the act by which the 
 rights of a widow, in her deceased husband's real estate are 
 ascertained and set apart for her benefit.'" The writ of 
 dower so called is merely the legal term applied to the pro- 
 cedure which is instituted to secure a due assignment or 
 admeasurement of the dower right. 
 
 This subject is one of extended treatment in the early trea- 
 tises on dower. Fortunately for us, the old English method 
 "of common right and against common right" is rapidly 
 falling into disuse. And the prevailing method of to-day 
 calls for either an action in equity or a settlement between 
 the parties themselves ; this last is in the nature of an amica- 
 ble agreement, and is the mode generally resorted to. 
 Such agreements can be based upon the appraisal and inven- 
 tory which is always required as an indispensable prelimi- 
 nary to the legal adjustment of the estate.'" This inventory 
 is usually filed soon after the husband's death, and hence 
 there is always sufficient data for an intelligent agreement 
 
 '" Bowdich tables. '" Moore v. Holmes, 32 Com. 553; 
 
 '"See 29 Alb. L. J. 439. Potter v. Mc.^lpine, 3 Dem. 108; 
 
 "♦S. Bouv. Inst. 242. Pursell v. Pursell, 14 N. J. Eq. 514. 
 
192 
 
 REAL PROPERTY. 
 
 or contract. If the widow becomes a party to this arrange- 
 ment, and the proceeding is conducted with honesty and 
 good faith she will be bound by it. But if any attempts of 
 this character result in failure, if there is no possibility of 
 adjustment by mutual agreement, then the machinery of the 
 courts may be set in motion to compel the assignment of the 
 dower right. In many of the States probate courts possess 
 equity jurisdiction, and there is a growing tendency to rec- 
 ognize their full powers.'^" As to the form of the action we 
 
 '" Note on equity jurisdiction of 
 probate courts. — Judge Woerner's 
 emphatic endorsement of the propo- 
 sition we seek to defend will go far 
 toward harmonizing the discord- 
 ance with which the topic has been 
 heretofore infested. His honor 
 says : 
 
 "Courts of probate in America 
 are entitled to the sanction which 
 every court of record holds ; they 
 are not to be classed with those 
 tribunals which have no authority 
 beyond special powers for the per- 
 formance of specific duties, little or 
 in nowise relating to the general 
 administration of justice, whose 
 modes of proceeding are prescribed 
 by the statute, but are of that class 
 of courts whose judgments, like 
 those of the Federal courts, are 
 held good without a recital of the 
 facts upon which they rest. The 
 subject of the validity of judgments 
 and decrees of probate courts is 
 more fully considered hereafter. 
 
 "They are in most, if not all, of 
 the States courts of record, having 
 a public seal and a clerk, or au- 
 thority in the judge to act as clerk, 
 organized process, and executive 
 officers, as well as stated terms and 
 continuing functions. Within the 
 field of their jurisdiction they are 
 as much a branch of the iudiciary 
 
 of the State as any court of general 
 or plenary powers. As judicial tri- 
 bunals they have the inherent 
 power of such to punish for con- 
 tempt to the same extent as com- 
 mon law courts, to compel obedi- 
 ence to their orders and decrees, 
 and their judgments upon matters 
 within their jurisdiction are en- 
 forced, usually, by the same means 
 which are at the disposal of com- 
 mon law and chancery courts. 
 Their orders, judgments and de- 
 crees are therefore as conclusive 
 upon the parties to the record, 
 until reversed or annulled on ap- 
 peal, writ of error, or direct pro- 
 ceeding in chancery, for fraud, 
 as decrees in chancery or judg- 
 ments at law; but if want of 
 jurisdiction appears from the face 
 of the proceedings, they are, like 
 the judgments of any court under 
 like circumstance, merely void." 
 
 Many of the American courts ot 
 probate were, in early colonial 
 times, modeled after the ecclesiasti- 
 cal courts ; hence the necessity of 
 the same rule as applicable to their 
 acts, and the early American cases 
 so holding. 
 
 In the progress of time, however, 
 most of these courts were re- 
 modeled and vested with greatly 
 increased judicial powers, made 
 
DOWER. 
 
 193 
 
 may say it is governed precisely as any other form of action 
 would be. In all the States it must be prosecuted by the 
 real party in interest'" and should be begun by the 
 service of a summons and complaint."' As the action 
 affects real property a lis pendens should be filed."" Within 
 twenty days of the commencement of the action the 
 defendants must serve their answer or demur to the com- 
 plaint. If they adopt the first method issue is said to be 
 joined, and the case may be set for trial under the calendar 
 rules. If a demurrer is interposed considerable delay may 
 be occasioned. But after this has been disposed of and the 
 proper pleadings served as ordered, the cause goes on to the 
 trial list. It is quite customary to regard actions of this 
 
 courts of record, etc. The reform 
 was initiated and carried out by the 
 legislative branch of government — 
 they onlj'' having power to accom- 
 plish it — thus compelling the ju- 
 diciary to follow; and it is but 
 natural, perhaps, that they follow 
 reluctantly. Lawyers and judges 
 were equally imbued with the doc- 
 trines of the common law which 
 ignored the ecclesiastical courts as 
 judicial tribunals ; and they found 
 it difficult to assign to the Ameri- 
 can probate courts a different 
 status. And since the enlargement 
 of their powers emanated from as 
 many different sources as there are 
 States, and proceeded in as many 
 different channels, it is not strange 
 that for a long time there was very 
 great divergence in their decisions. 
 It is gratifying to observe, how- 
 ever, that, while unanimity has by 
 no means attained, yet the magni- 
 tude of the divergence is gradually 
 diminishing in the proportion in 
 which the principle upon which 
 these courts rest is understood and 
 practically realized. 
 
 Thus it is denied by the Federal 
 courts that courts of probate are in 
 
 13 
 
 any technical sense inferior courts, 
 and their judgments within the 
 sphere of their jurisdiction are as 
 conclusive as those of the circuit 
 or any other general court, and en- 
 titled to the same intendments and 
 presumptions in their favor. — 
 Woerner's American Law of Ad- 
 ministration; sec. 145. 
 
 Church V. Holcomb, 45 Mich. 29; 
 Vreeland v. Vreeland's Adm. 16 N. 
 J. Eq.Si2; Jones v. Lamar, 41 Fed. 
 Rep. 454; Womack v. Womack, 2 
 Louisiana Annual, 339; Riggs v. 
 Cragg, 89 N. Y. 488; Garton v. 
 Botts, 73 Mo. 274; McGowan v. 
 Lufburrow, 82 Ga. 523 ; Vaugham 
 V. Suggs, 82 Ala. 357 ; Finger v. 
 Finger, 64 N. C. 183 ; Winslow v. 
 Leland, 128 111. 304; Search v. 
 Search, 27 N. J. Eq. 137; Mayo v. 
 Tudor, 74 Tex. 471; Lunt v. Au- 
 bers, 39 Me. 392 ; Goff v. Robinson, 
 60 Vt. 633 ; Chipman v. Montgom- 
 ery, 63 N. Y. 236 ; Moreno v. Mc- 
 Cown, 23 Ark. 93. 
 
 >" Sheridan v. Mayor, 68 N. Y. 30. 
 
 '28 Ward V. Ward, 59 Cal. 139. 
 
 "" Murry v. Ballou, i Johns. Ch. 
 566; Haverly V. Alcott, 57 la. 173. 
 
194 REAL PROPERTY. 
 
 character as privileged in order to reach a more speedy ter- 
 mination. On the trial of the issues involved the court will 
 award such judgment as is warranted by the law of the case 
 under the evidence educed; and will enter such directions 
 regarding the admeasurement of dower as are just and 
 proper, under the circumstances of the case. "This order, 
 judgment or decree," from the time of its rendition becomes 
 the supreme law of the case, unless duly appealed from, all 
 parties are bound by it, and all rights acquired by virtue of 
 it must be both recognized and respected. 
 
 This, in brief, is what in legal parlance is known as the 
 assignment of dower. 
 
 The general rule is that, whenever the property in which 
 the widow is entitled to dower is capable of division, dower 
 must be set off by metes and bounds. "° 
 
 The statutes relating to dower have not made a dowress a 
 tenant in common with others in the lands of her deceased 
 husband. The statutes which in some cases give to a widow, 
 in lieu of dower, an estate for her life in one-half of the lands 
 of which her husband died seized in fee, or which gave to 
 her an estate in fee in such lands to an amount not exceeding 
 five thousand dollars, have been held to be modifications of 
 the statutes of descent, and to vest the title to these estates 
 in the widow immediately on the death of her husband.'" 
 But, as was said in Sears v. Sears : "The title thus vested in 
 the widow wholly differs from a mere right of dower, which 
 extends to all lands owned by the husband at any time dur- 
 ing the coverture, and confers no seizin until it has been 
 assigned to her. ' ' Before the dower is assigned, the widow 
 has no legal estate in the land upon which an execution can 
 be levied."' 
 
 At common law a dowress could not enter until her dower 
 had been assigned. After dower had been assigned, and she 
 had entered into possession, she became immediately seized 
 
 >»5 Am. & Eng. Encycl. Law, '''Sears v. Sears, 121 Mass. 267 ; 
 
 927; 2 Scribner, Dower, 581, sec. i ; Lavery v. Egan, 143 Mass. 389. 
 
 McClanahan v. Porter, 10 Mo. 746; "«Gooch v. Atkins, 14 Mass. 378; 
 
 Dunseth v. Bank of United States, Hildreth v. Thompson, 16 Mass. 
 
 6 Ohio, 76; Code 1886, sees. 1901, 191; Croade v. Ingraham, 13 Pick. 
 
 1910. 33. 
 
DOWER. 195 
 
 for her life of a freehold estate, with the usual incidents of 
 such an estate, and she could not convey it, and it could be 
 taken on execution by her creditors. '" 
 
 It is manifest that the reason of the common law rule that 
 a widow cannot convey to another her right to have dower 
 assigned, or enter upon the land before the assignment, as 
 well as of the rule that her right cannot be taken on execu- 
 tion, was not founded upon any policy of the law that dower 
 should be a provision for her support, which should be ex- 
 empt from liability to be taken by her creditors, because she 
 could not enjoy her dower until it was assigned, and then 
 it at once became alienable by her, and liable to be taken on 
 execution to satisfy judgments obtained against her. 
 
 The right to have dower assigned is a valuable right to 
 property, and a right to land, which the dowress can have 
 set off to her whenever she chooses, by legal process, if 
 necessary. By the weight of authority, it is a right which 
 in equity she can assign to another, and the courts of law 
 will recognize the assignment to the extent enabling the 
 assignee to maintain a 'writ of dower in her name."' 
 
 The facts that the lands are lands of which her husband 
 died seized, and that she is in occupation, and may continue 
 in occupation, without having her dower assigned, if the 
 heirs or devisees do not object, do not change the essential 
 nature of her right. This provision of the statutes was un- 
 doubtedly enacted for her benefit, but we are unable to see 
 any indications that it was enacted for the purpose of ex- 
 empting her right of dower from being taken to satisfy her 
 debts. 
 
 As this right is a valuable interest in property, which is 
 assignable in equity, we are of opinion that it can be reached 
 by creditors. 
 
 Suits have been maintained, and the means whereby the 
 
 133 Windham v. Portland, 4 Mass. 1 52 ; Tompkins v. Fonda, 4 Paige, 
 
 384,388; Sheafe v. O'Neil, 9 Mass. 448; Strong v. Clem, 12 Ind. 37; 
 
 13. Payne v. Becker, 87 N. Y. 153; 
 
 '" Lamar v. Scott, 4 Rich. (S. C), Pope v. Mead, 99 N. Y. 201 ; Davi- 
 
 516; Robie V. Flanders, 33 N. H. son v. Whittlesey, i MacArthur, 
 
 524; Potter v. Everitt, 7 Ired. Eq. 163. 
 
196 REAL PROPERTY. 
 
 land has been applied to the payment of honest debts seem 
 to be within the ordinary powers of a court of equity.'" 
 
 In Mason v. Mason, 140 Mass. 63, the conveyance was of an 
 inchoate right of dower by a married woman in the lifetime 
 of her husband. Maxon v. Gray, 14 R. I. 641, was decided on 
 the ground that there were no statutes of Rhode Island 
 which gave the court jurisdiction, and that the case was not 
 within the general equity jurisdiction of the court. 
 
 § 91. Outline of the method for the admeasurement of dower. 
 
 An action for dower must be commenced by a widow within 
 twenty years after her husband's death unless she is under 
 some legal disability, and, where the property in which 
 dower is claimed is actually occupied, the occupant must be 
 made a party defendant. Assuming that the widow recovers 
 in her action she will be entitled to damages for withholding 
 her dower to the amount of one-third the annual value of the 
 mean profits of the property with interest to be computed 
 from the time of the husband's death. The judgment must 
 further direct that the widow's dower in the property, particu- 
 larly describing it, shall be admeasured by a referee desig- 
 nated in the judgment, or by three reputable and disinter- 
 ested freeholders who shall act as commissioners for that 
 purpose. Before entering upon the performance of their 
 duties the referees or commissioners must be sworn to a 
 faithful execution of their duties. They are then, if it is 
 practicable, and, in their opinion, for the best interests of 
 all the parties concerned to admeasure and lay off as speedily 
 as possible, as the dower of the plaintiff, 
 
 1, A distinct parcel, constituting the one-third part of the 
 real property of which dower is to be administered, desig- 
 nating the part so laid off by posts, stones, or other perma- 
 nent monuments. 
 
 2, In making the admeasurement, they must take into con- 
 sideration any permanent improvements, made upon the real 
 property, after the death of the plaintiff's husband, or after 
 the alienation thereof by him ; and, if practicable, these im- 
 
 ■"Paynev. Becker, 87 N. Y. 153; Arthur, 163; Boltz v. Stolz, 41 Ohio 
 Tompkins v. Fonda, 4 Paige, 448 ; St. 540. 
 Davison v. Whittlesey, i Mac- 
 
DOWER. 197 
 
 provements must be awarded within the part not laid off to 
 the plaintiff ; or, if it is not practicable so to award them, a 
 deduction must be made from the part laid off to the plain- 
 tiff, proportionate to the benefit, which she shall derive from 
 so much of those improvements, as is included in the part 
 laid off to her. 
 
 3, If it is not practicable, or if, in the opinion of the ref- 
 eree or commissioners, it is not for the best interests of all the 
 parties concerned, to admeasure and lay off to the plaintiff a 
 distinct parcel of the property, as prescribed in the foregoing- 
 subdivision of this section, they must report that fact to the 
 court. 
 
 4, They may employ a surveyor, with the necessary assist- 
 ants, to aid in the admeasurements. 
 
 On the coming in of the report of the commissioners final 
 judgment is entered, unless through gross misconduct it is 
 evident that the commissioners have frustrated the right and 
 justice of the case, in which event the court will refuse to 
 confirm the report and make such order in the case as may be 
 just and proper. Should it transpire that it is not practica- 
 ble, and not for the best interests of all the parties concerned, 
 so to admeasure and lay off a distinct parcel of the property, 
 the final judgment must direct that a sum, fixed by the court, 
 and specified therein, equal to one-third of the rental value of 
 the real property, as ascertained by a reference or otherwise, 
 be paid to the plaintiff, annually or oftener, as directed in 
 the judgment, during her natural life, for her dower in the 
 property ; and that the sums, so to be paid, be and remain a 
 charge upon the property during her natural life. The final 
 judgment may also award damages for the withholding of 
 dower."' 
 
 § 92. The incident of quarantine. The incident of quaran- 
 tine remains to be examined. As the husband's death may 
 be commonly supposed to result in more or less confusion of 
 his affairs, and as some time must elapse before the executor 
 or administrator can investigate the condition of the estate, 
 the common law invented a humane and beneficent provi- 
 
 "«See New York Code Civil Pro- Hun, 352; 138 N. Y. 425; 30 Abb. 
 cedure. sec. 1596 et seq. ; also 13 N. C. 242. 
 
198 REAL PROPERTY. 
 
 sion by which the widow retained possession of her home 
 free of rent, and in some instances, until her dower had been 
 duly assigned. The entire subject is largely regulated by 
 statute. In some States her occupancy is for six months, 
 and she has the same time to determine whether she will 
 accept her jointure in lieu of dower. Courts are disposed to 
 great liberality in this respect. And if, through no fault of 
 the widow, there are unconscionable delays in the assign- 
 ment of her dower right, her quarantine privileges will not 
 be interfered with.'" Both these cases give extended discus- 
 sions of the subject, and an examination of the statutory law 
 regarding the period for which the widow may retain the 
 home reveals considerable discordance in the legislation. In 
 one group of States the period is limited to forty days ; in 
 another group it extends to a full year ; while a third group 
 of States allow her to retain possession until her dower right 
 is assigned her This last is an eminently sensible provision. 
 It is one guarantee of prompt and efficient administration, 
 and acts as a spur upon the too sluggish movements of execu- 
 tors. It may be added that quarantine is a personal right, 
 and is forfeited by the widow in the event of her marriage 
 during the period in which it might otherwise be enforced.'" 
 Without wishing to italicize the superiority of any mere 
 statutory wording, it may be said that after a critical review 
 of the entire field, few enactments can be found that embody a 
 wider scope, clearer diction, or more conspicuous brevity, than 
 those of the Massachusetts Revised Statutes now in force. I 
 incorporate these legislative provisions with the text as they 
 are justly regarded as both typical and repository of the 
 variant State legislation on the topic, and in summary will 
 be found to crystallize the legal sense of much previous judi- 
 cial interpretation. They have been subjected to very rigid 
 scrutiny by the Supreme Court of Judicature, and have the 
 additional advantage of practical test during the many years 
 they have been in operation. It may be admitted that unifi- 
 cation of our law is in every way desirable, as its present 
 diversity is a prolific source of litigation, vexation and ex- 
 pense. And in the interests of unification if these statutory 
 
 "' Porter v. Robinson, 3 Marsh. '^8 Ind Rev. L. 209 ; 111. Rev. L. 
 253; laege v. Bossieux, 15 Grat. 83. 237; N. J. Rev. C. 397. 
 
DOWER. 199 
 
 enactments could be generally adopted much irritation and 
 controversy might be avoided. I subjoin the text. 
 
 § 93- Typical legislation on the subject, a. Sec. 3. Rights 
 of wife in real estate of deceased husband?^' A wife shall be en- 
 titled to her dower at common law in the lands of her de- 
 ceased husband. When her husband dies intestate and 
 leaves no issue living, she shall take his real estate in fee to 
 an amount not exceeding five thousand dollars in value, and 
 shall also be entitled during her life to one-half of the other 
 real estate of which he died seized, or, if she files her elec- 
 tion therefor in the probate office within six months 
 after' the date of letters of administration on his estate, 
 she may have, instead of such life estate, her dower 
 in his real estate other than that taken by her in fee. 
 
 If her husband dies intestate and leaves no kindred she 
 shall take the whole of his real estate in fee. A wife shall 
 also be entitled to remain in the house of her husband for 
 forty days after his death without being chargeable with 
 rent. 
 
 b. Sec. 4. Special provision for wife's rights in case of wood- 
 land or wild land.^" A widow shall have no right of dower in 
 wild lands of which her husband dies seized, except wood 
 lots or other land used with his farm or dwelling house, nor 
 in such lands conveyed by him although afterwards cleared ; 
 and if wild land or wood land is taken by a widow under the 
 preceding section for her life estate in half the real estate of 
 which her husband dies seized, she may use, clear, and im- 
 prove the same. 
 
 c. Sec. 5. Dower in husband's right of redemption."^ If, 
 upon a mortgage made by a husband, his wife has released 
 her right of dower, or if a husband is seized of land subject 
 to a mortgage which is valid and effectual as against his 
 wife, she shall, nevertheless, be entitled to dower in the 
 mortgaged premises as against every person except the mort- 
 gagee and those claiming under him. If the heir or other 
 
 '"7 Gray, 533; 2 Allen, 45; 121 "'15 Mass. 278; 3 Pick. 475; 12 
 
 Mass. 267. Cush. 288; 4 Gray, 46; 7 Id. 148; 
 
 '■"15 Mass. 164 ; I Pick. 21 ; 7 Id. 100 Mass. 224. 
 143- 
 
200 REAL PROPERTY. 
 
 person claiming under the husband redeems the mortgage, 
 the widow shall either repay such part of the money paid by 
 the person so redeeming as shall be equal to the proportion 
 which her interest in the mortgaged premises bears to the 
 whole value thereof, or she shall at her election be entitled 
 to dower according to the value of the estate after deducting 
 the money paid for redemption. 
 
 d. Sec. 6. How dower may be released.^" A married woman 
 may bar her right of dower in an estate conveyed by her 
 husband or by operation of law by joining in the deed con- 
 veying the same and therein releasing her right to dower, or 
 by releasing the same by a subsequent deed executed either 
 separately or jointly with her husband. Her dower may also 
 be released in the manner provided in chapter one hundred 
 and forty-seven. 
 
 e. Sec. 7. How barred by jointure before marriage.^" A wo- 
 man may also be barred of her dower in all the lands of her 
 husband by a jointure settled on her with her assent before 
 her marriage, if such jointure consists of a freehold estate in 
 lands for her life at least and is to take effect in possession 
 or profit immediately on the death of her husband, her assent 
 to such jointure being expressed, if she is of full age, by her 
 becoming a party to the conveyance by which it is settled, 
 and, if she is under age, by her joining with her father or 
 guardian in such conveyance. 
 
 f. Sec. 8. How barred by pecuniary provision.^^^ A pecuniary 
 provision made for the benefit of an intended wife and in lieu 
 of dower, shall, if assented to as provided in the preceding 
 section, bar her dower in all the lands of her husband. 
 
 g. Sec. 9. If jointure is made without wife's assent or after 
 marriage she may waive it and claim her dower. Such a jointure 
 or pecuniary provision made after marriage, or before mar- 
 riage and without the assent of the intended wife, shall bar 
 her dower, unless within six months after the death of her 
 husband she makes her election to waive such jointure or 
 provision. If the husband dies while absent from his wife, 
 
 142 • 
 
 '7 Mass. 14; 18 Pick. 9 ; 6 Cush. '«i5 Mass. 106; 2 Cush. 467; 5 
 
 196 ; 4 Gray, 600. Allen, 187 ; 9 Id. 234. 
 
 "37Mass. 153; 2 Cush. 467; 97 
 Mass. 195. 
 
DOWER. 201 
 
 she shall have six months after notice of his death within 
 which to make such election ; and she shall in all cases have 
 for that purpose six months after notice of the existence of 
 such jointure or provision. 
 
 h. Sec. lo. Widow's interest in husband' s real estate, when her 
 right is not disputed, may be assigned to her by probate court ^^^ 
 When a widow is entitled by the provisions of law, by deed 
 of jointure, or under the will of her husband, to an undivided 
 interest in his real estate, either for life or during widow- 
 hood, if her right is not disputed by his heirs or devisees, 
 such interest may be assigned to her, in (whatever counties 
 the lands lie, by the probate court for the county in which 
 the estate of her husband is settled. Such assignment may 
 be made upon her petition, or, if she does not petition there- 
 for within one year from the decease of her husband, upon 
 petition by an heir or devisee of her husband, by any person 
 having an estate in the lands subject to such interest, or by 
 the guardian of such heir, devisee, or person. 
 
 i. Sec. 1 1. Widow' s interest in husband' s real estate to be set off 
 by metes and bounds, or out of rents J'^" Upon such petition the 
 court shall issue a warrant to three discreet and disinterested 
 persons, who shall be sworn to perform their duty faithfully 
 and impartially according to their best skill and judgment, 
 and who shall set off the widow's interest by metes and 
 bounds, when it can be so done without damage to the whole 
 estate. But when the estate out of which a widow's interest 
 is to be assigned consists of a mill or other tenement which 
 cannot be divided without damage to the whole, such inter- 
 est may be assigned out of the rents, issues, or profits 
 thereof, to be had and received by the widow as a tenant in 
 common with the other owners of the estate. 
 
 j. Sec. 12. Provision for case where husband is tenant in com- 
 mon. When a woman is entitled to an undivided interest in 
 lands owned by her husband as tenant in common, the pro- 
 bate court upon petition by her, or by any person entitled to 
 petition for assignment of her interest in her husband's 
 lands, and upon notice as in case of other partitions, may 
 
 "'9 Mass. 9; 13 Met. 414; 4 Cush. "«4 Mass. 533; 15 Id. 164. 
 257; 112 Mass. 42 ; 121 Id. 267. 
 
202 REAL PROPEKl'Y. 
 
 empower the commissioners to make partition of the lands 
 so owned in common, and then to assign to the widow her 
 interest in the portion set off to the estate of her husband. 
 
 k. Sec. 13. Widow may claim her interest after occupying in- 
 common with heirs'" When a widow is entitled to an interest 
 in lands of which her husband died seized, she may, without 
 having her interest assigned, continue to occupy such lands 
 with the heirs or devisees of the deceased, or to receive her 
 share of the rents, issues, or profits thereof, so long as such 
 heirs or devisees do not object thereto ; and whenever the 
 heirs or devisees or any of them deem it proper to hold or 
 occupy their share in severalty, the widow may claim her 
 interest, and shall have the same assigned to her according 
 to law. 
 
 1. Sec. 14. Limitation of time within which widow' s interest in 
 husband' s real estate m.ay be claimed. No widow shall be en- 
 titled to make claim for an interest in her husband's real 
 estate, or to commence an action or other proceeding for the 
 recovery thereof, unless such claim or action is made or com- 
 menced within twenty years after the decease of the husband ; 
 except that if at the time of the husband's decease the widow 
 is absent from the commonwealth, under twenty-one years of 
 age, insane, or imprisoned, she may make such claim or com- 
 mence such action or proceeding at any time within twenty 
 years after such disability ceases. 
 
 m. Sec. 15. If widow is evicted, etc. , she may be endowed anew^^ 
 If a woman is lawfully evicted of lands assigned to her as 
 dower or settled upon her as jointure, or is deprived of the 
 provision made for her by will or otherwise in lieu of dower, 
 she may be endowed anew in like manner as if such assign- 
 ment, jointure, or other provision had not been made. 
 
 >" 3 Pick. 475 ; 5 Id. 146. 148 13 Mass. 162; i Met. 66. 
 
CHAPTER VII. 
 
 JOINTURE. 
 
 Sec. 94. The term defined. 
 
 95. Requisites of. 
 
 96. Incidents of jointure. 
 
 97. Distinction between legal and equitable jointure. 
 
 98. No set form of words necessary to create. 
 
 99. The settlement must not impair the rights of creditors. 
 100. Marriage settlements favored in the law. 
 
 loi. Review of the authorities on ante-nuptial settlements. 
 
 § 94. The term defined. Jointure is a sole estate limited 
 to the wife only and made in satisfaction of her whole dower. 
 One mode of barring the claim of a widow to dower is by sett- 
 ling upon her an allowance previous to marriage to be 
 accepted by her in lieu thereof. This is called a jointure.' 
 
 Judge Cooley says jointures are uncommon in the United 
 States, and questions concerning them arise but seldom." 
 
 Although once common in England, it is of little moment 
 since the Dower Act of 3 and 4 Wm. IV (1-833), c. 105, placed 
 the subject of the wife's dower under the control of the hus- 
 band in all cases where special provision is not made in her 
 favor, which is usually done by marriage settlements.' 
 
 Jointures, wihere recognized, are legal or equitable in 
 nature, and may be made before or after marriage. They 
 have been regulated largely by the statute of 27 Hen. VIII 
 {1536), c. 10 — the Statute of Uses.' 
 
 Judge Shepley, voicing the opinion of the court in Vance, v. 
 Vance, 21 Me. 364, says, that as early as 1647 Plymouth col- 
 ony ordained that every married woman "that shall not, be- 
 
 ' Anderson's Law Diet., citing Digest," 195, i Am. Ed., N. Y., 
 
 inter alia Grogran v. Garrison, 27 1808. 
 
 Ohio St. 60; Vance v. Vance, 21 ' See Settle, 4. 
 
 Me. 364. '2 Bl. Com. 180; see Use, 3, 
 
 '' Note 2, Blackstone, 137 ; and see statute, etc. ; cited from Anderson's 
 
 exhaustive discussion in "Cruise Diet, of Law. 
 
 [203J 
 
204 REAL PROPERTY, 
 
 fore marriage, be estated by way of jointure, in some houses, 
 lands, tenements, or other hereditaments, for term of life," 
 shall have her dower. And his honor treats the entire sub- 
 ject of jointure, as an estate of freehold ; but it cannot pre- 
 vent a claim for dower, unless made before marriage an4 with 
 the consent of the intended wife. 
 
 § 95. Requisites. In strict legal jointure six things are 
 said to be requisite : 
 
 1, The provision for the wife must take effect in possession 
 or profit immediately after her husband's death. 
 
 2, It must be for her own life, at least, and not "pour 
 autre vie," or for any terms of years, or for any smaller 
 estate. But the widow will be bound by the acceptance of a 
 precarious interest, if she were adult at the time she agreed 
 to the jointure. 
 
 3, It must be made to herself and no other in trust for her. 
 
 4, It must be made in satisfaction of the whole of her 
 dower, and not a part only. 
 
 5, It must be either expressed or averred to be in satisfac- 
 tion of dower. 
 
 6, It must be made before marriage ; if made after mar- 
 riage, the widow may, in general, waive it and claim her 
 dower. ' 
 
 Of jointures and settlements. Although a highly vaunted 
 institution and one conspicuously favored in the law, mar- 
 riage too frequently leaves the wife in an utterly dependent 
 condition so far as regards the possession of money, or the 
 absolute control of a separate estate. To alleviate the dis- 
 tress of her condition jointure was devised by the common 
 law, while marriage settlements are a far more modem 
 devise. The first imports a provision made by the husband 
 who devotes certain specific property to the exclusive cus- 
 tody ; while the second is a sort of family compact by which 
 the wife's friends and relatives seek, through the medium of 
 a marriage settlement, to secure to her an absolute right in 
 property. Walker says: "The propriety and importance of 
 making such arrangements will be obvious when we come to 
 
 • I Abb. Law Diet. 656 ; see Vance Sellick, 8 Conn. 85 ; McCartie v. 
 V. Vance, 21 Me. 364; Sellick v. Teller, 2 Paige Ch. 511. 
 
^ JOINTURE. 205 
 
 Speak of the authority which the husband exercises over the 
 whole property, when not thus placed beyond his reach. If 
 it be called generosity in the husband, in anticipation of some 
 possible reverse of fortune, to provide a sure support for his 
 wife in the day of adversity, by placing some portion of his 
 property for her separate use beyond the control of himself 
 or his creditors, it must be considered a sacred duty in the 
 parent to take this precaution. And when We daily see the 
 distress which might thus easily have been prevented, we 
 cannot but wonder that these arrangements are not more 
 frequently made.'" 
 
 § 96, Incidents of jointure. In common apprehension, 
 dower and jointure convey substantially the same idea — 
 some adequate provision for the widow. But while their 
 general aspects may be somewhat similar, in minutiae and 
 detail they may be found to differ. For instance, jointure 
 may be made up of both personal and real property.' But in 
 the majority of the States, it must consist exclusively of 
 land.' Another incident, and one very peculiar is that it 
 may be made by parol." It seems singular that rights of this 
 character should be made dependent upon the transitory and 
 illusory evidence of parol testimony. It may not be material 
 to investigate the facts for many years after the settlement 
 by jointure. Suppose that half a century after such a trans- 
 action the husband dies intestate leaving an immense prop- 
 erty. Fifty years before, the wife had received that which 
 at the time was regarded as a handsome antenuptial allow- 
 ance. But the evidences of this fact repose upon the frail 
 and perishable tenure of memory. The witnesses are dead, 
 scattered, or have utterly forgotten the circumstances, con- 
 siderations of great moment impel the widow to strict silence, 
 and as a result a handsome jointure, which was designed to 
 extinguish her dower right, and the use of which has been, 
 perhaps, accumulating for a period of fifty years, is utterly 
 ignored because grounded on parol testimony, and unevi- 
 
 ' Cited from Walker's Am. Law, ' Vance v. Vance, 22 Me. 364. 
 
 257. ' Kline v. Kline, 57 Pa. St. 120; 
 
 ' Andrews v. Andrews, 8 Conn. Howton v. Howton, 14 Ind. 505. 
 79- 
 
2o6 REAL PROPERTY. 
 
 denced by any memorial of a permanent character. As a 
 result the wife receives her dower ; the policy of the law is 
 frustrated, injustice to other beneficiaries results, and a legal 
 and equitable wrong is consummated because the law allows 
 an important transaction to be consummated in a shiftless 
 manner. 
 
 It would seem that the Statute of Frauds would be of dis- 
 tinct application in such a case ; but Howten v. Howten, supra, 
 effectually negatives this view, and when we recall the 
 chronic tendency of all our courts to ignore the Statute of 
 Frauds wherever there has been a part performance of the 
 agreement, we can readily see that the statute cannot be 
 relied upon as a preventive in cases of parol jointure. Prob- 
 ably nothing but express legislation can reach the subject. 
 And if an enactment were passed directly condemning such 
 transactions, the courts would find that such condemnations 
 operated by way of forfeiture, and the rules of strict con- 
 struction would be applied in conjunction with the pet equit- 
 able theory of part performance. We see no evasion from 
 the embarassments that environ this subject. We know it is 
 illogical to complain of an existing state of things unless a 
 reform can be suggested that is effective. We confess our 
 inability to even outline the reform, so long as the courts 
 will systematically evade the direct recitals of the Statute of 
 Frauds by applying the equitable rule of part performance, 
 and then construing every case as presenting that identical 
 feature — ' ' Partly performed, and hence not within the inhi- 
 bitions of the statute. " It is well to recall another legal in- 
 cident of jointure, viz: If made after marriage the dower 
 right may be asserted in the very teeth of it.'° Only at the 
 husband's death the wife will be compelled to make an elec- 
 tion." It is no answer to the claim of a widow to a distribu- 
 tive share in the personal estate left by her husband, to 
 show that she made an antenuptial agreement with him, by 
 which she covenanted to accept certain provisions therein 
 undertaken to be made for her by him, in the place of and as 
 a substitute for dower in his estate, and as a bar and estoppel 
 to any and every other claim by her upon his estate. '" 
 
 '" Townsend v. Townsend, 2 " Butts v. Trice, 69 Ga. 74. 
 
 Sandf. Ch. 711. " Sullings v. Richmond, 5 Allen. 
 
JOINTURE. 207 
 
 Sucli a contract witli the performance had or secured, con- 
 stitutes a full bar to a claim for a distributive, share of the 
 personal estate, if its language is broad enough to cover it." 
 
 Still another incident is this : In the event of eviction by 
 title paramount, she will be allowed to claim a provision of 
 equal value in the other lands of her husband." 
 
 § 97. Distinction between legal and equitable jointure. 
 
 While I am strongly impressed, and have an abiding pre- 
 sentiment that Judge Cooley's remark regarding the 
 infrequency of this estate should abundantly excuse the 
 scantiest possible treatment, I am moved to notice a dis- 
 tinction that has proved a delusion and a snare to more than 
 one student of this subject. It is singular how the simplest 
 things occasion the gravest dilemmas ; and equitable jointure 
 is bottomed on the idea of a specific coiitract, deliberately 
 entered into on the part of the wife, by which she accepts a 
 definite sum of money or a conveyance of certain lands, or 
 any other valuable consideration as the full equivalent for 
 her ultimate dower rights in her husband's property, if she 
 subsequently so elects. While legal jointure proceeds upon 
 the theory that a satisfactory provision has actually been 
 made — that nothing further is to be performed in the mat- 
 ter. In other words, equitable jointure contemplates some- 
 thing yet to be, the wife having, in all cases, a reserved 
 right of election, while legal jointure regards the matter as 
 definitely settled. The distinction which always had to 
 apologize for its existence has been abolished in New York, 
 and doubtless in some other States." 
 
 § 98. No set form of words necessary to create. Law does 
 not insist upon any set form of words to create a jointure, 
 and ordinarily any language sufficiently expressive of the 
 intent may be employed. A form is appended to the case of 
 
 " 2 Williams on Executors (4th Gord. 209 ; Vincent v. Spooner, ubi 
 
 Amer. ed.), 1278; Peachey on Mar- supra. 
 
 riage Settlements, 358, 359; Davila "Camden v. Jones, 23 N. J. Eq. 
 
 V. Davila, 2 Vern. 724; Gurly v. 171. 
 
 Gurly, 8 CI. & Fin. 743; Bucking- " McCartee v. Teller, 2 Paige Ch. 
 
 hamshire v. Drury, 2 Eden, 60; 511. 
 Dyke v. Randall, 2 DeG., Macn. & 
 
208 REAL PROPERTY. 
 
 Sullings V. Richmond, 87 Mass. 187, that has successfully with- 
 stood the assaults of able counsel, and may be regarded as 
 sufl&ciently expressive of and adaptive to all cases that are 
 likely to occur. In construing such contracts, the courts 
 apply the ordinary rules that obtain in other cases. 
 
 § 99. The settlement must not impair the rights of creditors. 
 
 It scarcely needs any citation of authority to uphold the 
 proposition that a settlement upon the wife by way of either 
 legal or equitable jointure must not infringe the rights of 
 existing creditors. The remarks of Mr. Justice Field in 
 Moore v. Page, 1 1 1 U. S. 117, must be regarded as decisive on 
 this point. His honor says : " It is no longer a disputed ques- 
 tion that a husband may settle a portion of his property upon 
 his wife if he does not thereby impair the claims of existing 
 creditors, and the settlement is not intended as a cover to 
 future schemes of fraud. The settlement may be made 
 either by the purchase of property and taking a deed thereof 
 in her name, or by its transfer to trustees for her benefit. 
 And his direct conveyance to her, when the fact that it is 
 intended as such settlement is declared in the instrument or 
 otherwise clearly established, will be sustained in equity 
 against the claims of creditors. The technical reasons of the 
 common law growing out of the unity of husband and wife, 
 which preclude a conveyance between them upon a valuable 
 consideration, will not in such a case prevail in equity and 
 defeat his purpose." Such is the purport of our decision in 
 Jones V. Clifton, loi U. S. 228. His right to make the settle- 
 ment arises from the power which every one possesses over 
 his own property, by which he can make any disposition of 
 it that does not interfere with the existing rights of others. 
 As he may give it or a portion of it to strangers or for objects 
 of charity, without anyone being able to call in question 
 either his power or right, so he may give it to those of his 
 own household, to his wife or children. Indeed, settlements 
 
 '* Shepard v. Shepard, 7 Johns. 226 ; Maraman v. Maraman, 4 Met. 
 
 Ch. 57; Hunt V. Johnson, 44 N. Y. (Ky.), 85; Sims v. Rickets, 35 Ind. 
 
 27; Story Eq., sec. 1380; Pom. Eq., 181 ; Story v. Marshall, 24 Tex. 305; 
 
 sec. iioi; Dale v. Lincoln, 62 111. Thompson v. Mills, 39 Ind. 532. 
 22; Deming v. Williams, 26 Conn. 
 
JOINTURE. 209 
 
 for their benefit are looked upon with favor and are upheld 
 by the courts. As we said in Jones v. Clifton, ' In all cases 
 where a husband makes a voluntary settlement of any por- 
 tion of his property for the benefit of others who stand in 
 such a relation to him as to create an obligation, legally or 
 morally, to provide for them, as in the case of a wife or chil- 
 dren or parents, the only question that can properly be asked 
 is, does such a disposition of the property deprive others of 
 any existing claims to it. If it does not, no one can com- 
 plain, if the transfer is made matter of public record and not 
 designed as a scheme to defraud future creditors. And it 
 cannot make any difference through what channels the prop- 
 erty passes to the party to be benefited, or to his or her trus- 
 tee, whether it be by direct conveyance from the husband, or 
 through the intervention of others. ' 
 
 Whilst property thus conveyed as a settlement upon the 
 wife may be held as her separate estate, beyond the control 
 of her husband, it is of the utmost importance to prevent 
 others from being misled into giving credit to him upon the 
 property, that it should not be mingled and confounded with 
 that which he retains, or be left under his control or manage- 
 ment without evidence or notice by record that it belongs to 
 her. Where it is so mingled or such notice is not given, his 
 conveyance will be open to suspicion that it was in fact de- 
 signed as a cover to schemes of fraud. ' ' 
 
 § 100. Marriage settlements favored in the law. The 
 
 American rule is favorable to marriage articles when the 
 party marrying on their faith had good reason to rely upon 
 them as such." 
 
 The consideration of marriage is a good and valuable con- 
 sideration for such contracts." 
 
 In England after-acquired property may be settled by the 
 parties." Ante-nuptial contracts, by which it is attempted 
 to regulate and control the interest which each of the parties 
 to the marriage shall take in the property of the other, like 
 
 " Schouler, Dom. Rel., sec. 177. " Smith v. Osborne, 6 H. L. Cas. 
 
 " Bradish v. Gibbs, 3 Johns. Ch. 375 ; Re Peddler, L. R. 10 Eq. 585 ; 
 
 523; I L. ed. 704; Wright V. Wright, notes to Story Eq. Jur., sees, 983, 
 
 54 N. Y. 440. 984; Baning Mar. Set. 80, 172, 179. 
 14 
 
2IO REAL PROPERTY. 
 
 dower, are favored by the courts and will be enforced in 
 equity according to the intention of the parties whenever the 
 contingency provided by the contract arises.'" 
 
 § loi. Review of the authorities on ante-nuptial settlements. 
 
 Thus, it is said by Story, J., in Magniac v. Thompson, 32 
 U. S. ; 7 Pet. 393; 8 L. ed. 725: Nothing can be clearer, 
 both upon principle and authority, than that doctrine that, to 
 make an ante-nuptial settlement void as a fraud upon credit- 
 ors, it is necessary that both parties should concur in or have 
 cognizance of the intended fraud. If the seller alone intends 
 the fraud, and the other party has no notice of it, he is not 
 and cannot be afEected by it. Marriage, in contemplation of 
 the law, is not only a valuable consideration to support such 
 a settlement, but it is a consideration of the highest value, 
 and from motives of the soundest policy is upheld with a 
 steady resolution. The husband and wife, parties to such a 
 contract, are therefore deemed in the highest sense purchasers 
 for a valuable consideration, and, so that it is bona fide and 
 without notice of fraud brought home to both sides, it be- 
 comes unimpeachable by creditors." This is also the settled 
 doctrine in Alabama." 
 
 Consequently, if it is made in good faith, and without 
 notice of fraud to the parties who take under it, it is unim- 
 peachable by creditors." 
 
 In the earlier case of Stilley v. Folger, 14 Ohio, 610, the 
 court said: "Ante-nuptial contracts have long been within 
 policy of the law both at Westminster and in the United 
 States. They are in favor of marriage, and tend to promote 
 
 " 2 Kent's Com. 165 ; Re Youngs, Ves. Jr. 264 ; Ex parte McBurnie, i 
 
 27 Hun, 54, affirmed 92 N. Y. 235. DeG., M. & G. 441 ; Coutts v. 
 
 " To the same effect see Campion Greenhow, 2 Munf. 363, 4 Hen. & 
 V. Cotton, 17 Ves. Jr. 264, 272 and M. 485; Tunno v. Trezeant, 2 De- 
 notes, saus Eq. 264 ; Jones' App. 62 Pa. 
 
 " Andrews v. Jones, 10 Ala. 400, 324; Bank v. Marchand, T. U. P. 
 
 421. Charlt. 247 ; Partridge v. Copp, i 
 
 " Eppes V. Randolph, 2 Call, 103; Eden. 163, Ambl. 596; Cadogan v, 
 
 Bunnell v. Witherow, 29 Ind. 123; Kennett, 2 Cowp. 432; Andrews v. 
 
 Frank's App. 59 Pa. 190; Magniac Jones, 10 Ala. 400; Haselinton v. 
 
 v. Thompson, 32 U. S., 7 Pet. 348, Gill, 3 T. R. 620, note; Croft v. Ar- 
 
 8 L. ed. 709; Campion v. Cotton, 17 thur, 3 Deaus. Eq. 223. 
 
JOINTURE. 211 
 
 domestic happiness by removing one of the causes of family- 
 disputes — contentions about property, and especially allow- 
 ances to the wife. Indeed, we think it may be considered as 
 well settled at this day that almost any bona fide and reason- 
 able agreement made before marriage to secure the wife in 
 the enjoyment either of her own separate property or a por- 
 tion of that of her husband, whether during coverture or 
 after his death, will be carried into execution in a court of 
 chancery. ' ' 
 
 We may appropriately say that the cases go very far to 
 support the rule as thus stated by Mr. Freeman in his note 
 to the case of Merritt v. Scott, 6 Ga. 563 ; 50 Am. Dec. 372, 
 "The marriage itself is the consideration of the settlement, 
 and it is the highest consideration known to the law. ' ' Mr. 
 Bishop employs even stronger language : " To say therefore, 
 that it is to be regarded, where it is the inducement to any 
 contract as a valuable consideration, is to utter truth, yet 
 only a part of the truth. What this utterance lacks is in our 
 books not infrequently expressed by the adjective 'highest,' 
 as marriage is the highest consideration known in law. ' '" No 
 particular form of words is necessary to constitute a valid 
 ante-nuptial contract. However informal the instrument 
 may be, it will be given effect if the intention of the parties 
 is manifested, and it is such as can, in law or in equity, be 
 executed. "This sort of agreement," says an eminent text 
 writer, "will, of course, vary in its terms according to the 
 inclination of the parties ; but without regard to such varia- 
 tions it should be held alike, on the better authorities, to ex- 
 clude dower, where such is the plain intent of the parties."" 
 
 In truth, not only do the authorities affirm that no for- 
 mality is required, but they go further, and declare that such 
 contracts are to be construed with liberality and favor. 
 They will be upheld if possible, and not overthrown unless 
 the necessity leading to that result is imperious. As Mr. 
 Schouler says : ' ' Equity pays no attention to the externals, 
 but considers only the substantial intention of the parties."" 
 
 " I Bishop, Married Women, sec. " Id., sec. 423. 
 775- "Schouler, Dom. Rel., sec. 176. 
 
212 REAL PROPERTY. 
 
 The cases enforce and illustrate this rule in many forms." 
 
 It has even been held that letters between the parties, 
 although informal, will be sufficient evidence of the con- 
 tract." 
 
 Reason and authority are both in favor of a liberal con- 
 struction of these contracts, for their purpose is to prevent 
 strife, secure peace, adjust rights, and settle the question of 
 marital rights in property. From the earliest years of the 
 law, the courts of chancery, respecting the iron rules of the 
 common law, have favored contracts of this character, and 
 this rule of equity has been grafted into the body of Ameri- 
 can jurisprudence." 
 
 Davis, J. states the rule to be that a voluntary post-nuptial 
 settlement will be upheld " if it be reasonable, not dispropor- 
 tionate to the husband's means, taking into view his debts 
 and situation, and clear of any intent, actual or constructive, 
 to defraud creditors.'"" Mr. Justice Field observes: "A hus- 
 band may settle a portion 6t his property upon his wife, if he 
 does not thereby impair the claims of existing creditors, and 
 the settlement is not intended as a cover to future schemes 
 for fraud."" 
 
 Some of the confusion and uncertainty which has been 
 introduced into this subject in this country may be traced to 
 the celebrated decision of Chancellor Kent in the widely 
 known case of Reade v. Livingston, 3 Johns. Ch. (N. Y.), 481 ; 
 s. c. 8 Am. Dec. 520, in which it was held that a voluntary 
 marriage settlement after marriage, was of itself void as to 
 existing creditors. This case has been declared to be "the 
 grandest monument of legal acumen and wide and varied 
 erudition which New York has ever produced, ' ' and while it 
 
 " Neves V. Scott, 50 U. S., 9 How. ''Andrews v. Andrews, supra; 
 
 196(13 L. ed. 102); Hooks v. Lee. Pierce v. Pierce, 71 N. Y. 154; 
 
 8 Irel. Eq. 157; Smith v. Moore, 4 Barth v. Lines, 7 West. Rep. 217, 
 
 N. J. Eq. 485 ; Johnston v. Spicer, 118 III. 374 ; Jacobs v. Jacobs, supra; 
 
 supra, and cases cited; Hafer v. Beard v. Beard, 22 W. Va. 13c; 
 
 Hafer, supra. . Shuee v. Shuee, 100 Ind. 477; 
 
 »' Logan V. Wienholt, i Clark & Wright v. Jones, 2 West. Rep. 350, 
 
 F. 611 ; Hammersley v. DeBiel, 12 105 Ind. 17-27. 
 Id. 45 ; Kinnard v. Daniel, 13 B. '» Kehr v. Smith, 20 Wall. 35. 
 
 Mon. 496; Peck v. Vandmark, 99 »' Moore v. Page, in U. S. 118. 
 N. Y. 29. 
 
JOINTURE. 213 
 
 is conceded that the case was repudiated by the courts of the 
 very State which gave it birth {Seward v. Jackson, 8 Cow. 
 [N. Y.], 406), it was asserted that "unless indications are 
 wholly delusive the learned chancellor was not more than a 
 century in advance of his age."" 
 
 In Wentworth v. Wentworth, 69 Me. 247, the court held an 
 ante-nuptial contract valid, although it made no provision at 
 all for the woman, except that the husband should not inter- 
 meddle with her property. The court, in the course of the 
 opinion, said in speaking of the contract : " It was made in 
 consideration of marriage, although it is not so declared in 
 terms." Marriage is the highest consideration known to the 
 law." Even if it were otherwise, the reciprocal character of 
 the stipulation might well constitute a sufficient considera- 
 tion."" 
 
 The conclusion of the court in the well considered case of 
 Forwood V. Forwood, (Ky.), 5 S. W. Rep. 361, is thus expressed : 
 ' ' There is another class of cases that hold that an ante-nuptial 
 contract is a legal contract, the consideration of which may 
 be: first, that of the intended marriage alone; or second, 
 that of a jointure or settlement upon the intended wife in 
 lieu of her dower, or distributable share in her intended hus- 
 band's estate; and that either of these considerations, if both 
 parties are sui juris, is sufficient to uphold the ante-nuptial 
 agreement on the part of the woman to relinquish her right 
 of dower and distributable share in husband's estate." In a 
 similar case the Supreme Court of Maryland said: "The 
 contract was made in contemplation of marriage, and, as 
 clearly appears, was intended to bar or prevent the acquisi- 
 tion of any right by either in the property of the other, in 
 order that the marriage proposed might take place. The 
 main object in view was the consummation of the marriage 
 and it was to that end that the contract was executed. It 
 seems almost impossible to view the contract as founded on 
 any other consideration although the reciprocal character of 
 
 ''^ See Davis v. McKinney, 5 Ala. Magnaic v. Thompson, 32 U. S., 
 
 719- 7 Pet. 348 (8 L. ed. 709) ; Vance v. 
 
 ''Nail V. Maurer, 25 Md. 532. Vance, 21 Me. 370. 
 
 *• Ford V. Stuart, 15 Beav. 499; ''^ Nail v. Maurer, j«/>-fl. 
 
214 REAL PROPERTY. 
 
 the stipulation might be held to constitute one sufficient to 
 make the contract binding and effective. But whether the 
 marriage they proposed be expressly mentioned as a con- 
 sideration or not, we think it must be regarded as such, 
 within the purview and meaning of the contract, and we 
 accordingly hold that the contract cannot be avoided on that 
 ground. "" The court, in deciding the case of McGee v. McGee, 
 9 111. 548, thus expresses its views of the law : ' ' The contract, in 
 our judgment, is a reasonable one. It is one that persons ad- 
 vanced in life could with great propriety make, and especially 
 where the parties have previously been married, and where 
 there may be children by both marriages, among whom con- 
 troversies as to property may arise after the death of the 
 parents. Such agreements are forbidden by no considerations 
 of public policy, and there can be no reason why equity will 
 not lend its aid to compel the surviving party to abide by the 
 contract. Our opinion is, the fair construction of the ante- 
 nuptial agreement is that it intercepts dower of the widow, 
 and may be set up as an effectual bar to her demand for 
 dower in the lands of which her husband died seized."" 
 
 It was said in Johnston v. Spicer, 9 Cent. Rep. 566; 107 
 N. Y. 185, that " ante-nuptial contracts, by which it is 
 attempted to control the interest which each of the parties to 
 the marriage shall take in the property of the other during 
 coverture or after death, like dower, are favored by the 
 courts, and will be enforced in equity according to the inten- 
 tion of the parties, whenever the contingency provided by 
 the contract arises."" 
 
 In the case of Andrews v. Andrews, 8 Conn. 79, the judge 
 who spoke for the court said : " I see no reason why such an 
 agreement, deliberately made and upon a sufficient consider- 
 ation, should not be enforced in chancery. Such contracts, 
 especially in late marriages, are not unusual. They are 
 opposed to no rule of law, nor to any principle of sound 
 policy. On the contrary they are, in my judgment, highly 
 
 ™ Nail V. Maurer, 25 Md. 538. Andrews v. Andrews, 8 Conn. 79, 
 
 " This doctrine was reaffirmed in were cited with approval. 
 Barth v. Lines, 7 West. Rep. 217, '» 2 Kent's Com. 165 ; Re Young, 
 
 118 111. 374, and the cases of Went- 27 ttun, 54, affirmed, 92 N. Y. 235. 
 worth V. Wentworth, supra, and 
 
JOINTURE. 215 
 
 beneficial, and are eminently entitled to the aid of a court of 
 chancery, where such aid is necessary to carry them into 
 effect ; and especially is this true where the contract has been 
 executed in good faith by one of the parties. ' ' 
 
 It was said in the case of Pierce v. Pierce, 71 N. Y. 154, that 
 "Ante-nuptial contracts, whereby the future wife releases 
 her claim to the right of dower and all other rights to the 
 estate of her husband upon his decease, are fully recognized 
 in law. When fairly made, and executed without fraud and 
 imposition, they will be enforced by the courts." 
 
CHAPTER VIII. 
 
 ESTATES BY CURTESY. 
 
 Sec. 102. Origin and history. 
 
 Note on civil law.' 
 
 103. Definition and nature. 
 
 104. Requisites of this estate. 
 
 105. How far recognized in this country. 
 
 106. When the right becomes initiate. 
 
 107. Rule as to seizin. 
 
 108. Birth of living issue. 
 
 109. Regarded as a legal estate, 
 no. What property is subject to. 
 
 111. Of curtesy in a determinable fee. 
 
 112. Alienage as affecting the right to curtesy. 
 
 113. Effects of enabling acts on curtesy. 
 
 a. Views of Mr. Justice Miller. 
 
 114. Not favored by our courts. 
 
 115. How the right may be barred or lost. 
 
 116. Mode of valuing ain inchoate right of curtesy. 
 
 117. Typical legislation on the subject. 
 
 § 102. Origin and history. Tenancy by the curtesy, or per 
 legem terrm, though so called as if it was peculiar to Eng- 
 land, was known not only in Scotland, but in Ireland, and in 
 Normandy also ; and the like custom is to be found among 
 the ancient Almain laws ; and yet it does not seem to have 
 been feudal, nor does its original anywhere satisfactorily 
 appear. Some English writers (Mirror, Selden, Cowell), 
 ascribe it to Henry I; but Nat. Bacon calls it a law of 
 
 ^ Note on Civil Law. — The civil Hor. Jurid. 30; Tayl. Civ. Law, 134; 
 
 law (Lat. Jus, Civile Romanum), i Kent's Com. 538-543; see Corpus 
 
 was the Roman law, as comprised Juris Civilis. 
 
 in the Code, Pandects, Institutes ***The Roman law of an earlier 
 
 and Novels of Justinian, and his period was introduced into Britain 
 
 successors, constituting together on its subjugation by Agricola, to- 
 
 what is termed the Corpus uris ward the end of the first century, 
 
 Civili, as distinguished from the and is supposed to have prevailed 
 
 canon and common law. (Butler's there until the abandonment of the 
 
 [216] 
 
ESTATES BY CURTESY 
 
 217 
 
 counter-tenure to that of dower, and yet supposes it as 
 ancient as from the time of the Saxons ; and that it was 
 therefore rather restored than introduced by Henry I." But 
 as there are no notices of this curtesy among the laws of the 
 Saxons, or among those we have of Henry I, we may, per- 
 haps, with safety rely on Craig's conjecture that it is derived 
 from the civil law.' 
 
 Courtesy, or curtesy, Scotch law. A right which vests in the 
 husband, and is in the nature of a life rent. It is a counter- 
 part of the terce. Curtesy requires, first. That there shall 
 have been a living child born of the marriage, who is heir of 
 the wife, or who, if surviving, would have been entitled to 
 succeed. Second, That the wife shall have succeeded to the 
 subjects in question as heir either of line, or of talzie, or of 
 provision.* 
 
 § 103. Definition and nature. Curtesy is an estate to which 
 a man is by law entitled, on the death of his wife, in the lands 
 or tenements of which she was seized during the marriage 
 in fee simple or fee tail, provided he had issue by her, born 
 
 island by the Romans, at the be- 
 ginning of the fifth century ; after 
 which it was superseded by the 
 laws of the Saxons and other in- 
 vaders. (See Roman Law.) The 
 civil law, properly so called, was 
 first introduced during the reign 
 of Stephen (about the middle of the 
 twelfth century), and is represented 
 by Blackstone and other standard 
 writers on the law of England, as a 
 foreign and rival system, between 
 which and the native common law 
 a continual struggle was maintained 
 until the reign of Edward I, when 
 the common law obtained a com- 
 plete and permanent victory; the 
 civil law being thenceforward con- 
 fined within certain limits, and re- 
 garded or tolerated as a merely aux- 
 illiary and subordinate system, (i 
 Bl.Com. 18-25; 4 Id. 421-425; 3 Id.87.) 
 
 It is not surprising that the merits 
 of the civil law and its influence 
 upon the law of England, should 
 have been differently viewed and 
 represented by Enghsh civilians; 
 but none appear to have gone the 
 length of Mr. Spence, who, in his 
 treatise on the Equitable Jurisdic- 
 tion of the Court of Chancery, has 
 undertaken to prove the common 
 law itself to be, in many of its most 
 important and (as generally sup- 
 posed) characteristic doctrines and 
 proceedings, of decidedly Roman 
 origin, (i Burrill's Law Diet.) 
 
 'Eng. Gov. 105, 147. 
 
 ' Craig de Jure Feud. 312; Wright 
 192, 5 : Cited from Jacob's Law 
 Diet. 
 
 ■• I Bell's Com. 61 ; 2 Erst. 9, sec. 
 S3- 
 
2l8 REAL PROPERTY. 
 
 alive during the marriage, and capable of inheriting her 
 estate/ 
 
 It is a species of freehold estate not of inheritance. Dur- 
 ing coverture it is said to be "inchoate," and if, during this 
 period of coverture, issue has been born alive, it only remains 
 for the wife to die in order that the husband may take an 
 estate for his own life." It appears that in some of the States, 
 the birth of living issue is not necessary in order to entitle 
 the husband to the right.' 
 
 An estate by the curtesy, says Cruise, quoting Littleton, 
 vol. I, sec. I, of chap, i, title 5, p. 107, is where a man taketh 
 a wife seized in fee simple or in fee tail general, or seized as 
 heir in special tail, and hath issue by the same wife, male or 
 female, born alive albeit the issue after dieth or liveth, yet 
 if the wife dies the husband shall hold the land during his 
 life by the law of England. 
 
 And a tenant by the curtesy of England, says Bla.ckstone, 
 book 2, chap. 8, p. 126, is where a man marries a woman seized 
 of an estate of inheritance, that is, of lands and tenements in 
 fee simple, or fee tail, and has by her issue, born alive, which 
 was capable of inheriting her estate. In this case he shall on 
 the death of his wife hold the lands for his life as tenant, by 
 the curtesy of England. There are four requisites, says 
 Blackstone, necessary to make a tenancy by the curtesy: 
 marriage, seizin of the wife, issue, and death of the wife. 
 
 § 104. Requisites of this estate. Bouvier says there are 
 four requisites indispensably necessary to the existence of 
 this estate: i. Marriage; 2, Seizin of the wife, which must 
 have been seizin in deed, and not merely seizin in law ; it 
 seems, however, that the rigid rules of the common law, 
 have been relaxed in this respect, as to what is sometimes 
 called waste or wild lands ; ' 3, Issue ; 4, Death of the wife. 
 
 I, The marriage must be a lawful marriage; for a void 
 marriage does not entitle the husband to the curtesy ; as if a 
 married man were to marry a second wife, the first being 
 alive, he would not be entitled to the curtesy in such second 
 
 ' I Steph. Com. 246. ' Merritt v. Home, 5 Ohio St. 
 
 ' Porch V. Fries, 3 Green. 204. 307 ; Kline v. Beebe, 6 Conn. '494. 
 
 » I Pet. 505. 
 
ESTATES BY CURTESY. 219 
 
 -wife's estate. But if the marriage had been merely voidable 
 he -would be entitled, because no marriage, merely voidable, 
 can be annulled after the death of the parties." 
 
 2, The seizin of the -wife must, according to the English 
 law, be a seizin in deed ; but this strict rule has been some- 
 ■what qualified by circumstances in this country. Where the 
 ■wife is o-wner of -wild, uncultivated land, not held adversely, 
 she is considered as seized in fact, and the husband is entitled 
 to his curtesy." When the -wife's estate is in reversion or 
 remainder, the husband is not, in general, entitled to the 
 curtesy, unless the particular estate is ended during cover- 
 ture." The -wife's seizin must have been such as to enable 
 her to inherit." 
 
 3, The issue of the marriage, to entitle the husband to the 
 curtesy, must possess the foUo-wing qualifications : First, Be 
 born alive; Second, In the lifetime of the mother; Third, 
 Be capable of inheriting the estate. 
 
 First, The issue must be born alive. As to -what -will be 
 considered life, see Birth, Death, Life. 
 
 Second, The issue must be born in the lifetime of the 
 mother; and if the child be born after the death of the 
 mother, by the performance of the Caesarian operation, the 
 husband -will not be entitled to the curtesy ; as there -was no 
 issue born at the instant of the -wife's death, the estate vests 
 immediately on the -wife's death to the child, in ventre sa mere, 
 and the estate being once vested, it cannot be taken from 
 him." It is immaterial -whether the issue be born before or 
 after the seizin of the -wife.'* 
 
 Third, The issue must be capable of inheriting the estate ; 
 -when, for example, lands are given to a -woman and the heirs 
 male of her body, and she has a daughter, this issue -will not 
 enable her husband to take his curtesy." 
 
 Fourth, The death of the -wife is requisite to make the 
 estate by the curtesy complete. 
 
 ' Cruise Dig. tit. 5, c. i, s. 6. '^ 5 Cowen. 74. 
 
 '»8 Johns. 262; 8 Cranch. 249; i "Co. Litt. 29, b; 8 Co. Rep. 35, 
 
 Pet. 503 ; I Munf. 162; i Stew. 590. a. 
 
 " Perk. s. 457, 464; Co. Litt. 20, a; " 8 Co. Rep. 35, b. 
 
 3 Dev. R. 270 ; I Sumn. 263 ; but sec " Co. Litt. 29, a. 
 3 Atk. 469 ; 7 Viner. Ab. 149, pi. 11. 
 
220 REAL PROPERTY. 
 
 § 105. How far recognized in this country. The right is 
 expressly given by statute in Maine, Massachusetts, Rhode 
 Island, Delaware, Minnesota, Kentucky, New York, Ver- 
 mont and Wisconsin. In Virginia, New Jersey, New Hamp- 
 shire, Alabama, Missouri, Illinois, Tennessee, Maryland, 
 North Carolina, Mississippi, and Connecticut, it is recognized 
 by the courts as an existing estate. No estate by curtesy 
 exists in Indiana, North and South Dakota, South Carolina, 
 Georgia, Louisiana, California or Nevada. In Iowa it is 
 abolished, but the husband takes the same estate in the prop- 
 erty left by the wife that she would have had in his estate by 
 right of dower. In South Carolina he takes his share in fee. 
 In Ohio, Oregon and Pennsylvania curtesy is given, though 
 no issue be born alive ; while in Texas all property which a 
 husband and wife bring into the marriage, or acquire the 
 same, becomes the common property of both. By statute in 
 Kansas the husband takes one-half of his wife's separate 
 property absolutely, upon her decease without will ; and if 
 without issue, he takes an absolute property in all her estate. 
 In Dakota, Indiana, Michigan and Nevada the estate is abol- 
 ished and in New York the right is defeated by a convey- 
 ance by the wife. 
 
 In many of the States curtesy is given by statute, in equit- 
 able estates of which the wife is seized. The right extends 
 to equities of redemption, contingent uses, and moneys 
 directed to be laid out in lands for the benefit of the wife." 
 
 § 106. When the right becomes initiate. The subject of 
 tenancy by curtesy initiate has been involved in considerable 
 mystification, owing to an error that has crept into some of the 
 reports and has found its way into text books. I refer to the 
 supposition that mere marriage initiates the tenancy. This is 
 not so. Marriage is a very necessary step, an indispensable 
 step to the right of curtesy ; but the right becomes initiate 
 on the birth of issue." And the issue must be born in the 
 lifetime of the mother. The Caesarian operation does not 
 affect this rule. Again, curtesy becomes initiate when, after 
 marriage, the wife comes into possession of real property. 
 
 "See I Washburn, Real Prop., " Wilson v. Arentz, 70 N. C. 670. 
 4ed. 164, 166 (1876). 
 
ESTATES BY CURTESY. 221 
 
 The rule is not affected if the seizin of the wife occurs before 
 or after the birth of issue ; nor is it affected by the death of 
 the issue before the wife became seized. In other words, the 
 essentials which create a tenancy by curtesy need not be 
 coincident but may occur at any time during the existence of 
 the coverture. 
 
 § 107. Rule as to seizin. In adopting, in this country, 
 from the common law, the tenancy by curtesy, the rules 
 which prescribe the character or kind of estate to which it 
 attaches, seem uniformly to have been regarded as also 
 adopted. In the absence of statutory enactments, the com- 
 mon law, of which this estate is the creature, must furnish 
 the rule on this subject. It is accordingly laid down by Kent 
 in his Commentaries, that "if there be an outstanding estate 
 for life, the husband cannot be tenant by the curtesy of thfe 
 wife's estate in reversion or remainder, unless the particular 
 estate be ended during the coverture."" 
 
 But the principal reason of the rule requiring actual seizin 
 by the wife, in order to create tenancy by curtesy, is said by 
 Blackstone to be "because, in order to entitle the husband to 
 such estate, he must have begotten issue that may be heir to 
 the wife ; but no one, by the standing rule of law, can be heir 
 to the ancestor of any land whereof the ancestor was not 
 actually seized."" 
 
 Though this principal reason of the rule no longer exists, 
 even in England, yet it is said that the rule itself remains 
 there, unaffected by the failure of its main reason."" But in 
 this country it has been frequently held otherwise. Where 
 ownership, without seizin, regulates the descent of real 
 estate, and gives the right to dispose thereof, either by deed 
 or will, the rule requiring actual seizin in deed has been held 
 not to apply. In Lessee of Borland v. Marshall, 2 Ohio St. Rep. 
 308, the court, proceeding on the maxim cessante ratione, cessat 
 ipse lex, held, that inasmuch as seizin of the ancestor was 
 
 "4 Kent's Com. 28; Stoddard v. Tayloe v. Gould, 10 Barb. Sup. Ct. 
 
 Gibbs, I Sumn. 263 ; Blood v. Blood, Rep. 388. 
 
 23 Pick. 80; 7 Mass. R. 253; 5 N. "2 Bl. Com. 128. 
 
 Hamp. R. 469; Mackey v. Proctor, '"2 Wend. Bla. 128, note 32. 
 12 B. M. 433; I Barb. Ch. Rep. 598; 
 
222 REAL PROPERTY. 
 
 never necessary to inheritance by the wife, the husband was 
 entitled to curtesy. 
 
 Is a man entitled to curtesy in lands, the title to which 
 descended to his wife during coverture, but which were in 
 the actual possession of an adverse claimant from the time 
 her title accrued until her death ? It is very clear that, by 
 the strict rule of the common law, he is not ; and for the 
 reason that neither the wife, nor the husband in her right, 
 was at any time during coverture, actually seized of the 
 premises. Four things, as we have stated, are necessary to 
 create an estate by the curtesy, viz : Marriage, seizin of the 
 wife, issue, and death of the wife." And where the wife's 
 title is derived by inheritance, or any other mode requiring 
 an entry to perfect it, the seizin must be in 'deed, and not 
 merely in law."'' 
 
 * The books generally, and with but few exceptions, give 
 but one reason for the rule making seizin indispensable to 
 curtesy, namely, that as, by the common law, livery of seizin 
 was necessary to perfect the title to such an estate, of an heir 
 or devisee, it followed that unless the wife, or the husband 
 in her right, was actually seized, her issue could never, as 
 her heirs, inherit the lands ; for, owing to the want of actual 
 seizin, she never acquired an inheritable estate. But unless 
 she had an estate of inheritance there could be no curtesy, 
 as it was indispensable to the existence of curtesy that the 
 mother be seized of an estate which might descend to her 
 heirs, and ' ' the tenancy by curtesy is an excrescence out of 
 the inheritance. ""' 
 
 In Ohio, a husband may be tenant in curtesy, though the 
 wife was never seized in deed, either actually or construc- 
 tively, of the lands, and though the same were adversely 
 held, during coverture, by another person. The question 
 was again examined, and this decision approved, in the case 
 of Merritt v. Home, 5 Ohio St. Rep. 308. In the former of 
 these cases, the subject was very fully considered, and the 
 conclusion arrived at by the court was said not to be " in con- 
 flict with the principles of the common law. For, even at 
 common law, a seizin in law is sufficient to give curtesy in all 
 
 "Co. Litt. 30, a. "3 Bac. Abr. 11, (Bouvier's ed). 
 
 ''Co. Litt. 29, a; Jackson v. Johnson, 5 Cow. 98. 
 
ESTATES BY CURTESY. 223 
 
 inheritances created without entry." It is, therefore, a mere 
 application of a common law principle, to say that a seizin in 
 law is sufficient in Ohio, where in no case is an entry neces- 
 sary to create an inheritance. ' ' The same court holds that 
 curtesy does not vest in the husband until the death of the 
 wife, and then only in such property of which she died 
 seized." 
 
 The right the husband acquires by marriage in the lands 
 of the wife is thus stated in vol. 2, p. 131 of Kent's Com- 
 mentaries, Lacy edition, 1889: "If the wife, at the time of 
 marriage, be seized of an estate of inheritance in land, the 
 husband, upon the marriage, becomes seized of the freehold 
 jure uxoris, and he takes the rents and profits during their 
 joint lives. It is a freehold estate in the husband, since it 
 must continue during their joint lives, and it may, by possi- 
 bility, last during his life. It will be an estate in him for 
 the life of the wife only, unless he be a tenant by the cur- 
 tesy. It will be an estate in him for his own life, if he dies 
 before his wife, and in that event she takes the estate again 
 in her own right. If the wife dies before the husband, with- 
 out leaving issue, her heirs immediately succeed to the 
 estate. If there has been a child of the marriage born alive, 
 the husband takes the estate absolutely for life, as tenant by 
 the curtesy and on his death the estate goes to the wife, or 
 her heirs, and in all these cases, the emblements growing 
 upon the land at the termination of the husband's estate go 
 to him or his representatives. ' ' 
 
 If, during her life, real estate is converted by operation of 
 law into personal estate, the conversion will be treated as her 
 own." 
 
 The rents, issues and profits of the wife's lands accruing 
 during coverture belong absolutely at common law to the 
 husband. How effectually these common law rights of the 
 husband have been changed by the statutes of the different 
 States will appear by reference to these statutes. 
 
 A mere naked seizin of the wife as trustee is not sufficient 
 
 "3 Bac. 12; Jackson v. Johnson, " Hershizer v. Florence, 39 Ohio 
 S Cowen, 98 ; Ellsworth v. Cook, 8 St. 516. 
 
 Paige, 643. "* Graham v. Dickinson, 3 Barb. 
 
 Ch. 170; s L. ed. 861. 
 
224 REAL PROPERTY. 
 
 to entitle the husband to curtesy" nor, if he is seized as trus- 
 tee of property devised to his wife, can he claim curtesy after 
 divorce." 
 
 If there is an outstanding life estate that the wife may ulti- 
 mately receive as reversioner or expectant heir, such life 
 estate must terminate before the death of the wife in order to 
 confer a right of curtesy in the husband, otherwise she is 
 without seizin in fact." 
 
 § io8. Birth of living issue. The issue must be born alive. 
 The husband by the birth of the child becomes tenant by 
 the curtesy initiate, and may do many acts to charge the 
 lands, but his estate is not consummate till the death of 
 the wife ; which is the fourth and last requisite to make a 
 complete tenant by the curtesy. 
 
 Live birth may be stated to be "the manifestation of some 
 certain sign or signs of life by the child after it is completely 
 born.""° 
 
 The term "completely born" implies that the child must 
 be in the world in all its parts, i. e. , completely external to 
 the mother. It does not imply, however, either that the 
 placenta has been separated or that the cord has been divided. 
 
 The law admits no mid-stage between life and death. It 
 recognizes no distinction between intra-uterine and extra- 
 uterine life, or between foetal and non-foetal existence." 
 
 Respiration is a true sign of life ; but on the other hand it 
 does not follow that because a child does not breath, therefore 
 it is not living."' 
 
 Dr. Trail, in his Medical Jurisprudence, p. 47, says: "In 
 Scotland, the viability of a child is determined by its crying; 
 in France by its respiration ; but in England any tremulous 
 motion of its muscles, however trifling, has been decided to 
 constitute life."" 
 
 " Chew V. Commissioners, etc., 5 ^'3 Tidy, Legal Medicine, 155; 
 
 Rawle, 160. Ewell, Medical Jurisp. iii ; Taylor 
 
 '■'"Schoch's Appeal, 33 Pa. St. 351. Medical Jurisp; Reese, Medical 
 
 "Todd V. Oviatt, 58 Conn. 174; Jurisp. 665, 666; Fish v. Palmer, 
 
 Webster v. Ellsworth, 147 Mass. Ct. Exch. (1806). 
 
 602 ; In re Cregier, i Bark. Ch. 598. '* See i Wharton, Am. Crim. Law, 
 
 2° 3 Tidy, Legal Medicine, 154. sec. 874; Dean, Medical Jurisp.; 
 
 "3 Tidy, Legal Medicine, 155. Beck, Medical Jurisp. p. 356, 357. 
 
ESTATES BY CURTESY. 225 
 
 Proof of stateroents made by the mother many years after 
 the birth that the child was born alive was incompetent." 
 
 The proof in the case did not authorize a finding that the 
 child was born alive.'" 
 
 By the Scotch law, the child must have been heard to cry, 
 and no slighter evidence of life was allowed. This view of 
 the law did not prevail in England, and in Coke on Littleton 
 the law is stated as follows: "If it be born alive it is suffi- 
 cient, though it be not heard to cry, for, peradventure, it 
 may be born dumb."" 
 
 In I Beck's Medical Jurisprudence, p. 416, the idea that a 
 child may be born alive and dumb is refuted. 
 
 Where the civil law is in force, the interpreta±ion of the 
 word "life" or "being born alive," is, according to most dis- 
 tinguished lawyers and physicians, "complete and perfect 
 respiration."" 
 
 In Germany the doctrine is accepted that respiration and 
 life are reciprocally evidence of one another." 
 
 In England the question has arisen in criminal trials where 
 it was necessary to determine whether the destruction of the 
 child was murder or foeticide. In Reg. v. Wright, 9 Car. & P. 
 754, on the trial of a charge of child murder, it appeared from 
 the evidence of the surgeon that the child had never had an 
 independent circulation. The court held the offense to be 
 murder." 
 
 In a few of the States, we find a direct repudiation of the 
 old comhion law rule respecting the birth of issue as a pre- 
 requisite to the husband's rights to curtesy, and in Alabama, 
 Minnesota, Nebraska, Ohio, Oregon and Pennsylvania, such 
 rights attach to the husband without reference to the ques- 
 tion of issue having been born of the marriage ; seizin of the 
 wife, the fact of marriage, and the death of the wife, being 
 sufficient to vest an estate by curtesy in the husband. 
 
 § 109. Regarded as a legal estate. The interest of the 
 tenant by the curtesy cannot accurately be characterized as a 
 
 ** Gardner v. Klutts, 8 Jones L. ^' i Beck. Medical Jurisp. 412! 
 375. 5» Wharton & Stille, Medical Jur- 
 
 '' Doe V. Killen, 5 Houst. 16. isp. sec. 128. 
 
 ^ See 2 Bl. Com. 127. *' Rex v. Enoch, 5 Car. & P. 539. 
 
 IS 
 
226 REAL PROPERTY. 
 
 mere charge or incumbrance. It is rather a legal estate in 
 land, and may be set nf) by a stranger to defeat an action by 
 the heir." And it has been held that the husband is entitled 
 as tenant by the curtesy to have the interest of the money 
 arising from the sale of the estate during life in lieu of the 
 rents and profits of the land." But this rule cannot obtain 
 except in those jurisdictions where the common law incidents 
 of this estate have not been impaired by legislation. In all 
 marriages contracted before the passage of the enabling acts, 
 the husband's right to curtesy is to be determined by the law 
 in force in the particular State where he was married, and by 
 the law in vogue at the date of the marriage. The organic law 
 provides that no expost facto law shall be passed, and if the 
 analogy is not too fanciful, we may assume that the husband 
 is protected by a sort of civil application of that rule. A 
 pleading may be filed nunc pro tunc; but a husband's rights 
 in real property are hardly within the operation of such a 
 rule. 
 
 § no. What property is subject to. Every estate of inheri- 
 tance must be regarded as subject to the right of curtesy. 
 The old common law was explicit upon this point, and to- 
 day wherever the doctrine of curtesy obtains, the rule holds 
 good, and will affect a qualified as well as an absolute fee." 
 Thus, an estate tail is subjected to the incident of curtesy." 
 And equitable estates of inheritance will be catalogued under 
 the same heading." But there are important considerations 
 attaching to these equitable estates that must be clearly 
 apprehended before the theory of curtesy is applied. Con- 
 spicuously among these considerations is that of the intention 
 manifested by the party creating the equitable estate in the 
 wife or for her benefit. If it can be gathered from the 
 recitals of the instrument giving her the estate, that it is for 
 
 *" Adair V. Lott, 3 Hill, 182. "Gilmore v. Birch, 7 Oreg. 373; 
 
 ^' Dunscomb v. Dunscomb, i Dugan v. Gittings, 3 Gill. 138; Car- 
 Johns. Ch. 508. ter V. Dale, 3 Lea, 710; Dunscomb 
 
 *" Simmons v. Gooding, 5 Ired. v. Dunscomb, i Johns. Ch. 508; 
 
 Eq. 382; Winkler V.Winkler, 18 W. Dubs v. Dubs, 31 Pa. St. 154; 
 
 Va. 455; Matter of Creiger, i Barb. Forbes v. Smith, 5 Ired. Eq. 369; 
 
 Ch. 598. Tillinghast v. Coggeshall, 7 R. I. 
 
 " Haynes v. Bourn, 42 Vt. 686. 381. 
 
ESTATES BY CURTESY. 22/ 
 
 ■her sole and separate use, independent of any husband she 
 may have, or if any phraseology is present which evidences 
 an intent to exclude the husband, the right of curtesy will be 
 denied him." I have an abiding conviction that the old com- 
 mon law theory that excluded the husband from any partici- 
 pation whatever in these equitable estates was both sound in 
 principle, and efficacious in practice. It conclusively appears 
 that from the earliest times, the wife's interest, if in the 
 nature of either a reversion or a remainder, which has not 
 yet "fallen in," but was still dependent upon the happening 
 of some contingency, could not be subject to the right of cur- 
 tesy unless the contingency which terminated the prior estate 
 happened during coverture. In other words, unless the 
 reversion or remainder is reduced to actual possession and 
 disappears as a reversion, and becomes the wife's absolute 
 property during the continuance of the marital relation, the 
 right of curtesy will not attach." 
 
 Ordinarily tenancy by the curtesy can only exist in real 
 property. But when the equity jurisdiction acting in accord- 
 ance with the principles of equitable conversion regards 
 money as realty, the right of curtesy will be held to attach to 
 the property while in this condition. The principle upon 
 which this view proceeds is — equity will regard as done that 
 which should be done ; and if, while in the process of doing, 
 the property assumes the character of money pending its 
 reinvestment in land, the court regards it as already in the 
 condition it is to ultimately assume, and gives the husband 
 curtesy in the money, or rather in the interest which is paid 
 on the money." 
 
 § III. Of curtesy in a determinable fee. This caption sug- 
 gests matters of considerable refinement, but fortunately of 
 rare occurrence. Mr. Washburn states the situation with all 
 of his usual force and lucidity. If the estate of the wife be 
 an estate of inheritance determined by a limitation which 
 
 *' Carter V. Dale, supra. Thornton's Exrs. v. Krepps, 37 Pa. 
 
 "Redees V. Hayden, 43Miss. 633; 391 ; Hatfield v. Sueden, 54 N. Y. 
 
 Bank V. Davis, 31 Ala. 626. 284 ; Taliaferro v. Burwell, 4 Call. 
 
 "Northcutv. Whipp, 12B. Monr. (Va.), 321; Withers v. Jenkins, 14 
 
 65; Evans v. Evans, 9 Pa. 190; S. C. 597. 
 
2C8 REAL PROPERTY. 
 
 ultimately defeats it, the right of curtesy is gone. But if the 
 limitation over be by way of springing use or executory 
 devise which takes effect at her decease, thereby defeating or 
 determining her estate before its natural expiration, and 
 substituting a new one in its place, the seizin and estate 
 which she had in the fee simple or fee tail will give the hus- 
 band the right of curtesy." 
 
 § 112. Alienage as affecting the right to curtesy In this 
 country our naturalization laws are exceedingly liberal — in 
 the view of many close students of public affairs they are 
 altogether too liberal, and imperatively call for revision on 
 close insular lines. Without discussing the merits or de- 
 merits of these laws, it is sufficient for all practical purposes 
 to observe that alienage has little or no effect upon the hus- 
 band's right of curtesy. If, in the particular jurisdiction 
 where his tenancy becomes important, his alienage should 
 affect the right, he is at liberty to overcome the obstacle by 
 simply applying for naturalization papers. And. should he 
 fail to observe this simple prerequisite, it is doubtful if his 
 rights to the estate could be in any way questioned except 
 through an action on the part of the attorney -general. The 
 cases are very rare in this country as to the effect of alienage 
 on the right to curtesy. But the liberalizing tendency is 
 sufficiently evinced by such broad and all embracing lan- 
 guage as the following: "Aliens may take, hold, transmit 
 and convey real estate, and no title to real estate shall be in- 
 valid on account of the alienage of any former owner." 
 Under fair interpretation of this language it would seem idle 
 to prolong the discussion of the subject." 
 
 § 113. Effect of the " Enabling Acts " on curtesy. There is 
 certainly much force in the contention that legislative enact- 
 ment, now generally prevailing throughout the United 
 States, placing the property of married women under their 
 own control, has reacted upon the husband's rights of curtesy. 
 It is difficult to understand how a person can have the owner- 
 
 *« I Wash. Real Prop. Star Page <» See Lumbv. Jenkins, 100 Mass. 
 135; see McMasters v. Negley, 152 527; Foss v. Crisp, 20 Pick. 121; 
 Pa. St. 303. Mussey v. Pierre, 25 Me. 559. 
 
ESTATES BY COURTESY. 229 
 
 ship and control of property in a free and unrestrained man- 
 ner, and at the same time subject it, perchance against his 
 will, to the wishes of somebody else. It cannot affect the 
 logic of the case if that somebody happens to be called a hus- 
 band. So long as the law aims to place her in an attitude of 
 independence as regards her own property, it is a strange 
 kind of independence that compels her to recognize any dis- 
 turbance of her right. The entire topic of curtesy is a sur- 
 vival of medieval abominations, and should be blotted out. 
 It does not repose upon the same equities that accompany 
 dower, and it is refreshing to note, that in Michigan and 
 Mississippi, the courts of last resort have held steadily to 
 this view." 
 
 Enabling acts, giving the wife power to possess, enjoy and 
 devise her separate estate as if she were sole, have destroyed 
 the tenancy by the curtesy initiate," but do not affect the 
 right of the husband as tenant by the curtesy where the wife 
 dies without alienating or devising her land." 
 
 In California no estate is allowed the husband as tenant by 
 the curtesy on the death of the wife." It is generally held 
 that a valid- divorce from the bond of matrimony cuts off the 
 husband's tenancy by the curtesy unless expressly or im- 
 pliedly preserved by statute." 
 
 The husband cannot be a tenant by the curtesy in any real 
 estate conveyed to the wife for her sole and separate use with 
 power of disposal." It should be remembered, however, that 
 in Illinois the married woman's acts of 1861 did not abolish 
 curtesy, but the act of 1874 directly abrogated this estate in 
 the husband. In Mississippi and Michigan the courts have 
 evidenced a tendency to hold that the married woman's acts 
 have abolished curtesy by implication. There is much judi- 
 
 '" Ransom v. Ransom, 30 Mich. Burke v. Valentine, 52 Barb. 412 ; 
 
 328; Stewart V. Ross, 50 Miss. 776; Wait's Actions and Defenses, vol. 
 
 Billings V. Baker, 343 ; but see 8, page 307. , 
 
 contra, Burke v. Valentine, 52 '^Cal. Civ. Code, sec. 173. 
 
 Barb. 412. "Barrett v. Failing, in U. S. 
 
 "Breeding v. Davis, 77 Va. 639; 523; Wait's Actions and Defenses, 
 
 see Hitz v. National Metropolitan vol. 8, page 307. 
 
 Bank, in U. S. 722. "Monroe v. VanMeter, 100 111. 
 
 "Breeding v. Davis, 77 Va. 639; 347; Pool v. Blakie, S3 HI- 495- 
 
230 REAL PROPERTY. 
 
 cial sympathy -witli this view, but there is a formidable array 
 of authority to the effect that a statute law cannot be abol- 
 ished by implication except in cases where such intent is so 
 obvious and palpable as to preclude any attempt to consider 
 the statute as in force. 
 
 There is considerable controversy as to the precise effect 
 of the various enabling acts by virtue of which married 
 women have obtained a more satisfactory recognition of their 
 property rights. The better opinion seems to be, that the 
 common law incident of curtesy is not abolished by those 
 acts, but is very liable to be defeated by the wife's arbitrary 
 disposition of the property either during her life by deed, or 
 after her death by will." There is considerable fluctuation 
 in the decisions." 
 
 Three distinct departures from the old law are announced 
 in this new statute in regard to the husband's relation to his 
 wife's property, both real and personal: 
 
 1, That her right to it shall be as absolute as if she were 
 unmarried. 
 
 2, That it shall not be subject to the disposal of her hus- 
 band. 
 
 3, That it shall not be liable for his debts. 
 
 In regard to the first of these, it may be conceded that 
 where, at the time of the enactment of this law, the husband 
 had acquired a vested right in the property, Congress did not 
 mean to destroy it, and that to that extent her right would 
 not be as absolute as if she were unmarried." 
 
 a. Views of Mr. Justice Miller. Under these statutes or 
 "enabling acts" the right of a married woman to any prop- 
 erty, personal or real, belonging to her at the time of mar- 
 riage or acquired during marriage, shall be as absolute as if 
 she were unmarried and shall not be subject to the disposal 
 of her husband. It was the purpose of the statute to abolish 
 this tenancy by the curtesy, or any other interest of the hus- 
 band, in all her property, and to place her in regard to it in 
 the condition of a feme sole. And it was this same property 
 
 ''Lansing V. Gulick, 26 How Pr. '^Hitzv.Nat. Metropolitan Bank, 
 (N. Y.), 250. Ill U. S. 722. 
 
 " Burke v. Valentine, 52 Barb. 
 412 ; Beamish v. Hoyt, 2 Robt. 307. 
 
ESTATES BY CURTESY. 23 1 
 
 and not part of it, no separate interest or estate in it, wliich 
 -was exempted from liability for his debts. It would be a 
 queer construction of the statute, looking at its manifest pur- 
 pose, to hold that it meant, though her property shall never 
 come under his control and he shall acquire no interest in it 
 and it shall never be liable for his debts, the use and posses- 
 sion, the rents and profits of it, may be made liable to his 
 debts as long as he lives. 
 
 We are of opinion that the statute intended to exempt all 
 property which came to the wife by any other mode than 
 through the husband, from liability to seizure for his debts, 
 without regard to the nature of the interest which the hus- 
 band may have in it, or the time when it accrued, and that 
 in regard to such debts, created after the passage of the law, 
 no principle of law or morals is violated by the enactment. 
 On the contrary, if we concede that the husband has acquired 
 a tenancy by the curtesy, in her property, before such enact- 
 ment, it is eminently wise and just that no other person 
 should afterwards acquire such an interest in it as to disturb 
 the joint possession of it, and turn the family resulting from 
 the marriage out, that it may go to pay his debts. " 
 
 In the case of White v. Hildreth, on the other hand, there 
 came before the Supreme Court of Vermont, for construc- 
 tion, a statute in regard to the debts of the husband very like 
 the Act of Congress affecting the District of Columbia. It 
 enacted that the rents, issues and profits of the real estate of 
 any married woman, and the interest of her husband in her 
 right in any real estate, which belonged to her before mar- 
 riage, or which she may have acquired by gift, grant, devise 
 or inheritance during coverture, shall, during coverture, be 
 exempt from attachment or levy of execution for the sole 
 debts of her husband * * * provided this act shall not 
 affect any attachment or levy of execution already made." 
 
 In the case mentioned, 32 Vt. 265, the husband had built 
 upon and improved the land of the wife, after which she 
 rented it to her son, in whose hands the rent was attached by 
 trustee process for the debt of the husband. But the court 
 
 '« Hitz V. Metropolitan Bank, 1 1 1 «» Comp. Stat. Vt., (1850), p-. 403, 
 U. S. 722. sec. 15. 
 
232 REAL PROPERTY. 
 
 said: "The legal title to the land with the supervening 
 improvements and buildings is still in the wife. It accrued 
 during coverture. The rent reserved in the lease to her son, 
 is the rent of the land she owns. The statute expressly ex- 
 empts such rent from the hands of his creditors. This provi- 
 sion of the statute seems to answer what otherwise must have 
 been a well founded suggestion, viz. : that though this money- 
 is payable to the wife of the defendant, still it is not the rent 
 of the freehold which the husband held by virtue of the cov- 
 erture and the birth of issue capable of inheriting, and is in 
 contemplation of law, entirely the husband's, without invok- 
 ing the wife as the meritorious cause. ' ' Here the court holds 
 distinctly that this statute, which does not profess to abolish 
 the tenancy by the curtesy, is still an answer to an attempt 
 to subject the rents and profits to his debts, because it de- 
 clares that the property shall be exempt from levy for his 
 debts. 
 
 In Oregon, the Constitution of the State declared that: 
 "The property and pecuniary rights of every married wo- 
 man, at the time of the marriage, or afterward acquired by 
 gift, devise or inheritance, shall not be subject to the debts 
 or contracts of the husband. ' ' In the case of Rugh v. Otten- 
 heimer, 6 Oreg. 231, it was held that this provision applied to 
 marriages, and existing property rights of the husband 
 acquired before the Constitution was adopted, and that such 
 property could not be subjected to the husband's debt, though 
 he had wrongfully taken the title in his'Own name." 
 
 § 114. Not favored by our courts. If curtesy was to be 
 favored it would seem natural and reasonable, perhaps, hav- 
 ing abolished the common law requirement of actual seizin, 
 to do away with constructive seizin also as a requisite to sup- 
 port the estate, but jurists agree that it is not to be favored. 
 Chancellor Kent says the extent of the law of curtesy may 
 be justly complained of. The obvious reason is that it gives 
 to the husband what would otherwise belong to the heir of 
 the wife. It has no moral foundation to rest upon, and 
 hence the spirit and tendency of the times is toward its aboli- 
 tion rather than its extension. The Legislature of Connecti- 
 
 " Hitz V.Nat. Metropolitan Bank, 11 1 U. S. 722. 
 
ESTATES BY CURTESY. 233 
 
 cut abolislied it in 1887 as to all subsequent marriages and 
 several other States have done the same thing. 
 
 § 115. How the right may be barred or lost. Where the 
 husband gives his written assent to the -wife's disposition of 
 her property, his rights are forfeited, and the principle of 
 estoppel would be applied, should he afterward attempt to 
 assert his claim." And quite generally it is held that a 
 divorce obtained by the wife for the marital offenses of the 
 husband works a forfeiture of his right to curtesy." But 
 other authorities hold that though the wife's dower be lost 
 by her adultery, no such misconduct on the part of the hus- 
 band will work a forfeiture of his curtesy ; nor will any for- 
 feiture of estate by the wife defeat the curtesy." This last is 
 believed to express more accurately the ruling of the old 
 common law, which has been quite generally repudiated in 
 this country."^ And some of the statutes go to the extent of 
 annulling the dower right wherever willful desertion has 
 been conclusively established." No uniform rule is applied 
 in all of the States, and local statutes must largely control the 
 entire topic. 
 
 Upon a decree dissolving a valid marriage, equally as upon 
 a sentence of nullity, all the husband's claim to the lands of 
 his wife ceases ; and she is entitled to recover immediate pos- 
 session of them." 
 
 4 Kent Com. loth ed., p. 34, note a, says: "Whether a 
 divorce a vinculo will destroy curtesy depends on circum- 
 stances, and there is some variety in the laws of the several 
 states. If the cause for divorce be for causes arising before 
 marriage, the right to curtesy, as well as to other rights 
 growing out of marriage is gone, but if for causes subsequent 
 to marriage, the rule is not absolutely stable and uniform. ' ' 
 
 2 Scribner on Dower, 2d ed., pp. 542-557, shows that while 
 in England the divorce for adultery was in form only a mensa 
 
 '*Silsbyv. Bullock, 10 Allen, 94. band and Wife, 36, 37; 3 Preston 
 
 ''Howey v. Goings, 13 111. 95; on Abst. of Title,384, 385 ; Park on 
 
 Wheeler v. Hotchkiss, 10 Conn. Dower, 172, 186 ; 4 Kent's Com. 34. 
 
 225. "Tgagug y Downs, 69 N. C. 280. 
 
 "Buckworth v. Thrikell, 3 Bos. '« Bealor v. Hahn, 117 Pa. St. 169 
 
 & Pull. 652, note ; Butler's note 170 "2 Bishop Mar. & Div. 5th ed., 
 
 to Co. Litt. 241, a; Roper on Hus- 1873, sec. 712, and cases. 
 
234 REAL PROPERTY. 
 
 et thoro, yet a divorce for that cause enabled the husband to 
 marry again; yet by sec. 13, p. 548, a divorce a mensa et thoro 
 for adultery by the wife did not bar dower. And it shows, 
 sec. 13, p. 547, that when divorces were granted by act of 
 Parliament, it was the custom to add a clause expressly bar- 
 ring the dower of the wife. 
 
 It was established in New York by the case of Wait v. Wait, 
 4 N. Y. 95, that where a divorce was granted for a cause 
 accruing subsequent to marriage, dower was not affected by 
 the divorce. 
 
 § 116. Mode of valuing an inchoate right of curtesy. All 
 
 attempts in this direction have proved unsatisfactory. Sta- 
 tistical tables seem to be of little use, and mortuary statistics 
 as to the lives of married women are grossly inaccurate and 
 misleading. All the data from which any satisfactory result 
 can be obtained are more or less unreliable. Suppose, how- 
 ever, that we succeed in establishing the life expectancy, 
 what possible data can furnish even speculative ground as to 
 the probability or improbability of the wife's alienation of 
 the estate. It is, indeed, singular that such a question should 
 ever have vexed the courts. If some judgment creditor pro- 
 poses to sell the husband's inchoate right, it is all but certain 
 that the effects of such a sale can be defeated by the convey- 
 ance of the wife." 
 
 § 117. Typical legislation on the subject. While it is im- 
 practicable to attempt any tabulation of the various statutory 
 regulations regarding the subject of curtesy, a reproduction 
 of the Massachusetts law may serve as fairly illustrative of 
 the legislation on the subject. Especially in view of the fact 
 that this legislation is fairly conservative in its character, 
 and does not typify a sweeping abrogation of common law 
 methods on the one hand, and a slavish adherence to medie- 
 val notions on the other. It rather seems to have adopted 
 the happy medium, as will appear from the perusal of the 
 accompanying text : ' ' When a man and his wife are seized in 
 her right, and when a married woman is seized to her sole 
 and separate use, of an estate of inheritance in lands, and 
 
 "Benedict v. Se5'-mour, 11 How. Pr. 176. 
 
ESTATES BY CURTESY. 235 
 
 they have had issue born alive which might have inherited 
 such estate, the husband shall on the death of the wife hold 
 the lands for his life as a tenant thereof by the curtesy. If 
 they have had no such issue, he shall hold one-half of such 
 lands for his life. If she dies and leaves no issue living, he 
 shall take her real estate in fee to an amount not exceeding 
 five thousand doUare in value," and shall also have an estate 
 by the curtesy or other life interest, as before provided, in 
 her own real estate. If she dies intestate and leaves no kin- 
 dred, he shall take the whole of her real estate in fee."" 
 
 The real and personal property of a woman shall, upon her 
 marriage, remain her separate property, and a married wo- 
 man may receive, receipt for, hold, manage, and dispose of 
 property, real and personal in the same manner as if she 
 were sole, except that she shall not, without the written con- 
 sent of her husband, destroy or impair his tenancy by the 
 curtesy in her real estate, or his tenancy for life in one-half 
 of her real estate, in case the husband and wife have had no 
 issue born alive which might have inherited such estate." 
 
 When a deed of land is made to a married woman, and she 
 at the same time mortgages such land to the grantor to 
 secure the payment of the whole or a part of the purchase 
 money, or to a third party to obtain the whole or a part of 
 such purchase money, the seizin of such married woman shall 
 not give her husband an estate by the curtesy as against such 
 mortgagee." 
 
 "Statutes of 1884, c. 301 ; 1885, c. amended by Stat. 1885, c. 255, and 
 
 255; and 1887, c. 290, amending Stat. 1887,0. 290. 
 
 Pub. Stats, c. 124, sec. i, and c. 147, " Stat. 1889, c. 204. 
 
 sec. 6. '■' Pub. Stats, c. 124, sec. 2. 
 
 "Pub. Stats, c, 124, sec. i, 
 
CHAPTER IX. 
 
 OF ESTATES LESS THAN FREEHOLD. 
 
 Title L Estates for years. 
 
 n. Estates at will or at sufferance — tenancies from year 
 TO year. 
 
 TITLE L ESTATES FOR YEARS AND HEREIN. 
 
 Art. I. Of their Definition, Nature, and Incidents. 
 
 Sec. ii8. Preliminary — the conventional relation of landlord and tenant. 
 Note on tenant and terre tenant. 
 
 119. What is an estate for years. 
 
 120. How created. 
 
 121. Tenant for years has no seizin. 
 
 122. May commence in future. 
 
 a. "Inter esse termini." 
 
 123. Regarded in law as a chattel real. 
 
 124. Legal incidents of the estate. 
 
 § 118. Preliminary — the conventional relation of landlord 
 and tenant. — There are three grades of estates that in con- 
 templation of law are inferior to freeholds : 
 
 1, Estates for years. 
 
 2, Estates at will, or tenancies from year to year, and 
 
 3, Estates at sufferance. 
 
 Estates falling under the first subdivision are of very ex- 
 tended observance, and, are the most important of all forms 
 of estates less than a freehold. The conventional relation of 
 landlord and tenant' is always implied when we speak of 
 
 '^ Note on " Tenant" '■'■Terre Ten- tion it maybe aflSrmed that every 
 
 ant." — Tenant: This term, so com- possessor of landed property is a 
 
 mon in the law of real property, tenant whether the property is ab- 
 
 simply designates one who holds solutely his own oris leased of an- 
 
 realty by virtue of any species of other. A mere lodger is not 
 
 title, whether for a term of years, within the term. (White v. May- 
 
 for life or any definite period, or in nard, 11 1 Mass. 252,) In popular 
 
 fee simple (Hosford v. Ballard, 39 apprehension the word " tenant '' 
 
 N. Y. 151), and in legal contempla- stands opposed to "landlord," and 
 
 [236] 
 
ESTATES FOR YEARS. 237 
 
 estates for years. And the extreme frequency of that rela- 
 tion will somewhat indicate its importance. Every estate of 
 this character must endure for a certain set period, otherwise 
 called a term, which is generally determined, though not 
 always, by the recitals of the instrument creating the estate. 
 The term above referred to may be for a month or three 
 months or any other fractional part of a year ; but notwith- 
 standing this the estate is still considered, in legal contem- 
 plation, an estate for years." 
 
 A terre tenant is one who is literally in the occupation or 
 possession of the land, as distinguished from the owner out 
 of possession. But in a more technical sense, the person 
 who is seized of the land though not in actual occupancy of 
 it.' According to some recent authorities the term has be- 
 come obselete.' 
 
 In Hulett V. Mutual L. Ins. Co., 114 Pa. St. 146, Clark J., 
 said: "A terre tenant, in a general sense, is one who is 
 seized or actually possessed of lands as the owner thereof. 
 In a scire facias sur mortgage or judgment, terre-tenant is, 
 in a mere restricted sense, one other than the debtor, who 
 becomes seized or possessed of the debtor's lands, subject to 
 the lien thereof. Those are only terre-tenants, therefore, in 
 a technical sense, whose title is subsequent to the incum- 
 brance.' 'Strictly speaking,' says Chief Justice Gibson, in 
 Mitchell -v. Hamilton, 8 Pa. St. 491, 'only the debtor's subse- 
 quent grantee of the fee simple is a terre-tenant.' So in 
 Dengler v. Kiehner, 13 Pa. St. 41 ; 53 Am. Dec. 441, says the 
 same learned judge : 'Who is a terre-tenant? Not everyone 
 who happens to be in possession of the land ; there can be no 
 terre-tenant who is not a purchaser of the estate, mediately 
 or immediately from the debtor, while it is bound by the 
 judgment. ' To the same effect is Fox v. Hemp field R. Co., 79 
 Pa. St. €£, note, and many other cases.'" 
 
 implies that tiie land, house or '4 Watts & S. 256; i Eden. 177; 
 
 other real property is not the ten- Blacic L. D., title "Terre-Tenant." 
 
 ant's own, but another person's, of * Rapalje & Lawrence L. Die, 
 
 whom he holds immediately, and title "Terre-Tenant." 
 
 this sense is recognized in jurispru- ' Cahhoon v. HoUenback, 16 S. 
 
 dence as when the law relating to & R. (Pa.) 425; 16 Am. Dec. 587. 
 
 " landlord and tenant " is spoken of. ' American and English Ency. of 
 
 'See ToUe v. Orth, 75 Ind. 298. Law, Vol. 25, page 952. 
 
238 REAL PROPERTY. 
 
 § 119. What is an estate for years. An estate for years is 
 a contract for the possession of lands or tenements, for some 
 determinate period ; and it takes place when a man letteth 
 them to another for the term of a certain number of years, 
 agreed upon between the lessor and the lessee, and the lessee 
 enters thereon. If the lease be but for half a year, or a quar- 
 ter, or any less time, this lessee is respected as a tenant for 
 years, and is styled so in some legal proceedings; a year 
 being the shortest term which the law in this case takes 
 notice of.' 
 
 Bouvier says it is an estate which is created by a lease for 
 years which is a contract for the possession and profits of 
 land for a determinate period, with the recompense of rent ; 
 and it is deemed an estate for years, though the number of 
 years should exceed the ordinary limits of human life ; and it 
 is deemed an estate for years though it be limited to less 
 than a single year. It is denominated a term, because its 
 duration is absolutely defined. An estate for life is higher 
 than an estate for years, though the latter should be for a 
 thousand years." 
 
 Burrill defines an estate for years as a species of estate less 
 than freehold, where a man has an interest in lands and 
 tenements, and a possession thereof, by virtue of such inter- 
 est, for some fixed and determinate period of time ; as in the 
 case where lands are let for the term of a certain number of 
 years, agreed upon between the lessor and lessee, and the 
 lessee enters thereon." Blackstone calls this estate a contract 
 for the possession of lands or tenements for some determi- 
 nate period." It is frequently called a term (terminus), be- 
 cause its duration or continuance is bounded, limited and 
 determined." 
 
 § 120. How created. This estate is never brought into 
 being by a mere operation of law, but invariably results 
 
 ' 2 Bl. Com. 140. 9 1 Steph. Com. 263, 264. 
 
 8 Co. Litt., 46, a; 2 Kent, Com. "'2 Bl. Com. 140. See 2 Crabb's 
 
 278; I Brown's Civ. Law, 191; 4 Real Prop. 224, sec. 1267; i Hil- 
 
 Kent, Com. 85; Cruise's Dig., tit. liard's Real Prop. 198; 4 Kent's 
 
 8; 4 Rawle's R. 126; 8 Serge & Com. 85. 
 
 Rawle, 459; 13 -Id. 60; 10 Vin. Ab. "2 Bl. Com. I43; Burrill's Law 
 
 295, 318 to 325. Diet., Vol. L 
 
ESTATES FOR YEARS. 239 
 
 from some contractual relation of the parties, which relation 
 may be implied from circumstances ; or expressly found to 
 exist by virtue of some written instrument. And in the vast 
 majority of instances, its method of creation is through the 
 instrumentality of what, in technical language, we term a 
 lease." 
 
 While it is true that estates for years are usually created 
 by a lease, such estates may result from a devise ;" in cases, 
 for instance, where executors are empowered to pay the tes- 
 tator's debts from the rentals of specific property during a 
 certain period. In such a case the executors might be 
 regarded as holding an estate for years. This view may be 
 tenable as a theory, but as matter of practice it seldom or 
 never occurs. The decedent's debts must be paid with rea- 
 sonable expedition ; and if the personal estate is insufficient 
 for that purpose, resort may be had to the realty." The 
 idea that the estate can be held by the executors for a series 
 of years, until the accumulated rents will discharge the 
 indebtedness, is not sanctioned by any law. Our courts sus- 
 tain but one attitude toward the property of a decedent, as 
 regards the claims of creditors. It must be subjected in its 
 entirety to the full payment of debts, and this without refer- 
 ence to the impoverishment of the family, or even the fulfill- 
 ment of contract obligations." 
 
 Mere occupation of premises without the privity or consent 
 of the owner, or without any recognition of the rights of the 
 landlord, does not create any tenancy." 
 
 § 121. Tenant for years has no seizin. The rights which 
 the tenant derives under his lease vest in him the mere right 
 
 " Little V. Livy, 2 Me. 242 ; Jack- humous grant, and no more. (5 
 
 son V. Harsen, 7 Conn. 323 ; Boone Whart. R. 278. See 4 Bing. N. C. 
 
 V. Stover, 66 Mo. 430; Berridge v. 678 ; 2 Bouv. Inst. n. 1774, et seq. 
 
 Glassey, 112 Pa. St. 442. "Livingston v. Livingston, 3 
 
 '^'^Note on devise. — In its most ex- Johns. Ch. 148. 
 
 tended signification, it is a convey- " Long v. Olmstead, 3 Dem. 581. 
 
 ance either in fee, for life, or for " Doe d. Rogers v. Pullen, 2 
 
 years. In its more technical mean- Bing. N. C. 749 ; Doe d. Bingham 
 
 ing, it is a lease or conveyance for v. Cartwright, 3 B & Aid. 326 ; 
 
 a terra of years. According to Benjamin v. Benjamin, 5 N. Y. 
 
 Chief Justice Gibson, the term (iSeld.)388; Hall v. Jacob, 7 Bush 
 
 "devise" strictly denotes a post- (Ky.) 595. 
 
240 REAL PROPERTY. 
 
 of entry on the land, and the further right of occupancy or 
 possession during the stipulated term. In contemplation of 
 law he is never regarded as being seized of the lands, and the 
 seizin of the freehold is always with the lessor. The tenant 
 may be possessed of the term stipulated for in the lease, but 
 never of the land itself." 
 
 § 122. Estate may commence in future. An estate for 
 years is frequently created to commence at some definite time 
 in the future, and until that period of time is reached the in- 
 terests of the future tenant, so far as regards the premises 
 he is entitled to occupy, is beyond the reach of judgment 
 creditors who cannot acquire a lien upon his rights in the 
 premises until after actual entry.'" 
 
 a. " Interesse termini " is an interest in a term, a right to the 
 possession of a term at a future time, as distinguished from a 
 term in possession or now actually held. '" It is an expression 
 used to denote the particular interest of a lessee for a term 
 of years, before actual entry on the land demised." The 
 bare lease does not vest any estate in the lessee, but only 
 gives him a right of entry, which is called his interest in the 
 term, or interesse termini. When he has actually entered, and 
 not before, the estate is completely vested in him." An 
 " interesse terminV is a right or interest only, and not an 
 estate." It is, however, so far in the nature of an estate, 
 that even before entry, the lessee may grant it over to an- 
 other." 
 
 The lessee of premises to commence at a future day has 
 only an interesse termini between the date of the lease and 
 the commencement of the term." An interesse termini is a 
 right to the possession of a term at a future time. It is a 
 mere interest in contradistinction to a term in possession, and 
 its essential qualities arise from the want of possession." A 
 
 " Vanduyn v. Hepner, 45 Ind. " i Steph. Com. 268 ; Burton's 
 
 589. Real Prop. 18, pi. 61 ; Shep. Touch. 
 
 " Wood V. Hovell, 10 N. Y. 488. 242 ; 2 Crabb's Real Prop. 227, sec. 
 
 "Co. Litt. 345. 1269. And see, as to the rule in 
 
 '» Id. 270, a. American law, i Hilliard's Real 
 
 "2 Bl. Com. 144,314; I Steph. Prop. 200; 2 Burrill's Law Diet. 
 
 Com. 268, 476. « Co. Litt. 270. 
 
 "4 Kent's Com. 97 and note. "4 Kent, 97. 
 
ESTATES FOR YEARS. 24 1 
 
 release to him before entry is void, and the estate does not 
 vest in him until entry." And a judgment against him cre- 
 ates no lien on the premises." 
 
 § 123. Regarded in law as a chattel real. Estates for years 
 come under the designation of a chattel real as they possess 
 many of the attributes of real estate. As such upon the 
 death of the tenant or lessee, his remaining interest vests in 
 the executor or administrator as an incorporeal heredita- 
 ment." 
 
 Chattels real, as defined by Lord Coke are sttch as concern 
 or savor of the realty, such as terms for years of land, estates 
 by a statute-merchant, statute stable or the like. In this coun- 
 try, its application relates only to the first mentioned term." 
 
 Estates for years are universally regarded as chattels real." 
 
 By statute in Georgia it is expressly provided that estates 
 for years shall pass to the heir as realty." 
 
 § 124. Legal Incidents of this Estate. Prominent among 
 the incidents which attach to an estate for years is the right 
 of the tenant to reasonable estovers," and a right to remove 
 fixtures annexed by him during the continuance of his term, 
 provided such removal is effected before the termination of 
 his lease." 
 
 And he may, at any time before the expiration of his term, 
 remove buildings or improvements placed by him upon the 
 demised premises but if he omit to remove them until his 
 right of enjoyment ceases, such will be deemed an abandon- 
 ment, and they become a part of the real estate." 
 
 The lease usually provides for the payment of rent at cer- 
 tain set intervals. Indeed, the Supreme Court of the United 
 States has said that the legal understanding of an estate for 
 
 "Crane v. O'Connor, 4 Edw. Ch. =' See Georgia Code, sees. 22, 73. 
 
 409- *- Middlebrook v. Corwin, 15 
 
 " Id.; Wood V. Hubbell, 10 N. Y. Wend. 170. 
 
 479- Opinion by Willard, J. »'Torrey v. Burnett, 38 N. J. 
 
 " Chapman v. Gray, 15 Mass. 439. 457. 
 
 " Rapalje & L. Law Die. ^ Dostal v. McCaddon, 35 Iowa, 
 
 '"Brewster v. Hill, i N. H. 350; 318; Heffner v. Lewis, 73 Pa. St. 
 
 Sykes v. Sykes, 49 Miss. 190, 302; Cromie v. Hoover, 40 Ind. 49. 
 Crowe V. Wilson, 6; Md. 490. 
 16 
 
242 REAL PROPERTY. 
 
 years is that it is a contract for ttie possession and profits of 
 land for a determinate period with the recompense of rent.'' 
 But the relation of landlord and tenant is not dependent en- 
 tirely upon the agreement to pay rent." These incidents of 
 the lease, however, will be accorded extended treatment in 
 a subsequent article. 
 
 In a general sense it may be stated that estates for years 
 closely resemble estates for life in their legal incidents. The 
 tenant in each case may be restrained from committing 
 waste, and an application for injunctive relief will always be 
 sustained whenever waste is being committed. Again, we 
 find in both the right to sublet and the right to reasonable 
 estovers." And like any other estate, less than a fee simple, 
 it is liable to be drowned, or merged whenever it passes into 
 the possession of a person holding a superior estate — that is 
 to say wherever a lesser estate is united with a greater in one 
 and the same person the doctrine of merger applies." This 
 subject has already been referred to in the previous chapter 
 on dower. In early times entry was effected by the actual 
 physical presence of the tenant upon the land. But this 
 with other senseless common law incidents has passed away, 
 and the due execution and delivery of the contract or lease 
 invests the tenant with due title. 
 
 A tenant for years is not entitled to emblements, unless 
 his lease depends upon some uncertain event ; in which case 
 he is not presumed to know whether a crop planted will come 
 to maturity before the expiration of his term. He must not 
 sow where he cannot reap." 
 
 His term for years is subject to levy and sale on execution" 
 
 Other legal incidents of this estate will make their appear- 
 ance as we proceed with our analysis: In a certain sense 
 
 ''United States v. Gratiot, 14 '* James v. Morey, 2 Cow. 246; 
 
 Pet. 526; Brown v. Bragg, 22 Ind. Liebschutz v. Moore, 70 Ind. 142; 
 
 122. Clift V. White, 15 Barb. 70. 
 
 '^McKissacli v. Bullington, 37 "'Whitmarsh v. Cutting, 10 
 
 Miss. 535. Johns. 360. 
 
 "McNeil V. Kendall, 128 Mass. « Barr v. Doe, 6 Blackf. 335; 
 
 245 ; Collins v. Hasbrouck, 56 N. Y. Williams v. Downing, 18 Penn. St. 
 
 157; Robinson v. Perry, 21 Ga. 60; Chapman v. Gray, 15 Mass. 
 
 182. 439; Adams v. French, 2 N. H. 387. 
 
ESTATES FOR YEARS. 243 
 
 many chapters may be said to be devoted to the proper elabo- 
 ration of the incidents that attach to estates for years. And 
 in this connection it may be well to say, that in the sym- 
 metrical development of a subject all unnecessary repetitions 
 should be avoided. There is a mass of cordial assent to this 
 last proposition; we may say that it is an unwieldy mass, 
 but we can never avoid repetition, if, in any sub-section of a 
 topic, we follow out the ramifications of contributory princi- 
 ples that in any way assist to give scope and incident to the 
 subject. As an illustration take the subject of waste. It has 
 affiliations with many topics, it could be made formidable in 
 any discussion of life tenancy — dower, curtesy or estates for 
 years, at will, etc. All the forms of joint tenancy may be 
 aflfected by it, and equitable estates are peculiarly suscepti- 
 ble to impairment by waste. But if we are to pause when- 
 ever we reach these respective topics, and elaborate the doc- 
 trine of waste as among the incidents of each, bench, bar, 
 and commentator will all refuse to even notice the undertak- 
 ing. Obviously the true method is to state the nature, scope, 
 and incidents of waste in a separate chapter. Amplify the 
 various topics that are tributary to the title, and leave the 
 variant phases of application to the judgment and discrimi- 
 nation of the practitioner who must adjust and apply them to 
 each particular case. So, in developing the incidents of 
 estates for years, we shall rely upon the context, each sub- 
 division as contributing its proportionate share to the total 
 information we have to offer. 
 
 TITLE I. ESTATES FOR YEARS — {Continued.) 
 Art. II. Of Leases and the Conventional Relation of Landlord and Tenant. 
 
 Sec. 125. Definition, form and nature of a lease. 
 
 a. Definition. 
 
 b. Operative words. 
 
 c. Form of lease. 
 
 d. Parol lease. 
 
 e. Requisites. 
 
 126. Distinction between a present lease and an agreement to lease. 
 
 127. What may be the subject of a lease. 
 
 a. Smith v. Marriable examined. 
 
 b. Lease of separate floors. 
 
 c. Demise of lodgings. 
 
244 REAL PROPERTY. 
 
 Sec. 128. Delivery and acceptance of a lease. 
 
 129. Parties to a lease — their mutual obligation. 
 
 a. Rights and duties of landlord. 
 
 b. Rights and duties of tenant. 
 
 c. Cannot dispute the title of his landlord. 
 
 130. Beginning of a lease — length of term. 
 
 131. Covenants and conditions. 
 
 132. Improvements and repairs. 
 
 133. Assignment and subletting. 
 
 a. Distinction between assignment and subletting. 
 
 134. Termination of leases — how effected. 
 
 a. Destruction of premises by fire. 
 
 b. By efflux of time. 
 
 c. By condemnation of the property under eminent domain. 
 
 d. Surrender, merger and forfeiture. 
 
 135. Effect of holding over. 
 
 136. Landlord's remedies on termination of lease. 
 
 137. Notice to quit. 
 
 138. Perpetual leases. 
 
 139. Statute of frauds as affecting leases. 
 
 140. Principles of eviction examined. 
 
 a. The term defined. 
 
 b. Classified — active or constructive, total or partial. 
 
 c. What constitutes an eviction — special acts of. 
 
 d. Summary of the New York adjudications. 
 
 e. Partial evictions under title paramount and eminent 
 
 domain. 
 
 f. Effect of. 
 
 g. Remedies on covenant, 
 h. Measure of damages. 
 
 141. Letting ''on shares." 
 
 142. Judicial construction of leases. 
 
 § 125. Definition, form and nature of a lease, a. Definition. 
 An instrument which transfers the use and occupation of 
 land at a fixed compensation to be paid at stated intervals, 
 annual or otherwise is a lease." It does not require a seal. 
 
 Any instrument conveying an estate in land, subordinate 
 to that of the grantor, to a grantee, upon a valid considera- 
 tion, and for a definite terni, is a lease and not a license." 
 
 Mr. Taylor, whose right to speak authoritatively is at once 
 
 ■■■ Gilmore v. Ontario Iron Co., 86 Simons, i Root, 318, i Am. Dec. 
 
 N. Y. 455. 48; Knight v. Indiana Coal and 
 
 «N. Y., C. & St. L. R. Co. V. Iron Co., 47 Ind. 105, 17 Am. Rep. 
 
 Randall, 102 Ind. 453 ; Smith v. 692 ; Moore v. Miller, 8 Pa. 272. 
 
ESTATES FOR YEARS. 245 
 
 recognized, says: "The relation of landlord and tenant sub- 
 sists by virtue of a contract, express or implied, between two 
 or more persons for the possession of lands or tenements, in 
 consideration of a certain rent to be paid therefor. The con- 
 tract itself is called a lease or devise, and is a species of con- 
 veyance for life, for years, or at the will of one of the par- 
 ties, usually containing a reservation of rent to the lessor. 
 A stated rent, however, is not essential to the contract ; be- 
 cause from favor, or for a consideration passing to the lessor 
 at the time, of its inception, a lease, beneficial in its nature to 
 the lessee, may be made without a reservation of rent." 
 Independent of the idea of a contract, a lease also possesses 
 the property of passing an interest, and thence partakes of 
 the nature of an estate, which, when limited to a certain 
 period for the enjoyment of land, becomes a term for years ; 
 but, if it depends upon the duration of a life or lives, rises to 
 the dignity of a freehold. (The particular regard which the 
 law continues to show to the tenant of a freehold, and the 
 preference given to him above a tenant for years, depends 
 upon feudal principles which have no application to the con- 
 dition of society under a republican government. In feudal 
 times this estate was. perhaps, more valuable and permanent 
 than an estate for years, as long terms were then unknown. 
 It may have been more honorable, as a proof of military 
 tenure, which embraced privileges only allowed to tenants of 
 the King who took the oath of fealty — an oath which was 
 never permitted to be taken by any one whose estate was 
 less than for life. But will any one, in qur commercial age, 
 assert, that an estate for the life of any mere man is of as 
 much value, intrinsically, or entitled to equal consideration 
 with a term for five hundred or a thousand years ?)"" 
 
 A lease is a conveyance of any lands or tenements (usually 
 in consideration of rent or other annual recompense), made 
 for life, for years or at will, but always for a less time than 
 the lessor has in the premises ; for if it be for the whole 
 interest, it is more properly an assignment than a lease." A 
 contract in writing, under seal, whereby a person, having a 
 
 ** Hunt v. Comstock, 1 5 Wend. R. " 2 Bl. Com. 3i7;Shep. Touch, 
 
 667. 266; Watkins on Conv. 220. 
 
 "Taylor's Land. & Ten. 402. 
 
246 REAL PROPERTY. 
 
 legal estate in hereditaments, corporeal or incorporeal, con- 
 veys a portion of his interest to another, in consideration of 
 a certain annual rent or render, or other recompense. " This 
 last definition is framed in accordance with recent English 
 statutes." 
 
 b. Operative words. The usual words of operation in a 
 lease, according to Blackstone, are "demise, grant, and to 
 farm let, ' ' which are translations of the Latin dimisi, concessi 
 et ad firmamtradidi, used in the ancient leases." Other writers 
 state the operative words to be "demise, lease and to farm 
 let."" But any other words which express an intention to 
 part with the possession, will amount to a lease. " In Penn- 
 sylvania, the Ayord ' ' lease, ' ' even in a parol lease, implies a 
 covenant for quiet enjoyment." As to the difference be- 
 tween a lease and a contract to work for a share of the crop, 
 see 3 Jones Law R. 63." 
 
 The words "demise, grant, and to farm let," are technical 
 words well understood, and are the most proper that can be 
 used in making a lease ; but whatever words are sufficient to 
 explain the intent of the parties, that the one shall divest 
 himself of the possession and the other come into it, for such 
 a determinate time, whether they run in the form of a license, 
 covenant, or agreement, are of themselves sufficient, and 
 will, in construction of law, amount to a lease for years as 
 effectually as if the most proper and pertinent words had 
 been made use of for that purpose." 
 
 A lease in writing by deed indented consists of the follow- 
 ing parts, namely: i, The premises; 2, The habendum; 
 3, The tenendum; 4, The reddendum; 5, The covenants; 
 6, The conditions ; 7, The warranty." 
 
 c. Form of lease. ' ' No precise form of words is necessary 
 to make a lease. Any written instrument expressing the 
 
 " Archb. Land. & Ten. 2. »^ 4 Burr. 2209 ; i Mod. 14:11 Id. 
 
 ■"See I Hilliard's Real Prop. 212. 42; 2 Id. 89; 3 Burr. 1446; Bac. 
 
 "'2 Bl. Com. 317, 318. Abr. Leases; 6 Watts, 362; 3 Mc- 
 
 "Watk. on Con v. 207; Archb. Cord, 211; 3 Fairf. 478; 5 Rand. 
 
 Land. & Ten. 19. 571; i Root, 318; i Bouvier's Law 
 
 '» I Steph. Com. 477. Diet. 
 
 " 20 Pa. St. R. 482. " Id. 
 »' 2 Burrill's Law Diet. 
 
ESTATES FOR YEARS. 247 
 
 agreement of the parties, signed by one and accepted and 
 acted upon by the other, will be obligatory upon both."" 
 In the case from which we quote the foregoing, the written 
 instrument which the court there held to be a written lease 
 was in form a receipt, but also contained independent stipu- 
 lations sufficient, in the opinion of the court, to make it also 
 a contract. A lease may not only confer upon the lessee the 
 right to the occupancy of the leased premises, either gene- 
 rally for the time limited, or for some specific purpose, or in 
 some specific manner, or the right to occupy and cultivate 
 and to remove the products of cultivation ; but it may confer 
 upon him the power to occupy and remove a portion of that 
 which constitutes the land itself. Familiar and common ex- 
 amples of such leases are those authorizing the lessee to 
 quarry and remove stone, to open mines and remove ores, 
 minerals, mineral coal, etc., or to sink wells for procuring 
 and removing petroleum and natural gas. The power to 
 execute leases for such purposes, and the fact that the instru- 
 ment by which such interest in land is granted may be in all 
 essential particulars a lease, will not be questioned. " Mani- 
 festly, there can be no valid reason why a lease may not con- 
 fer upon the lessee the right to remove a portion of the soil, 
 or of sand and gravel found upon the surface of the land 
 leased, as well as to remove stone or iron ore or mineral coal, 
 found either upon the surface or beneath it. 
 
 In estimating the force and' effect of the language which con- 
 stitutes a lease, the form of words used is of no consequence. 
 It is not even necessary that the term lease should anywhere 
 appear in the instrument. Whatever is equivalent will be 
 equally available if the words assume the form of a license, 
 covenant, or agreement, and the other requisites of a lease 
 are present." 
 
 As to the form, leases may be in writing or not in writing. 
 Leases in writing are either by deed or without deed ; a deed 
 is a writing sealed and delivered by the parties, so that a 
 lease under seal is a lease by deed. The respective parties, 
 the lessor and lessee, whose deed the lease is, should seal, 
 
 "Alcorn v. Morgan, -jj Ind. Iron Co. 47 Ind. 105,17 Am. Rep. 
 184. 692. 
 
 " Knight V. Indiana Coal and " Moore v. Miller, 8 Pa. St. 272. 
 
248 REAL PROPERTY. 
 
 and now in every case, sign it also. The lease must be de- 
 livered either by the parties themselves or their attorneys, 
 which delivery is expressed in the attestation "sealed and 
 delivered in the presence of us. ' ' Almost any manifestation, 
 however, of a party's intention to deliver, if accompanied by 
 an act importing such intention, will constitute a delivery." 
 
 d. Parol lease. A parol lease, which does not contravene 
 the statute of frauds, is valid and enforceable even in cases 
 where the term is for one year, but not to commence until 
 some fixed date in the future. "' The provisions of the Stat- 
 ute of Frauds have been substantially re-enacted in all the 
 States of the American Union, but variant phraseology is 
 employed from that found in the English statute, and the 
 provisions are by no means exactly similar in any two States. 
 All interests relating to land are universally conceded to be 
 within the terms of the statute, and care must be taken in 
 the creation of a parol lease to comply with the restrictions 
 imposed by the laws of the particular jurisdiction. 
 
 A lessee by parol for a longer term than three years is a 
 tenant from year to year in every respect except as to the 
 term.'" 
 
 A tenant in possession under a parol agreement void by 
 the Statute of Frauds," and who has occupied for a year pay- 
 ing the rent monthly, is a tenant from year to year, and is 
 entitled to a month's notice to quit." 
 
 e. Requisites. To make such a contract, there must be a les- 
 sor able to grant the land ; a lessee, capable of accepting the 
 grant, and a subject-matter capable of being granted. This 
 contract resembles several others, namely: a sale, to consti- 
 tute which there must be a thing sold, a price for which it is 
 sold, and the consent of the parties as to both. So, in a lease 
 there must be a thing leased, the price or rent, and the con- 
 sent of the parties as to both. Again, a lease resembles the 
 contract of hiring of a thing, locatio conductio ret, where there 
 must be a thing to be hired, a price or compensation, called 
 
 "i Ves. Jr. 206. "See sec. impost., and for ex- 
 
 " Young V. Dake, 5 N. Y. 463. tended discussion see chap. 
 
 " People V. Rickert, 8 Cow. 226. «' See Condert v. Cohn, 1 18 N. Y. 
 
 309- 
 
ESTATES FOR YEARS. 249 
 
 the hire, and the agreement and consent of the parties 
 respecting both." 
 
 § 126. Distinction between a present lease and an agree- 
 ment to lease. Leases are frequently drawn by those who 
 are not familiar with the technical accuracy and precision 
 that should characterize instruments of this nature. As a 
 consequence the courts are frequently called upon to decide 
 as to whether the document in question operates as a present 
 lease or whether it is merely an agreement to make and exe- 
 cute a lease at some future time. In construing such an 
 agreement, the courts are largely governed by the intent of 
 the parties as exhibited in the recitals of the document be- 
 fore it." The form of the expression " we agree to rent or 
 lease" is far from being decisive upon this question, and does 
 not necessarily import that a lease is intended to be given at 
 a future day. On the contrary those words may take effect 
 as a present devise, and the words "agree to let" have been 
 held to mean exactly the same thing as the word "let," un- 
 less there be something in the instrument to show that a 
 present demise could not have been in contemplation of the 
 parties."' The test seems to be that if the agreement leaves 
 nothing incomplete it may operate as a present demise." 
 
 When an agreement for a lease contains words of present 
 demise, and there are circumstances from which it may be 
 collected that it was meant that the tenant should have an 
 immediate legal interest in the term, such an agreement will 
 amount to an actual lease; but although words of present 
 demise are used, if it appears on the whole, that no legal in- 
 terest was intended to pass, and that the agreement was only 
 preparatory to a future lease, to be made, the construction 
 will be governed by the intention of the parties, and the con- 
 tract will be held to amount to no more than an agreement 
 for a lease." 
 
 '" Poth., Bail a rente, n. 2 ; Bou- ter v. Mercer, 53 Cal. 667; Bacon 
 
 vier s Law Diet. v. Bowdoin, 22 Pick. 401. 
 
 " Stanley v. Brunswick Hotel Co., °' Doe v. Benjamin, 9 Ad. & El. 644, 
 
 13 Me. 51 ; Jackson v. Kisselbrack, " Doe v. Ries, 8 Bing. 178. 
 
 10 Johns. 336 ; Kabley v. Worcester " 2 T. R. 739 ; see Co. Litt. 45 b ; 
 
 Gas Light Co., 102 Mass. 292 ; Pot- Bac. Abr. Leases, K ; 15 Vin. Abr, 
 
250 REAL PROPERTY. 
 
 Another test is, has the party entered into peaceable pos- 
 session with the assent of the landlord. If so, the presump- 
 tion will be indulged that the parties intended to create a 
 present lease, and were not contemplating a mere agreement 
 to make a lease sometime hereafter." The question is dis- 
 cussed with some elaboration by the Massachusetts Supreme 
 Court of Judicature, in the case of McGrath v. City of Boston, 
 103 Mass. 369. We may add that whatever presumptions are 
 allowable in such cases are favorable to the present exist- 
 ence of the lease. 
 
 § 127. What may be the subject of a lease. As to what 
 
 property may be demised, it is a general rule, that anything 
 corporeal or incorporeal, lying in livery or in grant, may be 
 the subject of a demise. And, therefore, not only lands, but 
 commons, ways, fisheries, franchises, estovers, annuities, 
 rent charges, and all other incorporeal hereditaments, are 
 included in the common law rule." Goods, and other per- 
 sonal chattels, may also be demised ; but although rent can- 
 not be said, technically, to issue out of them, the contract for 
 its payment is valid, and an action for rent in arrear may be 
 maintained upon such leases." 
 
 A transfer of all the coal in, on, or under a given described 
 surface, even though taking the form of a lease, and termin- 
 able in a fixed number of years, is a sale of the coal, and a 
 grant of it in fee as a severed parcel of the land. The doc- 
 trine is, perhaps, most fully developed in Sanderson v. Scran- 
 ton, 105 Pa. 472. It was there said that a mineral lease was 
 often in fact a sale ; that it differs from an ordinary lease, in 
 that the latter gives only the temporary use and for a fixed 
 period which is the term, and so implies and leaves in the 
 lessor a reversion, while the former conveys the entire inter- 
 est in the coal and leaves no reversion ; that in such a case 
 there is a severance of the surface from the underlying 
 strata, which creates a divided ownership in the land, the 
 
 94, pi. 2 ; I Leon. 129; i Burr. 2209; 18; 16 Esp. R. 106 ; 3 Taunt. 6$; 5 
 
 Cro. Eliz. 156; Id. 173; 12 East. B. & A. 322; I Bouvier's Law Diet. 
 168; 2 Campb. 286; 10 Johns. R. «« Hallett v. Wylie, 3 Johns. 44. 
 
 336; 15 East. 244; 3 Johns. R. 44, «' Shep. Touch. 268; Bac. Abr. 
 
 383; 4 Id. 74, 424; S T. R. 163; 12 Leases (A). 
 East. 274; Id. 170; 6 Id. 530 ; 13 Id. '"Taylor's Land. & Ten. 10. 
 
ESTATES FOR YEARS. ' 2$ I 
 
 coal belonging in fee to one and the surface to another. The 
 court said frankly that the case was not free from doubt, be- 
 cause the agreement was in form a lease for a fixed period, 
 with a rent reserved and a power of distress. Whatever we 
 may think of the general doctrine, one thing about it is quite 
 obvious — it applies to a case and only to a case, in which, 
 by the terms of the agreement, and in contemplation of the 
 parties, the whole body of the coal, considered as of cubical 
 dimensions, and capable of descriptive separation from the 
 earth above and around it," and as it lies in its place, is abso- 
 lutely and presently conveyed. The thing sold must be 
 such that it can be identified as land, and severed as land 
 from the estate of which it forms a part. Every case uphold- 
 ing the doctrine which I have been able to examine has that 
 marked characteristic." That feature seems to me to be not 
 merely accidental or incidental, but a vital and essential ele- 
 ment of the doctrine as it is asserted and applied. 
 
 The leasing of a furnished house at a fashionable resort 
 has been said to impose a different rule from that which usu- 
 ally obtains under the conventional relation of landlord and 
 tenant. An English case of some celebrity establishes the 
 doctrine, that the tenant may repudiate the lease on its 
 appearing that the house and furniture was so infested with 
 vermin as to warrant an abandonment. The distinction 
 seems to be well taken, as in such cases there is an implied 
 agreement that the premises are fit for occupancy." This 
 case has been frequently assailed by our courts, and it cer- 
 tainly is a hardship, to require a landlord to expel every 
 bedbug before making a lease, or to allow every tenant to 
 avoid his obligations by simply asserting that the premises 
 are unfit for occupancy. Evidence to that effect is naturally 
 
 " Massot V. Moses, 3 S. C. (N. S.) Del., L. & W. R. Co. v. Sanderson, 
 
 168, i6 Am. Rep. 697; 8 Morrison, 109 Pa. 588; Fairchild v. Fairchild 
 
 Min. Rep. 607. (Pa. Sup.), 9 Atl. Rep. 255; Mon- 
 
 " Caldwell V. Fulton, 31 Pa. 475, tooth v. Gamdle, 123 Pa. 240; 
 
 72 Am. Dec. 760 ; Caldwell v. Cope- Kingsley v. Hillside Coal and Iron 
 
 land, 37 Pa. 427, 78 Am. Dec. 436; Co., 144 Pa. 613; Lazarus' Estate, 
 
 Armstrong v. Caldwell, 53 Pa. 284; 145 Pa. i. 
 
 Scranton v. Phillips, 94 Pa. 15; " See Smith v. Marriable, 1 1 M. & 
 
 Sanderson v. Scranton, 105 Pa 469; W. 5. 
 
252 REAL PROPERTY. 
 
 confined to a small circle of persons interested, and it would 
 seem the better rule to require the tenant to take the lease as 
 he would take his wife, "cum onere." The doctrine of the 
 English case has been severely criticized in a recent case de- 
 cided by the New York Court of Appeals." 
 
 a. Smith v. Marriable examined. In S^nith v. Marriable, 1 1 
 Mees. &W. 5, a contrary rule was laid down by Baron Parke. 
 The case arose out of a contract to let a furnished dwelling 
 for six weeks at eight guineas per week. The tenant moved 
 in, but found the house so infested with bugs that it was 
 uninhabitable, and at the end of the first week left, paying 
 the rent for that week. In an action brought it was held, in 
 the opinion delivered by Baron Parke, concurred in by Bar- 
 ons Alderson and Gurney, "that if the demised premises are 
 encumbered with a nuisance of so serious a nature that no 
 person can reasonably be expected to live in them, the ten- 
 ant is at liberty to throw them up. This is not the case of a 
 contract on the part of the landlord that the premises were 
 free from this nuisance. It rather rests in an implied condi- 
 tion of law, that he undertakes to let them in a habitable 
 state." Chief Baron Abinger concurred upon the ground 
 that "a man who lets a ready furnished house surely does so 
 under the implied condition or obligation — call it what you 
 will — that the house is in a fit state to be inhabited. ' ' The 
 opinion of Baron Parke was rested on the authority of 
 Edwards v. Etherington, Ryan & M. 268; 7 Dowl. & R. 117, 
 and Collin v. Barrow, i Mood. & R. 112, both of which cases, 
 together with Salisbury v. Marshall, 4 Car. & P. 65, are ex- 
 pressly overruled by Hart v. Wijidsor, 12 Mees. & W. 68, in 
 which Parke, B. said : ' ' We are under no necessity of decid- 
 ing in the present case whether that of Smith v. Marriable, 
 be law or not. It is distinguishable from the present case 
 on the ground on which it was put by Lord Abinger, both 
 on the argument of the case itself, but more fully in that of 
 Sutton V. Temple, 12 Mees. & W. 52, for it was the case of a 
 demise of a ready furnished house for a tempSrary residence 
 at a watering place. It was not a lease of real estate merely. 
 But that case certainly cannot be supported on the ground on 
 
 "Franklin v. Brown, u8 N. Y. no. 
 
ESTATES FOR YEARS. 253 
 
 which I rested my judgment." Smith v. Marriable, as de- 
 cided at Hilary Term, 1843, and Hart v. Windsor, and Sutton 
 V. Temple, at Michaelmas Term of the same year. The rule 
 laid down in Smith v. Marriable, by Abinger, C. B., as appli- 
 cable to furnished houses, has been followed in Campbell v. 
 Wenlock, 4 Fost. & F. 716, and Wilson v. Hatton, 2 Exch. Div. 
 336; but the rule as stated by Parke, B. has not been fol- 
 lowed in England or this country. 
 
 It is well settled both in this country and in England, that 
 one who lets an unfurnished building to be occupied as a 
 dwelling house does not impliedly agree that it is fit for 
 habitation." 
 
 In the absence of fraud or a covenant, the purchaser of 
 real estate, or the hirer of it, for a term, however short, takes 
 it as it is, and determines for himself whether it will serve 
 the purpose for which he wants it. He may, and often does, 
 contemplate making extensive repairs upon it to adapt it to 
 his wants. But there are good reasons why a different rule 
 should apply to one who hires a furnished room, or a fur- 
 nished house, for a few days, or a few weeks or months. Its 
 fitness for immediate use of a particular kind, as indicated by 
 its appointments, is a far more important element entering 
 into the contract than where there is a mere lease of real 
 estate. One who lets for a short time a house provided with 
 all furnishings and appointments for immediate residence 
 may be supposed to contract in reference to a well under- 
 stood purpose of the hirer to use it as a habitation. An im- 
 portant part of what the hirer pays for is the opportunity to 
 enjoy it without delay, and without the expense of preparing 
 it for use. It is very difficult, and often impossible, for one 
 to determine on inspection whether the house and its 
 appointments are fit for the use for which they are immedi- 
 ately wanted, and the doctrine caveat emptor which is ordi- 
 narily applicable to a lessee of real estate, would often work 
 injustice if applied to cases of this kind. It would be unrea- 
 sonable to hold, under such circumstances, that the landlord 
 does not impliedly agree that what he is letting is a house 
 
 " Dutton V. Gerrish, 9 Cush. 89, ens v. Pierce, i 51 Mass. 207 ; Sutton 
 55 Am. Dec. 45; Foster v. Peyser, v. Temple, 12 Mees. & W. 52 ; Hart 
 9 Cush. 242, 47 Am. Dec. 43 ; Stev- v. Windsor, Id. 68. 
 
254 REAL PROPERTY. 
 
 suitable for occupation in its condition at the time. This 
 distinction between furnished and unfurnished houses in 
 reference to the construction of contracts for letting them, 
 when there are no express agreements about their condition, 
 has long been recognized in England, where it is held that 
 there is an implied contract that a furnished house let for a 
 short time is in proper condition for immediate occupation 
 as a dwelling." In Button v. Gerrish, g Cush. 89; 55 Am. 
 Dec. 45, Chief Justice Shaw recognizes the doctrine as appli- 
 cable to furnished houses; and in Edwards v. McLean, 122 
 N. Y. 302 ; Smith v. Marriable, and Wilson v. Hatton, cited 
 above, are referred to with approval, although held inap- 
 plicable to the question then before the court. " 
 
 A careful examination of Smith v. Marriable, 1 1 Mees. & W. 
 5; Sutton V. Temple, 12 Mees. & W. 52, and Hart v. Windsor, 
 Id. 68, will convince one that the same judges who decided 
 in favor of an implied condition were, upon re-examination 
 immediately after very doubtful of the wisdom of that deci- 
 sion. They repudiated the authorities on which originally 
 it was decided. 
 
 In Foster v. Peyser, 8 Cush. 242 ; 57 Am. Dec. 43, the defend- 
 ant asked for an instruction to the jury: "There was an im- 
 plied warranty in the letting of a house for a private resi- 
 dence, that it is reasonably fit for occupation. ' ' And Metcalf , 
 J. , in the opinion says : ' ' That court refused to instruct the 
 jury that there is any such implied covenant in such a case. 
 And it is well settled by authority that there is not. ' ' 
 
 The same principle was applied to the lease of a dwelling 
 house, in Stevens v. Pierce, 151 Mass. 207, which is the latest 
 decision in point. 
 
 In England the doctrine is now well established, that there 
 is such an implied agreement or warranty. " 
 
 " Smith V. Marriable, 11 Mees. & "See Cleaves v. Willoughby, 7 
 
 W. 5 ; Wilson v. Hatton, L. R. 2 Hill, 83. 
 
 Exch. Div. 336 ; Manchester Bonded " Smith v. Marriable, 11 Mees. & 
 
 Warehouse Co. v. Carr, L. R. 5 C. W. 5 ; Williams v. Hatton, L. R. 2 
 
 P. Div. 507; Sutton V. Temple, and Exch. Div. 336; Manchester Bonded 
 
 Hart V. Windsor, supra ; Bird v. Warehouse Co. v. Carr, L. R. 5 C. 
 
 Greville, i Cababe & E. 317 ; Chars- P. Div. 507 ; Bird v. Greville, i Ca- 
 
 ley V. Jones, 53 J. P., Q. B. Div. babe & E. 317 • MacLean v. Currie, 
 
 280. Id. 361 ; Chester v. Powell, 52 L. T. 
 
ESTATES FOR YEARS. 255 
 
 b. Lease of separate floors. A lease of the first floor of a 
 building includes the outside of the front wall of that part of 
 the building, if there is nothing in the lease to control such 
 construction." It is clearly settled that the occupant of a 
 building, and not its owner, is liable for injuries arising 
 from a lack of due care in keeping it in a reasonably safe 
 condition. So, too, the lessee of the building is the legal 
 occupant of the outside walls to the exclusion of the land- 
 lord." The words "first floor" as applied to leases are syn- 
 onymous with the words "first story," and are held to in- 
 clude the walls. So where different rooms in the same 
 building are leased to separate tenants, the situation of the 
 property and the nature of the tenures exclude the idea that 
 each tenant takes an estate in the land. Such estates exist- 
 ing at the same time in different tenants are both inconsist- 
 ent and impossible." Where a tenement is leased to various 
 parties "piecemeal" fashion, it is entirely competent to pro- 
 vide for the erection of signs on the outside of the walls of the 
 various stories opening on a street or alley, and on general 
 principles the entire subject of signs should be more particu- 
 larly considered in all leases of this description.'^ In the 
 Skinner case, supra, it was said that permitting a sign to be 
 kept upon the wall for a long time would imply a license of 
 the outer surface. 
 
 c. Demise of lodgings. One or more rooms in a tenement are 
 frequently leased apart from the others, either with or with- 
 out furniture. As the contract therefor conveys an interest 
 in lands, the Statute of Fraud applies to it as to other leases 
 and requires it to be in writing in like cases" or limits the time 
 for which a verbal agreement will be valid." 
 
 A mere contract with the keeper of a hotel or boarding 
 
 722 ; Charsley v. Jones, 53 J. P., Q. '^ See Pevey v. Skinner, 116 Mass. 
 
 B. Div. 280; see also Button v. 129; Baldwin v. Morgan, 43 Hun, 
 
 Gerrish, 9 Cush. 89, 55 Ara. Dec. 355 ; Riddle v. Littlefield, 53 N. H. 
 
 54; Edwards v. McLean, 122 N. Y. 503. 
 
 302. '^ Inman v. Stamp, i Stark. 12; 
 
 " Lowell V. Strahan, 145 Mass. i. Mechelen v. Wallace, 2 N. & P. 224, 
 
 ^ Leonard v. Storrer, 1 1 5 Mass. 7 A. & E. 49. 
 
 86. *> Edge & Strafford, i Tyr. 293 ; i 
 
 '' Morton, J., in Shawmut Bank C. & J. 391. 
 V. Boston, 118 Mass. 125. 
 
256 REAL PROPERTY. 
 
 house for board and lodging does not, however, give the 
 lodger any interest in the realty, or create any tenancy, even 
 though the prices for each are specified separately." It is 
 simply an entire contract for board and lodging, and the 
 refusal of the party engaging them to become an inmate of 
 the boarding house merely renders him liable for a breach of 
 contract. " 
 
 § 128. Delivery and acceptance of a lease. Upon the due 
 acceptance of the lease, by the lessee, the conventional rela- 
 tion landlord and tenant is legally created. All the incidents 
 of that particular relation -will then spring into activity, and 
 the rules of law that govern and control the respective rights 
 of the parties may be successfully invoked wherever there is 
 an infraction of a right that those laws recognize. The 
 merest tyro in the law of contracts is familiar with the rule 
 that requires mutual, reciprocal, and concurrent assent to the 
 terms of the agreement. Overtures or offers, not definitely 
 assented to by both parties, cannot be distorted into a con- 
 tract. This last term implies the meeting of minds on the 
 subject of some particular transaction." And the active 
 manifestation of this meeting of minds is evidenced by the 
 delivery and acceptance of the lease. Such acts will afford 
 all but conclusive evidence that the intention of the parties 
 has been appropriately expressed in the recitals of the lease 
 so delivered and accepted." And the courts give great lati- 
 tude to the presumption of acceptance by the lessee on the 
 theory that it is for his advantage to secure some suitable 
 shelter or habitation. Even habitual drunkards and persons 
 non compos mentis are competent to enter into the contractual 
 relation, and accept a lease where it appears that the necessi- 
 ties of their situation reasonably demand it.°° 
 
 § 129. Parties to a lease — their mutual obligations. As a 
 
 general proposition, it may be stated that any person law- 
 
 ** Wilson V. Martin, i Den. 602 ; ** Hedge v. Drew, 29 Mass. 141 ; 
 
 Wright V. Stavert, 2 El. & El. 721 ; Spencer v. CaYr, 45 N. Y. 406; 
 
 6 Jur. (N. S.) 867. Jackson v. Richards, 6 Cow. 617. 
 
 *' Wilson V. Martin, i Den. 602. *' 2 Greenl. Cruise. 398. 
 
 8' Smith V. Gowdy, 8 Allen, 566 ; 
 Craig V. Harper, 3 Cush. 158. 
 
ESTATES FOR YEARS. 257 
 
 fully possessed of lands and tenements, may enter into an 
 agreement for their occupancy or use, provided sucli agree- 
 ment is compatible with the terms and limits under which he 
 himself holds the property. But this rule is subject to some 
 qualification, as it is universal law that where one leases a 
 piece of property to which he has no title whatever, if, be- 
 fore the eviction of the tenant or the expiration of the term, 
 the party granting the lease acquires title to the property, 
 the principle of equitable estoppel may be successfully in- 
 voked in order to compel his recognition of the tenancy he 
 undertook to create before acquiring title. ''° 
 
 An elementary principle in the law of contracts sanctions 
 the assertion that any and all persons not under some legal 
 disability, may be parties to a lease. I am well aware that 
 this language is all embracing ; but a patient scrutiny of the 
 authorities would seem to fully warrant it. Even trustees 
 are competent to grant leases," 3sA a fortiori an executor and 
 administrator.'' This latter case holds inter alia that a power 
 in a will, authorizing the executors to sell and lease real 
 estate, is a power coupled with an interest and survives. 
 Chief Justice Marshall who wrote the opinion, cites 2 Johns. 
 Ch. I ; 12 Johns. Rep. 537. He further shows that the right 
 to contract is not conferred by society but is a natural origi- 
 nal right brought by each individual into society and that the 
 obligation of contracts is not the result of positive law, but 
 is intrinsic, and conferred by the act of the parties. So a 
 feme covert, under modern statutes, may make a valid lease 
 of her lands without obtaining the consent of, or even con- 
 sulting with, her husband." Ordinarily a corporation may 
 become a lessor or lessee, even where its charter is silent on 
 the subject, provided the relation is one necessary for it to 
 sustain in order to carry out the purposes for which it was 
 organized. The text books constantly inform us that if the 
 express recitals of the charter prohibit the body corporate 
 from entering into any contract of lease, such recitals are 
 controlling. This may be true, but the fair implication from 
 
 "Jackson v. Murray, 12 Johns. "' Bank of Hamilton v. Dudley, 3 
 
 201. Pet. 492. 
 
 "Q-reason v. Keteltas, 17 N. Y. ™ Williams v. Urmston, 25 Ohio 
 
 49', St. 296; Elliott V. Gower, 12 R. I. 79. 
 17 
 
258 REAL PROPERTY. 
 
 the language is that we must be vigilant in watching for this 
 prohibitory clause. Now, such a clause, as matter of fact, 
 never did, and in all probability never will, appear in any 
 charter. The constant reiteration of these cautionary phrases 
 is tiresome. Books written by theorists abound in just such 
 expressions. There is a fast distinction between what is 
 theoretically right, and what is practically possible or impos- 
 sible. The Legislature could create a corporation, and then 
 make it impossible for it to discharge its functions, but it never 
 ■will. And the proposition remains intact and unsullied, that 
 any corporation may execute a lease either as lessor or as 
 lessee. That corporations must observe the general tenure 
 of their charter requirements, and must confine the scope and 
 nature of their operations to such as will conserve the pur- 
 poses of their existence is never doubted, much less disputed ; 
 but that a corporation cannot be a party to a lease, even 
 where its charter expressly prohibits that relation, is a propo- 
 sition I utterly deny pending the citation of some authority 
 to the contrary. Universally a corporation may be a party 
 to a lease for any purpose not opposed to good morals and 
 public policy." And generally, it may be said, that a lease 
 may be executed by an agent for the party." But such 
 agent is, of course, disqualified to act for both parties at the 
 same time. He cannot serve two masters." 
 
 In Davies v. Mayor, etc., of New York, 83 N. Y. 207, an 
 action against a city for rent, Folger, Ch. J., said: "We 
 have no doubt that a municipal corporation or a quasi corpo- 
 ration, such as is a county of this State, has the power to 
 enter into a lease and become a tenant of real estate, when 
 the use thereof is needed to carry out any of its acknowl- 
 edged powers, and to attain the public purposes for which it 
 was erected.""' 
 
 a. Rights and duties of the landlord. The rights of the 
 respective parties to a lease are fixed by a formidable array 
 
 *• Stanley v. Brunswick Hotel " Meeker v. Winthrop Iron Co., 
 
 Co. 13 Me. 51 ; Corrigan v. Trenton 17 Fed. Rep. 48. 
 
 Co. 7 N. J. Eq. 489 ; Railroad Co. »' Inhabitants, etc., v. Wood, 13 
 
 V. Sly, 65 Pa. St. 205. Mass. 193. 
 
 "Stanley V. Brunswick Hotel Co. 
 supra. 
 
ESTATES FOR YEARS. 259 
 
 of decisions. Without specifically referring to these deci- 
 sions, in this immediate connection, it may be said that his 
 first right is to receive the prompt and full payment of the 
 stipulated rent when due. He also has the right to compel 
 the lessee to treat the demised premises in a reasonable man- 
 ner, to the end that no unnecessary loss or damage may 
 accrue, and at the expiration of the lease he has the right to 
 prompt possession without any hindrance or obstruction from 
 the tenant. 
 
 The relation of landlord and tenant is one of reciprocity. 
 The duties of the relation are never entirely on one side, and 
 the rights on the other. But each party is bound to the per- 
 formance of certain acts for the advantage and benefit of the 
 other. For instance, it is the landlord's first duty to secure 
 to the tenant the quiet enjoyment of the premises demised. 
 Indeed, this is a covenant in every lease ; if not expressed the 
 law implies it. But it must not be inferred that this cove- 
 nant for quiet enjoyment would embrace a wrongful eviction 
 or disturbance by a mere intruder or stranger to the title. 
 In disturbances of this character, the tenant must exert him- 
 self, and he is remanded to the ample remedies the law gives 
 him in such cases. It is only against acts emanating directly 
 from the landlord, that the covenant for quiet enjoyment is 
 broken. If he institutes the aggression, and invades the ten- 
 ant's right, the covenant furnishes the basis for relief. The 
 landlord must also make such repairs as have been agreed 
 upon, but under no circumstance can the landlord be com- 
 pelled to repair unless there is some agreement expressed or 
 implied to that effect. 
 
 We must regard it to be settled that a landlord leasing 
 premises abutting upon a public road or street, which are 
 from their construction or present state dangerous to passers 
 lawfully using the way, is liable to such persons for inju- 
 ries sustained, and this although the premises are controlled 
 by a tenant at the time of the injury. This liability does 
 not attach, however, if the tenant has stipulated with the 
 landlord to put them in repair. But the landlord who will 
 insist on letting premises with a nuisance is liable. This 
 nuisance must be one which in its very essence and nature 
 was a nuisance at the time of letting and not something that 
 
263 REAL PROPERTY. 
 
 was capable of being made a nuisance by the tenant. It is a 
 sound principle of law that the owner of property receiving 
 rent should be liable for a nuisance existing on his premises, 
 at the date of the demise. It follows that a landlord from 
 year to year having the power to give the ordinary notice to 
 quit, and not giving it, is thereby to be held as reletting the 
 premises with the nuisance attached." In Nelson v. Liverpool 
 Brewing Co., 2 P. C. D. 31 1, it was expressly stated that if the 
 landlord leases premises in a dilapidated condition he is liable ; 
 and in Jackson v. Arlington Mills, 137 Mass. 277, the liability 
 was brought home to the landlord for the acts of tenants in 
 polluting the waters of a brook for the reason that the de- 
 mised premises were intended to be used in the manner com- 
 plained of and that if the landlord did not retain control of 
 the matter, it was because he had, by leasing, authorized the 
 uses and abuses that rendered the water impure and pesti- 
 lential." 
 
 It is a rule of extensive application that the tenant, and not 
 the landlord,' is responsible to the owners of adjacent proper- 
 ties, and to the general public, for all injuries occasioned by 
 the improper use or condition of the leased premises.'™ 
 
 Conversely the landlord is not responsible to other parries 
 for the misconduct or injurious acts of the tenants to whom 
 his estate, when no nuisance or illegal structure existed upon 
 it, has been leased for a lawful and proper purpose. It would 
 be otherwise, if the nuisance existed at the time of the 
 demise.'"' 
 
 As to the general liability of landlord and tenant for inju- 
 ries to third persons arising out of the improper condition of 
 the leasehold property, see Churchill^. Holt, 127 Mass. 165; 
 Dewire v. Bailey, 131 Mass. 169; and as to the liability of the 
 landlord to his tenant for injuries arising from his (the land- 
 lord's) negligence and sluggishness in making repairs see 
 GUIy. Middleton, 105 Mass. 477. 
 
 When property is demised, and at the time of the demise 
 
 "'Gandy v. Jubber, 9 B. & S. 15. ™ Burt v. Boston, 122 Mass. 403; 
 
 "See Peoria V. Simpson, no 111. Pretty v. Buckmore, Law Rep. 8 C. 
 
 294; Irvine V. Wood, 51 N. Y. 224; P. 401; Swords v. Edgar, 59 N.Y. 28. 
 
 Durant v. Palmer, 5 Dutch. 544 ; "" Salstonstall v. Banker, 8 Grey, 
 
 Owings v. Jones, 9 Md. 108. 196. 
 
ESTATES FOR YEARS. 26 1 
 
 is not a nuisance, and becomes so only by the act of the ten- 
 ant, whereby an injury happens, the owner is absolved from 
 liability. But this rule does not obtain, when the owner 
 leases premises, which are a nuisance or must in the nature 
 of things become so. '°'' 
 
 Where property was leased in an unsafe condition for the 
 use to which it was to be put, and the owner knew, or by the 
 exercise of reasonable diligence could have known, of its con- 
 dition, and one who is lawfully upon the premises is injured 
 in consequence of this condition, the owner is liable."' 
 
 Where a building has been made unsafe by the agency of 
 time it is the duty of the owner to put it in safe condition. '" 
 
 The neglect of a person to perform a duty imposed upon 
 him by law for the protection of others renders him liable to 
 them for any damage arising therefrom. '"" 
 
 A landlord is not liable for the negligence of his tenant, 
 over whose acts he has no control. "" 
 
 When there are concealed defects, dangerous in their 
 nature and tendency, and so concealed as to escape all ordi- 
 nary scrutiny and at the same time are known to the lessor 
 the latter is bound to disclose them, otherwise his liability 
 attaches, when, through his failure to caution the lessee in 
 reference to the danger, the latter sustains injury. The 
 principle applied is that one who delivers an article which 
 he knows to be dangerous to another, ignorant of its nature, 
 is liable for any injury resulting therefrom. This principle 
 is accorded a prominent place in leasehold contracts, and has 
 
 '»' Ahern v. Steele, 1 1 5 N. Y. 203 ; '"« Lowell v. Spalding, 4 Cush. 
 
 Wolf V. Kilpatrick, loi N. Y. 146. 277 ; Bartlett v. Boston Gas Light 
 
 '"3 Todd V. Flight, 9 C. B. N. S. Co. 117 Mass. 533; 19 Am. Rep. 
 
 377; Nelson v. Liverpool Brew. 421; Leonard v. Storer, 115 Mass. 
 
 Co. L. R. 2 C. P. Div. 311 ; Irving 86; 15 Am. Rep. -jd ; Fish v. Dodge, 
 
 V.Wood, SiN. Y. 224; 10 Am Rep. 4 Denio, 311; 47 Am. Dec. 254; 
 
 603 ; Albert v. State, 66 Md. 325 ; Gwinnell v. Earner, 32 L. T. N. S. 
 
 59 Am. Rep. 1 59. 835 ; Pretty v. Bickmore, L. R. 8 C, 
 
 '"* Dalay v. Savage, 4 New Eng. P. 401 ; 28 L. T. N. S. 707 ; Clancy 
 
 Rep. 863; 14s Mass. 38. v. Byrne, 56N. Y. 129; 15 Am. Rep. 
 
 "" Dunnigan v. Chicago & N. W. 391 ; Harris v. Cohen, 50 Mich. 
 
 R. R. Co. 18 Wis. 28; 86 Am. Dec. 324; Mellen v. Morrill, 126 Mass. 
 
 741; McCall V. Chamberlain, 13 545. 33 Am. Rep. 695. 
 Wis. 637. 
 
262 REAL PROPERTY. 
 
 been held sufficiently active to impose full liability upon one 
 who leases premises infected with the smallpox, and neglects 
 to inform the lessee of the fact ; the law will not tolerate con- 
 cealments of this description. '" Thus in Reichenbacher v. Pah- 
 meyer, 8 Bradw. 217, the defect alleged was in the manner of 
 hanging a chandelier, its dangerous condition was well 
 known to the lessor, but he neglected to inform the lessee of 
 the defect, in the nature of the case the danger was not appa- 
 rent, and the lessor was ruled to pay full damages to the ser- 
 vant of the lessee, who was injured by its fall.'" 
 
 A landlord who lets rooms in a building to different ten- 
 ants, with a right of way in common over the staircase, is 
 bound to use reasonable care to keep such a staircase in 
 repair; if he fails to do so he is liable to a tenant injured 
 thereby while in exercise of reasonable care."' 
 
 While previous knowledge, by a party injured, of a dan- 
 gerous situation or impending danger, from which a person 
 of ordinary intelligence might reasonably apprehend injury, 
 generally imposes upon him greater care and caution in 
 approaching it, the degree of care required is a question of 
 fact for the jury."" 
 
 The law holds a landlord to stricter accountability if he 
 holds out inducements or makes promises to repair, upon 
 which a person injured has relied.'" 
 
 If a lessor, upon taking possession of the leased premises, 
 during the term of the lessee, finds thereon a stock of goods 
 left there by the tenant who has occupied under an arrange- 
 ment with the lessee, and has abandoned the premises, and 
 the goods are subject to an unpaid mortgage, and the mort- 
 gagee declines to take possession of the goods or promise to 
 pay the lessor for storing them, the latter cannot maintain a 
 
 '»' Minor V. Sharon, 112 Mass. 477; Week. Dig. 343 ; Pomfrey v. Sara- 
 
 Bowe V. Hunliing, 135 Mass. 380. toga Springs, 7 Cent. Rep. 44; 104 
 
 ""Scott V. Simons, 54 N. H. 426 ; N. Y. 459, 469; Hawley v. Northern 
 
 Godley v. Haggerty, 20 Pa. St. 387. Cent. R. Co. 82 N. Y. 371 ; Looney 
 
 "" Looney V. McLean, 129 Mass. v. McLean, supra; Parsons v. New 
 
 33; Donodue v. Kendall, 18 Jones York Cent. & H. R. R. Co., 3 L. R. 
 
 .& S. 389; Neyer v. Miller, 19 Jones A. 683; 113 N. Y. 364. 
 
 & S. 516; Lindsey v. Leighton, 150 '" Laning v. New York Cent. R. 
 
 Mass. 285. Co. 49 N. Y. 536; Palmer v. Dear- 
 
 "°Dowd V. Fitzpatrick, 18 N. Y. ing, 93 N. Y. 7. 
 
ESTATES FOR YEARS. 263 
 
 bill in equity against the tenant and the mortgagee to recover 
 for the use and occupation of the premises, and for storing 
 the goods."" 
 
 In Georgia, a landlord is generally bound to keep the pre- 
 mises in repair, and may be held liable to third persons for 
 an injury sustained through a defect in repair ; but not for 
 injury occasioned by the tenant's negligence or wrongful use 
 of the leased premises. '" This rule does not extend to patent 
 defects."* 
 
 Where a landlord retains possession of a part of a building, 
 he is bound to keep the part retained by him in proper care 
 and condition so that the tenant will not, through the land- 
 lord's fault or negligence, be damaged or injured in either 
 his person or his goods."' Neither of these cases is in har- 
 mony with well considered cases in other jurisdictions and 
 the principle announced has been directly repudiated in 
 Kreuger v. Ferrant, 29 Minn. 385 ; Purcell v. English, 86 Ind. 
 34, and in Cole v. McKey, 66 Wis. 500. 
 
 b. Rights and duties of the tenant. Conspicuous among the 
 rights of the tenant is his privilege of enjoying the premises 
 leased for the term mentioned in the lease, and to use them 
 for the purpose agreed upon. He may, unless restrained by 
 the covenants in the lease, either assign it, or underlet the 
 premises, (i Cruise Dig. 174.) By an assignment of the 
 lease is meant the transfer of all the tenant's interest in the 
 estate to another person ; on the contrary, an underletting is 
 but a partial transfer of the property leased, the lessee retain- 
 ing a reversion to himself. His duties are well understood 
 and seldom occasion controversy. 
 
 First, he is bound to fulfill all express covenants he has 
 entered into in relation to the premises leased ; and, secondly, 
 he is required to fulfill all implied covenants, which the con- 
 ventional relation of tenant imposes upon him toward the 
 lessor. For example, he is bound to put the premises to no 
 other use than that for which it was hired ; when a farm is 
 
 '"Field V. Roosa, 159 Mass. 128. ""Wood, L. & T., sec. 383; 
 
 '" White V. Montgomery, 58 Ga. Looney v. McLean, 129 Mass. 33 ; 
 204. Toole V. Backett, 67 Me. 544. 
 
 '"Driver v. Maxwell, 56 Ga. 11 ; 
 Martindale on Conveyancing, 306. 
 
264 REAL PROPERTY. 
 
 let to him for common farming purposes, he cannot open a 
 mine and dig ore which may happen to be in the ground ; 
 but if the mine has been opened, it is presumed both parties 
 intended it should be used, unless the lessee was expressly- 
 restrained."" 
 
 He must use the premises demised in a tenant like and 
 proper manner and exercise proper care and diligence in pro- 
 tecting them from decay and ruin. On the termination of 
 the lease he must restore them to the landlord, in the same 
 condition in which he received them, less the ordinary wear 
 and damage incident to the use for which they were demised. 
 Unless the landlord has accepted an assignment of the ten- 
 ant's lease and treated the assignee as the successor to all the 
 rights of the original tenant, the lessee will remain charge- 
 able as he was originally with all the burden imposed by the 
 lease. The right to sub-let is frequently denied by some 
 recital in the lease. 
 
 Where, however, that instrument is silent on the subject, 
 the right to sublet always exists. But it by no means fol- 
 lows that the landlord forfeits his remedy against the origi- 
 nal tenant. It is unquestionably his privilege to select 
 whom he pleases for a tenant, and he is never required to 
 have a person thrust upon him. He may be entirely will- 
 ing to lease his property to some person of his own choos- 
 ing, but the sub-tenant selected by his lessee may be a very 
 undesirable party. Hence, the rule is universal that the 
 original tenant is always liable for the entire rent, in the 
 absence of any evidentiary fact on the part of the landlord 
 indicating an intent to recognize the sub-tenant as a substi- 
 tute. 
 
 The lessee is never liable for taxes, insurance or interest 
 on incumbrances unless such liability forms the subject of 
 express stipulation. These are matters entirely within the 
 scope of the landlord's obligations. 
 
 Lessees are quite generally exempt by statutory enact- 
 ment in case the premises are rendered untenable by fire or 
 flood, unless some written recital of the lease itself makes 
 distinct provision for such payment on the happening of 
 such casualty.'" 
 
 "' I Cruise Dig. 132. '" Graves v. Berdan, 26 N.Y. 498. 
 
ESTATES FOR YEARS. 265. 
 
 The right of a tenant on upper floors to light and air from 
 a -well or open space which is not accessible to the street, can- 
 not be obstructed where it is necessary to the enjoyment of 
 the demised premises. A landlord is liable to a tenant of 
 upper floors for wrongful obstruction of light and air from a 
 well or open space in a building by a chimney constructed 
 by another tenant under the landlord's express authority to 
 erect such chimney for the use of boilers in the basement.'" 
 
 It is said in Wood's Landlord and Tenant (sec. 179), that if 
 the tenant ' ' incloses land, whether adjacent to, or in the 
 vicinity of the demised premises and whether the land be 
 part of the waste or of the highway or belongs to the land- 
 lord or some third person, the presumption at the end of the 
 term is that the inclosure is part of the holding and was 
 made for the benefit of the landlord. ' ' 
 
 This rule was applied in the case of Dempseyv. Kipp, 61 
 N. Y. 470, to a private way procured by one Leddick, a ten- 
 ant, for the benefit of a farm occupied by him as such ten- 
 ant. It was said by D wight, Commissioner: "As soon as 
 Leddick acquired the right, it inured to the landlord's 
 benefit. It is settled law, that all that the tenant thus 
 acquires from third persons appertains to the landlord. The 
 rule is applied even to encroachments made by him upon the 
 lands of others ; a fortiori would it be applicable where the 
 acquisition is made by consent or through contract with the 
 owner of adjoining lands. " 
 
 After referring to some English cases on the subject, he 
 continues: "These cases establish the doctrine that a tenant, 
 even from year to year, has a capacity to acquire a perma- 
 nent interest in adjacent lands belonging to third persons for 
 the use of the leased property, which shall inure to his own 
 benefit while the tenancy continues and on its expiration 
 shall appertain to his landlord. There appears to be no differ- 
 ence in principle whether the acquisition is made by prescrip- 
 tion or by contract. The tenant's intent is the main subject 
 of inquiry. In the case at bar the intent of both parties, as 
 has already been shown, is plain. ' ' 
 
 A tenant for years does not acquire the same benefit from 
 the premises that a tenant for life enjoys. But, on the other 
 
 "'Casev. Minot, L. R. A. 22, p. 536. 
 
266 REAL PROPERTY. 
 
 hand, his duties are of a less active character."" And it is 
 usual for the lessor to stipulate in some paragraph of the 
 lease that any material alterations cannot be made by the 
 tenant without his consent."" And waste or any unconscion- . 
 able disregard of the lessor's rights will be promptly 
 restrained by injunction or some other preventive meas- 
 ure."' 
 
 But in every lease there is, unless excluded by the opera- 
 tion of some express covenant or agreement, an implied 
 obligation on the part of the lessee to so use the property as 
 not unnecessarily to injure it, or, as it is stated by Mr. 
 Comyn, "to treat the premises demised in such manner that 
 no injury be done to the inheritance, but that the estate may 
 revert to the lessor undeteriorated by the willful or negligent 
 conduct of the lessee."" This implied obligation is part of 
 the contract itself, as much so as if incorporated into it by 
 express language. It results from the relation of landlord 
 and tenant between the parties which the contract creates.'" 
 It is not a covenant to repair generally, but to so use the 
 property as to avoid the necessity for repairs, as far as pos- 
 sible.'" 
 
 c. Cannot dispute the title of his landlord. Tenants cannot, 
 while retaining possession, deny the title of their landlord, 
 or set up against him a title acquired during the tenancy. 
 Having entered upon the enjoyment of the premises by vir- 
 tue and force of the landlord's ownership, they will not be 
 heard to deny his claim, except in certain instances."' 
 
 This rule has peculiar force where the lessor was in pos- 
 
 '" Long V. Fitzsimmons, i W. & 485 (8: 200) ; Hughes v. Clarksville, 
 
 S. 530. 6 Pet. 369 (8 : 430) ; Woodward v. 
 
 ""Douglas V. Wiggins, i Johns. Brown, 13 Pet. i (10: 31); Walden 
 
 Ch. 435. V. Bodley, 14 Pet. 156 (10: 398); 
 
 "' Bellows V. McGinnis, 17 Ind. 64. Lucas v. Brooks, 18 Wall. 436 (21 : 
 
 '"Com. Land & T. 188. 779); Lewis v. Hawkins, 23 Wall. 
 
 '" Holford V. Dunnett, 7 M. & W. 119 (23: 113) ; Stott v. Rutherford. 
 
 352. 92 U. S. 107 (23: 486) ; Williams v. 
 
 '" Horsefall v. Mather, Holt, 7 ; Morris, 95 U. S. 444 (24: 360) ; Rec- 
 
 Brown V. Crump, i Marsh. 569. tor v. Gibbon, in U. S. 276 (28: 
 
 H5 Wiiiison V. Watkins, 3 Pet. 43 427). 
 (7: 596) ; Peyton v. Stith, 5 Pet. 
 
ESTATES FOR YEARS. 267 
 
 session and transferred that possession to the lessee upon his 
 faith in the validity of the lease."' 
 
 Hence any evidence tending to show the relation of land- 
 lord and tenant would be pertinent in an action where the 
 paramount rights of the landlord were denied.'" 
 
 The relation of landlord and tenant, so long as it exists, 
 estops the tenant and any one succeeding to his rights from 
 denying the title of the landlord."" 
 
 But a tenant sued for rent may defend upon the ground 
 that the title of the landlord has expired by limitation, 
 voluntary conveyance, or by operation of law."" 
 
 This threadbare rule precluding a tenant from denying his 
 landlord's title is paraded with limitless activity, in works 
 relating to this subject, but reduced to its ultimate essence, 
 and'bereft of its surplusage, it amounts to just this, "don't 
 deny your landlord's title unless you can do it successfully." 
 
 There is no prohibition for the grantee in fee to deny the 
 title of the grantor in case he is holding adversely to his 
 grantor. There can be no application of the principle of 
 estoppel where the occupant is under no obligation, express 
 or implied, that he will ever redeliver the possession of the 
 premises. The grantee in fee is under no such covenant. 
 His possession is in a sense contingent upon his future trans- 
 ference of the possession. His holding is in perpetuity to 
 himself and his grantee's heirs, assigns, etc., and he violates 
 no faith and indulges in no duplicity when he treats him as 
 an utter stranger to the property both as respects the right 
 of reversion and the muniments of title. '^° 
 
 After judgment by default in a suit upon a lease, the ten- 
 ant may, on an inquiry of damages, to diminish them, show 
 that the title of the lessor was divested or defeated.'" And 
 
 "'Stott V. Rutherford, supra. County Sav. Bank v. Phalen, 12 R. 
 
 '" Campau v. Laflferty, 43 Mich. I. 495 ; Jones v. Dove, 7 Or. 467. 
 
 429; Morrison v. Bassett, 26 Minn. ''"'Jackson v. Davis, 5 Cow. 123 . 
 
 23s ; Pate v. Turner, 94 N. C. 47 ; Van Rensselaer v. Van Wie, 23 
 
 Loring v. Harmon, 84 Mo. 13; Wend. 531. 
 
 Mauldin v. Cox, 67 Cal. 387 ; Cald- ™ Ferris v. Houston, 74 Ala. 162. 
 
 well v. Smith, 77 Ala. 157; Bryan ™ Qsterhout v. Shoemaker, 3 
 
 V. Winburn, 43 Ark. 28; Helena v. Hill. 513. 
 
 Turner, 36 Ark. 577 ; Providence "^ Barclay v. Picker, 38 Mo. 143. 
 
268 REAL PROPERTY. 
 
 in an action to recover a portion of a mining claim, and dam- 
 ages for wrongfully removing the gold therefrom, evidence 
 is admissible on the part of the defendant, by way of lessen- 
 ing the amount recoverable, of the expense of digging the 
 gold-bearing earth from the claim."' 
 
 A tenant cannot justify his attornment to a third party by 
 merely showing that such party has recovered a judgment 
 against him for the possession of the premises. He must 
 show that his landlord was notified of the pendency of the 
 action and had an opportunity to defend; otherwise the 
 landlord is neither bound nor estopped by the judgment."' 
 A tenant in possession under one title can make no valid 
 attornment to any one not in privity with that title ; and one 
 in possession as tenant in common, in privity and full recog- 
 nition of the title of the undivided interest not owned by him- 
 self, as belonging to some one else, is bound to account to 
 the latter ; and a promise to pay rent to another, made by 
 such tenant in possession on the assumption that- such 
 promise had such outstanding interest, cannot be enforced 
 without proof that he held such title ; for if he had no title, 
 the attornment would be void and the promise without con- 
 sideration. "" 
 
 But this rule as to the estoppel of a tenant applies only 
 where the conventional relation of landlord and tenant ex- 
 ists by contract, and some rent or return is in fact reserved, 
 and not where it arises by mere operation of law, as in case 
 of an assessment lease ; and if one holding such a lease con- 
 veys the land in fee, his grantee, by occupying for the statu- 
 tory time after the expiration of his lease, will acquire a title 
 by adverse possession, which he may set up against the 
 owner."' 
 
 Where a tenant would be estopped from disputing the title 
 of his landlord, says Mr. Chitty, he is also estopped from dis- 
 puting that of his assignee."' This rule which denies the 
 right of a tenant to question the landlord's title to the prem- 
 
 "^Goller V. Fett, 30 Cal. 481. Cal. 205; Martindale on Convey- 
 
 "' Douglas V. Fulda, 45 Cal. ancing, 350. 
 
 592. "' Sands v. Hughes, 53 N. Y. (8 
 
 "^ Fuller V. Sweet, 30 Mich. 237 ; Sick.) 287. 
 
 and see Camarillo v. Fenlon, 49 "'* Chit. Con. (11 Am. ed.) 463. 
 
ESTATES FOR YEARS. 269 
 
 ises, is one of convenience merely, but having a tendency to 
 circumvent fraud and facilitate the leasing of real property 
 and when the tenant has entered under the plaintiff's grantor, 
 and maintains the possession thus acquired, as well as when 
 he has entered under the plaintiff, he should, by proper evi- 
 dence, bring himself within the exceptions to the rule. The 
 considerations which indulge the rule in favor of the land- 
 lord's title apply with equal force to that of his assignee, 
 and the tenant is not injured when his rights against the 
 landlord are, primarily at least, made the measure of his 
 rights against the assignee. It follows as a corroUary that 
 when compelled to admit the title of the landlord under 
 whom he occupies as tenant at will, he must also be held to 
 admit the landlord's right to collect the rent and to do those 
 acts which the owner of property may lawfully do, among 
 which is the right to terminate an estate at will by a convey- 
 ance of the property. 
 
 The rule is stated by Baldwin, Justice, in a case in the 
 Supreme Court of the United States, that "if a tenant dis- 
 claims the tenure, claims the fee adversely in right of a third 
 person or his own, or attorns to another, his possession then 
 becomes a tortious one by the forfeiture of his right. The 
 landlord's right of entry is complete, and he may sue at any 
 time within the period of limitation ; but he must lay his 
 demise of a day subsequent to the termination of the ten- 
 ancy, for before that he had no right of entry. By bringing 
 his ejectment, he also affirms the tenancy and goes for the 
 forfeiture.'"" A similar doctrine was laid down in a case in 
 the Supreme Court of Vermont."" But a contrary doctrine is 
 held in Wisconsin and Alabama. 
 
 The well settled rule of the common law is, that if the ten- 
 ant does any act inconsistent with his character as tenant, as 
 if he impugns the title of the lessor, affirms by matter of 
 record the fee to be in a stranger, claims a greater estate 
 than he is entitled to, or claims the estate in fee, by any 
 mode of conveyance which has the effect of divesting the 
 estate of the reversioner, as by a feoffment, or other common 
 
 "' Willison V. Watkins, 3 Pet. R. "« Sherman v. Champlain Trans- 
 
 43i 49- portation Co., 31 Vt. R. no. 
 
270 REAL PROPERTY. 
 
 law conveyance, a forfeiture will thereby be incurred, and 
 the landlord may re-enter upon him and resume possession. "' 
 
 Commencement of Leases. 
 
 § 130. Beginning of a lease — length of term. Unless other- 
 wise stipulated the rights of the lessee to the occupation of 
 the leasehold property will commence from the date of the 
 instrument creating the term. And in computing its dura- 
 tion, the rule is to exclude the first day, and include the last. 
 Another rule, of perhaps universal application, is to compute 
 the time by calendar and not lunar months. Generally, it 
 may be said, in the case of leases from year to year, that all 
 of the anniversary day is to be included. There is a disposi- 
 tion in some localities to follow the system inaugurated by 
 the fire insurance companies, and terminate the lease at noon 
 on some day specified. Where it is certainly competent for 
 the parties to enter into any lawful stipulation, it may be 
 well to remember that as a general rule the law knows noth- 
 ing of a fraction of a day. 
 
 The time for which the leasehold term is to run must be 
 certain or be capable of being made certain. If no date is 
 mentioned in the contract the lease will commence to run 
 from the time of its delivery.'" The New Hampshire court 
 says, "the term commences to run from the date of the lease 
 itself.'"" So the term may commence at any time in the 
 future, if it does not contravene the rule against perpetuities 
 by vesting in possession at some date beyond two lives in 
 being, or one life in being plus twenty-one years, and the 
 period of gestation. '" 
 
 In the new (perhaps the better expression would be the 
 newest), constitution of New York, which took effect on the 
 first of January, 1895, it was provided that "no lease or grant 
 of agricultural land for a longer period than twelve years, 
 thereafter made, in which should be reserved any rent or 
 service of any kind, should be valid.'"" By a law of the 
 New York Legislature, passed May 13, 1846, distress for rent 
 
 '"Taylor's Land, and Ten., sec. "'■ Keyes v. Dearborn, 12 N. H. 
 
 488. 52. 
 
 "•Depend v. Olmsted, 5 Daly, '" Whitney v. Allaire, i N. Y. 311. 
 
 398. '"Const., art. I, sec. 13. 
 
ESTATES FOR YEARS. 2/1 
 
 ■was abolislied, and the provisions of the Revised Statutes 
 vol. I, p. 476, giving preference to landlord's claims for rent 
 over judgment-creditors, were repealed. (It has been de- 
 clared that the Act of May 13, 1846, does not abolish the 
 right of re-entry in the manner prescribed by the Revised 
 Statutes."* The statute remedy of re-entry by ejectment has 
 been applicable by and to the parties to leases in fee, and this 
 remedy is not impaired by the Act of May 13, 1846.)'" It will 
 be perceived that these are momentous changes in long- 
 established law. 
 
 § 131. Covenants and conditions. A lease with an express 
 covenant for quiet enjoyment implies covenant that the les- 
 sor has power and right to convey it. The implied covenant 
 is broken if the lessor has made a prior and still outstanding 
 lease of part of the premises. A recovery of the premises 
 by the prior lessee is such an eviction as constitutes a breach 
 of the covenant for quiet enjoyment; and the lessee may 
 recoup his damages from the rent due."° 
 
 Every lease implies a covenant for quiet enjoyment, but it 
 extends only to the possession, and its breach, like that of a 
 warranty of title, arises only from eviction by means of title. 
 It does not protect against entry and ouster of a tort-feasor. 
 The tenant may call his landlord into his defence, and if 
 eviction follows as a result of a failure to defend him he can 
 then refuse to pay rent, and fall back upon this covenant for 
 quiet enjoyment to recover his damages.'" 
 
 As a general rule there is no warranty implied in the let- 
 ting of premises that they are reasonably fit for occupancy. 
 The lessee assumes all risk as to the quality of the premises 
 in the absence of any controlling agreement on the subject. 
 The rule of "caveat emptor" applies, and if he is injured 
 through the unsafe condition of the property, he is remedi- 
 less as against the lessor. In nearly all cases where the les- 
 
 •" Williams v. Potter, 2. Barb. S. '« McAIl'ester v. Landers, 70 Cal. 
 
 C. R. 316; Van Rensselaer v. Sny- 82. 
 
 der, 9 Id. 302 ; affirmed by the Court ■■" Mark v. Patchen, 42 N. Y. 171 ; 
 of Appeals, s. C. 13N.Y. (3 Ker.)299. Schuylkill R. R. Co. v. Schmoele, 
 
 '" Van Rensselaer v. Smith, 27 57 Pa. St. 273. 
 Barb. (N. Y.) 104 ; Laws of Sess. 
 69th, chap. 274. 
 
2/2 REAL PROPERTY. 
 
 sor has been held liable active negligence has been shown as 
 a factor in the case."' It is undoubtedly true that, under 
 appropriate circumstances, the law will indulge the injured 
 party in an action of tort. Regarding this action, it must be 
 premised that there is great confusion in the authorities as 
 to the exact location of the dividing line between actions on 
 contract and actions on tort. Now, it is elementary knowl- 
 edge that when a cause of action arises through the mere 
 breach of some promise, the action is one on contract. If, 
 on the other hand, negligence — such as imposes the idea of 
 constructive fraud — becomes the basis of the action, it is 
 considered as sounding in tort. In other words there must 
 be some breach of duty distinct from breach of contract. 
 And it may be regarded as a general rule, that to sustain the 
 averments in an action of tort there must be proof of some 
 active negligence or misfeasance.'" 
 
 The general rule is firmly established that no implied 
 covenant for repairs can be raised against the lessor. The 
 lessee cannot invoke an implied covenant of the landlord 
 that the leased premises are fit and suitable for the lessee's 
 business or use. The intending tenant must use his own 
 faculties, and judge for himself if the premises he desires to 
 lease are in repair, and are suitable for his use. If he wishes 
 to protect himself against the hazards of subsequently accru- 
 ing accidents or defects requiring repairs, he must do so by 
 proper covenants in his contract of lease. He takes his leased 
 premises for better or for worse, as an ancient authority 
 aptly characterizes his taking. He takes the premises as he 
 finds them, and he must return them, as nearly as possible, 
 in like condition. This necessarily involves his making 
 repairs on the property during the term of his lease. And 
 all this must be true — all this is true — whether he leases 
 one room or six, the whole or a part of the house. If he 
 rents the whole, the wisdom and necessity of his protecting 
 himself in his contract by stipulating for repairs by his land- 
 lord appears to be not less, but greater, than if he rents a 
 part only. The rule extends to the whole premises, and to 
 every part of the premises. The duty of the tenant to ex- 
 
 "*Bowe v. Hunking, 135 Mass. '"Gill v. Middleton, 105 Mass. 
 
 380. 477. 
 
ESTATES FOR YEARS. 273 
 
 amine the premises, and protect himself by proper stipula- 
 tions in his contract of lease if danger is suggested by his 
 examination, is the same in case of the leasing of the whole 
 or of part only. He cannot fix liability upon his lessor by 
 some supposed implied covenant to repair, when he had it 
 in his power to create this covenant expressly in the written 
 contract, and failed to do so. 
 
 There is no implied warranty on the landlord's part that 
 the premises demised are tenable and in good condition ; the 
 tenant is presumed to investigate for himself and provide by 
 some appropriate stipulation in the lease, for a certain 
 amount of repairing covering specific objects, such as roofing, 
 painting, plastering, papering and general matters of that 
 character. This rule is of modified application when related 
 to passageways, staircases and door steps that are intended 
 for general use by both landlord, tenant and the pub- 
 lic generally, who may have occasion to do business on 
 the premises, and in regard to these matters the landlord is 
 very properly held to the duty of keeping such portions of 
 the demised premises in safe and proper condition. But 
 generally it may be affirmed that the lease does not imply 
 any particular state of the property let, not even that it is 
 safe or fit for human habitancy, the tenant takes the prem- 
 ises as they are, and must pay rent for the term unless wrong- 
 fully evicted. But this rule is limited, as we have seen, to 
 premises which by the terms of the lease, have passed en- 
 tirely out of the landlord's control, and into the exclusive 
 possession of the tenant. Where only a portion of a build- 
 ing is leased the passageways and common approaches and 
 exits are controlled by the landlord and upon him is cast the 
 responsibility of general oversight and repairing."" The 
 head note of a recent decision reads as follows : " A landlord 
 who lets rooms in a building to different tenants, with the 
 right of way in common over a staircase, is bound to use rea- 
 sonable care in keeping such staircase in repair ; if he fails 
 to do so, he is liable to a tenant injured thereby while in the 
 exercise of reasonable care ; and the fact that the tenant uses 
 the staircase after knowing that it is in a dangerous condi- 
 
 ''" Readman v. Conway, 126 Mass. 374, 
 18 
 
274 REAL PROPERTY. 
 
 tion is not conclusive evidence that he is not in the exercise 
 of due care.'"" There has been a morbid excess of com- 
 ment, spoken and written, on this subject, but the practi- 
 tioner can evade a needless extension of labor by assuming 
 that the foregoing epitome of the rule is absolutely correct. 
 The formula is, and has been, dislocated and mangled by 
 various -writers under the pressure of hasty composition but 
 the effort in all instances is to approximate to this meaning. 
 
 Under the common law there is no implied contract upon 
 the part of the landlord that the demised premises are tenant- 
 able, or of any particular character of construction, and no 
 liability rests upon the landlord, except in case of fraud, for 
 their condition.'" 
 
 The same rule, except where some question as to the land- 
 lord's duty to make repairs arises, applies when a portion of 
 the premises are leased with the license or privilege on the 
 part of the tenant to use other portions of the premises. 
 The landlord warrants nothing, and is under no liability in 
 respect to the plan or construction of the building.'" 
 
 It has been repeatedly held that an assessment, made under 
 an act not in existence at the time of the execution of a lease, 
 is not included in a tenant's covenant to pay taxes and assess- 
 ments.'" Where a lessee covenants to pay such assessments, 
 he in fact agrees to pay such assessments only as are valid, or 
 such as can be legally enforced against the lessor or against 
 the property.'" 
 
 There is no restriction imposed by law on the number of 
 covenants in a lease. Anything lawful in itself, and not 
 endangering public policy or morals, may be the subject of a 
 covenant. But stipulations of this nature should be ex- 
 pressly set forth in the instrument itself, as in no instance 
 will the law imply a covenant in a lease for years except that 
 of quiet enjoyment. This covenant merely imports that 
 
 '" Looney v. McLean, 129 Mass. '*' Woods v. Naumkeag S. C. Co. 
 
 33. 134 Mass. 357, 45 Am. Rep. 344; 6 
 
 "«Wood, Land. & Ten., sec. 382; Am. L, Rev. 614. 
 JaflEe V. Harteau, 56 N. Y. 398, 15 '" See Love v. Howard, 6 R. L 116; 
 
 Am. Rep. 438; Purcell v. English, Oswald v. Gilfert, 11 Johns. 443; 
 
 86 Ind. 34, 44 Am. Rep. 255, and Bleecker v. Ballon, 3 Wend. 263. 
 cases cited. •" Clark v. Coolidge, 8 Kan. 189. 
 
ESTATES FOR YEARS. 2/5 
 
 the tenant is not to be evicted during his term by title para- 
 mount."' 
 
 It is an universal rule that upon the demise of real estate 
 there is no implied warranty that the property is fit for occu- 
 pation or suitable for the use or purpose for which it is 
 hired.'" But there is an implied covenant for quiet enjoy- 
 ment'" unless there is an express covenant."' 
 
 Every lease for years has as its pendent and inseparable 
 accompaniment, the right of quiet enjoyment."" This has 
 been previously referred to. This covenant is broken when- 
 ever an eviction, actual or constructive, can be established as 
 directly resulting from the procurement of the landlord."' 
 The subject of eviction is carefully examined at the close of 
 the chapter, but in this immediate connection it may be said 
 that it need not take the character of a violent physical ex- 
 pulsion, but it may result, and frequently does, from those 
 insidious, nagging practices, insignificant in themselves, but 
 intolerable in their aggregation by which the tenant's occu- 
 pancy is interfered with, and his enjoyment of the premises 
 demised impossible. Eviction need not extend over the 
 entire part of the property leased. It is sufficient if in any 
 way the encroachment is against the tenant's right. He has 
 stipulated for the possession of the entire property, not for 
 some fractional part of it, nor for such as the landlord's whim 
 sees fit to give him. He is at liberty to repose upon his 
 whole right, and treats any evasion of those rights as an evic- 
 tion. It does not lie in the landlord's mouth to say "I will 
 rebate the rent pro tanto as a recompense for this invasion." 
 The tenant is bound to accept no such proposition. He has 
 been deprived of the beneficial use of some part of the prem- 
 ises, in other words, evicted from a part thereof, and he may 
 
 '» Burr v. Stenton, 43 N. Y. 462. "' O'Connor v. Memphis, 7 Lea. 
 
 '" Edwards V. New York & H. R. (Tenn.) 219; see 4 Wait's Act. & 
 
 R. Co., 98 N. Y. 245 ; Naumberg V. Def. 235 ; 8 Id. 368. 
 
 Young, 15 Vroom. 331; Krueger ""The covenant for quiet enjoy- 
 
 V. Farrant, 29 Minn. 385 ; Wilkin- ment goes to the possession and 
 
 son V. Clauson, 29 Id. 91 ; Kerr v. not to the title. 3 Johns. 471 ; 2 
 
 Merrill, 4 Mo. App. 591. Hill, 105 ; 4 Cow. 340; 9 Met. 63. 
 
 '" Edwards v. Perkins, 7 Ore. 149 ; "' Colburn v. Morrill, 117 Mass. 
 
 Field V. Herrick, 10 111. 591. 262. 
 
2/6 REAL PROPERTY. 
 
 treat such acts as suspending the rent and releasing him from 
 all further obligations as a tenant.'"" 
 
 A covenant for quiet enjoyment is implied in every mutual 
 contract for the leasing and demise of land, by whatever form 
 of words the agreement is made. And the measure of 
 damages for the breach of such a covenant is the value of the 
 unexpired term of the lease at the time of the eviction, over 
 and above the rent reserved by the terms of the lease. For a 
 breach of contract in the sale of personal property the meas- 
 ure of damages is the difference between the contract and the 
 market price. But the same rule has not been applied against 
 the vendor or lessor of real estate.'" It was held by the 
 Court of Common Pleas, in a case referred to that court by 
 the Master of the Rolls, for its opinion, and upon a very 
 elaborate argument, that the lessee, upon a covenant for 
 quiet enjoyment, was entitled to recover the value of the 
 term lost, as well as for mesne profits paid to the owner of 
 the paramount title. The same question came again before 
 that court in Locke v. Furze, 19 J. Scott, N. S. 96 and 115 Eng. 
 Com. Law, 94. The English and American cases were care- 
 fully reviewed, and the whole court, sanctioned, re-asserted 
 and re-affirmed the rule formulated in Williams v. BurrelL 
 supra, to the effect that a lessee that has been ousted by vir- 
 tue of title paramount, is entitled to recover, under the im- 
 plied covenant of quiet enjoyment, the value of the leasehold 
 term which he was deprived of. In Myers v. Burns, 35 N. Y. 
 272, the Court of Appeals of that State asserted and adopted 
 the same principle. 
 
 The measure of damages for the breach of the lessee's 
 covenant to keep in repair, and to surrender the demised 
 premises at the end of the term in as good order and condi- 
 tion as they were at the beginning of it, is the amount of 
 money necessary to accomplish all that the lessee failed to 
 do; in other words, the cost of making the repair."* 
 
 "' Sherman V.Williams, 113 Mass. ages, 150-204; 4 Kent's Com. 479; 
 
 481; Royce v. Guggenheim, 106 Williams v. Burrell, I M. G. & Scott, 
 
 Mass. 201 ; Leishman v. White, i 402 ; 50 Eng. Com. Law Rep. 401. 
 Allen, 489 ; Christopher v. Austin, "* Vivian v. Champion, 2 Ld. 
 
 II N. Y. 216. Raymd. 1125; Mayne on Damages, 
 
 "3 Sedgwick on Measure of Dam- 229. 
 
ESTATES FOR YEARS. 277 
 
 § 132. Improvements and repairs. Assuming the lease to 
 be silent on the subject, if the lessee for years erects valuable 
 improvements upon the premises demised, he is not at 
 liberty to remove them on the expiration of the term. It is 
 his own folly to improve another's land, and he cannot 
 recover the least part of his expenditure.'" This clearly 
 appears by referring to chapter I, on the subject of Fixtures. 
 And, in the matter of general repairing, the rule is that he 
 takes the premises as he finds them — barring such latent 
 defects as would not ordinarily come under notice, and which 
 is the landlord's duty to disclose — and is bound to make 
 ordinary repairs."" But is not liable for elemental damage 
 nor for mob violence.'" 
 
 He is, therefore, bound to put in windows or doors that 
 have been broken by him, so as to prevent any decay of the 
 premises, but he is not required to put a new roof on a ruin- 
 ous building. '"' An express covenant on the part of the 
 lessee to keep a house in repair, and leave it in as good a 
 plight as it was when the lease was made, does not bind him 
 to repair the ordinary and natural decay.'" And it has been 
 held that such an agreement does not bind him to rebuild a 
 house which has been destroyed by a public enemy in time 
 of war. "° 
 
 § 133. Assignment and subletting. A lessee has a right, 
 unless restrained by covenant, to assign his lease or to under- 
 let.'" Leases, therefore, frequently contain covenants on 
 the part of the lessee not to assign or underlet without the 
 written consent of the lessor ; but this restriction is not 
 favored, and the courts are inclined to a strict construction 
 of it, and nothing short of an actual and voluntary transfer 
 of the lessee's interest will ordinarily be considered a breach 
 of the covenant against assignment.'" 
 
 "»Gay V. Joplyn, 13 Fed. Rep. "» 2 Esp. N. P. C. 590. 
 
 650. ■«» Woodf. L. & T. 256. 
 
 '" Mumford v. Brown, 6 Cow. ™ i Dall. 210. 
 
 476; Perez v. Raybaud, 76 Tex. 191. "' Church v. Brown, 15 Ves. 264. 
 
 ■«' Elliott V. Aikin, 45 N. H. 36 ; '« McNeil v. Kendall, 129 Mass. 
 
 Wells V. Castles, 3 Gray, 323; Gib- 245; Hargrave v. King, 5 Ired. Eq. 
 
 sonv. Eller, 13 Ind. 128. 430; Collins v. Hasbrouck, 56 N. 
 
278 REAL PROPERTY. 
 
 An assignment of a term is the transfer of the whole estate 
 of the tenant therein to a third person, and differs from a 
 lease in this : That by the latter the lessor grants an interest 
 less than his own, reserving to himself a reversion, but by 
 an assignment he parts with the whole property.'" And so 
 it is said in Brown on the Statute of Frauds, sec. 411, speak- 
 ing of the English Statute of Frauds of 29 Car. II: "If the 
 statute were entirely silent as to assignments, they could not 
 in reason be made verbally of such terms as require a writ- 
 ing to create them ; for if, as is clear, the statute against cre- 
 ating a parol lease applies to those which are carved out of a 
 term as well as out of the inheritance, it cannot be that a 
 termor can assign his whole interest verbally when he could 
 not underlet a part of it without writing. ""* In Briles v. Pace, 
 35 N. C. 279, the question was whether under statutes of 
 North Carolina prohibiting leasing, subject to certain restric- 
 tions, unless in writing, verbal assignments of terms, subject 
 to like restrictions, were prohibited, and it was held that they 
 were; the court, among other things saying: "It is next to 
 be observed that the creation of a term by the owner of the 
 inheritance of a greater duration than three years, and the 
 transfer of such a term by contract, stands precisely on the 
 same reason as to the danger of fraud and perjury in claim- 
 ing under them. Therefore, it is natural that they should be 
 placed on the same footing in the statute ; and the act, as a 
 remedial one, should be construed as thus placing them, if 
 the words will allow it. The words in these statutes in truth, 
 embrace the transfer of terms, as well as the creation of them. 
 They are that all contracts to sell or convey land, and any 
 interest in or concerning it, shall, with one exception, be 
 void, unless in writing. Now, a term for years is not only 
 an interest, but it is an estate in land ; and therefore a con- 
 tract to assign a term is a contract to sell and convey land. 
 Besides, it is a mistake to suppose that the statute, in respect 
 to the creation of terms, embraces only those created imme- 
 
 Y. (II Sick.) 157, 15 Am. Rep. 407; sec. 426 ; Sexton v. Chicago Storage 
 
 Moore v. Pitts, 53 N. Y. (8 Sick.) Co., 129 HI. 318. 
 
 85; Dunlap V. BuUard, 131 Mass. '"See to like effect also Reed, 
 
 161. Stat. Fr. sec. 766. 
 '" Taylor, Land. & Ten. (2d ed.) 
 
ESTATES FOR YEARS. 279 
 
 diately out of the inheritance ; for it speaks of all contracts 
 for lands, which includes, of course, all leases created in any 
 manner, other than those of three years or under, which are 
 expressly excepted. Therefore, if a termor underlets the 
 premises, or a part of them, for part of the term, so as to 
 leave a reversion in himself, that is a new term created out 
 of the former, and is within the words of the act ; and, if it 
 be for more than three years, it must clearly be in writing. 
 The inference, then, seems irresistible that such a long 
 termor cannot assign without writing, for it would impute an 
 absurdity to the Legislature to suppose a writing indispensa- 
 ble for a termor to pass a part of his estate, while he is 
 allowed to pass the whole by an assignment by word of 
 , mouth." In Potter v. Arnold, 15 R. I. 350 ; 2 New Eng. Rep. 
 621, the Supreme Court of Rhode Island holds that an oral 
 assignment of a term is prohibited by language in their stat- 
 ute which prohibits the sale of "lands, tenements and heredi- 
 taments, and the rights thereto and interests therein, ' ' unless 
 in writing. 
 
 When a lease is assigned, and the assignee enters under it, 
 he becomes tenant of the lessor ; he is bound by all the cove- 
 nants of the lease which are not personal to the lessee and he 
 is liable to the lessor for all rents which accrue while he 
 holds the estate. If there is no express covenant for the 
 payment of rent, contained in the lease, then the covenant 
 implied from the reservation of rent binds the lessee, and 
 runs with the land so as to bind the assignee also. '" The obli- 
 gation of the assignee is implied by law from his acceptance of 
 the assignment, and his entering upon the enjoyment of the 
 estate."" 
 
 It is not necessary for the lessor to formally recognize the 
 assignee as his tenant otherwise than by his suit for the rent.'" 
 
 An assignment creates no new estate, but transfers an ex- 
 isting estate into new hands. An under lease creates a per- 
 fectly new estate. '" 
 
 "'Croade v. Ingraham, 13 Pick. '" Sanders v. Partridge, 108 Mass. 
 
 33; Blake v. Sanderson, i Gray, 556. 
 
 332; Smith, Land. & Ten. 587; 1 '"Id. 
 
 Wash. Real. Prop. 326; 4 Blyther- '"Comyn on L. & T. 51, 52. 
 wood. Conveyancing, 388. 
 
28o REAL PROPERTY. 
 
 Surrender may be implied from acts inconsistent with the 
 continuance of the tenancy, and it may be by express agree- 
 ment. '"■ And it will follow as an obvious corroUary, that the 
 acts and statements of the landlord himself may furnish con- 
 clusive evidence of the acceptance of the surrender."" The 
 recovery by an action by the landlord should be for the rent 
 accrued less the amount received from the new tenant, in 
 case the landlord does not accept the surrender but after the 
 vacancy occurs, leases to another. 
 
 Notice to quit. Unless changed by statutory provision, 
 six months' notice is required to terminate an estate from 
 year to year.'" In some States three months is the period 
 assigned. 
 
 Where a tenant, under a lease containing no restrictions 
 upon subletting, sublets a portion of the premises and sub- 
 sequently, without the knowledge or assent of the sub-tenant, 
 surrenders his term to the owners, such surrender and the 
 consequent merger of the greater and lesser interest, termi- 
 nate the original lease and the term created thereby as be- 
 tween the parties to the lease and the surrender. But the 
 interests and the terms of the sub-tenant continue as if no 
 surrender had been made. The surrenderees and owners in 
 fee become his immediate landlords, with only such rights as 
 his lessor would have had to the possession of the premises 
 before the expiration of the term.'" 
 
 In a case decided by the Supreme Court of the State of 
 New York, the lease and counterpart contained a provision 
 not "be let or underlet without the written consent of the 
 landlord, under the penalty of forfeiture and damages. ' ' In 
 the counterpart signed by the lessee, he ' ' engages not to let 
 or underlet the whole or any part of said premises without 
 the written consent of the landlord, under the penalty of for- 
 feiture and damages." It was contended by counsel that 
 these words did not make a condition, the breach of which 
 would terminate the lease. The court, however, construed 
 
 '"Enyeart v. Davis, 17 Neb. 224; '" Den v. Drake, 14 N. J. L. 523; 
 
 Donkersley v. Levy, 38 Mich. 54. Browa v. Keyser, 60 Wis i. 
 
 "» Welcome v. Hess, 90 Cal. 507 ; '** Eton v. Luyster, 60 N. Y. 252; 
 
 Witman v. Watry, 31 Wis. 638; Krider v. Ramsay, 79 N. C. 354; 
 
 Auer v. Penn, 99 Pa. St. 370. Martindale on Conveyancing, 333. 
 
ESTATES FOR YEARS. 28 1 
 
 tlie word "forfeiture," to mean forfeiture of the term and 
 estate. Emott, J., who delivered the opinion of the court, 
 after giving the construction as above, said: "There is no 
 other sensible meaning which can be attached to it, and, 
 while courts will construe strictly clauses which create con- 
 ditions and go to defeat estates, that does not mean that we 
 have a right to disregard the obvious intentions of parties, or 
 the reasonable use of their words, in such an instrument as 
 this, although they may be inartificially expressed.""'' 
 
 A tenant is said to attorn when he agrees to become the 
 tenant of the person to whom the reversion has been 
 granted. 
 
 "A Distinction Noted." 
 
 a. The difference between assignment and subletting. The dis- 
 tinction is admirably pointed out by Judge Rapallo in Stewart 
 V. Long Island R. R. Co., 102 N. Y. 601. When the lessee assigns 
 his whole estate, without reserving any reversion therein to 
 himself, a privity of estate is at once created between his 
 assignee and his original lessor, and the latter has a right of 
 action against the assignee on the covenant to pay rent, or 
 any other covenant in the lease, which runs with the land. 
 But if the lessee sublets the premises, reserving or retaining 
 any such reversion in, himself, however small, the privity of 
 the estate is not established, and the original landlord has no 
 right of action against the sub-lessee, there being neither 
 privity of contract or of estate between them.'" The charac- 
 teristic difference between an assignment of his lease and an 
 underletting by the original tenant resides in the inquiry, 
 has the primary lessee transferred his whole and entire estate 
 and completely parted with his title, or has he retained in 
 himself some fragment or shred of his estate, either sub- 
 stantial or even formal or technical. ""' 
 
 The rule we have suggested is the doctrine of all the text 
 writers, supported by the great weight of authority, and by 
 the later and best considered cases. In i Wood, Land & Ten. , 
 
 '*' Lynde v. Hugh, 27 Barb. R. '*= But see Collins v. Hasbrouck, 
 415,420, 421. 56 N. Y. 157. 
 
 "* Taylor, Land. & Ten. 109; see 
 Ganson v. TifiEt, 71 N. Y. 48. 
 
282 REAL PROPERTY. 
 
 Am. ed. sec. 258, it is said: "An assignment, as contradistin- 
 guished from a sub-lease, signifies a parting with the whole 
 term ; and whenever the whole term is made over by the 
 lessee, although in the deed by which that is done the rent 
 and a power of re-entry for non-payment are reserved to 
 himself, yet the instrument amounts to an assignment, and 
 not a sub-lease ; and in such case the person to whom it is 
 made over may sue the original lessor or his assigns of the 
 reversion, or be sued by them, as assignee of the term on the 
 respective covenants in the original lease, which run with 
 the land, even though new covenants are introduced into 
 the assignment." So, on page 124, a "lease" is defined to be 
 a conveyance by way of demise, always for a less term than 
 the party conveying has in the premises. "" 
 
 Mr. Taylor says : " It is essential to a lease that some rever- 
 sionary interest be left in the lessor, for, if by an instrument 
 purporting to be a demise, he parts with his whole term, it 
 will amount to an assignment of the term. ' ' This results by 
 operation of law, without regard to the particular form of the 
 instrument. The doctrine that reservation of rent, or a 
 right of re-entry, is to be construed as a sufficient reversion, 
 is declared by the last-named writer to be contrary to settled 
 authority. And the rule is summed up by Mr. Wood, vol. 
 I, p. 179, note, as follows: "The weight of authority sup- 
 ports the rule that, in order to create a lease instead of an 
 assignment, there must be a reservation of a reversion in the 
 lessor, and that no form of an instrument can dispense with 
 this requisite. A mere reservation of rent, or a right of re- 
 entry for a breach of any of the conditions of the lease, will 
 not change the legal relations of the parties * * * and 
 the introduction of covenants into the instrument does not 
 change the legal effect of giving up the reversion."'" It is 
 also well settled that the same instrument may in law create 
 an assignment of the term, as between the original lessor 
 and the assignee, and also the relation of landlord and tenant 
 between the parties to the second demise.'" But this is the 
 
 "'Taylor, Land. & Ten. sec. 16; "* Stewart v. Long Island R. Co. 
 
 I Wood, Land. & Ten. sec. 327. 102 N. Y. 608, 4 Cent. Rep. 115, and 
 
 187 Woodhull V. Rosenthal, 61 N. cases. 
 Y. 382. 
 
ESTATES FOR YEARS. 283 
 
 result of contract only, and not conclusive on the original 
 lessor, who comes into privity of estate by reason of the grant 
 or assignment of the whole term. "" 
 
 This distinction seems to be lost sjight of in some of the 
 cases. In others it is held that the introduction of a surren- 
 der clause determines the character of the instrument, and 
 implies a reservation. But no such effect can be given to a 
 covenant which only becomes operative, as in this case, after 
 the expiration of the term. "° So the right of re-entry is not 
 an estate or interest in land, nor does it imply a reservation 
 of a reversion. It is a mere chose in action. When enforced, 
 the grantor is in through the breach of the condition, and not 
 by the reverter. '"' 
 
 In the case last cited the subject is fully considered, and the 
 authorities, including those in New York and Massachusetts, 
 carefully reviewed and distinguished. 
 
 §134. Termination of leases — how effected. In contem- 
 plation of law a state of things once shown to exist is pre- 
 sumed to continue till the contrary is shown.'" This pre- 
 sumption will be indulged with reference to a tenancy'" 
 And where it is once shown that the tenancy exists, the pre- 
 sumption of continuance follows so long as the tenant remains 
 in possession. Generally the terms of tenancy are fixed by 
 express agreement. In such case it terminates without de- 
 mand or notice on the expiration of the term designated. 
 Or, specifically, it expires by limitation upon the last mo- 
 ment of the anniversary of the day from which the tenant 
 was to hold in the last year of his tenancy.'" In a lease for 
 the life of a third person the lease terminates upon the death 
 
 "' Sexton V. Chicago Storage Co. Prior, 12 Mo. 307 ; Eames v. Eames, 
 
 129 111. 327, and cases. 41 N. H. 177 ; Garner v. Green, 8 
 
 "° Stewart v. Long Island R. Co. Ala. 96 ; Hood v. Hood, 2 Grant 
 
 supra; Blumenberg v. Myres, 32 Cas. 229; Gould v. Norfolk Lead 
 
 Cal. 95, 91 Am. Dec. 560 ; Schilling Co. 9 Cush. 338 ; Montgomery Plank 
 
 V. Holmes, 23 Cal. 230. Road Co. v. Webb, 27 Ala. 618. 
 
 '" Tiedeman, Real Prop. sec. 277 ; "^ Keane v. Cannovan, 21 Cal. 
 
 Sexton v. Chicago Storage Co. 129 291. 
 
 III. 332- ""Chesley V. Welch, 37 Me. 106; 
 
 '*■ I Rice, Ev. 66, citing Kidder v. Bedford v. McElherron, 2 S. <fe R. 
 
 Stevens, 60 Cal. 416; Mullen v. 49; Rich v. Reiser, 54 Pa. St. 86. 
 
284 REAL PROPERTY. 
 
 of such person, and similarly the expiration of any period for 
 which a tenancy is created will terminate it, and so will the 
 happening of any event upon which the life of the tenancy 
 is dependent.'" 
 
 a. Destruction of premises by fire. The total destruction of 
 the premises leased, is generally held to put an end to the 
 lease.'" Especially where there is no covenant to repair, or 
 the landlord having covenanted to repair or rebuild, refuses 
 to do so.'" 
 
 Where the landlord is bound to keep the premises in ten- 
 antable repair, his failure to do so has also been held to ter- 
 minate the lease'" but not where their defective condition is 
 chargeable to the tenant's own neglect of duty.'"' 
 
 Destruction by fire does not oblige the landlord to rebuild. 
 Under the old common law abominations, the tenant was 
 still liable for rent. But under modern statutory regula- 
 tions, this and other hardships have been swept away, and in 
 most instances he may exercise a right of election — either 
 remain in possession or vacate. In the absence of a right to 
 re-enter and build, the landlord cannot take possession to the 
 exclusion of the tenant and against his will. But while this 
 is true, slight evidence will raise the presumption that the 
 tenant had consented to the re-entry of the landlord for the 
 purpose of reconstruction."" 
 
 It has been held that if the thing leased is totally 
 destroyed, as where the lease is of particular apartments in a 
 building which is destroyed by fire, the lessee having no 
 interest in the land, the lease will perish with the subject- 
 matter."' A demise of the basement rooms of a building of 
 several stories in height, without any stipulation by lessor or 
 
 '" Livingston v. Tanner, 14 N. Y. "* Coleman v. Haight, 14 La. Ann. 
 
 64; Hamit v. Lawrence, 2 A. K. 564. 
 
 Marsh, 368 ; Logan v. Herron, 8 S. '" Suydam v. Jackson, 54 N. Y. 
 
 & R. 459. (9 Sick.) 450 ; Johnson v. Oppen- 
 
 "' Winton V.Cornish, 5 Ohio, 477; heim, 55 Id. (10 Sick.) 280. 
 
 Stockwell v. Hunter, 1 1 Mete. 448. ^o" Smith v. Kerr, iq8 N. Y. 31; 
 
 "' Ainsworth v. Ritt, 38 Cal. 89 ; Weed's Land. & Ten. 
 
 McMillan V. Solomon, 42 Ala. 356; ™' Graves v. Berdan, 26N. Y. 498; 
 
 Fowler v. Payne, 49 Miss. 32; Kerr v. Merchants' Exchange, 3 
 
 Graves v. Berdan, 26 N. Y. (12 Edw. Ch. (N. Y.) 315. 
 Smith) 498. 
 
ESTATES FOR YEARS. 285 
 
 lessee for rebuilding in case of fire or other casualty, gives 
 the lessee no interest in the land, though he pays all the 
 rent in advance ; and if the whole building is destroyed by 
 fire, his interest in the rooms is terminated""" and he cannot 
 cover over the cellar and use it, though his lease has not ex- 
 pired by several years."" By statute in New York, Connec- 
 ticut, Ohio and Minnessota, destruction of premises allows 
 tenant to quit and surrender."" 
 
 A lease of rooms in a building, in which other rooms are 
 leased to different tenants, gives the lessee no interest in the 
 land, and is terminated by the total destruction of the prem- 
 ises by fire. This rule proceeds upon the principle that the 
 room is the thing leased and the destruction of the premises 
 necessarily terminates the lessee's interest therein."" 
 
 In the presence of direct stipulations, frequently found in 
 modern leases, by which the lessor agrees in effect that in 
 the event of fire he will, within a reasonable period there- 
 after, repair or rebuild the premises demised, the rule above 
 outlined vanishes, and where it is evident on a full considera- 
 tion of the entire lease that an interest in the land itself was 
 included in the terms of letting, we find ourselves in the 
 presence of another rule ; in both such cases there may be an 
 abatement of some equitable portion of the rent during the 
 rehabilitation of the building, but the liability for rental 
 value reasserts itself immediately when the tenement is 
 restored to its former condition."" 
 
 As applied to a lease, the doctrine of the law is, when it is 
 not the intention to grant any interest in the land further 
 than is necessary for the enjoyment of the room leased, that 
 when such room is destroyed there in nothing upon which 
 the demise can operate, and that the lease terminates with 
 the destruction of the thing leased."" The application of this 
 doctrine is well illustrated in the case of Stockwell v. Hunter, 
 
 '™Stockwell V. Hunter, ii Mete. 89; Graves v. Berdan, 26 N. Y.498; 
 
 448. McMillan v. Solomon, 42 Ala. 356. 
 
 ™Winton v. Cornish, 5 Ohio, '»« Shawmut National Bank v. 
 
 477. Boston, 118 Mass. 125. 
 
 "" Stimson's Am. Stat. sec. 2062 ; ™' Harrington v. Watson, 1 1 Or. 
 
 Martindale on Conveyancing, 352. 143. 
 
 "= See Ainsworth v. Ritt, 38 Cal. 
 
286 REAL PROPERTY. 
 
 1 1 Met. 448, in wliich this question was carefully considered. 
 In that case the lessor of a three-story building leased the 
 cellar or basement to a tenant for five years, and the other 
 stories to other tenants ; but the lease contained no stipula- 
 tion as to rebuilding in case of fire, and it was held that the 
 destruction of the building terminated the lessee's rights in 
 the premises. It was put upon the ground that such lease of 
 distinct rooms or apartments do not carry any interest in the 
 land beyond that connected with the enjoyment of the par- 
 ticular room, that the room was the thing leased, and that the 
 destruction of the thing leased necessarily terminated the 
 lessee's interest therein. The real question in all such cases, 
 is whether the intention of the parties collected from the 
 whole instrument, was to grant any estate in the land. 
 
 Frequently at the instigation of the lessor a stipulation is 
 inserted in the lease to the effect that the lessee shall pay a 
 certain definite sum named as rent, and also all taxes which 
 may be assessed upon the property during the continuance 
 of the term. A further stipulation is usually found by which 
 the lessor is allowed a reasonable time in which to rebuild 
 the premises should they be destroyed by fire, and in the lat- 
 ter event it is further provided that there shall be a suspen- 
 sion of rent during such period. Under such a condition of 
 things the taxes are still to be paid by the lessee even when 
 levied during the expulsion of the tenants by the happening 
 of a fire or other casualty.^"' 
 
 The courts are not at liberty to alter the agreement of the 
 parties on the mere suggestion that the logic of events has 
 interposed a hardship. 
 
 A clause in a lease, excluding the liability of the tenant 
 to restore the house in case of fire, does not relieve him from 
 paying rent m case of destruction by fire.""' A lessee who 
 covenants to restore the premises at the end of the term "in 
 as good order and condition, reasonable use and wearing 
 thereof, fire and other unavoidable casualties excepted, as 
 the same now are or may be put into by the lessor, ' ' and to 
 pay rent during the term, is not excused from paying rent 
 by the undermining of the partition-wall by the owner of 
 
 •*Minot V. Joy, 118 Mass. 308 ="" Beach v. Parish, 4 Cal. 339. 
 
ESTATES FOR YEARS. 287 
 
 land adjoining, while building upon his own premises, after 
 his notice to the lessor of his intention to build, and the 
 lessor's omission to support the wall; even if, by the custom 
 of the place, the landlord is bound to support and secure his 
 foundations and walls in such cases."'" 
 
 So, if the lessor covenant to repair, the covenant runs with 
 the land, and the assignee of the reversion will be bound to 
 repair."" 
 
 b. By efflux of time, or the happening of a particular event. It 
 is well said by Mr. Adams, that the power of determining a 
 tenancy is necessarily consequent upon the right of creating 
 one ; and the law implies a mutual reservation of such power 
 in all contracts between landlords and tenants, whenever it 
 is not expressly reserved. Whenever such power is ex- 
 pressly reserved, the determination of the tenancy is, of 
 course, dependent upon the terms of the reservation ; and the 
 tenancy will cease when the term ends, the event happens, 
 or the covenants are broken ; but if there is no express reser- 
 vation, but the party is let into possession as tenant under a 
 general holding, the law creates between the parties a ten- 
 ancy from year to year, determinable by a notice to quit from 
 either, by the landlord or tenant. This is the rule, in brief, 
 as stated by Mr. Adams, and it cannot be any better ex- 
 pressed."'" 
 
 The tenant's liability for rent is in no way affected by 
 merely vacating the premises and surrendering the key. If 
 the landlord refuses to accept the surrender, the fact that he 
 has accepted the key and placarded the premises for rent will 
 in no way interfere with the lessee's liability for the rent, 
 and the lessor's right to hold him for it."" To effectuate a 
 legal surrender the tenant's renunciation of the premises 
 must be accepted by the landlord."" There must be no quali- 
 fication or reservation of a right to sue for the loss occa- 
 sioned by being compelled to let the premises at a reduced 
 
 ""Kramerv. Cook, 7 Gray (Mass.), '"'Auer v. Penn, 99 Pa. St. 370; 
 
 550. Tolle V. Orth, 75 Ind. 298; Thomas 
 
 "'Allen V. Culver, 3 Denio's R. v. Nelson, 69 N. Y. ti8. 
 
 285. '"* Milling V. Becker, 96 Pa. St. 
 
 '"Adams on Eject. 73. 182. See Auer v. Penn, supra. 
 
288 REAL PROPERTY. 
 
 figure."" But there is authority for holding that the re-entry 
 of the landlord upon the abandoned premises, coupled with 
 other acts, may imply an acceptance of the surrender when 
 other affirmative acts of acceptance clearly appear. The 
 whole question is shrouded in more or less obscurity. That 
 acceptance of the surrender is a forfeiture of all future right 
 to the recompense of rent is elementary."" The dubiety lies 
 in determining what specific acts constitute acceptance. 
 Ordinary precaution would induce the landlord to take the 
 key. Good business principles would suggest his leasing the 
 premises. Such acts taken together cannot fairly import an 
 intention to release the tenant from his obligations under 
 the contract. It would seem from the case last cited that in 
 order to hold, the landlord should promptly notify him to 
 that effect. Certainly that is the better course. The case of 
 Bowen v. Clark, 22 Oreg. 566, would seem to sustain this 
 view. At all events it is a precautionary suggestion. 
 
 Nothing is better settled in Pennsylvania than that a ten- 
 ant for years cannot relieve himself from his liability under 
 his covenant to pay rent by vacating the demised premises 
 during the term, and sending the key to his landlord. The 
 reason for it is that in the absence of fraud, one party to a 
 contract cannot rescind it at pleasure. And the landlord 
 may accept the keys, take possession, put a bill on the house 
 for rent, and at the same time apprise his tenant that he still 
 holds him liable for the rent. All this, as was said by Mr. 
 Justice Rogers in Marseilles v. Kerr, 6 Whart. 500, is for the 
 benefit of the tenant, and is not intended, nor can it have the 
 effect, to put an end to the contract and discharge him from 
 rent. A surrender, a release, or an eviction will undoubtedly 
 relieve a tenant, and it was said by Chief Justice Gibson, in 
 Fisher v. Millike7i, 8 Barr. 1 1 1 , that nothing less would do so. 
 This remark, however, was without the authority of the 
 court, and must be regarded as dictum. The case in hand 
 does not require us to assert so broad a propositipn. There 
 was neither a release nor an eviction here, but the surety 
 claimed to be discharged because after the tenant, who was 
 
 "5 Randall v. Rich, ii Mass. 494; "^ Underbill v. Collins, 132 N. Y. 
 
 Deane v. Caldwell, 127 Mass. 242. 269 ; Welcome v. Hess, 90 Cal. 507- 
 
ESTATES FOR YEARS. 289 
 
 his principal, sent the keys to the landlord, the latter leased 
 the property to another tenant. Yet there is no pretense 
 that the landlord accepted a surrender ; on the contrary, the 
 proof is clear that he declined to do so, and notified the de- 
 fendant below that he would hold him for the rent. This 
 notice was repeated on more than one occasion when he was 
 about to lease the property to another tenant. Yet it was 
 urged by the defendant below that such subsequent leasing 
 by the landlord, and the acceptance of rent from the tenant, 
 raised a presumption of a surrender. A surrender of demised 
 premises by the tenant during the term, to be effectual, must 
 be accepted by the lessor. The burden of proof is upon the 
 tenant to show such acceptance. He sets it up to relieve 
 himself from his covenant, and must prove it. When, there- 
 fore, the lessor retains the keys, and at the same time noti- 
 fies the lessee that he will hold him for rent, there is no room 
 for the presumption of a surrender. Nor does the renting 
 of the premises to another tenant under such circumstances 
 raise such presumption, for the reason that it is manifestly 
 to the lessee's interest that they should be occupied. The 
 landlord may allow the property to stand idle, and hold the 
 tenant for the entire rent ; or he may lease it and hold him 
 for the difference, if any. It was said in Breuckmann v. Twi- 
 bill, 8 Norris, 58, that "taking possession, repairing, adver- 
 tising the house to rent, are all acts in the interest and for 
 the benefit of the tenant and do not discharge him from his 
 covenant to pay rent." Much more is it to the interest of 
 the tenant for the landlord to rent the premises. If at the 
 same rent, the tenant is entirely relieved; if at less, he is 
 liable only for the difference."' 
 
 In the case of tenancies from year to year resulting from a 
 parol lease void under the statute of frauds, the landlord has 
 the right, in any year of the occupancy, to terminate the 
 tenancy on the last day of the rental year by giving due 
 formal notice to that effect.'" Where the lease itself fixes 
 the period of its termination, notice to quit is unnecessary."" 
 So, the lessee of an estate for years, holding over, is entitled 
 
 »" Auer V. Penn, Pa. 1882. (Re- 180; Laughram v. Smith, 75 N. Y. 
 ported 99 Pa. 370.) 205. 
 
 '"Reeder v. Sayre, 70 N. Y. 219. Rich v. Keyser, 54 Pa. St. 86. 
 
 19 
 
290 REAL PROPERTY. 
 
 to notice."" But he forfeits his right to notice by denying 
 the landlord's title. In such case the law regards the estate 
 as terminated."' The subject is largely regulated by statute, 
 but in all cases of uncertain tenancies notice to quit is neces- 
 sary. And where the tenancy is for regular recurring 
 periods, as from month to month, thirty days' notice is 
 required. Generally it may be said that all parties are en- 
 titled to notice to quit before they can be sued in ejectment.'" 
 How far a notice to quit is necessary before an action of 
 ejectment can be brought has been much discussed in Eng- 
 land. In this country the authorities are not uniform. In 
 some of the States the subject is regulated by statute law, or 
 by rules of court. In New York the question has been fully 
 considered. The courts of that State hold that where there 
 is a contract of purchase and the vendee enters into posses- 
 sion with the consent of the vendor, that ejectment will 
 lie at the suit of the vendor without a previous notice to 
 quit."" 
 
 Notice to quit is generally necessary where the relation of 
 landlord and tenant exists, and no definite period is fixed for 
 the termination of the estate, but where a lease is to expire 
 at a certain time, a notice to quit is not necessary in order to 
 recover in ejectment, because to hold over would be wrong 
 after the duration of the estate was fixed and well known to 
 lessor and lessee."' It is well to remember that a tenancy 
 may be determined in three ways: i, By efflux of time, or 
 the happening of a particular event ; 2, By notice to quit ; 
 and 3, By a breach on the part of the tenant of any of the 
 conditions of his tenancy, as non-payment of rent, or non- 
 performance of covenants. 
 
 Upon the death of a tenant, the lease vests in his executor 
 or administrator."' It vests for the usual purposes to which 
 
 ™Comm. V. Knarr, 135 Pa. St. '''Smith v. Stewart, 6 Johns. 46; 
 
 35. Jackson v. Miller, 7 Cow. 747 ; 
 
 "' Tobin V. Young, 124 Ind. 507. Whiteside v. Jackson, i Wend. 
 
 '"Maynard v. Cable, i Wright, 418; Jackson v. Moncrief, 5 Wend. 
 
 18; Jackson v. Miller, 7 Cow. 751 ; 26. 
 
 Taylor v. McCracken, 2 Blackf. ™ Gregg v. Von Phul, i Wall. 274. 
 
 264; Jackson v. Niven, 10 Johns. "^ James v. Dean, 15 Ves. Jr. 241; 
 
 335. Doe V. Porter, 3 T. R 13. 
 
ESTATES FOR YEARS. 29 1 
 
 testator's assets are applied, and the legatee has no right to 
 enter -without the executor's special assent."" 
 
 Although he does not enter into possession of the premises 
 he may be sued as assignee of the lease, for the rents, subse- 
 quent to the death of the lessee."" 
 
 Rent accruing after lessor's death, is a chattel real, and 
 descends to the heir, and does not go to the executor."' 
 
 c. Merger. The doctrine of merger has been previously ex- 
 amined. Its principles are applicable to estates for years 
 and wherever rights under a lease become vested in a tenant 
 and that tenant subsequently acquires the fee of the prop- 
 erty, the lease is drowned or merged into the greater estate. 
 The personality of the tenant has disappeared. Merger is not 
 favored and will only be allowed to operate where it is 
 plainly equitable that it should."" 
 
 d. By condemnation of the property under eminent domain. 
 Parks V. Boston, 15 Pick. 198, is an interesting case on the 
 question. It was there held: "Where part of a lot of land 
 under lease is taken by the mayor and aldermen of Boston 
 for the purpose of widening a street, the lease is not thereby 
 extinguished ; nor is the lessee discharged from his liability 
 to pay the reserved rent during the residue of the term, but 
 the lessor and lessee are each entitled to recover compensa- 
 tion for the damage so sustained by them respectively." 
 The same principle was announced in an earlier case, Ellis v. 
 Welch, 6 Mass. 246 and in a later case, Patterson v. Boston, 20 
 Pick. 159. In Foote v. Cincinnati, 11 Ohio, 408, where the 
 leased premises had been appropriated for a street, the 
 Supreme Court held that the lessee was not released from the 
 payment of rent, but he was entitled to recover from the city 
 for the damages sustained.""" 
 
 Under the authorities, it seems that a tenant, where a por- 
 tion of the leased premises is taken under the power of emi- 
 nent domain for the use of the public, cannot, as against his 
 
 "' I Wms. Exrs. 60. ''^ See also the following cases, 
 
 "' Wollaston v. Hakewell, 3 Man. where the same principle is main- 
 
 & C. 297. tained : Wrokman v. Miffin, 30 
 
 "'Green v. Massie, 13 111. 363. Pa. 362; Frost v. Earnest, 4 Whart. 
 
 "• Gardner v. Astor, 3 Johns. Ch. 86 ; Chicago v. Garrity, 7 111. App. 
 
 S3- 474- 
 
292 
 
 REAL PROPERTY. 
 
 landlord, claim an eviction, and be released from the pay- 
 ment of rent ; and as his liability for payment of rent con- 
 tinues after a part of his term has been taken by the public, 
 and appropriated to public use, he would be entitled to 
 recover such damages as he sustained by the taking of his 
 leased property by the public. In other words, the lessee 
 takes and holds his term in the same manner as any other 
 owner of real property holds his title, subject to the right of 
 the public to take a part or the whole of it for public use at 
 such time as the public necessity may require, upon the pay- 
 ment of just compensation. In a proceeding to condemn 
 lands for a public purpose, it is not some particular interest 
 which the public seek to take, but the land itself. If A has 
 one estate in the land and B another, in the proceeding to 
 condemn, each is entitled to compensation for the land taken, 
 as his interest may appear in the property ; and, as said be- 
 fore, if one has a leasehold interest, he may recover damages 
 for such interest, and still be held liable for the payment of 
 rent, as that liability existed before the leasehold interest 
 was taken for public use. A different rule has been adopted 
 in some States, particularly in Missouri."' 
 
 In those cases it was held that, as to the part of the leased 
 premises appropriated to public use, the rent was extin- 
 guished and no liability existed against the lessee for such 
 rents. But the weight of authority is the other way. 
 
 e. Surrender and forfeiture. Surrender imports the yielding 
 up of an estate for life or for years to him who has the imme- 
 diate reversion or remainder. Whereupon the particular 
 estate may become extinct by mutual agreement between 
 them.""" It may be effected by the use of clear, definite 
 expressions to that effect ; or, it may be effected by operation 
 of law, when the parties act in a manner implying an agree- 
 ment to consider a surrender as made."' It is said to differ 
 from a release in this : a surrender occurs where a less estate 
 falls into a greater, while a release operates by forcing the 
 greater estate upon the less. 
 
 Where, by mutual agreement between the lessee and lessor, 
 
 "1 Biddle v. Hussman, 23 Mo. '''' Co. Litt. 337. 
 
 597; Barclay v. Pickles, 38 Mo. '^' Livingston v. Potts, 16 Johns. 
 143. 28. 
 
ESTATES FOR YEARS. 293 
 
 the former abandons his possession and the lessor resumes 
 possession of the premises, there is a surrender by operation 
 of law, so the lease may be surrendered by the delivery and 
 acceptance of the key and the subsequent letting of the house 
 during the term to another tenant, although the surrender, 
 like other contracts affecting real property, should be in 
 ■writing. If the minds of the respective parties meet in the 
 common intent of relinquishing the relation of landlord and 
 tenant, this is all sufficient. In the English case of Grim- 
 man V. Legge, 8 B. & C. 324, the tenant notified the landlord 
 that he should quit, the latter said that he might do so. The 
 tenant removed his furniture, delivered his keys which were 
 accepted, and the lease was held to be terminated ; and where 
 the old lessee assents to a lease being granted to another, 
 and relinquishes his own possession to the new lessee, this 
 will operate as a due surrender in contemplation of law."* 
 
 A surrender of demised premises by the tenant and their 
 acceptance by the landlord will, without a written agree- 
 ment, terminate the tenancy."' 
 
 It is a well settled and reasonable rule of law that a tenant 
 for a certain term or for life who has underlet, has no right 
 to surrender his lease to the prejudice of the sub-tenant.'''' 
 And a tenant holding over under a provision for his continu- 
 ance from year to year cannot prejudice his sub-tenant or 
 under-tenant by a surrender of the premises to the landlord 
 before the expiration of the year. The sub-tenant becomes, 
 by implied attornment, the tenant of the original lessor."' 
 
 It is the duty of a tenant, as soon as his tenancy expires by 
 its own limitation, to peaceably and quietly surrender the 
 possession of the whole of the demised premises, together 
 with all buildings, fixtures and improvements belonging 
 thereto, to his landlord, or to some one authorized by him to 
 receive them. If he neglects or refuses so to do, even 
 
 '^ See the leading case of Thomas ''^^ See Touch. 301 ; Taylor, L. T. 
 
 V. Cook, 2 B. & Aid. 119, and par- in ; Adams v. Goddard, 48 Me. 
 
 ticularly Amory v. Kannoffsky, 212 ; Eten v. Luyster, 60 N. Y. 252; 
 
 117 Mass. 351; opinion by Endi- Brown v. Butler, 4 Phila. 71. 
 
 cott, J. 2" Hessel v. Johnson, Pa. 1888. 
 
 '" Hanham v. Sherman, 113 Mass. 
 19- 
 
294 REAL PROPERTY. 
 
 though he retains them but for a few days with the inten- 
 tion of removing, the landlord may treat him either as a tres- 
 passer, or as a tenant for another year or for a shorter term 
 of the same extent as that which has expired.""' 
 
 "Till within a comparatively recent period, it was con- 
 sidered that a tenant could not, in any sense, repudiate his 
 tenancy, even where it existed by parol merely, or from year 
 to year ; or that he could not do this without surrendering 
 or abandoning the preraises. But it is now settled otherwise 
 in this State, and in the United States Supreme Court. The 
 tenant, by distinct notice to his landlord that he will no 
 longer hold the premises under him, has been regarded here 
 as committing an absolute disseizin, and after that, as hold- 
 ing adverse to the landlord, and unless evicted before the 
 term of the Statute of Limitations expires, he will, by such 
 adverse possession, acquire title in his own right. In Wt/- 
 lison V. Watkins, 3 Peters, U. S. 48, Mr. Justice Baldwin says: 
 ' Had there been a formal lease for a term not then expired, 
 the lessee forfeited it by this act of hostility ; had it been a 
 lease at will, from year to year, he was entitled to no notice 
 to quit before ejectment. The landlord's action would be as 
 against a trespasser, as much so as if no relation had ever 
 existed between them. ' This case was professedly followed 
 in two cases in this State,™ and has been recognized in many 
 others. It is undoubtedly a new doctrine, and adopted here 
 from a regard to the difference in our land tenures, and in 
 our civil and social relations and institutions in many respects, 
 from those in England.""" 
 
 Much has been said by early English writers on the 
 subject of forfeiture. And such books abound with tedious 
 illustrations of this incident. The learning on this subject 
 is of little importance under the American law, as other 
 remedies may be invoked more in harmony with the inter- 
 ests of both parties.'" 
 
 i'^'Noel V. McCrory, 7 Coldw. ^o pg^ Redfield, C. J., in Sher- 
 
 {Tenn.)623; Schuyler v. Smith, 51 man v. Champlain Transp. Co., 31 
 
 N. Y. (6 Siclc.) 309; 10 Am. Rep. Vt. 162, 177 (1858). 
 
 609. »« See Delancey v. Ganong, 9 
 
 ""Greene v. Munson, 9 Vt. 37; N. Y. 19. 
 Hall V. Dewey, 10 Vt. 593. 
 
ESTATES FOR YEARS. 295 
 
 Forfeitures are to be strictly construed ; and when a lease 
 provides that it shall become forfeited, if any of the payments 
 provided for are not made, a whole payment is meant not a 
 balance on a running account. Wherefore, if a part of a pay- 
 ment be accepted before it is due, no forfeiture is incurred 
 by a failure to pay the remainder."" 
 
 Grounds for forfeiture. It may be assumed, with perfect 
 safety, that all leases, written or parol, contain covenants of 
 some kind. Even if they are not expressed the law implies 
 them ; but ordinarily they are set forth in extenso in the lease 
 itself, and if the lessee violates these conditions, the lease may 
 be terminated, and the landlord's right of re-entry accrues."" 
 The re-entry must be peaceable, or the landlord may 
 renounce the right of re-entry and bring an action of eject- 
 ment."" Forfeitures have never been favored either at law 
 or in equity."" The reason is obvious. For instance, the 
 lessee for a series of years may have paid his rent with rigid 
 punctuality. Through some inadvertence a monthly pay- 
 ment is overlooked. The covenants of his lease are broken. 
 The landlord asserts his right of re-entry and refuses to take 
 the rent even when tendered. What is the result? The ten- 
 ant has built up a prosperous business. The expense of 
 removal would be very great, and involve the utter prostra- 
 tion of the business for the time being. All this is inequit- 
 able. The landlord is presumptively satisfied with the stipu- 
 lated rent as a recompense for the property, or he would not 
 have accepted it in the first instance. And hence, he is 
 obliged to show technical precision in all of his attempts at 
 re-entry."" As covenants and conditions may cover almost 
 any phase of right, a forfeiture may be declared for the 
 breach of any condition the parties have seen fit to insert in 
 the lease. In the majority of instances, perhaps it may be 
 
 "' Westmoreland N. Gas Co. v. ''" Lewis v. City of St, Louis, 69 
 
 Dewitt, 130 Pa. St. 235. Mo. 595 ; Fulton v. Stewart, 2 Ohio, 
 
 "'Clark V. Jones, i Den. 516; 215; Fifty Associates v. Howland, 
 
 Walker v. Engler, 30 Mo. 130. ir Met. 99; Westmoreland & Cam- 
 
 '*" Van Rensselaer v. Ball, 19 bria Gas Co. v. DeWitt, 130 Pa. 
 
 N. Y. 100 ; Campbell V. Shipley, 41 St. 255; McNeil v. Kendall, 128 
 
 Aid. 8i. Mass. 745. 
 
 "'Jackson v. Topping, i Wend. 388. 
 
296 REAL PROPERTY. 
 
 said, that they involve the breach of some one of the follow- 
 ing covenants — failure to pay rent; to keep the premises 
 insured ; or to make repairs ; or to pay taxes duly assessed, or 
 by using the premises for some other purpose than that for 
 ■which they were leased. Frequently a forfeiture occurs 
 where the premises become a nuisance or used for an unlaw- 
 ful or immoral purpose. In many States forfeitures are 
 regulated by legislative enactment.^" The old common law 
 abounded in technicalities and niceties that it was a liberal 
 education to learn and a crime to forget, regarding this sub- 
 ject of re-entry on condition broken."" But much of this 
 nonsense has become obselete. and in many of the States 
 summary proceedings are in order, by which a landlord can 
 easily obtain possession wherever the tenant has clearly 
 broken the covenants of his lease. 
 
 The non-payment of the stipulated rent is not a ground of 
 forfeiture, unless the lease expressly makes it so."° In 
 order to enforce such a forfeiture, the common law required a 
 formal demand of the rent due to be first made, unless that 
 was waived by an express provision in the lease that it need 
 not be made, or that the landlord might re-enter if the rent 
 was in arrear for a specified time.'"" This formal demand was 
 required to be of the exact amount due for the last current 
 quarter or period, and must be made before sunset of the 
 day when it became due, and at the front door of the house 
 or the most notorious place on the demised premises ; or, if 
 any other place for payment was specified, at such place."" 
 The strict rules of the common law on this subject have been 
 greatly modified by various statutes, both in England and in 
 this country. 
 
 The general rule is that ' ' any act done by a landlord, know- 
 ing of a cause of forfeiture by his tenant, afhrming the exist- 
 
 "•'■' See generally on the subject of ^^^ Van Rensselaer v Jewett, 2 
 
 Forfeitures, Eberts v. Fisher, 54 N. Y. (2 Comst.) 144. 
 
 Mich. 294 ; Wheeler v. Earl, 59 ™ Doe d. Forster v. Wandlass, 7 
 
 Mass. 31 ; Speer v. Fuller, 8 N. H. Tenn. 117. 
 
 174; Becker v. Werner, 98 Pa. St. ^^ Co. Litt. 202, a; Jackson v. 
 
 555; Chapman v. Wright, 20 111. 120. Harrison, 17 Johns. 66 ; Connor v. 
 
 '*' See Jenkins v. Jenkins, 63 Ind. Bradley, i How. (U. S.) 211. 
 415. 
 
ESTATES FOR YEARS. 297 
 
 ence of the lease, and recognizing the lessee as his tenant, 
 is a waiver of such forfeiture.""" 
 
 An illegal use of demised premises has been held to work a 
 forfeiture."" 
 
 Voluntary waste works a forfeiture of a tenant at will. In 
 New York this forfeiture is confined to so much of the 
 premises as the waste was committed upon."" A provision 
 in a lease for a re-entry in case of the commission of waste is 
 generally construed to mean waste injurious to the reversion."^' 
 
 The most common cases of forfeiture are those which arise 
 upon breaches of conditions in leases, for which the landlord is 
 expressly authorized to re-enter. In these cases the landlord, 
 and he alone, has the option to terminate the tenancy, and 
 he can do so only by a re-entry."" 
 
 Courts in their solicitude to prevent an unconscionable ad- 
 vantage being taken by either party to an agreement, fre- 
 quently construe that which has all formalities of a condi- 
 tion — a breach of which forfeits the whole estate — into a 
 covenant upon which, under well recognized rules of law, 
 only the actual damage can be recovered. This is a most 
 effective remedy where grasping avarice seeks to enforce a 
 forfeiture for mere purposes of greed and extortion."" 
 
 I 135. Effect of holding over. The law is too well settled 
 to be disput;ed at this late day that where a tenant holds over 
 after the expiration of his term, the law will imply an agree- 
 ment to hold for a year upon the terms of the prior lease."" 
 It is sometimes claimed in all seriousness, that this implica- 
 tion of law may be rebutted and that the tenant did not 
 intend to hold upon the same terins — that in order to make 
 an agreement for another year there must be mutuality of 
 assent, etc. This might appeal strongly to judicial considera- 
 
 "' Webster v. Nichols, 104 III. "' Shattuck v. Lovejoy, 8 Gray, 
 
 160. 204. 
 
 '5'Machias Hotel Co. v. Fisher, ^" Avery v. N. Y. C. & H. R. R. 
 
 56 Me. 321. Co., 106 N. Y. 142; Hilliard on 
 
 '"London v. Greyme, Cro. Jac. R. P. 526. 
 
 182; Cole v. Green, i Levinz, 309; '■"^' Woodf. Land. & Ten. 218 > 
 
 Jackson v. Tibbitts, 3 Wend. 341. Bradley v. Covel, 4 Cow. 349; 
 
 '"Doe d. Darling-ton v. Bond, 5 Bacon v. Brown, 9. Comm. 334; 
 
 B. & C. 855 ; 8 D. & R. 738, Hunt v. Wolf, 2 Daily, 298. 
 
298 REAL PROPERTY. 
 
 tion. The general rule is of wide acceptance that it takes 
 two persons to make a contract. But this rule is not of uni- 
 versal application. We know of very few rules that are. 
 The law is sometimes an important factor in making con- 
 tracts for parties, and in this phase of a tenancy the law 
 interferes and peremptorily fastens upon the delinquent 
 character of the tenant for another term. He holds over at 
 his peril. If he were allowed to repudiate this relation he 
 might subject his landlord to infinite vexation by way of an 
 action in ejectment or of trespass, and seriously impair his 
 prospects of securing an eligible occupant for the ensuing 
 year. 
 
 The mere fact of holding over and continuing the usual 
 stipulated payment of rent raises a presumption that a ten- 
 ant has elected to hold over for the additional term provided 
 for in the leases. This, like most other presumptions, is 
 subject to rebuttal. But in the absence of the rebutting evi- 
 dence, it is sufficient to control the case and fasten upon the 
 parties the relation of landlord and tenant for the ensuing 
 term."' 
 
 An agreement to reduce the rent, made with a tenant 
 holding over after the expiration of a lease for one year, 
 under which the rent was payable monthly and after pay- 
 ment and acceptance of one additional month's rent is with- 
 out consideration and will not prevent recovery of the bal- 
 ance of the monthly rent specified in the lease, even after 
 several years further occupancy with payment at the reduced 
 rate. 
 
 In Parjk v. Castle, 19 How. Pr. 29, Mr. Justice Balcom 
 says : ' ' When a tenant for a year, or for one or more years, 
 holds over after the expiration of his term, without any ex- 
 press agreement, but with the assent of his landlord, the law 
 implies that he holds the premises for another year upon the 
 same terms." Willard in his work on Real Estate, p. 97, 
 cites the case of Conway ^. Starkwether, i Denio, 113, with 
 approval and as an authority for the doctrine therein enunci- 
 ated. And the learned editor of the eleventh edition of 
 Kent's Commentaries, vol. 4, p. 117, citing this case, in a 
 
 "'Atlantic Bank v. Demmon, 139 Mass. 420. 
 
ESTATES FOR YEARS. 299 
 
 note says: "If the landlord elects, as he may, to treat the 
 tenant as holding under the terms of the original lease, the 
 tenant cannot deny the tenancy." 
 
 After the expiration of a lease for a year, if the tenant 
 holds over, the law considers him responsible to his landlord 
 as on a hiring for another year, upon the same terms as 
 before."" 
 
 The legal presumption of a renewal from the nolding over 
 cannot be rebutted by proof of a contrary intention on the 
 part of the tenant alone. ^'' 
 
 Having once entered upon the term, it cannot be aban- 
 doned except at the end of the year or other term mentioned 
 in the lease.'" , 
 
 The rule which binds the landlord as well as the tenant is 
 thus stated in Smith, Landlord and Tenant, pp. 219-221 : 
 ' ' But, though at the end of the lease, if the tenant holds over 
 he holds over as tenant at sufferance, still, if when the period 
 for payment of rent comes, he pays to his landlord the rent 
 reserved by the expired lease, he becomes tenant from year 
 to year ; the payment of such rent by him, and the receipt 
 of it by his landlord being considered indicative of their 
 mutual intention to create a yearly tenancy ; the yearly ten- 
 ancy thus raised is governed, not by the simple rules which 
 govern yearly tenancies in the absence of express stipula- 
 tion, but by the provisions of the expired lease, so far as they 
 are consistent and compatible with a yearly holding. ' "" 
 
 § 136. Landlord's remedies on termination of lease. Forci- 
 ble entry and detainer as a remedy. — The statute of forcible 
 entry and detainer, not in terms, but by necessary construc- 
 
 ""' Hosmer, Ch. J., in Bacon v. Diller v. Roberts, 13 Serg. & R. 60; 
 
 Brown, supra. 1 5 Am. Dec. 578 ; Bacon v. Brown, 
 
 '"Clinton Wire Cloth Co v. 9 Conn. 334; Dorrill v. Stevens, 4 
 
 Gardner, 99 111. 151; Webster v. McCord, L. 59; De Young v. Bu- 
 
 Nichols, 104 111. 160. chanan, 10 Gill & J. 149, 32 Am. 
 
 «» McKinney V. Peck, 28 111. 174. Dec. 156; Phillips v. Monges, 4 
 
 ««Doe V. Bell, 5 T. R. 471; Whart. 226; Conway v. Stark- 
 Richardson V. Gifford, i Ad. & L. weather, i Denio, 113; Jackson v. 
 52; Beale v. Sanders, 3 Bing. N. C. Patterson, 4 Harr. (Del.) 535; Har- 
 850; Fronty v. Wood, 2 Hill, L. kins v. Pope, 10 Ala. 493; Lock 
 367 ; Brewer v. Knapp, i Pick. 335 ; wood v. Lockwood, 22 Conn. 425. 
 
300 
 
 REAL PROPERTY. 
 
 tion, forbids a forcible entry, even by the owner, upon the 
 actual possession of another. Such entry is, therefore, un- 
 lawful. If unlawful it is a trespass, and an action for tres- 
 pass must necessarily lie. Although the occupant may 
 maintain trespass against the owner for a forcible entry, 
 yet he can only recover such damages as have directly 
 accrued to him from injuries done to his person or property, 
 through the wrongful invasion of his possession, and such 
 exemplary damages as the jury may (under proper instruc- 
 tions) think proper to give. But a person having no title to 
 the premises clearly cannot recover damages for any injury 
 done to them by him who has the title. He may, however, 
 recover nominal damages in all cases of forcible entry and 
 detainer."' In an action of this character the immediate 
 right of possession is all that is involved."" The title is not 
 in issue."' 
 
 Exemplary damages may be recovered if the entry "' is 
 effected in a wanton and reckless manner, as public policy 
 
 '" Reeder v. Purdy, 41 111. 279. 
 '"" Riverside Co. v. Townshend, 
 120 111. 9. 
 '"Sheehy v. Flaherty, 8 Mont. 
 
 365. 
 
 '" NoU on Entry. — Anderson 
 thus defines "entry:'' {¥. enirer; 
 L. in-trare, to go into.) As relates 
 to property: The act of actually 
 going upon land, or into a building. 
 
 At common law, an assertion of 
 title by going upon the land ; or, if 
 that was hazardous, by "making 
 continual claim.'' (Innerarity v. 
 Mims, I Ala. 674 (1840).) 
 
 Taking possession of lands by 
 the legal owner. (Guion v. Ander- 
 son, 8 Humph. 306 (147).) 
 
 I. An extrajudicial and summary 
 remedy by the legal owner, when 
 another person, who has no right, 
 has previously taken possession of 
 land or tenements. 
 
 The party entitled may make a 
 formal but peaceable entry thereon, 
 
 declaring that thereby he takes 
 possession, which notorious act of 
 ownership is equivalent to a feudal 
 investiture; or he may enter on 
 any part of the land in the same 
 county in the name of the whole! 
 but if the land lies in different 
 counties he must make different 
 entries. If the claimant is deterred 
 from entering by menaces he may 
 " make claim " as near the estate as 
 he can, with the like forms and 
 solemnities, which claim is in force 
 for a year and a day; and, if re- 
 peated once in the like period 
 (called " continual claim " ), has the 
 same effect as a legal entry. Such 
 entry puts into immediate posses- 
 sion him that has the right of 
 entry, and thereby makes him 
 complete owner, capable of con- 
 veying. But this remedy applies 
 only in cases in which the original 
 entry of the wrong-doer was un- 
 lawful, viz., in abatement, intru- 
 
ESTATES FOR YEARS. 30I 
 
 requires the owner to use peacful means to retain his rights 
 or resort to the courts for protection. Physical violence will 
 not be tolerated. 
 
 Except in cases of landlords and of mortgagees, this pro- 
 cess has not been extended to try the title or right of posses- 
 sion of lands, in favor of one who has never been in posses- 
 sion. The purpose of the statute is to give a speedy remedy 
 to those whose possession is invaded, and not to take the 
 place of a writ of entry to try the title."" 
 
 ' ' Where the entry is lawful, it must not be made with a 
 strong hand, or with a number of assailants ; where it is not 
 lawful, it must not be done at all.""" Following the analogy 
 as to riots, three persons have been held enough to support 
 the averment "multitude." 
 
 The entire learning on this subject of entry has been 
 deprived largely of its original importance in the law of 
 real property, by reason of the modern tendency to dis- 
 regard the rules formerly relating to seizin. But entry is 
 still regaining possession of land from a person wrongfully 
 in possession. It must be peaceable and must be made 
 within the period allowed by the Statute of Limitations.™ 
 
 Re-entry denotes a right reserved by the lessor to regard 
 the lease as forfeited and to assume possession of the prem- 
 
 sion, and disseisin. In discontinu- courts will restrain it to the most 
 
 ance and deforcement the owner of technical limits of the terms and 
 
 the estate cannot enter ; for, the conditions upon which the right is 
 
 original entry being lawful, an appa- to be exercised. (The Elevator 
 
 rent right of possession is gained, Cases, 17 F. R. 200 (1881).) 
 
 and the owner is driven to his When for rent in arrear, unless 
 
 action at law. In cases where en- dispensed with by agreement or 
 
 tries are lawful, the right of entry statute, demand of payment of the 
 
 may be "tolled," that is, taken rent must first be made. (Johns- 
 
 away, by descent. Corresponds to ton v. Hargrove, 81 Va. 121-23 
 
 recaption of personalty. (3 Bl. (1885), cases.) 
 
 Com. 174-79, 5 ; 2 Id. 314.) Cited from Anderson's Law Diet. 
 
 Re-entry. The right reserved to ''"Boyle v. Boyle, 121 Mass. 85; 
 
 consider a lease forfeited and to re- Woodside v. Ridgeway, 126 Mass. 
 
 sume possession of the premises, 292. 
 
 upon failure in the lessee to per- ''^^ 2 Wharton Crim. Law, 9th ed. 
 
 form a covenant ; also, any exer- 1093. 
 
 cise of this right. "° 3 Steph. Comm. 243. 
 
 This being a harsh power, the 
 
302 REAL PROPERTY. 
 
 ises by reason of some failure in duty on the part of the 
 lessee. It is also applied to the actual exercise of this right. 
 Our courts have manifested great reluctance in enforcing the 
 rights under a re-entry clause. They usually restrain its exer- 
 cise to the most technical limits of the conditions named and 
 require in most instances that a demand for payment of the 
 rent in arrears shall first be made unless such a demand has 
 been dispensed with by positive agreement."' 
 
 Forcible entry and detainer is a term denoting an o£fense 
 against the public peace and involves the unauthorized tak- 
 ing and keeping possession of lands and tenements of another 
 by force. In this country a civil remedy is provided for by 
 statute through which restitution of the lands entered upon 
 may be had; and the offense is also punishable by indict- 
 ment. A mere refusal to deliver possession of land when 
 demanded is not a foundation for the process of forcible 
 entry and detainer. There must be some apparent violence, 
 in deed or word, to the person of another, or some circum- 
 stances tending to excite terror in the owner, and to prevent 
 him from claiming or maintaining his right."" 
 
 The purpose of statutes forbidding forcible entry and 
 detainer is, that without regarding the actual condition of 
 the title to the property, where a person is in the quiet and 
 peaceable possession of it, he shall not be turned out by strong 
 hand, by force, by violence, or by terror. The party so using 
 force and acquiring possession may have the superior title or 
 may have the better right to the present possession, but the 
 policy of the law is to prevent disturbances of the public 
 peace, to forbid any person righting himself, in a case of that 
 kind, by his own hand and by violence, and to require that 
 the party who has in this manner obtained possession shall 
 restore it to the party from whom it has been obtained ; and 
 that when the parties are in "statu quo," in the position they 
 were in before the use of violence, the party out of possession 
 must resort to legal means to obtain his possession, as he 
 should have done in the first instance."" 
 
 "'Johnson v. Hargrove, 8i Va. ™ Iron Mountain R. R. Co. v. 
 121; see also the Elevator cases, 17 Johnson, 118 U. S. 611; per Mil- 
 Fed. Rep. 200. ler, J. 
 
 '" Comm V. Dudley, 20 Mass. 402. 
 
ESTATES FOR YEARS. 303 
 
 Forcible entry is accomplished if the wrongdoer displays 
 such violence as evidences an intent to intimidate the party 
 in possession, or deter him from defending or maintaining 
 his rights, or to excite him to repel the invasion, and thus 
 bring about a breach of the peace."" 
 
 Both compensatory and punitive damages may be awarded 
 against the transgressor for the injury regardless of the state 
 of the legal title or of the possessory rights."' 
 
 In Curtis v. Galvin, infra, it was held that a tenant at 
 sufferance could not maintain an action against the owner of 
 the premises, who entered upon and expelled him, and 
 removed his furniture 
 
 In Mugford v. Richardson, 6 Allen, 76, the owner of a tene- 
 ment entered without objection and removed the windows. 
 The tenant attempted to prevent this and the court held that 
 the landlord was justified in using sufficient force to over- 
 come resistance. In New York it was early determined 
 that if a person having a legal right to enter upon land, 
 enters by force, though liable to indictment, he is not liable 
 to a private action for damages at the suit of the person 
 whom he turns out of possession."" Well considered English 
 cases support the same conclusion. Thus in Harvey v. Bridges, 
 14 M. & W. 437, Baron Park uses the following language ; 
 ' ' I should have no difficulty in saying that when a breach of 
 the peace is committed by a freeholder, who, in order to get 
 possession of his land, assaults a person wrongfully holding 
 possession of it against his will, though the freeholder may 
 be responsible to the public in the shape of an indictment for 
 a forcible entry, he is not liable to the other party. I can- 
 not see how it is possible to doubt that it is a perfectly good 
 justification to say that the plaintiff was in possession of the 
 land against the will of the defendant, who was the owner, 
 and that he entered upon it accordingly, even though in so 
 doing a breach of the peace was committed. For the preser- 
 vation of the peace the law will furnish forcible entry, but 
 the tenant at sufferance, being himself a wrongdoer, ought 
 not to be heard to complain in a civil action, for that which 
 is the result of his own misconduct." 
 
 "* Ely V. Yore, 71 Cal. 133. "« Ives v. Ives, 13 Johns. 235. 
 
 *" Denver & Rio Grande R. R. 
 Co. V. Harris, 122 U. S. 597. 
 
304 REAL PROPERTY. 
 
 Where the tenants' occupancy has been legally terminated, 
 they are entitled to a reasonable time in which to remove 
 their goods, after which the landlord may enter and remove 
 them, storing them in a careful manner in some place near 
 by/" In Whitney ^. Sweet, 2 Fost. lo, a legal notice to quit 
 was duly given. "This," observes Bell, J., "was a sufficient 
 notice and the tenancy was by that notice terminated. After 
 the day specified therein the tenant becomes a trespasser, his 
 goods are damage feasant, and the owner has a clear and per- 
 fect right to go into the house with suitable assistants, and 
 then, peaceably and quietly, without breach of the peace, 
 remove the goods to a near and convenient distance, and 
 there leave them for the use of the owner, doing them no 
 unnecessary damage." This view has been repeatedly sus- 
 tained by the Supreme Court of Massachusetts in repeated 
 decisions."" Indeed, after the legal termination of the ten- 
 ancy the tenant could have no longer any other rights than 
 those of ingress and egress for a reasonable time, to take 
 care of and remove his property.''" By the principles of the 
 common law observes Wilde, J., in Fifty Associates v. How- 
 land, 5 Cush. 214, some degree of force is allowed in expelling 
 an intruder into a man's lands or tenements, who refuses to 
 quit although he has no right to the possession. The owner 
 is not justified to use such degree of force as would tend to a 
 breach of the peace, but he is allowed to use such force as would 
 sustain a plea in justification of "molliter manus iinfosuit." 
 
 As a result of the authorities under statutes like ours, it may 
 be stated that to make any entry forcible, there must be 
 such acts of violence used or threatened as give reasons to 
 apprehend personal danger in standing in defense of the 
 possession. If there is no more force used than is implied in 
 every trespass, with nothing to excite fear of personal vio- 
 lence, the case is not within the statute ; and, therefore, the 
 forcing open of the outer door of the dwelling house, in "a 
 peaceable manner, ' ' as stated in the instruction, was not of 
 itself sufficient to constitute a forcible entry, within the 
 meaning of the statute."" 
 
 "' Rollins V. Moores, 25 Me. 192. '«» 2 Taylor, Land. & T., sect. 884 ; 
 
 '"Curtis V. Galvin, i Allen, 215. 2 Woodfall, Land. & T. 787, note; 
 '"Moore v. Boyd, 24 Mo. 242. Id. 846; Frazier v. Hanlon, 5 CaL 
 
ESTATES FOR YEARS. 305 
 
 As to when an entry is made with force, within the mean- 
 ing of this statute, there is much apparent conflict in the 
 authorities. But the divergence of views sometimes ex- 
 pressed is doubtless in part owing to the different phraseol- 
 ogy of the statutes under which the cases have arisen, and 
 the conflict is more apparent than real. It is agreed that the 
 object of the statute is not to punish for a mere trespass 
 upon land. In substance, our statute is the same as the origi- 
 nal Forcible Entry and Detainer Act of 5 Rich. II, after 
 which the statutes in most of the States are modelled ; the 
 words "not with force," and "not with strong hand or with 
 multitude of people," in substance meaning the same thing. 
 The proceedings under the statute were originally in their 
 nature criminal, for the redress of a wrong to the public done 
 by a breach of the peace. It was not designed or intended 
 to confer rights. While, through gradual additions, the 
 remedy has become in effect private as well as public, its 
 main design still is to prevent breaches of the public peace. 
 In actions under the statute there must still be present, to 
 secure conviction, proof of some wrong done to the public. 
 The process was originally what the expression (taking the 
 word ' ' forcibly ' ' in its technical meaning) meant — a pro- 
 cess for the recovery of lands entered or detained by such 
 force as to constitute a breach of the peace. It "was author- 
 ized only where the entry or holding was by force or vio- 
 lence, or threats of violence, sufficient to deter the owner 
 from entering.""' The word "force, "when used in the stat- 
 ute, means actual force, as contradistinguished from implied 
 force ; and so it has always been held under the Statute of 5 
 Rich. II, and similar statutes, not only in England, but by 
 the weight of authority in this country."" As a general rule, 
 it may be stated that, to render an entry forcible under the 
 Statute of Forcible Entry and Detainer, it "must be accom- 
 
 156; Com. V. Dudley, 10 Mass. 403; 33; Shaw v. Hoffman, 25 Mich. 
 Gray V. Finch, 23 Conn. 495; Hen- 162; Stearns v. Sampson, 59 Me. 
 ■drickson v. Hendrickson, 12 N. J. 568, 8 Am. Rep. 442. 
 L. 232 ; Pennsylvania v. Robison, ^'' Kent, J., in Dunning v. Fin- 
 Add. Rep. 14-18; Fort Dearborn son, 46 Me. 560. 
 Lodge, No. 214, I. O. O. P., v. 's' See note to Evill v. Conwell, 3 
 Klein, 115 111. 177, 2 West. Rep. Blackf. 133, 18 Am. Dec. 138. 
 20 
 
3o6 REAL PROPERTY. 
 
 panied with circumstances tending to excite terror in the 
 owner, and to prevent him from maintaining his rights. 
 There must be, at least, apparent violence ; or some unusual 
 weapons ; or the parties attended with an unusual number of 
 people ; some menaces or other acts giving reasonable cause 
 to fear that the party making the forcible entry will do 
 some bodily hurt to those in possession if they do not give 
 up the same. ' '"" An entry which has no other force than 
 such as is implied in every trespass is not within the statute. 
 It must be accompanied with some circumstance of terror or 
 violence to the person, unless the entry is riotous or tumul- 
 tuous, and endangers the public peace. ' ' A forcible entry, ' ' 
 says Tomlins (Law Diet.), " is only such an entry as is made 
 with strong hand, with unusual weapons, an unusual number 
 of servants or attendants, or with menace of life or limb ; for 
 an entry which only amounts in law to a trespass is not 
 within the statute. ' ' The same view is taken in Willard v. 
 Warren, 17 Wend. 257, in which Mr. Justice Cowen, after 
 reviewing the authorities, says : ' ' The result seems to be that 
 there must be something of personal violence, or a ten- 
 dency to, or threats of personal violence, unless the 
 entry or detainer is riotous." In Foster v. Kelsey, 36 Vt. 201 ; 
 84 Am. Dec. 676, it is s^id: "They (Statutes of Forcible 
 Entry and Detainer), are not intended to apply to mere acts 
 of trespass which are not accompanied with violence and do 
 not tend to a breach of the peace. A forcible entry must 
 be accompanied either with actual violence, or with circum- 
 stances tending to excite terror, and to intimidate the owner 
 or his servants from maintaining his rights. 
 
 Where the landlord entitled to possession enters the prem- 
 ises during the temporary absence of the tenant he is justi- 
 fied in so doing if he does so in a quiet and peaceable 
 manner."' 
 
 If necessary to do so a landlord may enter by forcing open 
 an outer door.'" 
 
 '*^ Com. V. Shattuck, 4 Cush. 145. Henry, 13 Pick. 36; Stearns v. 
 
 "* Taylor, Land. & T., sect. 531, Sampson, 59 Me. 568, 8 Am. Rep. 
 
 532; Cooley, Torts, p. 323, and 442. 
 
 note, also see p. 326 ; Mussey v. '*' Ibid. 
 Scott, 32 Vt. 82 ; Sampson v. 
 
ESTATES FOR YEARS. 307 
 
 When the lease expires the court recognizes the right to 
 remove goods if no unnecessary force was used."" 
 
 One class of cases, such as Ainsworth v. Barry, 35 Wis. 136; 
 Steinlein m. Halstead, \2 Wis. 422; Warren y. Kelley, ij Tex. 
 544; Holmes v. Hollowqy, 21 Tex. 658, is to the effect that the 
 jury may find the entry to be forcible, when made with 
 strong hand, or with multitude of people, or in a riotous 
 manner, even in the absence of the occupant, and with no 
 personal violence or intimidation towards him. It is mani- 
 fest that these do not apply here; for plaintiff's entry was 
 not made in any such a way, and, besides, the question was 
 submitted to the jury, and they found the plaintiff entered in 
 a peaceable and orderly manner. Another class of cases 
 cited, such as Chiles v. Stephens, 3 A. K. Marsh, 340; and 
 Brumfield v. Reynolds, 4 Ky. 388, which seem to have been 
 followed in Davidson v. Phillips, 9 Yerg. 93 ; Krevet v. Meyer, 
 24 Mo. 107; and Greeley v. Spratt, 19 Fla. 644, were made 
 under statutes which, by an extension of the provisions of 
 the original Statute of Forcible Entry and Detainer, have 
 forbidden peaceable entries, if against the will of the occu- 
 pants, and under which restitution will be granted, even to 
 a wrongful occupant, as against an owner entitled to posses- 
 sion, though the latter use no actual force in gaining the pos 
 session."" These authorities can have no application under 
 our statute, which only forbids an entry with force, and 
 authorizes one, if peaceable. 
 
 A more particular reference to some of the cases will illus- 
 trate the rule and its application by the courts. In Pike v. 
 Witt, 104 Mass. 598, the defendants, with a person employed 
 by them as a workman, went to the premises owned by them, 
 but occupied by plaintiff, the doors of which were fastened 
 by an iron clasp and padlock, and demanded the key of plain- 
 tiff's servant who was at the premises at the time, the plain- 
 tiff not being present, and, on his refusal to deliver the key, 
 ordered their workman to enter the premises through a hole 
 in the floor, and with the aid of an axe, which they brought 
 with them, they removed the padlock, entered, and kept 
 possession; and it was held that this was not a forcible 
 
 "'Overdeer v, Lewis, i Watts & '"2 Woodfall, Land. & Ten. 787. 
 S. 90, 37 Am. Dec. 440. 
 
308 REAL PROPERTY. 
 
 entry, within the meaning of the statute, the court saying- 
 the removal of the padlock or bolt "amounted merely to 
 mechanical force, applied against the consent of plaintiff's 
 agent, but not tending to alarm him or to excite apprehen- 
 sions of bodily harm. ' ' And again in Wood v. Phillips, 43 
 IST. Y. 152, the plaintiff and defendant were tenants in com- 
 mon of certain real estate, which was in the exclusive posses- 
 sion of defendant. On demand made by plaintiff, the defend- 
 ant refused to give her possession ; whereupon she got in the 
 house through the window, when the house was locked up 
 and unoccupied, took off the locks, and put them on so as to 
 fasten the doors on the inside. She then commenced to 
 occupy it, stayed there through the day, took her meals 
 there, and received her friends there. On the evening of the 
 same day the defendant and other persons went to the house, 
 broke open the door forcibly, and, plaintiff refusing to 
 leave the premises, they took hold of her and put her out. 
 In an action for assault and battery for putting her out, the 
 court held that her possession, thus acquired, was a peace- 
 able and lawful one; the court, through Folger, J., saying: 
 ^'She (Mrs. King), had the right of possession, and had the 
 Tight to acquire it in a peaceable manner.""" She did ac- 
 quire possession by stealth, it is true, but it was without 
 tumult or breach of the peace, and in a peaceable manner, in 
 a way which the law justifies."' Again, on page 158, speak- 
 ing of her liability under the Forcible Entry and Detainer 
 Act, he proceeds : ' ' Now, we have already stated that the 
 entry of the plaintiff was, in the eye of the law, an 
 ■orderly one. Those authorities, then, which hold that pro- 
 ceedings for forcible entry and detainer will lie against the 
 legal owner, come short of upholding the position that the 
 plaintiff, being the legal owner, and having the right of pos- 
 session, had not the right, by her own act, to acquire posses- 
 sion in an orderly and peaceable way.""" So, in Musseyv. 
 Scott, 32 Vt. 82, the plaintiff, having the right of possession 
 of a house occupied by the defendant, while the defendant 
 -was temporarily absent for the day only, having fastened 
 
 2S8 Hyatt V.Wood, 4 Johns. 150-- Johns. 42; 2 Archbold, Crim. Pr. 
 158. &P1. (7th Am. ed.) 337. 
 
 "'Ibid.; McDougall v. Sitcher, i "» Willard v. Warren, 17 Wend. 257. 
 
ESTATES FOR YEARS. 309 
 
 the house upon leaving, entered the premises by forcing- 
 open the door, and placed defendant's furniture in the street, 
 and fastened up the house again and left it. The defendant, 
 on returning, forced open the door, and re-entered and occu- 
 pied the premises. It was held that plaintiff's entry was the 
 exercise of a legal right in a legal manner, and that he could 
 maintain trespass quare clausum against the defendant for his 
 subsequent entry. The court, speaking through Bennett, J., 
 says : ' ' He (defendant) had gone away and left no one in pos- 
 session, and the house de facto was vacant at the time the 
 entry was made by forcing open the door of the house, which 
 the defendant had fastened when he left the house in the 
 morning, and there is no pretense that it was made in a riot- 
 ous and tumultous manner, or in such way as would even 
 tend to a breach of the peace. It does seem to us made in a 
 peaceable manner." Mason v. Powell, 38 N. J. L. 576, was 
 decided under a statute providing that any entry "with force 
 or with strong hand or with weapons, or by breaking open 
 the doors, windows, or other parts of a house, whether any 
 person be in it or not," is a forcible entry, and therefore is 
 not in point here. What was said by the chief justice about 
 the rule at common law was unnecessary to the decision of 
 the case, and its correctness has been questioned."' The 
 case of Allen v. Tobias, "]"] 111. 169, holding that the breaking 
 down and destroying a fence inclosing a vacant lot, under 
 claim of ownership, was a forcible entry, is very much 
 shaken by what was said by Mulkey, Ch. J., in Fort Dearborn 
 Lodge, No. 214, /. O. O. F., v. Klein, 115 111. 191 ; 2 West. Rep. 
 33, to wit : " A person not having a right to enter is forbidden 
 to do so. One having such right may enter, provided he do 
 so without force and in a peaceable manner. The word 
 'force', as here used, means- actual force, as contradistin- 
 guished from implied force." And again, on page 193, 115 
 111. : " A peaceable entry in such case (by the owner) as com- 
 pletely defeats the possession and seizin of the occupant as if 
 put in possession by a suit at law. In either case the posses- 
 sion of the occupant is determined and if he does not at once 
 vacate the premises the owner being now in possession, may 
 
 ••' See Mr. Justice Cowen's opinion in Willard v. Warren, supra. 
 
3IO REAL PROPERTY. 
 
 himself maintain an action of trespass against the tortious 
 occupant ; but the owner is not authorized to assault him or 
 forcibly eject him." 
 
 Upon an extended survey of the modern decisions, both 
 English and American, it may be stated as a summary, that 
 the owner of real property may recover possession of the 
 premises through the use of such force as the emergenices of 
 the situation may require. He is not allowed to unneces- 
 sarily harrass the tenant nor occupant, nor resort to violent 
 measures that may endanger life or limb, but having once 
 gained the possession, reasonable force may be employed in 
 retaining it. And if he enters by force, even though he may 
 be indicted for a breach of the peace, he is not liable to a 
 private action for trespass at the instance of the person who 
 has no right and is turned out of possession."" 
 
 If a claimant of real estate, out of possession, resorts to 
 force, amounting to a breach of the peace, to obtain posses- 
 sion frora another claimant, who is in peaceable possession, 
 and personal injury arises therefrom, the party using the 
 force is liable in damages, compensatory and punitive, for 
 the injury, without regard to the legal title, or to the right of 
 possession. "° 
 
 And in Todd v. Jackson, 26 N. J. L. 525, it was held that, 
 where a tenancy has expired, the landlord may take posses- 
 sion of the premises by any means short of personal violence. 
 ' ' I am willing to lay down the law to be, ' ' says the chancel- 
 lor, on page 532, "that the landlord may take possession by 
 any means short of personal violence; that he may break 
 into the dwelling house for the purpose, because no one 
 ought to complain of him for such an injury done to his own 
 property; that he may remove the goods which he finds 
 there, because they are an unlawful encroachment upon his 
 rights ; that, once in possession, he may protect that posses- 
 sion as well against the individual who, in violation of his 
 
 ^^ Hyatt V. Wood, 4 Johns. 450; brated case of Sterling v. Warden, 
 
 Beecher v. Parmalee, 9 Vt. 352; 51 N. H. 217; 12 Am. Rep. 80. 
 
 Harvey v. Brydges, 14 M. & W. "' Denver & Rio Grande R. Co. 
 
 437; Krevet v. Meyer, 24 Mo. 107; v. Harris, 122 U. S. 597, 605 (1887), 
 
 Zell V. Reame, 31 Pa. St. 304. See Harlan, J . 
 for extended discussion the cele- 
 
ESTATES FOR YEARS. 3II 
 
 contract, has attempted to -wrong him, as against a stranger 
 who intrudes upon his possession. 
 
 In Fabri-v. Bryan, 80 111. 182, this court held that, where a 
 lease contains a license to the landlord to enter in possession 
 of the leased premises without process of law, and expel and 
 remove the tenant, and use such force as may be necessary 
 in doing so, the landlord may enter and remove the tenant 
 after the expiration of the term, and the tenant cannot main- 
 tain an action of trespass against the landlord. If, as held, 
 the tenant may make a lawful contract with the landlord, 
 under which the latter may enter and remove the tenant, 
 what principle of law forbids the tenant from incorporating 
 in a lease a provision under which, upon default of surrender- 
 ing possession at the end of the term, a judgment for posses- 
 sion may be confessed in a court of competent jurisdiction? 
 
 After the expiration of the term a tenant holding over is 
 regarded as a tenant at sufferance only, without the right of 
 possession as against his landlord, If the latter, in pursu- 
 ance of his legal rights, enters and expels him he may be 
 indicted for the forcible entry, but he is not liable for dam- 
 ages in an action of tort or for an assault for expelling the 
 tenant, assuming that he uses no more force than is neces- 
 sary. A legal possession cannot be gained by a forcible entry. 
 It is an indictable offense at common law, and such an entry 
 is prohibited under penalty of restitution of the premises on 
 a summary process, which may be maintained by one who 
 has a bare peaceable possession without title. ^" The neces- 
 sity of a peaceable possession or rather entry, is strenuously 
 insisted upon in several cases where the question has been 
 presented."" In England the authorities are conflicting. 
 Harvey v. Brydges, 14 M. &: W. 437, was entirely extrajudi- 
 cial."" All that is decided by the comparatively recent case 
 of Low V. Elwell, 121 Mass. 309, is that the landlord who 
 ejects without unnecessary force is not liable in an action for 
 assault. 
 The rule is emphasized that the landlord may obtain pos- 
 
 '" Taylor, Land. & Ten. sec. 789 ; Dustin v. Cowdrey, 23 Vt. 631; 
 
 4 Am. Law Rev. 429, 448. Stearns v. Sampson, 59 Me. 568. 
 
 "'Page V. Dupuy, 40 III. 506; "=4 Kent's Com. 118, note (12 ed). 
 Larkin v. Avery, 23 Conn. 304; 
 
312 REAL PROPERTY. 
 
 session by forcible means but must not resort to any more 
 violence than is necessary to make his entry eifectual. To 
 hold otherwise would enable a .person, occupying land 
 entirely without right, to ignore the lawful owner and com- 
 pel him to resort to a civil action with all of its attendant 
 delays in order to recover possession of that to which he has 
 a positive right/" 
 
 The old common law remedy of distress for rent appears 
 to have been originally adopted in this country, but the 
 legislation of the last fifty years has seriously impaired many 
 of its former incidents. In its statutory form it is still 
 resorted to, but it is falling into great disfavor as it raises an 
 invidious distinction in favor of a privileged class of credit- 
 ors which has survived similar remedies applicable to other 
 forms of debt. Any decent sense of equity would accord to 
 all creditors, equally entitled to protection, the same reme- 
 dial rights, and the courts of North Carolina have bluntly 
 declared that the remedy of distress is inimical to the 
 spirit of her laws, and the sense of a just government.'" 
 New York abolished it long ago for similar reasons. And 
 in the New England States it fell into early disrepute before 
 the law of attachment on mesne process had obtained a foot- 
 hold. The modern process of summary proceedings is both 
 humane and effective, and the remedy has been developed by 
 the New York courts into very favorable notice. Whatever 
 the form of relief may be in vogue in the different States, 
 the intent is in all instances to replace the landlord in pos- 
 session as expeditiously and peaceably as possible. 
 
 As to damages it may be said that where two parties have 
 made a contract which one of them has broken the damages 
 which the other party ought to receive, should include all 
 gains prevented as well as losses sustained and this rule is 
 subject to but two conditions. The damages must be such 
 as may be fairly supposed to have entered into the contem- 
 plation of the parties when they made the contract, that is 
 such as might naturally be expected to follow its violation ; 
 
 "' See Jackson v. Farmer, 9 "» Youngblood v. Lowry, 2 Mc- 
 Wend. 201 ; Kellum v. Janson, 17 Cord, 39. 
 Pa. St. 467; Sterling V. Warden, 51 
 N. H. 217. 
 
ESTATES FOR YEARS. 313 
 
 and they must be certain, both in the nature and respect to 
 the cause from which they proceed."' 
 
 § 137. Notice to quit. The rule relative to notices seems to 
 be as follows : Where there is a lease for a certain period, the 
 term determines without notice. '°° In uncertain tenancies, 
 reasonable notice was necessary, which reasonable notice 
 had, from the time of Henry VIII, according to Lord Ellen- 
 borough, been six months.'" 
 
 This rule was applied to all uncertain tenancies in this 
 State, whether rent was or was not reserved.""" The time 
 was changed to three months by Act of 1 840 (Pamph. L, p. 
 104), now, with a little change in the text, the twenty- 
 seventh section of the Landlord and Tenant Act in the revi- 
 sion.'" . 
 
 In cases of tenancies for periods running less than a year, 
 the rule enunciated by the text-writers is, that the notice 
 must be regulated by the letting, and must be equivalent to 
 a period.'" How the rule arose is uncertain. It certainly 
 did not have its origin in any resolution of the courts. 
 Indeed, Baron Park, in Huff el v. Armistead, 7 C. & P. 56, 
 said that he knew of no decision holding a week's or month's 
 notice was necessary to determine a weekly or monthly ten- 
 ancy. See, also, the remarks of the judges, to the same im- 
 port, in Towne v. Catnpbell, 3 C. B. 921. 
 
 It seems, however, to have very clearly shaped itself into 
 a custom. The habit of giving and requiring reasonable 
 notice, in cases of tenancies, not for a single term, but for 
 recurring periods, which reasonable notice, when the periods 
 were from year to year, was, according to Lord EUenbor- 
 ough, very early held to be six months, was probably by a 
 custom equally as old, in tenancies for less periods, estab- 
 lished as now stated by the books. 
 
 By strict relativeness, the rule of a half year's notice in 
 tenancies from year to year, would only require a half 
 
 *»» Hadley v. Baxendale, 9 Ex. 341 ; ™' Doe d. Strickland v. Spence, 6 
 
 Griffin v. Colver, 16 N. Y. 489. East. 120. 
 
 •» Cobb v. Stokes, 8 East. 358 ; »« Den v. Drake, 2 Green, 523. 
 Right V. Darby, i Term R. 159; *«' Rev. 575. 
 Decker v. Adaps, 7 Halst. 99. *** Taylor, Land. & Ten. sec. 478 ; 
 
 Archb. Land. & Ten. 87. 
 
314 
 
 REAL PROPERTY. 
 
 month's or a kalf week's notice in cases of montlily or 
 weekly tenancies. The briefness of the latter, and the 
 length of the former kind of tenancies, was the probable 
 reason why the rule was not uniform. Whatever the reason 
 of the rule, it seems to have been well grounded in the gen- 
 eral understanding of the English people. The cases cited 
 by the books of authority in support of the rule already 
 stated are merely recognitions of what was obviously a cus- 
 tom, and, as such, the cases would seem to have as much 
 weight as authority as if they had expressly ruled the point. 
 When a tenant under a demise for a year or more, holds 
 over after the end of his term, without any new agreement 
 with the landlord, he may be treated as a tenant from year 
 to year, and in all other respects as holding upon the terms 
 of the original lease. The landlord has an election to treat 
 him either as a trespasser, or as a tenant. He will be a tres- 
 passer if the landlord brings ejectment, or resorts to sum- 
 mary proceedings under the statute to recover the posses- 
 sion. He will be a tenant if the landlord either receives or 
 distrains for rent accruing after the end of the original term. 
 There are also other ways in which the landlord may signify 
 his assent to the tenancy ; and when he neither says nor does 
 anything, his acquiescence in the tenancy may, perhaps, be 
 inferred from the mere lapse of time.''" 
 
 Summary Proceedings to Recover Land. 
 Notice. A notice to authorize summary proceedings against 
 the tenant holding over after the termination of his lease must, 
 either in direct terms or by clear and unmistakable implica- 
 tion, point out a day upon which the tenant is required to 
 quit, which day must be at or after the termination of the 
 lease.- 
 
 § 138. Perpetual or manorial leases. A perpetual lease may 
 be created by a grant in fee, reserving an annual rent, or by 
 a lease to continue so long as the tenant shall continue to pay 
 the rent and perform the covenants. °" Unless prohibited by 
 
 *» Rewan v. Lytle, 1 1 Wend. 616. s"' Folts v. Huntley, 7 Wend. 210; 
 *• Connell v. Chambers, 22 Neb. Van Rensselaer v. Hays, 19 N. Y. 
 302. (5 Smith) 68. 
 
ESTATES FOR YEARS. 3^5 
 
 Statute such leases are valid, and they can be terminated only 
 by the agreement of the parties or by the enforcement of a 
 forfeiture. 
 
 In Ohio, by the Act of 1821, they were declared to be real 
 estate as to judgment and execution. By an Act of 1837, 
 they were declared to descend as estates of inheritance. By 
 an Act of 1839, both these were consolidated. Previously, 
 they had been treated as chattels."' Since they were once 
 adjudged to be real estate for all purposes.'"' This is doubted 
 in Boyd v. Talbert, 12 Ohio, 212, and the better opinion is 
 that they are so only as to judgments, executions, liens, 
 sales, and descents."" 
 
 In New York certain purchasers, or, as they were variously 
 called, patentees, patroons, or lords, early obtained from the 
 British sovereigns letters-patent, granting large districts in 
 the central regions of the colony. Some of the proprietors, 
 in a spirit of emulation then deemed harmless and laudable, 
 obtained permission from the Crown to erect manors within 
 these districts, with certain political, judicial, and legislative 
 privileges and advantages, which have long since become 
 obsolete. With reference to those advantages, however, 
 they adopted a system of granting lands, not absolutely by 
 fee simple in deeds, but as qualified estates in fee simple, by 
 instruments which are commonly called leases, whereby the 
 patroon or landlord reserved for his own use all water power 
 and mineral wealth. Perpetual rents were reserved; por- 
 tions of which were paid in wheat and supplies for the table 
 of the proprietor, and the residue in service or labor, to be 
 performed by the tenants about his manor house. Aliena- 
 tion by the tenants was restrained, unless with the lord's 
 consent, to be obtained by paying to him one-quarter, or 
 some other part of the purchase money. The right to dis- 
 train for rent — a severe but not then an unusual remedy — 
 was incorporated in the leases, with stringent covenants for 
 
 ^Bisbee v. Hall, 3 Ohio, 449; "» See Abbott v. Bosworth, 36 
 
 Reynolds v. Stark County, 5 Ohio, Ohio St. 605 ; Northern Bank v. 
 
 204; Murdock V. Ratclifi, 7 Ohio, i Roosa, 13 Ohio, 334; McLean v. 
 
 pt. 119. Rocky, 3 McLean, 235; Walker, 
 
 ' '<*Loring v. Melendy, 11 Ohio, Am. Law, 329 n. 
 355- 
 
3l6 REAL PROPERTY. 
 
 the payment of taxes and other purposes ; and with various 
 conditions securing to the landlord a right to re-enter and 
 resume the land. However unwise for both contracting 
 parties such conveyances may now seem, it ought to be 
 remembered that, at the time of their institution, they were 
 not at all anomalous, and they contributed to the settlement 
 of extensive districts by an industrious population, who had 
 not sufficient capital to become absolute purchasers of estates. 
 The validity of these leases in fee, reserving a perpetual 
 rent, the source of much angry litigation, has been at length 
 definitely settled by the court of last resort, in the case of 
 Van Rensselaer v. Hays, 19 N. Y. R. 68. 
 
 Perpetual leases are also known as manorial leases and have 
 been held to create a rent charge, rather than a rent service, 
 and while at common law it was said a rent charge could not 
 be apportioned, the New York courts have held that such an 
 apportionment is possible by the concurring assent or acqui- 
 escence of both the landlord and tenant."' Manorial 01 per- 
 petual leases, made in 1794, have been held valid. Lyon v. 
 Odell, 65 N. Y. 28, presented an action on one of these leases. 
 No rent had been paid for fifty-one years, and the question 
 was whether the law indulged the presumption that all the 
 rights reserved in the lease by the lessor. Van Rensselaer, 
 had been abandoned or extinguished ; it was held that there 
 was no such presumption.'" 
 
 § 139. Statute of frauds as affecting leases. Statute of 
 
 frauds. — Already have so many cases been taken out of the 
 Statute of Frauds which seem to be within its letter, that it 
 may well be doubted whether the exceptions do not let in 
 many of the mischiefs against which the rule was intended to 
 guard. The best judges in England have been of the opinion, 
 that this relaxed construction of the statute ought not to be 
 extended further than it has already been carried.'" 
 
 One thing must be clearly apprehended regarding these 
 parol leases void under the Statute of Frauds. If the tenant 
 
 =" Van Rensselaer V. Hays, 19 N. '" Bradt v. Church, no N. Y. 
 
 Y. 76; Van Rensselaer v. Chad- 537. 
 
 wick, 22 Id. 34; Van Rensselaer v. '"Grant v. Naylor, 4 Cranch. 
 
 Gallup, 5 Den. 454 ; Church v. See- 234. 
 ley, no N. Y. 457. 
 
ESTATES FOR YEARS. 31/ 
 
 goes into possession, the conventional relation of landlord and 
 tenant is established, and reciprocal duties at once spring into 
 being. The landlord may resort to the process of distress, 
 or any other remedial measure to collect accruing rents. 
 Nor will the tenant be allowed to deny the landlord's title 
 under the parol lease, unless he can show actual eviction by 
 force of superior title, or that during the pendency of his 
 lease the landlord's title became extinguished. °'* 
 
 The Statute of Frauds enacts that all leases, estates, and 
 interests in lands, made without writing, signed by the par- 
 ties or their agents, lawfully authorized in writing, shall have 
 the force and effect of estates at will only (sec. i); except 
 leases not exceeding three years from the making, which 
 reserve at least two-thirds of the improved value of the land 
 (sec. 2); and that no lease, estate, or interest shall be 
 assigned, granted or surrendered unless by writing signed 
 by the assignor, grantor, etc., or his agent authorized in writ- 
 ing, except assignments, etc., by operation of law (sec. 3).'" 
 
 Verbal leases that are obnoxious to the Statute of Frauds 
 in some jurisdictions are denied the least effect whatever. 
 In others, they are regarded as sufficient to raise a tenancy at 
 will only. And in either case, it is adjudged that the act of 
 entering into possession by virtue of such a lease, creates a 
 tenancy at will. Payment of rent is what creates the trans- 
 formation. Whero this can be shown, the holding emerges 
 from its unsatisfactory condition as a tenancy at will, and at 
 once assumes all the attributes of an estate from year to 
 year. "" 
 
 It has been assumed, both upon reason and authority, that 
 a parol lease for more than a year is ineffectual to vest any 
 term whatever in the lessee, and that when he goes into pos- 
 session under it, with the consent of the lessor, and without 
 any further agreement, he is a tenant at will merely, and 
 subject to a liability for rent, on the terms agreed upon in 
 the parol lease as for use and occupation."" The court, in 
 
 '"Fuller V. Sweet, 30 Mich. 237; ""Ruder v. Sayer, 70 N. Y. 184; 
 
 Crawford v. Jones, 54 Ala. 459. Laughran v. Smith, 75 Id. 209; 
 
 "' 2 Bl. Com. 297 ; 2 Whart. Ev. Lockwood v. Lockwood, 22 Conn, 
 
 sees. 854-68, 883; Anderson's Law 425. 
 
 Diet. "' Barlow v.Wainwright, 22 Vt. 88. 
 
3l8 REAL PROPERTY. 
 
 other words, implies a new contract from the circumstances 
 surrounding the case, and thus secures justice on the one hand 
 and a satisfaction of the rule on the other. Obviously, the 
 mere entry with consent could not alone justify a presump- 
 tion to pay, in all cases, and a purpose manifest to accept a 
 portion of the rent provided for in the agreement may, as 
 evidence, go in support of such a new contract."' The rule 
 is established beyond controversy, that when a tenant holds 
 over after the expiration of his term, the law will imply an 
 agreement to hold for a year upon the terms of the prior 
 lease. And the option to so regard it is with the landlord 
 alone — the tenant holds over at his peril."" 
 
 If the evidence shows the lease was within the Statute of 
 Frauds, and the lessee entered under it, and paid rent for a 
 part of the term, such entry or the possession under such 
 contract will not, in an action at law, take the case out of the 
 operation of the statute.'"" But where a parol lease is made, 
 fixing the amount of rent, and the time of its payment, and 
 fixing the term at a greater period than one year, it is clearly 
 within the Statute of Frauds ; and the tenant entering under 
 such voidable contract and paying rent at the sum fixed by 
 the contract becomes a tenant from month to month, and is 
 entitled to notice to quit.'" Being such tenant, and haying 
 made payment of rent, and holding over from month to 
 month, he is liable monthly for the rent to be paid by the 
 terms of the contract under which he entered, in the absence 
 of another and different contract.'" We recognize the rule 
 to be that there can be no distress unless the relation of land- 
 lord and tenant exists, and there is a certain fixed rent in 
 money, produce, or services, payable at a certain time.'" 
 
 '"Huntington v. Parkhurst, 87 3*' Prickett v. Ritter, 16 111. 96; 
 
 Mich. 38 ; Morrill v. Mackman, 24 Warner v. Hale, supra. 
 
 Id. 279. 322 Prickett v. Ritter, supra ; Mc- 
 
 '"Tolle V. Orth, 75 Ind. 298; Kinney v. Peck, 28 111. 174; Brow- 
 Clinton V. Gardner, 99 111. 151; nell v. Welch, 91 Id. 523; Creighton 
 Scott V. Beecher, 91 Mich. 591. v. Sanders, 89 Id. 543. 
 
 ™ Wheeler V. Frankenthal, 78 111. ^^^ Valentine v. Jackson, 9 Wend. 
 
 124; Warner v. Hale, 65 Id. 395; 302; Hatfield v. Fullerton, 24 111. 
 
 Chicago Attachment Co. v. Davis 278 ; Johnson v. Prussing, 4 111. 
 
 Sewing Machine Co. 142 Id. 171, 15 App. 575 ; Taylor, Land. & Ten. sec. 
 
 L. R. A. 754. 561. 
 
ESTATES FOR YEARS. 319 
 
 The rule of law having been established that, where a parol 
 contract within the statute is made, and possession taken 
 under it, and payments of rent made thereunder, a tenancy 
 from month to month is created, the policy of the statute is 
 satisfied in preventing any person being charged in a contract 
 creating an interest in lands for a longer period than one 
 year by an oral contract, and having created the relation of 
 landlord and tenant, the contract, as far as stipulations are 
 made, not within the statute, governs the parties as long as 
 possession is retained, and the tenant has an interest from 
 month to month, and is regulated in every respect by the 
 terms of the lease except as to the term ; and the proof of the 
 contract is sufficient proof of the amount of rental per month 
 and time of payment/"' Rent being, by the terms of the 
 parol letting, which regulated the amount and time of pay- 
 ment of rent, the landlord has a right to distrain/"" 
 
 In Chicago Attachment Co. v. Davis Sewing Machine Co., 142 
 111. 171; 15 L. R. A. 754, it was said: "In Warner v. Hale, 
 supra, where suit was brought to recover rent on a verbal 
 contract leasing a dock for a term of more than one year, 
 and the Statute of Frauds was pleaded and relied upon as a 
 defense, we held that the facts that appellee was let into pos- 
 session of the premises under the contract, and occupied 
 them a while, and paid rent pursuant to the verbal contract, 
 did not take the case out of the statute, and that there could, 
 therefore, be no recovery under the contract, and that the 
 only remedy of the lessor was under a quantum meruit for use 
 and occupation. ' ' 
 
 A parol lease of real estate for the term of one year to 
 commence in futuro, is invalid, being an agreement which by 
 its terms is not to be performed within one year from the 
 making thereof. "" The States that have held that an oral 
 
 «" Doe V. Bell, 5 T. R. 471 ; Rich- ^''■^ Schuyler v. Leggett, supra. 
 
 ardson v. Gififord, i Ad. & El. 52; ^^'Jellett v. Rhode, Minn. 1890; 
 
 Schuyler v. Leggett, 2 Cow. 660; Wheeler v. Frankenthal, 78 III. 124; 
 
 People v. Rickert, 8 Id. 226 ; Bar- Hawley v. Moody, 24 Vt. 603 ; 
 
 low V. Wainwright, 22 Vt. 88, 52 Parker v. Hollis, 50 Ala. 41 1 ; Wolf 
 
 Am. Dec. 79 ; Laughran v. Smith, v. Dozer, 22 Kan. 436 ; Atwood v. 
 
 75 N. y. 205 ; I Greenl. Cruise. 246 ; Norton, 31 Ga. 507. 
 Browne, Stat. Fr. sec. 39. 
 
320 REAL PROPERTY. 
 
 lease for one year to begin in futuro was valid may be divided 
 into two classes dependent upon differences existing in their 
 respective statutes. In the first class are Indiana, Maryland 
 and New Jersey. In these States oral leases for a period not 
 exceeding three vears are valid."' In the second class are 
 New York, Michigan and Wisconsin.'" 
 
 When the lease is void by reason of the provisions of the 
 statute, that does not render the contract an illegal or unlaw- 
 ful one, if the parties choose to perform it. If the lease is 
 verbal, and the term is for a longer time than one year, it is 
 void in the sense that neither party can compel the other to 
 perform it. The landlord need not, in such a case, give the 
 tenant possession of the premises, if he chooses not to do so, 
 and no action will lie by the tenant for the refusal. So, on 
 the other hand, the tenant may refuse to accept the posses- 
 sion of the premises, and no action will lie by the landlord 
 against the tenant in consequence thereof. The parties may, 
 however, go on and perform the agreement, although they 
 could not be compelled to do so. And in such case, if the 
 tenant goes into possession of the demised premises and occu- 
 pies them, he will then be bound to perform the agreement, 
 by paying the rent agreed, for such time as he may remain 
 in possession, in the same manner as though the lease had 
 been reduced to writing.™ And during the time which the 
 tenant occupies the premises under the terms of such parol 
 agreement, he will be bound to perform the terms of it on 
 his own part."'" 
 
 § 140. Principles of eviction examined, a. The term defined. 
 In Upton V. Townsend, 17 C. B. 30, Jervis, Ld. Ch. J., says: 
 "It is extremely dif&cult at the present day to define with 
 technical accuracy what is an eviction. The word ' eviction' 
 was formerly used to denote an expulsion by the assertion 
 of a paramount title and by process of law. But that sort of 
 eviction is not necessary to constitute a suspension of the 
 
 '"Huffman v. Starks, 31 Ind. ="8 Becar v. Flews, 64 N. Y. 518; 
 
 474; Union B. Co. v. Gittings, 45 Whiting v. Olert, 52 Mich. 462. 
 
 Md. 18; Birckhead V. Cummins, 33 '"Schuyler v. Leggett, 2 Cow. 
 
 N. J. L. 44. 660; I Wait's Law & Pr. 645. 
 
 330 
 
 Id. 
 
ESTATES FOR YEARS. 32 1 
 
 rent, because it is now well settled that, if the tenant loses 
 the benefit of the enjoyment of any portion of the demised 
 premises by the act of the landlord, the rent is thereby sus- 
 pended." In Hoeveler v. Fleming, gi Pa. 322, the Supreme 
 Court of the State of Pennsylvania, speaking by Mr. Justice 
 Paxson, says : ' ' The modern doctrine as to what constitutes 
 an eviction is that actual physical expulsion is not necessary, 
 but any interference with the tenant's beneficial enjoyment 
 of the demised premises will amount to an eviction in law. 
 Thus in Doran v. Chase, 2 W. N. C. 609, this court affirmed 
 the ruling of the court below, that 'a landlord's refusal to 
 allow an undertenant to enter the premises, under threats of 
 suit, whereby the lessee is deprived of under letting, is such 
 an interruption of the latter 's rights as amounts to an evic- 
 tion. ' So an eviction of the lessee from any part of the de- 
 mised premises will suspend accruing rent."' If the landlord 
 claim and use certain privileges upon the demised premises, 
 against the tenant's consent, he must show a reservation of 
 them, or the rent is suspended.'"' And I apprehend there 
 might be a legal eviction by confining the tenant to the de- 
 mised premises, as by closing up a way which was his only 
 means of egress and ingress. Any act of the landlord which 
 deprives the tenant of that beneficial enjoyment of the prem- 
 ises to which he is entitled under the lease will amount in 
 law to an eviction, and suspend the rent. ' ' 
 
 Eviction is a popular term for ousting a tenant from the 
 possession of real property either by re-entry or by legal 
 proceedings such as an action of ejectment. The term eludes 
 technical accuracy of definition and is frequently referred to 
 as I, "actual ;"2,"constructive" and 3, "total." Eviction from 
 all parts of the premises suspends the entire rent for the time 
 being. The tenancy is not thereby ended, but the rent and 
 all remedy for its collection is thereby suspended. To have 
 the effect of suspending the rent the eviction must be effected 
 before the rent becomes due, for rent already overdue is not 
 forfeited. The rule is the same although the rent is payable 
 in advance and the eviction occurs before the expiration of 
 
 «" Linton v. Hart, 25 Pa. 193, 64 s'! Vaughan v. Blanchard, 4 U. S. 
 Am. Dec. 691. (4 Dall.) 124, i L. ed. 769. 
 
 21 
 
322 REAL PROPERTY. 
 
 the period in which the rent claimed accrues.'" It should be 
 added that the covenants for seizin in fee simple and for good 
 right to convey generally inserted by conveyancers are noth- 
 ing more in legal effect, that covenants against eviction 
 differing in this respect from the familiar covenant for quiet 
 enjoyment.'" The idea is now abandoned that the ouster'" 
 must be by due process of law. The present rule simply 
 holds that covenants of warranty and for quiet enjoyment are 
 broken whenever there has been an involuntary loss of pos- 
 session by reason of the hostile assertion of an irresistible 
 title. And it is abundantly settled that the eviction may be 
 "constructive" — as when caused by the inability of the pur- 
 chaser to gain possession by reason of the paramount title.'" 
 
 b. Classified as actual or constructive — total or partial. Evic- 
 tion from land may be either actual or constructive. It is 
 the former when the vendee or lessee is expelled from, or 
 deprived of the actual possession by process of law, conse- 
 quent upon a judgment, or by the exercise of the common 
 law right of entry, or when he voluntarily but actually aban- 
 dons possession, and surrenders to an adverse title asserted 
 against him.'" 
 
 It is a constructive eviction when such grantee or lessee, 
 being entitled to be put in possession under his deed or lease, 
 has never had it, nor been able to obtain it, by reason of a 
 paramount adverse title ; or when he accepts a lease or other 
 conveyance under an adverse claimant, either before or after 
 a judgment establishing the title of such claimant, and 
 remains in possession, as he may lawfully do if such title is 
 
 ^^ Hunter v. Reiley, 43 N. J. L. mere trespass. The intention fixes 
 
 482; 3 Kent, 464. the true character of the entry. 
 
 ™ Child V. Stenning, 11 Ch. Div. (Bath v. Valder, 7oCal. 357 ; Ewing 
 
 82. V. Bernett, ii Pet. 52; Newell v. 
 
 ^'"Ouster simply imports a dis- Woodruff, 30 Con. 497.) Generally 
 
 possession. Entry upon another's it may be affirmed that to " oust " a 
 
 land, if made under color of title, is person from land is to take the 
 
 an ouster, as it is an exclusion of possession from him so as to de- 
 
 the owner from the enjoyment of prive him of the freehold. (Co. 
 
 the realty. In legal contemplation Litt. 181, a.) 
 it is accompanied with an inten- ^^ Fritz v. Pusey, 31 Minn. 370. 
 tion to remain in occupancy of the '" Rawle's Covenants for Title, 
 
 land or building, otherwise it is a 241. 
 
ESTATES FOR YEARS. ■ 323 
 
 in fact paramount ; or when the eviction is not of the land 
 itself, but of something which represents the land, or of 
 some incident to its enjoyment.'^' 
 
 Eviction may be total or partial. It is total when the pos- 
 sessor is wholly deprived of his rights in the whole thing ; 
 partial when he is deprived of only a portion of the thing ; 
 as, if he had fifty acres of land, and a third person recovers 
 by a better title twenty-five ; or, of some right in relation to 
 the thing ; as, if a stranger should claim and establish a right 
 to some easement over the same. When the grantee suffers 
 a total eviction, and he has a covenant of seizin, he recovers 
 from the seller, the consideration money, with interest and 
 costs, and no more. The grantor has no concern with the 
 future rise or fall of the property, nor with the improve- 
 ments made by the purchaser. This seems to be the general 
 rule in the United States.'" In Massachusetts the measure 
 of damages on a covenant of warranty is the value of the 
 land at the time of eviction."" 
 
 When the eviction is only partial, the damages to be 
 recovered under the covenant of seizin, are a ratable part of 
 the original price, and they are to bear the same ratio to the 
 whole consideration, that the value of land to which the title 
 has failed, bears to the value of the whole tract. The con- 
 tract is not rescinded, so as to entitle the vendee to the 
 whole consideration money. ^" 
 
 c. What constitutes — special acts of. To constitute an evic- 
 tion, such as will result in a suspension of rent, there must 
 be some positively aggressive act such as an actual expulsion 
 of the tenant, or some act of a permanent character deliber- 
 ately done for the purpose of depriving the tenant of the due 
 enjoyment of the demised premises to which the tenant 
 yields within a reasonable time. As to what is reasonable 
 time depends upon the facts and circumstances surrounding 
 each particular cage."" 
 
 '^sRawle's Covenants for Title, ^40 3 Mass. R. 523; 4 Id. 108; see 
 
 241. as to other States, i Bay. R. 19, 265 ; 
 
 ^^ 3 Caines' fJ. in ; 4 Johns. R. 3 Des. Eq. R. 245; 2 Const. R. 584; 
 
 i; 13 Id. 50; 4 Dall. R. 441; 2 McCord's R. 413 ; 3 Call's R. 326. 
 
 Cooke's Tenn. R. 447 ; i Harr. & ^^ Bouvier's Law Diet. 
 
 Munf. 202; 5 Munf. R. 415 ; 4 Halst. ^' Bartlett v. Farrington, 120 
 
 R. 139; 2 Bibb. R. 272. Mass. 284. 
 
324 REAL PROPERTY. 
 
 No general principle is better settled or more uniformly 
 adhered to than that there must be an entry and expulsion 
 of the tenant by the landlord, or some deliberate disturbance 
 of the possession depriving the tenant of the beneficial enjoy- 
 ment of the demised premises, to operate a suspension or 
 extinguishment of the rent. The cases are collected and 
 well considered by Mr. Justice Kennedy, in Bennett v. Bittle 
 and Another, 4 Rawle, 339, and they establish the proposition 
 stated beyond all manner of doubt. It would be a work of 
 supererogation to go over them again, after the full and satis- 
 factory review there taken. Dyett v. Pendleton, 8 Cow. 727, 
 decided in the New York Court for the Correction of Errors, 
 shows only an application of the doctrine to an extreme case. 
 That adjudication is not to be regarded as introducing a new 
 principle, nor as establishing an exception to the general 
 rule. There, the grossly lewd and immoral conduct of the 
 landlord in the adjoining premises (another part of the same 
 dwelling) was so offensive to common decency, and accom- 
 panied with such riotous and outrageous disturbances, as 
 effectually to destroy the quiet occupation and beneficial en- 
 joyment of the demised tenement, and render it uninhabit- 
 able by respectable people. This was considered such a dis- 
 turbance and destruction of the reasonable use and occupation 
 of the premises, as amounted to a virtual expulsion of the 
 tenant. 
 
 In order to constitute an eviction, it is not necessary that 
 there should be an actual physical expulsion. Acts of grave 
 and permanent character, which amount to a clear indication 
 of intention on the landlord's part to deprive the tenants of 
 the enjoyment of the demised premises, will constitute an 
 eviction.'" If the acts of the landlord are such as merely 
 tend to diminish the beneficial enjoyment of the premises, 
 the tenant is still bound for the rent, if he continues to 
 occupy the premises. Unless he abandons the premises, his 
 obligation to pay the rent remains.'" As said in Chicago 
 Legal News Co. v. Browne, 103 111. 317: "The rule is well 
 settled that the wrongful act of the landlord does not bar 
 him from a recovery of rent, unless the tenant by such act 
 
 *"Hayner v. Smith, 63 111. 430, 14 "4 skally v. Shute, 132 Mass. 367. 
 Am. Rep. 124. 
 
ESTATES FOR YEARS. 325 
 
 has been deprived in whole or in part of the possession, either 
 actually or constructively, or the premises rendered useless.'"" 
 To "evict" a tenant, according to the original signification 
 of the word, is to deprive him of the possession of the land. 
 But the landlord, without being guilty of an actual physical 
 disturbance of the tenant's possession, may yet do such acts 
 as will justify or warrant the tenant in leaving the premises. 
 The latter may abandon the premises in consequence of such 
 acts, or he may continue to occupy them. If he abandons 
 them, then the circumstances which justify such abandon- 
 ment, taken in connection with the act of abandonment itself, 
 will support a plea of eviction, as against an action for rent. 
 If, however, the tenant makes no surrender of the possession, 
 but continues to occupy the premises, after the commission 
 of the acts which would justify him in abandoning them, he 
 will be deemed to have waived his right to abandon, and he 
 cannot sustain a plea of eviction by showing that there were 
 circumstances which would have justified him in leaving the 
 premises ; hence it has been held that there cannot be a con- 
 structive eviction without a surrender of possession. It 
 would be unjust to permit the tenant to remain in posses- 
 sion, and then escape the payment of rent by pleading a 
 state of facts which, though conferring a right to abandon, 
 had been unaccompanied by the exercise of that right."' 
 
 But though the tenant will not be allowed to plead eviction 
 as a bar to the recovery of rent where he has remained in 
 possession after the performance of the acts which would 
 have justified him in leaving the premises, yet he is not for 
 that reason without remedy. 
 
 In those States where the doctrine of recoupment is recog- 
 nized, he may recoup such damages as he may have sustained 
 
 *** Edgerton v. Page, 20 N. Y. Rep. 446; Wright v. Lattin, 38 111. 
 
 284; Halligan V. Wade, 21 111. 470, 293; i Taylor, Land. & Ten. (8th 
 
 74 Am. Dec. 108; Leadbeater v. ed.) sees. 380, 381, and notes; Wood, 
 
 Roth, 25 111. 587. Land. & Ten. (2d ed.) sec. 477, 1 104- 
 
 "8 Edgerton v. Page, supra / Bo- 1106; Alger v. Kennedy, 49 Vt. 
 reel v. Lawton, 90 N. Y. 293, 43 109, 24 Am. Rep. 117; Scott v. Si- 
 Am. Rep. 170; DeWitt v. Pierson, monds, 54 N. H. 426; Jackson v. 
 112 Mass. 8, 17 Am. Rep. 58; War- Eddy, 12 Mo. 209. 
 ran v. Wagner, 75 Ala. 188, 51 Am. 
 
326 REAL PROPERTY. 
 
 by reason of the acts of the landlord, against the rent sought 
 to be recovered.'" Taylor, in his work on Landlord and 
 Tenant (sec. 631), says: "By the law of recoupment, as now 
 established in many of the United States, the tenant can 
 avail himself as a defense pro tanto to an action of debt for 
 rent, of the landlord's breach of his covenants." The doc- 
 trine of recoupment is recognized in this State, and has been 
 applied in proceedings begun by the issuance of distress war- 
 rants, and in actions for rent.'"" In Lynch v. Baldwin, supra, 
 where the landlord had issued a distress warrant, held, ' ' As 
 to recouping damages for any loss or injury sustained by 
 the tenant, we have no doubt that it may be done, as they 
 grow out of the same transaction. The object of this in- 
 quiry is to ascertain the amount of rent due ; and if the acts 
 of the landlord impaired the value of the use of the premises, 
 then the tenant should not pay the same rent as if the land- 
 lord had .done no act to reduce such value. ' ' In Pepper v. Row- 
 ley, supra, which was an action to recover rent due under a 
 lease, held, ' ' If there has been a breach of any covenant con- 
 tained in the lease, whatever damages appellee has sustained 
 in consequence thereof may be recouped in this action from 
 the amount of rent due under the lease." 
 
 It has been argued that even the erection of a building by 
 the landlord upon adjoining land would be an eviction, if it 
 stopped the tenant's windows, under the ruling in Dyett v. 
 Pendleton, 8 Cow. 727. In that case the New York Court of 
 Errors held that the creation of a nuisance by the landlord 
 in another tenement under the same roof, by bringing lewd 
 women into it, who made a great noise and disturbance there 
 at night, in consequence of which the lessee and his family 
 left the demised premises, was evidence to go to the jury 
 tinder a plea of eviction. Upon that case it is to be observed 
 
 1 St, The act of the landlord was an unlawful act, and not a 
 lawful use of his other tenement; 2d, The decision of the 
 Court of Errors was not that the facts in law amounted to an 
 eviction, but only that they should have been submitted to 
 
 3^'i Taylor, Land. & Ten. sec. 631 ; ^ Wright v. Lattin, supra ; Lind- 
 
 2 Wood, Land. & Ten. sec. 477, ley v. Miller, 67 111. 244; Lynch v. 
 1 107; Edgerton v. Page, and War- Baldwin, 69 Id. 210; Pepper v. 
 ren v. Wagner, supra. Rowley, 73 Id. 262. 
 
ESTATES FOR YEARS. 327 
 
 the jury; 3d, That decision reversed the unanimous judg- 
 ment of the Supreme Court, as reported in 4 Cow. 581 ; 4th, 
 It has since been considered, even in New York, an extreme 
 case."' In Palmer v. Wetmore, 2 Sandf. 316, the Superior 
 Court of the city of New York, consisting of Chief Justice 
 Oakley and Justices Vanderpoel and Sandf ord, adjudged that 
 the mere fact of the erection of a building by a landlord on 
 his adjoining land, so as to obstruct and darken the tenant's 
 windows, was not an eviction. To the same effect is Myers 
 V. Gemmel, 10 Barb. 537. See, also, the learned opinion of 
 Judge Daly in Edgerton v. Page, i Hilt. 320; s. c. 20 N. Y. 
 281. 
 
 d. Summary of the New York adjudications. The adjudica- 
 tions in New York are summed up in Johnson v. Oppenheim, 
 1 2 Abb. Pr. N. S. 449, as follows : 
 
 "i, Cases where the tenant is evicted, without the willful 
 or voluntary agency of the landlord, from the whole or some 
 part of the demised premises, as for example, an eviction of 
 the tenant by title paramount of a contiguous proprietor. 
 Here, if the eviction is from the whole premises, the tenant 
 is not chargeable with rent ; but if it be from a part of the 
 premises, the law in its inability to impute blame to the land- 
 lord for the act of another person, requires the rent to be 
 apportioned, so that the tenant shall be liable to pay for such 
 portions of the premises as he retains. '"" 
 
 "2, Cases where the landlord commits an act or acts of 
 trespass, which interfere, more or less, with the beneficial 
 enjoyment of the premises, but which leave the demised 
 premises intact, and do fiot deprive the tenant of any part of 
 them, so that though he may be injured, he is not thereby 
 dispossessed. Here the rule is, inasmuch as the wrongful 
 act of the landlord stops short of depriving the tenant of any 
 portion of the premises, that such trespass is no defense 
 against the liability for rent, and the tenant's sole remedy 
 therefore is an action for damages against the wrongdoer. °" 
 
 "' Savage, C. J., in Etheridge v. ™ Moffat v. Strong, 9 Bosw. 57 ; 
 
 Osborn, 12 Wend. 529. 532; Nelson, and see Mack v. Patchen, 29 How. 
 
 C. J., in Ogilvie v. Hull, 5 Hill, 52, Pr. 20, i Am. Rep. 506. 
 
 54; Bronson, C. J., in Gilhooley V. ^°' Edgerton v. Page, 20 N. Y. 
 
 Washington, 4 Comst. 217,219. 281; Lounsbery v. Snyder, 31 N. 
 
328 REAL PROPERTY. 
 
 ' ' 3, Cases where the landlord enters wilfully upon and ex- 
 pels the tenant, actually or constructively, from a part of the 
 demised premises. Here the rule is, that the whole rent is 
 suspended during the term, though the tenant continues in 
 possession of the residue.'"" 
 
 e. Partial evictions under title paramount by eminent domain. 
 Eviction by title paramount from a part of the premises is a 
 bar pro tanto only, the rent being apportionable.'" 
 
 But partial eviction by the landlord's vendee with his con- 
 sent is the act of the landlord and bars any claim for rent.'" 
 
 As a partial eviction of the tenant from the premises de- 
 mised under title paramount is no release from the obligation 
 to pay rent it is equally true that a partial eviction by emi- 
 nent domain will not constitute a breach of the leasehold 
 covenants and will not exempt the tenant from the obliga- 
 tion to pay rent.'" 
 
 In Foote v. Cincinnati, 1 1 Ohio, 408, 38 Am. Dec. "Jiy, where 
 the leased premises had been appropriated for a street, the 
 Supreme Court held that the lessee was not released from the 
 payment of rent, but he was entitled to recover from the 
 city for the damages sustained. See, also, the following 
 cases, where the same principle is announced : Workman v. 
 Mifflin, 30 Pa. 32; Frost v. Earnest, 4 Whart. 86; Chicago v. 
 Garrity, 7 111. App. 474. 
 
 For the rule adopted in Missouri see Biddle v. Hussman, 23 
 Mo. 597 ; Barclay v. Pickles, 38 Mo. 143. In those cases it was 
 held that, as to the part of the leased premises appropriated 
 to public use, the rent was extinguished, and no liability ex- 
 isted against the lessee for such rents. 
 
 The Supreme Court of Illinois has refused to sanction the 
 
 Y. 514; Cram v. Dresser, 2 Sandf. '** Halligan v. Wade, supra. 
 
 120; Mortimer V. Brunner, 6 Bosw. ^'''Schilling v. Holmes, 23 Cal. 
 
 653; Peck V. Hiler, 31 Barb. 117. 330; Parks v. Boston, 15 Pick. 198; 
 
 ^li' Christopher v. Austin, 11 N. Wagner v. White, 4 Harr. &J. 564; 
 
 Y. 216; Peck V. Hiler, 24 Barb. Ellis v. Welch, 6 Mass. 246,4 Am. 
 
 178- Dec. 122; Folts V. Huntley, 7 
 
 '''^ Fillebrown v. Hoar, 124 Mass. Wend. 210; Peck v. Jones, 70 Pa. 
 
 580; Halligan v. Wade, 21 111. 470, 85; Dyer v. Wightman, 66 Pa. 
 
 74 Am. Dec. 108 ; Poston v. Jones, 427. ' 
 37 N. C. 350, 38 Am. Dec. 683. 
 
ESTATES FOR YEARS. 329 
 
 rule above stated, and holds the decisions last cited to be 
 against the weight of authority."" 
 
 Statutory provision for apportionment of rent, where part 
 of the leased premises are taken by eminent domain, may be 
 waived by the parties."' 
 
 f. Effect of. It is settled by a current of authority that an 
 eviction of a tenant by the landlord of demised premises sus- 
 pends the rent. The reason of this rule is well stated by 
 Baron Gilbert in his Treatise on Rents, at page 145 : "A rent 
 is something given by way of retribution to the lessor, for 
 the land demised by him to the tenant, and consequently the 
 lessor's title to the rent is founded upon this : that the land 
 demised is enjoyed by the tenant during the term included 
 in the contract; for the tenant can make no return for a 
 thing he has not. If, therefore, the tenant be deprived of 
 the thing letten, the obligation to pay rent ceases, because 
 such obligation has its force only from the consideration, 
 which was the enjoyment of the thing demised." 
 
 The modern doctrine as to what constitutes an eviction is, 
 that actual physical expulsion is not necessary, but any inter- 
 ference with the tenant's beneficial enjoyment of the demised 
 premises will amount to an eviction in law. Thus in Doran v. 
 Chase, 2 W. N. C. 609, the court affirmed the ruling of the court 
 below, saying that "A landlord's refusal to allow an under 
 tenant to enter the premises, under threats of suit, whereby 
 the lessee is deprived of underletting, is such an interruption 
 of the latter's rights as amounts to an eviction." So an evic- 
 tion of the lessee from any part of the demised premises will 
 suspend accruing rent."* If the landlord claim and use cer- 
 tain privileges upon the demised premises, against the ten- 
 ant's consent, he must show a reservation of them, or the 
 rent is suspended."" And I apprehend there might be a 
 legal eviction by confining the tenant to the demised prem- 
 ises, as by closing up a way which was his only means of 
 egress and ingress. Any act of the landlord which deprives 
 the tenant of that beneficial enjoyment of the premises to 
 
 *=• Stubbings v. Evanston, 11 L. '*' Linton v. Hart, i Casey, 193. 
 
 R. A. 839, note, 136 111. 37. '^^ Vaughan v. Blanchard, 4 Dall. 
 
 35' Phyfe V. Eimer, 45 N. Y. 102. 124. 
 
330 REAL PROPERTY. 
 
 which he is entitled under the lease, will amount in law to 
 an eviction and suspend rent. 
 
 How far the entry of the landlord to make repairs will work 
 an eviction must depend, to some extent, upon the circum- 
 stances of each particular case. When the landlord is bound 
 by the lease to make repairs, and the repairs are merely such 
 as are required by ordinary wear and tear, no difficulty is 
 likely to arise. And where he is not bound to do so, but 
 makes them for the benefit of the property and the conve- 
 nience of the tenant, the dangers of a contest are equally 
 remote, as tenants are more willing, as a general rule, to 
 have the property put in order than landlords are to incur 
 the expenditure. In Pier v. Carr, 19 P. F. Smith, 326, where 
 the tenant had been sold out by a constable, under a warrant 
 for taxes, and after the sale, the constable had delivered the 
 key to the landlord, who put a bill "to lefupon the prem- 
 ises, and proceeded to have some slight repairs made, it was 
 held there was no eviction. 
 
 The rule has long been settled, that a wrongful eviction of 
 the tenant by the landlord, frora the whole or any part of the 
 demised premises, before the rent becomes due, precludes a 
 recovery thereof until the possession is restored. ''° Whether 
 this eviction must be actual by the forcible removal of the 
 tenant by the landlord from the demised premises or a por- 
 tion thereof, was not settled in this State until the case of 
 Dyett V. Pendleton, 8 Cow. 728. In that case, the principle 
 was established by the Court for the Correction of Errors, 
 that when the lessor created a nuisance in the vicinity of the 
 demised premises, or was guilty of acts that precluded the 
 tenant from a beneficial enjoyment of the premises, in conse- 
 quence of which the tenant abandoned the possession before 
 the rent became due, the lessor's action for the recovery of 
 the rent was barred, although the lessor had not forcibly 
 turned the tenant out of possession. Ever since that case, 
 this has been considered as a settled rule of law binding 
 upon all the courts of the State. Such act of the lessor, 
 accompanied by an abandonment of possession by the lessee, 
 is deemed a virtual expulsion of the tenant, and, equally with 
 
 ^^ Christopher V. Austin, i Kern. 217. 
 
ESTATES FOR YEARS. 331 
 
 an actual expulsion, bars the recovery of rent. The reason 
 of the rule is, that the tenant has been deprived of the 
 enjoyment of the demised premises by the wrongful act of 
 the landlord ; and thus the consideration of his agreement to 
 pay rent has failed. In case of eviction from a portion of the 
 premises, the law will not apportion the rent in favor of the 
 wrongdoer. 
 
 In a case where rooms beneath the demised premises were 
 occupied by another tenant of the same landlord, who was of 
 notoriously bad character, and who used them for the pur- 
 poses of prostitution, causing great disturbance of the tenant 
 above, but there was no evidence that the landlord let such 
 rooms for the purpose of being so used as to disturb that 
 tenant, or that he knew of their being put to such use, or 
 that any evidence thereof was given him, that fact alone was 
 held not to constitute a defense to an action for rent.'" 
 
 Where a tenant is evicted from a material portion of demised 
 premises he may exercise his option of either treating it as an 
 eviction from the entire property in which event he may 
 wholly abandon his lease and so absolve himself from all 
 liability for rent due after the eviction, or he may remain in 
 the occupancy of the remainder of the premises and maintain 
 an action against the lessor, for a breach of the covenant for 
 quiet enjoyment. °" 
 
 Eviction from the demised premises by the landlord sus- 
 pends the payment of the rent during the period of continuance 
 of the eviction and in Leishman v. White, i Allen, 489, it was 
 distinctly held that eviction from a portion of a leasehold 
 relieved the tenant from any payment of the stipulated rent 
 on the ground that the landlord should not be allowed to so 
 apportion his own wrong as to compel the lessee to pay 
 anything for the residue. This decision is in full accord with 
 numerous English decisions on the subject.'" 
 
 *" DeWitt V. Pierson, 112 Mass. 489; Christopher v. Austin, i Kern. 
 
 8; S. C. 17 Am. Rep. 58. 216. 
 
 *** Morrison v. Chadwick, 7 C. B. ^^^ See Upton v. Townsend, 17 C. 
 
 266; Leschman v. White, i Allen, B. 30. 
 
332 real property. 
 
 Covenant of Title Eviction. 
 
 g. Remedies on covenant. There are some dicta in the early 
 cases to the effect that there must be an eviction by process 
 of law to warrant an action for breach of covenant for quiet 
 enjoyment. The true rule deduced from the modern authori- 
 ties is to the effect that there must be an actual disturbance 
 of the possession; and where the covenantee is rightfully 
 out of possession, either by legal process or lawful entry of 
 the real owner, or by an enforced surrender by the cove- 
 nantee to one holding the title paramount, there is in legal 
 contemplation such an eviction as will sustain an action for 
 breach of covenant. But to constitute an eviction it is neces- 
 sary that there should be an actual dispossession of the 
 grantee. If the superior title is asserted in such an aggressive 
 manner as to leave practically no choice in the covenantee, in 
 other words, in such a way that he is per force, obliged to yield 
 to its superior equities, he is at liberty to purchase or lease of 
 the true owner as he is no longer a claimant under the former 
 title, so far as that title is concerned, he has been evicted and 
 has become a lessee or grantee under the paramount title.'" 
 
 There are many well reasoned cases that hold that where 
 an eviction, without process of law, is shown, there is a 
 breach of the covenant of quiet enjoyment, as in the case 
 where the true owner at common law had the right to enter 
 without suit, and where the covenantee was never able to 
 obtain possession of the granted premises, which were in 
 possession of the owner of the paramount title. The case 
 of Waldron v. McCarty, 3 Johns. 471, as understood, is con- 
 trary to the doctrine laid down in Greenvault v. Davis, 4 Hill, 
 643. In that case Mr. Justice Bronson says: "There are 
 some dicta in the books that there must be an eviction by 
 process of law, but I have met with no case where it was so 
 adjudged." And again, "Upon principle, I can see no 
 reason for requiring an eviction by legal process. When- 
 ever the grantee is ousted of possession by one having a 
 
 ^" See Sugden on Vendors, 745, 586; Funk v. Creswell, 5 Clark, 86; 
 and note ; Greenvault v. Davis, 4 Brady v. Spurck, 27 II!. 478 ; Stew- 
 Hill, 643; Loomis V. Bedel, 11 N. art v. Drake, 4 Halst. 139; Rawle 
 H. 74; Sprague v. Baker, 17 Mass. on Covenants, 278. 
 
ESTATES FOR YEARS. 333 
 
 lawful right to the property paramount to the title of the 
 grantor, the covenants of warranty and for quiet enjoyment 
 are broken and the grantee may sue. ' ' 
 
 "When the grantee surrenders or suffers the possession to 
 pass from him without a legal contest, he takes upon himself 
 the burden of showing that the person who entered had a 
 title paramount to that of his grantor. But there is no reason 
 why such surrender, without the trouble and expense of a 
 law suit, should deprive him of the remedy on the covenant. 
 The grantor is not injured by such an amicable ouster. On the 
 contrary, it is a benefit to him, for he thus saves the expense 
 of an action against the grantee to recover the possession. 
 
 h. Measure of damages. The measure of damages awarded 
 in an action for breach of covenant of title, after eviction 
 shown is — in the case of a grantee — the purchase money 
 and interest; but where the covenantee has purchased or 
 bought in the superior title it is the amount of the purchase 
 price together with the amount of his disbursements in de- 
 fending his possession provided such sum shall not exceed 
 the purchase money and interest. This is the well settled 
 rule in McGary v. Hastings, 39 Cal. 360. 
 
 While there is some fluctuation in the decisions as to the 
 proper measure of damages, generally there is much force 
 given to the rule that the consideration paid should be con- 
 sidered as controlling in such cases.'" This rule is sanctioned 
 by the Supreme Court of the United States. '"° As between 
 lessor and lessee the measure of damages is the value of the 
 unexpired term.'" 
 
 In cases of an eviction, on a covenant of seizin and war- 
 ranty, the rule seems to be to allow the consideration money, 
 with interest and costs."" But in Massachusetts, on the cove- 
 nant of warranty, the measure of damages is the value of the 
 land at the time of eviction.'" 
 
 2»' Bender v. Fromberger, 4 Dall. ^ 6 Watts & Serg. 527 ; 2 Dev. R. 
 
 441. 30; 3 Brev. R. 458; see 7 Shepl. 
 
 '«' See Lanigan v. Kille, 97 Pa. 260 ; 4 Dev. 46. 
 
 St. 120. 2=' 4 Kent's Com. 462, 3, and the 
 
 ^" Mack V. Patchen, 42 N. Y. cases there cited ; 3 Mass. 523 ; 4 
 
 167; and see Clarkson v. Skidmaor, Id. 108; i Bay. 19,265 : 3 Des. Eq. 
 
 46 N. Y. 297, opinion by Rapallo, R. 247 ; 4 Penn. St. R. 168. 
 which exhausts the subject. 
 
334 REAL PROPERTY. 
 
 § 141. Leasing " on shares." I merely conform to general 
 usage by inserting this subdivision in this particular place. 
 The authorities are conflicting, but, in my opinion, the bet- 
 ter reasoned cases hold that agreements of this character — 
 and they are very common — do not constitute the conven- 
 tional relation of landlord and tenant, but rather as between 
 the cropper and the landlord, the relation is that of tenancy 
 in common."" 
 
 Opposing these authorities are others holding that the rela- 
 tion between landlord and cropper is, in legal effect, the 
 relation of landlord and tenant."' We do not care to intrude 
 upon this controversy any further than by expressing our 
 preference for the first named view. And the subject will 
 accordingly receive due expansion in the chapter on Joint 
 Tenancy. 
 
 § 142. Letting on shares. One to whom land is let to be 
 cultivated on shares, has an interest in the premises ; he is 
 not a mere servant of his lessor."" A tenancy from year to 
 year cannot grow out of such an occupancy, though it may 
 out of an occupancy under a parol lease for more than a year."' 
 
 A cropper then is one who, having no interest in the land, 
 works it in consideration of receiving a portion of the crop 
 for his labor."' 
 
 Working land on shares — riglit to crops. An agreement to 
 allow one to work land on shares for a single crop is no lease 
 of the land, but the parties to such an agreement become 
 tenants in common of the crop. They acquire a joint prop- 
 erty in the growing crop, and may unite in an action of tres- 
 pass de bonis for cutting it away."" In Green v. Armstrong-, 
 I Denio, 554, numerous cases are cited to show that growing 
 
 ™ Deraott V. Hagerman, 8 Cow. '" Putnam v. Wise, i Hill ; Har- 
 
 220; Bradish v. Schenck, 8 Johns, rower v. Heat, 19 Barb. 331; Wil- 
 
 152; Harris v. Frink, 49 N. Y. 24; ber v. Sisson, 54 N. Y. 121; Rey- 
 
 Guest V. Opdyke, 31 N.J. L. 554; nolds v. Reynolds, 48 Hun, 142; 
 
 Williams v. Nolan, 34 Ala. 167 ; Taylor v. Bradley, 39 N. Y. 129. 
 
 Wilbur V. Sisson, 54 N. Y. 121. ^"Unglish v. Marvin, 128 N. Y. 
 
 '■" Brown v. Jaquette, 94 Pa. St. 380; Condert v. Cohn, 118 Id. 309; 
 
 T13; Allwood V. Ruckman, 21 111. Loughran v. Smith, 75 Id. 205 ; Rei- 
 
 200; Woodruff V. Adams, 5 Blackf. der v. Sayer, 70 Id. 180. 
 
 317; Warner v. Abbey, 112 Mass. ™2 Rawle, R. 12. 
 
 355 ; Walls v. Preston, 25 Cal. 59. '" Harris v. Frink, 49 N. Y. 24. 
 
ESTATES FOR YEARS. 335 
 
 crops, wliich are the produce of manual labor and cultivation, 
 may be conveyed by verbal contract as goods and chattels 
 and sold on execution, and that trover may be maintained 
 for them against one in possession of the land/" And it has 
 been held in Pennsylvania that they may be mortgaged by 
 one out of possession of the premises."' 
 
 The occupancy of a house by a farm hand and his family 
 who are hired to do work connected with the farm for a cer- 
 tain price per day and the use of the house to live in, is inci- 
 dental to the employment, and the right thereto ceases with 
 the termination of the service, the possession being all the 
 time that of the owner. 
 
 § 143. Judicial construction of leases. It is the province of 
 the court to place a construction upon the lease, and the 
 dominating principle in such cases is to effectuate the inten- 
 tion of the parties, wherever this can be done without infring- 
 ing some particular rule of law or maxim of equity. In some 
 instances it is customary, upon controverted questions of 
 fact, for the court to instruct its conscience through the inter- 
 vention of a jury, and on the findings of fact to impress 
 the law applicable to the given case. Even in the case of 
 written contracts oral evidence is admissable to explain doubt- 
 ful paragraphs, although it is an elementary rule that resort 
 cannot be had to this mode of evidence in order to vary the 
 distinct terms of the writing itself."' 
 
 '"Austin V. Sawyer, 9 Cow. 39. Syckel, 32 N. J. Eq. 826; Perrine v. 
 
 '" Fry V. Miller, 45 Pa. St. 441. Cheeseman, 11 N. J. L. 207; Carl- 
 
 •"Eveleth v. Wilson, 15 Me. 109; ton v. Vineland Wine Co. 33 N. J. 
 
 Peterson v. Grover, 20 Id. 363 ; Eq. 466 ; Heilner v. Imbrie, 6 Serg. 
 
 Morrill v. Robinson, 71 Id. 24; & R. 401 ; Hagey v. Hill, 75 Pa. 
 
 Smith V. Gibbs, 44 N. H. 335 ; Brad- 108 ; Pennsylvania & N. Y. Canal 
 
 ley V. Bentley, 8 Vt. 243; Brandon Co. v. Betts, i Weekly Notes, 368, 
 
 Mfg. Co. V. Morse, 48 Id. 322; My- Weiler v. Hottenstein, 102 Pa. 499; 
 
 rick V. Dame, 9 Cush. 248 ; Finney WoodruflE v. Frost, 2 N. J. L. 322 ; 
 
 V. Bedford Commercial Ins. Co. 8 Young v. Frost, 5 Gill, 287; Batturs 
 
 Met. 348; Fay v. Gray, 124 Mass. v. Sellers, 6 Har. & J. 249; Crissv. 
 
 500; Drake v. Starks, 45 Conn. 96 
 La Farge v. Rickert, 5 Wend. 187 
 Spencer v. Tilden, 5 Cow. 144 
 
 Withers, 26 Md. 553; Farrow v. 
 Hayes, 5 r Md. 498 ; Baltimore Perm. 
 Bldg. & L. Soc, v. Smith, 54 Id. 
 
 Clark V. New York L. Ins. & T. Co. 187; Hunting v. Emmart. 55 Id. 
 7 Lans. 323 ; Dalrymple v. Van 265 ; McLean v. Piedmont & A. L, 
 
336 REAL PROPERTY. 
 
 Few postulates of the law can be regarded as binding and 
 effective tinder all possible conditions, and while it is abund- 
 antly true that parol evidence is ordinarily inadmissible to 
 vary the terms of a written instrument, it may always be en- 
 listed on the side of those who allege and seek to sustain an 
 allegation of fraud, mistake, accident or surprise. Indeed, 
 it may be said, that fraud is so abhorrent in the eyes of the 
 law that all courts will allow an almost morbid excess of evi- 
 dence to develop it ; they will strain the judicial prerogative 
 to the utmost limit, as to the reception of evidence wher- 
 ever there are elements in the case that arouse suspicion or 
 create plausible grounds for suspecting duplicity and bad 
 faith. Where these exist the rule is instantly relaxed and 
 the parties are at liberty to ' ' vary the terms of the written 
 instrument" by showing its fraudulent inception and charac- 
 ter, whereupon the court will modify or enlarge or totally 
 disregard any and all of its terms."' 
 
 In the California Code of Civil Procedure the general doc- 
 trine and the exceptions are formulated as follows: Sec. 
 1856, "When the terms of an agreement have been reduced 
 to writing by the parties, it is to be considered as containing 
 all those terras, and therefore there can be between the par- 
 Ins. Co. 29 Grat. 361 ; Little Kana- =" White v. Williams, 48 Barb. 
 wha Nav. Co. v. Rice, 9 W. Va. 222; Bradbury v. White, 4 Me. 391 ; 
 636; Serviss v. Stockstill, 30 Ohio Canterbury Aqueduct Co. v. Ens- 
 St. 418; Irwin V. Ivers, 7 Ind. 308; worth, 22 Conn. 608; Rogers v. 
 Davis V. Liberty & C. G. Road Co. Saunders, i6 Me. 92; Blanchard v. 
 84 Id. 36; Trentman v. Fletcher, 100 Moore, 4 J. J. Marsh, 471 ; Margraf 
 Id. 105; Seckler v. Fox, 51 Mich. v. Muir, 57 N. Y. 155; Peterson v. 
 92; McClure v. Jeffrey, 8 Ind. 79; Grover, 20 Me. 363; Van Ness v. 
 Abrams v. Pomeroy, 13 111. 133; Washington, 29 U. S. (4 Pet.) 232, 
 Belcher v. Mulhall, 57 Tex. 17; 7 L. ed. 842; Quinn v. Roath, 37 
 Pickett V. Ferguson, 45 Ark. 177; Conn. 16; Patterson v. Bloomer, 35 
 Koehring v. Muemminghoff, 61 Id. 57 ; Conover v. Wardell, 20 N. 
 Mo. 403; Porter v. Sandidge, 32 J. Eq. 266; Goodell v. Field, 15 Vt. 
 La. Ann. 449; Elliott v. Connell, 5 448; Chambers v. Livermore, 15 
 Smedes & M. 91 ; Tennessee & C. Mich. 381 ; Best v. Stow, 2 Sandf. 
 R. Co. V. East Alabama R. Co. 73 Ch. 298, 7 L. ed. 601 ; Perry v. 
 Ala. 426; Duff V. Ivy, 3 Stew. 140; Pearson, i Humph. 431; Lawrence 
 Smith y. Odom, 63 Ga. 499; Fal- v. Staigg, 8 R. I. 256; Ryno v. Dar- 
 coner v. Garrison, i McCord, L. by, 20 N. J. Eq. 231. 
 209. 
 
ESTATES FOR YEARS. 337 
 
 ties and their representatives or successors in interest, no 
 evidence of the terms of the agreement other than the con- 
 tents of the writing except in the following cases: i, Where 
 a mistake or imperfection of the writing is put in issue by the 
 pleadings; 2, Where the validity of the agreement is in fact 
 in dispute. But this section does not exclude other evidence 
 of the circumstances under which the agreement was made, 
 
 * * * or to explain an extrinsic ambiguity or to estab- 
 lish illegality or fraud. The term ' agreement ' includes 
 deeds and wills, as well as contracts between parties. 
 
 Equity has always entertained a wide jurisdiction to rectify 
 mistakes and supply omissions. Wherever it appears that 
 the parties have, through inadvertence, neglected some pre- 
 cise point or failed to note some nice distinction, the court 
 will supply the omission, and not allow a frustration of jus- 
 tice by nullifying the entire transaction. It would seriously 
 discourage the laudable practice of putting contracts into 
 written form, if the omission of some microscopic detail could 
 be seized upon as a ground for avoiding the entire contract. 
 Neither law nor equity will tolerate such a view.'" An ex- 
 tended discussion of this topic will be found in subsequent 
 pages. 
 
 TITLE I. ESTATES FOR YEARS — Continued. 
 
 Art. in. Rent. 
 Sec. 144. Preliminary. 
 
 145. The term rent defined. 
 
 146. Kinds of rent. 
 
 147. When payable. 
 
 148. Landlord's security for the payment of rent. 
 
 149. Landlord's remedies on failure of payment 
 
 a. Distraining property to secure rent. 
 
 150. Apportionment of rent. 
 
 § 144. Preliminary. There are few legal propositions in 
 the entire range of municipal law that are not subject to some 
 modification or exception in certain contingencies. Of these 
 propositions none are more definitely settled or universally 
 recognized than those that impress an obligation on the ten- 
 ant to pay rent to his landlord in the absence of some express 
 
 ^ See Wood v. Hubbell, 10 N. Y. 479. 
 22 
 
338 REAL PROPERTY. 
 
 stipulation to the contrary. The law will generally presume 
 that some recompense is within the contemplation of the par- 
 ties. And yet this all but universal rule is subject to an excep- 
 tion, for it is abundantly settled that where a person occupies 
 real estate under a contract for the purchase of it, and the con- 
 tract is ultimately carried into effect, the law will not imply 
 a promise on his part to pay rent, and an action for use and 
 occupation cannot be maintained against him in the absence 
 of an express promise to pay rent.'" The price agreed 
 upon is presumed to be sufficient consideration for the occu- 
 pation of the land. The title of the purchaser, so far as his 
 right to occupy is concerned, relates back to the time when 
 he first took possession under his contract to purchase, or as 
 the rule is sometimes expressed, the previous tenancy is 
 merged in to the subsequent conveyance of the fee. Thus, 
 in Gould v. Thompson, 4 Met. 224, where the plaintiff recovered 
 because the defendant continued to occupy the premises after 
 having refused to execute his contract to purchase, the court 
 say that "had the deed in fact been given, pursuant to the 
 parol agreement, then the tenancy at will would be con- 
 sidered as merged in the executed contract, which, by its 
 terms, would relate back to the time possession was given 
 under the agreement. ' ' Similar language is used in Wood- 
 bury V. Woodbury, 47 N. H. 11. 
 
 In Dakin v. Allen, 8 Cush. 33, Shaw, Ch. J. says: "But it is 
 sometimes said that one who is thus under a contract for 
 a sale is tenant at will to the owner ; in a certain sense he is 
 a tenant at will ; as a mortgagor is tenant at will to the mort- 
 gagee, because he may enter upon and eject him, if he can 
 do it peaceably, or maintain a real action on his title, and 
 thus gain the possession ; he is under no obligation to pay 
 rent unless upon an express agreement. ' ' 
 
 It is a well established rule that where one is in possession, 
 as tenant at the time he contracts for the purchase of the 
 demised premises, his subsequent possession will be pre- 
 sumed to be under the lease, unless it be clearly shown to 
 result from the subsequent agreement.'" 
 
 '8' Dennett v. Penobscot Fair ston v. Glancy, 4 Blackf. 94, 28 Am- 
 Ground Co. 57 Me. 425. Dec. 45 ; Mahana v. Blunt, 20 Iowa, 
 
 ''^ I Sugd. Vend. 162, 163; John- 142. 
 
ESTATES FOR YEARS 339 
 
 Rents are a peculiar species of incorporeal hereditaments, 
 and they form a very important and interesting title tinder 
 this hranch of the law. 
 
 I. Of the various kinds of rents. 
 
 Rent is a certain yearly profit in money, provisions," chat- 
 tels or labor, issuing out of lands and tenements, in retribu- 
 tion for the use, and it cannot issue out of a mere privilege 
 or easement.'" Hence, if, in the same instrument, chattels 
 and lands are let in such a way that it is impossible to sepa- 
 rate the consideration to be paid for the real, from that to be 
 paid for the personal property, there can be no distress."* 
 In Mickle v. Miles, 3 1 Pa. St. Rep. 20, the case of the Common- 
 wealth V. Contner, was commented upon and explained, and it 
 was held that a rent might issue out of lands and tenements 
 corporeal and their furniture, and to such a rent the right of 
 distress is incident. There were, at common law, according 
 to Littleton, (a) (sec. 213), three kinds of rent, viz: rent ser- 
 vice, rent charge, and rent seek. Rent service was where 
 the tenant held his land by fealty, or other corporeal service, 
 and a certain rent; and it was called rent service because 
 there was some corporeal service incident to the tenancy, as 
 fealty, homage, or other service. A ri^ht of distress was 
 inseparably incident to this rent.'"* Rent charge or fee farm 
 rent, is where the rent is created by deed, and the fee granted ; 
 and as there is no fealty annexed to such a grant of 'the whole 
 estate, the rent charge was not favored at common law. The 
 right of distress is not an incident, and it requires an express 
 power of distress to be annexed to the grant, which gives it 
 the name of a rent charge, because the lands are, by the 
 deed, charged with a distress.'" In the case of Ingersoll v. 
 Sergeant, i Whart. 337, the law on this head is learnedly 
 reviewed and discussed by Mr. Justice Kennedy; and it is 
 declared, that the statute of quia emptores (18 Edw. I), was 
 never in force in Pennsylvania, and that a rent reserved to 
 grantor and his heirs, in the grant of lands in fee, is a rent 
 
 '8' (c) 2 Blacks. Com. 41 ; Gilbert "« (b) Litt. sec. 215 ; Co. Litt. 142, 
 
 on Rents, 9 Co. Litt. 142, a ; Buz- a ; Kenege v. Elliot, 9 Watts, 258. 
 
 zard V. Capel, 8 Barn. & Cres. 141. '''(c) Litt. sec. 217; Co. Litt. 143, 
 
 "^Commonwealth v. Contner, 18 b; Gilbert on Rents, 155, 
 Penn. 439. 
 
34° REAL PROPERTY. 
 
 service and not a rent charge. The release of part of ,the 
 ground from the rent does not therefore extinguish the 
 whole, and the remainder of the land remains subject to a 
 due proportion of the rent. Rent seek, siccus, or barren 
 rent, was rent reserved by deed, without any clause of dis- 
 tress, and in a case in which the owner of the rent had no 
 future interest or reversion in the land. The owner of the 
 land was accordingly driven to the slow and tedious remedy 
 by a writ of annuity, or a writ of assize."' But the statute 
 of 4 Geo. II, c. 28, abolished all distinction between the seve- 
 ral kinds of rent, so far as to give the same remedy by dis- 
 tress in cases of rents seek, rents of assize, and chief rents, as 
 in the case of rent reserved upon a lease. '" 
 
 §145. The term rent defined. "Rent" is usually a sum of 
 money, but may consist of services or products of the soil, 
 paid for the use of land and its appendages. '"' ' ' Profits' 'when 
 applied to realty, refer to and consist of the products of the 
 soil, whether in the form of coal, metals, emblements or 
 rents received for the same."'" 
 
 Generally speaking, the interpretation of the words "rents 
 and profits"is that they mean the annual rents and profits."' 
 
 Rent is the compensation to be paid for the occupation of 
 land by a tenant, whether he holds under a written lease, at 
 will or sufferance, and whether the amount to be paid is or 
 is not defined by the parties."" 
 
 ^" (d) Litt. sees. 213, 217, 218, 235. Ground rent deeds and leases 
 
 236; Co. Litt. 150, b, 160, a; Gilbert frequently contain a clause autho- 
 
 on Distresses, 6. rizing the landlord to reenter on 
 
 388 jVou on ground rent. — Ground the non-payment of rent, or the 
 
 rent is rent paid for the privilege of breach of some covenant, when the 
 
 building on another's land. — Web- estate is forfeited. (Story, Eq. Jur. 
 
 sier. sec. 131 5; i Fonb. Eq. B. i, c. 6, 
 
 A rent paid by a lessee who has sec. 4, note h.) 
 
 built on the ground leased, and '*'' 2 Bl. Com. 41 ; Hill, on Real 
 
 thus distinguished from the rent Prop. 227. 
 
 paid to him by the tenants of the '™ i Washb. on Real Prop. 384 ; 
 
 buildings. 2 Bl. Com. 41. 
 
 In Pennsylvania, this term is '" Heneage v. Lord Andover, 3 
 
 used to denote a fee farm rent, (i Younge & Jerv. 360; Allan v. 
 
 Hilliard's Real Prop. 239 ; i Burrill's Blackhouse, 2 Ves. & B. 65. 
 
 Law Diet.) 392 2 Bl. Com. 41 ; Co. Litt. 144. 
 
ESTATES FOR YEARS. 341 
 
 The ordinary definition of rent, as a profit issuing yearly- 
 out of lands and tenements corporeal, does not include all 
 the cases ; as, where a furnished house or stock farm is leased. 
 In every such case the personal property is a part of the con- 
 sideration, so that it is only by a fictitious accommodation of 
 the case to the defective definition that we can say that the 
 rent issues exclusively out of the land. A rent may issue 
 out of lands and tenements corporeal, or out of them and 
 their furniture.'" 
 
 Ground rent, estates. In Pennsylvania, this term is used to 
 signify a perpetual rent issuing out of some real estate. This 
 rent is redeemable where there is a covenant in the deed 
 that, before the expiration of a period therein named, it 
 may be redeemed by the payment of a certain sum of money, 
 or it is irredeemable, when there is no such agreement ; and, 
 in the latter case, it cannot be redeemed without the consent 
 of both parties. °" 
 
 § 146. Kinds of rent. By resorting to the law dictionaries 
 it will clearly appear that there are several kinds of rent, and 
 such terms as "rent seek," "rent charge," "rent service," 
 "barren rent," " quit rent," and "ground rent," speedily 
 convince us that the subject is involved in more or less intri- 
 cacy. Much of this, however, disappears after a brief 
 research. Mr. Boone condenses the entire subject in section 
 107 of his well known manual on the Law of Real Property, 
 from which I quote: "A rent service, which was the only 
 kind originally known to the common law, and the one 
 which prevails in the United States, is where the tenant 
 holds his lands by fealty and certain rent, or by rendering 
 services. It was called a rent service, because it was given 
 as a compensation for the services to which the land was 
 originally liable; and a right of distress was inseparably 
 incident to it. Rent charge is a rent reserved where the 
 landlord has no reversionary interest, and for such rent no 
 right to distrain exists, unless the power be contained in the 
 
 ^'^Mickle V. Miles, 31 Pa. 21 R. 98; Cro. Jac. 510; 6 Halst. 262; 
 
 (1856), Lowrie, J. ; Anderson's Law 7 Wend. 463; 7 Pet. 596; 2 Bouv. 
 
 Diet. Inst. n. 1659, and note. 
 
 '"See I Whart. R. 337; 4 Watts 
 
342 REAL PROPERTY. 
 
 lease. A rent seek, or barren rent, is the same as a rent 
 charge, except that there is no right to distrain reserved. A 
 fee farm rent is a perpetual rent reserved on a conveyance of 
 lands in fee simple. But after the statute quia emptores (i8 
 Edw. I, A. D. 1290), a fee farm rent became impracticable, 
 for the reason that a grantor in fee retains no reversion, 
 which is essential to a rent service.""' In the case last cited 
 Mr. Justice Story says : ' ' Upon full consideration, however, 
 we are of opinion that the assignee of a fee farm rent, being 
 an estate of inheritance, is upon the principles of the com- 
 mon law entitled to sue therefor in his own name. It is an 
 exception from the general rule that choses in action can- 
 not be transferred ; and stands upon the ground of being not 
 a mere personal debt, but a perdurable inheritance. Thus, 
 if an annuity is granted to one in fee, although it be a mere 
 personal charge, yet a writ of annuity lies therefor by the 
 common law, not only in favor of the party and his heirs, 
 but of their grantee. So the doctrine is expressly laid down 
 by Lord Coke (Co. Litt. 144, b), and he is fully borne out by 
 authority, and in like manner for a rent granted in fee and 
 charged on land, a writ of annuity also lies in favor of the 
 assignee, at his election.'" 
 
 § 147. When payable. Rent may be, and frequently is, 
 payable in advance.'" But the law will never indulge the 
 presumption that this method of payment has been agreed 
 upon and the party asserting it must prove it. In the major- 
 ity of instances, of course, the time is fixed by express agree- 
 ment. As it is by far the principal incident in the entire 
 relation between landlord and tenant, it may be safely 
 assumed that the recitals of the lease will be specific on this 
 point. When, however, the time of payment has been omitted, 
 and is not fixed by some custon of the particular locality, it 
 is not payable until the end of the term.'°° And where the 
 
 3»5 Citing inter alia Wallace v. *'*Co. Litt. 144, b 
 
 Harmstad, 44 Pa. St. 497 ; Cornell 2" Smith v. Shepard, 1 5 Pick. 147. 
 
 v. Lamb, 2 Cow. 656; People v. '"Boyd v. McCombs, 4 Pa. St 
 
 Haskins, 7 Wend. 463; Kenege v. 146; Perry v. Aldrich, 13 N. H. 
 
 Elliott, 9 Watts, 258; Cuthbert v. 343. 
 Kuhn, 3 Whart. 357 ; Scott v. Lunt, 
 7 Pet. 606. 
 
ESTATES FOR YEARS. 343 
 
 rent falls due on certain regular quarter days, the lessee has 
 until midnight of the last day in which to make such pay- 
 ment."" As it is a rule of extended application that frac- 
 tions of a day are not regarded, except -when the hour in 
 which a thing is done becomes material,"" a day always 
 means twenty-four hours computed from midnight to mid- 
 night."' 
 
 The general current of the modern authorities on the inter- 
 pretation of contracts, and also of statutes, wliere time is to 
 be computed from a particular day or a particular event — as 
 when an act is to be performed within a specified period 
 from or after a day named — is to exclude the day thus desig- 
 nated, and to include the last day of the specified period."" 
 
 The law does not in general, take cognizance of fractions 
 of a day ; but the courts may do so when substantial justice 
 requires it."' 
 
 § 148. Landlord's security for the payment of rent. In some 
 of the western States, notably Illinois, the statutory law ex- 
 pressly provides that the lessor may retain a lien on the 
 crops grown upon the premises leased for the just and full 
 payment of the stipulated rent. Such statutes are eminently 
 just. Everywhere a purchase price mortgage has a recog- 
 nized priority over all other liens, and it is difficult to under- 
 stand why the same principle is not applied to a lessor. At 
 all events a device of this character has been found wonder- 
 fully effective in stimulating good husbandry, and permanent 
 settlements, as landed proprietors can act with great free- 
 dom and little risk in leasing their unoccupied farms."* On 
 this subject it may be said that congressional legislation has 
 largely effected this subject. For instance, in the District of 
 
 '"Ordway V. Reming-ton, 12 R.I. *»*See Hadden v. Knickerbocker, 
 
 319 70 III. 677 ; Van Horn v. Goken, 41 
 
 ""Marvin v. Marvin, 75N. Y. 240. N. J. L. 499; Worrill v. Barnes, 57 
 
 ■""People v. Nash, 12 Week. Dig. Ga. 504; Kenard v. Harvey, 80 Ind. 
 
 (N. Y.), 545. 37; Thorpe v. Fowler, 57 Iowa, 541; 
 
 *•' Sheets v. Selden, 2 Wall. 177. Neifert v. Ames, 26 Kan. 516; Her- 
 
 "^ Louisville v. Portsmouth Sav- ron v. Gill, 112 111. 247; Stone v. 
 
 ings Bank, 104 U. S. 469; See Rice's Bohn, 79 Kan. 141. 
 
 Annotated Code of Civil Procedure 
 
 (Colo.;, 724. 
 
344 REAL PROPERTY. 
 
 Columbia Congress has made provision for a landlord's lien 
 for either the crops raised or any chattels brought upon the 
 premises. 
 
 By the Act of Congress, passed February 22, 1867, sec. 12, 
 14 Stat, at L. 404, the old right of distress for rent was abol- 
 ished, and instead of it, it was enacted "that the landlord 
 shall have a tacit lien upon such of the tenant's personal 
 chattels upon the premises as are subject to execution for 
 debt, to commence with the tenancy and continue for three 
 months after the rent is due, and until the termination of 
 any action for such rent brought within said two months. 
 And this lien may be enforced: i, By attachment, to be 
 issued upon affidavit that the rent is due and unpaid ; or, if 
 not due, that the defendant is about to remove or sell all or 
 some of said chattels; or 2, By judgment against the tenant, 
 and execution to be levied on said chattels or any of them, in 
 whosesoever hands they may be found; or, 3, By action 
 against any purchaser of said chattels, with notice of the 
 lien." 
 
 It will thus be seen that the act is clear and explicit that 
 the landlord shall have a lien upon the tenant's chattels on 
 the premises (liable to execution) "to commence with the 
 tenancy and continue for three months after the rent is due." 
 It also points out how, within the three months, the lien is 
 to be enforced, namely : by attachment, etc. In a late case 
 the chattel was on the premises, it was attached within three 
 months after the rent accrued, the suit on the attachment 
 was regularly prosecuted to judgment, and the marshal took 
 the chattel in execution. The case is strictly within the lan- 
 guage of the Act, unless the chattel was not ' ' such a chattel 
 of the tenant as is subject to execution." 
 
 While the foregoing is correctly expressive of a congres- 
 sional act, it is of restricted application, and, perhaps, the 
 general rules applicable to the subject would be indicated by 
 the assertion that the tendency is to place lessors upon the 
 same footing with other creditors, and to deny to them any 
 special rights. In many instances provision is made in the 
 lease itself by which the personal property of the tenant is 
 made primarily liable for the accruing rent."" 
 
 ^"'Wilkinson v. Kettler, 69 Ala. 435. 
 
ESTATES FOR YEARS. 345 
 
 § 149. Landlord's remedies on failure of payment of rent. 
 
 It is indeed fortunate that in thirty-six States of the Ameri- 
 can Union the reformed or code procedure is now entrenched 
 by legislative sanction. It is especially fortunate for those 
 interested in the topic now under review, in that it enables 
 us to state in direct and simple language that a mass of in- 
 tricate and technical remedial actions have been swept away 
 into deserved oblivion by the very general introduction of 
 the reformed procedure. The pivotal concept of this mod- 
 ern system aims to abolish the distinction between the old 
 actions at law, and suits in equity, and to institute one form 
 of civil action for the enforcement or protection of a right, 
 and the redress or prevention of a wrong. This is known as 
 a civil action. The aggrieved party is merely required to 
 state his cause of action in ordinary and concise language 
 without unnecessary repetition, and demand such relief as he 
 considers himself entitled to. There are other details, of 
 course, that in a work of this character cannot now be en- 
 larged upon ; but they are in no sense intricate and the court 
 will in all cases grant such relief on the trial of the cause as 
 the merits of the situation allow. The entire proceeding is 
 one of extreme simplicity — entirely bereft of the exasperat- 
 ing technicalities, and it is far more speedy, effectual, and eco- 
 nomical. The most ordinary intelligence can comprehend 
 the entire proceeding. But as this subject forms the basis of 
 extended discussion in a subsequent chapter, further elabo- 
 ration is unnecessary. 
 
 To entitle the landlord to maintain an action for use and 
 occupation the relation of landlord and tenant must have 
 existed."' But the contract may be implied."' 
 
 Some privity of contract must be shown, not privity of 
 estate, and the action will not lie in a case of adverse posses- 
 
 "»De Pere Co. v. Reynen, 65 Wis. 434; Swart v. Fitch, 31 N. J. L. 17; 
 
 271; Lankford v. Green, 52 Ala. Edmonson v. Kite, 43 Mo. 176; 
 
 103; Richmond & L. T. Road Co. Dalton v. Laudahn, 30 Mich. 349; 
 
 V. Rogers, 7 Bush. 532; Moore v. Nance v. Alexander, 49 Ind. 516; 
 
 Harvey, 51 Vt. 297; Hall v. South- Espy v. Fenton, 5 Or. 423; Mar- 
 
 mayde, 1 5 Barb. 32 ; Rickey v. quette, H. & O. R. Co. v. Harlow, 
 
 Hinde, 6 Ohio, 371; Wiggins v. 37 Mich. 554; Pierce v. Pierce, 25 
 
 Wiggins, 6 N. H, 298. Barb. 243 ; Henwood v. Cheeseman, 
 
 *"'' Brolasky v. Ferguson, 48 Pa. 3 Serg. & R. 500. 
 
346 REAL PROPERTY. 
 
 sion, where either ejectment or trespass is the proper remedy. 
 To sustain the action the plaintiff must allege and prove title 
 in himself and occupation by the defendant. "° Mere proof 
 that the defendant occupied the premises without the assent 
 ofsthe owner is sufficient as the law will then imply an agree- 
 ment to pay a reasonable sum as rent,"" unless the character 
 of the occupancy negatives the idea of payment. The action 
 for mesne profits following an action of ejectment, is an 
 action in the nature of use and occupation. In fact these 
 two forms of action are generally identical, they import the 
 same thing and result in the indemnification of the owner for 
 the rental value of the estate. 
 
 a. Distraining property to secure rent. Under the common 
 law the right of distraining property was one of considerable 
 importance. Lessors were allowed to seize the chattels of 
 the tenant found on the premises leased, and sell the same to 
 secure satisfaction of their claims. The entire proceeding 
 was conducted with considerable harshness, and statutory 
 provision in this country has greatly modified the rules of 
 the common law."" In New York and in all of the New 
 England States the remedy is unknown, and in the few juris- 
 dictions that give it any countenance it is bereft of many of 
 its common law features. In an action of distress the rent 
 must be fixed and certain and not the quantum meruit.*" A 
 previous demand is not necessary before beginning the action. 
 The amount claimed must be reasonably certain."" It must 
 be made on the premises and in the day time.'" And it is a 
 right that cannot be defeated by the lessor's accepting a 
 chattel mortgage as security."* The landlord is doubtless 
 entitled to all the remedies the law gives him. But after pro- 
 tecting himself by a chattel mortgage his right to distrain 
 •should be held in abeyance unless it appears that the mort- 
 gage security was worthless. 
 
 ^"^ Clark V. Green, 35 Ga. 92. 278; Johnson v. Prussing, 4 111. 
 
 *' Rogers v. Libb, 64 Barb. 73. App. 575. 
 
 *'" Cornell v. Lamb, 2 Cow. 656 ; *" Poer v. Peebles, i B. Mon. 3. 
 
 3 Kent's Com. 473 ; Youngblood v. ■"' Hadden v. Knickerbocker, 70 
 
 Lowry, 2 McCord, 39. 111. 677. 
 
 «' Hatfield v. Fullerton, 24 111. ^'^ Cambria Iron Co. App. 1 14 Pa. 
 
 St. 58. 
 
ESTATES FOR YEARS. 347 
 
 The old feudal term "distress" referred to the act of pro- 
 cess by whicli personal property was seized by way of pledge 
 to enforce the payment of a debt. As a modern remedy it 
 may be said to have very little observance in this country, 
 although in an emasculated form it is still in vogue in a few 
 of the American States. Generally resort is had to the writ 
 of attachment on mesne process or to an action of covenant 
 or debt, or iii assumpsit for use and occupation. By such 
 methods the harshness and injustice of the old remedy is 
 avoided. 
 
 § 150. Apportionment of rent. This is nothing more than 
 an equitable adjustment of the accruing rent among the 
 reversioners or remainder men, or any parties legally entitled, 
 where, after the making of the lease, through death, bank- 
 ruptcy, or any adequate cause, the original lessor is no longer 
 entitled to receive it."' In its ultimate essence apportion- 
 ment requires nothing more than a union of sound common 
 sense with a slight knowledge of arithmetic. For instance, 
 if the lessor dies leaving as his sole heirs at law two sons,the 
 accruing rent would be apportioned equally between them. 
 And the principle applies with varying degrees of nicety as 
 the rights of heirship become more involved. But the rule 
 of apportionment may sometimes be invoked by the tenant 
 himself. As where a portion of the premises demised have 
 been apportioned for public purposes by the exercise of the 
 right of eminent domain. In such case the tenant is en- 
 titled to have his rent apportioned."'" And if the parties 
 themselves cannot agree upon a fair rebate, in such cases, the 
 court will do it for them. 
 
 We can refer to a single case only, Foote v. Cincinnati, 
 II Ohio, 408; 38 Am. Dec. 737, where it has been held that 
 the tenant's liability to pay rent to his landlord continues 
 unimpaired after condemnation of the entire tract of land 
 included in the lease, or where so much thereof had been 
 appropriated that the residue was incapable of occupation for 
 any purpose consistent with the lease; and that case is 
 
 *" Martin v. Martin, 7 Md. 368 ; *'« Workman v. Miffin, 30 Pa. St. 
 
 Reed V. Ward, 22 Pa. St. 150; Borie 371; Zule v. Zule, 14 Wend. 76; 
 
 V. Crissman, 82 Id. 185; Crosby v. Womack v. McQuarry, 28 Ind. 102. 
 Loop, 13 111. 625. 
 
348 REAL PROPERTY. 
 
 placed upon the principle that the right of eminent domain, 
 or the right of appropriating land to public uses, is not a 
 ■ technical incumbrance on the land, and that such appropria- 
 tion is not an eviction. And the only cases cited in support 
 of the decision are Folts v. Huntley, 7 Wend. 211, and Parks 
 V. Boston, 15 Pick. 198, in each of which cases, the demised 
 premises were only partially taken, and the tenant remained 
 in possession of the residue under his lease. In O'Brien v. 
 Ball, 119 Mass. 28, where the city of Boston, under an act 
 authorizing it, acquired the title to a tract of land which had 
 been leased by O'Brien to Ball, and the title of the lessor 
 divested in the whole tract, the lessor brought suit against 
 the lessee for rent accruing after divestiture of his title. 
 The court held the lessor not entitled to recover, and said : 
 ' ' But even without eviction by or attornment to the holder 
 of the new title, the liability to pay rent reserved ceased 
 with the termination of the plaintiff's estate." Barclay v. 
 Pickles, 38 Mo. 143, was an action by the lessor to recover 
 rent reserved in a written lease. The defendant offered to 
 prove that after the making of the lease, and before the rent 
 sued for accrued, the city of St. Louis had, in a proceeding 
 instituted in the opening of Choteau avenue, in said city, 
 etc., taken the leased property for the opening of said street, 
 and that the title to the property had thereby become vested in 
 the city, etc. , which was rejected. The court held the testimony 
 admissable, and said: "As a general rule, whenever the 
 estate which the lessor had at the time of making the lease is 
 defeated or determined, the lease is extinguished with it. 
 If, therefore, a lot of land or other premises under lease is 
 required to be taken for city or other public improvements, 
 the lease, upon confirmation of the report of the commission- 
 ers condemning the property, becomes void. When the lessor 
 ceases to have any interest in the property, the rent becomes 
 annihilated.""' In these cases the discharge of the lessee 
 from liability is placed upon the ground that the landlord's 
 title is absolutely extinguished in the leased estate, and he 
 cannot, therefore, enforce the contract for the payment of 
 
 417 I 
 
 'Citing Taylor, Land. & Ten. Cuthbert v. Kuhn, 3 Whart. 357, 31 
 sec. 519; see Schuylkill & D. Imp. Am. Dec. 513. 
 & R. Co. V. Schmoele, supra ; 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 349 
 
 rent after its extinguishment. "The tenant's covenant is 
 only to pay a certain sum as rent," says Gray, Ch. J., in Lam- 
 son V. Clarkson, 113 Mass. 348; 18 Am. Rep. 498. "and in the 
 words of Dodridge, in Simpson v. Sotherne, 2 Bulst. 274: 'If it 
 be so that the estate be ended, the contract for the rent 
 will end also; this being but quid pro quo the rent for the 
 land.' " The doctrine is well established that, although the 
 lessee cannot show that his lessor had no title to the premises 
 when the tenancy began, he may show that he had a limited 
 estate, only, which was determined by its own limitation 
 before the cause of action accrued, as where he held the 
 estate for the life of another, or the like, which expired dur- 
 ing the term,"° or that he had sold and conveyed the land or 
 has been evicted by title paramount, or that his title has 
 been sold under execution, and conveyed.'" 
 
 TITLE II. ESTATES AT WILL, AT SUFFERANCE, OR FROM 
 YEAR TO YEAR. 
 
 Sec. 151. Definition and nature of estates at will. 
 
 152. Estates at sufferance. 
 
 1 53. Estates from year to year. 
 
 1 54. How created. 
 
 155. Incidents of. 
 
 156. Judicial hostility to this estate. 
 
 157. How determined. 
 
 158. Notice to quit. 
 
 159. Distinction between an estate at will and an estate at suffer- 
 
 ance. 
 
 § 151. Definition and nature of estates at will. This parti- 
 cular estate, once so formidable in the law of real property, 
 is flickering to extinction under the steady displeasure of the 
 judiciary who are swift to seize upon any fact or circum- 
 stance that will justify their recognition of an estate from 
 year to year, in what is technically an estate at will. An 
 uncertain tenure of property, such as was created by this 
 estate, had a strong tendency to foster slack and shiftless 
 methods of husbandry, tending to the impoverishment of land 
 
 ■"' Lamson v. Clarkson, supra ; Kane Co. Suprs. v. Harrington, Id. 
 
 Wells V. Mason, 5 111. 84; St. John 232; Tilghman v. Little, 13 Id. 239; 
 
 V. Quitzow, 72 111. 334. Taylor, Land. & Ten. (8th ed.) sec. 
 
 *" Franklin v. Palmer, 50 111. 202 ; 708. and notes. 
 
350 REAL PROPERTY. 
 
 and the impairment of real estate values. Even in Black- 
 stone's time, estates at -will -were regarded with suspicion, 
 and in a modern text-book, projected along the lines of 
 advanced judicial sentiment, the subject has lost very much 
 of its ancient importance."" 
 
 Lord Coke defines a tenancy at will to be "where lands 
 and tenements are let by one man to another, to have and to 
 hold to him at the will of the lessor, by force of which the 
 lessee is in possession. The lessee is called tenant at will, 
 because he hath no certain or sure estate, for the lessor may 
 put him out at what time it pleaseth him. ' ' And there is 
 another species of tenancy called a tenancy by sufferance, 
 which happens where the tenant holds over after his term 
 has expired by the lease under which he took possession, 
 without any fresh lease of the owner of the estate. This 
 estate, however, for very good reasons, has come to be gen- 
 erally regarded as a tenancy from year to year, not deter- 
 minable at the will of either party, except at the end of the 
 current year, and then only by service of the requisite notice. 
 To preserve a uniformity in business transactions, it is usu- 
 ally understood that a year consists of three hundred and 
 sixty -five days; a half year, one hundred and eighty -two 
 days, and a quarter of a year, ninety-one days, and the 
 added day of leap year, and the day immediately preceding 
 it, if they occur in any period to be computed, are reckoned 
 together as one day. And the term "month" is generally 
 understood to mean a calendar and not a lunar month; 
 although all this matter of computation of time is often 
 regulated by statute, but usually in accordance with this 
 rule. When there is no statute upon the subject, the same 
 would doubtless be settled by the local custom. Custom is 
 a law established by long usage. A universal custom be- 
 comes common law. If the usage be confined to a particular 
 place, it is a custom ; and, in the absence of statutory enact- 
 ment, customs are allowed to prevail."' 
 
 A person who is let into possession under an agreement 
 that a lease shall be executed, but in the meantime he shall 
 enjoy the premises upon the terms of such lease, becomes 
 
 «o See 2 Bl. Com. 147. «i Tyler on Ejectment & Adverse 
 
 Enjoyment, 209. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 35 1 
 
 immediately a tenant at will, at least he is so after refusing 
 to take the lease/" 
 
 There is no difference between an express tenancy at will 
 and one created by circumstances or operation of law.*" 
 
 § 152. Estates at sufferance. An estate at sufferance 
 imports the coming into the possession of real property 
 through the instrumentality of a lawful title in the first in- 
 stance, but latterly refusing to vacate the premises when the 
 original term contracted for expires, and in this way "hold- 
 ing over" without legal right. Blackstone enumerates the 
 following instance of estates at sufferance, viz: The estate 
 of a mortgagor who continues in possession after foreclosure. 
 The estate of a tenant for years whose term has expired, or 
 of a grantor who .agrees to give possession on a day named 
 and refuses to comply with his agreement ; and the estate of 
 a tenant during the life of another person who continues in 
 occupancy after the death of that other."* Briefly a tenant by 
 sufferance is one who occupies originally by right but con- 
 tinues to occupy without right.*" 
 
 Bouvier says an estate at sufferance is the estate of a ten- 
 ant who comes into possession of land by lawful title, but 
 holds over by wrong after the determination of his interest.*" 
 He has a bare naked possession, but no estate which he can 
 transfer or transmit, or which is capable of enlargement by 
 release, for he stands in no privity to his landlord. There is 
 a material distinction between the case of a person coming to 
 an estate by act of the party, and afterwards holding over, 
 and by act of the law and then holding over. In the first 
 case, he is regarded as a tenant at sufferance; and in the 
 other, as an intruder, abator, and trespasser.*" 
 
 ■''*4Wait, Act. & Def. 204, 205; «' See Western U. Tel. Co. v. 
 
 3 Id. 48, 49 ; Taylor, Land. & Ten. Fain, 52 Ga. 21. 
 
 sec. 60; Anderson v. Minland R. ''"2BI. Com. 150. 
 
 Co. 4 El. & El. 614 ; Dunne v. Trus- ""* Anderson v. Brewster, 44 Ohio 
 
 tees of Schools, 39 111. 578; Good- St. 580; Cook v. Norton, 48 111. 26. 
 
 title V. Way, i T. R. 736 ; Hiatt v. ^'« Co. Litt. 57, b. 
 
 Miller, 5 Car. & P. 595; Hamerton *" Co. Litt. 57, b; 2 Inst. 134; 
 
 V. Stead, 3 Barn. & C. 222 ; Bray- Cruise's Dig. t. 9, c. 2 ; 4 Kent's 
 
 thwaite v. Hitchcock, 10 Mees. & Com. 115; 13 Serg. & Rawle, 60; 8 
 
 W. 497. Id. 459 ; 4 Rawle, 459 ; 4 Rawle's R. 
 
 126. 
 
352 REAL PROPERTY. 
 
 A tenancy at sufferance only occurs when one conies into 
 possession of the premises lawfully, but fails or refuses to 
 remove after the determination of his term."' In the case 
 last cited the distinction between tenancies at will and ten- 
 ancies at sufferance, or from year to year, is carefully out- 
 lined. The courts say: "When the tenant holds over by 
 consent, either express or implied, after the determination of 
 an estate for years, it is held to be evidence of a new con- 
 tract without any definite period for its termination, and in 
 either case is construed to be an estate from year to year. 
 And a tenant holding over after the expiration of his lease 
 will be presumed to hold under, and subject to the terms of 
 the preceding lease." 
 
 A parol agreement, made before the expiration of a written 
 lease for a further occupation of one year on the same terms, 
 is within the Statute of Frauds, being a contract not to be 
 performed within a year, and the tenant holding over and 
 disclaiming the agreement, is a tenant at sufferance."' 
 
 A tenant by sufferance is now in New York entitled to one 
 month's notice to quit."" And if the landlord elects, as he 
 may, to treat the tenant as holding under the terms of the 
 original lease, the tenant cannot deny the tenancy."' 
 
 Tenants, being admitted into possession under a written 
 contract for a lease for the term of ten years, cannot, after 
 refusing to execute and accept a lease tendered by the land- 
 lord, and embracing the terms and conditions specified in the 
 written contract, retain possession of the premises, because 
 the landlord has not complied with the contract in the con- 
 struction and finish of the building which he was to erect for 
 occupation by the tenants. The landlord's violation of his 
 contract would furnish a cause of action in favor of the ten- 
 ants for the damages sustained thereby, but would not 
 operate as a license to occupy and use the premises. After 
 refusal to execute and accept the lease tendered, they would 
 be mere tenants at will, and, after two months' notice, would 
 
 «« Finney v. City of St. Louis, 39 *'" Rev. Stat. (4th ed. 1852) part 2, 
 
 Mo. 177. chap. I, tit. 4, sec. 7; see Livingston 
 
 ■•'' Delano v. Montague, 4 Cush. v. Tanner, 12 Barb. (S. C.) 481. 
 
 42 ; Russell v. Fabyan, 34 N. H. *" Conway v. Starkweather, I 
 
 218. Den. 113. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 353 
 
 be subject to eviction, by summary proceedings provided by 
 statute, as tenants holding over. 
 
 § 153. Estate from year to year, A lease for one year "and 
 an indefinite period thereafter, with annual rent and continued 
 occupation," makes a tenancy from year to year."" Tenancy 
 at an annual rent, which has been paid for several years, 
 without lease or agreement, is from year to year."' If a per- 
 son is let into possession of land, under an agreement to pur- 
 chase, it amounts in law to a bare tenancy at will, and is 
 determined by the death of the lessor."" The Code of Iowa, 
 sec. 1208, provides that any person in possession of real prop- 
 erty, with the assent of the owner, is presumed to be a ten- 
 ant at will, unless the contrary is shown. 
 
 Estates at will are turned into estates from one year to 
 another, or estates for years, by the operation of statutes or 
 by force of decisions of the courts. 
 
 The privilege of determining a tenancy at will upon the 
 mere caprice of the lessor being found to greatly inconve- 
 nience the lessee, the courts held that such relation was a 
 tenancy from year to year. Again; a tenant at will was not 
 entitled to notice to quit, but the rule obtained that he held 
 from year to:year, so far at least as to entitle him to notice 
 six calendar months prior to the day when the lessor desired 
 to resume possession, except where the tenant was already 
 apprised of the end of the term. A general tenancy at will 
 is construed as a tenancy from year to year. Beginning a 
 new year, by sufferance on the part of the lessor, is a tacit 
 renovation of the contract for another year, subject to the 
 right of distress and half a year's notice to quit."' 
 
 The tendency of the courts is to construe all general or 
 doubtful tenancies into estates from year to year, and parol 
 leases, under which the Statute of Frauds constitute estates 
 
 *^' Pugsley V. Aikin, i Kern. 494 ; *" Manchester v. Doderidge, 3 
 
 see also Lockwood v. Lockwood, Ind. 360. 
 
 22 Conn. 425 ; Huger v. Dibble, 8 *^ 2 Bl. Com. 147 ; 4 Kent, 1 12-14; 
 
 Rich. Law, 222; Snowhill v. Snow- i Johns. 322; 2 Id. 75; 6 Id. 272; 7 
 
 hill, 3 N. J. 447 ; Hunt v. Morton, Id. i, 4 ; 8 East, 167 ; 8 T. R, 3 ; An- 
 
 18 111. 75. derson's Law Diet. 1127. 
 
 ^Hall V. Wadsworth, 2 Wms. 
 (28 Vt.) 410. 
 
 23 
 
354 REAL PROPERTY. 
 
 at will, are turned into estates from year to year by the pay- 
 ment and acceptance of rent, or other circumstance indicat- 
 ing that it is the intention of the parties. So when a tenant 
 holds over after the expiration of a lease for years he will be 
 considered as a tenant from year to year."' 
 
 § 154. How created. In Maine holding over by consent 
 creates only a tenancy at will,"' and the burden of proof is 
 on the tenant to show the landlord's acquiescence."' A ten- 
 ant holding over holds subject to all covenants in the ex- 
 pired lease which are consistent with yearly tenancy."' 
 
 There are various methods of creating this estate, but in 
 the majority of instances it is created by holding over after 
 the expiration of the term."' Again, it may be and fre- 
 quently is created by entering, under an agreement to pur- 
 chase."" Again, the entry may be peaceable, and by virtue 
 of a lease void, under the Statute of Frauds."" And in other 
 instances it is created by the landlord's allowing the party 
 to take possession without any stipulation as to rent or length 
 of occupancy."' Generally, it may be said, that the tenancy 
 always results by force of some contractual relation either 
 express or implied. More accurately, let us say, the original 
 holding results from some contract express or implied."" 
 
 § 155. Incidents of. A tenant at will has no certain indefea- 
 sible estate ; nothing that he can assign. The estate is at the 
 will of both parties, landlord and tenant, so that either one 
 may determine his will, and quit connection with the other 
 at pleasure. But if the tenant sows his land, and the land- 
 lord, before the grain be ripe or before it is reaped, puts him 
 out, the tenant shall have the crops planted, and free ingress 
 and egress to cut and carry them away. But where the ten- 
 
 "2*6 Am. & Eng. Cyc. of Law, "'Patterson v. Stoddard, 47 Me. 
 
 888, 889. 355 ; Foley v. Wyeth, 84 Mass. 131 ; 
 
 «' Kendall v. Moore, 30 Me. 327. Harris v. Frink, 49 N. Y. 24. 
 
 «6 Chesley V. Welch, 37 Id. 106. ■•« Talmo v. Spitzmiller, 120 N- 
 
 "» Hyatt V. Griffiths, 33 Eng. L. Y. 37. 
 
 &Eq. 75; Vrooman v. McKaig, 4 *" Dame v. Dame, 38 N. H. 429; 
 
 Md. 450; Prickett v. Ritter, 16 111. Wright v. Roberts, 22 Wis. 161. 
 
 96. *** Perine v. Teague, 66 Cal. 446. 
 
 *"'Bennock v. Whipple, 12 Me. 
 346. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 355 
 
 ant voluntarily determines the estate, the landlord has the 
 profit of the land. The law is careful that no sudden deter- 
 mination by one party shall prejudice the other; and the 
 courts lean against construing demises, where no certain 
 term is mentioned, to be tenancies at will, but rather hold 
 them to be tenancies from year to year.*" 
 
 If the tenant is in possession, under a contract to purchase 
 the property, and the terms of this contract are still open 
 and unsettled, he is not liable for rent. If, after the expira- 
 tion of a reasonable time, the sale is abandoned, though 
 through no fault of his, he may be held liable for use and 
 occupation."' It is said that he is entitled to emblements."' 
 But this assertion seems to rest upon a very shadowy founda- 
 tion."' The fact that he may take the away -going crops"' 
 should not affect the question of emblements. The tenant 
 at will has the right to sublet, provided, of course, he can 
 find a sub-tenant willing to take so dubious a tenure."" And 
 the familiar principle of estoppel which prevents his disput- 
 ing his landlord's title, is an incident of the tenancy."' He 
 is also entitled to a reasonable opportunity according to the 
 circumstances of each case, to remove his family and house- 
 hold goods, and he is not liable to trespass when going to or 
 from the premises for such a purpose."" The death of the 
 lessor terminates the tenancy, and reduces the lessee one 
 grade lower by making him a tenant at sufierance only."^ It 
 has been held that he is not entitled to notice to quit."* But 
 great caution must be exercised in construing this proposi- 
 tion strictly, as the better reasoned cases rather assert the 
 contrary view. Indeed, it may be said that these arbitrary 
 exactions regarding the dispossession of tenants are looked 
 
 *" Johnson v. Johnson, 13 R. I. *™ Bennock v. Whipple, 12 Me 
 
 468. 346 ; Goldsmith v. Wilson, 68 Iowa, 
 
 «« Hough V. Birge, 11 Vt. 190; 685. 
 
 Dwight V. Cutler, 3 Mich. 566; *" Pomeroy v. Lambeth, i Ired. 
 
 Coffman v. Hauck, 24 Mo. 496. Eq. 65. 
 
 **' Morgan v. Morgan, 65 Ga. 493. "" Henderson v. Cardwell, 9 Baxt. 
 
 *" Simpkins v. Rogers, 15 111. 389 ; Simpkins v. Rogers, 1 5 111. 397 • 
 
 398 ; King v. Fowler, 14 Pick. 238 ; Rich v. Bolton, 46 Vt. 84 ; Harris 
 
 Carpenter v. Jones, 63 111. 517. v. Frink, 49 N. Y. 24. 
 
 "» Martin v. Knapp, 57 Iowa, "^ Estey v. Baker, 50 Me. 325. 
 
 336. *" Kitchen v. Pridgen, 3 Jones, 49. 
 
356 REAL PROPERTY. 
 
 Upon with disfavor."' The law is careful to protect a tenant 
 so situated from a sudden determination of his tenancy espe- 
 cially from a prejudicial, determination that would carry with 
 it the features of hardship. As we have seen there is a 
 decided tendency to abolish these estates at will, and con- 
 strue them as tenancies from year to year."' Indeed, the 
 Federal Court of Claims, in a comparatively recent case, held 
 that a congressional act of 1864 had actually abolished this 
 species of estate. But an examination of the decision hardly 
 warrants that view."' 
 
 A taking of land by a city for the purpose of widening a 
 street, without actual eviction, does not determine the estate 
 of a tenant at will of the land, nor does a conveyance in fee 
 of a portion of a parcel of land determine the estate of a ten- 
 ant at will in the entire parcel. 
 
 A tenant at will is not estopped to deny that since his own 
 entry into possession his landlord's title has been determined 
 by the act of the landlord. 
 
 If a tenancy at will is terminated between two rent days, 
 by a conveyance of the premises by the landlord to a third 
 person, the tenant is not liable to his landlord for use and 
 occupation of the premises from the beginning of the term to 
 the date of the conveyance. 
 
 A tenant at will, who continues to occupy land after a por- 
 tion of it has been conveyed by the landlord to a third per- 
 son, is liable as a tenant at sufferance, to pay as rent what 
 the remaining portion of the premises is reasonably worth, 
 from the date of the conveyance to the entry by the grantee."' 
 As to acts of negligence the tenant at will is held to the 
 same degree of care that a prudent and careful man in the 
 possession of his own premises would exercise under like con- 
 ditions. Of this the court say: "We think this was a most 
 liberal construction in favor of the lessor." The modern 
 law of negligence is a very imperfect approximation to the 
 rulings of Lord Coke's day, but it is doubtful if any satisfac- 
 tory reason exists for differentiating the application of the 
 rules, in cases of real and personal property or to tenancies at 
 
 «» Rich V. Bolton, 46 Vt. 84. *" ,4 ct. of CI. 493. 
 
 *" Johnson v. Johnson, 13 R. I. «' Emmes v. Feeley, i32Mass.346. 
 468. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 35/ 
 
 will and tenancies for the term. It is certainly idle to follow 
 all the caprices of the judicial mind, and where we may with 
 profit prune away an excresence "the fear of unsettling the 
 law of real property" should never influence the court unless 
 a statutory inhibition presents a controlling view. Summar- 
 izing the present attitude or the law upon this subject of 
 liability, we may say that in the absence of a written instru- 
 ment that would, of course, control the entire subject, one 
 holding this precarious and undesirable tenancy at will is not 
 liable for the destruction or' damage of the premises by fire, 
 even where his own or his servants' negligence contributes 
 to the result. The remedy is in a lease with appropriate 
 covenants which fasten the responsibility where it belongs. 
 This would effectually abolish many of the senseless habits 
 that now menace the entire relation of landlord and tenant, 
 and emancipate a tenancy at will from several of its most 
 objectionable features. 
 
 § 156. Judicial hostility to this estate. Quite generally in 
 this country our courts have favored the conversion of all the 
 estates at will, wherein rent or recompense is distinctly 
 reserved, into estates from year to year. This by no means 
 implies that such an estate cannot and does not exist, where 
 such an intendment is evidenced by some express agreement 
 of the parties, and it may always arise from mere permissive 
 occupation of real estate for an indefinite time, provided the 
 element of rent, or some equivalent for it, does not enter into 
 the purposes of the party, and forms no part of their mutual 
 understanding. In all such cases the estate is strictly an 
 estate at will, and no process of legal alchemy will or can 
 transform it into a tenancy from year to year."' Such ten- 
 ancies are frequently implied when possession is taken under 
 a contract for purchase, or an agreement for a future lease."" 
 
 § 157. How terminated. The relation of tenant at will ter- 
 minates upon the death of either party, and any act of either 
 indicating a set intention to terminate the tenancy will have 
 that effect. And an assignment of the tenant's interest does 
 
 ^«» Rich V. Botton, 46 Vt. 84 ; Her- «» Freeman v. Hadley, 33 N. J. L. 
 rell V. Sizeland, 81 III. 457; Say v. 532; Wood v. Morgan, 88 Ga. 686; 
 Stoddard, 27 Ohio St. 478. Dunne v. Trustees, 39 111. 578. 
 
358 REAL PROPERTY. 
 
 not vest the assignee with any rights as against the owner, 
 and such assignee will acquire the character of a trespasser 
 immediately on entering into possession."' 
 
 An estate at will is not bounded by any definite limits with 
 respect to time ; but as it originated in mutual agreement, so 
 it depends upon the concurrence of both parties. As it de- 
 pends upon the will of both, the dissent of either may deter- 
 mine it. Such an estate or interest cannot, consequently, be 
 the subject of a conveyance to a stranger, or of transmission 
 to representatives."" 
 
 Any act of the landlord evidencing an intent to assert 
 rights of possession and proprietorship will be construed as 
 sufficient to terminate the estate. But the landlord's action, 
 being entirely volitional, and presumptively without the con- 
 sent of the tenant at will, entitles the latter to emblement, a 
 right which he does not enjoy where the termination of the 
 estate results from his own individual action. The death of 
 either party determines the interest eo instanti."' 
 
 A tenant at will has no assignable interest whatever, nor 
 any interest that is subject to levy and sale. His holding is 
 a mere chattel real liable to be terminated at the mere whim 
 or caprice of the party holding the fee or reversion. 
 
 A tenancy at will is determined instanter by a demand of 
 possession, though, perhaps, the tenant might afterwards 
 . enter, solely for the purpose of removing his goods, without 
 being a trespasser."* 
 
 If a tenancy at will is for a definite period as for a year or 
 a month, it is determined by its own limitation, without any 
 notice, and it is familiar law that if the lessor alienate his 
 estate by a deed or a written lease, this terminates the ten- 
 ancy. It is entirely competent for the parties to agree upon 
 some notice by which the tenancy may be concluded. "'^ 
 
 In Hamerton v. Stead, 3 Barn. & C. 483, Littledale, J., said: 
 "Where parties enter under a mere agreement for a future 
 
 "" Rickhow V. Schauck, 43 N. Y. "" Doe v. M'Kaeg, 10 Barn. & 
 
 448. Cress. 721. 
 
 "" Watk. Prin. Con. I ; Co. Litt. «= Davis v. Murphy, 126 Mass. 
 
 sec. 68. 143. 
 
 "' Stewart v. Doughty, 9 Johns. 
 108. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 359 
 
 lease, they are tenants at will ; and, if rent is paid tinder the 
 agreement, they become tenants from year to year, determi- 
 nable on the execution of the lease contracted for, that being 
 the primary contract. ' ' 
 
 § 158. Notice to quit — Views of Mr. Washburn. Says Mr. 
 Washburn: "The necessity of giving notice in order to 
 determine a tenancy at will, which has become so general, 
 has reduced the class of estates held strictly at will, to com- 
 paratively few in number. They still exist in certain cases, 
 and form a second division of this subject. They are divided 
 into two classes, such as are made so by express agreement 
 of the parties, and such as are created by implication of law. ' ' 
 And again, ' ' Because of the uncertainty of the rule requiring 
 reasonable notice in order to determine a parol lease, and 
 from the circumstance that rent was generally measured by 
 the year, courts early adopted a rule, which has been exten- 
 sively followed in this country, that a general tenancy by a 
 parol lease, when rent is to be paid, shall be considered as a 
 lease for a year, which can only be determined by a notice 
 for the time of at least six months, terminating at the expira- 
 tion of the year. And if the tenant is allowed to hold with- 
 out such notice, into a second year, it will be considered as a 
 holding for such second year, and so on. So that the com- 
 mon mode of designating such estates by parol, is an estate 
 from year to year, to continue until either party gives the 
 other the requisite notice to determine it. ""' A tenancy at 
 will is held to be a tenancy from year to year, merely for the 
 sake of a notice to quit ; and the landlord cannot recover pos- 
 session without the notice ; but this notice is not necessary 
 for any other purpose.*" 
 
 The case of Jackson v Salmon, 4 Wend. R. 327, was disposed 
 of by the Supreme Court in a very few words, and the opin- 
 ion is worth quoting. Savage, Ch. J., saying: "The only 
 question in the case is whether the defendant was entitled to 
 
 *'* I Wash, on Real Prop. 510, sec. i Term R. 159; Ridgeley v. Still- 
 I, sub. 22, and pp. 519, 520, sec. 2, well, 28 Mo. R. 400; Patton v. Ax- 
 sub. I, wherein several authorities ley, 4 Jones' L. R. 440. 
 are cited, both English and Ameri- ■•" Phillips v. Covert, 7 Johns, 
 can, including Lesley v. Randolph, R. 4. 
 4 Rawle's R. 123; Right v. Darby, 
 
360 REAL PROPERTY. 
 
 notice to quit. Wells entered into possession lawfully ; he 
 hired the premises for one year, and continued in possession 
 after that period ; he was tenant from year to year, and was 
 entitled to notice before an ejectment could be brought 
 against him. The defendant, coming in under Wells, stands 
 in the same relation to the lessor. A tenant for a year, hold- 
 ing over, is tenant from year to year, and not at will ; but if 
 at will, he was entitled to notice. ' ' 
 
 Estates at will have become infrequent under the operation 
 of judicial decisions. Where no certain term is agreed on, 
 they are now construed to be tenancies from year to year, 
 and each party is bound to give reasonable notice of an inten- 
 tion to terminate the estate. When the tenant holds over by 
 consent given, either expressly or by implication, after the 
 determination of a lease for years, it is held evidence of a 
 new contract, without any definite period, and is construed 
 to be a tenancy from year to year."" 
 
 A tenant at sufferance is entitled to no particular indul- 
 gence from the landlord in the way of notice to quit, beyond 
 the mere notice to surrender immediate possession, and two 
 days has been held reasonable time in which to terminate this 
 species of tenancy."' 
 
 In the State of Indiana, the statute declares that estates at 
 will may be determined by one month's notice in writing 
 delivered to the tenant. And a tenancy at will cannot arise 
 without an express contract; and all general tenancies, in 
 which the premises are occupied by the consent, either ex- 
 press or constructive, of the landlord, are to be deemed ten- 
 ancies from year to year. All tenancies from year to year 
 may be determined by at least three months' notice given to 
 the tenant prior to the expiration of the year ; and in all ten- 
 ancies which, by agreement of the parties, express or im- 
 plied, are from one period to another of less than three 
 months' duration, a notice equal to the interval between 
 such periods is made sufficient."" 
 
 If a tenant neglect or refuse to pay rent when due, ten 
 days' notice to quit will determine the lease, when not 
 
 "'4 Kent's Com. 210; Cruise's ■"» 2 R. S. 1852, part 2, ch. 8, sees. 
 Dig. tit. 9, c. I. I, 2, 3; 2 R. S. 1862, ch. 10, sees, i, 
 
 *'° Hooton V. Holt, 139 Mass. 54. 2, 3. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 361 
 
 therein otherwise provided, unless such rent be paid at the 
 expiration of said ten days/" 
 
 In Massachusetts the estate of a tenant at will can only be 
 directly terminated in the manner provided by statute, as by 
 a notice to quit at the end of fourteen days for non-payment 
 of rent, or by the three months' notice in writing, and when 
 the rent reserved is payable at periods of less than three 
 months by a notice equal to the interval between the days of 
 payment. There are many acts which a lessor or lessee may 
 do which indirectly will, or may at the election of the other 
 party, operate to determine the lease. Thus, by a convey- 
 ance, or by a written lease to a third party by the lessor, the 
 estate of the lessee is terminated."' Upon the commission 
 of waste by the lessee at will, the lessor may enter and 
 determine the estate.*" An assignment of his estate by 
 the lessee at will may be treated by the lessor as terminat- 
 ing it."' 
 
 In other jurisdictions where the tenant denies the title of 
 his landlord, or does definite acts inconsistent with it, as by 
 accepting a deed from some one other than the landlord, and 
 asserting title under it, the tenancy at will may be terminated 
 by the landlord without any notice to quit. He may bring 
 his action against the tenant as a disseizor, or trespasser, as 
 if he had originally entered by wrong; or he may, if 
 he can do so without violence, repossess himself of the 
 premises."' 
 
 No notice to quit is ever necessary unless the relation of 
 landlord and tenant exists, and a disclaimer of tenancy dis- 
 penses with such notice. If one in as a tenant repudiates 
 this relation, and denies that he holds under his landlord, 
 
 <" 2 R. S. part 2, ch. 8, sec. 4, as *" Cooper v. Adams, 6 Cush. 87 ; 
 
 amended by Laws of 1867, ch. 75 ; 2 King v. Lawson, 98 Mass. 309. 
 
 R. S. 1862, ch. 10, sec. 4. ■"' Russell v. Fabyan, 34 N. H. 
 
 ■•" Howard v. Merriam, 5 Cush. 218, 223; Sampson v. Shaeffer, 3 
 
 563,583; Curtis V. Galvin, i Allen, Cal. 196, 205 ; Chamberlain v. Dona- 
 
 215; Hildreth v. Conant, 10 Mete, hue, 45 Vt. 50, 55; Isaacs v. Grear- 
 
 298; Mizner v. Munroe, 10 Gray, hart, 12 B. Mon. (Ky.) 231; Sharpe 
 
 290- V. Kelley, 5 Denio, 431 ; Fusselman 
 
 *" Daniels v. Pond, 21 Pick. 367. v. Worthington, 14 111. 135. 
 
362 REAL PROPERTY. 
 
 the landlord may, at his own election, treat the tenancy as 
 terminated/" 
 
 A notice from A. to B., a tenant at sufferance, to quit, 
 dated July 3, 1885, and served between six and seven o'clock 
 on the evening of that day, after reciting that A. had "this 
 day leased the tenement," notified B. to vacate the tenement 
 "by Monday, 6th day of July, current, by twelve o'clock, 
 noon." In an action on the Pub. Sts. c. 175, by A. against 
 B. , to recover possession of the tenement, it appeared that it 
 was occupied by B. , a married man, and was in the second 
 story. The judge, who tried the case without a jury, found 
 as a fact that the notice was sufficient in point of time. 
 Held, that no error in the law appeared."' 
 
 § 159. Distinction between an estate at will and an estate 
 at sufferance. The line of cleavage between an estate at 
 will and an estate at sufferance is well defined, and yet law- 
 yers and judges are continually losing sight of it. The un- 
 certainty in regard to the incidents can scarcely be a source 
 of wonderment when it is remembered that for more than a 
 century the courts have evidenced a feeling of intense hos- 
 tility against both of these estates, and have resorted to every 
 legal method, and invoked every equitable maxim in the 
 attempt to discredit and overthrow the entire fabric. And 
 it is quite remarkable that the estate should have the hardi- 
 hood to survive in any form after such a continuous exhibi- 
 tion of judicial displeasure. As a consequence of this pecu- 
 liar situation there is a constant tendency to ignore the estate 
 entirely, and, perhaps, a still greater tendency to utterly 
 neglect the subject as a separate branch of study. It is far 
 easier to drop this title entirely from the law of real prop- 
 erty, and regard it as assimilated with estates from year to 
 year. There is much reason for this tendency, but in an 
 undertaking like the present the subject must be given due 
 expansion. I think it will be conceded by all close students 
 of the law of real property, that this estate has long ceased to 
 represent a stimulating force in the law of realty. And that, 
 
 *"Tuttle V. Reynolds, i Vt. 80; Duke v. Harper, 6 Yerger, 280; 
 Harrison v.Middleton, 11 Grat. 527; Boston v. Binney, ii Pick, i, 8. 
 *" Warden v. Etter, 143 Mass. 19. 
 
ESTATES AT WILL, OR FROM YEAR TO YEAR. 363 
 
 in the due course of time, it will be denied any place on the 
 catalogue of estates. 
 
 Returning to the subject of our caption — the distinction 
 between a tenancy at will and an estate at sufferance — we 
 may say the tenant at will is, in the first instance, in posses- 
 sion of the premises demised with the consent of the owner. 
 While a tenant at sufferance holds over when this estate at 
 will has terminated.'" He has merely a naked possession."" 
 
 *"'Emmes v. Feeley, 132 Mass. *" Russell v. Fabyan, 34 N. H. 218; 
 346; Estey V. Baker, 50 Me. 325. Smith v. Littlefield, 51 Id. 539. 
 
CHAPTER X. 
 
 WASTE. 
 
 Sec. i6o. Definition and nature. 
 
 i6i. Common law rules repudiated. - 
 
 162. Waste either voluntary or permissive. 
 
 163. Never attributable to one holding the absolute fee. 
 
 164. Vis major, or act of God. 
 
 165. Instances of voluntary waste. 
 
 a. Cutting timber. 
 
 b. Opening mines. 
 
 c. Improper tillage. 
 
 166. Rule as to tenant at will. 
 
 167. Remedy by action — who may be plaintiflFs. 
 i58. Injunction relief. 
 
 169. Resume of the rules governing the subject of waste. 
 
 § 160. Definition and nature. Waste is whatever does last- 
 ing damage to the freehold or inheritance of land, or of any- 
 thing that alters the nature of the property so as to render 
 the evidence of ownership more difficult, or to destroy or 
 weaken the proof of identity, of diminish the value of the 
 estate, or increase the burden upon it. It is either voluntary 
 or permissive — the former being an offense of commission, 
 such as pulling down a house, converting arable land into 
 pasture, opening new mines or quarries, etc. ; the latter is 
 one of omission, such as allowing a house to fall for want of 
 necessary repairs, allowing land to remain flooded with 
 water, etc. 
 
 Where a tenant for life pulls down a building and erects a 
 new and better one in its stead, equity will not interfere, this 
 being what is called "meliorating" or "ameliorating" waste. 
 The remedy for waste is an action for damages or an injunc- 
 tion. ' 
 
 Waste is any act done to the freehold by the tenant in pos- 
 session, which changes the character of the inheritance. 
 
 " See Rapalje & Lawrence Law Diet. tit. Waste. 
 [364] 
 
WASTE. 365 
 
 Hence, even acts which increase the value of the estate may- 
 be waste. The persons who are liable for waste are tenants 
 for life, for years, at will and at sufferance. Waste is volun- 
 tary when it consists in doing something which the tenant 
 had no right to do, and permissive when it consists in the 
 omission of acts which it was his duty to perform. Instances 
 of the former are destroying trees, opening mines, etc. ; of 
 the latter, letting a house go to ruin. The property must be 
 depreciated in value for the reversioner to recover in the case 
 of permissive waste. In the case of voluntary waste, the 
 mere act is enough upon which to ground an action. It is 
 considered to be waste, if the property is injured by fire 
 through the negligence of the tenant. Estates are some- 
 times limited ' ' without impeachment of waste. ' ' This gives 
 the tenant the right to commit waste, but equity will inter- 
 fere to prevent an unconscionable use of the privilege, as if 
 he were to pull down the principal house. The best remedy 
 against waste is by injunction." 
 
 In one case it appears in the findings that, during the occu- 
 pancy under the lease, ornamental trees were destroyed, 
 fences and walls torn down, and the materials used for side- 
 walks and the erection of other buildings, or carried away ; 
 and that stone was quarried and gravel was dug from a stone 
 quarry and gravel-pit on the premises, and taken away. 
 This was held voluntary waste, and within the prohibition 
 of the implied agreement in the lease. ' 
 
 Waste may be committed not only by destruction, but by 
 alteration of any part of a tenement. Thus, the conversion 
 of land from one species to another, as of woodland into ara- 
 ble, and vice versa, is waste." The conversion of two cham- 
 bers of a tenement into one is waste.' And, in general, 
 whatever does a lasting damage to the freehold or inherit- 
 ance, is waste." As to what particular acts by a tenant con- 
 stitute waste, see Arch. Land. & Ten. 197-201 ; Roscoe's Real 
 Act, 116-119; Cruise's Dig. tit. iii, ch. 2. For the American 
 law of waste, see 4 Kent's Com. 76-82 ; 1 1 Metcalf 's R. 304, 
 
 'A Guide to Law. 158. ■'z Bl. Com. 282 ; 7 N. H. R. 171. 
 
 'United States v. Bostwick, 94 '4 Kent's Com. 76, note. 
 U. S. 53. « 2 Bl. Com. 281. 
 
366 REAL PROPERTY. 
 
 310-312; United States Digest, Waste; i Hilliard's Real 
 Prop. 262-267; I Greenleaf's Cruise's Digest, 1 15-120, notes.' 
 There is one general rule regulating the subject of waste 
 which, in this country, at least, is always in the ascendancy, 
 viz : ' ' The act complained of must be palpably prejudicial to 
 the inheritance — a manifest damage to the property, or one 
 which will injuriously aifect the reversioner.'" 
 
 § 161. Common law rules repudiated. The ancient doctrine 
 of waste, if universally adopted in this country, would greatly 
 impede the progress of improvement, without any compen- 
 satory benefit. To be beneficial, therefore, the rules of law 
 must be accommodated to the situation of the country, and 
 the course of affairs here, as it has been frequently decided.' 
 
 In this country it is difficult to imagine any exception to 
 the general rule of law, that no act of a tenant will amount 
 to waste, unless it is or may be prejudicial to the inheritance, 
 or to those entitled to the reversion or remainder. 
 
 The American cases have modified the law of waste, to 
 adapt it to the circumstances of a new and growing country, 
 in order to encourage the tenant for life in making a reason- 
 able use of wild and uncultivated lands." 
 
 In NeelY. Neel, 19 Pa. St. 323, a coal mine had been opened and 
 worked for family use, and for the benefit of the neighbors, 
 but a very inconsiderable quantity had been taken out. In 
 that case Judge Lowry said : "It seems, in this case, that the 
 author of the gift had sometimes sold coal out of the pits, but 
 I do not conceive this to be material. It is sufficient that he 
 opened them and derived any profit from them, even if it 
 were only private. And the decisions refer to coal mines, 
 iron mines, etc., and the tenant for life may work them, 
 even though the working of them may have been discon- 
 tinued before the death of him through whom the estate 
 comes, and, if necessary to the proper working of them, to 
 m.ake new openings in the ground. ' ' 
 
 ' Cited from 2 Burrill's Law Diet. Yeates, 261 ; Findlay v. Smith, 6 
 
 sPynchon v. Stearns, 11 Mete. Mumf. 134; Ballentine v. Poyner, 
 
 304. 2 Hayw. 1 10 ; Neel v. Neel, 7 Har- 
 
 'Winship V. Pitts, 3 Paige, 259. ris, 323; Irwin v. Covode, 12 Id. 
 
 '"Hastings v. Crunckleton, 3 162. 
 
WASTE. 367 
 
 In support of these views lie cites the English and Ameri- 
 can cases, and expresses himself without reference to the 
 statute of 1848. 
 
 Chancellor Kent says: "The American doctrine on the 
 subject of waste is somewhat varied from the English law, 
 and is more enlarged and better accommodated to the cir- 
 cumstances of a new and growing country."" 
 
 The cases referred to will show a strong inclination to am- 
 plify the privileges of the life tenant. 
 
 In a country like this, where there are such vast bodies of 
 unimproved lands, which would otherwise lie dormant in the 
 hands of the life tenant, public policy requires that the doc- 
 trine of waste should be liberalized, and the decisions have 
 uniformly been in that direction. 
 
 § 162. Waste either voluntary or permissive. As previ- 
 ously stated waste is regarded as voluntary or permissive. 
 The first imports the doing of some aggresive act which 
 results in permanent damage to the inheritance. It has been 
 called active waste." While permissive waste results from 
 gross negligence, inattention, and improvident management, 
 its active manifestation is where buildings are suffered to rot 
 and decay; or walls fall in for want of plastering; or the 
 property is damaged by rain for the want of a few shingles." 
 
 A voluntary waste is an act of commission, as tearing down 
 a house. This kind of waste is committed in houses, in tim- 
 ber, and in land. It is committed in houses by removing 
 wainscots, floors, benches, furnaces, window glass, windows, 
 doors, shelves, and other things once fixed to the freehold, 
 although they may have been erected by the lessee himself, 
 unless they were erected for the purposes of trade. (See 
 Fixtures.) And this kind of waste may take place not only 
 in pulling down houses, or parts of them, but also in chang- 
 ing their forms ; as, if a tenant pulls down a house and erects 
 a new one in the place, whether it be larger or smaller than 
 the first ;" or convert a 'parlor into a stable ; or a grist mill 
 into a fulling mill ;" or turn two rooms into one. " The build- 
 
 "4 Kent's Com. 76. '"2 Roll. Ab. 815, i, 33. 
 
 " See Peirce v. Burroughs, 58 N. "2 Roll. Ab. 814, 815. 
 
 H. 304. 16 2 Roll. Ab. 815, I, 37. 
 " Co. Litt. 53a. 
 
368 REAL PROPERTY. 
 
 ing of a house where there was none before is said to be a 
 waste;" and taking it down after it is built, is a waste." It 
 is a general rule that when a lessee has annexed anything to 
 the freehold during the term, and afterwards takes it away, 
 it is waste.'" 
 
 § 163. Never attributable to one holding the absolute fee. 
 
 Such a holder is privileged to commit any sort of depredation 
 upon the property that his whim or fancy may suggest.''" 
 There is much refined theorizing in the English text-books, 
 which is in no sense applicable to the doctrine as it obtains 
 in this country. The wholesale destruction of our forests in 
 the process of clearing up would, in England, expose a tenant 
 to the severest penalties of the law, while in this country it 
 would be regarded as a laudable procedure comporting with 
 all our ideas of good husbandry. Still the circumstances of 
 each case must largely govern the determination of the ques- 
 tion, And a review of all the evidence is generally necessary 
 to reach a correct conclusion." 
 
 It is never considered waste for the tenant in possession to 
 provide himself with reasonable estovers."^ And the whole 
 subject is more or less controlled by local usage. It would 
 be utterly impracticable to formulate an iron clad rule that 
 would apply to all sections of the country. Every case must 
 repose upon the facts and circumstances that environ it. 
 And particular attention must be given to the statutory law 
 of the different States." As regards the remedy, an action 
 will lie for either permissive or voluntary waste, but it is 
 difficult to see how an injunction can lie ior permissive waste. 
 To restrain a man from doing nothing, might be a process of 
 some difficulty. 
 
 § 164. Vis major, or act of God. Any unforseen calamity 
 which no amount of activity or vigilance could prevent is 
 generally excusable, but the tenant is obligated to such 
 
 "Co. Lilt. 53a. " Lynn's App. 31 Pa. St. 44; Mc- 
 
 " Com. Dig. Waste, D 2. Gregor v. Brown, 10 N. Y. 14. 
 
 "3 East, 51; 2 Bouvier's Law "Webster v. Webster, 33 N. H. 
 
 Diet. 18. 
 
 ^'' Duvall v. Waters, i Blands. Ch. " Hamden v. Rice, 24 Conn. 350. 
 569. 
 
WASTE. 369 
 
 prompt and efficient measures as are within his power, to 
 render casualties by wind, flood, fire, or earthquake, as light 
 as possible. He must adopt all reasonable measures to 
 reduce the damages to their minimum, and is never allowed 
 to make bad worse through neglect and inattention. 
 
 Act of God. Such inevitable accident as cannot be pre- 
 vented by human care, skill or foresight — an earthquake is 
 a very apt illustration — it is something superhuman or out 
 of the ordinary course of nature. "Every act of God is an 
 ' inevitable accident, ' because no human agency can prevent 
 it. But it by no means follows that every ' inevitable acci- 
 dent' is an act of God. Damage done by lightning is an 
 inevitable accident, and also an act of God, but the collision 
 of two vessels in the dark, is an inevitable accident, and not 
 an act of God."" Where the performance of a contract be- 
 comes impossible through an act of God, the promissor is in 
 many cases discharged from liability. Thus, if a lessee of 
 land covenants to leave a wood in as good a plight at the end 
 of the lease as it was at the beginning, and afterwards the 
 trees are blown down by a tempest, he is discharged from his 
 covenant." Whether an event is an act of God for the pur- 
 poses of a particular contract depends on the nature of the 
 contract and the event, especially on the question whether it 
 can be foreseen and provided against for the purposes of the 
 contract." 
 
 There is a large class of cases in which injury is suffered 
 by a party, where the law gives no redress. If a tree grow- 
 ing upon the land of one is blown down upon the premises 
 of another, and in its fall injures his shrubbery, or his house 
 or his person, he has no redress against him upon whose 
 land the tree grew. If one builds a dam of such strength 
 that it will give protection against all ordinary floods, the 
 occurrence of an extraordinary flood by which it is carried 
 away, and its remains are lodged upon the premises of the 
 owner below, or by means whereof the dam below is carried 
 
 ** Le Grand, Ch. J., in Ferguson Thompson, afterwards chief justice ; 
 
 V. Brent, 12 Md. 33, and see Mc- Chicago R. R. Co. 69 111. 289. 
 Henry v. Philadelphia & C. R. Co. ''^ i Rep. 98a ; L. R. 4 Q. B. 185. 
 4 Harr. 449; Hayes v. Kennedy, 41 ''^ See Poll. Cont. 335; Rapalje & 
 
 Pa. St. 379; dissenting opinion by L. Law Diet. tit. "Act of God." 
 24 
 
370 REAL PROPERTY. 
 
 away, or the mill building is destroyed, gives no claim 
 against the builder of the dam. In these cases the injury 
 arises from a fortuitous occurrence beyond the control of 
 man. It is termed the act of God. The party through 
 whom it occurs is not responsible for it. The party suffer- 
 ing from it must submit to it as a providential dispensation." 
 
 § 165. Instances of voluntary waste. a. Cutting timber. 
 Timber is the body, stem or trunk of a tree, or the larger 
 pieces or sticks of wood which enter into the framework of a 
 building or other structure, excluding the plank, boards, 
 shingles, or lath used to complete the structure."' It includes 
 trees of any size that may be used in any kind of manufac- 
 ture or the construction of any article." The particular 
 meaning depends upon the connection in which the word is 
 used or the calling of the person by whom it is used.'" Cut- 
 ting down timber is one form of waste except so far as it is 
 required for estovers. While the timber is standing it con- 
 stitutes a part of the realty ; severed from the soil, its charac- 
 ter is changed; it becomes personalty, but its title is not 
 affected; it continues to be the property of the owner of the 
 realty, and can be pursued wherever it is carried. All the 
 remedies are open to the owner which the law affords in 
 other cases of wrongful removal of personalty." 
 
 b. Opening mines. It is quite customary for text writers 
 on the subject of waste to insert a paragraph captioned after 
 the manner of this one, and then insert some matter of fact 
 phrases to the effect that it is not waste to operate a mine 
 already opened, or is waste to open a new one. To the pres- 
 ent writer all this is pure nonsense. If the tenant comes 
 into possession of premises already enjoying the distinction 
 of mining property, his occupancy is almost infallibly with 
 reference to the mining rights. These constitute the subject 
 matter of his tenancy, the very thing he contracted to con- 
 trol, the sole object he had in securing the lease. If, on the 
 
 " Ryan v. New York Cent. R. R. '» United States v. Murphy, 32 
 Co. 35 N. Y. 210; Anthony v. Har- Fed. Rep. 379. 
 
 vey, 8 Bing. 191 ; Story on Bail. ^'' United States v. Stioes, 14 Fed. 
 
 sec. 83; Rep. 825. 
 
 ''' Babka v. Eldred, 47 Wis. 192. " Schulenburg v. Harriman, 21 
 
 Wall. 64. 
 
WASTE. 371 
 
 other hand, he discovers a mine on the property, we are un- 
 acquainted with any law which prevents his development of 
 it. So far as any question of waste is concerned, he must 
 work his mine, either an old one or a new one, with due 
 respects to the ordinary precautions and methods. But un- 
 less restrained by some controlling recital in the instrument 
 under which he holds possession, it cannot be regarded as 
 waste to merely operate or develop the mine. 
 
 c. Improper tillage. The occupant of the premises is charge- 
 able with waste where, through improper attention to the 
 demands of good husbandry the fertility of the soil is im- 
 poverished, or the land is allowed to relapse into an untill- 
 able condition through the growth of underbrush and sap- 
 plings.'" Custom and usage may sometimes decide a question 
 of waste, as it is well settled that any method which is 
 generally adopted by good cultivators in the vicinity would 
 justify an action, that might under other circumstances be 
 stigmatized as waste." 
 
 § 166. Rule as to tenant at Will. It was early decided in a 
 case of some celebrity, that if a tenant at will negligently 
 kept or guarded his fire, whereby the house was burned, this 
 was permissive waste, for which he was not liable to his 
 landlord." And we are obliged to admit that the present 
 law exonerates a tenant at will from all liability for permis- 
 sive waste." The Massachusetts statute gives an action for 
 waste, or of tort in the nature of waste, against a tenant in 
 dower, by the curtesy, or for life or years, but not against a 
 tenant at will.^° Such a tenant is not liable to his landlord 
 for the mere negligence of either himself or his servants in 
 kindling or guarding fires in stoves or chimneys for the pur- 
 pose of heating the premises. But he is held to a strict 
 accountability for gross negligence or reckless disregard of 
 ordinary precaution." Modern text writers find abundant 
 
 ''Clemence v. Steere, i R. I. 272. 284; Harnett v. Maitland, 16 M. & 
 
 ^ Webster v. Webster, 33 N. H. W. 257 ; Coale v. H. & St. J. R. R. 
 
 25. Co. 60 Mo. 227. 
 
 "The Countess of Shrewsbury's »« Pub. Stat. C. 179. 
 
 Case, 5 Rep. 13, b. " Lathrop v. Thayer, 138 Mass. 
 
 " Moore v. Townsend, 4 Vroom, 466. 
 
372 REAL PROPERTY. 
 
 justification for the assertion that buildings burned through 
 the negligent management of fires, on the part of tenants, 
 come within the old common law theory of " permissive 
 waste, ' ' and the loss incident to such burning falls upon the 
 landlord, or more generally, upon the insurance company." 
 The case of Scott v. Hale, i6 Me. 326, might have presented 
 some very elucidative incidents, as this identical question 
 was directly involved. But unfortunately it was decided^ on 
 an insignificant side issue, as the court very naturally declined 
 the consideration of an intricate question when the situation 
 of the record presented gave an easy mode of escape. 
 
 § 167. Remedy by action — who maybe plaintiffs. As we 
 
 have previously stated the subject of waste, as understood in 
 the English law, is bereft of many of its incidents on this 
 side of the Atlantic."' It has been repeatedly decided that 
 the requirements of a growing country, where tillage comes 
 only after a clearing is effected, where there is a riotous 
 abundance of timber, trees and tillable land, and where 
 the customs of the people have all but crystallized into laws 
 regarding the subject of husbandry, waste and its related 
 topics must undergo considerable modification before they 
 can be applied to our wants and to our conditions. The 
 action, however, is well known in our jurisprudence and lies 
 against a tenant by the curtesy, in dower, for life, or for 
 years, or the assignee of such a tenant, who, during his 
 estate or term, commits waste upon the real property held 
 by him, without a special and lawful written license so to 
 do ; or against such a tenant, who lets or grants his estate, 
 and, still retaining possession thereof, commits waste with- 
 out a like license. 
 
 a. Action by heirs, devisee, or grantor of reversion. An heir 
 or devisee may maintain an action for waste, committed 
 in the time of his ancestor or testator, as well as in his own 
 time. The grantor of a reversion may maintain an action 
 for waste, committed before he aliened the same. 
 
 " See 4 Kent's Com. 81, Add. ^' Drown v. Smith, 52 Me. 141 ; 
 
 Torts, 239; Taylor, Land; &Ten. sec. Findlay v. Smith, 6 Munf. 134; Kidd 
 
 349; Gibbons on Dilapidations, 108- v. Dennison, 6 Barb. 9; Keeler v. 
 
 128; Smith's Land. & Ten. 287. Eastman, 11 Vt. 293. 
 
WASTE. 373 
 
 b. Id.; by ward against guardian. Such an action may 
 also be maintained against a guardian by his ward, either 
 before or after the termination of his guardianship, for 
 waste, committed upon the real property of the ward, during 
 the guardianship. 
 
 c. Id.; by grantee of real property sold under execution. When 
 real property is sold by virtue of an execution, the per- 
 son, to whom a conveyance is executed pursuant to the 
 sale, may maintain an action for waste, committed thereon 
 after the sale, against the person who was then in possession 
 of the property. 
 
 d. Action against joint tenant or tenant in common. An action 
 for waste may also be maintained by a joint tenant or 
 tenant in common, against his, co-tenant, who commits waste 
 upon the real property held in joint tenancy or in common. 
 If the plaintiff recovers therein, he is entitled, at his elec- 
 tion, either to a final judgment for treble damages, as speci- 
 fied in the last section, or to have partition of the property, 
 as prescribed in the next two sections. 
 
 e. View ; when not necessary ; when and how made. In an 
 action for waste, it is not necessary, either upon the exe- 
 cution of a writ of inquiry, or upon a trial of an issue in fact, 
 that the jury, the judge, or the referee, should view the 
 property. Where the trial is by a referee, or by the court 
 without a jury, the referee or the judge may, in his discre- 
 tion, view the property, and direct the attorneys for the par- 
 ties to attend accordingly. In any other case, the court 
 may, in its discretion, direct a view by the jury." 
 
 § i68. Injunction relief. The object of the remedy by in- 
 junction, being to prevent a known and certain injury, is 
 applicable to every species of waste." An injunction will, 
 therefore, be granted to restrain equitable waste, which is 
 defined to consist of such acts as at law would not be 
 esteemed to be waste under the circumstances of the case, 
 but which, in the view^of a court of equity, are so esteemed, 
 for their manifest injury to the inheritance." 
 
 *• N. Y. Code Civil Pro. sec. 1652 « Hawley v. Clowes, 2 Johns. Ch. 
 et seq. Consult Bouton v. Thomas, 122. 
 46 Hun, 6. "'a Stoi^-^'s Eq. Jur. sec. 915. 
 
374 REAL PROPERTY. 
 
 In one case the court laid down the following rule as to 
 cases where courts of equity will interpose to prevent inju- 
 ries to real estate — one which seems to be in conformity 
 with the principles acted upon by courts in other States. If 
 there is a privity of estate between the party applying for 
 the injunction and him who is doing or about to do the act, 
 such as exists between tenant for life or years and the rever- 
 sioner, it is not necessary that the act should work irrepar- 
 able injury to induce the court to grant it. But if the parties 
 are strangers in respect to the estate, or are claimants adverse 
 to each other, the court will require evidence that the injury 
 threatened will be irreparable, before they will interpose to 
 restrain it by injunction. And this, whether the act threat- 
 ened be waste or trespass " Nor will an injunction to stay 
 waste be granted where the right is doubtful." 
 
 The perfect sanity that usually is supposed to accompany 
 a judicial decision seems wanting in some cases involving the 
 question of waste. If a mortgagor commits waste by remov- 
 ing buildings, wood, timber or other parts of the realty, can 
 the mortgagee, out of possession, follow the property, after 
 it has been severed from the realty, and maintain an action 
 in the nature of trover against a person who buys of the 
 mortgagor? It is a melancholy fact that some courts of last 
 resort have been discovered that answer this question in the 
 affirmative. The unfortunates that buy a load of wood in 
 open market, of some chance farmer, under the delusive idea 
 that after delivery and payment it is theirs, "are liable to an 
 action of tort in the nature of trover against a person who 
 buys of the mortgagor wood and timber, wrongfully cut, 
 (sic?) by the latter from the mortgaged premises." This is 
 the decision of the Massachusetts Supreme Court of Judica- 
 ture." If trover lies, why not replevin? The law invests a 
 mortgagee with many privileges, he usually has the most 
 ample security for his loan, in a form that is never liable to 
 perish, he can invoke the process of the court at any instant 
 that the mortgagor is in default, he is entitled to a receiver, 
 
 " Georges Creek Co. v. Detmold, ** Storm v. Mann, 4 Johns. Ch. 21 ; 
 
 I Md. Ch. Dec. 371 ; see Atkins v. Field v. Jackson, 2 Dick. 599. 
 
 Chilson, 7 Mete. 398 ; Poindexter v. *^ Searle v. Sawyer, 127 Mass. 491, 
 
 Henderson, Walker, 176. in the year A. D. 1878. 
 
WASTE. 375 
 
 or an injunction, or an order of subrogation, by whicli his 
 rights are guarded. The law fairly bristles with protective 
 privileges but should there be no reciprocal obligations? Can 
 he repose in absolute security and by his owii gross negligence 
 allow waste to be committed and then come upon the general 
 public with reprisals on the ground that the mortgagor 
 "wrongfully severed this particular wood from the prem- 
 ises? " How can the purchaser know that the severance is 
 wrongful — by consulting the mortgagee ? This is the only 
 safe method — an abstract of title even would only disclose 
 the presence of the mortgage — but there is nothing, even in 
 that, to inform him that the mortgagor is committing waste 
 by selling the products of the land. 
 
 The mortgagee is allowed to follow the timber in whatever 
 shape it may have assumed into the possession of any inno- 
 cent third party who has purchased for value and without 
 notice, may lawfully seize it and devote it to his own pur- 
 poses, leaving the innocent purchaser such remedies as he 
 can find (none at all practically). Now there is a well known 
 rule of equity to the effect that where one of two innocent 
 parties must suffer the one whose negligence occasioned that 
 injury must be that one. He is the party whose conduct, in 
 the first instance, rendered the act possible by which the 
 other has been defrauded. It is clearly the business of the 
 mortgagee to know, either by personal or deputed inspection 
 of the security, whether the creditor is committing or is 
 likely to commit waste, and, whether he is in a position 
 where he is likely, having the opportunity, to impose the 
 fruits of waste upon the purchasing public. In such a case 
 he can abundantly protect himself, and he should be held to 
 some vigilance in conserving his own interests. The rule 
 of the Massachusetts court is fiatly repudiated in many juris- 
 dictions, and it would seem that the doctrine of " stare decisis " 
 should be made to yield to the interests of common equity." 
 
 We concede that somebody is being injured — that a remedy 
 must exist — that the act complained of is waste. Our quar- 
 rel is with the remedy allowed in the Massachusetts decision 
 to a mortgagee not in possession. 
 
 ''Peterson v. Clark, 15 Johns. 205; Cooper v. Davis, 15 Conn. 556. 
 
376 REAL PROPERTY. 
 
 § 169. Resume of the rules governing the subject of waste. 
 
 It is afflictively apparent from the foregoing review of the 
 principles that control the action of waste, that the entire 
 topic has been made to wear an unnecessarily offensive 
 aspect, through the constant tendency of text writers to ex- 
 pand and obscure the very plain and simple theory upon 
 which the whole doctrine is bottomed. This same tendency 
 to mystification is disclosed in many other departments of the 
 law. But in this particular instance, it appears all the more 
 aggravating in that the entire subject can be reduced to a 
 very simple formula that will bear the criticism of any fair, 
 reasonable test. I venture to affirm that this formula can be 
 phrased as follows : 
 
 Whenever any person holding any interest, less than a fee simple, 
 in any real estate, commits, or allows others to com.mit, any act 
 palpably prejudicial to the inheritance, or which changes the form 
 or character of the property, such person is liable to respond to the 
 reversioner or rem,ainderm.an in an action for waste, and he incurs 
 the same liability when, by passive indifference and gross neglect, 
 the property is exposed to unnecessary deterioration. There may 
 be instances that this formula does not reach, but it is be- 
 lieved that they are unimportant and exceedingly rare, and 
 for a sententious and easily memorized rule the foregoing is 
 amply sufficient for practicable purposes. It is both difficult 
 and dangerous to formulate legal principles in the mold of 
 proverbs. They are scant covers for very great things. Still 
 it would seem desirable to rid ourselves of the black letter 
 lore that has encrusted the subject by adopting some simpler 
 method even if that method in its turn is open to objection. 
 
CHAPTER XI. 
 
 FRANCHISES AND CHARTER RIGHTS. 
 
 Sec. 170. Nature and definition. 
 
 171. Distinction between "charter" and ''franchise.'' 
 
 a. Views of Mr. Justice Orton in a recent case 
 
 172. What passes with the grant of franchise. 
 
 173. Construed in favor of the public, not in favor of the grantee. 
 
 174. Regarded as an irrevocable contract. 
 
 175. Synoptical review of Dartmouth College v. Woodward, 
 
 176. The power to repeal examined. 
 
 177. Lease or sale of franchise generally void. 
 
 178. Railway franchises from a judicial point of view. 
 
 179. Subject to the right of eminent domain. 
 
 180. How lost or forfeited. 
 
 a. Views of Justice Finch in a celebrated case. 
 
 § 170. Definition and nature. Franchises are special privi- 
 leges conferred by government upon individuals, and which 
 do not belong to the citizens of the country generally, of 
 common right. It is essential to the character of a franchise 
 that it should be a grant from the sovereign authority, and 
 in this country no franchise can be held which is not derived 
 from a law of the State.' 
 
 It is quite too narrow a definition of the word "franchise," 
 to hold it as meaning only the right to be a corporation. 
 The word is generic, covering all the rights granted by the 
 legislature. As the greater power includes every less power 
 which is a part of it, the right to withdraw a franchise must 
 authorize a withdrawal of every or any right or privilege 
 which is a part of the franchise." 
 
 Mr. Justice Field said, in Morgan v. Louisiana, gi U. S. 217, 
 223 (1876): "Much confusion of thought has arisen in this 
 case and in similar cases from attaching a vague and unde- 
 fined meaning to the term 'franchises.' It is often used 
 synonymous with rights, privileges and immunities, though 
 
 ' The Bank of Augusta v. Earle, » Atlantic & Gulf R. R. Co. v. 
 13 Pet. 519. . State of Georgia, 98 U. S. 359. 
 
 [377] 
 
3/8 REAL PROPERTY. 
 
 of a personal and temporary character, so that, if any one of 
 these exists, it is loosely termed a 'franchise, 'and is supposed 
 to pass upon the transfer of franchises of the company But 
 the term must always be considered in connection with the 
 corporation or property to which it is alleged to appertain. 
 The franchises of a railroad corporation are rights or privi- 
 leges which are essential to the operations of the corporation 
 and without which its roads and works would be of little 
 value; such as the franchise to run cars, to take tolls, to 
 appropriate earth or gravel, for the bed of its road, or water 
 for its engines or the like. They are positive rights or privi- 
 leges without the possession of which the road of the com- 
 pany could not be successfully worked. Immunity from 
 taxation is not one of them.' The term 'franchise' has sev- 
 eral significations and there is some confusion in its use. 
 The better opinion, deduced from the authorities, seems to 
 be that it consists of the entire privileges embraced in and 
 constituting the grant.'" 
 
 " If there are certain immunities and privileges in which 
 the public have an interest, as contradistinguished from pri- 
 vate rights, and which cannot be exercised without author- 
 ity from the sovereign power, it would seem to me that such 
 immunities and privileges must be franchises.'" 
 
 He who says the State has given him a franchise, a right 
 to do that which without that franchise he could not do, will 
 be compelled to show that the franchise, the right claimed, 
 is within the terms of his grant. Much more strenuous must 
 be the demand upon him for clear and explicit language in 
 his grant when he claims that a part of it is not merely the 
 franchise, the right to do, but also the right to exclude all 
 others of the public from exercising the same right, and the 
 State, as the representative of the public, from according the 
 same right to another.' 
 
 ' Approved in Chesapeake & Ohio Interstate Rapid Transit R. Co. 24 
 
 R. Co. V.Miller, H4 U.S. 185(1884). Fed. Rep. 306; Stoubridge Canal 
 
 " City of Bridgport v. New York, Proprs. v. Wheeley, 2 Barn. & Ad. 
 
 etc., R. Co. 36 Conn. 266. 793; see also Charles River Bridge 
 
 'Spencer, J., in People v. Utica v. Warren Bridge, 36'U. S. (n Pet.) 
 
 Ins. Co. 15 Johns. (N. Y.) 387. 422, 9 L. ed. 775. 
 
 " Jackson County Horse R. Co. v. 
 
FRANCHISES AND CHARTER RIGHTS. 379 
 
 When the legislature grants a franchise it only intends to 
 grant that of which it has knowledge.' 
 
 "We have nothing to do with a great proportion of the 
 franchises that occupy a large space in the treatises on Eng- 
 lish law ; and whoever claims an exclusive privilege with us, 
 must show a grant from the legislature. Corporations, or 
 bodies politic, are the most usual franchises known in our 
 law ; and they have been sufficiently considered in a former 
 volume. These incorporated franchises seem, indeed, with 
 some impropriety, to be classed by writers among heredita- 
 ments, since they have no inheritable quality, inasmuch as a 
 corporation, in cases where there is no express limitation to 
 its continuance by the charter, is supposed never to die, but 
 to be clothed with a kind of legal immortality, (a). They 
 are, nevertheless, deemed incorporeal hereditaments; and 
 shares in a railroad incorporated company have, in Ken- 
 tucky, been adjudged to be real estate, which descends as 
 realty, and of which a widow might be endowed.' Special 
 privileges, conferred upon towns and individuals in a variety 
 of ways, and for numerous purposes, having a connection 
 with the public interest, are franchises.'" 
 
 § 171. Distinction between " charter " and " franchise." 
 
 Let us clear up a mystification by a further resort to defini- 
 tions, and avoid the common error of confounding the instru- 
 ment called a charter with the thing called a corporate 
 franchise. Now a charter is merely the written or printed 
 evidence of a public grant ; while the franchise is the specific 
 thing granted or obtained by grant from the legislature. It 
 has many of the attributes of property. It is a privilege con- 
 ferred by the sovereign power upon natural or artificial per- 
 sons, enabling them to exercise functions and acquire rights 
 which otherwise it would be unlawful for them to assume. 
 Its source is in the government, and it always traces its gene- 
 
 ' Bridge Proprs. of P.&H. Rivers McRee v. Wilmington & R. R. Co. 
 
 V. Hoboken L. & Imp. Co. 68 U. S. 47 N. C. 186; Saginaw Gas L. Co. 
 
 (i Wall.) 116, L. ed. 571 ; see also v. Saginaw, 28 Fed. Rep. 529. 
 
 Mohawk Bridge Co. v. Utica & S. ' Price v. Price, 6 Dana's Rep. 
 
 R. Co. 6 Paige, 564, 3 L. ed. 1104; 107. 
 
 Thompson v. New York & H. R. '3 Kent's Com. 619. 
 Co. 3 Sandf, Ch. 625, 7 L. ed. 980 ; 
 
380 REAL PROPERTY. 
 
 sis to a grant or to the doctrine of prescription, which is the 
 supposition of the grant. '° Take the interest which a street 
 railway has in the line of its track. Its franchise, in strict 
 language, is embraced in its right to lay its track along a cer- 
 tain avenue on the condition of running public cars over the 
 same." The great case of Dartmouth College y. Woodward, 17 
 U. S. 518, has declared that this franchise is within the spe- 
 cial protection of those constitutional provisions which pro- 
 hibit the impairment of contractual obligations, and con- 
 sequently these rights cannot be arbitrarily annulled. 
 It does not follow, however, that a franchise, whether 
 granted for a railway, turnpike, plank road, bridge, or 
 ferry is, in its nature exclusive — that it imports for all 
 time an absolute monopoly of the rights conferred. On the 
 contrary, a formidable array of authority will support the 
 proposition that the State may grant a similar franchise to 
 other parties, who may, in the exercise of the rights granted, 
 seriously impair the value of the privileges first granted." 
 The Supreme Court of Illinois, in Chicago City Ry. Co. v. People, 
 73 111. 541, 548 (1874), said: "It is a misconception of the law 
 to suppose the railway company derives its power to con- 
 struct a railroad from any ordinance of the city. All its 
 authority is from the State, and is conferred by its charter. 
 The city has delegated to it the power to say in what manner 
 and upon what conditions the company may exercise the 
 franchise conferred by the State, but nothing more. ' ' 
 
 A corporation is in law, for civil purposes, deemed a per- 
 son. It may sue and be sued, grant and receive, and do all 
 other acts not ultra vires which a natural person could do. 
 The chief point of difference between the natural and the 
 artificial person is that the former may do whatever is not 
 forbidden by law ; the latter can do only what is authorized 
 by its charter. It cannot migrate, but may exercise its 
 
 '"Oakland R. R. Co. V. Brooklyn Broad Gauge Street Ry. Co. 73 
 
 Co. 45 Cal. 365. Iowa, 513; Birmingham Street Ry. 
 
 " N. Y. & H. R. R. Co. v. Forty- Co. v. Birmingham Street Ry. Co. 
 
 Second Street Co. 50 Barb. 285. 79 Ala. 465 ; Street Ry. Co. v. West 
 
 " Baltimore Pass. Ry. Co. v. Side Street Ry. Co. 48 Mich. 433 ; 
 
 North Ave. Co. 23 Atl. Rep. (Md.) Canal R. R. Co. v. Crescent City R. 
 
 466; Desmoine's Street Ry. Co. v. R. Co. 41 La. An. 561. 
 
FRANCHISES AND CHARTER RIGHTS. 38 1 
 
 authority in a foreign territory upon such conditions as may 
 be prescribed by the law of the place. One of these condi- 
 tions may be that it shall consent to be sued there. If it do 
 business there it will be presumed to have assented and will 
 be bound accordingly." For the purposes of federal juris- 
 diction it is regarded as if it were a citizen of the State -^vhere 
 it was created, and no averment or proof as to the citizen- 
 ship of its members elsewhere will be permitted. There is 
 a presumption of law which is conclusive.'* 
 
 There is no reason why several States cannot, by compe- 
 tent legislation, unite in creating the same corporation or in 
 combining several pre-existing corporations into a single one. 
 The Philadelphia, Wilmington and Baltimore Railroad Com- 
 pany is one of the latter description. In the case of that 
 company against Maryland (10 How. 392), Chief Justice Tan- 
 ey, in delivering the opinion of this court, said: "The 
 plaintiff in error is a corporation composed of several rail- 
 road companies, which had been previously chartered by the 
 States of Maryland, Delaware and Pennsylmania, and which, 
 by corresponding laws of the respective States, were united 
 together and form one corporation, under the name and style 
 of the Philadelphia, Wilmington and Baltimore Railroad 
 Company. The road of this corporation extends from Phila- 
 delphia to Baltimore. ' ' He gives the history of the legisla- 
 tion by which this result was produced. No question was 
 raised on the subject, but the opinion assumes the valid ex- 
 istence of the corporation thus created. 
 
 It is well settled that corporations of one State may exer- , 
 cise their faculties in another, so far, and on such terms, and 
 to such extent as may be permitted by the latter." 
 
 a. Views of Mr. Justice Orton in a recent case. From the very 
 nature of a private business corporation, or, indeed, of any 
 corporation, the stockholders are not the private and joint 
 owners of its property. The corporation is the real, though 
 
 '' Lafayette Ins. Co. v. French, 18 & Mississippi R. R. Co. v. Wheeler, 
 
 How. 405. I Black, 297. 
 
 '«Louisville,Cincinnati& Charles- " Blackstone Manufacturing Co. 
 
 ton Railroad Co. V. Letson, 2 How. v. Inhabitants, etc. 13 Gray, 489; 
 
 497; Marshall v. The Baltimore & Bank of Augusta v. Earle, 13 Pet. 
 
 Ohio Railroad Co. 16 Id. 329 ; Ohio 588. 
 
382 REAL PROPERTY. 
 
 artificial, person substituted for the natural persons who pro- 
 cured its creation and have pecuniary interests in it, in which 
 all its property is vested and by which it is controlled, man- 
 aged, and disposed of. It must purchase, hold, grant, sell, 
 and convey the corporate property, and do business, sue and 
 be sued, plead and be impleaded, for corporate purposes by 
 its corporate name. The corporation must do its business in 
 a certain way, and by its regularly appointed officers and 
 agents, whose acts are those of the corporation only as they 
 are within the powers and purposes of the corporation. In 
 an ordinary co-partnership the members of it act as natural 
 persons and as agents for each other, and with unlimited 
 liability. But not so with a corporation ; its members, as 
 natural persons, are merged in the corporate identity. " A 
 share of the capital stock of a corporation is defined to be a 
 right to partake, according to its amount subscribed, of the 
 surplus profits obtained from the use and disposal of the 
 capital stock of the company to those purposes for which the 
 company is constituted." The corporation is the trustee for 
 the management of the property, and the stockholders are 
 the mere cestuis que trust." The right of alienation or assign- 
 ment of the property is in the corporation alone, and this 
 right is not affected by making the stockholders individually 
 liable for the corporate debts." The property of the corpo- 
 ration is the mere instrument whereby the stock is made to 
 produce the profits, which are the dividends to be declared 
 from time to time by corporate authority for the benefit of 
 the stockholders, while the property itself, which produces 
 them, continues to belong to the corporation." The corpo- 
 ration holds its property only for the purposes for which it 
 was permitted to acquire it, and even the corporation cannot 
 divert it from such use, and a shareholder has no legal right 
 to it, or the profits arising therefrom, until a lawful division 
 
 '• Ang. & A. on Corp. sees. 40, 46, Pope v. Brandon, 3 Stewart (Ala.), 
 
 100, 591, 595. 401; Whitwell V. Warner, 20 Vt. 
 
 "Id. sec. 557. 444. 
 
 '* Gray v. Portland Bank, 3 Mass. '° Bradley v. Holdsworth, 3 Mees. 
 
 365 ; Eidman v. Bowman, 4 Am. & W. 422 ; Waltham Bank v. Wal- 
 
 Corp. Cas. 350. tham, 10 Mete. 334; Tippets v. 
 
 "Ang. & A. on Corp. see. 191 ; Walker, 4 Mass. 595. 
 
FRANCHISES AND CHARTER RIGHTS. 383 
 
 is made by tlie directors or other proper of&cers of the corpo- 
 ration, or by judicial determination." A conveyance of all 
 the capital stock to a purchaser gives to such purchaser only 
 an equitable interest in the property to carry on business 
 under the act of incorporation and in the corporate name, 
 and the corporation is still the legal owner of the same." A 
 legal distribution of the property after a dissolution of the 
 corporation and settlement of its affairs, is the inception of 
 any title of a stockholder to it, although he be the sole stock- 
 holder." 
 
 These general principles sufficiently established the doc- 
 trine that the owner of all the capital stock of a corporation 
 does not therefore own its property, or any of it, and does 
 not himself become the corporation, as a natural person, to 
 own its property and do its business in his own name. While 
 the corporation exists he is a mere stockholder of it, and 
 nothing else. The consequences of a violation of these 
 principles would be that the stockholders would be the pri- 
 vate and joint owners of the corporate property, and they 
 could assume the powers of the corporation, and supersede 
 its functions in its use and disposition for their own benefit 
 without personal liability, and thus destroy the corpora- 
 tion, terminate its business, and defraud its creditors. The 
 stockholders would be the owners of the property, and at 
 the same time it would belong to the corporation. One 
 stockholder owning the whole capital stock could, of course, 
 do what several stockholders could lawfully do. 
 
 It is said in Utica v. Churchill, 33 N. Y. 161, "the interest of 
 a stockholder is of a collateral nature, and is not the interest 
 of an owner;" and in Hyatt v. Allen, supra, that "a share- 
 holder in a corporation has no legal title to its property or 
 profits until a division is made." In Winona & St. P. R. R. 
 Co. V. St. P. a- S. C. R. R. Co., 23 Minn. 359, it is held that the cor- 
 poration is still the absolute owner, and vested with the legal 
 title of the property, and the real party in interest, although 
 another party has become the owner of the sole beneficial 
 
 " Ang. & A. on Corp. sec. 160, 190. " Wilde v. Jenkins, 4 Paige, 481. 
 557; Hyatt V. Allen, 4 Am. Corp. "Ang. & A. on Corp. sec. 779a. 
 Cas. 624. 
 
384 REAL PROPERTY. 
 
 interest in its rights, property, and immunities. In Baldwin 
 V. Canfield, 26 Minn. 43, it was held that the sole owner of 
 the stock did not own the land of the corporation so as to 
 convey the same." 
 
 The essential properties of corporate existence are quite 
 distinct from the franchises of the corporation. The fran- 
 chise of being a corporation belongs to the corporators; 
 while the powers and privileges, vested in and to be exer- 
 cised by the corporate body as such, are the franchises of the 
 corporation. The latter has no power to dispose of the fran- 
 chise of its members, which may survive in the mere fact of 
 corporate existence, after the corporation has parted with 
 all its property and all its franchises." 
 
 The franchise of becoming and being a corporation, in its 
 nature, is incommunicable by the act of the parties and in- 
 capable of passing by assignment. ' ' The franchise to be a 
 corporation," said Hoar J., in Commonwealth v. Smith, 10 
 Allen (Mass.), 448-455, "clearly cannot be transferred by any 
 corporate body of its own will. Such a franchise is not, in its 
 own nature, transmissable. " In HallY. Sullivan R. R. Co., 21 
 Law Rep. 138; 2 Redf. Rail. Cas. 621; i Brunner, Collected 
 Cases, 613, Mr. Justice Curtis said : "The franchise to be a cor- 
 poration is, therefore, not a subject of sale and transfer, un- 
 less the law, by some positive provision, has made it so, and 
 pointed out the modes in which such sale and transfer may 
 be effected." 
 
 § 172. What passes with the grant of franchise. The 
 
 grant of the franchise carries with it a grant of every- 
 thing necessary to give it beneficial effect." 
 
 A power to pledge the franchises and rights of a corpora- 
 tion implies, as incident thereto, the power to pledge every- 
 thing that may be necessary to the enjoyment of the franchise 
 and upon which its real value depends." 
 
 " Orton, J., in Button v. Hoffman, v. Md. 4 Wheat. 428 ; Fletcher v. 
 
 6j Wis, 20. Oliver, 25 Ark. 289; Fertilizing Co. 
 
 "Memphis & Little Rock Rail- v. Hyde Park, 70III. 634; Morawetz, 
 
 road Co. v. Berry, 112 U. S. 609. Corp. sec. 194. 
 
 " Cooley, Const. Lim. 64 ; U. S. v. " Phillips v. Winslow, 18 B. Mon. 
 
 Fisher, 2 Cranch, 358; McCulloch 431 
 
FRANCHISES AND CHARTER RIGHTS. 385 
 
 § 173. Construed in favor of the public, not in favor of the 
 grantee. By a familiar rule, every public grant of property, 
 or of privileges or franchises, if ambiguous, is to be con- 
 strued against the grantee and in favor of the public ; because 
 an intention on the part of the government, to grant private 
 persons, or to a particular corporation, property or rights in 
 which the whole public is interested, cannot be presumed, 
 unless unequivocally expressed or necessarily to be implied 
 in the terms of the grant ; and because the grant is supposed 
 to be made at the solicitation of the grantee, and to be drawn 
 up by him or by his agents, and therefore the words used are 
 to be treated as those of the grantee, and this rule of con- 
 struction is a wholesome safeguard of the interests of the 
 public against any attempt of the grantee, by the insertion 
 of ambiguous language, to take what could not be obtained 
 in clear and express terms." This rule applies with peculiar 
 force to articles of association, which are framed under gen- 
 eral laws, and which are a substitute for a legislative charter, 
 and assume and define the powers of the corporation by the 
 mere act of the associates, without any supervision of the 
 Legislature or of any public authority." 
 
 § 174. Regarded as an irrevocable contract. Where fran- 
 chises are granted to a municipal corporation this grant can- 
 not be revoked, nor the property nor rights conferred by it 
 in any way divested by the State." The doctrine has been 
 adopted in the Supreme Judicial Court of Massachusetts, in 
 the case in which the charter of an early railroad company 
 contained a provision that no other railroad than the one 
 thereby granted should, within thirty years after the passage 
 of the Act, be authorized to be made upon the same route. 
 Charters were subsequently granted by the Legislature to 
 several railroad corporations, which together authorized a 
 line of railroad nearly corresponding with the plaintiff's road. 
 
 =» Charles River Bridge V.Warren "Oregon R. & Nav. Co. v. Ore- 
 Bridge, 36 U. S. (II Pet.) 420, 544- gonian R. Co. 130 U. S. 26, 27. 
 548; Dubuque & P. R. Co. v. Litch- ™ Pawlet v. Clark, 9 Cranch, 292; 
 field, 64 U. S. (23 How.) 66, 88, 89 ; Dartmouth v. Woodward, 4 Wheat. 
 Slidell V. Grandjean, in U. S. 412, 518; Bailey v. Mayorof New York, 
 437, 438. 3 Hill, S31. 
 25 
 
386 REAL PROPERTY. 
 
 The court, after hearing an elaborate argument, and by a 
 carefully prepared opinion by the late Chief Justice Shaw, 
 decided in favor of the plaintiff's claim to an exclusive right, 
 and gave judgment for an injunction against operating the 
 defendant's road." 
 
 The Dartmouth College Case settled the general doctrine 
 that legislative charters like legislative grants of land, are 
 contracts within the meaning of the Federal Constitution. 
 That decision was pronounced in 1819, and has been followed 
 by all the American courts except Ohio, and the courts of 
 Ohio have been reversed by the U. S. Supreme Court. "' 
 
 In the more recent case in the Supreme Court of the 
 United States of Bank v. Knoop, 16 How. 369, Justice Mc- 
 Lean, speaking for a majority of that court, held this lan- 
 guage : 
 
 ' ' Every valuable privilege given by the charter and which 
 conduced to an acceptance of it, and an organization under 
 it, is a contract which cannot be changed by the Legislature 
 where the power to do so is not reserved in the charter. ' ' 
 
 In the more recent case of The Bridge Proprietors v. Hoboken 
 Co., I Wall. 144 (68 U. S., 17 L. ed. 571), this question seems to 
 be put at rest." 
 
 § 175. Synoptical review of " Dartmouth College v. Wood- 
 ward." The decision in this celebrated case reposes upon 
 the following facts : In 1 769 the British Crown, at the in- 
 
 3' Boston & Lowell R. R. Corp. v. 389; Michigan Bank v. Hastings, 
 
 The Salem & Lowell R. R. Co. 2 i Doug. (Mich.) 225 ; B. & L. R. R. 
 
 Gray, 33, 34. v. Salem & Lowell R. R. 2 Gray, i ; 
 
 '' Ang. & Ames, Corp. sees. 31, Aurora & Lau. Turnpike Co. v. 
 469, 767; Dartmouth College v. Holthouse, 7 Port. (Ind.) 59; Louis- 
 Woodward, 4 Wheat. 518; East ville v. University of Louisville, 15 
 Hartford v. Hartford Bridge Co. 17 B. Mon. 642 ; Yarmouth v. N. Yar- 
 Conn. 93; McLaren V. Pennington, mouth, 34 Me. 411 ; Bank of Penn. 
 I Paige, 102; 2 Kent's Com. 305, 306; v. Commonwealth, 19 Pa. 151 ; Iron 
 University of Maryland v. Williams, City Bank v. Pittsburg, 27 Id. 340 ; 
 9 Gill & J. 402; Aberdeen Academy 2 Wash. Real Prop. 22, sec. 10; 
 V. Mayor of Aberdeen, 13 Sm. & M. Bank of Pa. v. Commonwealth, 19 
 645; Youngv. Harrison, 6 Ga. 130; Pa. 151. 
 
 Bush V. Shipman, 4 Scam. 190; ^' Hathorne v. Calef, 2 Wall. 10 
 
 State V. Hayw. 3 Rich. (S. C.) 389: (69 U. S., L. ed. 776). 
 Bally V. Railroad Co. 4 Har. (Del.) 
 
FRANCHISES AND CHARTER RIGHTS. 387 
 
 stance of Lord Dartmouth and the Marquis of Bute, granted 
 certain charter rights of considerable value to the trustees of 
 Dartmouth College in the then province of Hampshire. 
 Under this royal grant the trustees originally named, and 
 their duly elected successors, prosperously administered the 
 affairs of the institution for nearly half a century. In the 
 autumn of 1816, the Legislature of New Hampshire — then a 
 sovereign State of the American Union — passed a law en- 
 larging the number of trustees, prescribing the mode of their 
 appointment, and subordinating their action to an appellate 
 board of overseers, and making other important restrictions 
 on the original charter. The old board strenuously resisted 
 the operation of this act, while the new corporation, as the 
 duly authorized trustees of Dartmouth University, signal- 
 ized their authority by taking wholesale possession of every- 
 thing belonging to the college. The old trustees resorted to 
 an action of trover against the treasurer to recover possession 
 of the books, papers, and muniments of title which had been 
 unlawfully seized, and the sole question raised, or at least 
 argued, was whether upon this state of facts the legislative 
 enactment of 1816 contravened the prohibitions of the Fede- 
 ral Constitution relating to the obligations of contracts. The 
 New Hampshire Supreme Court, fully aware of the import- 
 ance of the question involved, debated long and seriously 
 over the arguments submitted to their consideration, but 
 finally sustained the law on the theory that the State has the 
 exclusive control of trust property situate within its jurisdic- 
 tion, and may legislate in any way it sees fit with reference 
 to the same. On appeal to the Supreme Court of the United 
 States, Daniel Webster appeared as counsel for the old board 
 of trustees, and the ruling of the New Hampshire Court was 
 utterly overthrown, and the principle firmly established that 
 a charter is a contract, and as such must be respected. " It is 
 contrary to the first principles of the social compact, and to 
 every principle of sound legislation to allow contractual 
 obligations solemnly entered into, and legally acted upon, to 
 be set aside on the mere whim or caprice of a State Legisla- 
 ture. ' ' The sober people of America are weary of the fluctuat- 
 ing policy which has directed the public councils. They 
 have seen with regret, and with indignation, that sudden 
 
388 REAL PROPERTY. 
 
 changes and legislative interferences, in cases affecting per- 
 sonal rights, become jobs in the hands of enterprising and 
 influential speculators ; and snares to the more industrious 
 and less informed part of the community. They have seen, 
 too, that one legislative interference is but the link of a long 
 chain of repetitions; every subsequent interference being 
 naturally produced by the effects of the preceding. ' ' The 
 decision becomes of great importance in considering the sub- 
 ject of franchise, and it may always be invoked wherever a 
 disposition is manifested to impair the rights granted under 
 a legislative franchise by subsequent restrictive legislation 
 regarding the rights so granted."' 
 
 § 176. The power to repeal examined. The power to re- 
 peal the charter of a corporation cannot, upon any legal 
 principle, include the power to repeal what is in its nature 
 irrepealable, or to undo what has been lawfully done, under 
 power lawfully conferred." 
 
 The authorities seem to be uniform to the effect that a 
 reservation of the right to repeal enables a Legislature to 
 effect a destruction of the corporate life and disable it from 
 continuing its corporate business." And a reservation of the 
 right to alter and amend confers powers to pass all needful 
 laws for the regulation and control of the domestic affairs of 
 a corporation, freed from the restrictions imposed by the 
 Federal Constitution upon legislation impairing the obliga- 
 tion of contract." We think no well considered case has 
 gone further than this, while, in many cases, such power has 
 been expressly held to be limited to the effect stated. 
 
 In the language of Chief Justice Marshall in Fletcher v. 
 Peck, 10 U. S. (6 Cranch. 135); 3 L. ed. 162: " If an act be 
 done under a law, a succeeding Legislature cannot undo it. 
 The past cannot be recalled by the most absolute power. 
 Conveyances have been made ; those conveyances have vested 
 legal estates ; and if those estates may be seized by the sove- 
 reign authority, still, that they originally vested is a fact, 
 
 ^■•See Const, art. i, sec. 10. N. Y. 569; Phillips v. Wickham, i 
 
 ^^ Butler V. Palmer, i Hill, 335. Paige, 590. 
 
 2« People V. B. & A. R. R. Co. 70 " Munn v. 111. 94 U. S. 123 (24 L. 
 
 ed. S3). 
 
FRANCHISES AND CHARTER RIGHTS. 389 
 
 and cannot cease to be a fact. When, then, a law. is in the 
 nature of a contract, a repeal of the law cannot divest those 
 rights." It would seem to be quite obvious that a power 
 existing in the Legislature by virtue of a reservation only, 
 could not be made the foundation of an authority to do that 
 which is expressly inhibited by the Constitution, or afford 
 the basis of a claim to increase jurisdiction over the lives, 
 liberty or property of citizens, beyond the scope of express 
 constitutional power. 
 
 Since the decision of the celebrated Dartmouth College 
 Case, 17 U. S. (4 Wheat. 518); 4 L. ed. 629, the doctrine that 
 a grant of corporate powers by the sovereign to an associa- 
 tion of individuals for - public use constitutes a contract 
 within the meaning of the Federal Constitution prohibiting 
 State Legislatures from passing laws impairing its obliga- 
 tions, has, although sometimes criticized, been- uniformly 
 acquiesced in by the courts of the several States as the law 
 of the land, and may be regarded as too firmly established to 
 admit of successful question or dispute. 
 
 The intimation by Judge Story in that case that the rule 
 might be otherwise if the Legislature should reserve the 
 power of amending or repealing it, led to the adoption, by 
 the Legislatures of the various States, of the practice of 
 incorporating such reservations in acts of incorporation. 
 Whatever may be the effect of such reservations it is imma- 
 terial whether they are embraced in the act of incorporation 
 or in general statutes or provisions of the Constitution. In 
 either case, they operate upon the contract according to the 
 language of the reservation."' 
 
 It is manifest, therefore, that in the absence of such 
 reserved power. Legislatures have no authority to violate, 
 destroy or impair chartered rights and privileges, or power 
 over corporations, except such as they possess by virtue of 
 their legislative authority over persons and property gener- 
 ally. It is obvious that this reserved power does not in any 
 sense constitute a condition of the grant, and cannot have 
 effect as such but is simply a power to put an end to the con- 
 
 -* I Morawetz Pri. Corp. sec. 464. 
 
390 REAL PROPERTY. 
 
 tract, with such effect upon the rights of the parties thereto 
 as the law ascribes to it/' 
 
 In speaking of the exercise of this power by Congress in 
 the Sinking Fund Cases, Chief Justice Waite says : ' ' Congress 
 not only retains, but has given special notice of its intention 
 to retain, full and complete power to make such alterations 
 and amendments of the charter as come within the just scope 
 of legislative power. That this power has a limit, no one 
 can doubt. All agree that it cannot be used to take away 
 property already acquired under the operation of the charter, 
 or to deprive the corporation of the fruits actually reduced 
 to possession of contracts lawfully made. * * * What- 
 ever rules Congress might have prescribed in the original 
 charter for the government of the corporation in the admin- 
 istration of its affairs, it retained the power to establish by 
 amendment. In doing so it cannot undo what has already 
 been done, and it cannot unmake contracts that have been 
 already made ; but it may provide for what shall be done in 
 the future, and may direct what preparation shall be made 
 for the due performance of contracts already entered into. 
 It might originally have prohibited the borrowing of money 
 on mortgage, or it might have said that no bonded debt 
 should be created without ample provision by sinking fund 
 to meet it at maturity. Not having done so at first, it cannot 
 now, by direct legislation, vacate mortgages already made 
 under the powers originally granted, nor release debts 
 already contracted." 
 
 The judges dissenting in that case contended that the 
 reserved power could not be construed as authorizing the 
 alteration, violation, nullification of any of the material pro- 
 visions of the grant, but should be held to mean simply a 
 reservation of the power to legislate, freed from the restric- 
 tions imposed by the constitutional provisons against legis- 
 lation impairing the obligations of contracts. Mr. Justice 
 Bradley said : ' ' The reserved power in question is simply 
 that of legislation to alter, amend or repeal a charter. This 
 is very different from the real power to violate or to alter the 
 
 ^'Sinking Fund Cases, 99 U. S. 748; Tomlinson v. Jessup, 82 U. S. 
 (15 Wall.) 457. 
 
FRANCHISES AND CHARTER RIGHTS. 39I 
 
 terms of a contract at will. A reservation of power to vio- 
 late a contract, or alter it, or impair its obligation, would be 
 repugnant to the contract itself, and void. A proviso 
 repugnant to the granting part of a deed, or to the enacting 
 part of a statute, is void. Interpreted as a reservation of 
 the right to legislate, the reserved power is sustainable on 
 sound principles ; but interpreted as the reservation of the 
 right to violate an executed contract, it is not sustainable." 
 
 This dissent proceeded upon the ground that the Acts of 
 Congress under consideration changed some of the essential 
 features of the contract, and were therefore void as being 
 obnoxious to the provisions of the Constitution for the pro- 
 tection of lives, liberty and property. The majority of the 
 court held, however, that such acts were simply an exercise 
 of the power of Congress to regulate the internal adminis- 
 tration of the affairs of a corporation, which, to a certain ex- 
 tent, it was unanimously agreed that it possessed. There 
 was no dispute or disagreement as to the correctness of the 
 rule stated, that the power of amendment and repeal was a 
 restricted power, limited by the provisions of the Constitu- 
 tion. 
 
 An interpretation conferring the power of violating a con- 
 tract at will upon one of its parties, under a clause authoriz- 
 ing its amendment or repeal, would seem to be inconsistent 
 -with any reasonable notion of the nature of such an instru- 
 ment and beyond the power of parties lawfully to create. If 
 it is possible to conceive the idea of a repealable grant, cer- 
 tainly such a grant, accompanied with power to convey or 
 pledge the interest granted must, on the execution of the 
 power, necessarily preclude a resumption by the grantor of 
 the subject of the grant, or any right of property acquired 
 under it. An express reservation by the Legislature, of 
 power to take away or destroy property lawfully acquired or 
 created under authority conferred by charter, would neces- 
 sarily violate the fundamental law, and be void, and it is 
 equally clear that any legislation which authorizes such a 
 result to be accomplished indirectly would be equally ineffec- 
 tual and void. 
 
 In People v. National Trust Company, 31 N. Y. 287, the ques- 
 tion was raised that a dissolved corporation was discharged 
 
392 REAL PROPERTY. 
 
 from the obligation to pay rent accruing upon a lease subse- 
 quent to its dissolution. Judge Rapallo said: "This denial 
 is not founded upon the allegation of any payment, release 
 or surrender, or anything affecting the merits of the claim,^ 
 but upon the sole ground that by the dissolution of the cor- 
 poration the lease was terminated, and the covenant to pay 
 rent ceased to be obligatory. We do not regard the dissolu- 
 tion as having any such effect. Under the statutes of this- 
 State, on the dissolution of a corporation its assets become a 
 trust fund for the payment of its debts ; and these include 
 debts to mature, as well as accrued indebtedness, and all 
 engagements entered into by the corporation which have not 
 been fully satisfied or cancelled. ' ' 
 
 In Commonwealth v. Essex Company, 13 Gray (Mass), 239, 
 Justice Shaw said: "When, under power in a charter, rights. 
 have been acquired and become vested, no amendment or 
 alteration of the charter can take away the property or rights 
 which have become vested under a legitimate exercise of ther 
 powers granted."" 
 
 The case of Detroit v. Detroit Plank Road Company, 43 Mich> 
 140, is not only in point, but entitled to high consideration, 
 on account of the distinction as a constitutional lawyer 
 attained by the learned judge who wrote the opinion of the 
 court. The question was whether the Legislature had power 
 to compel the defendant to remove its toll gates from within 
 the city limits after they had been lawfully placed there 
 under the provisions of its charter. Judge Cooley said : " It 
 cannot be necessary at this day to enter upon a discussion in 
 denial of the right of the government to take from either 
 individuals or corporations any property which they may 
 have rightfully acquired. This is the niost arbitrary tyranny, 
 and it has been forbidden in England ever since Magna 
 Charta, and in this country always. It is immaterial in 
 what way the property was lawfully acquired — whether by 
 labor in the ordinary avocations of life, by gift, or descent, 
 or by making a profitable use of a franchise granted by the 
 State; it is enough that it has become private property, and 
 it is thus protected by the law of the land. ' ' 
 
 "See Albany Northern R. Co. v. Brownell, 24 N. Y. 345. 
 
FRANCHISES AND CHARTER RIGHTS. 393 
 
 The New York Court of Appeals in the case of Miner v. 
 New York Central St H. R. R. Co., 123 N. Y. 242, applied the 
 same principle in a condemnation case. A railway corpora- 
 tion was organized with a life of fifty years. It condemned 
 a right of way across the lands in question. Subsequently it 
 became consolidated with other railroad companies, who took 
 and acquired all its rights, property, and franchises. An 
 action of ejectment was brought to recover the right of way 
 which had been condemned, the life of the corporation which 
 condemned it having expired. It was held that the condem- 
 nation of the easement was, in the very nature of the trans- 
 action, intended to be a permanent appropriation of the right 
 of way for railroad purposes, and that the easement thus 
 appropriated was not limited to the life of the corporation. 
 
 § 177. Lease or sale of franchise generally void. It has 
 been repeatedly adjudged in the United States Supreme 
 Court that a lease made by one railroad corporation to an- 
 other, either of which is not expressly authorized by law to 
 enter into a lease, is ultra vires and void." 
 
 But while the charter of a corporation, read in connection 
 with the general laws applicable to it, is the measure of its 
 powers, and a contract manifestly beyond those powers will 
 not sustain an action against the corporation, yet whatever, 
 under the charter and other general laws, reasonably con- 
 strued, may fairly be regarded as incidental to the objects for 
 which the corporation is created, is not to be taken as pro- 
 hibited. Accordingly, when the charter of a railroad corpo- 
 ration, or the general laws applicable to it, manifest the 
 intention of the Legislature, for the purpose of securing a 
 continuous line of transportation of which its road forms 
 part, to confer upon it the power of making contracts with 
 other railroad or steamboat corporations to promote that 
 end, such contracts are not ultra vires.*'' 
 
 " Thomas v. West Jersey R. Co. ■" Green Bay & M. R. Co. v. Un- 
 
 loi U. S. 71 (25: 950); Pa. R. Co.v. ion Steamboat Co. 107 U. S. 98 (27: 
 
 St. Louis, A. &T. H. R. Co. 118 U. 413); see also Branch v. Jesup, 106 
 
 S. 290, 630 (30: 83, 284) ; Oregon R. U. S. 468, 478 (27 : 279, 282). 
 Co. V. Oregonian R. Co. 130 U. S. 
 I (32 : 837). 
 
394 REAL PROPERTY. 
 
 Nor can a railroad company, without due authority, sell its 
 real property acquired by the right of eminent domain, or 
 necessary for the transaction of the business for which 
 it was incorporated and given its extraordinary powers. 
 So a railroad company cannot, without legislative sanc- 
 tion, sell its franchise to operate and maintain its road to 
 some rival organization, under the guise of a so-called lease." 
 But after the roadbed is constructed and the line in running 
 order, the corporation may alienate things requisite for its 
 operation, which are regarded not as constituting a part of 
 its real estate but as personal property, such as engines, roll- 
 ing stock and the like ; and such property is liable to levy 
 and sale on execution for its debts." 
 
 The clear result of these decisions may be summed up 
 thus : The charter of a corporation, read in the light of any 
 general laws which are applicable, is the measure of its 
 powers, and the enumeration of those powers implies the 
 exclusion of all others not fairly incidental. All contracts 
 made by a corporation beyond the scope of those powers are 
 unlawful and void, and no action can be maintained upon 
 them in the courts, and this upon three distinct grounds: 
 The obligation of everyone contracting with a corporation, 
 to take notice of the legal limits of its powers ; the interest 
 of the stockholders, not to be subjected to risks which they 
 have never undertaken; and, above all, the interest of the 
 public, that the corporation shall not transcend the powers 
 conferred upon it by law. A corporation cannot, without 
 the assent of the Legislature, transfer its franchise to an- 
 other corporation, and abnegate the performance of the 
 duties to the public, imposed upon it by its charter as the 
 consideration for the grant of its franchise. Neither the 
 grant of a franchise to transport passengers, nor a general 
 authority to sell and dispose of property, empowers the 
 grantee, while it continues to exist as a corporation, to sell 
 or to lease its entire property and franchise to another cor- 
 
 *' Rollins V. Clay, 33 Me. 132 (Mass.) 448; Pierce on Railroads, 
 
 (1851); Middlesex R. R. Co. v. Bos- p. 496; Coe v. Columbus, Piqua & 
 
 ton & Chelsea R. R. Co. 115 Mass. Indiana R. R. Co. 10 Ohio St. 372. 
 347; Fietsam v. Hay, 122 111. 293; '"Coe v. Columbus, Piqua & In- 
 
 Commonwealth v. Smith, 10 Allen diana R. R. Co. 10 Ohio St. 372. 
 
■ FRANCHISES AND CHARTER RIGHTS. 395 
 
 poration. These principles apply equally to companies 
 incorporated by special charter from the Legislature, and to 
 those formed by articles of association under general laws." 
 
 § 178. Railway franchises from a judicial point of view. 
 
 Railway corporations are mere creatures of the State engaged 
 in doing a public business, and are bound by any reasonable 
 statutes for the regulation of this business which the legisla- 
 tive power chooses to impose." 
 
 These corporations are quasi public agencies, and perform 
 a public duty. They are agencies created by the State with 
 certain privileges, and subject to certain obligations. A 
 contract that they will not discharge their obligations is a 
 breach of a public duty, and cannot be enforced." An 
 agreement by which a railway corporation undertakes, with- 
 out the consent of the State, to relieve itself of a burden 
 which is imposed upon it by law, is void, as against public 
 policy." Among the obligations imposed upon a railway 
 corporation is that of using reasonable diligence in furnish- 
 ing its road with safe equipments, including locomotive 
 engines, and of operating its road without 'negligence. 
 That is a duty which it owes to the public, and any agree- 
 ment which tends to lessen the diligence and care with 
 which it furnishes and operates its road is, to that extent, 
 against public policy. 
 
 In Messenger v. Pennsylvania R. Co., 36 N. J. L. 409, Beasely, 
 C. J. , used the following language : 
 
 ' ' In my opinion a railroad company constituted under statu- 
 tory authority is not only by force of its inherent nature a 
 common carrier, as was held in the case of Palmer v. Grand 
 Junction Railway, 4 M. & W. 749, but it becomes an agent of 
 the public in consequence of the powers conferred upon it. 
 A company of this kind is invested with important preroga- 
 tive franchises, ahiong which are the rights to build and use 
 
 « Central Trans. Co. v. Pullman's « St. Joseph & D. C. R. Co. v. 
 
 Palace Car Co. 139 U. S. 24. Ryan, 11 Kan. 609; 15 Am. Rep. 
 
 ^* C. B. & Q. R. R. Co. V. Iowa, 94 357. 
 
 U. S. 155; Budd V. N. Y. 143 U. S. "'Thomas v. West Jersey R. Co. 
 
 517; Atty.-Genl. v. B. & A. R. R. loi U. S. 71, 25 L. ed. 950. 
 Co. 160 Mass. 62 ; Georgia R. & B. 
 Co. V. Smith, 128. 
 
396 REAL PROPERTY. 
 
 railway, and to charge and take tolls and fares. These pre- 
 rogatives are grants from the government, and public utility 
 is the consideration for them. Although, in the hands of a 
 private corporation they are still sovereign franchises, and 
 must be used and treated as such, they must be held in trust 
 for the general good. If they had remained under the con- 
 trol of the State, it could not be pretended that in the exer- 
 cise of them, it would have been legitimate to favor one 
 citizen at the expense of another. If a State should build 
 and operate a railroad, the exclusion of everything like favor- 
 itism with respect to its use would seem to be an obligation 
 that could not be disregarded without violating natural 
 equity and fundamental principles. And it seems to me 
 impossible to concede that, when such rights as these are 
 handed over, on public considerations, to a company of indi- 
 viduals, such rights lose their essential characteristics. I 
 think they are unalterably parts of the supreme authority ; 
 and in whatsoever hands they may be found, they must be 
 considered as such. In the use of such franchises, all citi- 
 zens have an equal interest and equal rights and all must, 
 under the same circumstances, be treated alike. It cannot 
 be supposed that it was the legislative intention, when such 
 privileges were given, that they were to be sued as private 
 property, at the discretion of the recipient, but, to the con- 
 trary of this, I think an implied condition attaches to such 
 grants — they are to be held as a quasi-public trust for the 
 benefit, at least to a considerable degree of the entire com- 
 munity. In their very nature and constitution, as I view 
 this question, these companies become, in certain aspects, 
 public agents ; and the consequence is they must, in the ex- 
 ercise of their calling, observe to all men a perfect impar- 
 tiality." 
 
 § 179. Subject to the right of eminent domain. We shall 
 have occasion further on to critically examine the legal and 
 equitable principles that underlie the right of eminent do- 
 main. It will suffice in this immediate connection to observe 
 that the public necessities must always be regarded as supe- 
 rior to any mere private claim however that claim may have 
 originated. A franchise granted by express legislative sanc- 
 tion is invested with no sacramental character, and claims 
 
FRANCHISES AND CHARTER RIGHTS. 39/ 
 
 under it must yield to the right of eminent domain." The 
 exercise of this right, however, always involves just and full 
 payment for whatever appropriation is made. This is a strict 
 rule emanating from the organic law. A franchise imports 
 many pri\ ileges. For instance, it is not ordinarily subject 
 to levy and sale on execution unless by force of some par- 
 ticular statute." But any or all of these privileges must 
 yield wherever public necessity or even expediency de- 
 mands it. 
 
 To a certain extent a ferry franchise is property not sub- 
 ject to interference by others." But as between the public 
 and the owner of the franchise the license to keep a ferry 
 confers a privilege only, subject to modification or revoca- 
 tion when the public interest so requires. There is no con- 
 tract between the public and the licensee, and no property in 
 the privilege, such as will prohibit a revocation of the license 
 without a forfeiture judicially found, or the taking for the 
 public use without the exercise of the right of eminent do- 
 main." A lawful construction of a railway over a street, or 
 of a bridge over a river, though likely to decrease the receipts 
 of a ferry, is not injury to private property in the ferry fran- 
 chise within the intendment of the Constitution." 
 
 A mere franchise is not taxable. A railroad company has 
 a franchise to construct and maintain a railroad. Its fran- 
 chise cannot be taxed, but its roadbed and other structures 
 can be as real estate. And generally it may be said that an 
 incorporeal hereditament of any kind is not taxable. " 
 
 § i8o. How lost or forfeited. Non-user of its franchises by 
 a corporation is ground for dissolution and forfeiture of its 
 charter at the instance of the State ; but until sentence of dis- 
 solution has been pronounced by a court of competent juris- 
 diction, in a proper proceeding instituted for the purpose, the 
 
 ■"Bonaparte v. Camden, etc., R. "Sullivan v. Lafayette Co. Su- 
 
 R. Co. I Bald. 265 ; N. Y. etc., R. pervisors, 58 Miss. 790. 
 
 R. Co. V. Boston R. R., 36 Conn. ^^ Pittsburg & Lake Erie R. R. 
 
 196- Co. V. Jones, 3 East. Rep. (Pa.) 
 
 "Philadelphia, etc., R. R. Co.'s 619; 8 Wait's Act. & Def. 263. 
 
 App. 70 Pa. St. 355. "DeWitt v. Hayes, 2 Cal. 468; 
 
 " See Golconda v. Field, 108 111. Smith v. The Mayor, 68 N. Y. 552. 
 419. 
 
398 REAL PROPERTY. 
 
 corporation will continue to exist, notwithstanding its failure 
 to use its franchises. And forfeiture can only be decreed in 
 a proceeding directly instituted for the purpose by the State 
 granting it. Until dissolution has been thus judicially pro- 
 nounced, neither the existence of the corporation nor its 
 title to its property can be questioned collaterally. 
 
 In making these observations the Supreme Court of Ten- 
 nessee, in Parker et al v. Bethel Hotel Company et al, 34 S. W. 
 Rep. 209, determines that the facts that a corporation dis- 
 posed of that part of its property which was necessary to 
 carry on its business, and never thereafter elected directors 
 or otherwise exercised its corporate powers, and that one 
 person acquired ownership of all the stock, do not dissolve 
 the corporation. 
 
 It probably would not be competent for a debtor of the cor- 
 poration, when sued, to set up by way of defense that the 
 charter of the corporation was forfeited, unless the forfeiture 
 had been established by the judgment of this court." 'that 
 is a matter to be judicially tried and determined, and not to 
 be inquired into collaterally. Where a charter imposes the 
 duty of making stated returns of the expenditures and 
 profits, the government alone can enforce a forfeiture for a 
 neglect of the duty." 
 
 In the case of the Bear Camp River Co. v. Woodman, 2 
 Greenl. 404, the charter was to become void if, at the end of 
 one year, the river should not be cleared of certain obstruc- 
 tions. In an action of assumpsit to recover tolls of the de- 
 fendant, he offered to prove that the removal of the obstruc- 
 tions had never been effected; but the evidence was rejected 
 at the trial, and the ruling was held to be correct. This case 
 affords a strong illustration of the necessity of specific judi- 
 cial proceedings for the purpose of causing the charter to be 
 declared forfeited. And in the case before us, we think that 
 by the omission to lay the accounts before the Legislature, 
 the corporation did not, ipso facto, cease to exist, but the pro- 
 ceedings must have been instituted to establish the fact that 
 
 " Chester Glass Co. v. Dewey, 16 " Peirce v. Somersworth, 10 N. 
 
 Mass. 102; Bank of Niagara v. H. Rep. 369; The State v. Carr, 5 
 
 Johnson, 8 Wend. 645 ; The People N. H. Rep. 367. 
 V. The Manhattan Co. 9 Id. 382. 
 
FRANCHISES AND QiARTER RIGHTS. 399 
 
 the penalty of forfeiture was incurred." A quo warranto is 
 necessary where there is a body corporate de facto, who take 
 upon themselves to act as a body corporate, but from some 
 defect in their constitution cannot legally exercise the 
 powers they affect to use. 
 
 Chancellor Kent says that he believes there is no instance 
 of calling in question the right of a corporation, as a body, 
 for the purpose of declaring its franchises forfeited and lost, 
 but at the instance and on behalf of the government." In 
 The People v. The Manhattan Co., 9 Wend. 382, Mr. Justice 
 Sutherland says : ' ' Where the corporation expires by lapse 
 of time it may be otherwise, and in such case only. ' ' A cor- 
 poration may forfeit its franchises for misfeasance, but the 
 information for that purpose must be presented under, the 
 authority of the State, which must be a party to the suit and 
 a party to the judgment for the seizure of the franchise." 
 
 a. Views of Mr. Justice Finch in a celebrated case. One of 
 the most remarkable cases decided in recent times, which 
 directly affects the topic now under review, is that of The 
 People V. North River Sugar Refining Co., 121 N. Y. 582. The 
 action was brought by the attorney -general to have the de- 
 fendant ' ' dissolved, its charter vacated, and its corporate ex- 
 istence annulled" on the ground that it had grossly abused 
 its franchise privileges by entering into a compact or so-called 
 trust with divers other corporations, the purposes of which 
 were illegal, and the effect of which was a gross perversion 
 of the privileges originally granted. The magnitude of the 
 interests involved in this litigation, the eminence of the 
 counsel employed, and the exceptional ability of the judge 
 who voiced the opinion of the New York Court of Appeals, 
 have all contributed to invest this case with phenomenal 
 interest and impart to the decision a degree of value rarely 
 found even among the opinions of this justly celebrated 
 court. From that opinion I shall make extended extracts as 
 affording apt illustration of the present attitude of our judi- 
 
 " Rex V. Pasmore, 3 T. R. 244. 2 T. R. 515; Vernon Society v. 
 
 " Slee V. Boom, 5 Johns. Ch. 381. Hills, 6 Cowen (N. J.), 23; State v. 
 
 "The Commonwealth v. Union Turnpike, 15 N. H. 162. 1844. Opin- 
 
 Ins. Co. S Mass. 230 ; Rex v. Amery, ion by Gilchrist, J. 
 
400 REAL PROPERTY. 
 
 ciary upon the subject of franchises, and the abuse of the 
 privileges they confer. 
 
 "The judgment sought against the defendant is one of cor- 
 porate death. The State, which created, asks us to destroy ; 
 and the penalty invoked represents the extreme rigor of the 
 law. Its infliction must rest upon grave cause, and be war- 
 ranted by material misconduct. The life of a corporation is 
 indeed less than that of the humblest citizen and yet it en- 
 velops great accumulations of property, moves and carries in 
 large volume the business and enterprise of the people, and 
 may not be destroyed without clear and abundant reason. 
 That would be true even if the Legislature should debate the 
 destruction of the corporate life by a repeal of the corporate 
 charter ; but it is beyond dispute where the State summons 
 the offender before its judicial tribunals, and submits its 
 complaint to their judgment and review. By that process it 
 assumes the burden of establishing the charges which it has 
 made, and must show us warrant in the facts for the relief 
 which it seeks. 
 
 It appears to be settled that the State as prosecutor must 
 show on the part of the corporation accused some sin against 
 the law of its being, which has produced, or tends to pro- 
 duce, injury to the public. The transgression must not be 
 merely formal or incidental, but material and serious, and 
 such as to harm or menace the public welfare. For the State 
 does not concern itself with the quarrels of private litigants. 
 It furnishes for them sufficient courts and remedies, but 
 intervenes as a party only where some public interest 
 requires its action. Corporations may, and often do, exceed 
 their authority where only private rights are affected. When 
 these are adjusted all mischief ends and all liarm is averted. 
 But where the transgression has a wider scope and threatens 
 the welfare of the people, they may summon the offender to 
 answer for the abuse of its franchise or the violation of its 
 corporate duty. 
 
 In Thompson v. People, 23 Wend. 583, the ground of forfeit- 
 ure was tersely described as ' some misdemeanor in the 
 trust injurious to the public;' and as recently as the case of 
 Leslies. Lorillard, no N. Y. 531, we said: 'In the granting 
 of charters the Legislature is presumed to have had in view 
 
FRANCHISES AND CHARTER RIGHTS. 4OI 
 
 the public interest; and public policy is concerned in the 
 restriction of corporations within chartered limits ; and a de- 
 parture therefrom is only deemed excusable when it cannot 
 result in prejudice to the public." 
 
 It is quite clear that the effect of the defendant's action 
 was to divest itself of the essential and vital elements of its 
 franchise by placing them in trust; to accept from the State 
 the gift of corporate life only to disregard the conditions 
 upon which it was given ; to receive its powers and privileges 
 merely to put them in pawn ; and to give away to an irre- 
 sponsible board its entire independence and self-control. 
 When it has passed into the hands of the trust, only a shell 
 of a corporation was left standing, as a seeming obedience to 
 the law, but with its internal structure destroyed or removed. 
 Its stockholders, retaining their beneficial interest, have sepa- 
 rated from it their voting power, and so parted with the con- 
 trol which the charter gave them and the State required them 
 to exercise. It has a board of directors nominally and form- 
 ally in office, but qualified by shares which they do not own, 
 and owing their official life to the board which can end their 
 power at any moment of disobedience. It can make no divi- 
 dends whatever may be its net earnings, and must encumber 
 its property at the command of its master, and for purposes 
 wholly foreign to its own corporate interests and duties. At 
 the command of that master, it has ceased to refine sugar, 
 and without any doubt for the purpose of so far lessening the 
 market supply as to prevent what is termed "over produc- 
 tion. ' In all these respects it has wasted and perverted the 
 privileges conferred by the charter, abused its powers, and 
 proved unfaithful to its duties. But graver still is the illegal 
 action substituted for the conduct which the State had a 
 right to expect and require. It has helped to create an 
 anomalous trust which is in substance and effect a partner- 
 ship of twenty separate corporations. The State permits in 
 many ways an aggregation of capital, but mindful of the 
 possible dangers to the people, over balancing the benefits, 
 keeps upon it a restraining hand, and maintains over it a 
 prudent supervision, where such aggregation depends upon 
 its permission and grows out of its corporate grants. It is a 
 
 26 
 
402 REAL PROPERTY. 
 
 violation of law for corporations to enter into a partnership." 
 The case last cited furnishes the reasons with precision and 
 at length. It shows the utter inconsistency of a double alle- 
 giance by those who act for the corporation to two different 
 principals, and demonstrates that the vital characteristics of 
 the corporation are of necessity drowned in the paramount 
 authority of the partnership. That the combination of the 
 refineries partakes of the nature of a partnership is not 
 denied. 
 
 Without either approval or disapproval of the views ex- 
 pressed upon that branch of the case by the courts below, we 
 are enabled to decide that in this State there can be no part- 
 nerships of separate and independent corporations, whether 
 directly or indirectly, through the medium of a trust; no 
 substantial consolidations which avoid and disregard the 
 statutory permissions and restraints ; but that manufacturing 
 corporations must be and remain several as they were cre- 
 ated, or one under the statute. 
 
 The abstract idea of a corporation, the legal entity, the 
 impalpable and intangible creation of human thought is 
 itself a fiction, and has been appropriately described as a 
 figure of speech. It serves very well to designate in our 
 minds the collective action and agency of many individuals 
 as permitted by the law ; and the substantial inquiry always 
 is, what in a given case has been that collective action and 
 agency. As between the corporation and those with whom 
 it deals, the manner of its exercise usually is material, but as 
 between it and the State, the substantial inquiry is only what 
 that collective action and agency has done, what it has, in 
 fact, accomplished, what is seen to be its effective work, 
 what has been its conduct. It ought not to be otherwise. 
 The State gave the franchise, the charter, not to the impalpa- 
 ble, intangible, and almost nebulous fiction of our thought, 
 but to the corporators, the individuals, the acting and living 
 men, to be used by them, to redound to their benefit, to 
 strengthen their hands and add energy to their capital. If it 
 is taken away, it is taken from them as individuals and corpo- 
 
 «» N. Y. & S. C. Co. V. F. Bank, 7 i Wall. 29; Whittenton Mills v. 
 Wend. 412; Clearwater v. Meredith, Upton, 10 Gray (Mass.) 596. 
 
FRANCHISES AND CHARTER RIGHTS. 403 
 
 rators, and the legal fiction disappears. The benefit is 
 theirs, the punishment is theirs, and both must attend and 
 depend upon their conduct ; and when they all act collec- 
 tively as an aggregate body, without the least exception, 
 and, so acting, reach results and accomplish purposes clearly 
 corporate in their character, and affecting the vitality, the 
 independence, the utility of the corporation itself, we cannot 
 hesitate to conclude that there has been corporate conduct 
 which the State may review, and not be defeated by the 
 assumed innocence of a convenient fiction. As was said in 
 People ex rel. v. K. & M. T. R. Co., 23 Wend. 193, 'though the 
 proceeding by information be against the corporate body, it 
 is the acts or omissions of the individual corporators that are 
 the subject of the judgment of the court.' " 
 
CHAPTER XII. 
 
 EASEMENTS AND SERVITUDES. 
 
 Sec. i8i. Preliminary. 
 
 182. Definition and nature. 
 
 a. List of tlie principal easements. 
 
 183. Easements that run with the land. 
 
 184. Of rights appurtenant and in gross. 
 
 185. Natural easements and servitudes. 
 
 186. Implied easements. 
 
 187. Easements regarded as an incumbrance. 
 
 188. Easements granted by mortgagor before foreclosure. 
 
 189. Easements granted by way of reservation. 
 
 190. Evidence of the right. 
 
 191. By grant or deed. 
 
 192. By prescription. 
 
 193. By dedication. 
 
 a. The burden of proof. 
 
 b. Acceptance. 
 
 c. Set form of words unnecessary. 
 
 d. EflEect of platting. 
 
 e. A distinction noted. 
 
 f. Common law dedications. 
 
 194. Rule of strict necessit}' examined. 
 
 195. Effect of dividing estates subject to. 
 
 196. Easements and servitudes of way. 
 
 a. The term "right of way " defined. 
 
 b. How acquired. 
 
 c. Rule as to street railways. 
 
 d. Of ways of necessity. 
 
 e. Miscellaneous authorities on the subjec* 
 
 197. Easements of light and air. 
 
 a. The English doctrine considered. 
 
 b. The English doctrine repudiated in this country. 
 
 c. Right to light and air regarded as an easement. 
 
 d. Extended review of the elevated railway cases. 
 
 198. Of lateral and subjacent support. 
 
 a. Preliminary. 
 
 b. Views of eminent writers. 
 
 c. Quotations from a recent case. 
 
 d. Comments on this case. 
 
 e. Lansala v. Holbrook reviewed. 
 
 [404J 
 
EASEMENTS AND SERVITUDES. 405 
 
 Sec. 199. Party walls. 
 
 a. Definition and nature. 
 
 200. Division fences. 
 
 a. Generally regulated by statute. 
 
 b. Railroad fences. 
 
 c. Barb wire fences. 
 
 d. Rules of the Massachusetts court regulating this subject. 
 
 e. When the doctrine of prescription applies. 
 
 201. Servitude of drip and drain. 
 
 202. Abandonment of easements. 
 
 203. The term license defined. 
 
 a. Its revocable and irrevocable features. 
 
 b. Right of the licensee. 
 
 c. Of parol licenses. 
 
 d. Who may grant. 
 
 e. Distinction between an easement and a license. 
 
 204. How lost or extinguished. 
 
 § 181. Preliminary. I have previously referred to the 
 classification of hereditaments into corporeal and incorporeal. 
 The first comprise tangible things, visible objects, such as 
 lands, and incidental annexations to lands, while the term 
 ' ' incorporeal hereditaments' ' imports such interests connected 
 with land as are held by persons who are not the proprietors 
 of the fee. The complexities that surround this subject in 
 the English law, are with us, very much simplified. Black- 
 stone tabulates eleven distinct grades of incorporeal heredita- 
 ments. But this formidable array all but vanishes under the 
 liberalizing tendency of our American law. Offices, dignities, 
 pensions, corodies, advowsons, tithes, and annuities are all 
 subjects with which our law of real property has no legiti- 
 mate concern. Rents we have already considered; com- 
 mons, with us, form a very restricted topic, leaving "fran- 
 chises" and "ways" only, as topics for further elaboration. 
 Custom and usage, with us, sanctions a description of these 
 incorporeal hereditaments under the general head of ease- 
 ments. 
 
 § 182. Definitions and nature. Easements. The elementary 
 definition of an easement is " a liberty, privilege or advant- 
 age in land without profit distinct from an ownership in the 
 soil," so that the use of the word "privilege" appropriately 
 
406 REAL PROPERTY. 
 
 designates the conveyance of an easement as distinguished 
 from a grant of the soil itself.' 
 
 Easements include all those privileges which the public or 
 the owner of neighboring lands or tenements has in the land 
 of another, and by which the "servient owner upon whom 
 the burden of the privilege is imposed, is obliged to suflFer, 
 or not to do something on his own land, for the advantage of 
 the public or for the "dominant owner" to whom the privi- 
 lege belongs." They are created by grant, express or im- 
 plied, and by prescription. They do not, change with the 
 persons, and any infraction of the rights involved may be 
 remedied by injunctive relief or abatement. They may be 
 extinguished by non-user for a period of twenty years, by 
 release or merger, necessity or abandonment." They may and 
 usually do exist with reference to light, air, water, right of 
 way, right of support, and in party walls and fences, and 
 have been classified as public, private, appendant, continu- 
 ous, affirmative, and negative." There are also easements of 
 convenience and necessity. But they have none of the attri- 
 butes of a tenancy.' They should not be confounded with 
 rights of property or ownership or with profits " a /r^z^r^ " 
 and they differ from mere licenses, which are usually per- 
 sonal. An easement is affirmative when it entitles the domi- 
 nant owner to make active use of the servient tenement, or 
 to do some act which in the absence of the easement would 
 make the act a trespass. Similarly an easement is negative 
 when it merely restrains the servient from exercising the 
 ordinary rights of ownership over his land.' 
 
 The rights of any party having an easement in the land of 
 another are measured and defined by the manifest purposes 
 and general character of the easement itself. For legal pur- 
 poses consistent with the character and scope of the privilege 
 granted, the rights of the owner of the fee must be respected, 
 but, on the other hand, such owner must so comport himself 
 as not to interfere with the just exercise of the rights that 
 properly pertain to the easement previously granted.' 
 
 ' Jamaica Pond Aqueduct Corpo- * Gale on Easements, 23. 
 
 ration v. Chandler, 91 Mass. 159. ^ Swift v. Goodrich, 70 Cal. 106. 
 
 > 'Pierce v. Keator, 70 N. Y. 421. 'Gale on Easements, 24. 
 
 ' Sanderlin v. Baxter, 76 Va. 305. ' Phipps v. Johnson, 99 Mass. 26. 
 
EASEMENTS AND SERVITUDES. 4°/ 
 
 Mr. Boone says that althoiigh easements are imposed upon 
 corporeal property, they confer no right to a participation in 
 the profits arising from such property.' In this respect they 
 are to be distinguished from what are called "profits a pren- 
 dre" which consist of a right to take the fruit or products of 
 the land, or the materials which compose it." 
 
 The law is jealous of a claim to an easement, and the party 
 asserting such a claim must prove his right to it clearly ; it 
 cannot be established by intendment or presumption. '° 
 
 If the owner of an easement has made or permitted erec- 
 tions which substantially intercept the air, light, and vision 
 to and from his lot, the easement is thereby extinguished." 
 
 In speaking of this question on easements, in Merritt v. 
 Parker, i N. J. L. 460, the chief justice said: " No one has a 
 right to compel another to have his property improved in a 
 particular manner. It is as illegal to force him to receive a 
 benefit as to submit to an injury. In the light, therefore, in 
 which we view this subject, whether the drawing of the water 
 from the pond by means of a trench, or the causing an addi- 
 tional quantity of water to flow through the lands of the de- 
 fendant, was productive of benefit or injury, are, in my opin- 
 ion, questions into which we have no right to examine. ' ' In 
 Dickenson v. Grand Junction Canal Co., 15 Beav. 260, it was 
 said : " If the plaintiffs have purchased from the company a 
 right to preserve the waters in the rivers Belbourne and Gade 
 from being diverted in any manner * * * it is no answer 
 to them to say that the diversion proposed will not be injuri- 
 ous to them, or even to prove that it may be beneficial to 
 them. It is for them to judge whether the agreement shall 
 be preserved, so far as they are concerned, in its integrity, or 
 whether they shall permit it to be violated. ' ' In Johnston v. 
 
 * Boone, Real Prop. sec. 135. Co. v. Carter, 6i Pa. St. 39 ; Hill v. 
 
 Citing Hewlins v. Shippam, 5 Barn. Lord, 48 Me. 99 ; Bland v. Lips- 
 
 & C. 221; Wagner v. Hanna, 38 combe, 30 Eng. L. & Eq. 189; Huff 
 
 Cal. 116; Wolfe V. Frost, 4 Sand. v. McCauley, 53 Pa. St. 209; Man- 
 
 Ch. 72; Bowen v. Team, 6 Rich. ning v. Wasdale, 5 Ad. & E. 758. 
 
 298. •» Poison V. Ingram, 22 S. C. 54.1. 
 
 ' Citing Waters v. Lilley, 4 Pick. " Lattimer v. Livermore, 72 N. Y. 
 
 145 ; Pierce v. Keator, 70 N. Y. 419, 174, 
 26 Am. Rep. 612; Tinicum Fishing 
 
408 REAL PROPERTY. 
 
 Hyde, 32 N. J. Eq. 455, where the owner of the servient 
 estate attempted to substitute a covered way for an open 
 ditch, the court said it could not compel Mr. Hyde to accept 
 the substitution of a covered aqueduct for an open raceway. 
 The same doctrine has been emphatically announced in 
 Gregory v. Nelson, 41 Cal. 278. The action was brought to 
 restrain the defendants from destroying- plaintiff's water 
 ditch by their mining operations upon a claim across which 
 the ditch ran. Plaintiff's title to the water ditch rested upon 
 his right by prescription. The court found in favor of 
 plaintiff's title, but permitted defendants to proceed with 
 their mining operations, provided they would construct a 
 metal pipe at this point of sufficient capacity to carry the 
 water in lieu of such ditch. In referring to this portion of 
 the judgment the court said : "It knew of no principle of law 
 or power in a court of equity to justify or authorize such an 
 invasion of the property rights of one private party to serve 
 the wishes, convenience or necessities of another private 
 party. It is the duty of courts to protect a party in the enjoy- 
 ment of his private property, not to license a trespass upon 
 such property or to compel the owner to exchange the same 
 for other property, to answer private purposes or necessities. ' ' 
 If the owner of the servient estate is not allowed to materi- 
 ally alter the character of the servitude, although such altera- 
 tion would not result in damage to the dominant estate, but 
 might be a benefit thereto, we see no reason why the same 
 principle would not apply to the owner of the dominant estate 
 in making material alterations in the character of his ease- 
 ment. 
 
 Section 806 of the California Civil Code provides: "The 
 extent of a servitude is determined by the terms of the grant 
 or the nature of the enjoyment by which it was acquired;" 
 and it appears to be settled doctrine that both parties have 
 the right to insist that so long as the easement is enjoyed it 
 shall remain substantially the same as it was at the time the 
 right accrued, entirely regardless of the question as to the 
 relative benefit and damage that would ensue to the parties 
 by reason of a change in the mode and manner of its enjoy- 
 ment. Defendant's title rests upon a right by prescription, 
 an implied grant which limits and defines defendant's rights 
 
EASEMENTS AND SERVITUDES. 409 
 
 as fully and as strictly as thougli the grant were express ; and 
 for the purpose of determining its terms we must look to the 
 nature of the enjoyment by which it was acquired, for, as 
 provided by the section already quoted, the nature of that 
 enjoyment measures the extent of the servitude. It is quite 
 apparent that the nature of defendant's enjoyment in this 
 case was the right of conducting water in an open ditch over 
 and across plaintiff's land ; that right was acquired by actu- 
 ally conducting the water in an open ditch over plaintiff's 
 land, and the servitude resting upon their realty is exactly of 
 the same character, and no more or less burdensome than 
 though plaintiffs had expressly granted to defendant the 
 right to conduct water in an open ditch across their land. In 
 Ware V. Walker, 70 Cal. 595, the court said: " The plaintiff, 
 by the construction of his ditch and the appropriation and 
 user of the water of the stream, acquired as against the de- 
 fendant, * * * as complete and perfect a right to main- 
 tain his ditch and have the water flow to, in, and through the 
 same as though such right or easement had vested in him by 
 grant. ' ' 
 
 a. List of the principal easements. The following land' bur- 
 dens, or servitudes upon land, may be attached to other land 
 as incidents or appurtenances, and are then called ease- 
 ments : 
 
 1 . The right of pasture. 
 
 2. The right of fishing. 
 
 3. The right of taking game. 
 
 4. The right of way. 
 
 5. The right of taking water, wood, minerals, and other 
 things. 
 
 6. The right of transacting business upon land. 
 
 7. The right of conducting lawful sports upon land. 
 
 8. The right of receiving air, light, or heat from or over, 
 or discharging the same upon or over land. 
 
 9. The right of receiving water from or discharging the 
 same upon land. 
 
 ID. The right of flooding land. 
 
 11. The right of having water flow without diminution or 
 disturbance of any kind. 
 
 12. The right of using a wall as a party wall. 
 
4IO REAL PROPERTY. 
 
 13. The right of receiving more than natural support from 
 adjacent land or things afl&xed thereto. 
 
 14. The right of having the whole of a division fence main- 
 tained by a coterminous owner. 
 
 15. The right of having public conveyances stopped, or of 
 stopping the same on land. 
 
 16. The right of a seat in church. 
 
 17. The right of burial. '" 
 
 The following land burdens or servitudes upon land, may 
 be granted and held, though not attached to land : 
 
 1. The right to pasture, and of fishing and taking game. 
 
 2. The right of a seat in church. 
 
 3. The right of burial. 
 
 4. The right of taking rents and tolls. 
 
 5. The right of way. 
 
 6. The right of taking water, wood, minerals, or other 
 things." 
 
 § 183. Easements that run with the land. When the owner 
 of land enters into an agreement, upon a sufficient considera- 
 tion,- subjecting it to an easement, or servitude, or profit 
 d prendre, and the land is afterwards sold and conveyed to 
 one who has actual or constructive notice of the agreement, 
 the purchaser and grantee will take the land bound by the 
 agreement, and will be restrained from violating it, whether 
 the agreement is, or is not, one which in law runs with the 
 land.'* 
 
 But it is not the consideration in which the agreement had, 
 as between the parties to it, its support, that makes the 
 agreement affect and subordinate the land when afterwards 
 sold and conveyed to some third person for value ; but it is 
 the actual or constructive notice which such third person has 
 of the agreement when becoming the purchaser and grantee 
 of the land, which essentially achieves that result." 
 
 " 56 Cal. 13; 58 Id. 159, 192. '5 Paul v. Connersville & N. J. R. 
 
 "Cal. Civ. Code, sees. 801-2. Co. 51 Ind. 527 ; Davies v. Sear, L. 
 
 "Tulk V. Moxhay, 2 Phil. 774; R. 7 Eq. 427 ; Morland v. Cook, L. 
 
 Parker v. Nightingale, 6 Allen R. 6 Eq. 252 ; Raritan Water Power 
 
 (Mass.), 341, 83 Am. Dec. 632; Whit- Co. v. Veghte, 21 N. J. Eq. 463. 
 ney V. Union R. Co. 11 Gra5f, 359, 
 71 Am. Dec. 715. 
 
EASEMENTS AND SERVITUDES. 4II 
 
 In Branson v. Coffin, 108 Mass. 175, 180, it was said, the 
 court, speaking by Gray, J. : "An interest in the nature of 
 an easement in the land which the covenant purports to 
 bind, whether already existing, or created by the very deed 
 which contains the covenant, constitutes a sufhcient privity 
 of estate to make the burden of a covenant to do certain acts 
 upon that land, for the support and protection of that interest 
 and the beneficial use and enjoyment of the land granted, 
 run with the land charged. And an obligation, duly ex- 
 pressed, that the structures upon one parcel of land shall for- 
 ever be of a certain character for the benefit of an adjoining 
 parcel is equally a charge upon the first parcel, whether the 
 obligation is affirmative or merely restrictive, and whether 
 the affirmative acts necessary to carry the obligation into 
 effect are to be done by the owner of the one or the owner of 
 the other. ' ' And it was held by the court, where there was 
 a covenant to make and maintain a fence on a railroad, con- 
 tained in a deed granting to the road a strip for the right of 
 way, that this covenant was an incumbrance on all the 
 remaining land of the grantor, and ran with that land, be- 
 cause the covenant gave the grantee an interest in the nature 
 of an easement in the adjoining land of the grantor.'" 
 
 In Parker v. Nightingale, 6 Allen (Mass.), 341, the court say: 
 ' ' A covenant, though in gross at law, may be in equity binding 
 even to the extent of fastening a servitude on real property. 
 A purchaser of land, with notice of a right of easement in it, 
 existing in favor of some other estate, by virtue of an agree- 
 ment with his vendor, is bound to perform his vendor'a 
 agreements, or rather not to violate them, because it would 
 be unconscientious and inequitable for him to disregard the 
 valid agreements of his vendor. There may be neither pri- 
 vity of estate nor privity of contract between the aggrieved 
 party, and those who attempt to appropriate the property in 
 contravention of the mode of enjoyment impressed upon it 
 by their grantor. The effect of the restriction is to confer 
 on each owner an easement in all the lots which are con- 
 
 '' See also Western v. Macder- (Mass.) 341 ; Union Pac. R. Co. v. 
 
 mott, L. R. 2 Ch. 72; Whitney v. McAlpine, 129 U. S. 305, 314 (32: 
 
 Union R. Co. 11 Gray (Mass.), 359, 673, 676); McMurray v. Moran, 134 
 
 364; Parker v. Nightingale, 6 Allen U. S. 150 (33: 814). 
 
412 REAL PROPERTY. 
 
 nected with each other by a common interest in the restric- 
 tion, and which were conveyed subject to it." But it must 
 appear, either by express stipulation or necessary implica- 
 tion, that the parties intended to impose a permanent 
 restraint on the mode of occupation of the respective 
 estates." Such a right has been held to arise from a parol 
 agreement, which is an exception to the rule, that easements 
 can only be created by deed ; but this is rather a case of 
 estoppel or executed license." In one case the space next 
 the street was laid down on a plan as open ground, and the 
 owner, when selling, declared that it was always to remain 
 open, but he put no restrictions in the deeds and bounded 
 the lots sold on the street. A purchaser, who was building 
 on this land, was enjoined at the suit of another purchaser 
 who had built according to the plan. The court held that 
 the representations and circumstances under which the sales 
 were made, bound the original vendor and all who pur- 
 chased under him, with notice to have the terms kept and 
 fulfilled." And constructive notice from the record is 
 enough."" 
 
 In the case of Wlialeyv. Stevens, 21 S. C. 221, it was held 
 that a right of way appurtenant is a right which inheres in 
 the land to which it is appurtenant, is necessary to its enjoy- 
 ment, and passes with the land, while a right of way in gross 
 is a mere personal privilege, which dies with the person who 
 may have acquired it ; and the same doctrine was reaffirmed 
 in the same case (27 S. C. 549), when it was again before this 
 court, the chief justice, in delivering the opinion quoting 
 the following language from Washburn on Easements (chap. 
 2, par. 5, p. 257): "Ways are said to be appendant or appur- 
 tenant when they are incident to an estate, one terminus 
 being on the land of the party claiming. They must inhere 
 to the land, concern the premises, and be essentially neces- 
 sary to their enjoyment." 
 
 " Brewer v. Marshall, 3 C. E. madge v. East River Bank, 26 N. Y. 
 
 Green (N. J.), 537; Winfield v. (12 Smith), 105. 
 
 Henning, 6 Id. 190; Hubbell v. " Maxwell v. East River Bank, 3 
 
 Warren, 8 Allen (Mass.), 173; Wolfe Bosw. (N. Y.), 124. 
 
 v. Frost, 4 Sandf. Ch. (N. Y.) 72. '"' Peck v. Conway, 119 Mass. 
 
 '* Hubbell v. Warren, supra ; Tall- 546. 
 
EASEMENTS AND SERVITUDES. 413 
 
 § 184. Of rights appurtenant and in gross. A "way appur- 
 tenant" is incident to the estate, inheres in it, and goes with 
 it on a transfer as essential to its enjoyment. "A right of 
 way in gross" is personal to the grantee, and not assignable 
 or inheritable."" 
 
 An easement in gross is a mere personal interest in the 
 real estate of another, and is not assignable or inheritable." 
 
 Chancellor Kent, in speaking of such an easement, says: 
 "It dies with the person, and it is so exclusively personal 
 that the owner of the right cannot take another person in 
 company with him. "" Whether an easement in a given case 
 is appurtenant or in gross is to be determined mainly by the 
 nature of the right and the intention of the parties creating 
 it." If it be in its nature an appropriate and useful adjunct 
 of the land conveyed, having in view the intention of the 
 grantee as to its use, and there being nothing to show that 
 the parties intended it to be a mere personal right, it should 
 be held to be an easement appurtenant to the land, and not 
 an easement in gross ; the rule for the construction of such 
 grants being more favorable to the former than to the latter 
 class. Says Washb. Easem. 45 : " Though an easement, like 
 a right of way, may be created by grant in gross, as it is 
 called, or attached to the person of. the grantee, this is never 
 presumed when it can fairly be construed to be appurtenant 
 to some other estate ; and, if it is gross, it cannot extend be- 
 yond the life of the grantee. Nor can it be granted over, 
 being attached to the person of the grantee alone. ' ' The 
 same author, on page 8 : "A man may have a way in gross 
 over another's land, but it must from its nature be a personal 
 right, not assignable nor inheritable ; nor can it be made so 
 by any terms in the grant, any more than a collateral and 
 dependent covenant can be made to run with the land."" 
 
 " Hall V. Armstrong, 53 Conn. Woolrych, Ways, 20; 2 Bl. Com. 35 ; 
 
 556(1885), cases, Loomis, J.; All- Boatman v. Lasley, 23 Ohio St. 614. 
 
 derson's Law Diet. '^ Kramer v. Knauff, 12 111. App. 
 
 ''Washb. Easem. (4th ed.), 12. 115, 118; White v. Crawford, 10 
 
 " 3 Kent's Com. 420; see also Mass. 183. 
 
 Ackroyd v. Smith, 10 C. B. 164; "See also Boatman v. Lasley, 
 
 Garrison v. Rudd, 19 111. 558; Post supra. 
 V. Pearsall, 22 Wend. 425, 432 ; 
 
414 REAL PROPERTY. 
 
 Any right in the realty of another may be, if the law per- 
 mits, a right appurtenant, otherwise it must be a right in 
 gross, and, if the latter, may be a personal right or a right in 
 fee. What it is depends on the intentions of the grantor and 
 grantee and on the language of the constituting instrument. 
 The traditional language of the books" to the contrary, is not 
 supported by the decisions." 
 
 The right to enter on another's land and draw from it run- 
 ning water is recognized as an easement proper and not a 
 "profit d prendre" for water is not a part or produce of the 
 soil nor is it the property of the owner of the land over which 
 it flows, and becomes such property only when confined in 
 tanks." 
 
 And yet a right to draw or take water may be given to one 
 and his heirs in gross." It thus appears that -Washburn's 
 statement" is quite erroneous. Goddard" says : ' ' There is no 
 such right known to the law as an easement in gross."" 
 
 An easement cannot be severed from the land to which it 
 is annexed and made a right in gross.'" 
 
 The cases of White v. Crawford, lo Mass. 183, and Senhouse 
 v. Christian, i T. R. 560, seem to be in conflict with this gene- 
 ral statement concerning an easement in gross. In the 
 former case the court says: "As to ways in gross, that they 
 may be granted or may accrue in various forms to one and 
 his heirs and assigns, there can be no doubt. There is a 
 strong example of such grant in the case of Senhouse v. Chris- 
 tian, upon which the defendants justified as heirs of the origi- 
 nal grantee."" 
 
 -^ 3 Kent's Com. 420. '"jEasements, 10. 
 
 "Senhouse v. Christian, i T. R. "Easements, 6; Bennett's ed. 8. 
 
 560; White V. Crawford, 10 Mass. ^^ Per Cairnes, L. J., in Rangeley 
 
 183; see also Bowen v. Connor, 6 v. Midland R. Co. L. R. 3 Ch. App. 
 
 Cush. 132, 137; Holms v. Seller, 3 306, 310, 311. 
 
 Lev. 305 ; Welcome v. Upton, 6 '^ Goddard, Easem. 8 ; Bennett's 
 
 Mees & W. 536. ed. 10; Ackroyd v. Smith, 10 C. B. 
 
 '»Race V. Ward, 4 El. & Bl. 702; 164; Spensley v. Valentine, 34 Wis. 
 
 Manning v.Wasdale, 5 Ad.&El. 758. 154; Angell, Highways, sec. i, and 
 
 '■" DeWitt V. Harvey, 4 Gray cases cited. 
 
 (Mass.), 486; Goodrich v. Burbank, '■* See also Lonsdale Co. v. Moies, 
 
 12 Allen (Mass.), 456; Lonsdale Co. 21 Law Rep. 658, 664. 
 v. Moies, 21 Law Rep. 658. 
 
EASEMENTS AND SERVITUDES. 415 
 
 Whether these cases can be reconciled with the pfeneral doc- 
 trine is doubtful, although Mr. Washburn seems to think 
 they can." We think the greater weight of the authorities 
 supports the doctrine announced, that easements in gross, 
 properly so called, are not assignable nor inheritable. If, 
 however, a right to take soil, gravel, minerals, water from a 
 spring, and the like, from another's land, may properly be 
 denominated as "easement" then it is proper to say that an 
 easement in gross — for such it might doubtless be consti- 
 tuted — might be both assignable and inheritable; for the 
 rights enumerated are ' ' so far of the character of an estate or 
 interest in the land itself that, if granted to one in gross, it 
 is treated as an estate, and may therefore be one for life or 
 inheritance."" 
 
 As stated in Woolrych on Ways, 13: "A way appendant 
 cannot be turned into a way in gross, because it is insepara- 
 bly united to the manor or land to which it is incident. 
 And, as stated in Washb. Easem. 4th ed. 26: "Though a 
 man may acquire an easement in gross, like a right of way 
 over another's land, separate and distinct from the owner- 
 ship of any other estate to which it is appendant, yet if his 
 right to such way result from his ownership of a parcel of 
 land to which it is appendant, he cannot, by grant, separate 
 the easement from the principal estate to which it is append- 
 ant, so as to turn it into a way in gross in the hands of his 
 grantee."" Furthermore, as stated in Columbia College Trustees 
 V. Lynch, 70 N. Y. 440 ; 26 Am. Rep. 619: "A negative ease- 
 ment, by which the owner of lands is restricted in their use, 
 can only be created by covenant in favor of other lands not 
 owned by the grantor and covenantor.'"' 
 
 The law will not recognize any new species of easements, for 
 "a new species of incorporeal hereditaments cannot be cre- 
 ated at the will and pleasure of an individual owner of an 
 
 ^* Washb. Easem. 112; but see to Greenl. Cruise, 83; Ackroyd v. 
 
 the contrary Goodrich v. Burbank, Smith, 10 C. B. 164; Hall v. Law- 
 
 12 Allen, 460. rence, 2 R. I. 218, 242, 57 Am. Dec. 
 
 ^'See Tinicum Fishing Co. v. 715. 
 
 Carter, 61 Pa. 21, 100 Am. Dec. 597. '» See also Hills v. Miller, 3 Paige, 
 
 ^' See also Garrison v. Rudd, 19 254, 3 L. ed. 141, 24 Am. Dec. 218. 
 111. 558, 564, and cases cited ; 3 
 
4l6 REAL PROPERTY. 
 
 estate. He must be contented to take up the sort of estate 
 and the right to dispose of it as he finds the law settled by- 
 decisions or controlled by Act of Parlaiment. "'° 
 
 But it must be remembered that although any burden of a 
 new species which the owner thinks proper to impose on his 
 land is not an easement which can be made appurtenant to 
 land, yet such an obligation is perfectly valid as between the 
 grantor and grantee of the right. And if the grantee is dis- 
 turbed in his enjoyment by the grantor the law will afford 
 him ample remedy by action on covenant for the injury." 
 
 A mere naked right to pass and repass over the land of an- 
 other, a use which excludes all participation in the profits of 
 the land, is not, in any proper sense, an interest or estate in 
 the land itself. Such a right is in its nature personal; it 
 attaches itself to the person of him to whom it is granted, 
 and must die with the person. 
 
 If such right be an inheritable estate, how will the heirs 
 take? In severalty, in joint tenancy, coparcenary, or as ten- 
 ants in common ? If not in severalty, how can their interests 
 be severed? 
 
 If it be assignable, what limit can be placed on the power 
 of alienation? To whom and to how many may it be trans- 
 ferred? Why not to the public at large, and thus convert 
 into a public way that which was intended to be a private 
 and exclusive way only? 
 
 Where the way is appendant or appurtenant to other lands, 
 very different considerations arise. There the right attaches 
 to the lands to which the way is appurtenant, because it is 
 granted for the convenience of their occupation without 
 respect to the ownership or number of occupants. In such 
 case the right of way passes with the dominant estate as an 
 incident thereto. A right of way appendant cannot be con- 
 verted into a way in gross, nor can a way in gross be turned 
 into a way appendant. 
 
 A very marked distinction also exists between a way in 
 gross and an easement of profit a prendre ; such as the right 
 
 3'Goddard, Easem. i6 ; Bennett's ^" Goddard, Easem. i8 ; Bennett's 
 
 ed. 21; Hill v. Tupper, 2 Hurist & ed. 21. 
 C. 121 ; Kepplel v. Bailey, 2 Myl. & 
 K. 535- 
 
EASEMENTS AND SERVITUDES. 417 
 
 to enter upon the lands of another, and remove gravel or 
 other materials therefrom. The latter so far partakes of the 
 nature of an estate in the land itself, as to be treated as an 
 inheritable and assignable interest." 
 
 Both upon principle and authority, we think there is no error 
 in a charge substantially to this effect. Mr. Washburn in his, 
 work on Easements, page 8,. par. II, states the law upon this 
 subject as follows: "A man may have a way in gross 
 over another's land, but it must, from its nature, be a per- 
 sonal right not assignable nor inheritable; nor can it be 
 made so by any terms in the grant, any more than a col- 
 lateral or independent contract can be made to run with the 
 land."" 
 
 § 185. Natural easements and servitudes. Land on a lower 
 level owes a natural servitude to that on a higher level in 
 respect of receiving without claim for compensation by the 
 owner the water naturally flowing down to it." Rights for 
 the artificial flow of water through a water course can be 
 acquired by prescription — by twenty years of adverse user." 
 The rights of agriculture as well as the public good require 
 that the proprietors of the higher ground should have the 
 right to drain his own land, and the owner of the lower land 
 shall not have the power to prevent it, except to save himself 
 from damage or material injury." But this right to concen- 
 trate a flow of water has been denied." 
 
 § 186. Implied easements. The necessity which will raise 
 an implied easement varies with the nature of the property 
 and of the easement." It is a question of presumed inten- 
 tion. If the servitude is a burdensome one, only strict 
 
 *' Post V. Pearsall, 22 Wend. 432. *• Murchie v. Gaytes, 78 Me. 300. 
 
 " See also Ackroyd v. Smith, 10 *' McCormic v. Horan, 8i N. Y. 
 
 C. B. 164; Garrison V. Rudd, 19 111. 86; Peck v. Goodberlett, 109 Id. 
 
 558; Post V. Pearsall, 22 Wend. 180; Anderson v. Henderson, 124 
 
 432; Woolrych on Ways, 20; 2 111. 164. 
 
 Bl. Com. 35 ; 3 Kent's Com. 420, " Livingston v. McDonald, 21 la. 
 
 512. 160; Dickinson v. Worcester, 7 Al- 
 
 ■•^Lord V. Carton Iron Co. 42 N. len (Mass.), 19. 
 
 J. Eq. 157 ; Pennsylvania Coal Co. *' Covel v. Hart, 56 Me. 520. 
 v. Sanderson, 113 Pa. St. 126. 
 27 
 
41 8 REAL PROPERTY. 
 
 necessity will raise the implication. Great convenience 
 alone will not give a way of necessity," and the way will 
 cease when the necessity ceases." So, if the purposes for 
 which the land is granted are inconsistent with the exercise 
 of the easement, it will not exist.'" 
 
 What is called necessity is only a circumstance called in to 
 explain the intention of the parties." 
 
 § 187. Easements regarded as an incumbrance. Rights of 
 every description in the nature of an easement must, as mat- 
 ter of law, be regarded as an incumbrance. The same is 
 true of a mortgage, whether recorded or not, and a claim to 
 dower is equally objectionable, in that it has a tendency to 
 impair the husband's title and all claiming under him by 
 taking a freehold in one-third of it." By parity of reasoning 
 a private way over the land of another is an incumbrance."^ 
 So of the right to go upon the land to clear a water course" or 
 to cut standing timber. " 
 
 These views are further vindicated by the case of Kellog v. 
 Ingersoll, 2 Mass. 97, in which Ch. J. Parsons employs the fol- 
 lowing language : ' ' The courts are well satisfied that the 
 road, as here described, is an incumbrance on the land sold. 
 It is a legal obstruction to the purchaser to exercise the 
 dominion over the land to which the lawful owner is entitled. 
 An incumbrance of this nature may be a great damage to the 
 purchaser or the damage may be very inconsiderable, or 
 merely nominal. The amount of damages is a proper sub- 
 ject of consideration for the jury, who may assess them, but 
 it cannot affect the question whether a public town road is an 
 incumbrance of the land over which it is laid." 
 
 «Dodd V. Burchell, i Hurist., Cal. 306; 2 Wait's Act. & Def. 
 
 etc., 121; Brighain v. Smith, 4 668. 
 
 Gray, 297; Smith v. Kinard, 2 Hill. *' Prescott v. Trueman, 4 Mass. 
 
 L. 642. 627. 
 
 ■" Lide V. Hadley, 36 Ala. 627; " Mitchel v. Warner, 5 Con. 497 ; 
 
 Viall V. Carpenter, 14 Gray (Mass.), Harlow v. Thomas, 15 Pick. (Mass.), 
 
 126. 68. 
 
 " Seeley V. Bishop, 19 Conn. 128. " Prescott v. Williams, 5 Met. 
 
 " Nichols V. Luce, 24 Pick. (Mass.), (Mass.), 433. 
 
 102; Collins V. Prentice, 15 Conn. " Cathcart v. Bowman, 5 Barfr. 
 
 39; American Co. v. Bradford, 27 319. 
 
EASEMENTS AND SERVITUDES. 4^9 
 
 § i88. Easements granted by mortgagor before fore- 
 closure. A very subtle distinction is ably presented by Mr. 
 Thomas in his well known work on ' ' Mortgages. ' ' It relates 
 to rights in the nature of easements acquired from the mort- 
 gagor before the foreclosure of the mortgage. I quote the 
 section in full. 
 
 " It is obvious that the purchaser cannot gain any advant- 
 age from contracts made by the mortgagor subsequent to the 
 mortgage with any of the defendants in the action to fore- 
 close, for such contracts were made with relation to an 
 equity which the sale had destroyed, but it has been ques- 
 tioned as to whether he may claim the benefits of bargains 
 made with persons who, by not having been made parties to 
 the suit, are allowed to retain any advantage which they 
 acquired under such bargains. In Packer v. The Rochester & 
 Syracuse R. R. Co., 17 N. Y. (3 Smith 283), an easement to con- 
 struct a mill race across the mortgaged land had been granted 
 by the owners of the equity of redemption to certain mill 
 owners for which they undertook to construct the walls of 
 said race in a specified manner. The mortgage was after- 
 ward foreclosed without making the mill owners parties, and 
 the question arose in an action for damages for obstructing 
 the race, brought by the mill owners against the purchasers 
 at the foreclosure, as to the admissability of the original con- 
 tract under which the race had been built, and of a decree in 
 chancery between the parties to such contract decreeing its 
 specific performance. The opinions of Denio and Pratt, JJ., 
 are interesting as showing the diverse views held by those 
 learned judges with regard to the rights of the purchaser 
 tinder the foreclosure sale, though they arrived at the same 
 conclusion with regard to the case then under consideration. 
 Denio, J. held that by the foreclosure the equity of redemp- 
 tion was extinguished; that the purchaser did not claim 
 under the mortgagors by title subsequent to the contract 
 offered in evidence, but by paramount title, and that he 
 could, therefore, neither be bound by it nor could he avail 
 himself of its advantages. Pratt, J, on the other hand, 
 maintained with great force the proposition that the pur- 
 chaser's title, so far as an incumbrancer who was not made a 
 party to the action was concerned, was that of a grantee from 
 
420 REAL PROPERTY. 
 
 the mortgagor as of the date of the foreclosure, and that not 
 only could such incumbrancer insist upon the benefits which 
 contracts subsequent to the mortgage had assured to him, 
 but also that the purchaser could enforce the reciprocal obli- 
 gations which had induced the mortgagor to grant such 
 benefits/^ 
 
 In Rector, etc., of Christ P. E. Church v. Mack, 93 N. Y. 488, 
 reversing 25 Hun, 418, the defendant's husband had pur- 
 chased the property from the mortgagor subject to the mort- 
 gage and to a servitude subsequently created restricting the 
 use of the property so as to allow the adjoining property to 
 have the use of windows opening upon it. The title was 
 thereafter granted to the defendant. The mortgage was sub- 
 sequently foreclosed, and the defendant having become the 
 owner thereunder, she commenced the erection of buildings 
 which would have closed the windows of the adjacent prop- 
 erty. The action was brought to restrain the continuance of 
 such erection, and an injunction was granted and sustained 
 by the General Term. It was conceded that a purchase 
 under the foreclosure would have given a stranger to the 
 title an ownership discharged of plaintiff's easement, and the 
 Court of Appeals decided that the same result attended the 
 purchase by the defendant, notwithstanding her relation to 
 the property. The rule was declared to be that "the effect 
 of the foreclosure deed, as determined by the statute, is to 
 vest in the purchaser the entire interest and estate of mort- 
 gagor and mortgagee as it existed at the date of the mort- 
 gage, and unaffected by the subsequent incumbrances and 
 conveyances of the mortgagor. "" 
 
 § 189. Easements granted by way of reservation. It is 
 
 fully stated in Claflifi v. B. & A. R. R.Co., 157 Mass. 489, as a 
 summary of the authorities that if an easement is created by 
 way of reservation, the word "heirs" is necessary to create 
 an easement in fee ; that in Massachusetts, however, an ease- 
 ment may be created by way of exception or reservation, and 
 if created by wajj- of exception the word "heirs" is not neces- 
 sary to create an easement in fee if the grantor owned the fee 
 at the time of the conveyance, and also that "as an exception 
 
 ■"' Thomas on Mortgages, 668. " Thomas on Mortgages, 669, sec. lo:;;. 
 
EASEMENTS AND SERVITUDES. 42 1 
 
 may be created by words of reservation, little reliance can be 
 placed upon the words used in determining whether the right 
 is by way of exception or by way of reservation." 
 
 § 190. Evidence of right. As easements are created by 
 grant, the production of that grant is the proper evidence of 
 their existence, and its language is the evidence of their 
 nature and limitations." But if the writing is produced it 
 may contain no direct mention of the easement. In such 
 case it may still be established by a construction of the words 
 of the instrument. No particular words are necessary for 
 such a grant ; any words which clearly show the intention to 
 give an easement which is by law grantable, are sufficient.'' 
 The questions, without regard to the form of words, would 
 be : First, Does an intention appear to confer a right to affect 
 the land of the grantor. Second, Is the right one which is 
 capable of being made the subject of a grant as an easement. 
 If these two questions are answered in the affirmative, an 
 easement has been created." 
 
 § 191. By grant or deed. Easements are created by grant." 
 Under the Statute of Frauds, no interest in lands can be 
 conveyed except by deed, and at common law incorporeal 
 rights which lay in grant and not in livery could only be 
 transferred by deed."' 
 
 The early English law which found subtle distinctions be- 
 tween what is termed ' ' implied grants and implied reserva- 
 tions, ' ' should be repudiated in a country like ours where 
 realty is constantly appreciating, especially in the vicinity of 
 cities, and where many forms of local improvement induce 
 frequent changes both in the market value and in the owner- 
 ship. These implications, especially as affecting easements 
 of light and air, should be carefully scrutinized and when 
 founded upon sheer necessity and convenience, like the kin- 
 dred doctrine of "ancient windows," or prescriptive right to 
 
 " Garland v. Furber, 47 N. H. ™ Gale on Easem. 87. 
 
 304; Lyman v. Arnold, 5 Mason's "' Duinneen v. Rich, 22 Wis. 550; 
 
 C. C. 195 ; Maxwell v. McAtee, 9 B. Cook v. Pridgen, 45 Ga. 331 ; Adams 
 
 Mour. (Ky.), 20. v. Andrews, 15 Q. B. 284. 
 
 " Rowbotham v. Wilson, 8 H. L. ''''2 Washb. Real Prop. sec. 552; 
 
 Cas. 362. Beaudely v. Brook, Cro. Jac. 189. 
 
422 REAL PROPERTY. 
 
 light and air by long user, is -wholly unsuited to our condi- 
 tion, and is not in harmony with the general understanding 
 of the public. In cases of cheap and temporary buildings the 
 application of the doctrine would be attended with great un- 
 certainty and be a fruitful source of litigation. It would, 
 moreover, in many cases operate as a veto to all improvements 
 in our towns and cities because such easements are a per- 
 petual incumbrance upon the servient estate. It will be safer 
 and better conserve the ends of justice and public good, to 
 leave the parties, on questions of light and air, to the bound- 
 ary lines they name, and the terms they express in their deeds 
 and contracts. There is considerable diversity in the reported 
 cases but Collier v. Pierse, 7 Grey (Mass.), 18 ; Myers v. Gimmel, 
 10 Barb. 537; Maynard v. Esher, 17 Pa. St. 222; and Haverstick 
 V. Sipe, 33 Id. 368, sustain the above contention. In the case 
 last cited it was held that the grant of an easement for light 
 and air is not implied, from the fact that such a privilege has 
 been long enjoyed, and that a contract for such a privilege is 
 not implied, on the sale of a house and lot, from the charac- 
 ter of improvements on the lot sold and the adjoining lots. 
 The court say : ' ' There is a sort of necessity for such an im- 
 plication relative to other apparent easements, such as roads 
 and alleys, in order to account for a use of another man's 
 land, that would otherwise be a wrongful encroachment ; and 
 the implication is easily framed or defined, for it appears on 
 the ground. But how can we define an easement for light 
 and air by implication, without arresting all change in the 
 style of buildings, all enjoyment of a man's house, according 
 to the demands of a growing or improving family? A pur- 
 chaser of a house in a crowded town never supposes that his 
 neighbor will have a right to prevent him from changing the 
 form of it according to his taste." 
 
 The doctrine of implied grants of easements or privileges 
 connected with real estate, is accorded but very scant respect 
 by the American courts. The courts seldom go beyond hold- 
 ing, with substantial unanimity, that there is an implied 
 grant of whatever is essential to the beneficial enjoyment of 
 the thing granted. This is the familiar and the safer rule.'' 
 
 *'Buss V. Dyer, 125 Mass. 287; lor, Land. & Ten. sec. 161; 2 Wash. 
 Doyle V. Lord, 64 N. Y. 432 ; Tay- Real Prop. 29. 
 
EASEMENTS AND SERVITUDES. 423 
 
 § 192. By prescription. The law governing the acquisition 
 of easements by long continued user or prescription stands 
 thus : Consent or acquiescence of the owner of the servient 
 tenement lies at the root of prescription, and of the fiction 
 of a lost grant, and hence the acts or user, which go to the 
 proof of either the one or the other, must be, in the lan- 
 guage of the civil law, nee vi nee clam nee preeario ; for a 
 man cannot, as a general rule, be said to consent to or 
 acquiesce in the acquisition by his neighbor of an ease- 
 ment through an enjoyment of which he has no knowl- 
 edge, actual or constructive, or which he contests and en- 
 deavors to interrupt, or which he temporarily licenses. It 
 is .a mere extension of the same notion, or rather it is a prin- 
 ciple into which by strict analysis it may be resolved, to 
 hold, that an enjoyment which a man cannot prevent raises 
 no presumption of consent or acquiescence. 
 
 An uninterrupted possession and use of an incorporeal 
 hereditament or easement, such as a way or a water privi- 
 lege, for twenty years, is prima facie, and, if unexplained, 
 -conclusive evidence of a right; under some circumstances 
 the courts will entertain the presumption of a grant, even 
 for a shorter period. A right thus acquired by "user" may, 
 in like manner, be lost by "disuser;" in other words, discon- 
 tinuance of the use for a long period affords a presumption 
 of the extinguishment of the right." 
 
 An adverse use is such a use of property as the owner him- 
 self would make, asking no permission, and disregarding all 
 other claims so far as they conflict with this use. Continued 
 for twenty years, such use is equivalent to a grant." 
 
 The cases usually say that this right, acquired by twenty 
 years' undisturbed and uninterrupted enjoyment of an ease- 
 ment, is founded on the presumption of a grant or release ; 
 and if so, it is not an absolute title, but one that is liable to 
 b)e rebutted by circumstances, and is to stand good until the 
 presumption of title be fully and fairly destroyed. This 
 was the doctrine so late as the cases of Campbell v. Wilson, 3 
 East's Rep. 294, and of Livett v. Wilson, 3 Bing. Rep. 115, 
 
 " Hazard v. Robinson, 3 Mass. *' Blanchard v. Moulton, 63 Me. 
 375 (1823), Story, J. ■ 436 (1873), Appleton, C. J. 
 
424 REAL PROPERTY. 
 
 and it is the prevalent language in the books, English and 
 American. A plea for an easement enjoyed for twenty- 
 years under the statute of 2 and 3 William IV, must state 
 that the enjoyment was had as of right." But some of the 
 later English authorities seem to give this presumption the 
 most unshaken stability, and they say it is conclusive evi- 
 dence of title. In Tyler v. Wilkinson, 4 Mason, 397, where 
 the whole law on the subject is stated with learning, preci- 
 sion, and force, the presumption is even made to be one Juris 
 et de jure, and to go to the extinguishment of the right in 
 various ways, as well as by grant." 
 
 On the other hand, the case of Reimer v. Stuber, 20 Pa. St. 
 458, where a right of way was claimed by prescription, and 
 sought to be avoided on the ground of disability, the use 
 began during the minority of the owner of the land, and who 
 before she became of age was married, it was held that the 
 time began to run when she became of age, notwithstanding 
 the subsequent disability of coverture. If the case stood 
 really upon the ground of a presumed grant, and it could not 
 be presumed because the owner was under a disability, and 
 could not make a grant, it must extend through both disa- 
 bilities. The case can stand only upon the analogy of the 
 statute. In that view it is clearly correct. 
 
 Mibane v. Patrick, i Jones, N. C. 23, was a claim by the 
 plaintiff that he had acquired a right of way by use. After 
 the use began the owner of the servient estate became in- 
 sane. It was decided that as the disability did not exist at 
 the time of the commencement of the plaintiff's adverse use, 
 it did not prevent the use ripening into a right. The court 
 say : "Such being the law as to the Statute of Limitations, it 
 follows it must be so, in regard to prescriptions also." The 
 language of Judge Story in Tyler v. Wilkinson, 4 Mason, 402, 
 in this respect goes beyond what most courts are disposed to 
 hold, indeed disabilities coming clearly within the saving of 
 the statute, would not avoid a prescription, according to the 
 most general interpretation of his language. But, doubtless, 
 it was not intended by him to bear so broad a meaning. 
 
 *' Holford V. Hankinson, 5 Adol. " 3 Kent's Com. 595. 
 & Ellis (N. S.), 584. 
 
EASEMENTS AND SERVITUDES. 425 
 
 Prof. Washburn in his treatise on Easements says: 'Per- 
 haps the difference in the provisions of the Statutes of Limi- 
 tations in the different States, may account for the discrep- 
 ancy in the decided cases. ' ' But they can hardly be reconciled 
 on such a basis. In both Massachusetts and New Hamp- 
 shire, it is fully settled, that under their Statutes of Limita- 
 tions no disability avoids their operation, unless it exists at 
 the time the right first accrues. The decisions in those 
 States must have been made in entire disregard of the anal- 
 ogy of the statute in this respect, and we ,think they were 
 made by giving undue importance to the fictitious theory of 
 a lost grant. 
 
 The cases opposed to them are in our judgment founded 
 upon much sounder legal reason, and we are disposed to fol- 
 low the Pennsylvania and North Carolina cases, rather than 
 those nearer home. 
 
 The mere inattention of the owner of land to the fact 
 that an easement in it is used by another, does not weaken 
 the force of the presumption which the lapse of time creates. 
 Such presumptions, like the Statutes of Limitation, will work 
 out their purpose though the party affected by them should 
 close his eyes. It would not do to say that the mere igno- 
 rance of the owner repelled the presumption of a grant. 
 
 Where a tenant for years or for life grants an easement such 
 grant is of no force or validity against the reversioner or 
 remainderman. So, if the tenant of a particular estate 
 suffers an easement to be enjoyed for twenty-one years, it 
 raises no presumption of a grant by him in remainder or 
 reversion. But here the land was occupied by tenants from 
 year to year. The owner of the fee was in possession and 
 had the right to bring suit every year. The case is wholly 
 different from that of one who is out of possession during the 
 whole of the time. 
 
 No presumption of a grant arises from the adverse enjoy- 
 ment of an easement against a minor or feme covert. The 
 presumption operates in strict analogy to the Statute of Limi- 
 tations, which recognizes the disabilities of infancy and 
 coverture as sufficient excuses for inaction. But a second 
 disability added to one which existed when the adverse en- 
 joyment first began is always disregarded. Thus, a cover- 
 
426 REAL PROPERTY. 
 
 ture which took place during infancy is not taken into 
 account after the infancy has ended. 
 
 The title to an easement of a burial lot may be acquired by 
 prescription, where adverse possession for that purpose is 
 held for the statutory period. Adverse possession of a burial 
 lot is held by its use for a burial place, with or without en- 
 closure, as long as gravestones stand marking the place as 
 burial ground." 
 
 A several or exclusive right of fishing in the estate of an- 
 other may also be gained by an adverse, uninterrupted, and 
 exclusive use and enjoyment of it for the period required by 
 the Statute of Limitations." In such case the one so using 
 it acquires title to the right of fishing against all the world." 
 and can maintain trespass against anyone, even the owner of 
 the soil, for taking the fish." 
 
 The user and enjoyment of the right claimed, in order to 
 become an easement by prescription, must have been ad- 
 verse to the owner of the estate from which the easement is 
 claimed, under a claim of right, exclusive, continuous and 
 uninterrupted. 
 
 In Massachusetts an easement of light and air over the 
 land of an abutting owner cannot be acquired by prescrip- 
 tion." 
 
 § 193. By dedication. In Tinges v. Baltimore, 5 1 Md. 609, 
 it is said ; "It is well settled by the decisions of this court 
 that an intent on the part of the owner to dedicate his land 
 to the particular use alleged is absolutely essential to a 
 dedication, and, unless such intention is clearly proved by 
 the facts and circumstances of the particular case, no dedica- 
 tion exists."" 
 
 «' Hook V. Joyce, 94 Ky. 450. 637; Holford v. Bailey, 13 Q. B. 
 
 " 2 Washb. Real Prop. (4th ed.) 426 ; Collins v. Benbury, 5 Ired. L. 
 
 366; Tinicum Fish Co. V. Carter, 61 118, 42 Am. Dec. 155; Delaware & 
 
 Pa. 21, 100 Am. Dec. 597. M. R. Co. v. Stump, 8 Gill. & J. 
 
 " Chalker v. Dickinson, i Conn. 479; Phipps v. State, 22 Md. 380,85 
 
 382, 6 Am. Dec. 250; Church v. Am. Dec. 654. 
 
 Meeker, 34 Conn. 421 ; Preble v. " Richardson v. Pond, 13 Grey, 
 
 Brown, 47 Me. 284; 3 Kent's Com. 387; Randal v. Sanderson, 11 1 
 
 43- Mass. 119. 
 
 "Adams v. Pease, 2 Conn. 481; " McCormick v. Baltimore, 45 
 
 Smith V. Kemp., 4 Mod, 187, 2 Salk. Md. 524. 
 
EASEMENTS AND SERVITUDES. 42/ 
 
 So in Shellhouse v. State, no Ind. 513 ; 9 West. Rep. 63, "To 
 constitute a valid dedication, there must have been an actual 
 intention on the part of the owner, clearly indicated by un- 
 equivocal acts or conduct, to dedicate the land to the public 
 for use as an alley."" 
 
 ' ' As was in effect said in the case above cited, unless there 
 appears an actual intent to dedicate on the part of the owner, 
 the court cannot do otherwise than to find that there was no 
 dedication." 
 
 So in Holdanev. Cold Spring, 21 N. Y. 477: "The owner's 
 acts and declarations should be deliberate, unequivocal and 
 decisive, manifesting a positive and unmistakable intention 
 to permanently abandon his property to the specific public 
 use. If they be equivocal, or do not clearly and plainly in- 
 dicate the intention to permanently abandon the property to 
 the use of the public, they are insufficient to establish a case 
 of dedication. ' ' 
 
 a. The burden of proof . In Lownsdale v. Portland, i Or. 405, 
 Deady, J., in discussing this question says: "The burden of 
 proof rests on the defendant to show a dedication. It must 
 be clear and satisfactory. * * * The security and cer- 
 tainty of the title to real estate are among the most import- 
 ant objects of the laws of any civilized community. Around 
 it the law has thrown certain solemnities and formalities so 
 that the fact may be known and read by all men. What a 
 man once had he is not to be presumed to have parted with, 
 but the fact must be shown beyond conjecture ; and although 
 in the case of streets and public grounds in towns, from the 
 nature of the case a dedication may be shown by acts resting 
 in parol, they must be of such a public and deliberate charac- 
 ter as makes them generally known and not of doubtful in- 
 tention. ' ' 
 
 In Baugan v. Mann, 59 111. 492, which was an injunction to 
 prevent one who held title under Sprague, who, it was alleged, 
 had dedicated an alley in the rear of appellee's premises, it 
 was said : ' ' The evidence fails to show title in Sprague. Un- 
 less he owned the fee he could make no dedication to public 
 use. A primary condition of every valid dedication is that 
 it must be made by the owner of the fee." 
 
 "Tucker v. Conrad, 103 Ind. 349; i West. Rep. 281, and cases cited. 
 
428 REAL PROPERTY. 
 
 In Porter v. Stone, 51 Iowa, 373, the court said: "The party 
 who lays out a town site, the effect of which is to donate to 
 the public streets, alleys and public grounds, must of neces- 
 sity have some title to the property to be affected by his act. 
 A grant to the public is not established by simply showing 
 that a town site has been laid out. The party claiming 
 benefits of a grant must go further, and show the title of the 
 party laying out the town, and thus undertaking to make the 
 grant." 
 
 In Leland v. Portland, 2 Or. 47, where the question was 
 whether a dedication of land in front of the city of Portland 
 between the Williamette river and the westerly side of the 
 street, which was made before September 27, 1850, was of 
 any validity, the court said : ' ' The next question presented 
 is, did the court below err in refusing to instruct the jury 
 that a dedication of the property in question, to be binding, 
 and to divert the title from the donor to the public, must 
 have been since the 27th day of September, 1850? I regard 
 this question as settled by the case of Lownsdale v. Parish, 
 62 U. S. (21 How.) 290; 15 L. ed. 80, which case arose on the 
 question of the dedication of the levee in the same city of 
 Portland, and by these same proprietors of a town site, and 
 was governed by the same considerations in this respect as 
 govern this case, where it was held that a dedication made 
 prior to act of September 27, 1850, was void for want of any 
 title then being in the United States." In England the rule 
 has been the same, the leading case being Wood v. Veal, 5 
 Barn. & Aid. 454, where it was held that a tenant for ninety- 
 nine years could make no dedication to the public, nor could 
 any one else excepting the owner in fee. 
 
 b. Acceptance. It is settled law in England that no formal 
 acceptance of a highway by dedication is necessary to consti- 
 tute it a public street, and while this rule has not been form- 
 ally accepted in all jurisdictions, yet it is entirely safe to 
 assume that the weight of authority in this country sanctions 
 the English rule." 
 
 "Norse v. Ranno, 32 Vt. 600; v. Nudd, 3 Fost. 327; Leech v. 
 
 Hays V. The State, 8 Ind. 425; Waugh, 24 111. 228; Connehan v. 
 
 Smith V. The State, 3 Zbr. 130; Ford, 9 Wis. 240; Morley v. Taylor, 
 
 Curtis V. Hoyt, 19 Conn. 154; State 19 111. 634. 
 
EASEMENTS AND SERVITUDES. 429 
 
 Work done by proper authority in the way of grading and 
 ballasting a road will warrant the presumption of acceptance 
 on the part of the public officials." So the convenience to 
 the public of the highway in question may be shown, when 
 dedication is proved with reasonable certainty, and there has 
 been a long continued user by the public as a means of bas- 
 ing the presumption of acceptance. In Iowa user by the 
 public for a period of ten years has been held sufficient evi- 
 dence upon which to base a presumption of dedication and 
 acceptance." And generally it may be said that the various 
 rules sanctioned by the authorities above cited are in accord 
 with reason, and indeed are necessary corollaries from other 
 undisputed doctrines. 
 
 The owner of land may dedicate or set apart a street or high- 
 way through it to the public use, and if the dedication is ac- 
 cepted, it will work an estoppel in pais precluding the owner 
 from asserting any inconsistence with such use. The dedica- 
 tion and acceptance are to be proved or disproved by the acts 
 of the owner and the circumstances under which the land 
 has been used. Both are questions of intention. The owner's 
 acts and declarations should be deliberate, unequivocal and 
 decisive, manifesting a positive and unmistakable intention 
 to permanently abandon his property to the specific public 
 use. If they be equivocal, or do not clearly and plainly indi- 
 cate the intention to permanently abandon the property to 
 the use of the public, they are insufficient to establish a case 
 of dedication. In the case of a highway, the public must ac- 
 cept the dedication, and before it is accepted, the owner is 
 not precluded from revoking it. It is not necessary that 
 there should be any formal act of acceptance by the public 
 authorities, but it may be indicated by common user, under 
 circumstances clearly showing an intent to accept and enjoy, 
 as such, the easement proposed to be dedicated. Throwing 
 open land in a village, and fencing it on each side, and caus- 
 ing the way or avenue to be designated as public on a map 
 of the village, are acts tending strongly to show a design 
 
 '" Folsom V. Underhill, 32 Vt. " Keyes & Crawford v. Tait, 
 
 580; People V. Jones, 6 Mich. 176; supra ; Onstott v. Murray, 22 la. 
 
 Comm V. Belding, 13 Met. (Mass.), 457. 
 10; Alvord V. Ashley, 17 111. 363. 
 
430 REAL PROPERTY. 
 
 presently or at some future period to dedicate and devote it 
 to the public use. But these acts are not conclusive to estab- 
 lish a present dedication, binding on the owner of the land. 
 One may fence off a strip of his own land for the purpose of 
 a passageway, opening on a public street, or he may lay out 
 a street through it with a view of subdividing his land 
 bounded upon it into village lots, intending upon the sale of 
 such lots to dedicate the street to the use of the public ; but 
 in such cases, though the public may have occasionally, or 
 indeed at all times, used the open way in passing to and from 
 the enclosure of an adjoining proprietor, it could scarcely be 
 pretended that the land had thereby become burdened with 
 an irrevocable public servitude." The law of dedication is 
 somewhat anomalous, but it may be said to rest, in part at 
 least, upon the doctrine of estoppel in pais. Though the owner 
 of land may evince by his acts an intention to dedicate 
 a street or square, or other plat of ground, to the public use, 
 no sufficient or valid reason can be assigned against a change 
 of purpose and a subsequent resumption of the possession, 
 unless the public accommodation and private rights are to be 
 materially affected by an interruption of the enjoyment. If, 
 however, private rights have been acquired with reference 
 to such dedication, and such an interest decurred, with the 
 assent and concurrence of the owner, as would make it 
 fraudulent in him to resume his rights, the dedication be- 
 comes irrevocable." 
 
 c. Set form of words unnecessary. No particular form of 
 words is necessary to constitute a dedication for the purposes 
 of a highway. The intention of the owner to set apart the 
 lands for the use of the public as a highway, the animus dedi- 
 candi is the foundation principle, the very life of dedication. 
 When this is unequivocally indicated by the assertions and 
 acts of the owner, the dedication is complete. So it has been 
 held that a long user of a passage as a public way, street or 
 alley will raise a presumption of dedication, and there are 
 other methods of inferring such an intent — as where the 
 former owner of the highway has sold building lots abutting 
 upon lands used as a way — referring would-be purchasers of 
 
 '« Holdane V. Cold Spring, 21 N. " Haynes v. Thomas, 7 Ind. 38; 
 
 Y. 474. Price v. Thompson, 48 Mo. 361. 
 
EASEMENTS AND SERVITUDES. 43 1 
 
 STicli building lots to a map whereon the location of the way 
 was traced to represent a street, by statements made to either 
 actual or prospective purchasers, and doubtless in other ways 
 that would evidence an intent to give an easement to the 
 public.'" 
 
 d. Effect of platting. When the owner of property which 
 is within the limits of an incorporated city or town makes 
 and records a map of such property, by which he subdivides 
 the same into blocks and lots bounded by streets which are 
 continuations of other streets already laid out by the city or 
 town, and sells and conveys the lots abutting upon those 
 streets, he thereby dedicates to the public the streets so laid 
 out by him as prolongations of other streets, as well as the 
 other streets which are laid out on such map intersecting and 
 connecting the same; and if upon such map or plan, he has 
 designated a space or block as a public park, such space or 
 block is as fully dedicated to public use as are the streets 
 delineated thereon. The purchasers of such lots have not 
 merely an easement in the streets upon which the lots abut, 
 but all of the streets are set apart for the purpose of enabling 
 such purchasers to have reciprocal intercourse with the 
 public outside of the subdivided tract, and are thus them- 
 selves dedicated to the entire public for all purposes to which 
 streets can properly be applied. The same principles which 
 are applicable to the dedication of public streets apply to the 
 dedication of a public park or square. All dedications for 
 public use are to be considered with reference to the purpose 
 of which the dedication is made, or the use to which the 
 property dedicated may be applied and that purpose may be 
 ascertained by the dedication the owner has affixed to the 
 land upon the map, whether it be a street, a school lot, or a 
 public park. The setting apart of a public park upon such 
 map is for the convenience and enjoyment of the inhabitants 
 of the place, and, as it enhances the value of the private 
 property fronting thereon, so the owner who has dedicated 
 it is presumed to have received, in the increased prices for 
 
 '"Reyes & Crawford v. Tait, 19 Harding v. Jasper, 14 Cal. 642; 
 
 la. 123 ; Marcy v. Taylor, 19 111. 634; Lownsdale v. Portland, i Ore. 397 ; 
 
 Lade v. Shepard, 2 Strange, 1004; Gwynn v. Homan, 15 Ind. 201 ; An- 
 
 State V. Atherton, 16 N. H. 293 ; gel on Highw. sec. 143. 
 
432 REAL PROPERTY. 
 
 which that property was sold, the compensation for its sur- 
 render to the public as a public park. The word "park" 
 written upon a block of land designated upon a map, is as 
 significant of dedication, and of the use to which the land is 
 dedicated, as is the word "street" written upon such map. 
 The word carries with itself the idea of an open or inclosed 
 tract of land for the comfort and enjoyment of the inhabi- 
 tants of the city or town in which it is located, and is so de- 
 fined by lexicographers. 
 
 It is the first principle of platting, that the one who plats 
 must be the owner in fee of the land platted. Says Angell 
 on Highways, sec. 132; "Dedication is an appropriation 
 of land to some public use, made by the owner of the 
 fee;" and in sec. 134: "A primary condition of every valid 
 dedication is that it shall be made by the owner of the fee. ' ' 
 Herman on Estoppel, sec. 1143, says: "A primary condition 
 of every valid dedication is that it shall be made by the 
 owner of the fee, or of an estate therein. ' ' In Lee v. Lake, 
 14 Mich. 12, Judge Cooley said: "The plat put in evidence 
 was made by Brooks and Crane at a time when they do not 
 appear to have had any interest in the land, and if the execu- 
 tion (of the plat) had been in all respects in due form it could 
 not have had the effect which the statute gives to plats exe- 
 cuted and acknowledged under its provisions. The statute 
 then in force provided for the making, acknowledging and 
 recording of town plats by the proprietors, and it is impos- 
 sible to give the peculiar statutory effect of a present con- 
 veyance to a plat made by persons who at that time had no 
 title to convey, even though they may have afterwards be- 
 come the owners. And as the Healing Act of 1850 was con- 
 fined in its scope to imperfect acknowledgments, it could not 
 give effect to a plat which no acknowledgment could have 
 made effectual at the time it was made. ' ' This decision was 
 concurred in by Judges Christiancy and Campbell. 
 
 The case of Hoole v. Atty.-Gen., 22 Ala. 190, is considered a 
 leading case upon this subject, and therein the court held 
 not only that it must be the owner of the fee who could make 
 a lawful dedication which the State even could take advant- 
 age of, but that if the land, at the time of the attempted 
 
EASEMENTS AND SERVITUDES. 433 
 
 dedication, was covered by a mortgage, the mortgagor could 
 laot dedicate without the acquiescence of the mortgagee. 
 
 Dedication is an ultimate fact dependent upon the establish, 
 ment of other facts, and it is to be found from the evidence 
 presented to the court." It results from the acts of the 
 owner of the land, coupled with the intent with which he 
 does those acts. It may be expressed and completed by a 
 single act, as when the land is dedicated by deed ; or it may 
 be implied from a series of acts, as when an owner subdi- 
 vides a tract of land into blocks and streets and causes a map 
 of such subdivisions to be recorded and sells the several divi- 
 sions which front upon those streets. Whenever the dedi- 
 cation is complete, the property thereby becomes public 
 property, and the owner loses all control over it, or right to 
 its use. Even though the acceptance presumed from an ex- 
 pressed dedication may not impose upon the public all the 
 obligations that an express acceptance would impose, yet 
 the owner is as much concluded by his dedication in the one 
 case as in the other. If the dedication is complete by his act 
 whether express or implied, it is thereafter irrevocable by 
 him, and the effect of such dedication cannot be qualified by 
 any act or declaration thereafter made on his part. The 
 property dedicated has become public property, impressed 
 with the use for which it was dedicated, and neither can the 
 public divert it from that use nor can it be lost by adverse 
 possession. Nor is the effect of such a dedication impaired 
 by any delay in the use of the land for which it was set apart. 
 Such failure to make use of the land does not authorize the 
 owner to resume possession. The public can thereafter 
 appropriate the land to the use for which it was dedicated, 
 whenever convenience or necessity may suggest. 
 
 e. A distinction noted. A distinction is to be observed be- 
 tween actual dedication and an offer to dedicate. In the 
 latter case there must be an acceptance on behalf of the pub- 
 lic before the dedication is complete, and the owner may at 
 any time before such acceptance revoke the offer, while in 
 the former case the acceptance will be presumed from the 
 benefit arising from the dedication. The acceptance of an 
 offer to dedicate may, moreover, be formal, as by resolution 
 
 8' Harding v. Jasper, 14 Cal. 648. V 
 
 28 
 
434 REAL PROPERTY. 
 
 on the part of the city, or it may be implied, as by user or 
 adaptation for use, as in the improvement of the streets. 
 Merely recording a map of the subdivided tract, or simply 
 designating the streets and blocks by stakes or monuments 
 upon the ground, would constitute no more than an offer to 
 dedicate. Whether the owner, by making sales according to 
 such map or designation, has made the offer with reference 
 to other streets than those by which the lots sold are bounded, 
 is a fact that the court must determine from the circumstances 
 of each case, such as the number of sales, their proximity to 
 the street claimed to have been dedicated, the use to which 
 the land has been put, and the means by which, or the ex- 
 tent to which, the streets have been brought into connection 
 with other streets or highways. The owner, after selling 
 some of the lots according to such map, might either with the 
 consent of the purchasers, or if he himself should re-purchase 
 all of the lots so sold, withdraw such offer at any time before 
 the public had acquired any interest 'in the streets, either 
 from formal acceptance or by actual user.'^ In San Leandro 
 V. Le Breton, 72 Cal. 170, it was held that the sale of the 
 blocks opposite the space designated on the map as "Court 
 Square," with other lots and blocks upon the map, effected 
 such a dedication of that space that it could not afterwards be 
 revoked by the owner. 
 
 In Irwin v. Dixion, 50 U. S. (9 How. 10); 13 L. ed. 25, the 
 court say: "From the very nature of wharf property, like- 
 wise the access must be kept open for convenience of the 
 owner and his customers ; but no one ever supposed that the 
 property thereby became public, instead of private. * * * 
 No length of time during which property is so used can de- 
 prive an owner of his title. * * * While anyone might 
 be allowed to travel over this space from the warehouse to 
 the wharf and river when convenient and not interfering 
 with the owner, it was not because it has been intended to 
 give to the public a right of way over these premises, but 
 because he himself intended to travel over it, and while so 
 doing and so leaving it open, would not be captious in pre- 
 venting others from travelling there. ' ' 
 
 «' Rowan v. Portland, 8 B. Mon. 236. 
 
EASEMENTS AND SERVITUDES. 435 
 
 The same principle is laid down in the note to Dovaston v. 
 Payne, 2 Smith, Lead, Cas. Hare & W.'s note, p. I55> wherein 
 it is said : "If, therefore, a person opens and uses space upon 
 his own land as a road for his own convenience and purposes, 
 the mere fact that the community are allowed to make use of 
 it in common with him for even twenty or thirty years, will 
 not constitute a dedication of it to the public use, especially 
 in the face of declarations on his part inconsistent with an 
 assent to such dedication. ' ' 
 
 f. Comjnon law dedications. By the rules applicable to what 
 are known as ' ' common law dedications, ' ' lands or easements 
 therein may be dedicated to the public, so as to become effec- 
 tually vested, without the aid of any conveyance. It may be 
 done in writing, by parol, by acts in pais, or even by acquies- 
 cence in the use of the easement by the public. All that is 
 necessary is that the intention to dedicate be properly and 
 clearly manifested, and that there be an acceptance by or on 
 behalf of the public. When that is done the right or ease- 
 ment becomes instantly vested in the public. But a dedica- 
 tion of this character, to be effectual, must be to the public. '* 
 At the common law they are confined to the purpose of high- 
 ways, but in this country the doctrine has a wider applica- 
 tion, and its limits have been judicially dqfined as extending 
 to public squares, common lots, burying grounds, school lots, 
 and lots for school purposes, and pious and charitable uses 
 generally, and in many cases where the use was either ex- 
 pressly, or from the necessity of the case limited to a small por- 
 tion of the public." No decision can be found, where a dedi- 
 cation of this character, made for any other purpose than one 
 strictly public, has been sustained. Railroad companies, 
 though engaged in the public employment of common car- 
 riers, are essentially private corporations ; and, while the lands 
 comprising their rights of way are acquired for a public pur- 
 pose, the ownership of such lands, when acquired, is private. 
 In no proper sense can such corporations be regarded as consti- 
 tuting the public or a portion of the .public to which common 
 law dedications of land can be made. Donations or gifts of 
 land can undoubtedly be made to them where the donor sees 
 
 "^Washb. Easem. 205. " 5 Am. & Eng. Encyc. Law, 416, 
 
 and authorities cited in notes. 
 
436 REAL PROPERTY. 
 
 fit to effectuate his gift by some one of the ordinary modes 
 of conveyance, and the donation can also be made by plat, 
 where the donor sees fit to mark or note on his plat that the 
 land which he wishes to give to such corporation is donated 
 or granted to it. There is no authority in the law for hold- 
 ing that a railroad corporation may acquire title to or an 
 easement in land by common law dedication. 
 
 § 194. Rule of strict necessity examined. It was said in the 
 opinion in Buss v. Dyer, 125 Mass. 287, that if an easement 
 existed by implication it was because it was absolutely neces- 
 sary to the enjoyment of the estate granted. In New York 
 the rule of strict necessity is applied to implied reservations, 
 but not to implied grants. In the recent case of Wells v. Gar- 
 btitt, 132 N. Y. 430, it was said: "As a grantor cannot dero- 
 gate from his own grant, while a grantee may take the lan- 
 guage of the deed, most strongly in his favor, the law will 
 imply an easement in favor of a grantee more readily than it 
 will in favor of a grantor. ' ' This distinction between im- 
 plied reservations and implied grants, there pointed out, is 
 well founded in the law, although in some of the reported 
 cases it has apparently been overlooked. 
 
 In Johnson v. Jordan, 2 Met. (Mass.) 234; 37 Am. Dec. 85, Chief 
 Justice Shaw, after stating the rules applicable to the con- 
 struction of a grant, said : " If a man owning two tenements 
 has built a house on one and annexed thereto a drain through 
 the other, if he sell and convey the house, with the appurte- 
 nances, such a drain may be construed to be de facto annexed 
 as an appurtenance, and pass with it, because such a con- 
 struction would be most beneficial to the grantee ; whereas, 
 if he were to sell and convey the lower tenement, still own- 
 ing the upper, it might reasonably be considered that, as the 
 right of drainage was not reserved in terms, it could not be 
 claimed by the grantor. The grantee of the lower tenement, 
 taking the language of the deed most strongly in his own 
 favor, and against the grantor, might reasonably claim to 
 hold his granted estate free of the incumbrance."" 
 
 '* See also Wheeldon v. Burrows, Easem. (4th ed.), 105, 106; Burr v. 
 L. R. 12 Ch. Div. 31, 49; Washb. Mills, 21 Wend. 290. 
 
EASEMENTS AND SERVITUDES. 437 
 
 In Johnson v. Jordan, supra, the conveyances of the domi- 
 nant and servient tenements were simultaneous, and the right 
 to the easement was denied upon a construction given to the 
 deeds and the circumstances attending their delivery. 
 
 In Buss V. Dyer, 125 Mass. 287, the chimney in which an 
 easement was claimed had worn out, and had been taken 
 down, and the jury found as a fact that the plaintiff at a rea- 
 sonable cost could have built one on his own property ; and 
 the facts of the case amply justify the decision without refer- 
 ence to the rule of strict necessity. Undoubtedly, an ease- 
 ment to pass by implication must be necessary to the enjoy- 
 ment of the estate granted, but the necessity required is a 
 reasonable, not an absolute, one. Mere convenience would 
 not be sufficient to create or convey the right. The privilege 
 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. 
 
 In Curtiss v. Ayrault, 47 N. Y. 73, the essential question of 
 fact there involved was stated to be whether the grantor of 
 the plaintiff, in arriving at the price he would pay, con- 
 sidered, and had a right to consider, as an element of value 
 of the land he was buying, the ditch across the tract giving 
 the supply of water through it." Root v. Wadkams, 107 N. Y. 
 384, a case frequently cited, was distinguished by the court in 
 its facts from Lampman v. Milks, 21 N. Y. 505, and kindred 
 cases. Nothing must be added to what was there said on 
 this subject. 
 
 § 195. Effect of dividing estates subject to. All the authori- 
 ties concur in holding that the rule of law which creates an 
 easement on the severance of two tenements or heritages, by 
 the sale of one of them, is confined to cases where an appa- 
 rent sign of servitude exists on the part of one of them in 
 favor of the other ; or as expressed in some of the authori- 
 ties, where the marks of the burden are open and visible. 
 Unless therefore the servitude be open and visible, or at least 
 unless there be some apparent mark or sign which would in- 
 dicate its existence to one reasonably familiar with the sub- 
 
 '" See also Simmons v. Cloonan, 11 R. I. 259; Washb. Easem. (4th 
 81 N. Y. 557-566 ; O'Rorke v. Smith, ed.), no, in. 
 
438 REAL PROPERTY. 
 
 ject, on an inspection of the premises, the rule is without 
 application. " 
 
 Under the Civil Code of California, sec. 1104, "a transfer 
 of real property passes all easements attached thereto, and 
 creates in favor thereof an easement to use other real prop- 
 erty of the person whose estate is transferred in the same 
 manner and to the same extent as such property was obvi- 
 ously and permanently used by the person whose estate is 
 transferred, for the benefit thereof, at the time when the 
 transfer was agreed upon or completed. ' ' It follows that if 
 the owner of lands divides his property into two parts, and 
 then conveys one of them, he is taken by implication to in- 
 clude in his grant all such easements in the remaining part 
 as are necessary for the reasonable enjoyment of the part 
 conveyed, in the form which it assumes at the time he trans- 
 ferred it." 
 
 § 196. Easements and servitudes of way. a. The term 
 right of way defined. This phrase imports a right to pass over 
 another's land more or less frequently according to the nature 
 of the use to be made of the easement ; and how frequently 
 is immaterial provided it occurs as often as the claimant has 
 occasion to pass. It must not have been interrupted by the 
 owner of the land across which the right is exercised, nor 
 voluntarily abandoned by the claimant. Mere intermission 
 is not interruption and the continuity of the enjoyment may 
 be shown by circumstantial evidence. "' A right of way is an 
 incorporeal hereditament of that class of easements in which 
 a particular person, or description of persons have an inter- 
 est, although some other person is the owner of the tenement 
 or land.'" 
 
 The term when applied to railways is construed as refer- 
 ring to the easement which the railroad company has 
 obtained in the lands of others through the statutory pro- 
 cess of condemnation or by direct purchase." It will also 
 include by necessary implication all lands acquired for side 
 
 " Butterworth v. Crawford, 46 N. '» Wild v. Deig, 43 Ind. 458. 
 
 Y. 349. " Williams v. Western Union R. 
 
 «»Cave V. Crafts, 53 Cal. 135. Co., 50 Wis. 76. 
 
 ''Bodlish V. Bodfish, 105 Mass. 
 319- 
 
EASEMENTS AND SERVITUDES. 439 
 
 tracks and turnouts." And it has been held to refer to the 
 mere intangible right, so frequently exercised by the general 
 public of crossing the railroad tracks at certain localities." 
 
 A right of way may exist by prescription, grant, usage or 
 necessity." But it must be remembered that all prescriptive 
 rights are stricti juris. A right of way for one purpose does 
 not necessarily include a right of way for another purpose. 
 The extent of the right must depend largely upon the cir- 
 cumstances surrounding each particular case." So a right of 
 way by necessity will terminate with the necessity." Again, 
 it is of prime importance to remember that a right of way 
 appurtenant to land is regarded, as matter of law, as appur- 
 tenant to all and every part of the land, and that upon a divi- 
 sion of land, to which a right of way is attached, a right of 
 way will exist in the owner of each of the parts, into which 
 it is divided." 
 
 A right of way established by grant is not lost by mere 
 non user. Unless the non user is a consequence of some- 
 thing which prevents the user, and is utterly inconsistent 
 with its enjoyment, it continues to exist, although more than 
 twenty years have elapsed." 
 
 What is a reasonable use of a way, where the purposes are 
 not defined in the grant, is a question of fact, to be deter- 
 mined upon evidence. A grant without restriction is under- 
 stood to be general for all purposes."' If a passageway 
 granted by deed has been used in a certain mode from the 
 time of making the deed to the time of an alleged trespass, 
 without any objection being made, this evidence is admis- 
 sible to show what was intended by the grant."" 
 
 The declarations of a deceased former owner of land, made 
 during his ownership, and tending to prove the existence of 
 
 ^"^ Pafaff V. Terre Haute R. R.Co., "Watson v. Bioren, i Serg. & R. 
 
 107 Ind. 144. 229, 
 
 '^Keener v. Union Pacific R. R. '"Barnes v. Lloyd, 112 Mass. 224. 
 
 Co., 31 Fed. Rep. 128. "' Rowell v. Doggett, 143 Mass. 
 
 '* Derrickson v. Springer, 5 Harr. 487 (1887) ; Washburn, Easem. 254, 
 
 21. 282. 
 
 ''Ballard v. Dyson, i Taunt. 279. ""'Choate v. Burnham, 7 Pick. 
 
 '* I Barb. Ch. 354 ; Pierce v. Sel- (Mass), 274. 
 lick, 18 Conn. 321. 
 
440 REAL PROPERTY. 
 
 a right of way over it, are competent evidence against the 
 present owner."" These are admitted upon the ground that 
 they are against the owner's interests and in disparagement 
 of his title. 
 
 The use of a way for more than twenty years over an acad- 
 emy common, with occasional trifling repairs of the way, 
 does not, as matter of law, establish a right by prescription.'" 
 And where, after such twenty years' user', the owner built a 
 fence across the way, leaving a gate for the sole convenience 
 of the pupils, and informed the person so using the way that 
 the act was expressly to prevent such use by him, and no right 
 of way was asserted in reply, it was held that the facts war- 
 ranted a finding that such user had been permissive and not 
 adverse."' 
 
 There is a distinction between a servitude or easement im- 
 posed upon land, and a covenant real running with the land, 
 but this distinction has not always been observed by convey- 
 ancers and judges.'" An easement of a right of way is not 
 presumed to be personal, where it can fairly be construed to 
 be appurtenant to some other estate. '"'' When there is in the 
 deed no declaration of the intention of the parties in regard 
 to the nature of the way, it will be determined with relation 
 to other estates of the grantor, or its want of such relations. 
 The " terminus ad quern " is of special significance.'"' 
 
 Various cases have arisen as to the right of the owner of 
 land subject to an easement, in the nature of a right of way, 
 to build or project structures over the way, and these cases 
 have all been decided upon the same general principles, viz : 
 That a man who owns land subject to an easement has the 
 right to use land in any way which is not inconsistent with 
 the easement and the extent and scope of the easement 
 claimed must be determined by the true construction of the 
 
 "" Blake v. Everett, i Allen 600 ; Woodrufif v. Trenton Water 
 
 (Mass.), 248. Co., 10 N. J. Eq. 489. 
 
 '"' Burnham v. McQuesten, 48 N. '"' Washb. Easem. 29, 161 ; Louis- 
 
 H. 446. villa & N. R. R. Co. v. Koelle, 104 
 
 ""Id. 111. 455; Dennis v. Wilson, 107 
 
 '"■'West Virginia Trans. Co. v. Mass. 591; Smith v. Porter, 10 
 
 Ohio River P- L. Co., 22 W V. Grey (Mass.), 66. 
 
 ""Garrison v. Rudd, 19 111. 558. 
 
EASEMENTS AND SERVITUDES. 44^ 
 
 grant or reservation by which it is created, aided by any cir- 
 cumstance, extrinsic or otherwise, which can cast light on 
 the transaction or has a tendency to show the intendment of 
 the parties at the time the easement was created.'" 
 
 b. How acquired. A right of way over another's land may 
 be acquired : 
 
 1. By grant from the owner of the soil. 
 
 2. By long continued use or prescription. 
 
 3. By actual necessity. 
 
 To gain a permanent right by grant, it must have been 
 created by deed, but it conveys no right to the soil, rocks, or 
 other things within the bounds of the way. 
 
 Chancellor Kent generalizes upon this subject with un- 
 rivalled felicity. At page 551 of the loth edition I find the 
 following : ' ' This incorporeal hereditament is a right of pri- 
 vate passage over another man's ground. It may arise 
 either by grant of the owner of the soil, or by prescription, 
 which supposes a grant, or from necessity. If it be a free- 
 hold right, it must be created by deed, though it be only an 
 easement upon the land of another, and not an interest in 
 the land itself. A right of way ex vi termini imports a right 
 of passing in a particular line, and not the right to vary it at 
 pleasure, and go in different directions. This would be an 
 inconvenience to the owner of the land charged with the 
 easement, and an abuse of the right. It is likewise a princi- 
 ple of law, that nothing passes as incident to the grant of an 
 easement, but what is requisite to the fair enjoyment of the 
 privilege. If it be a right of way in gross, or a mere per- 
 sonal right, it cannot be assigned to any other person, nor 
 transmitted by descent. It dies with the person, and it is so 
 exclusively personal, that the owner of the right cannot take 
 another person in company with him. But when a right of 
 way is appendant or annexed to an estate, it may pass by 
 assignment when the land is sold to which it is appurtenant. 
 A right of way may arise from necessity in several respects. 
 Thus, if a man sells land to another, which is wholly sur- 
 rounded by his own land, in this case the purchaser is en- 
 titled to a right of way over the other's ground to arrive at 
 
 ""Atkins V. Boardman, 2 Met. 132 Mass. 235; Brooks v. Reynolds, 
 (Mass.)i 457; Garrish v. Shattuck, 106 Mass. 31. 
 
442 ^ REAL PROPERTY. 
 
 his own land. The way is a necessary incident to the grant, 
 and without which the grant would be useless. ' ' 
 
 c. Rule as to street railways. Where one owns to the center 
 of a street in a city, it has been held that the laying of the 
 rails for a horse railroad imposed an additional burden upon 
 the land forming the street, for which the owner was entitled 
 to compensation '"' Although relief was denied a plaintiff 
 who did not own the fee, and who desired to enjoin the use 
 of the street by a horse railroad company, it was denied upon 
 the ground that there was no taking of the property of the 
 plaintiff by the company, and that being authorized by the 
 Legislature the plaintiff could not complain. '"' The plaintiff 
 sought in that action to recover damages for inconvenience 
 of access to his adjoining lands. In the Craig case, supra, 
 the case was decided upon the idea that there was an exclu- 
 sive occupation of the street, which amounted to an addi- 
 tional burden upon the land. The cases upon the subject of 
 railroads in streets are cited and commented upon in Fobes v. 
 Rome, W. &■ O. R. Co., 121 N. Y. 505 ; 8 L. R. A. 453; Kane v. 
 New York Elev. R. Co., 125 N. Y. 164; 11 L. R. A. 640; and 
 Reining v. New York, L. & IV. R. Co., 128 N. Y. 157; 14 L. 
 R. A. 133, and they show that the primary or fundamental 
 idea of a highway is that it is a place for uninterrupted pass- 
 age by men, animals, or vehicles, and a place by which to 
 afford light, air, and access to the property of abutting own- 
 ers, who, in this respect, enjoy a greater interest in the street 
 than the general public, even though their title to the land 
 stops with the exterior line of the street. It is not a place 
 which can be permanently and exclusively appropriated to 
 the use of any person or corporation, no matter what the 
 business or object of the latter might be. It was because the 
 highway was permanently, and, to some extent, exclusively, 
 appropriated by the elevated railroads, that it was held their 
 erection, without the consent of the abutting owners, was 
 illegal."' 
 
 The great weight of opinion thus far expressed by courts 
 
 '»» Craig V. Rochester City & B. "» Story v. New York Elev. R. 
 R. Co., 39 N. Y. 404. Co. 90 N. Y. 122; 43 Am. Rep. 
 
 "9 Kellinger V. Forty-Second St. 146. 
 and G. Street Ferry R. Co., 50 N. 
 Y. 206. 
 
EASEMENTS AND SERVITUDES. 443 
 
 is that Street railways, with cars propelled by horse-power, 
 are not to be regarded as imposing a new servitude which 
 will entitle the owner of the fee of the highway to additional 
 compensation, but that steam railroads are to be so regarded. 
 It is considered that the latter use is so far different in its 
 nature, that the law ought to take notice that it could not 
 have been within the contemplation of the parties that the 
 laying out of an ordinary highway should also include such 
 a mode of traveling. While it is always recognized that the 
 proper and contemplated use of the highway is not to be 
 deemed limited to such vehicles as are in use at the time, it 
 is considered to be too great an extension of the easement 
 acquired by the public to hold that it embraces its use for a 
 steam railway. At this point the line has been drawn by a 
 great weight of judicial decision.'" 
 
 The use of a highway for the purpose of communicating 
 information by electricity, by means of posts and wires 
 erected along its course, may, in a certain sense, be said to 
 be a use for a purpose similar to that for which highways are 
 established ; namely, the increase of communication between 
 persons at different points. But this is a somewhat remote 
 analogy, and the more direct purpose of establishing high- 
 ways is to enable persons and teams to pass more easily 
 from one place to another. The analogy between a steam 
 railway and conveyance by ordinary teams is much more 
 direct. 
 
 The multiplication of telegraph and telephone posts and 
 wires in thickly settled places within the past few years 
 makes the question at issue one of great importance. There 
 can be no doubt that in many instances an actual injury is 
 done to the remaining or abutting land along a highway or 
 
 '■' See Williams V. N. Y. C. Rail- & Western Railroad, 40 Wis. 645 ; 
 
 road, 16 N. Y. 97 ; Wager v. Troy Kucheman v. Chicago, Clinton & 
 
 Union Railroad, 25 N. Y. 526, 535; Dubuque Railway, 46 Iowa, 366; 
 
 Jersey City & Bergen Railroad v. Kaiser v. St. Paul, Stillwater & 
 
 Jersey City & Hoboken Horse Rail- Taylor's Falls Railroad, 22 Minn, 
 
 road, 5 C. E. Green, 61 ; Imlay v. 149; Southern Pacific Railroad v. 
 
 Union Branch Railroad, 26 Conn. Reed, 41 Cal. 256; Cooley's Const. 
 
 249,255; Grand Rapids & Indiana Lim. 546, 550; 2 Dill. Mun. Corp. 
 
 Railroad v. Heisel, 38 Mich. 62 ; sec. 722, 725. 
 Sherman v. Milwaukee, Lake Shore 
 
444 REAL PROPERTY. 
 
 street by the erection of such posts and wires ; and the ex- 
 tent to which this may be carried in the future cannot easily 
 be foreseen. When a telegraph line consisted of only a 
 single row of small posts with a few wires, the matter was of 
 less importance. But common observation shows that now 
 the posts are large and numerous, fitted with cross beams 
 adapted for layer after layer of almost countless wires, and 
 the establishment of the different kinds of electrical lines 
 involves to some extent a destruction of trees along the high- 
 ways or streets, an occupation of the land, a filling of the 
 air, an interference with access to or escape from buildings, 
 an increased difficulty in putting out fires, an obstruction of 
 the view, a presentation of unsightly objects to the eye, and 
 a creation of unpleasant noises in the wind. The actual 
 injury thus done to adjoining property may certainly be 
 quite serious ; and if, when land is taken or granted for a 
 highway, it is understood that such use may also be made of 
 it, there can be no doubt that in many instances a very sub- 
 stantial increase of compensation would justly be granted to 
 the owner ; because, in assessing damages when land is taken 
 for a highway, it is not merely a question what the land 
 actually taken is worth, or what will be the extent of the 
 injury from the deprivation of its use, but the owner is also 
 entitled to compensation for the incidental injury to his 
 remaining land, which is to be estimated with reference to 
 the use for which the land taken from him is to be appropri- 
 ated, and such damages are to be allowed to him as will fairly 
 compensate him in view of the purposes of the appropria- 
 tion. "= 
 
 Heretofore the consequential injury to the remaining land 
 of the owner, arising from the possibility of a future use of 
 the highway for telegraph and telephone wires, has never 
 been considered as a proper element of damages. No case is 
 cited or known where it has been held, or even contended by 
 counsel, that damages should be included for such possible 
 use. 
 
 d. Of ways of necessity. This right arises from presump- 
 tion of law that the parties did not intend that land to which 
 
 '"Walker V. Old Colony & New- Johnson v. Boston, 130 Mass. 452, 
 port Railway, 103 Mass. 10, 14; 454. 
 
EASEMENTS AND SERVITUDES. 445 
 
 the owner had no access should be retained or conveyed. It 
 arises in favor of a parcel of land when the same is sur- 
 rounded by other land of the grantor, or partly by his land 
 and that of a stranger.'" The rule allowing ways of neces- 
 sity contemplates but one mode of access.'" And if the 
 party acquires a new right of way by a suit in partition 
 or otherwise, the former right of way by necessity is extin- 
 guished."* It is extinguished whenever it ceases to be a way 
 of necessity and becomes one of convenience.'" 
 
 In McDonalds. Lindall, 3 Rawle (Pa.), 492, it is said: "The 
 right of way is always of strict necessity, and this necessity 
 must not be created by the party claiming the right of way. 
 It never exists when a party can get to his property through 
 his own land. That the way through his own land is too 
 steep or too narrow does not alter the case. ' ' 
 
 A right of way may arise from necessity in several in- 
 stances, and such a right may inure to a grantor even in 
 cases where he has conveyed with full covenants of war- 
 ranty.'" 
 
 Chancellor Kent says:'" "The weight of authority is, that 
 the grantor has a right of way to his remaining land, in case 
 of necessity, when he cannot otherwise approach his land. 
 The law presumes a right of way reserved, or rather gives a 
 new way, from the necessity of the case, and the new way 
 ceases with the necessity for it. ' ' 
 
 The owner of premises so circumstanced, having no other 
 means of access or egress, has the right of a way of necessity 
 so long as his lands remain in a state of isolation. When, 
 however, by the opening of a highway or the purchase of 
 other land abutting on a highway the owner can reach all 
 parts of his property by passing over his own land, this way 
 
 '"'Taylor v. Warnaky, 55 Cal. Abbott v. Stewartson, 47 N. H. 
 
 350; Trask v. Patterson, 29 Me. 230. 
 
 499; Bass V. Edwards, 126 Mass. "* Pierce v. Shellack, 18 Conn. 
 
 445; Tracy V. Watheton, 35 Vt. 52; 321; Viall v. Carpenter, 14 Grey, 
 
 Marshall v. Trumbull, 28 Conn. 126. 
 
 183; Lore V. Stiles, 25 N. J. Eq. '" Smyles v. Hastings, 22 N. Y. 
 
 381. 217; Kimball v. Cochecho R. R. 
 
 "^ Kings Co. F. Ins. Co. v. Co. N. H. 448. 
 
 Stevens, loi N. Y. 411. "'Cushing, C. J., in Pingree v. 
 
 "^ Carey v. Rae, 58 Cal. 159; McDuffie, 56 N. H. 306. 
 
446 REAL PROPERTY. 
 
 of necessity over the lands of others terminates, and the 
 mere matter of convenience is neither controlling nor im- 
 portant.'" 
 
 A railroad location is, generally speaking, exclusive, so far 
 as the public are concerned. Of course emergencies arise by 
 which all exclusive right is abrogated, as where the immi- 
 nency of flood or fire make it imperatively necessary that the 
 company's land should be invaded. No enumeration will be 
 attempted of the occasions upon which it might be admissi- 
 ble for the general public to pass over or along the railroad 
 location, but the peculiar circumstances of each case will dis- 
 close the degree of necessity."" 
 
 What is necessary for such reasonable and proper enjoy- 
 ment of the way granted, and the limitations thereby im- 
 posed on the use of the land by the proprietor, depends upon 
 the terms of the grant, the purposes for which it was made, 
 the nature and situation of the property subject to the ease- 
 ment, and the manner in which it has been used and occu- 
 pied. 
 
 As said by Marshall, C. J., in Maxwell v. McAfee, 9 B. Mon. 
 21: " Notwithstanding such a grant, there remains with the 
 grantor the right of full dominion and use of the land, ex- 
 cept so far as a limitation to his right is essential to the fair 
 enjoyment of the right of way which he has granted. It is 
 not necessary that the grantor should expressly reserve any 
 right which he may exercise consistently with a fair enjoy- 
 ment of the grant. Such rights remain with him, because 
 they are not granted. And for the same reason, the exercise 
 of any of them cannot be complained of by the grantee, who 
 can claim no other limitation upon the rights of the grantor, 
 but such as are expressed in the grant, or necessarily implied 
 in the right of reasonable enjoyment." 
 
 In that case it was decided that ' ' the grant of a right of 
 way over or through the lands of an individual, does not 
 imply that the grantor may not erect gates at the points, 
 where the way enters and terminates." That decision 
 
 '"Pierce v. Selleck, 18 Conn. ""Metalic C. C. Co. v. Fitchburg 
 
 321 ; New York Life Ins. Co. v. R. R. Co. 109 Mass. 277. 
 Milnor, i Barb. Ch. 354 ; Abbott v. 
 Stewart's Town, 47 N. H. 228. 
 
EASEMENTS AND SERVITUDES. 447 
 
 has been approved by courts of high authority in other 
 States.'" 
 
 The court say, in Lawton v. Rivers, 2 McC. (S. C), L. 445 : 
 "It is indeed said that what is called a right of way from 
 necessity is by grant ; because where a thing is granted, the 
 law implies a grant of everything necessary to the enjoy- 
 ment of it.'" But still I think the three-fold distinction above 
 mentioned may be preserved, because it is from the necessity 
 of the thing that the law implies a grant. To establish such 
 right, nothing is required but to show the necessity. Neither 
 time nor occupation is necessary. If the necessity has ex- 
 isted but for a day, the claim is as well founded as where it 
 had existed for half a century ; and although the right may 
 never have been enjoyed, yet its existence will be co-exten- 
 sive with the necessity. But there must be an actual neces- 
 sity, and not a mere inconvenience, to entitle a person to 
 such right. One man is not required to subject himself to 
 an inconvenience, and much less to an actual loss, for the 
 accommodation of another. I do not mean to say that there 
 must be an absolute and irresistible necessity ; as inconve- 
 nience may be so great as to amount to that kind of a neces- 
 sity which the law requires, and it is difficult, and perhaps 
 impossible, to lay down with exact precision the degree of 
 inconvenience which will be required to constitute a legal 
 necessity. ' ' 
 
 e. Miscellaneous authorities on the subject. If a way is 
 granted for a particular use, it must be used for that purpose 
 alone. Thus, where one was granted a way to haul wood 
 over it, it was held that stone could not be hauled. Such use 
 would be an inconvenience to the owner of the land charged 
 with the easement, and an abuse of the right. As was well 
 put by Judge Bell, '" "The grantee of a way is limited to 
 use his way for the purposes and in the manner specified in 
 
 "'Bean v. Coleman, 44 N. H. 323; Saunder's Case, 5 Co. 12; 
 
 539; Garland v. Farber, 47 N. H. Howton v. Frearson, 8 Durnf. & E. 
 
 301 ; Hoopes V. Alderson, 22 Iowa, (8 T. R.), 50 ; s. c. 4 Rev. Rep. 581 ; 
 
 161 ; Bakeman v. Talbot, 31 N. Y. 5 Jacob's Law Diet. 465. 
 366, 370, 371; Huson v. Young, 4 '^s French v. Martin, 24 N. H. 
 
 Lans. 63. 440, 449. 
 
 ™ Pomfrit V. Ricroft, i Saund. 
 
448 REAL PROPERTY. 
 
 his grant. He cannot go out of his way, nor use it to go to 
 any other place than that specified, if the use in thts respect 
 is restricted. 
 
 The leading case on this subject is Atkins v. Bordman, 2 
 Met. (Mass.), 457, in which the whole subject of rights of way 
 and their limitations was ably examined by Chief Justice 
 Shaw, of Massachusetts. We quote a few words from his 
 elaborate opinion : ' ' An easement of way consists in the 
 right to use the surface of the soil for the purpose of passing 
 and repassing, and the incidental right of properly fitting the 
 surface for the use. But the owner of the soil has all the 
 rights and benefits of the ownership, consistent with such 
 easement. All which the person having the easement can 
 lawfully claim is the use of the surface for passing and repass- 
 ing, with a right to enter upon and prepare it for that use by 
 levelling, gravelling, ploughing, or paving, according to the 
 nature of the way granted or reserved ; that is, for a foot 
 way, a horse way, or a way for all teams and carriages. If 
 the way is not bounded or limited, or there be no one in ex- 
 istence, the grant of a way would be, in point of width and 
 height, such as is reasonably necessary and convenient for 
 the purposes for which it is granted. If a foot way, it shall 
 be high and wide enough for persons to pass with such things 
 as foot passengers usually carry. If for teams and car- 
 riages, it shall be sufficient to admit carriages of the largest 
 size, or loads of hay and other vehicles usually moved by 
 teams." 
 
 It was long ago held, in a very able opinion by Chief Jus- 
 tice Shaw, that, where a way is established by adverse use 
 alone, a jury might be justified in finding that the way ex- 
 tended beyond the part wrought and actually used for travel, 
 and might include land which by reason of its formation or 
 the existence of obstacles could not have been used for 
 travel.'" 
 
 Still, we do not doubt that it is generally true that when 
 an easement of any kind is obtained by adverse use alone, 
 its extent must be measured by its use. But this rule does 
 not apply to ways which have commenced under an actual 
 
 ''^■'Sprague v. Waite, 17 Pick. (Mass), 309. 
 
EASEMENTS AND SERVITUDES. 449 
 
 and a recorded location which clearly and distinctly defines 
 their width, though the proceedings may not have been in all 
 particulars strictly conformable to law. In such cases, the 
 use is presumed to be co-extensive with the location, pre- 
 cisely as possession under an invalid deed is presumed to be 
 co-extensive with the land purporting to have been con- 
 veyed by it. This result is sometimes reached by the pre- 
 sumption of a dedication, and sometimes by the presumption 
 that the proceedings were all regular. 
 
 In Maine the latter mode has been adopted. Thus, in 
 Gibbs V. Larrabee, 37 Me. 506, where the records of the town 
 failed to show a compliance with all the requirements of the 
 law, still, inasmuch as the location had been acquiesced in 
 for a long series of years, the court held that an inference 
 might fairly be drawn that all the requirements of the stat- 
 ute had in fact been complied with, and sustained the loca- 
 tion on that ground. The point to be particularly noticed in 
 this decision is the fact it was the way originally located that 
 was sustained, not such a way merely as had been used. It 
 is the location de facto that by the lapse of time ripens into a 
 location de jure. To rest such a result on the presumption of 
 regularity is to rest it on a fiction. 
 
 It apears from the adjudications: i. That the conveyance 
 of a right of way gives to the grantee not only a right to an 
 unobstructed passage at all times over defendant's lands, but 
 also such rights as are incident or necessary to the enjoy- 
 ment of such right or passage.'" 2, The owner of the way 
 where its limits are defined, has only the rights of a free 
 passage on such portions of the way as he thinks proper or 
 necessary."" 3, The owner of the fee, subject to an ease- 
 ment, may rightfully use the land for any purpose not incon- 
 sistent with the rights of the owner of the easement.'" 4, 
 The rights of the owner of the easement are paramount, to 
 the extent of the grant, to those of the owner of the soil.'" 
 
 "' Maxwell v. McAtee, 9 B. Mon. 776 ; Herrman v. Roberts, supra • 
 
 21 ; Bliss V. Greeley, 45 N. Y. 671 ; Cooley Const. Lira. 691. 
 
 Herrman V. Roberts, 119 N. Y, 37; "i' Herrman v. Roberts, supra 
 
 7 L. R. A. 226. East Tennesee V. & G. R. Co. v. 
 
 '" Herrman v. Roberts, supra. Telford, supra ; Kansas. Cent. R. 
 
 '" East Tennesee V. & G. R. Co. Co. v. Allen, 22 Kan. 285. 
 V. Telford (Tenn.), 14 S. W. Rep. 
 29 
 
450 REAL PROPERTY. 
 
 5, The owner of the soil is under no obligation to repair the 
 way, as that duty belongs to the party for whose benefit it is 
 constructed. "° 6, What may be considered a reasonable and 
 proper use by the owner of the fee, as distinguished from an 
 unreasonable and improper use, as well as what may be 
 necessary to plaintiff's beneficial use and enjoyment, are 
 questions of fact to be determined by the trial court or 
 jury."" 
 
 In Her r man v. Robert's, supra, decided in 1880, the court 
 says: "It cannot be assumed, in the absence of any provision 
 looking thereto in the grant, that the grantor intended to 
 reserve any use of the land which should limit or disturb the 
 full and unrestricted enjoyment of the easement granted. 
 The purpose contemplated by the grant was the creation of 
 an easement for the plaintiff's use and not the reservation to 
 the owner of the use of his land. Every use by the owner 
 was abandoned except such as might be made in a mode en- 
 tirely consistent with the full and undisturbed enjoyment by 
 the grantee of the easement. The idea of a joint use of the 
 land by both parties, in the sense that a use by the grantee 
 should at any time give way to a use by the grantor, is con- 
 trary to the plain meaning and intent of the grant. The use 
 of the land, says the court, for agricultural purposes, is 
 clearly inconsistent with the rights acquired by plaintiff. ' ' 
 
 Right of way cannot be transferred to a different user. 
 The right cannot be transferred for a different user and for 
 a right of way for railroad purposes without express author- 
 ity of law.'" 
 
 According to the English law, a right of way cannot strictly 
 be made the subject of an exception or a reservation, be- 
 cause, as stated by Chief Justice Tindal, in Durham & S. R. 
 Co. v. Walker, 2 Q. B. 940, 967, "it is neither parcel of the 
 thing granted, nor is it issuing out of the thing granted, the 
 former being essential to an exception and the latter to a 
 reservation." If, therefore, an easement is excepted or 
 reserved in a deed, it operates by way of a grant from the 
 
 '''' Herrman v. Roberts, supra. Herrman v. Roberts and Kansas 
 
 '='» Bakeman v. Talbot, 31 N. Y. Cent. R. Co. v. Allen, supra. 
 
 366 ; Huson v. Young, 4 Lans. 64 ; "' Lance's Appeal, 55 Pa. 16. 
 
 Prentice v. Geiger, 74 N. Y. 342 ; 
 
EASEMENTS AND SERVITUDES. 451 
 
 grantee to the grantor."' In such a state of the law, the 
 ■word "heirs" must be used to create an easement in fee. In 
 this commonwealth, however, an easement may be created 
 by way of exception or reservation."' If created by way of 
 reservation, the word "heirs" is necessary to create an ease- 
 ment in fee.'" But if created by way of exception, the word 
 "heirs" is not necessary to create an easement in fee, if the 
 grantor owned the fee at the time of the conveyance."' As 
 an exception may be created by words of reservation,"' but 
 little reliance can be placed upon the language used in deter- 
 mining whether the right is by way of exception or reserva- 
 tion. In Bean v. French, 140 Mass. 227, one Merrifield, being 
 the owner of a large tract of land, conveyed a part of it to 
 the plaintiff's predecessor in title, by a warranty deed con- 
 taining the usual covenants, and also the following clause : 
 " Reserving, however, to myself the privilege of a bridle 
 path in front of the house." This was held to be a reserva- 
 tion, and not an exception, on the ground that the effect of 
 the clause was to create a right or easement not before ex- 
 isting, and the right which Merrifield had to pass and repass 
 over any part of his estate, while he owned the whole of it, 
 was held to be not an existing right of way over that part 
 sold to the plaintiff's predecessor in title. In White v. New 
 York & N. E. R. Co., supra, where the easement was held to 
 be perpetual, the language was : ' ' Reserving the passageway 
 at grade over said railroad where now made. ' ' The defend- 
 ant had also previously taken the land by its location. In 
 deciding that the right of way was by way of exception, and 
 not by way of reservation, reliance is placed on all these 
 facts, including the fact that the passway was already exist- 
 ing when the deed was executed. 
 
 Although a way may not have been dedicated to the public 
 or otherwise legally established for the use of the public, yet 
 
 '"Id.; see also Goold v. Great Mass. 196, 30 Am. Rep. 672; Bean 
 
 Western Deep Coal Co. 2 DeG. J. v. French, 140 Mass. 229. 
 
 & S. 600; Finlinson v. Porter, L. R. "''Wood v. Boyd, 145 Mass. 176; 
 
 10 Q. B. 188. White v. New York & N. E. R. Co. 
 
 '^^ Bowen v. Conner, 6 Cush. 132. supra. 
 
 and cases infra. ''' Wood v. Boyd, supra. 
 
 '*■ Ashcroft V. Eastern R. Co. 126 
 
452 REAL PROPERTY. 
 
 if the owner of premises over which it passes has exhibited 
 an intention that it shall be used by the public, either as a 
 means of access to his property or over it, and, by the mani- 
 festation of that intention, has induced or allured the public 
 to its use, then those using it within the scope of the purpose 
 manifested are entitled to be protected from dangers to the 
 way, by^reason of obstructions or interferences created dur- 
 ing its existence, and resulting from the want of ordinary 
 care on the part of the owner or those acting within his 
 authority. '" 
 
 This principle, however, must be distinguished from that 
 of a mere permission to pass over lands. "' 
 
 " It is a general rule that, upon a conveyance of land, what- 
 ever is in use for it as an incident or appurtenance passes 
 with it. The law gives such a construction to the convey- 
 ance in view of what is thus used for the land as an appurte- 
 nance or incident, that the latter is included in it. Whether 
 a right of way or other easement is embraced in a deed, is 
 always a question of construction of the deed, having refer- 
 ence to its terms and the practical incidents belonging to the 
 grantor of the land at the time of the conveyance.'"" But 
 nothing passes which is not appurtenant to the land granted 
 and directly necessary to its enjoyment."" 
 
 This principle is now firmly established. It was indicated 
 in New Jersey R. & Transp Co. v. West, 32 N. J. L. 91, and 
 distinctly held in Vanderbeck v. Hendry, 34 N. J. L. 467, and 
 the liability is based " on a purpose manifested on the part of 
 the owner that a way shall be used by the public, and the 
 same is held out as a means of access to a house, store, or 
 other passage through lands, and the public, or such as have 
 occasion, are expressly or impliedly invited to use it accord- 
 
 "' Vanderbeck v. Hendry, 34 N. P. 370 ; Stone v, Jackson, 16 C. B. 
 
 J. L. 467 ; Corby v. Hill, 4 C. B. (N. 199 ; Bolch v. Smith, 7 Hurlst. &N. 
 
 S.) 556; Sweeny v. Old Colony & 736 ; Nicholson v. Erie R. Co. 41 N. 
 
 N. R. Co. 10 Allen, 369, 87 Am. Y. 525, are cases to the same effect 
 
 Dec. 644; see New Jersey R. & elsewhere. 
 Transp. Co. v. West, 32 N. J. L. 91. "» Huttemeier v. Albro, 2 Bosw. 
 
 "« Hounsell v. Smith, 7 C. B. (N. 546; s. c. 18 N. Y. (4 Smith), 48. 
 S.), 731 ; Binks v. South Yorkshire "» Leonard v. White, 7 Mass. 6 ; 
 
 R. & River Dun Co. 3 Best & S. Coleman's Appeal, 62 Pa. St. 252. 
 244 ; Gautret v. Egerton, L. R. 2 C. 
 
EASEMENTS AND SERVITUDES. 453 
 
 ing to the purpose intended.""' This whole subject has 
 recently undergone extensive treatment in the Court of Errors 
 and Appeals of the State of New Jersey, in Phillips v. Bur- 
 lington Library Co., 55 N. J. L. 307. In that case the leading 
 authorities are reviewed, and the doctrine stated by Mr. Jus- 
 tice Depue is that mere permission to pass over dangerous 
 lands, or acquiescence in such passage, for the benefit and 
 convenience of the licensee, creates no duty on the part of 
 the owner, except to refrain from acts willfully injurious. 
 But the owner or occupier of lands, who, by intention, ex- 
 press or implied, induces persons to come upon the premises, 
 is under a duty to exercise ordinary care to render the prem- 
 ises reasonably safe for such purposes, or at least to abstain 
 from any act that will make the entry upon or the use of the 
 premises dangerous. The gist of the liability, in such cases, 
 consists in the fact that the person injured did not act merely 
 on motion of his own, to which no sign of the owner or occu- 
 pier contributed, but that he entered the premises beause he 
 was led by the acts or conduct of the owner to believe that 
 the premises were intended to be used in the manner in 
 which he used them, and that such use was not only acqui- 
 esced in, but was in accordance with the intention or design 
 for which the way or place was adapted, and prepared or 
 allowed to be used. 
 
 § 197. Easements of Light and air. Light and air are in 
 one sense common property. The owner of a house may con- 
 struct it with as many windows as he desires, and thus secure 
 all the light and air that he can. But his neighbor has the 
 corresponding right to build his house in such position on 
 his own land as he chooses, and the result of this may be to 
 darken the windows of the house adjoining. But this is 
 damnum absque injuria. The neighbor has committed no un- 
 lawful act, and the first builder has no right to complain. 
 But if A., the first builder, had enjoyed for twenty years or 
 more the unobstructed passage of light to his windows, then 
 he has acquired by prescription (some courts have held) the 
 right to its unobstructed enjoyment, and if B. thereafter 
 erects any structure which substantially diminishes A. 's light 
 
 1 Thomp. Neg. 307-309. 
 
454 REAL PROPERTY. 
 
 and injures the enjoyment of his estate, it is a nuisance 
 which equity -will require him to remove. 
 
 Such is the law in England, and such was the law at one 
 time in Massachusetts, but this doctrine was denied in other 
 States, and it is now entirely repudiated in Massachusetts. 
 It is settled in that State that the owner of a house does not 
 acquire by lapse of time any prescriptive right, as against 
 the owner of the adjacent land, to have his windows unob- 
 structed. In Keates v. Huge, 1 1 5 Mass. 204, the court quote 
 with approval what was said in the leading case of Parker v. 
 Foote, 19 Wend. 309, namely: "The English doctrine of 
 acquiring a right to light by prescription is without founda- 
 tion in principle, not adapted to the existing state of things 
 in the United States, and could not be applied in the grow- 
 ing cities and villages of this country without working the 
 most mischievous consequences.'"" 
 
 Nor is a grant of such easement to be implied from the 
 grant of a house having windows overlooking land retained 
 by the grantor.'" There are authorities the other way.'" 
 
 Air. In a general way, it may be said that every one is 
 entitled to the enjoyment of the air undefiled by his 
 neighbor. 
 
 It is also true as a general proposition that whoever, by 
 noisome or injurious works or otherwise, renders the air so 
 offensive or unwholesome as seriously to injure another in 
 the enjoyment of his estate, commits a private nuisance 
 which equity will enjoin. 
 
 Of course, in a populous community this right to pure air 
 must be taken in a very modified sense, and subject to the 
 absolute necessities and requirements of large towns and 
 cities.'" Nevertheless, so far as the protection of dwelling 
 
 '" Western Granite & Marble Co. son v. Marquardt, 24 Iowa, 35 ; Mul- 
 
 v. Knickerbocker, 103 Cal. in ; len v. Strieker, 19 Ohio St. 135; 
 
 Cherry v. Stein, 11 Md. i; Hub- Rennyson's Appeal, 94 Pa. St. 147 ; 
 
 bard v. Town, 33 Vt. 295; Holley Keiper v. Klein, 51 Ind. 316. 
 
 V. Security Trust Co. 5 Del. Ch. >« Phillips v. Low (1892), i Ch. 
 
 578 ; Pierre v. Fernald, 26 Me. 436 ; 47 ; see Sutphen v. Therkelson, 38 
 
 Lapere v. Luckey, 23 Kans. 534; N. J. Eq. 318, where the cases are 
 
 Guest V. Reynolds, 68 111. 478, over- collected, 
 
 ruling Gerber v. Grabel, 16 111. 217. '<^ Rhodes v. Dunbar, 57 Pa. St. 
 
 '« Keats V. Hugo, supra ; Morri- 274 ; see infra, p. 438. 
 
EASEMENTS AND SERVITUDES. 455 
 
 houses is concerned, the rule exists in full force, subject to 
 this single modification; it is not every slight or casual 
 annoyance or inconveneince which a court of equity will 
 take notice of, but the court will suppress any trade or busi- 
 ness by which the air of a dwelling house is rendered con- 
 tinuously, or in any substantial degree, unwholesome or 
 offensive.'" "What makes life less comfortable and causes 
 sensible discomfort and annoyance is a proper subject of 
 injunction.'"" 
 
 If the annoyance is such as materially to interfere with the 
 ordinary comfort of human existence, equity will enjoin it.'" 
 But the inconvenience must be "more than fanciful, more 
 than one of mere delicacy or fastidiousness, * * * an 
 inconvenience materially interfering with the ordinary com- 
 fort physically of human existence, not merely according to 
 elegant or dainty modes and habits of living, but according 
 to plain and sober and simple notions among the English 
 people.'"" Hence an undertaker's shop is not, in the legal 
 sense, a nuisance."" 
 
 This annoyance may arise from unwholesome, vapors.'" 
 A slaughter house is primA facie a nuisance."" In Boston 
 Ferrule Co. v. Hills, 159 Mass. 147, the plaintiff, doing busi- 
 ness on a lower floor, obtained an injunction to restrain the 
 •defendant, on the floor above, from allowing sand and the 
 fumes of noxious acids to descend through holes in the floor 
 {made for the passage of belting), thus injuring the plaintiff's 
 goods. Even though the injury be to ornamental trees only, 
 an injunction will be granted, '^^ or from disagreeable although 
 not positively unwholesome odors,'" or from smoke, or from 
 •excessive noise and vibration.'" "Nuisance by noise i's em- 
 
 '" Fay V. Whitman, 100 Mass. 76. 124; Meigs v. Lister, 23 N.J. Eq. 
 
 '■"Fleming v. Hislop, L. R. 11 199. 
 
 App. Cas. 686, 697. '-" Bushnell v. Robeson, 62 Iowa, 
 
 "' Crump V. Lambert, L. R. 3 Eq. 540. 
 
 409. '" Campbell v. Seaman, 63 N. Y. 
 
 '« Walter v. Selfe, 4 DeG. & S. 568. 
 
 315, 322; see also Tuttle V. Church, '"Ross v. Butler, 19 N. J. Eq. 
 
 53 Fed. Rep. 422. 294 ; Adams v. Ohio Falls Car Co. 
 
 "" Westcott V. Middleton, 43 N. 131 Ind. 375. 
 
 J. Eq. 478. '5= Crump v. Lambert, supra; 
 
 '" Barnes v. Hathorne, 54 Me. Wesson v. Washburn Iron Co. 13 
 
4S6 REAL PROPERTY. 
 
 phatically a question of degree;" '" but whenever it amounts 
 to a serious and continuous disturbance it will be enjoined. 
 So, also, it will be enjoined when the nuisance appreciably 
 affects the value of the land. '" 
 
 a. The English doctrine considered. The English doctrine is 
 that "if one who has a house with windows looking upon his 
 own vacant land sell the same, he may not erect upon his 
 vacant land a structure which shall essentially deprive such 
 house of the light through its windows. '"" This doctrine, 
 however, does not prevail in the majority of the American 
 States. It is held to be inapplicable in a country like this, 
 where the use, value, and ownership of land are constantly- 
 changing. Air and light are the common property of all. 
 The owner of a lot cannot be presumed to have assented to an 
 encroachment thereon as he has permitted the light and air 
 to pass over it into the windows of his neighbor's house, 
 situated upon the adjoining lot. 
 
 The actual enjoyment of the air and light by the latter is 
 upon his own premises only. The prevalent rule in the 
 United States is that an easement in the unobstructed passage 
 of light over an adjoining close cannot be acquired by pre- 
 scription."" The Gerber case was, in effect, overruled, and 
 it was held that a prescription right might be so acquired ; 
 but in the latter case of Guest v. Reynolds, 68 111. 478 ; 1 8 Am. 
 Rep. 570, the Gerber Case was, in effect, overruled, and it 
 was held that a ' ' prescriptive right springing up under the 
 narrow limitations in the English law, to prevent obstruc- 
 tions to window lights, cannot be applied to the growing 
 cities and villages of this country without working the most 
 mischievous consequences, and has never been deemed part 
 of our law. " It is established by the weight of American 
 authority that a grant of the right to the use of light and air 
 
 Allen, 95, supra ; Dittman v. Repp, "' Washb. Easem. 492, par. 5. 
 
 50 Ind. 516; Fish v. Dodge, 4 Den. "'2 Woodfall, Land. & Ten. 703, 
 
 311 ; Demarest v. Hardham, 34 N. and notes; i Taylor, Land. & Ten. 
 
 J. Eq. 469. sees. 239, 380, and notes; Keats v. 
 
 "« Gaunt v. Fynney, L. R. 8 Ch. Hugo, 115 Mass. 204, 15 Am. Rep. 
 
 App. 8, 12. 80; Mullen v. Strieker, 19 Ohio St. 
 
 '" Hennessy v. Carmony, 50 N. 135, 2 Am. Rep. 570. 
 J. Eq. 616. 
 
EASEMENTS AND SERVITUDES. 457 
 
 will not be implied from the conveyance of a house with win- 
 dows overlooking the land of the grantor ; and that, where 
 the owner of two adjacent lots conveys one of them, a grant 
 of an easement for light and air will not be implied from the 
 nature or use of the structure existing on the lot at the time 
 of the conveyance, or from the necessity of such easement to 
 the convenient enjoyment of the property. '" "A grant by the 
 owner of two adjoining lots, of either one of them, does not im- 
 ply the right of an unobstructed passage of light and air over 
 the other. '"" " The law of implied grants and implied reser- 
 vations, based upon necessity or use alone, should not be 
 applied to easements for light and air over the premises of 
 another.'"" It follows that a landlord will not be liable for 
 obstructing his tenant's windows by building on the adjoin- 
 ing close, in the absence of any covenant or agreement in the 
 lease forbidding him to do so."' 
 
 But the authorities all agree that the right to have the 
 light and air enter the winodws of a building over an adjoin- 
 ing lot may exist by express grant, or by virtue of an express 
 covenant or agreement.'" 
 
 Implied grant. No prescriptive right to the use of light 
 and air through windows can be acquired by any length of 
 use and enjoyment.'" The law of implied grants, as laid 
 down in some of the early English cases, has no application 
 with us, and the law of implied grants and implied reserva- 
 tions, based upon necessity or use alone, should not be 
 applied to easements for light "and air, over the premises of 
 another in any case. In this country real property is con- 
 stantly appreciating, and as constantly being conveyed from 
 one owner to another. It is being frequently subjected to 
 
 "* Keats V. Hugo, and Mullen v. 537 ; Palmer v. Wetmore, 2 Sandf. 
 
 Stncktr, supra ; i Wood. Land. & 316; Keiper v. Klien, supra; 2 
 
 Ten. sec. 209, 422-424, and note ; Woodfall, Land. &. Ten. 703, and 
 
 Morrison v. Marquardt, 24 Iowa, 35, note, 
 
 and 92 Am, Dec. 444. '" Hilliard v. New York & C. Gas 
 
 "■ 2 Woodfall, Land. & Ten. 703, Coal Co. 41 Ohio St. 662, 52 Am. 
 
 note. Rep. 99 ; Brooks v. Reynolds, io6 
 
 '"Mullen V. Strieker, supra; Mass. 31 ; Keats v. Hugo and Mor- 
 
 Haverstick v. Sipe, 33 Pa. 368 ; rison v. Marquardt, supra. 
 
 Keiper V. Klien, 51 Ind. 316. "= Hieatt v. Morris, 10 Ohio St. 
 
 1<3 
 
 Myers v. Gemmel, 10 Barb. 523 ; Washb. Easem. 497. 
 
458 REAL PROPERTY. 
 
 the most expensive forms of improvement, and a perpetual 
 easement for light and air would effectually destroy the sale 
 of a servient tenement burdened with such an easement. 
 The authorities on this subject are far from uniform but the 
 better reasoned cases quite generally hold to the textual 
 views above expressed.'" In the case first cited the court 
 propounds this interrogatory, viz: "How can we define an 
 easement for light and air by implication, without arresting 
 all change in the style of buildings, all enjoyment of a man's 
 house, according to the demands of a growing and improv- 
 ing family?" 
 
 The purchaser of a home in some congested district never 
 supposes that his neighbor will have a right to prevent him 
 from changing the form of it according to his taste. 
 
 The easements of light, air, and access, pass to the pur- 
 chaser whether he acquires his title by will or deed.'" 
 
 b. The English doctrine repudiated in this country. The Eng- 
 lish doctrine is generally repudiated in this country. In 
 Parker v. Foote, 19 Wend. 309, which has been followed in 
 several of the States, the court said : ' ' There is, I think, no 
 principle on which the English doctrine on the subject of 
 lights can be supported. It is an anomaly of the law. It 
 may do well enough in England * * * but it cannot be 
 applied to the growing cities and villages of this country, 
 without working the most mischievous consequences. ' ' The 
 English doctrine, however, seems to be countenanced in 
 Delaware, '°° and possibly in some other States. 
 
 This doctrine of easements in light and air, founded upon 
 
 '^' See Haverstick V. Sipe, 33 Pa. loia; Penruddock's case, 5 Coke, 
 
 St. 368; Palmer v. Wetmore, 2 100; Griswold v. Metropolitan Elev. 
 
 Sandf. 316; Collier v. Pierce, 7 R. Co. 122 N. Y. 102 ; Broiestedt v. 
 
 Grey, 18; Dodd V. Burchell, I H. & South Side R. Co. 55 Id. 220; 
 
 C. 112. Corning v. Troy I. & N. Factory, 40 
 
 '"Story v. New York Elev. R. Id. 192; Crippen v. Morse, 49 Id. 
 
 Co. 90 N. Y. 145 ; Hills V. Miller, 3 63 ; Shepard v. Manhattan R. Co. 
 
 Paige, 254, 3 L. ed. 141; Child 117 Id. 442 ; Dean v. Metropolitan 
 
 V. Chappell, 9 N. Y. 246; Taylor Elev. R. Co. 119 Id. 546; Tallman 
 
 V. Hopper, 62 Id. 649 ; Arnold v. v. Metropolitan Elev. R. Co. 8 L. R. 
 
 Hudson River R. Co. 55 Id. 661; A. 173, 121 N. Y. 119. 
 
 Glover v. Manhattan R. Co. 19 '^' Clawson v. Primrose, 4 Del. 
 
 Jones & S. I ; Rolf v. Rolf, 5 Coke, Ch. 643. 
 
EASEMENTS AND SERVITUDES. 459 
 
 sheer necessity and convenience, like the kindred doctrine of 
 "ancient windows," or prescriptive right to light and air by- 
 long user, is wholly unsuited to our condition, and is not in 
 accordance with the common understanding of the commu- 
 nity. Both doctrines are based upon similar reasons and con- 
 siderations, and both should stand or fall together. They 
 are unsuited to a country like ours, where real estate is con- 
 stantly and rapidly' appreciating, and being subjected to new 
 and more costly forms of improvement, and where it so fre- 
 quently changes owners as almost to become a matter of mer- 
 chandise. In cases of cheap and temporary buildings, the 
 application of the doctrine would be attended with great un- 
 certainty, and be a fruitful source of litigation. It would, 
 moreover, in many cases, be a perpetual encumbrance upon 
 the servient estate, and operate as a veto upon improvements 
 in our towns and cities. It will be safer, we think, and more 
 likely to subserve the ends of justice and public good, to 
 leave the parties, on questions of light and air, to the bound- 
 ary lines they name, and the terms they express in their 
 deeds and contracts. 
 
 We know that the authorities on this subject are not uni- 
 form. But we believe the weight of American decisions is 
 in accordance with the opinion here expressed. "° 
 
 In Haverstick v. Sipe, the court held that the grant of an 
 easement for light and air is not implied from the fact that 
 such a privilege has been long enjoyed ; and that a contract 
 for such privilege is not implied on the sale of a house and 
 lot, from the character of improvements on the lot sold, and 
 the adjoining lots. The court say: "There is a sort of 
 necessity for such an implication relative to other apparent 
 easements, such as roads and alleys, in order to account for 
 a use of another man's land that would otherwise be a wrong- 
 ful encroachment; and the implication is easily framed or 
 defined, for it appears on the ground. But how can we define 
 an easement for light and air by implication, without arrest- 
 ing all change in the style of buildings, all enjoyment of a 
 
 '" See Maynard v. Esher, 17 Pa. 537 ; Palmer v. Wetmore, 2 Sandf. 
 
 St. 222 ; Haverstick v. Sipe, 33 Id. Sup. C. R. 316 ; Collier v. Pierce, 7 
 
 368, 371 ; Dodd V. Buichell, i H. & Gray, 18. 
 C. 112 ; Myers v. Gimmel, 10 Barb. 
 
460 REAL PROPERTY. 
 
 man's house, according to the demands of a growing or im- 
 proving family A purchaser of a house in a crowded town 
 never supposes that his neighbor will have a right to prevent 
 him from changing the form of it according to his taste. ' ' 
 
 c. Right to light and air regarded as an easement. The right 
 to light and air passing over land is an easement, whether 
 acquired by prescription or otherwise."" A way "reserved" 
 as the word is used in a popular sense, is strictly an ease- 
 ment newly created by way of grant from the grantee in the 
 deed of the estate to the grantor.'" In the case last cited 
 Chief Justice Shaw says: "There is no doubt that by apt 
 words, even in a deed poll, a grantor may acquire some right 
 in the estate of the grantee. It is not, however, strictly by 
 way of reservation, but by way of condition or implied cove- 
 nant, even though the term 'reserving' or 'reservation' is 
 used." The court adhered to this ruling in the subsequent 
 case of Bowen v. Conner, 6 Cush. (Mass.), 132, declaring that " it 
 is immaterial whether the easement for the way intended to be 
 established is technically considered as founded on an excep- 
 tion, a reservation, or an implied grant." Vice Chancellor 
 Van Fleet, in Cojidert v. Sayre, 46 N. J. Eq. 386, expresses his 
 view of the rule as follows; "When, by the construction of 
 a grant, it appears that it was the intention of the parties to 
 create or reserve a right in the nature of a servitude in the 
 land granted, for the benefit of other land owned by the 
 grantor, no matter in what form such intention may be ex- 
 pressed, such right, if not against public policy, will be held 
 to be appurtenant to the land of the grantor, and binding on 
 that conveyed to the grantee, and the right and burden thus 
 created and imposed will pass with the lands to all subse- 
 quent grantees." The tendency of the adjudications on this 
 subject is properly to disregard technical distinction between 
 reservation and exception, and construe the language used so 
 as to effectuate the intention of the parties. A covenant or 
 stipulation inserted in a deed poll binds the grantee, his 
 heirs and assigns, where such stipulation relates to the prem- 
 
 "" Goddard, Easem. 33. Wickham v. Hawker, 7 Mees. & W. 
 
 "' Washb. Easem. 20 ; Durham & 75 ; Dyer v. Sanford, 9 Met. (Mass.), 
 S. R. Co. V. Walker, 2 Q. B. 940 ; 395, 43 Am. Dec. 399. 
 
EASEMENTS AND SERVITUDES. 461 
 
 ises conveyed. The easement in sucli case may be acquired 
 by a clause of reservation.'" 
 
 And the grantee in a deed and those claiming under him 
 cannot deny the binding authority of a reservation in a 
 deed.'" 
 
 d. Extended review of the Elevated Railroad cases — Opinions 
 of eminent jurists. The New York Elevated Railroad cases 
 are notable in several respects. First, Because decided by 
 the most competent tribunals in this or any other land ; and, 
 Secondly, Because the decision in these cases admits an ease- 
 ment in light and air ; establishes the right of an abutting 
 owner to something more than ingress and egress, and 
 clears away a mass of rubbish in the form of "^/z«w«j" that 
 had been accumulating in various State reports holding the 
 contra view. They bear every evidence of discriminating 
 and scholarly research, critical analysis and logical presenta- 
 tion. Here we have established beyond demur or cavil that 
 no matter how the abutting owner acquires title to his land, 
 and no matter how the street was established, so that the 
 only right of the public is to hold it for public uses as a 
 street forever (and the public can get no greater right under 
 a dedication), and no matter who may own the fee, "an 
 abutting owner necessarily enjoys certain advantages from 
 the existence of an open street adjoining his property which 
 belong to him by reason of its location and are not en- 
 joyed by the general public, such as the right to free access to 
 his premises, and the free admission and circulation of light 
 and air to and through his abutting premises. '"" The latter 
 case was really a reargument of the questions decided in the 
 earlier, and in its opinion the court not only adhered to, but 
 took pains to define, its earlier decision, and in some 
 respects to go beyond it. It will be vastly interesting to the 
 legal profession of the country to know what disposition of 
 
 '" Finley v. Simpson, 22 N. J. L. 277 ; Fitzgerald v. Faunce, 46 N. J. 
 
 311, 53 Am. Dec. 252; Cooper v. L. 598. 
 
 Louanstein, 37 N. J. Eq. 284 ; New- "* Story v. New York Elevated 
 
 hoff V. Mayo, 48 N. J. Eq. 619; R. R. Co. 90 N. Y. 122; Lahr v. 
 
 Rosenkrans v. Snover, 19 N. J. Eq. Metropolitan Elevated R. R. Co. 
 
 420, 97 Am. Dec. 668. 104 N. Y. 268. 
 
 '" Sheppard v. Hunt, 4 N. J. Eq. 
 
462 REAL PROPERTY. 
 
 this question the Massachusetts court will make when con- 
 fronted with a similar issue. 
 
 The Rapid Transit Act of New York (Laws of 1875, chap. 606, 
 p. 740, sec. 26), under which the elevated railroads of that State 
 were constructed, provided that "in all cases the use of the 
 streets * * * and the right of way through the same for 
 the purposes of the railway or railways as herein authorized 
 and provided, shall be considered and are hereby declared 
 to be a public use, consistent with the uses for which the 
 streets * * * are publicly held. " 
 
 It will be seen that in the very recital of the act itself, the 
 Legislature authorizes the use of the streets for the purpose 
 of constructing the roadway, and clinches the matter by ex- 
 pressly providing that such use shall be considered "a public 
 use' ' consistent with the uses for which the streets are pub- 
 licly held. The promoters of this scheme displayed great 
 wisdom in securing in advance the legislative sanction for 
 their enterprise. For a time the subordinate tribunals of the 
 State upheld the law, but the Court of Appeals, in a case of 
 monumental importance, planted itself upon firm constitu- 
 tional ground, and held that the invasion of the street for 
 elevated railway purposes was an encroachment upon the 
 easement of the abutting owners in the street in light, air, 
 and access, and that injunctive relief might properly be 
 granted, unless the abutters' rights have been properly 
 acquired and due compensation made therefor. Probably 
 no decision ever rendered by a State or a Federal Court has 
 involved such immense pecuniary interests, and certainly 
 none has ever been assailed with more vehemence and acer- 
 bity. Under various disguises ingenious counsel have 
 returned to the attack, only to find that the court remains 
 unshaken, and that the case of Story v. New York Elev. Ry. 
 Co., 90 N. Y. 122, and the pendant case of Lahr v. Metropolitan 
 Elev. Ry. Co., 104 N. Y. 268, form a "pillared law" that cor- 
 porate greed dare scarcely menace and certainly never affect. 
 
 In the Story Case, supra, three principal questions were 
 
 considered: i. Whether the appropriation of Front street 
 
 ■ for the use of the elevated railroad was consistent with 
 
 the use of the street as an open public street ; 2, Whether 
 
 Story, an abutting owner on the street, the fee of which 
 
EASEMENTS AND SERVITUDES. 4^3 
 
 was (as was assumed) in the city, had any property rights 
 in the nature of easements of light, air and access in and 
 from the street, for the benefit of his adjacent property, 
 which were invaded by the construction of the road; 3, 
 Whether such rights, if they existed, were properly within 
 the constitutional provision prohibiting the taking of private 
 property for public use without due compensation. The 
 decision of the court 'on the first point, while recognizing 
 the rule that the Legislature may authorize the construction 
 and operation of an ordinary surface railroad in a city street, 
 placed its decision against the defendant on the character of 
 the structure, and held that it was destructive of the street 
 uses for which streets are established. Upon the second 
 point, it was held that the plaintiff had easements in the 
 street, of light, air and access, appurtenant to his lot, which 
 were affected by the structure of the defendant, impairing 
 the value .of his lot. The court, in tracing the origin of his 
 property rights in the nature of easements in the street, 
 placed much stress upon two facts, viz: the original grant 
 from the city, then the owner both of the land granted and 
 of that which subsequently became known and styled as Front 
 street; and, second, the express covenant of the city, con- 
 tained in the grant, that the streets referred to therein 
 should forever thereafter continue to be public streets. It 
 was decided, in respect to the third point, that incorporeal 
 rights annexed to property were properly within the protec- 
 tion of the Constitution, and could not be taken or impaired 
 without compensation. 
 
 In the Lahr Case, 104 N. Y. 268 ; the street upon which 
 the plaintiff's lot was situated had been opened under the 
 statute of 18 1 3. The decision in the Story case left open 
 but one point for discussion, viz : whether lot owners upon 
 streets opened under that statute had similar easements 
 of light, air and access as those which Story had, although 
 the plaintiff, and those under whom he claimed, did not 
 derive their title from the city, and had not express cove- 
 nants such as existed in the case of Story. The court 
 decided that the plaintiff, notwithstanding this difference in 
 the circumstances in the. two cases, had easements of the 
 same character as Story. The court regarded the statute of 
 
464 REAL PROPERTY. 
 
 1813, which permitted the taking by the city of lands for 
 streets and the assessing of the cost of improvement upon 
 the property benefited, taken in connection with the trust 
 declared therein, as equivalent to a contract or covenant by 
 the city with the adjacent lot owners that the streets opened 
 under the statute should forever remain open and public 
 streets, and the consequence was held to follow that they 
 could not be appropriated to other than street uses, to the 
 injury of abutting owners, except upon the condition of 
 making compensation. 
 
 The majority of the court did not limit the recovery to 
 damages caused by operating the road on that part of the 
 street immediately in front of the premises. They held that 
 the road and its intended use could not be dissected and 
 separated, but must be considered in its entirety in consider- 
 ing its effect upon the property of the abutter ; that however 
 the damages may be inflicted, provided it be effected by an 
 unlawful use of the street, it constitutes a trespass, render- 
 ing the wrongdoer liable for the consequences of his acts. 
 And while they predicated the right of the abutter to recover 
 upon the proposition that he had an easement in the street 
 to its full width for ingress and egress to and from his prem- 
 ises, and also for the free passage and circulation of light 
 and air through and over such street, for the benefit of prop- 
 erty situated thereon, yet they did not limit the recovery to 
 damages resulting from interference with access, light and 
 air, but extended it to any damages resulting from the un- 
 lawful maintenance and operation of the road in the street.'" 
 
 In Story's Case, importance was given to the language of 
 a covenant contained in the grants dividing and conveying 
 the lots forming . a larger tract owned and granted by the 
 city of which Story's lot was a part, and to chapter 86 of the 
 Revised Laws of 181 3, under which the street was laid out. 
 But the judgment in Lahr's Case was not placed on the 
 ground that any rights in or to the bed of the street had been 
 granted, or reserved to him, or to any of his predecessors, 
 
 "'See also Story v. New York I2i Id. 505; Adams v. Chicago, B. 
 Elevated R. R. Co. 90 N. Y. 122 ; & Q. N. R. R. Co. 39 Minn. 286. 
 Fobes V. Rome, W. & O. R. R. Co. 
 
EASEMENTS AND SERVITUDES. 4&5 
 
 and it was held, some force being given to the Act of 1813, 
 that he had rights of property in the street. 
 
 The learned judges who delivered dissenting opinions in 
 Story's Case did not deny, but rather assumed, that the 
 abutting owners had rights of property in the street, and held 
 that those of the public were paramount ; that the rights of 
 both arose and existed by virtue of the same authority, and 
 that those of the abutting owners could, by legislative and 
 municipal action, be further subordinated to the rights of the 
 public, for the purpose of affording additional and necessary 
 facilities for the transportation of persons and property 
 through the street. Since Story's Case was decided, ques- 
 tions akin to the one under consideration have been dis- 
 cussed by the Court of Appeals. 
 
 InMahady'sCase, 91 N. Y. 153, Andrews, J., delivering the 
 opinion of the court said : ' ' The plaintiff, though an abutting 
 owner simply, the fee of the street being in the city, was 
 entitled to the use of the street, and neither the Legislature 
 nor the city could devote it to purposes inconsistent with 
 street uses without compensation, according to the principle 
 ■of Story V. New York Elev. R. Co., 90 N. Y. 122." 
 
 Again the same learned judge, in delivering the opinion 
 in Pond's Case, 112 N. Y. 188, said: "The Story Case, estab- 
 lished the principle that an abutting owner on streets in 
 the city of New York possesses, as incident to such owner- 
 ship, easements of light, air and access in and from the 
 adjacent streets, for the benefit of his abutting lands, and 
 that appurtenant easements and outlying rights constitute 
 private property of which he cannot be deprived without 
 compensation. ' ' 
 
 In Powers^. Manhattan R. Co., 120 N. Y. 178, Brown, J., in 
 his opinion, said: "The facts of the Story Case were not 
 broad enough to necessarily cover the case of an abutting 
 owner whose only property in the street was an easement for 
 light, air and access, and hence the right of such owners to 
 maintain actions for damages was not finally set at rest until 
 the decision in Lahr v. Metropolitan Elev. R. Co." The cases 
 last cited did not, perhaps, involve the question discussed in 
 the remarks quoted ; but it cannot be assumed that they were 
 made without deliberation, for since Story's Case, this pre- 
 30 
 
466 REAL PROPERTY. 
 
 cise question has been much debated and hardly out of the 
 hands of the judges of the court of last resort.'" 
 
 In the Story Case the road was to be constructed upon a 
 series of columns set in the outer edge of the sidewalk, on 
 each side carrying great girders for the support of cross ties 
 for three sets of rails, fifteeen feet above the street. The 
 structure divided the street into a sort of basement, used by 
 the general public and abutting owners, and a iirst floor used 
 exclusively by the railroad company. The court compared the 
 structure to the illegal erection in the street of the house in 
 the case in 6 Johns. Ch. 439; 2 L. ed. 178, Corning v. Lowerre, 
 and of the freight depot in 94 U. S. 324; 24 L. ed. 224, Bar- 
 ney V. Keokuk. In the Lahr Case the elevated road was- 
 similar. It is not, in these cases, claimed that the generat- 
 ing of gas, steam, and smoke, and the distribution of cinders, 
 dust, and ashes by a street railway is necessarily an additional 
 servitude on the street, except as it is aggravated by the 
 height from which it is thus distributed and thrown down 
 upon the street. A street railway is not an additional servi- 
 tude, though operated by steam ;'" while an ordinary com- 
 mercial railway is, though run by horse power.'" Yet the 
 former will deprive the abutting owner of much more light 
 and air than the latter. It is lawful to move a house on the 
 street,'" though it deprives the owner of much more light 
 and air than any railroad train. Unless prohibited by some 
 statute or ordinance, it is held that it is not unlawful to run 
 a traction steam engine on a public highway. "° What is art 
 additional servitude does not at all depend on the amount 
 of space it necessarily occupies, or the amount of light and 
 air it necessarily excludes, in passing along the street. The 
 street belongs to the local public. In a city that would 
 include perhaps all the adjacent country tributary to the city 
 by the ordinary highways, and if the railroad is "in aid of 
 the street, ' ' does not destroy its ordinary and useful uses, and 
 
 '"Case of Gustafson v. Hamm, Transfer Co. 28 Minn. 373,41 Am. 
 
 L. R. A. 22, opinion by Canty, J. Rep. 290. 
 
 '" Newell V. Minneapolis, L. & M. '" Graves v. Shattuck, 35 N. H. 
 
 R. Co. 35 Minn. ii2, 59 Am. Rep. 262, 69 Am. Dec. 536. 
 
 303. '""Macomber V. Nichols, 34 Mich, 
 
 '"Carli V. Stillwater Street R. & 312, 22 Am. Rep. 522. 
 
EASEMENTS AND SERVITUDES. 4^7 
 
 does not collect and converge on one street the traffic from any 
 other or greater territory. It is not an additional servitude, 
 no matter how much light and air it necessarily excludes by 
 its moving appliances. 
 
 As the owner of a lot abutting on a street has, as appurte- 
 nant to the lot, and independently of the ownership of the 
 fee of street, an easement in the street, to its full width in 
 front of his lot, for purposes of access, light and air, which 
 constitutes property, therefore the maintenance and opera- 
 tion of a railroad on any part of the street in front of his lot 
 so as to pollute the air and thus depreciate the rental value 
 of the premises, constitutes a positive invasion of property 
 rights, for which the owner may maintain a private action ; 
 and where his legal right is clear, and the nuisance or tres- 
 pass a continuing one, he may maintain an action to enjoin 
 it."- 
 
 The fee of the streets in New York city is held in trust 
 by the city, however they may be acquired. ' ' These rights 
 arise from the course of legislation, the trust created by the 
 statute, the acting upon the faith of public pledges and upon 
 a contract between the public and the property owner, im- 
 plied from all the circumstances, that the street shall be kept 
 open as a public street and shall not be diverted to other and 
 inconsistent uses. There is some analogy between the rights 
 of abutting owners as against the public, and those acquired 
 by the public against private persons in streets or highways 
 by dedication., The public acquires, upon acceptance of a 
 dedication by the owner of land of a highway over the same, 
 a perpetual easement therein for a highway, although there 
 may be no deed, or writing, or covenant, and no formalities 
 attending the transaction, such as is required for the creation 
 of an easement at common law. The State has dedicated the 
 streets in the city of New York to be public streets. The 
 abutting owners have acted upon the dedication and upon 
 the pledge of the public faith that they shall continue to be 
 open public streets forever. It would be gross injustice to 
 deprive them of the advantages intended, without compensa- 
 
 '" Gustafson v. Hamm, L. R. A. opinion of Finch, J., in Drucker's 
 32, opinion by Canty, J. ; see also case, io6 N. Y. 158. 
 
468 REAL PROPERTY. 
 
 tion. A dedication ought to be, and is, we think, irrevo- 
 cable.'"" 
 
 In the course of a very elaborate opinion by Ruger, C. J., 
 in Galway v. Metropolitan E. Ry. Co., 128 N. Y. 132, it is said: 
 " It is not claimed here that the plaintiff has ceased to be the 
 owner of the easements impaired, or that any other party 
 has acquired title thereto, but it is argued that he has lost 
 the right to employ the equitable power of the courts by 
 reason of his neglect to demand it within ten years from the 
 time when a cause of action accrued. Thus, although the 
 wrongful acts may be continued and the owner subjected to 
 irreparable injury, and his legal remedy may be either inade- 
 quate or require that it should be sought through repeated 
 and numerous actions at law, it is contended that the juris- 
 diction of an equity court shall be arrested at the very time 
 when, in the interest of the public, the exercise of its power 
 becomes the most apparent and necessary. This claim, we 
 think, is altogether untenable. The right of abutting own- 
 ers to damages for an invasion of their rights in the public 
 streets is predicated upon the constitutional guaranties that 
 no person shall be deprived of life, liberty or property with- 
 out due process of law, or have his property taken for public 
 use without just compensation; and it necessarily follows 
 that so long as such person continues to be the owner of 
 property and liable to be injured in respect thereto by the 
 unlawful acts of others, he is entitled to invoke the protec- 
 tion of the fundamental law, without regard to the lapse of 
 time that may occur before the commencement of legal pro- 
 ceedings, provided the remedy is claimed within the statu- 
 tory period of limitation applicable to his legal right or be- 
 fore adverse possession has barred his title to the property 
 injured.'" The cause of action both at law and equity, in 
 such cases, arises out of the trespasses committed, and is 
 based on the ownership of the property upon which the in- 
 juries are inflicted, and it is obvious that no cause of action 
 can be barred while there is an outstanding legal cause of 
 
 "'Per Andrews, J., in Kane v. R. 101 N. Y. 98 ; Arnold v. H. R. R. 
 
 New York Elevated R. R. Co. 125 R. Co. 55 id. 661 ; Colrick v. Swin- 
 
 N. Y. 164, 185. burne, 105 N. Y. 503; Tallraan v. 
 
 '«Uline V. N. Y. C. & H. R. R. M. E. R. R. Co. 121 id. 123. 
 
EASEMENTS AND SERVITUDES. 4^9 
 
 action for wliich tlie party has a legal remedy, The exist- 
 ence of a legal cause of action is not only a prerequisite to 
 the maintenance of the equitable action, but it is also the 
 foundation of the jurisdiction which equity courts possess in 
 respect to the subject matter. ' ' 
 
 These cases have been followed by subsequent decisions of 
 other States, and their doctrine has been approved by the 
 most prominent writers upon the subject. The opinions are 
 very elaborate, and we cannot do better than adopt Judge 
 Dillon's summary of some of the principles enunciated: 
 "These judgments, and those that follow them, rest upon 
 the foundation principle that whether the fee in the street is 
 in the abutter, subject to the rights of the public — that is, 
 to the paramount rights of the public for street uses proper — 
 or whether the fee is in the public for street uses proper, in 
 either case, and generally in both cases, the abutter is en- 
 titled to the benefit of the street for all uses except street 
 uses proper ; subject, of course, to legislative and municipal 
 regulations ; and that such rights are property or property 
 rights in the abutter, which can only be taken away by the 
 Legislature on the condition of making compensation. And 
 the abutting owner's rights in the street are not affected by 
 the source from which he derives his title. * * * if the 
 abutter owns the fee of the street, his rights may be said to 
 be legal in their nature. If he does not own the fee, those 
 rights are in the nature of equitable easements in fee — the soil 
 of the street being the servient, the abutting owner's lot 
 being the dominant tenement. Among the most important 
 of such rights or easements is the abutter's right to access, 
 to light and to air. The court accordingly held that, so far 
 as the elevated railway structures interfered with such rights 
 or easements while the Legislature might authorize their 
 erection and use, yet this could only be done as respects the 
 abutter by the exercise of the right of eminent domain, viz : 
 on condition of making compensation to the abutting owner 
 for the damage which his property actually sustained. " " The 
 result of the author's reflections upon this subject is that 
 the views of the Court of Appeals are sound and just — 
 sound, because they recognize the paramount nature of the 
 public right to put the street to this new and necessary form 
 
4/0 REAL PROPERTY. 
 
 of public use ; just, because they recognize and declare that 
 the abutter has special proprietary rights or easements in 
 their nature which he is not called upon unequally to sacri- 
 fice without compensation for the public use. In effect, the 
 court says the just and true doctrine is, "Take but pay.'"" 
 
 The contrary view, laid down in Wood's Railway Law, 
 vol. 2, p. 727, seems to be based upon the restricted interpre- 
 tation of the word "taken;" it being applied by some of the 
 courts only to property actually taken and occupied, and all 
 incidental damages to adjoining proprietors are regarded as 
 "consequential" in their character, and damnum absque injuria. 
 The learned author admits that such would not be the case 
 if the words used were ' ' taken or damaged, ' ' but by a refer- 
 ence to the opinion in Staton v. Norfolk & C. R. Co., 11 N. C. 
 278; 17 L. R. A. 838, it will appear from the cases cited that 
 this restricted meaning of the word "taken" is not in accord 
 with the more recent and better authorities, and is being 
 rapidly submerged by the steady and increasing current of 
 judicial decision.'" 
 
 Servitudes — Steam Railways. The great weight of deci- 
 sions sustain the proposition that a railroad constructed in a 
 street or highway and operated by steam in the usual manner 
 imposes a new servitude and entitles the owner of the fee to 
 an additional compensation, but that a street railway ope- 
 rated by horse power, as such street railways are ordinarily 
 operated, does not impose any new servitude and does not 
 call for additional compensation.'" A steam railroad is held 
 to impose a new servitude, not because it is operated by 
 steam, but because it is so operated as to be incompatible 
 with the use of the street in the other usual mode, or in 
 other words, so as practically to exclude the usual modes of 
 
 '*^ 1 Hare, Am. Const. L. 370, 375 ; bold v. Louisville, N. O. & T. R. 
 
 Lewis, Em. Dom. sees, 114, 115; Co. supra. 
 
 Booth, Street Railway Law, sec. 81 ; '"Lewis, Em. Dom. 58; Pum- 
 
 Barney v. Keokuk, supra ,• St. Paul pelly v. Green Bay & M. Canal Co. 
 
 & P. R. Co. V. Schurmeier, 74 U.S. 80 U. S. (13 Wall.), 166, 20 L. ed. 
 
 (7 Wall.), 272, 19 L. ed. 74; i Rorer, 557; Eaton v. Boston, C. & M. R. 
 
 Railroad, 524; Story v. New York Co. 51 N. H. 504, 12 Am. Rep. 177. 
 
 Elev. R, Co: supra ; Haynes v. "' Mills, Em. Dom. sec. 205, and 
 
 Thomas, 7 Ind. 38; South Carolina cases cited; Angell on High. sec. 
 
 R. Co. V. Steiner, 44 Ga. 546; Theo- 91. 
 
EASEMENTS AND SERVITUDES. 4/1 
 
 Tise.'" It comes into serious conflict with the usual modes of 
 travel, and is a perpetual embarrassment to them in greater 
 or less degree according as the business of the railroad is 
 greater or less, or as the running of the trains is more or less 
 frequent; whereas the ordinary street railway instead of 
 adding new servitude to the street, operates in furtherance 
 of its original uses, and instead of being an embarrassment, 
 relieves the pressure of local business and local travel.'" By 
 reasoning from analogy the courts very generally hold that 
 the use of electricity as a motive power, does not impose any 
 new servitude upon the street which requires the making of 
 -any additional compensation.'" 
 
 § 198. Of lateral and subjacent support, a. Preliminary. 
 This right to lateral support from adjoining soil is not, like 
 the support of one building upon another, supposed to be 
 gained by grant, but is a right of property passing with the 
 soil. If the owner of two adjoining closes conveys away one 
 of them, the alienee, without any grant for that purpose, is 
 entitled to the lateral support of the other close the very 
 instant when the conveyance is executed, as much as after 
 the expiration of twenty years, or any longer period. Pari 
 ratione, where there are separate freeholds from the surface 
 of the land and the minerals belonging to different owners, 
 the owner of the surface, while unincumbered by buildings 
 and in its natural state, is entitled to have it supported by 
 the subjacent mineral strata. Those strata may, of course, 
 be removed by the owner of them, so that a sufficient sup- 
 port for the surface is left ; but, if the surface subsides and is 
 injured by the removal of these strata, although on the sup- 
 position that the surface and the minerals belong to the same 
 owner, the operation may not have been conducted negli- 
 gently nor contrary to the custom of the country, the owner 
 of the surface may maintain an action against the owner of 
 the minerals for the damage sustained by the subsidence. 
 
 By the common law, every owner of land is his own judge 
 
 "' Pierce, Railroads, 234. 32 Conn. 579; Hobart v. Milwaukee 
 
 "* Citizens' Coach Co. v. Camden City R. Co. 27 Wis. 194. 
 
 Horse R. Co. 33 N. J. Eq. 267 ; El- ™ Taggert v. Newport St. Ry Co. 
 
 liott V. Fair Haven & W. R. R. Co. 16 R. I. 668. 
 
472 REAL PROPERTY 
 
 of the propriety of building upon it or leaving it vacant; 
 and when he does build, of the manner and extent of his 
 buildings. In the absence of statutory provisions, he may 
 build with what material he pleases, and he is under no obli- 
 gation to give to his neighbor any use or advantage of his 
 land, by way of support, drip, or easement of any descrip- 
 tion. If a stranger dispossess him, or enter upon his un- 
 occupied property, erect buildings, and make valuable per- 
 manent improvements upon it, he is not under the slightest 
 obligation to recompense such stranger for any portion of 
 the expense, on recovering the possession of the land. 
 
 The law exacts from a person doing even a lawful act, which 
 may produce an injury to his neighbor, the exercise of a de- 
 gree of care measured by the danger to prevent or mitigate 
 the injury."" Leake says if one, by carelessness in excavat- 
 ing on his land, causes injury to an adjoining building, even 
 where the owner of the house has no easement of support, he 
 is liable.'" 
 
 b. Views of eminent writers. In 2 Shearman & Redfield on 
 Negligence, 4th ed., sec. 701, it is stated: "In exercising his 
 rights over his land, the owner is bound to use ordinary care 
 and skill for the purpose of avoiding injury to his neighbor. 
 Thus, while, as a general rule, he is not bound to continue 
 the support which his land gives to a structure upon, or other 
 artificial arrangement of, adjoining land, and is, therefore, 
 not liable for the natural consequences of his withdrawing 
 his support, yet in doing so he must act with such care and 
 caution that (as nearly as by reasonable exertion it is possi- 
 ble to secure such a result) his neighbor shall suffer no more 
 injury than would have accrued if the structure had been 
 put where it is without ever having had the support of his 
 land. One who digs away land which affords support to an 
 adjoining house ought to give the owner reasonable notice of 
 his intention to do so, and he must allow the latter all reason- 
 able facilities for obtaining artificial support, including a tem- 
 porary privilege of shoring up the house by supports based 
 upon the former owner's land;" and in the next preceding 
 section the rule is laid down that "it is not, therefore, neces- 
 
 "» Booth V. R. W. & O. R. R. Co., '" Leake's Law Real Prop., 267. 
 
 140 N. Y. 267. 
 
EASEMENTS AND SERVITUDES. 473 
 
 sarily negligence on the part of a land owner to make a use 
 of his land which inevitably produces loss to his neighbor ; 
 for, as he may wilfully adopt such a course, and yet not be a 
 wrongdoer, much less is he liable for unintentionally doing 
 that which he has a right to do intentionally. ' ' In another 
 approved writer on Negligence it is stated : ' ' But, whatever 
 may be the right of one landowner to excavate his own soil 
 so as to deprive his neighbor's land of its support, the authori- 
 ties are agreed that he must exercise what care and skill 
 he can to prevent injury to his neighbor ; and if he inflict an 
 unnecessary injury upon his neighbor through negligence, he 
 must pay the damages. Thus, the authorities are agreed 
 that one who proposes to excavate or make other alteration 
 or improvement upon his own land, which may endanger the 
 land or house of his neighbor, is bound to give the latter 
 reasonable notice of what he proposes to do, to enable him to 
 take the necessary measures for the preservation of his own 
 property. But, after giving such notice, he is bound only to 
 reasonable and ordinary care in the prosecution of the work. 
 Where the excavation was of itself lawful, and the gravamen 
 of the plaintiff's complaint was that it was unskilfully done, 
 it was held incumbent on the plaintiff to show negligence by 
 other proof than by the mere fact that the walls of his house 
 cracked and gave away. In the view of the court so decid- 
 ing this was not a case for the application of the rule res ipsa 
 loquitur. If the owner of a house in a compact town finds it 
 necessary to pull it down and remove the foundation of his 
 building, and he gives notice of his intention to the owner of 
 the adjoining house, he is not answerable for the injury 
 which the owner of that house may sustain by the operation, 
 provided he removes his own with reasonable and ordinary 
 care.'"" 
 
 The Court of Appeals of Kentucky says : ' ' The proprietor 
 making the excavation cannot be charged with damages for 
 negligence because he failed to shore up his neighbor's house 
 in a case where the latter has no right of support in the 
 nature of an easement by grant or prescription. In such case 
 his neighbor must shore up his own house.""" And there is 
 
 "» 1 Thomp. Neg. 276, 278. "^ Shrieve v. Stokes, 8 B. Mon. 
 
 453; 48 Am. Dec. 401. 
 
474 REAL PROPERTY. 
 
 no obligation on the part of the owner of a building about to 
 be removed to shore up the other building. '" In Shafer v. 
 Wilson, 44 Md. 268, the same doctrine is distinctly recog- 
 nized — that, proper notice being given to the owner of a 
 building on an adjacent lot, it is the duty of the latter, on 
 receiving such notice, to shore up his own building. In 
 Lasala v. Holbrook, 4 Paige, 169; 3 L. ed. 390, the same prin- 
 ciple finds recognition. To the same effect see Peyton v. Lon- 
 don, 9 Barn. & C. 725, and other English cases, and 2 Shearm. 
 Bt Redf. supra, sec. 701. And the duty of the owner of a 
 building on an adjacent lot which may probably be imper- 
 illed by the digging for a foundation on his neighbor's lot, 
 to protect his building, is stated to begin after he has been 
 notified of the intended improvement, and given an oppor- 
 tunity to protect his own interests. But if he has personal 
 knowledge of the progress of the intended improvement, 
 this is tantamount to notice. This is the doctrine also of 
 the court in Charless v. Rankin, 22 Mo. 566; 66 Am. Dec. 642. 
 Very much has been written upon the right of lateral sup- 
 port and its limitations under the English law. It will not 
 be necessary to restate the general principles governing that 
 right. They were discussed very lucidly years ago in Charless 
 V.Rankin, 22 Mo. 573; 66 Am. Dec. 642, which remains a 
 leading case on the subject. For present purposes it will 
 suffice to say it is settled law that the unquestionable right 
 of a land owner to remove the earth from his own premises, 
 adjacent to another's building, is subject to the qualification 
 that he shall use ordinary care to cause no unnecessary damage 
 to his neighbor's property in so doing. We need not inquire 
 how such a principle became ingrafted upon a system which 
 traces its origin to the English common law ; but that it is 
 there is evidenced by abundant decisions, of which a few 
 leaders, besides that above cited, may be mentioned.'" The 
 underlying principle of legal ethics on which this rule rests 
 is well stated in Charless v. Rankin, supra, to be that "if a 
 man in the exercise of his own rights of property, do damage 
 
 '" Goddard, Easem. (Bennett's Hudson River R. Co., 25 N. Y. 334. ; 
 
 ed.), pp. 43. 44- Quincy v. Jones, 76 111. 240; 29 
 
 "^Foleyv.W'yeth, 2 Allen (Mass.), Am. Rep. 243. 
 131; 79 Am. Dec. 771; Austin v. 
 
EASEMENTS AND SERVITUDES. 475 
 
 to his neighbor, he is liable if it might have been avoided by 
 the use of reasonable care. ' ' The reports furnish many illus- 
 trations of its application, but we need not stop to emphasize 
 the statement of it by references to them, since its force, in 
 cases of this character, is now fully recognized. What is the 
 standard of ordinary care which one excavating on his own 
 estate must use to avoid damage to his neighbor's building, is 
 a question of some difficulty. In many localities the subject 
 is regulated by statutes, defining the reciprocal rights of the 
 parties. It may be stated generally, in the absence of the 
 statutory rule, that the care required of a party so excavat- 
 ing is that a man of ordinary prudence in the circumstances 
 of the particular situation ; but that statement affords meager 
 aid in determining the exact duty imposed by the rule in its 
 practical application to any given case. The fact is that the 
 particular circumstances so largely shape and indicate the 
 duty that any attempt to reduce the rule to greater certainty 
 would probably tend to impede, rather than to promote, the 
 administration of justice. Quite recently it has been defi- 
 nitely held, following supposed indications in earlier cases, 
 that prior notice to the neighbor whose property may be en- 
 dangered by an excavation is an essential part of the ordinary 
 care referred to,'" but that ruling was accompanied by a 
 vigorous dissent, and can scarcely be considered as settling 
 the point. 
 
 c. Quotations from recent cases. In the case of land, which 
 is fixed in its place, each owner has the absolute right to have 
 his land remain in its natural condition, unaffected by any 
 act of his neighbor ; and, if the neighbor digs upon or im- 
 proves his own land so as to injure this right, may maintain 
 an action against him, without proof of negligence. But this 
 right of property is only in the land in its natural condition, 
 and the damages in such an action are limited to the injury 
 to the land itself, and do not include any injury to buildings 
 or improvements thereon. While each owner may build 
 upon and improve his own estate at his pleasure, provided he 
 does not infringe upon the natural right of his neighbor, no 
 one can by his own act enlarge the liability of his neighbor 
 
 "«Schultz V. Byers, 53 N. J. L. 442; 13 L. R. A. 569. 
 
476 REAL PROPERTY. 
 
 for an interference with this natural right. If a man is not 
 content to enjoy his land in its natural condition, but wishes 
 to build upon or improve it, he must either make an agree- 
 ment with his neighbor, or dig his foundation so deep, or 
 take such other precautions, as to insure the stability of his 
 buildings or improvements, whatever excavations the neigh- 
 bor may afterwards make upon his own land in the exercise 
 of his right.'" 
 
 ' ' It has generally been considered that for an excavation 
 causing an injury to the soil in its natural state an action 
 would lie ; but that, without proof of a right by grant or pre- 
 scription in the plaintiff, or of actual negligence on the part 
 of the defendant, no action would lie for an injury to build- 
 ings by excavating adjoining land not previously built 
 upon.'"" 
 
 " It is difficult to see how the owner of a house can acquire, 
 by prescription, a right to have it supported by the adjoining 
 land, inasmuch as he does nothing upon, and has no use of, 
 that land, which can be seen or known or interrupted or sued 
 for by the owner thereof, and therefore no assent of the latter 
 can be presumed to the acquirement of any right in his land 
 by the former.'"" 
 
 d. Comments on this theory. A similar view was taken of this 
 matter in the case of Keating v. Cincinnati, 38 Ohio St. 141 ; 43 
 Am. Rep. 421. That case was decided not alone upon the 
 authority of the Ohio cases, but upon that of other leading, 
 well considered cases, particularly that of Gilmore v. Driscoll, 
 122 Mass. 199. The same court had previously held in Cincin- 
 nati^. Penny, 21 Ohio St. 499; 8 Am. Rep. 73, that the corpora- 
 tion was not liable for damages to buildings caused by negli- 
 gence in making the excavation, where their weight con- 
 tributed to the injury. See, also, the very recent case of Stearns 
 V. Richmond, 88 Va. 992. In that case the right to recover was 
 
 '^ Gilmore V. Driscoll, 122 Mass Watts, 460; Richardson v. Vermont 
 
 199. Central Railroad, 25 Vt, 465 ; Beard 
 
 "^panton v. Holland, 17 Johns. v. Murphy, 37 Vt. 99, 102; Shrieve 
 
 92 ; Lasala v. Holbrook, 4 Paige, v. Stokes, 8 B. Mon. 453 ; Charless 
 
 169; Hay V. Cohoes Co., 2 Const. v. Rankin, 22 Mo. 566. 
 159, 162; McGuire v. Grant, i "'Gilmore v. Driscoll, 122 Mass. 
 
 Butcher, 356; Richart v. Scott, 7 199. 
 
EASEMENTS AND SERVITUDES. 47/ 
 
 extended to buildings. The court used this language : ' ' Every 
 owner of land is entitled, as against his neighbor, to have the 
 earth stand and the water flow in its natural condition. 
 * * * In the case of land, which is fixed in its place, each 
 owner has the absolute right to have his land remain in its 
 natural condition, unaffected by any act of his neighbor ; and 
 if the neighbor digs upon or improves his own land so as to 
 injure this right, an action may be maintained against him 
 without proof of negligence. And, although this natural 
 right does not extend to buildings increasing the downward 
 and lateral pressure, and, therefore, if damage is done to 
 them by digging in the adjoining soil, no action can be main- 
 tained therefor, unless negligence be proved, yet it is settled 
 by the recent decisions in England, and it would seem clear 
 upon principle, that when land upon which there are build- 
 ings slides or subsides by reason of such digging, and the 
 buildings are in consequence damaged also, and their weight 
 in no way contributed to the result, then the damage done to 
 the buildings may be taken into consideration in estimating 
 the damages. "''°° 
 
 There is no doubt that what are termed "consequential" 
 injuries are by most of the courts held to be remediless, 
 although nearly all of the courts in this country have at one 
 time or another regretted the existence of such a rule, and 
 that they could not under the law follow the decisions of the 
 Supreme Court of Ohio, which are to the contrary. Yet we 
 find a number of the States granting relief in cases of the 
 particular character of the one at bar ; and although they are 
 sometimes loosely denominated "consequential injuries," the 
 fact is that they are not consequential, but direct, injuries. 
 
 In Massachusetts the doctrine of non liability for such in- 
 juries as those under discussion is fully established. The 
 first case upon the subject was that of Callender v. Marsh. 
 This was an action for damages for lowering the grade of the 
 street, by reason of which the lateral support was taken away 
 from plaintiff's lot, and the soil thereof caused to fall or slide 
 into the excavation. In a most exhaustive opinion, in which 
 the question is discussed upon principle and in the light of 
 
 «™Brown v. Robbins, 4 Hurlst. & Hurlst. & N. 454 ; Lewis, Emm. Do. 
 N. 186; Stroyan v. Knowles, 6 sec. 100, 151, 
 
478 REAL PROPERTY. 
 
 the authorities both in England and America, the court holds 
 that the action would not lie. The broad doctrine is 
 announced that, so long as the authorities are proceeding 
 properly in the amending of a grade of a street, they are not 
 liable for consequential damages, and that damages of the 
 nature set out in the complaint in that action were conse- 
 quential, and therefore not actionable. The argument of 
 the opinion seems unanswerable, and shows clearly that any 
 other rule than that thus laid down would be destructive of the 
 rights of the public, as enjoyed from the remotest time. The 
 opinion further shows that, though there may be instances 
 were the rule will work hardship, yet that such will not be 
 the fact, as a general proposition. It holds that, as a general 
 rule, those who purchase lots bordering upon streets, calcu- 
 late the chance of such elevations and reductions as may be 
 required to prepare such street for use, and to maintain the 
 same in such a condition as the public exigencies may 
 require, and that the price which may be paid for such lot is 
 usually influenced by such considerations, and hence no in- 
 justice is done in refusing to allow compensation for acts 
 which must be held to have been fairly contemplated at the 
 time of such purchase. It is true that in this case a part of 
 the claim for damages was for injuries to a building situate 
 upon the lot, but that fact does not seem to have had any 
 influence upon the opinion of the court, as its decision is 
 general, that for removal of lateral support plaintiff has no 
 remedy. The rule established by this case has continued to 
 be the rule of decisions in said State. 
 
 The right of an owner of land to the lateral support of the 
 adjacent land is "jure natures'' like the right in a flowing 
 stream. If the abutter excavates upon his own land in such 
 a manner and to such an extent as to cause damage appreci- 
 able, he must respond in damages to the party injured and 
 it is not necessary that in such an action the plaintiff 
 should either allege or prove negligence on the part of the 
 abuttor. But this right of action must be for such damages 
 as the land itself has sustained and shall not include the injury 
 to buildings that may be erected upon the land, or ornamen- 
 tal shrubbery or vines. Countless cases have proceeded to 
 trial that have sought to warp or modify this early rule, and 
 
EASEMENTS AND SERVITUDES. 479 
 
 the English courts have evinced a mild disposition to reform 
 the rule, but the American courts are tenaciously holding- to 
 a principle that must be regarded as too deeply imbedded in 
 the law of real property to be disturbed at this late day — a 
 principle that allows a landowner to recover for the damages 
 to his realty caused by the excavation on his adjoining land 
 or lot, but denies to him any right to recover for damages to 
 the buildings thereon. This rule presupposes that there is 
 no right by grant or prescription in the landowner so dam- 
 aged and no actual negligence in the parties making the ex- 
 cavation."" 
 
 It is among the mysteries of legal conception how the 
 owner of a house, situate near the end or side line, can acquire 
 "by prescription" a right to have it supported by the adjoin- 
 ing land. The English cases which apparently give him this 
 right, proceed upon the principle that obtains in the doctrine 
 of ancient lights — a doctrine which has been wholly repudi- 
 ated in this country. The rule in digest form that is recog- 
 nized in the United States is this : The owner has an inde- 
 feasible right to have his soil remain in its natural condition 
 and any interference with this right, constitutes an injury, 
 which the committing party must compensate, without refer- 
 ence to the question of negligence. 
 
 This entire subject received exhaustive ventilation in a 
 recent Massachusetts case"" in which Grey, Ch. J. — since 
 translated to the Supreme Court of the United States — 
 wrote for affirmance : It would be presumptuous to dissent 
 from a conclusion reached by so eminent an authority, but 
 the present writer is inclined to doubt the equity of this rule 
 in cases where adjoining land has previously been built 
 upon (and in the congested districts of most of our cities this 
 is the actual fact), and the owner wishes to erect a more im- 
 posing structure, requiring for this purpose a deeper founda- 
 tion ; this calls for a complete undermining of the adjacent 
 lot which very likely has a building upon it. Can he, pro- 
 
 ™' Lasala v. Holbrook, 4 Paige, 460; Hay v. Cohoes Co., 2 Comst. 
 
 169; Beard v. Murphy, 37 Vt. 99; 159; Charles v. Rankin, 22 Mo. 
 
 Shrieve v. Stokes, 8 N. B. Mon. 566. 
 
 453; McGuire V. Grant, i Dutcher, '"'Gilmore v. Driscoll, 122 Mass. 
 
 356; Richard v. Scott, 7 Watts. 199. 
 
48o REAL PROPERTY. 
 
 ceeding with ordinary care even, utterly demolish that build- 
 ing and respond in damages to the extent of the land value 
 alone?" "There are others" on earth besides our next door 
 neighbors, and if in my own pursuit of pelf I overturn my 
 neighbor's six-story building it can be but little assuagement 
 for his loss to be told that I exercised due care in making the 
 excavations. 
 
 An early case that is still cited by our courts with vary- 
 ing sentiments of approval is that of Thurston v. Hancock, 12 
 Mass. 220. Ch. J. Parker, formulates the rule with great 
 minuteness which was followed in the later case of Foley v. 
 Weitli, 84 Mass. 131, decided in 1861, in an opinion by Hon, 
 Pliny Merrick. Before concluding it would be well to refer 
 to the English cases that discuss the subject as the question 
 is certainly an open one and entitled to very serious con- 
 sideration.'" 
 
 e. Lansala v. Holbrook reveiwed. In 1833, Chancellor Wal- 
 worth, in dealing with a case not involving this question, 
 made this statement, viz: "From the recent English deci- 
 sions it appears that the party who is about to endanger the 
 buildings of a neighbor by a reasonable improvement on 
 his own land, is bound to give the owner of the adjacent lot 
 proper notice of the intended improvement.'"" To support 
 this statement he cites Peyton v. London, 9 Barn. & C. 725 ; 
 Walters v. Pfeil, i Mood. & M. 362 ; and Massey v. Goyder, 4 
 Car. Ik. P. 161. All these cases were cited in 1829. I think 
 it can be shown that this statement of Chancellor Walworth 
 is the sole basis of the claim that the doctrine contended for 
 is established by . authority. The independent opinion of 
 that eminent jurist, would go far to establish the doctrine 
 but, as has been seen, no opinion was called for, and none was 
 expressed by him. Moreover, the cases referred to do not 
 support his statement. In Peyton v. London, Lord Tenterden, 
 after adverting to the fact that the declaration did not charge 
 a want of notice of taking down the house whereby the 
 alleged injury was caused, added: "Therefore, in our opin- 
 
 ""See Humphries v. Brogden, 12 ''"''Lansala v. Holbrook, 4 Paige, 
 
 A. & L. N. S. 739; Tennant v. 169; 3 L. ed. 390. 
 Goldwin, 2 Ld. Raj'm. 1089 ; Gale 
 & Whately on Easements, 215. 
 
EASEMENTS AND SERVITUDES. 48 1 
 
 ion, the action cannot be maintained upon the want of such 
 notice, supposing that, as matter of law, the defendants were 
 bound to give notice beforehand, upon which point of law 
 we are not in this case called upon to give any opinion." 
 
 In Walters v. Pfeil, the question of the obligation to give 
 notice was not raised or mentioned. Massey v. Goyder is the 
 report of a trial before Chief Justice Tindal. By one count, 
 defendant was charged with excavating on his own land to 
 the injury of plaintiff's building, without giving previous 
 notice ; by another count he was charged with negligently 
 excavating. The question of notice was left to the jury, 
 who found notice had been given, but upon a general finding, 
 judgment was entered on the last count. It is plain that none 
 of the cases justified a verdict on the last count. , It is plain 
 that none of the cases justified the statement in Lasala v. Hol- 
 brook. The precise question was afterwards raised. One of 
 the counts of a declaration for injury done to a building by 
 removal of its support on adjacent land was founded on a 
 lack of notice. Tindal, Ch. J., in dealing with the case on 
 demurrer, said : ' ' As to the allegation that it was the duty of 
 defendant to give notice to plaintiff of his intention to pull 
 down his wall, * * * it is objected, and we think with 
 considerable weight, that no such obligation results as an 
 inference of law from the mere circumstance of the juxtapo- 
 sition of the walls of defendant and plaintiff.""' That cause 
 was thereafter tried before the same chief justice. One of 
 the issues was on the above mentioned count. Damages 
 were awarded generally. On writ of error, the Exchequer 
 Chamber reversed the judgment. Baron Parke, delivering 
 the unanimous judgment of the court, quoted the language 
 of Chief Justice Tindal, above set out, and added: "We also 
 think it impossible to say that, under such circumstances, 
 the law imposes upon a party any duty to give his neighbor 
 notice. We are inclined to think that the second count of 
 the declaration has made the breach of this supposed duty a 
 substantial ground for damage ; and the probability is that 
 the main damage did result from the want of notice, for it is 
 obvious that if notice had been given, the plaintiff might 
 
 ">* Trower v. Chadwick, 3 Bing. N. C. 334. 
 31 
 
483 REAL PROPERTY. 
 
 have taken precautions to strengthen their vault. Inasmuch, 
 therefore, as the damages are given generally upon the whole 
 declaration, we think that the judgment must be arrested, 
 and a venire de novo awarded.""" Notwithstanding this unmis- 
 takable deliverance, the statement of Chancellor Walworth 
 commenced and has continued to be cited as expressing the 
 conclusions of English courts on this subject. In the edition 
 of the third volume of Kent's Commentaries, which was 
 published in 1840, it is stated that "if the owner of a house in 
 a compact town finds it necessary to pull it down and remove 
 the foundation of his building, and he gives due notice of his 
 intention to the owner of the adjoining house, he is not answer- 
 able for the injury which the owner of that house may sus- 
 tain by the operation, provided he remove his own with 
 reasonable and ordinary care. ' ' 
 
 This statement was not made in the first edition of that 
 volume, which was published in 1828. From that fact, and 
 from the note to the passage above quoted,^ it is plain that it 
 was based upon Lasala v. Holbrook and the English cases of 
 1829. The case of Chadwick v. Trower was not alluded to. 
 After the decision of Trower v. Chadwick, Gale & Whately, in 
 their treatise on Easements, discussed the question of the 
 duty to give notice, now contended for, and declared their 
 opinion that, if the observations of Chief Justice Tindal in 
 that case were well founded, no such duty was imposed by 
 law. Those observations were adopted and approved by 
 the Exchequer Chamber. Subsequent authors in this 
 country have expressed views in respect to the duty to give 
 notice, but they refer for English authority only to the cases 
 of 1 829, on which the statement in Lasala v. Holbrook had 
 been based. The case of Chadwick v. Trower is not men- 
 tioned. They also refer to American cases as authority for 
 the doctrine. I have not been able to find among them a 
 single case justifying the statement. The cases generally 
 cited are Shrieve v. Stokes, 8 B. Mon. 453; Winn v. Abeles, 35 
 Kan. 85, and Shafer v. Wilson, 44 Md. 268. In Shrieve v. 
 Stokes, the question of the obligation to give notice was not 
 raised by the pleadings or the evidence. What was said by 
 
 «™ Chadwick v. Trower, 6 Bing. N. C. i (1839). 
 
EASEMENTS AND SERVITUDES. 483 
 
 the court on the subject was incidental, and based on sup- 
 posed authority of the English cases of 1829. In Winn v. 
 Abeles, the question of duty to give notice was not involved. 
 In Shafer v. Wilson, the question of liability for want of notice 
 was raised. The court below instructed the jury that notice 
 was a duty. In reviewing this instruction, the court above 
 only says that such notice would seem to be a reasonable pre- 
 caution, and bases this statement on Lasala v. Holbrook. 
 
 This review justifies the assertion that the doctrine con- 
 tended for has not the sanction of authority. In the only 
 adjudicated case not based on mistaken citations the deter- 
 mination was against the doctrine. 
 
 It is well settled that the owner of land adjacent to another 
 cannot remove the earth upon his own land so as to with- 
 draw the support of his neighbor's soil. If he attempts to do 
 so he may be enjoined, or if done, he is responsible for dam- 
 ages. This right is ex jure naturce, but it applies only to land 
 in its natural state. By both the ancient and present common 
 law A. cannot dig a pit upon his land so near the edge of it 
 that B. 's land will tumble into it; but this rule does not 
 apply where B. has burdened his land with artificial weight, 
 as by a building. It is strictly confined to cases where he 
 has not thus increased the lateral pressure. The adjoining 
 owner cannot, by changing the natural condition of his land, 
 take away his neighbor's right to the use he could have made 
 of it, in the absence of such change. He cannot load down 
 his own soil so as to require the support of his neighbor's. 
 In such a case the owner of the improved land can only hold 
 the adjoining owner liable for a negligent use of his prop- 
 erty, or when there is a failure to apprise him of the intended 
 use, and it is reasonably certain injury will result to him by 
 reason of it. 
 
 One who employs a contractor to excavate for a building is 
 not relieved of liability for the fall of a building on adjacent 
 premises caused by digging a trench too long and deep along- 
 side the wall by the fact that the work was done by a con- 
 tractor where the contract stipulated that the employer's 
 engineer should be in charge of the work, with power to 
 order the discharge of men who refused to obey his orders 
 and where by an authorized assistant he did in fact order the 
 
484 REAL PROPERTY. 
 
 trench to be dug as it was dug, and it follows that a proprie- 
 tor who makes excavation in his own land, near the premises 
 of his neighbor, in a careless and negligent manner, is liable 
 in damages for injuries to the building of the adjoining 
 owner, which were the consequence of his carelessness and 
 negligence in the work of excavation."' 
 
 Although work has been let to a contractor, this fact will 
 not exonerate a party for whom the work is performed from 
 liability for the negligent acts of the contractor, or his ser- 
 vants, if the right to control or direct the mode or manner of 
 the work in any respect is retained, or if such control be in 
 fact exercised, or such direction assumed."" 
 
 I conclude this summary with a citation from Mr. Beach. 
 "In cases where the party is entitled to lateral support, and, 
 by removing soil interfering with a party wall or otherwise 
 endangering that right, such damage is threatened as may 
 in its nature be irreparable, injunction will properly lie to 
 restrain such acts.""' On the other hand, an attempt to make 
 use of a party wall, when the same has by reason of fire or 
 other cause become unsafe, may be enjoined."" In a proper 
 case equity will restrain by injunction encroachments in the 
 nature of excavations, and interference with walls, etc., by 
 an adjacent owner in building operations."" But a land 
 
 '"Charless v. Rankin, 22 Mo. 71 Mo. 303; New Orleans M. & C. 
 
 566, 66 Am. Dec. 642; Stevenson R. Co. v. Hanning, 82 U. S.; 15 
 
 V. Wallace, 27 Gratt. 89; Moody v. Wall. 657 ; 21 L. ed. 223 ; Heffernan 
 
 McClelland, 39 Ala. 52, 84 Am. v. Benkard, i Robt. 432; Schwartz 
 
 Dec. 770 ; Myer v. Hobbs, 57 Ala. v. Gilmore, 45 111. 457, 92 Am. 
 
 177, 27 Am. Rep. 719; Shafer v. Dec. 227; Faren v. Sellers, 39 La. 
 
 Wilson, 44 Md. 269; Austin v. Ann. ion ; Brophy v. Bartlett, 10 
 
 Hudson River R. Co. 25 N. Y. Cent. Rep. 709; 108 N. Y. 632; 
 
 334; Quincy v. Jones, 76 111. 231, Jones v. Chantry, 4 Thomp. & C. 
 
 29 Am. Rep. 243; McMillan v. 61 ; Whart. Neg. sec. 181. 
 
 Staples, 36 Iowa, 532 ; Dodd v. ™' Phillips v. Boardman, 86 Mass. 
 
 Holme, I Ad. & El. 493; Foley v. 147; Trowbridge v. True, 52 Conn. 
 
 Wyeth, 2 Allen (Mass.), 131, 79 Am. 190; Morrison v. King, 62 111. 30. 
 
 Dec. 77 1 ; Washb. Easem. 4th ed. top '"> Hoffman v. Kuhn, 57 Miss. 749. 
 
 p. 582 et seq., *430 et seq.\ Thomp. «' Tribune Asso. v. Sun, 7 Hun, 
 
 Neg. 276 ; Cooley, Torts, 2d ed. I7S ; Southmayd v. McLaughlin, 24 
 
 top. p. 707, *595 ; Wood, Nuisances, N. J. Eq. 181 ; Chicago, B. & Q. R. 
 
 2d ed. sees. 189, 190. R. Co. v. Porter, 72 Iowa, 426. 
 
 »«» Speed v. Atlantic & P. R. Co. 
 
EASEMENTS AND SERVITUDES. 4^S 
 
 owner will not be enjoined from making excavations on his 
 land where no serious injury to the adjoining realty is immi- 
 nent, and where there is nothing peculiar in the situation 
 and circumstances of such realty.""' 
 
 § 199. Party walls and division fences. — a. Definition and 
 nature. A party wall is a partition wall, separating different 
 buildings and in the absence of express stipulations to the 
 contrary, either party may use it."' The presumption is 
 that a partition wall between different owners or between 
 different buildings under the same ownership, is a party 
 wall."" Contracts in relation to party walls create an ease- 
 ment running with the land, and are binding upon all sub- 
 sequent grantees."" An agreement by one owner that he 
 will contribute towards the expense of a party wall, to be 
 erected by the adjoining owner, said expense to be paid 
 "when the first owner shall build, ' ' is not a covenant running 
 with the land."" As to covenants that run with the land and 
 those that are merely personal see, post, ch. "Deeds." 
 
 Party Walls. A right to a party wall is such as the owner 
 of land has to build a division wall partly over his land and 
 on the land of the abutting owner. It has all of the charac- 
 teristics of an easement or servitude. The rights and liabili- 
 ties of the respective owners are differently construed by our 
 various State courts. A formidable array of authority, how- 
 ever, may be cited in support of the proposition that under a 
 valid agreement between the abutters, cross easements are 
 created which run with the land and consequently bind all 
 parties succeeding to the title."' 
 
 An eminent author says : " By party walls are understood 
 walls between two estates which are used for the common 
 benefit of both.""' 
 
 While this definition is suflBciently accurate and compre- 
 
 '"McMaugh V. Burke, 12 R. I. 47 How. Pr. (N. Y.), 273; Gating v. 
 
 499; Morrison v. Latimer, 51 Ga. Korfhage, 88 Mo. 524; Gibson v. 
 
 519; 2 Beach, Eq. Jur. 792. Holden, 115 111. 199. 
 
 "8 Field V. Leiter, 118 111. 17. "«Colev. Hughes, 54 N. Y. 445. 
 
 «■* Wolfe V. Frost, 4 Sandf . Ch. 72. «" Roberts v. Bye, 30 Pa. St. 377. 
 
 '"^ Masury v. Southworth, 9 Ohio "« 2 Washb. Real Prop. 5th ed. 
 
 St. 340 ; Roche V. Ullman, 104 111. 385. 
 II ; Columbia College v. Lynch, 
 
486 REAL PROPERTY. 
 
 hensive for ordinary purposes, it scarcely meets the require- 
 ments of many cases. Indeed it has been said "that the term 
 ■ party wall, ' and the rights which the owner or grantee of its 
 use acquires by mere force of the employment of that term in 
 a grant or covenant, has never been judicially defined. " But 
 it was also said in the same case that a ' ' party wall, ' ' when 
 used in such an instrument, and in its general ordinary sig- 
 nification, means a dividing wall between two houses, to be 
 used equally, for all the purposes of an exterior wall, by both 
 parties; that is, by the respective owners of both houses."' 
 
 These utterances appear to have met the approval of the 
 learned author already cited "° 
 
 The central idea, the true, comprehensive and undivided 
 meaning of the term "party wall," where used in any instru- 
 ment would seem to be that of mutuality of benefit ; and that 
 idea is at war with any exclusive use of such wall by either 
 proprietor. The eilect of such contracts is to create in each 
 owner of such wall reciprocal easements in the wall when 
 built."" 
 
 In short, the idea of reciprocity pervades the whole con- 
 tract, and effectually excludes the idea of any exclusive use 
 of the wall. This view meets with support in the following 
 cases : 
 
 In Sullivan v. Graffort, 35 Iowa. 531, an injunction was 
 granted to prevent the defendant from making openings in a 
 common or party wall built and paid for by him between the 
 two houses, and it was adjudged that plaintiff was entitled to 
 the use of the wall, could not subject it to any additional bur- 
 den than that of using it as a wall in common ; that any other 
 use, to wit, making openings therein, subjected it to a servi- 
 tude foreign to such use, and objects and purposes of the stat- 
 ute ; and that such limitation of the use was equally assertive, 
 whether before or after the wall became one in common, by 
 payment by each party of his proportionate share of the cost 
 of erection. The force and effect of this authority is not at 
 all diminished by the fact that rulings made were based upon 
 
 '"Fettretch v. Leamy, 9 Bosw. ""Sharp v. Cheatham, 5 West. 
 510. Rep. 373; 88 Mo. 498, and cases 
 
 ""Washb. Easem. 3d ed. 567. cited. 
 
EASEMENTS AND SERVITUDES. 487 
 
 Statutory provisions, for those provisions are substantially 
 identical with those of most contracts. 
 
 In the case of Dauenhauer v. Devine, 5 1 Tex. 480, a similar 
 ruling was made. In that case the original agreement was 
 for building a "party wall," Devine to build it, Dauenhauer 
 to give half the ground on which the wall was to rest, and to 
 pay half of the cost of the wall; Under this agreement, 
 Devine built a two-story building, Dauenhauer having at that 
 time a one-story building on his lot. Subsequently Dauen- 
 hauer began the erection of a three-story building on his lot, 
 and, being about to raise the party wall for that purpose, was 
 induced by Devine to sign an agreement that such wall should 
 be a " dead wall. ' ' As the work went on, however, Dauen- 
 hauer, either mistaking or else ignoring the second contract, 
 constructed the wall of the third story not as a dead wall, but 
 one with divers openings in it ; and upon this it was ruled 
 that the second agreement, having no consideration to support 
 it, was therefore void, but that the original agreement, being 
 for "party wall or a dividing wall between their houses, 
 obviously did not contemplate windows or doors. ' ' And so 
 the injunction prayed for was made perpetual."'" 
 
 The case of Brooks v. Curtis, 50 N. Y. 639, decides that one 
 owner of a party wall has a right to build it up, and the same 
 is held in Everett v. Edwards, 149 Mass. 588. In Campbell v. 
 Messier, 4 Johns. Ch. 334, Chancellor Kent decided that one 
 owner of a party wall who had rebuilt it could recover con- 
 tribution of the other owner; so in Fields. Leiter, ii'^ 111. 341, 
 the wall was built by plaintiff one-half on adjoining land. 
 This land the defendant bought and an agreement followed 
 by which the defendant might use the wall as a party wall 
 for his store, ten stories high, with the right to add to it, the 
 defendant agreeing to strengthen the wall and foundation by 
 necessary additions thereto on his own side. It was held 
 that the defendant had a right to make necessary additions 
 to the foundation on the plaintiff's side. The limitation 
 upon the right of each owner to use a party wall as lateral 
 support for such houses as he may choose to erect, is that he 
 shall not impair the use of the structure to the other owner. 
 
 "' Sherwood, J., in Harber v. Evans, loi Mo. 661. 
 
488 REAL PROPERTY. 
 
 If one owner carries up the -wall, fhe addition becomes part 
 of the party wall, and the owners have equal rights in it and 
 neither has a right to so use the wall as to weaken or impair 
 its similar use by the other/" 
 
 ' ' The fairer view and the one generally adopted in legisla- 
 tive provisions on the subject, in this and other countries, is 
 to treat a party wall as a structure for the common benefit 
 and convenience of both of the tenements which it separates, 
 and to permit either party to make any use of it which he 
 may require, either by deepening the foundations or increas- 
 ing the height, so far as it can be done without injury to the 
 other." The party making such change is obligated to 
 observe care not to occasion injury to the adjoining owner, 
 but the authorities generally seem to hold that in so far as he 
 can use the party wall in the improvement of his own prop- 
 erty, without injury to such wall or the adjoining property, 
 there is no good reason why he may not be permitted to 
 do so."* 
 
 A wall standing partly on the premises of each of adjoin- 
 ing owners, the portions of which are owned by them in 
 severalty, with an easement for the support of the building 
 of one of them, may be removed by the other for the purpose 
 of erecting a new and better wall, although some inconve- 
 nience is thereby occasioned to the other owner ; provided a 
 new one is built within a reasonable time and with the least 
 inconvenience to the other party and which shall furnish him 
 the same right of support, and that he shall be indemnified 
 for necessary expenses thereby occasioned him in conse- 
 quence of the removal of the wall."" 
 
 In an action to recover the value of one-half of a party wall 
 erected by the plaintiff, partly on his estate and partly on 
 that of the defendant, the jury may, in the absence of an ex- 
 press agreement as to payment on the defendant's part, infer 
 a promise to pay, if the plaintiff undertook and completed 
 the wall with the expectation that the defendant would pay 
 him for it, and the defendant had reason to know that the 
 
 '" Phillips V. Boardman, 4 Allen «" Putzell v. Drovers & Me- 
 (Mass.), 447. chanics' National Bank of Balti- 
 
 "^ Field V. Leiter, 118 111. 17. more, L. R. A. 22. 
 
EASEMENTS AND SERVITUDES. 489 
 
 plaintiff was so acting with that expectation, and allowed 
 him so to act without objection."' 
 
 If the wall becomes dilapidated so that it is in obvious 
 need of reconstruction, either party may, for his own safety, 
 and the protection of others, remove the wall, and either 
 party may underpin a wall or raise it higher for his own pur- 
 pose, as long as it can be done without injury to the adjoining 
 building. The cases on this subject will be found referred 
 to in Cooley on Torts, and also collated in the case of Brooks 
 V. Curtis, 50 N. Y. 639. But in those cases it does not become 
 a mere question of care and diligence. There is an absolute 
 duty imposed upon the proprietor who makes an alteration in 
 the wall to see that his neighbor's property is not injured, 
 and whether he exercises due care and skill or not, he is abso- 
 lutely responsible for any injurious result that is traceable to 
 the alteration. 
 
 Where a person purchases a vacant lot which supports half 
 of the wall of the building erected on the adjoining lot, and 
 such purchaser is, by the terms of a party wall agreement, 
 entered into by his grantor, obliged to pay a part of the cost 
 of said wall in the event of his using it, such agreement runs 
 with the land and the wall will be deemed an incumbrance. 
 A covenant against incumbrances includes both those known 
 and unknown to the purchaser."' In the case first cited the 
 rule was inspired by the fact that there was an unpaid bal- 
 ance due the abbuting owner before the wall could be made 
 available by the owner of the vacant lot. The mere exist- 
 ence of the wall itself — had it been fully paid for — would 
 have called for an entirely different conclusion. The Supreme 
 Court of Iowa, in Bertram v. Curtis, 31 Iowa, 46, held that 
 where the owner of a vacant lot on which rests one-half of a 
 neighbor's wall, conveys the same with a covenant of war- 
 ranty against incumbrances, the existence of such wall is 
 not a breach of the covenant, and in Hendricks v. Stark, 37 
 N. Y. 106, it was held that a party wall creating a commu- 
 nity of interest between adjoining proprietors is in no just 
 sense to be deemed a legal incumbrance. 
 
 "" Day V. Caton, 119 Mass. 513,20 Huyck v. Andrews, 113 N. Y. 85; 
 Am. Rep. 347. Carter v. Denman, 23 N. J. L. 273; 
 
 "' Burr V. Lamaster, 30 Neb. 688 ; Mitchell v. Warner, 5 Conn. 527. 
 
490 REAL PROPERTY. 
 
 An addition to a party wall made by one of two adjoining 
 owners, entirely on his own land, for the purpose of thicken- 
 ing and strengthening the wall so as to support a higher 
 building, does not become a part of the party wall, and the 
 abutting owner who uses the wall as strengthened in increas- 
 ing the height of his building, is under no obligations to pay 
 for the advantage so obtained."' 
 
 Where such a wall is erected one-half on the land of each 
 adjoining proprietor, it does not render them tenants in com- 
 mon, but each is the owner in severalty of his part both of 
 the wall and the land on which it stands. But the title of 
 each is qualified by a cross easement in favor of the other 
 which entitles him to support his building by means of the 
 half of the wall belonging to his neighbor ; in other words, 
 each proprietor owns his own half in severalty, with an 
 easement of support from the other half belonging to his 
 neighbor."' It is commonly held that each part owner may 
 certainly increase the height of his half of the wall, or so 
 much as stands on his own land, if he does not thereby endan- 
 ger or injure the wall, he being responsible for any resulting 
 damage occasioned by any change in the structure not 
 required for repairs."" 
 
 There is much force in the holding that each proprietor 
 may increase the height of the entire party wall if it can be 
 done without injury to the rights of the remaining owner."" 
 In the absence of any statutory regulation the question is 
 largely determinable by the rules of the common law bear- 
 ing on easements of this nature. Ordinarily a party wall 
 will be construed to mean a solid wall without windows or 
 openings. Such openings impair the stability of the struc- 
 ture ; they increase the fire risk and affect the adjoining pro- 
 prietor injuriously in many ways. If allowed to continue 
 for twenty years the right to these window openings would 
 mature into a perfect legal right under the doctrine of pre- 
 scription."" 
 
 '58 Walker v. Stetson, 162 Mass. ""Andrae v. Haseltine, 58 Wis. 
 
 86; Allen v. Evans, 161 Id. 485. 395. 
 
 "' Bloch V. Isham, 28 Ind. 37 ; 2 231 Brooks v. Curtis, 50 N. Y. 639. 
 
 Washb. Real Prop. 386 ; Tied. Real "» Ulbricht v. Eufaula Water Co. 
 
 Prop. sec. 620. 86 Ala. 587. 
 
EASEMENTS AND SERVITUDES. 49 1 
 
 So the owner of land who contracts with various masons 
 and builders, for the erection of a party wall, is liable in tort 
 for the damages and injuries that follow its collapse result- 
 ing from its defective and unsafe erection, regardless of the 
 fact that the casualties were entirely attributable to the neg- 
 ligence of the masons or builders."" He has the same duty 
 to keep on his own land a house or wall built thereon, as the 
 filth in his cesspool, or the water in his reservoir, or the 
 snow and ice on his roof. His duty, in the language of 
 Baron Parke, is to keep it in such a state that his neighbor 
 may not be injured by its fall."' This distinguished judge 
 is sustained in the views expressed by Baron Bramwell in a 
 subsequent case, as is clear from the following language: 
 ' ' What is the difference between a reservoir and a stack of 
 chimneys for such a question as this? Here the defendant 
 stored a lot of water for his own purpose ; in the case of the 
 chimneys some one has put a ton of brick fifty feet high for 
 his own purposes ; both equally harmless if they stay where 
 placed, and equally mischievous if they do not. I admit that 
 it is not a question of negligence. A man may use all care 
 to keep the water in, or the stack of chimneys standing, but 
 would be liable if, through any defect, though latent, the 
 water escaped or the bricks fell.""' 
 
 Taking the case of the party wall and the relations of the 
 masons to the owner, in such a case the former alone would 
 be responsible to third parties injured through their negli- 
 gence, of matters plainly collateral to the contract, as where 
 the injury results from improper staging or scaffolding, or on 
 improperly depositing materials or handling tools. But 
 where the very thing stipulated to be done is improperly 
 done whereby injury results to another, the employer is 
 responsible for it, at least after having duly accepted the 
 work of the contractors.'" The liability thus imposed dis- 
 appears in the presence of such contributory negligence on 
 
 ^^^ See People v. Bueddensick, 103 '^^ Fletcher v. Rylands, L. R. I. 
 
 N. Y. SOI. Ex. 280, and L. R. 3 H. L. 340 ; 
 
 »'* Chauntler V.Robinson, 4 Exch. Chicago v. Robbins, 2 Black. 41S; 
 
 163. Conners v. Hennessy, 112 Mass. 
 
 ''= Nichols V. Marspand, L. R. 10; 96; Boswell v. Laird, 8 Cal. 469, 
 
 Ex. 259. 498. 
 
492 REAL PROPERTY. 
 
 the part of the injured party as will fairly raise a presump- 
 tion that had he been in the exercise of due, or even ordinary 
 care, the injury would not have happened, or where the 
 injury is attributable to " Vis Major," or act of God, or mob 
 violence and the unauthorized acts of others, such as the 
 owner could not be supposed to anticipate."' The opposite 
 views have been unavailingly argued in a number of 
 instances. 
 
 The question whether a contract having relation to lands 
 is personal, or whether it constitutes a charge upon the 
 lands, obviously must be determined by a consideration of 
 the expressed intentions of the parties, and of the existence 
 of any interest in the land raised by force of its covenants. 
 Words of grant are not essential to create the interest, and a 
 covenant may be construed as a grant. Such a construction 
 has been given where the covenant related to a right of way 
 over land."" In Hart v. Lyon, 90 N. Y. 663, the contract for 
 the party wall was held unenforceable against a purchaser at 
 a sale in foreclosure, for being merely a personal obligation ; 
 but the covenant that the expense of repairing or rebuilding 
 the party wall should be borne equally by the parties, "their 
 respective heirs and assigns, "was regarded as a covenant run- 
 ning with the land. The court so held in that case, because, 
 as they say, "it is evident that it was the plain import of 
 the instrument that the portion which bound the heirs and 
 assigns should be construed as perpetual and as running with 
 the land. ' ' Without any other reference to or discussion of 
 the many cases which bear upon the subject of the nature of 
 the obligation of a contract, in its connection with land, we 
 may rest upon the rule that where the covenant concerns 
 land, and is one which is capable of being annexed to the 
 estate, and it appears that it is the intention of the parties as 
 expressed in the instrument, then it shall be construed as 
 running with and charging the land thereafter. 
 
 In Campbells. Mesier, 4 Johns. Ch. 334, a party wall, stand- 
 ing equally on two lots, having become ruinous, the owner 
 on one side, against the will and in spite of the prohibition of 
 
 ''■'Mahoney v. Libbey, 123 Mass. ''^ jjolms v. Seller, 3 Lev. 305. 
 20, and cases cited. 
 
EASEMENTS AND SERVITUDES. 493 
 
 the adjacent owner, pulled down the wall and rebuilt it 
 higher than it was originally. It was held that the adjacent 
 owner was bound to contribute to the expense of the new 
 wall, but not to the extra expense of making it higher than 
 the old. There is no intimation in the case that the increase 
 of height was wrongful. 
 
 In Partridge v. Gilbert, i'^ N. Y. 60 1, the new wall built by 
 the defendant was not only higher, but its foundations were 
 deeper than the old wall which it replaced. The right to 
 make these additions was not, however, discussed in the case, 
 and perhaps there was no occasion to discuss it ; the action 
 being brought by the tenant of the adjacent lot, whose 
 goods were injured in making the repair, and not by the 
 own 
 
 In Eno V. Del Vecchio, 4 Duer. 53, it was held that the owner 
 on one side of a party wall might, for the purpose of improv- 
 ing his own premises, underpin the foundation of the wall 
 and sink it deeper if he could do so without injury to the 
 building on the adjoining lot ; also, that he might increase, 
 within the limits of his own lot, the thickness, length, or 
 height of the wall, if he could do so without injury to the 
 building on the adjoining lot. Whether he could raise the 
 whole party wall higher, or whether any additional elevation 
 must be wholly within the limits of his own lot, the court 
 expressly declined to decide. 
 
 Certainly the right of either of the adjacent owners to 
 increase the height of a party wall, when it can be done 
 without injury to the adjoining building, and the wall is 
 clearly of sufficient strength to safely bear the addition, is 
 necessarily included in the easement. 
 
 In Sherred v. Cisco, 4 Sandf. 480, it was held that, where a 
 party wall was destroyed by fire, the law would imply no 
 obligation on the adjoining owners to join in rebuilding a 
 new wall, where there was no agreement so to do, the parties 
 being remitted to their original unqualified title up to the 
 divison line. And Denio, C. J., in speaking of that case, 
 declares that he sees no solid distinction between a total 
 destruction of the walls and buildings, and a state of things 
 which would require the whole to be rebuilt from the f ounda- 
 
494 REAL PROPERTY. 
 
 tion ; that in either case there is great force in saying that 
 the mutual easements have become inapplicable."" 
 
 In Cheeseboroiigh v. Green, lo Conn. 318, which was an action 
 on the case, brought by the owner of the lower part of a 
 store against the owner of the upper part and roof, to recover 
 damages for sufifering the roof to be out of repair, the court 
 held that the action could not be sustained, suggesting that 
 the plaintiff could have relief only in a Court of Chancery. 
 
 The civil law recognizes the existence of an easement to 
 compel the owner of the servient tenement to repair, as distin- 
 guished from the ordinary easement of support; but the 
 additional obligation to repair can only arise from express 
 stipulation, or by proof of a prescriptive right to the ease- 
 ment of repair as well as support."" 
 
 An addition to a party wall made by one of two adjoining 
 owners of land entirely on his own land, for the purpose of 
 strengthening and thickening the wall and foundation so as 
 to support a higher building, does not become a part of the 
 party wall, and the other adjoining owner, who subsequently 
 uses the wall as strengthened in increasing the height of his 
 building, but who does not project his timbers beyond that 
 portion of the wall standing on his land, though liable under 
 his deed to pay for the half of the original division wall 
 erected on his land, cannot be restrained from making such 
 use of the addition, or made liable for a portion of its cost."' 
 
 ' ' Land covered by a party wall remains the several prop- 
 erty of the owner of each half, but the title of each owner is 
 qualified by the easement to which the other is entitled of 
 supporting his building by means of the half of the wall 
 belonging to his neighbor.'"" 
 
 As I have read the law from the statement of eminent 
 judges, a tenant in common has a right to pull down when 
 the wall is neither defective nor out of repair, if he only 
 wishes to improve it, or put up a better or handsomer one. 
 Chancellor Kent was of the same opinion. In the following 
 passage from his commentaries (vol. 3, p. 437), he assumes 
 
 «'» Partridge V. Gilbert, 15 N. Y. "■ Wallcer v. Stetson, 162 Mass. 
 601 ; Kerr on Injunctions, 376. 86. 
 
 "» Gale on Easem. 4th ed. 312 "^ Ingals v. Plamondon et al., 75 
 
 111. 118. 
 
EASEMENTS AND SERVITUDES. 495 
 
 the rights as settled : "If there be a party wall between two 
 houses, and the owner of one of the houses pulls it down in 
 order to build a new one, and with it he takes down the party- 
 wall belonging equally to him and his neighbor, and erects a 
 new house and wall, he is bound on his part to pull down and 
 reinstate it in a reasonable time, and with the least inconve- 
 nience. ' ' 
 
 And from the remarks of Chief Justice Bartol, in Glenn v 
 Davis, 35 Md. 219, it may be readily inferred that the opinion 
 of that court was the same. 
 
 § 200. Division fences. Fences are largely regulated by 
 local laws. Boundary fences are built on the line and when 
 made as intended by law, the cost is borne equally between 
 the parties. A partition fence is presumed to be the common 
 property of both owners."' 
 
 In general, fences on boundaries are to be built on the line, 
 and the expense, when made no more expensively than is 
 required by the law, is borne equally between the parties. 
 See the following cases on the subject: 2 Miles, 337, 395; 2 
 Greenl. 72; 11 Mass. 294; 3 Wend. 142; 2 Mete. 180; 15 Conn. 
 526; 2 Miles, 447; Bouv. Inst. Index, h. t. 
 
 The law has been thus stated : " If I build a fence upon my 
 neighbor's land, it is his, not mine ; and the dominion which 
 every man has over his own property, gives him a right to 
 remove it whenever he pleases.'" If it be useful to me as 
 well as to him, and if I build it in consideration of his prom- 
 ise that it should stand there forever, and he removes it in 
 violation of that promise, I may recover in an action on the 
 contract the value of my labor, and, perhaps, for the conse- 
 quential injury. On no principle known to the law can I 
 maintain an action of trespass.""' But it is held that when 
 one of two conterminous proprietors erects a division fence, 
 and, by mistake, places it on the other's land, he is entitled 
 to remove it to the true line, within a reasonable time after 
 discovering the mistake."' 
 
 "^Anderson's Law Diet. tit. "«Matson v. Calhoun, 44 Mo. 
 Fences. 368; see Glowers v. Sawyer, i 
 
 "" Glowers V. Sawyer, i Head. 156. Head. 156. 
 
 "« Black, J., in Dietrich v. Berk, 
 34 Pa. St. 470, 472. 
 
496 REAL PROPERTY. 
 
 Covenants to maintain division fences are held to run with 
 the land, and the future grantees of the covenantor are held 
 to an observance of his covenant."' Unless a release is pro- 
 vided by statute, contracts to erect and maintain a division 
 fence are irrevocable except by mutual consent. °" They 
 are, in their nature, real estate, belonging to the owner of 
 the land, and pass by his deed of the land, without being 
 expressed or designated as part of the thing granted."" 
 
 a. Generally regulated by statute. As stated, the subject of 
 partition fences is generally regulated by statutes ; and it may 
 be stated in general terms that such statutes ordinarily require 
 adjacent owners of improved lands to contribute equally to 
 the maintenance of partition fences, provide for the assign- 
 ment by fence-viewers, town trustees, or other proper offi- 
 cers, of the portion of fence which each owner is to build and 
 maintain, and for the appraisement by such officers when 
 necessary to the adjustment of the mutual rights of the par- 
 ties, of the value of fences erected or repairs made, and pre- 
 scribe suitable methods of enforcing the adjudications of 
 those officers. These statutes regulating partition fences are 
 in the nature of police regulations."" 
 
 In some of the States the owner of land is required by stat- 
 ute to fence it, and he is deprived of all right to complain of 
 trespasses by animals committed by reason of the want of a 
 fence."' But a statute of this kind is to be construed as hav- 
 ing reference to domestic animals properly restrainable by 
 fences, as horses, cattle, sheep, etc., and not to animals not 
 restrained or kept within bounds by common fences. As to 
 them the principle of the common law remains in force, and 
 their owner must keep them at his peril. 
 
 Where land is enclosed in common, by agreement, this 
 releases each party from obligation to build a partition 
 
 "■■Easter v. Little Miami R. R "» Coster v. tide Water Co., 18 
 
 Co., 14 Ohio St. 48 ; Bronson v. N. J. Eq. 54 ; McKeever v. Jenks, 
 
 Coffin, 108 Mass. 175; Kellogg v 59 Iowa, 300; American and Eng- 
 
 Robinson, 6 Vt. 276. lish Ency. of Law, vol. 7, page 896. 
 
 «<' York v. Davis, n N. H. 241. «' See Studwell v. Ritch, 14 Conn. 
 
 5« Murray V. Van Derlyn, 24 Wis. 292; Hine v. Wooding, 37 Id. 123; 
 
 67 ; Mott V. Palmer, i Comst. (N. Van Leuven v. Lyke, i N. Y. 
 
 v.), 564. (I Comst.), 515, S17. 
 
EASEMENTS AND SERVITUDES. 497 
 
 fence, and each is liable to the other for damages from his 
 cattle."' 
 
 Where two owners of adjoining lands fence their land in 
 common, but have no partition fence, the owner of each tract 
 is liable for trespasses committed by his cattle on the other's 
 land.'" 
 
 In a Vermont case it was said that "under our more recent 
 statutes, the law now is in this State, as it ever has been in 
 England and other of the American States, that the owner of 
 land is under no obligation to fence his land along the high- 
 way. The obligation in this respect results only from his 
 duty to restrain his own cattle from trespassing upon his 
 neighbor.""* 
 
 b. Railroad fences. A law requiring railroads to fence and 
 to pay value of cattle killed, has been enforced in several 
 States.'" 
 
 Where no statutes exist, and no obligation is imposed by 
 covenant or prescription, a railway company is no more 
 bound to fence its land than an individual."" And if cat- 
 tle are suffered to run at large, and are injured or killed on 
 the track of a railroad, without wantonness, or such gross 
 
 '=* Winters v. Jacob, 29 Iowa, 402; McCall v. Chamberlain, 13 
 
 115; Montgomery v. Handy, 63 Wis. 637 ; Blair v. Milwaukee & P. 
 
 Miss. 43 ; Milligan v. Wehinger, 68 du Ch. R. Co. 20 Id. 262; Gor- 
 
 Pa. 235. man v. Pacific R. Co. 26 Mo. 441, 
 
 "^ Baker v. Robbins, 9 Kan. 303 ; 72 Am. Dec. 220 ; Nail v. St. Louis 
 
 Markin v. Priddy, 40 Id. 684, K. C. & N. R. Co., 59 Mo. 112; 
 
 overruling Markin v. Priddy, 40 Trice v. Hannibal & St. J. R. Co. 
 
 Id. 462 ; O'Riley v. Diss, 41 Mo. 49 Mo. 438 ; Spealman v. Missouri 
 
 App. 184. Pac. R. Co. 71 Id. 434; Wilder v. 
 
 "■• Barret, J., in Holden v. Shat- Maine Cent. R. Co., 65 Me. 332, 20 
 
 tuck, 34 Vt. 336, 343. And see Am. Rep. 698. 
 
 Chambers v. Matthews, 18 N. J. ''^^ Dean v. Sullivan Ry., 2 Post. 
 
 Law, 368. (N. H.), 316 ; New York & Erie Ry. 
 
 "'Ohio & M. R. Co. v. Clutter, Co. v. Skinner, 19 Pa. St. 298; 
 82 III. 123; Small V. Chicago, R. L Hurd v. Rutland, etc., R. R. Co., 
 & P. R. Co., 50 Iowa, 338; Cleve- 25 Vt. 116; Northeastern R. R. Co. 
 land, C. C. & 1. R. Co. v. New- v. Sineath, 8 Rich. (S. C), 185; 
 brander, 40 Ohio St. 15 ; Heskettv. Williams v. Mich. Cent. R. R. Co., 
 Wabash, St. L. & P. R. Co., 61 2 Mich. 259; Clark v. Syracuse, 
 Iowa, 467 ; Texas & St. L. R. Co. v. etc., R. R. Co. 11 Barb. 112 ; Van- 
 Young, 60 Tex. 201 ; Chicago, M. & dergrift v. Delaware R. R. Co., 2 
 St. P. R. Co. V. Dumser, 109 111. Houst. (Del.), 297. 
 32 
 
498 REAL PROPERTY. 
 
 negligence as might amount to the same thing, the owner has 
 no recourse against the company or its servants."" 
 
 The United States Supreme Court, in discussing the Mis- 
 souri fencing law, and its constitutionality under the police 
 power, uses this emphatic language : " In few instances could 
 the power be more wisely or beneficially exercised than in 
 compelling railroad corporations to enclose their roads with 
 fences, having gates at crossings, and cattle guards. The 
 speed and momentum of the locomotive renders such protec- 
 tion against accident, in thickly settled portions of the coun- 
 try, absolutely essential. The omission to erect and main- 
 tain such fences and cattle guards, in the face of the law, 
 would justly be deemed gross negligence.""" Thus, while 
 the statute only imposes upon the corporation, as a penalty 
 for the non-observance of the law, double damages for ani- 
 mals killed or injured, the duty to fence is made obligatory. 
 The duty is absolute and unqualified, and is reasonably sup- 
 posed to have been intended for the protection of all persons 
 upon railroad trains, who are exposed to danger by such 
 obstructions, whether they be passengers or employes. The 
 right of a passenger to recover for personal injuries incurred 
 on account of such negligence has been declared,"" and also 
 of a parent to recover for the death of an infant child who 
 wandered upon a railroad track, by reason of a defective 
 fence, and was struck by a train."" 
 
 Well-considered opinions hold that a right of action also ac- 
 crues to an employe, engaged upon a railroad train, for injuries 
 received without his own fault, by reason of the negligence 
 of the corporation in failing to comply with the fencing stat- 
 
 ''^ Railroad Co. v. Skinner, 19 Jackson, 56 Ark. 597 ; Gulf, C. & S. 
 
 Pa. St. 298 ; Housatonic R. R. Co. F. R. Co. v. Wilson, 79 Tex. 371 ; 
 
 V. Knowles, 30 Conn. 313; Galpin 11 L. R. A. 486. 
 
 V. Chicago, etc., R. R. Co., 19 Wis. ««" Keyser v. Chicago & G. T. R. 
 
 604; Brown v. Hannibal, etc., R. Co. 56 Mich. 559, 56 Am. Rep. 405; 
 
 R. Co., 33 Mo. 309 ; Richmond v. Struettgen v. Wisconsin Central 
 
 Sacramento Valley R. R. Co., 18 Co. 80 Wis. 498 ; Isabel v. Hannibal 
 
 Cal. 351. & St. J. R. Co. 60 Mo. 484; Single- 
 
 ''« Missouri Pac. R. Co. v. Humes, ton v. Eastern Counties R. Co. 7 C. 
 
 115 U. S. 522; 29 L. ed. 466. B. (N. S.) 287 ; Chicago, B. & Q. R. 
 
 559 1 
 
 'Blair v. Milwaukee & P. du Co. v. Grablin (Neb.), 56 N. W. 
 Oh. R. Co. 20 Wis. 254; Fordyce v. Rep. 797. 
 
FRANCHISES AND CHARTER RIGHTS. 499 
 
 lite. It has so been held, under a similar statute, by the New 
 York Court of Appeals."' 
 
 c. Barbed wire fences. Unless under the control of some 
 statutory enactment, there is no objection to the erection of a 
 barbed wire fence. All that is expected from the owner of 
 such a fence is that he will keep the same in a reasonable 
 state of repair The wire should be kept at a proper height 
 and tension. And an Indiana case has held that the owner of 
 a piece of property adjoining the highway which he has pro- 
 tected from intrusion by a barbed wire fence, must not allure 
 cattle straying along the highway by the presence of tempt- 
 ing forage or the sight of other cattle feeding there.'" This 
 is a very fanciful doctrine. We cannot believe that the 
 court divested itself of its very best judgment when it pro- 
 nounced this opinion. At common law the owner of land 
 was not obliged to fence it. But by statutory provision in 
 most of the States, railways are required to maintain fences 
 and cattle guards along the line of their roadbed. In this 
 country, as we have seen,, the matter is largely under the 
 control of local statutes. 
 
 d. Rules of the Massachusetts court regulating this subject. In 
 the well considered case of Rust v. Low, 6 Mass. 90, the fol- 
 lowing principles appear to be recognized and established : 
 
 1. At common law, the tenant of a close was not obliged to 
 fence against an adjoining close, unless by force of prescrip- 
 tion. 
 
 2. When a man was obliged by prescription to fence his 
 close, he was not obliged to fence against any cattle but those 
 which were rightfully in the adjoining close. 
 
 3. A man, though not bound to fence against an adjoining 
 close, was still bound at his peril to keep his cattle on his 
 own close, and prevent them from escaping. 
 
 4. The legal obligations of the tenants of adjoining lands 
 to make and maintain partition fences, where no prescription 
 exists, and no written agreement has been made, rest on the 
 statute. 
 
 5. An assignment, pursuant to the statute, imposes the 
 same duty as would result from a prescription. 
 
 "' Donnegan v. Erhardt, 119 N. «' gisk ^ Crump, 112 Ind. 504. 
 Y. 472, 7 L. R. A. 527. 
 
500 REAL, PROPERTY. 
 
 6. Where there is no prescription or agreement the provi- 
 sions of the statute oblige a tenant, liable to make the parti- 
 tion fence, or any part of it, to fence only as in the case of 
 prescription at common law ; that is, against such cattle as 
 are rightfully on the adjoining land. 
 
 7. Every person may maintain trespass against the owner 
 of cattle which trespass upon his land, unless such owner can 
 protect himself by the provisions of the statute, or by a writ- 
 ten agreement, or by prescription. "° The general doctrines 
 as above stated have been frequently affirmed, in the State 
 of Maine and elsewhere.''" 
 
 In Massachusetts, the doctrine has always been recognized 
 that the owner or occupier of land may be bound by prescrip- 
 tion to a more extensive obligation to keep up and repair the 
 division fences than would be imposed upon him by the com- 
 mon law or by the statutes of the commonwealth."" In Bin- 
 ney v. Hull, 5 Pick. 503, 506, it was adjudged that the owner 
 of one of two adjoining lots of land might be bound by pre- 
 scription to maintain the fence between them, and Chief Jus- 
 tice Parker spoke of the right to have him do so as an ease- 
 ment in his land. 
 
 In Easter v. Little Miami Railroad Co., 14 Ohio St. 48, after 
 a careful review of the leading cases in this commonwealth 
 and elsewhere, a positive opinion was expressed that, in a 
 deed to a railroad corporation of a right of way over land of 
 the grantor on which its tracks had been laid out, a covenant 
 that the grantor, his heirs and assigns, would build and for- 
 ever keep up a fence on each side thereof through the 
 grantor's land, was a covenant running with that land; and 
 it was held that an assignee of that land was so far bound 
 thereby that he could derive no advantage from its breach. 
 
 The only difference of opinion manifested in the cases 
 cited, as to the operation of an agreement to build a fence, 
 
 "'Little V. Lathrop, 5 Me. 356; v. Rehman,49 Pa. St. loi ; Holladay 
 
 Lyons v. Merrick, 105 Mass. 71. v. Marsh, 3 Wend. 142. 
 
 ''^ See Lord v. Wormwood, 29 Me. '" Rust v. Low, 6 Mass. 90, 94, 97 ; 
 
 282; Lawrence v. Combs, 31 N. H. 2 Dane Abb. 659, 660; Minor v. De- 
 
 331; Lyman v. Gipsen, 18 Pick, land, 18 Pick. (Mass.) 266, 267; 
 
 (Mass.)422;Coxev.Robbins,4Halst. Thayer v. Arnold, 4 Met. (Mass.) 
 
 (N. J.) 384; North Penn. R. R. Co. 589. 590. 
 
EASEMENTS AND SERVITUDES. $01 
 
 by way of charging the land with the obligation, has been 
 where it expressed the undertaking of the grantee in a deed 
 poll. If a grantee accepts such a deed, a promise binding 
 himself and his representatives personally is doubtless im- 
 plied."' 
 
 But in Parish v. Whitney, 3 Gray, 516, it was held that such 
 a clause, even if purporting to bind the grantee's heirs and 
 assigns, was not a covenant in any sense, and did not create 
 an incumbrance upon the land. If that decision can be sup- 
 ported, it must be as falling within the rules that no ease- 
 ment in or right affecting real estate can be created by con- 
 tract of the party, except by deed, and that an agreement not 
 sealed by the party who is to perform it cannot create a cove- 
 nant or run with the land."' On the other hand, it has been 
 held in Vermont and New Hampshire, that such a promise 
 by the grantee in a deed poll, for the benefit of the adjoining 
 land of the grantor, who retained no other interest in the 
 land granted, was equivalent to a covenant running with the 
 land, and created an incumbrance thereon. 
 
 In Schwoerer v. Boylston Market Association, 99 Mass. 285, 
 the provision in the deed establishing the passageway de- 
 clared that it should "not be subject to have any fence or 
 building erected thereon;" and this was held to give a right 
 to have the entire court or passageway kept open to the sky, 
 for light, air and prospect, and every other accommodation 
 and advantage which such an open court might furnish to an 
 estate abutting upon it. 
 
 In Brooks v. Reynolds, 106 Mass. 31, the passageway was 
 declared in the deed to be for light and air, and was always 
 to be kept open for the purpose aforesaid, and this was held 
 to give a right to the open and unobstructed passage of light 
 and air from the ground upwards, and throughout the length 
 of the passageway. 
 
 In the case of Salisbury v. Andrews, 128 Mass. 336, the ten- 
 ants in common had laid out their land in Boston with a pas- 
 
 '"* Minor v. Deland, 18 Pick. 266; v. Copeland, 2 Gray, 302; Maine v. 
 
 Newell V. Hill, 2 Met. 180. Cumston, 98 Mass. 317, 320; Wright 
 
 '" Dyer v. Sanford, 9 Met. 395; v. Wright, 21 Conn. 329, 342; Bick- 
 
 Goddard v. Dakin, 10 Id. 94; Morse ford v. Parson, 5 C. B. 920. 
 
502 REAL PROPERTY. 
 
 sageway or court, upon both sides of which they had erected 
 buildings fronting upon the way ; and, by a deed of partition 
 of the property, they provided that the way "shall be left 
 and always lie open for the passageway or court aforesaid, 
 for the common use and benefit of both of said parties and 
 their respective estates. ' ' It was held that the right of an 
 owner under this deed was not simply a right of way, but a 
 right to the use and benefit of an open court, extending as 
 well to the light and air above as to the actual travel upon 
 the surface of the earth. 
 
 e. Where the doctrine of prescription applies. In the Court of 
 Appeals of New York Chief Justice Denio assumed as settled 
 beyond question, that there might be a valid prescription by 
 which the owner of land might become bound to maintain 
 perpetually the whole of the division fence between his and 
 the adjoining land; and said that he did not entertain doubt 
 but that when such prescription is established, it fastens itself 
 upon the land charged with the burden, and in favor of the 
 tenement benefited by it."' That covenants to erect and 
 keep in repair division fences are covenants running with the 
 land and as such binding upon the covenantor, must be 
 regarded as settled law in that jurisdiction. "° See, also, in 
 further confirmation of this view, Easter v. Little Miami Rail- 
 road Co., 14 Ohio St. 48; Kellogg v. Robinson, 6 Vt. 276; Bur- 
 bank v. Pillsbury, 48 N. H. 475. 
 
 § 201. Servitude of drip and drain. Kent says the servitude 
 of drip is that by which one man engages to permit the 
 waters flowing from the roof of his neighbor's house to fall 
 on his estate."" And if such a permit continues, for a period 
 of twenty years, the law will indulge the presumption of a 
 grant of the right so to use it."' Such easements and servi- 
 tudes as the above may be created by reservation but not by 
 parol, although they may arise by prescription or dedica- 
 tion."" It is held that acquiescence in what would be a nui- 
 
 "' Adams v. Van Alstine, 25 N. Mich. 232; Cherry v. Stein, 11 Md. 
 
 Y. 232. I ; Simons v. Pollard, 53 Vt. 343 ; 
 
 2«9 Bain v. Taylor, 19 Abb. Pr. Martin v. Stimpson, 6 Allen, 102. 
 228. "'^ Hills v. Miller, 3 Pai. 256; 
 
 "» 3 Kent's Com. 436. Child v. Chappell, 5 Seld. 246 ; Rose 
 
 "' Underwood v. Waldron, 33 v. Bunn, 21 N. Y. 275. 
 
EASEMENTS AND SERVITUDES. 503 
 
 sance, unless done by permission, will raise a presumption of 
 the existence of a grant."' 
 
 As to the right of drainage over another's land the legal 
 situation is briefly this: Such an easement constitutes an 
 incumbrance, but is not a breach of the covenant for quiet 
 enjoyment. Easements of this description arise where a 
 grantor conveys to two different parties two houses with a 
 drain under each connecting with a public sewer. Here we 
 have the grant of an easement, but not of any right in the 
 land. The rule giving the easement where an owner sells 
 adjoining houses is restricted to those cases where there is an 
 outward sign of the servitude."' 
 
 § 202. Abandonment. What facts will warrant the pre- 
 sumption that an easement has been abandoned? Unques- 
 tionably the law is well settled that an easement may be 
 abandoned by the acts of a party indicating such an intent. 
 In Reg^. Ckorley, 12 Q. B. 515 ; 64 E. C. L., Lord Denman 
 said : ' ' We apprehend that an express release of the ease- 
 ment would destroy it at any moment, so the cesser of use, 
 coupled with any act clearly indicative of an intention to 
 abandon the right, would have the same effect without any 
 reference to time." And in the same case it was held that the 
 cesser of use, for a long space of time, would be a strong fact 
 to show the intention to abandon the right.'" The rule finds 
 its best expression in Gale on Easements, 375, where it is 
 stated that as "all easements are restrictions upon the natural 
 rights of property, in every case of conflict between the 
 interest of the owners of the dominant and servient tene- 
 ments, the liberty of the latter is more favorably regarded by 
 the law than the, attempts of the former to limit it. ' ' 
 
 It has been held in a well considered case decided in Mary- 
 land in 1 87 1 (opinion by Ch. J. Bartol), that an agreement 
 made by a lessee for years to abandon an easement belonging 
 to the estate, does not bind the reversioner unless he was a 
 
 ™ Norton v. Valentine, 14 Vt. "" See also Moore v. Rawson, 3 
 
 239. B. & C. 332 ; Crossley v. Ligtowler, 
 
 °" Butterworth v. Crawford, 46 N. Law Rep. 2 Ch. App. 478. 
 Y. 349- 
 
504 REAL PROPERTY. 
 
 party to the transaction or his subsequent ratification is 
 clearly shown."' 
 
 In Washb. on Easem. 4th ed., p. 707, it is said that the 
 question of abandonment is one of intention, but that time is 
 not a necessary element therein. "A cesser to use, accom- 
 panied by an act clearly indicating an intention to abandon 
 the right, would have the same effect as a release, without 
 reference to time. ' ' And this proposition is fully sustained 
 by authority."" Snell v. Levitt is not, therefore, an authority 
 for the proposition that an easement created by grant can be 
 extinguished by non-user. Under the rule of that case, an 
 intention to abandon must exist in connection with and as a 
 cause of non-user. 
 
 § 203. The term license defined. A license may very 
 properly be defined as a permit or authority to enter on land 
 and do certain acts, the parties not intending to convey any 
 interest in the land. It is well settled that such a license 
 need not be in writing to avoid the inhibitions of the Statute 
 of Frauds. Thus, a parol license to enter on land for the pur- 
 pose of cutting timber, or gathering the growing crops is per- 
 fectly valid."' So an agreement for a seat in a theater, or 
 other place of amusement, is a license merely."' In like man- 
 ner an agreement for lodgings in a hotel or boarding house, 
 though the rooms the boarder is to occupy are designated, 
 does not create an interest in land but only a license."' 
 
 Bouvier says a license is either a bare authority, without in- 
 terest, or it is coupled with an interest. A bare license must 
 be executed by the party to whom it is given in person, and 
 cannot be made over or assigned by him to another ; and, 
 being without consideration, may be revoked at pleasure, as 
 long as it remains executory,"' but when carried into effect, 
 
 "'Glenn v. Davis, 35 Md. 208; v. Fox, 16 Barb. 184; Cartwrightv. 
 
 see also Washb. Easem. 450; Web- Maplesden, 53 N. Y. 622. 
 
 ster V. Stevens, 5 Duer, 553. "sWhitemarsh v. Walker, i Met. 
 
 "' Pope v. Devereux, 5 Gray, 409; 313. 
 
 Reg V. Chorley, 12 Q. B. 519; "' McCrea v. Marsh, 12 Gray, 21-1 ; 
 
 Moore v. Rawson, 3 Barn. & C. 322 ; Burton v. Scherpf, i Allen, 133. 
 
 Dyerv. Sanford, 9 Met. 395, 43 Am. ""White v. ^aynard, iii Mass. 
 
 Dec. 399 ; Veghte v. Raritan Water 250. 
 
 Power Co. 19 N. J. Eq. 143 ; Grain »«' 39 Hen. VI. M. 12, 7. 
 
EASEMENTS AND SERVITUDES. 505 
 
 either partially or altogether, it can only be rescinded, if in 
 its nature it will admit of revocation, by placing the other 
 side in the same situation in which he stood before he entered 
 on its execution. When the license is coupled with an inter- 
 est, the authority conferred is not properly a mere permission, 
 but amounts to a grant, which cannot be revoked, and it may 
 then be assigned to a third person. When the license is 
 coupled with an interest, the formalities essential to confer 
 such interest should be observed."" 
 
 The word license, as applied to real property, imports an 
 authority to do some act or series of acts upon the land of an- 
 other. It passes no interest in the land itself and its only 
 effect is to legalize an act which in the absence of the license 
 would constitute a trespass. It may be created by parol, 
 although a writing defining the exact nature and scope of 
 the license is preferable, and it is subject to revocation unless 
 subsidiary to some valid grant, to the beneficial enjoyment, 
 of which the license is an adjunct, or is founded upon a valu- 
 able consideration. Under some circumstances it is created 
 by implication. Licenses to do a particular act do not trench 
 upon the policy of the law which requires that bargains, 
 respecting the title or interest in real estate shall be by deed 
 or in writing. But a permanent right to enter upon another's 
 land without his consent, at all times is an important interest 
 that should be evidenced by some written agreement.'" 
 Generally it may be said that a license is not assignable, as it 
 is in the province of the owner of the realty to determine 
 who shall enter upon his premises. The doctrine of the 
 early cases which converted an executed license into an ease- 
 ment is accorded but scant respect as being in the teeth of 
 the Statute of Frauds.'" 
 
 In Morrill v. Mackman, 24 Mich. 282, 9 Am. Rep. 124, the 
 court said : " A license is a permission to do some act or series 
 of acts on the land of the licensor, without having any per- 
 
 °*' Bouvier's Law Diet. 45. Association v. Tribune Association, 
 
 ^^ See Cook v. Stearns, 1 1 Mass. 44 N. Y. Sup. Ct. 140. 
 
 537; Oliver v. Rumford Chemical ''^Johnson v. Skillman, 29 Minn. 
 
 Works, 109 U. S. 82 ; Washburn v. 97 ; Jackson v. Philadelphia R. R. 
 
 Gould, 3 Story, 162; Sun Printing Co. 4 Del. Ch. 181; Gale, Easem. 
 
 61 ; 3 Kent's Com. 452. 
 
506 REAL PROPERTY. 
 
 manent interest in it (citing cases). It is founded on per- 
 sonal confidence, and therefore not assignable."" It may be 
 given in writing or by parol ; it may be -with or -without con- 
 sideration; but in either case it is subject to revocation, 
 though constituting a protection to the party acting under it 
 until the revocation takes place. Where nothing beyond a 
 mere license is contemplated, and no interest in the land is 
 proposed to be created, the Statute of Frauds has no applica- 
 tion, and the observance of no formality is important. But 
 there may also be a license where the understanding of the 
 parties has in view a privilege of a less precarious nature. 
 Where something beyond a mere temporaray use of the land 
 is promised ; where the promise apparently is not founded 
 on personal confidence, but has reference to the ownership 
 and occupancy of other lands, and is made to facilitate the 
 use of those lands in a particular manner and for an indefinite 
 period, and where the right to revoke at any time would be 
 inconsistent with the evident purpose of the permission; 
 wherever, in short, the purpose has been to give an interest 
 in the land, there may be a license, but there will also be 
 something more than a license, if the proper formalities 
 for the conveyance of the proposed interest have been ob- 
 served. What that interest shall be called in the law may 
 depend upon the character of the possession, occupancy, or 
 use the promisee is to have, the time it is to continue, and 
 perhaps, upon the mode in which the compensation, if any, 
 is to be made therefor. It may be an easement or it may be 
 a leasehold interest." 
 
 a. Its revocable and irrevocable features. Undoubtedly a bare 
 license is revocable before it is executed, but there are 
 licenses that are irrevocable though they relate to an entry 
 upon and the occupation of real estate, and are by parol, as 
 where the license is directly connected with title to personal 
 property which the licensee acquired from the licensor at the 
 time the license is given, whereby the license is coupled with 
 an interest. Thus, where one sells personal chattels on his 
 own land, and before a reasonable time to remove, forbids 
 the purchaser to enter and take them, it was held to be a 
 
 ''^ 3 Kent's Com. 452 ; Browne, Stats. Fr. ec. 22. 
 
EASEMENTS AND SERVITUDES. 507 
 
 license -whicli could not be revoked within such reasonable 
 time."' A bare parol license, though -without consideration, 
 will furnish a justification for an act which would otherwise 
 be a trespass,"" and such a license, though ordinarily regarded 
 as personal, extending only to the party to whom it is ex- 
 pressly given, will nevertheless extend and apply to and pro- 
 tect the agents and servants of the licensee whenever from the 
 circumstances it can be presumed that there was an implied 
 license to such persons "as where a license is given to a man 
 to remove a weighty matter, which requires the assistance of 
 several other persons.""' A license necessarily implies the 
 right to do everything without which the act cannot be 
 done."' 
 
 It is said that a license coupled with an interest is where 
 the party o^btaining the license to do a thing also acquires a 
 right to do it. In such a case the authority conferred is not a 
 mere permission; it amounts to a grant, and it may be 
 assigned to a third person."" 
 
 A mere license must be in law so revoked and its use 
 abrogated, as to do no unnecessary injury to the licensee."' 
 Where a license is revocable it is revoked by the conveyance 
 of the land."" 
 
 A mere license, no matter how long enjoyed, is revocable 
 at any time."' 
 
 ''"Parsons v. Camp, 11 Conn. v. Seat, 26 Mo. 178, 72 Am. Dec. 
 
 525. 202 ; Johnson v. Skillman, 29 Minn. 
 
 '" Marston v. Gale, 24 N. H. 177. 95, 43 Am. Rep. 192 ; Chase v. 
 
 =88 2 Bouv. Inst. 568. Second Ave. R. Co. 97 N. Y. 384, 
 
 '"'Taylor, Land. & Ten. sec. 766; 49 Am. Rep. 531; Prince v. Case, 
 
 Curtis V. Galvin, i Allen, 217. 10 Conn. 375, 27 Am. Dec. 675 ; 
 
 ""2 Bouv. Inst. 568; for an ex- Ricker v. Kelly, i Me. 117, 10 Am. 
 
 tended discussion see Sterling v. Dec. 40. 
 Warden, 51 N. H. 217. Wheelock v. Noonan, 108 N. Y. 
 
 '"Angel, Watercourses, sec. 389, 179; Rhoades v. Otis, 33 Ala. 578, 
 
 391 ; Houston v. Laffee, 46 N. H. 73 Am. Dec. 439 ; Foster v. Brown- 
 
 505. ing, 4 R. I. 47, 67 Am. Dec. 505 ; 
 
 "'Carter v. Harlan, 6 Md. 20; Ricker v. Kelly, i Me. 117, 10 Am. 
 
 Seidensparger v. Spear, 17 Me. 123; Dec. 40; Rerick v. Kern, 14 Serg. 
 
 Harris v. Gillingham, 6 N. H. 9. & R. 267, 16 Am. Dec. 501 ; Hazel- 
 
 "' Putney v. Day, 6 N. H. 430, 25 ton v. Putnam, 3 Pinney, 107, 54 
 
 Am. Dec. 470; Foster v. Browning, Am. Dec. 166 — all declare in cases 
 
 4 R. I. 47, 67 Am. Dec. 505 ; Houx there cited that a license granted 
 
508 REAL PROPERTY. 
 
 A city had a right to abate the awnings as a nuisance in a 
 summary manner."* 
 
 A license is considered as revoked upon an unqualified 
 grant of the land, provided the license relates to such insig- 
 nificant acts as cutting trees or taking gravel, gathering 
 nuts, etc. The conveyance must be an absolute one."' 
 
 Where a license has been revoked after the expenditure of 
 money by the licensee and contrary to the terms of the 
 license, the cases are not agreed as to the remedy of the 
 licensee, whether it is an action at law to recover for the 
 breach of the contract, or in equity for specific performance."" 
 But equity will not allow the owner of the land to avail him- 
 self of improvements made by the licensee, without restor- 
 ing the licensee to as good a situation as he stood before."' 
 
 The use of stairways in a building erected by several own- 
 ers of land as a single structure, upon a single plan and upon 
 a single contract, no matter whether the land was then par- 
 titioned or not, cannot be denied by the owners of that part 
 which includes the stairways to the owners of another part, 
 the upper floors of which can be reached in no other way. 
 Such a situation discloses an apt instance of what is termed 
 in equity an "irrevocable license" — one which cannot be 
 revoked because the parties cannot be restored to their origi- 
 nal position. The Pennsylvania courts have been particu- 
 larly indulgent to this doctrine of executed or irrevocable 
 licenses, and have held in a recent case that purchasers of 
 real property so situated are chargeable with notice of an 
 evident servitude existing thereon."' 
 
 A right of this character while not strictly an easement, is 
 in the nature of one. It is really a permission or license, ex- 
 press or implied, to use the property of another in a particu- 
 lar manner or for a particular purpose. Where this permis- 
 sion has led a party to treat his own property in a way in 
 
 without consideration is revocable ™ Houston v. Laflfee, 46 N. H. 
 
 at pleasure ; Laing v. Americus, 86 508. 
 
 Ga. 756. "' Hazelton v. Putnam, 3 Chand. 
 
 "■■Americus v. Mitchell, 79 Ga. (Wis.) 117; Story's Eq. sec. 1237. 
 
 807 ; Pruden v. Love, 67 Id. 190. ''s pjerce v. Cleland, 133 Pa. St 
 
 '"Drake v. Wells, 11 Allen, 189; see also Swartz v. Swartz, 4 
 
 141. Pa. 353. 
 
EASEMENTS AND SERVITUDES. 509 
 
 which he would not otherwise have treated it, as by the erec- 
 tion or construction of permanent improvements thereon, it 
 cannot be recalled to his detriment. Having expended his 
 money upon the faith of it, and not being able to be restored 
 to his original position, equity will not allow the permission 
 to be revoked in breach of such faith."" 
 
 An executed license is treated like a parol agreement in 
 equity. It will not allow the Statute of Frauds to screen a 
 fraud; or allow advantage to be taken of the form of the 
 consent ; nor allow one to revoke his license when it was 
 given or had the logical effect of so influencing the conduct 
 of the licensee as to induce a large expenditure of money or 
 labor. The ground of the jurisdiction is to prevent fraud or 
 injustice. Its effect is to restrain a party from the exercise 
 of his legal rights when it appears from all the elements in 
 the case that unless equity intervenes his conduct has misled 
 an innocent party to his injury and rendered the assertion of 
 the right of revocation an act of bad faith amounting to con- 
 structive fraud. This interference of the equitable jurisdic- 
 tion cannot be invoked except the facts relied upon to create 
 the estoppel are clear to a demonstrable certainty, and the 
 more stringently does this rule apply where the effect of the 
 estoppel, if allowed to operate, will be to convey what, in its 
 inception was a bare privilege, temporary and revocable in 
 its nature, into an easement in the lands of the licensor, per- 
 petually running with the land and transmissible from the 
 licensee at pleasure. '°° 
 
 b. Rights of the licensee. A mere licensee has some rights. 
 The land owner cannot shoot him. He cannot lawfully set 
 spring guns and traps for him. The licensor is liable, even 
 to a licensee, if he is guilty of what in the civil law is termed 
 " dolus." But beyond this the licensor owes the licensee no 
 duty, certainly not the duty of active diligence, to see that 
 no harm comes to him, and when the latter without any invi- 
 tation and pursuant to a mere license, enters the former's 
 
 "' Godard, Easem. 90 ; i Story, Eq. ridge, 29 Ohio St. 648 ; Russell v. 
 
 329; Rodgers v. Cox, 96 Ind. 157; Hubbard, 59 III. 335. 
 
 East Jersey Iron Co. v. Wright, 32 ^oo Jackson v. Philadelphia, W. & 
 
 N. J. Eq. 248; Meek v. Brecken- B. R. Co. 4 Del. Ch. 180. 
 
5IO REAL PROPERTY. 
 
 premises, he takes the risk of whatever dangers may be 
 there."' 
 
 A right under a license, when not specially restricted, is 
 commensurate with the thing of which the license is an acces- 
 sory. Permission to use water for a mill, or anything else 
 that was viewed by the parties as a permanent erection, will 
 be of unlimited duration, and survive the erection itself, if it 
 should be destroyed or fall into a state of dilapidation ; in 
 which case the parties might perhaps be thought to be 
 remitted to their former rights. But having had in view an 
 unlimited enjoyment of the privilege, the grantee has pur- 
 chased by the expenditure of money a right, indefinite in 
 point of duration, which cannot be forfeited by non-user, 
 unless for a period sufiicient to raise the presumption of a 
 release. The right to rebuild, in case of destruction or 
 dilapidation, and to continue the business on its original 
 footing, may have been in view as necessary to his safety, and 
 may have been an inducement to the particular investment 
 in the first instance. The cost of rebuilding a blast furnace, 
 for instance, would be trivial when weighed with the loss 
 that would be caused by breaking up the business and turn- 
 ing the capital into other channels ; and therefore a license to 
 use water for a furnace would endure forever. But it is 
 otherwise where the object to be accomplished is temporary- 
 Such usually is the object to be accomplished by a saw-mill, 
 the permanency of which is dependent on a variety of cir- 
 cumstances, such as an abundance of timber, on the failure 
 of which the business necessarily is at an end. But, till 
 then, it constitutes a right for the violation of which redress 
 may be had by action. With this qualification it may safely 
 be af&rmed that expending money or labor, in consequence 
 
 *'" Reardon v. Thompson, 149 Am. Rep. 718; Victory v. Baker, 
 
 Mass. 267; Pollock, Torts, 426; 67 N. Y. 366; Thiele v. McManus, 
 
 Gautret v. Egerton, L. R. 2 C. P. 3 Ind. App. 132; Lary v. Cleveland, 
 
 371 ; Rap. Neg. 23-25 ; Mathews v. C. C. & I. R. Co. 78 Ind. 323, 41 
 
 Bensel, 51 N. J. L. 30; Parker v. Am. Rep. 572; Evansville & T. H. 
 
 Portland Pub. Co. 69 Me. 173, 31 R. Co. v. Griffin, 100 Ind. 221, 50 
 
 Am. Rep. 262 ; Pittsburg, Ft.W. & C. Am. Rep. 783 ; Indianapolis v. Em- 
 
 R. Co. V. Bingham, 29 Ohio St. 369, melman, 108 Ind. 530, 58 Am. Rep. 
 
 23 Am. Rep. 751 ; Larmore V. Crown 65; Indiana, B. & W. R. Co. v. 
 
 Point Iron Co. loi N. Y. 391, 54 Barnhart, 115 Ind. 399. 
 
EASEMENTS AND SERVITUDES. SII 
 
 of a license to divert a water course or use a water power in 
 a particular way, has the effect of turning such license into 
 an agreement that will be executed in equity. 
 
 c. Of parol licenses. Where a parol license has been exe- 
 cuted and acted upon, and expenses incurred in perfecting 
 an easement over the land of another in reliance upon the 
 parol license previously granted, it cannot afterwards be 
 revoked without placing the licensee in statu quo.'" In such 
 cases equity holds, that for remedial purposes, the license 
 shall be deemed an executed contract."' The presumption 
 which arises from an adverse user of more than twenty years, 
 is that there was a grant, and this presumption can only be 
 overcome by some proof that this user was by permission, or 
 license, or in some other way not inconsistent with the 
 rights of the owner of the land.'" 
 
 It is now well settled in this country that, as between pri- 
 vate persons, a parol license, though primarily revocable, is 
 not so when the licensee has executed it, and in so doing has 
 incurred expense. This doctrine was announced as far back 
 as 3 Ga. 82, in Sheffield v. Collier, and again in Macon v. Frank- 
 lin, 12 Ga. 239, in which Judge Nisbet said: "The rule is, as 
 stated, that a parol license is revocable ; but it has some ex- 
 ceptions. If the enjoyment of it must be preceded neces- 
 sarily by the expenditure of money, and the grantee has 
 made improvements or invested capital in consequence of it, 
 it becomes an agreement for a valuable consideration, and he 
 a purchaser for value.'"" There are other cases decided by 
 this court to the same effect, but the above will suffice. The 
 quotation from Judge Nisbet 's opinion is followed by these 
 words : " In such cases the books say it would be against all 
 conscience to permit the grantor to recall the license as soon 
 as the benefit expected from the expenditure is beginning to 
 be derived." 
 
 s"!! Woodbury v. Parshley, 7 N. H. ^"^ Pierce v. Cloud, 42 Pa. 102 ; 
 
 237. McAuther v. Carrie, 32 Ala. 75. 
 
 '"'Snowden v. Wylas, 19 Ind. 14; ^"^ Pages 242, 243; see also Win- 
 
 Beatty v. Gregory, 17 Iowa, 114; ham v, McGuire, 51 Ga. 578, and 
 
 Dempsey v. Kip, 61 N. Y. 462; Southwestern Railroad v. Mitchell, 
 
 Lacy V, Arnett, 33 Pa. St. 169; 69 Id. 114. 
 Meek v. Breckenridge, 29 Ohio St. 
 642. 
 
512 REAL PROPERTY. 
 
 d. Who may grant. The authority Upon which the licensee 
 relies for the justification of his acts must come from a com- 
 petent source. Of course, no man can grant an authority 
 which will interfere with the rights of others. The test 
 would seem to be in general that the acts licensed must be 
 such as the licensor himself could rightfully do. Thus, a 
 license given by the owner to a plank-road company, to build 
 a road across a lot, has no force if he has before leased the 
 property. °°° 
 
 e. Distinction between an easement and a license. The distinc- 
 tion between an easement and a license is often so metaphy- 
 sical, subtle and shadowy as to elude analysis. As said 
 by the vice chancellor in East Jersey Iron Co. v. Wright, 32 
 N. J. Eq. 254: "The adjudications upon this subject are 
 numerous and discordant. Taken in their aggregate, they 
 cannot be reconciled ; and, if an attempt should be made to 
 arrange them into harmonious groups, some of them would 
 be found to be so eccentric in their application of legal prin- 
 ciples, as well as in their logical deductions, as to be impos- 
 sible of classification." But there are certain fundamental 
 principles underlying most of the cases which enable courts 
 to distinguish an easement from a license, when construed — 
 as all instruments must be — in the light of surrounding cir- 
 cumstances. Mr. Washburn defines a license as " an author- 
 ity to do a particular act or series of acts upon another's land, 
 without possessing any estate therein. ' ' He defines an ease- 
 ment as follows: "An easement implies an interest in the 
 land which can only be created by writing, or constructively 
 its equivalent — prescription. A license may be created by 
 parol. * * * It matters not whether the license be oral 
 or in writing, in respect to its being parol, if the paper giving 
 it have no requisites of a grant.""' Again he says: "So long 
 as a license is executory, it may be revoked at the pleasure 
 of the licensee." To the same effect are Washb. Easem. 
 p. 6; De Haro v. United States, 72 U. S. (S Wall. 599); 18 L. 
 ed. 681 ; 3 Kent. Com. *453; Gould, Waters, sees. 322, 323; 
 I Warvelle, Vendors, pp. 43, 44; i Sugden, Vendors, p. 177- 
 The discussion of licenses, in a large number of the cases and 
 
 ™« Brown v. Powell, 25 Pa. St. ^07 j Washb. Real Prop. 629 (398). 
 229. 
 
EASEMENTS AND SERVITUDES. 5^3 
 
 authorities, grows out of licenses created by parol. Some of 
 them hold such licenses to be revocable, even when a con- 
 sideration is paid therefor ; otherwise, it is said, they would 
 defeat the operation of the Statute of Frauds.'" But there 
 are other cases which hold that even parol licenses without 
 consideration are not revocable when executed, and some of 
 these authorities go to the extent of holding that-such exe- 
 cuted licenses are assignable. All of such authorities as 
 hold such licenses irrevocable and assignable, treat them as 
 in the nature of equitable estoppels. See the extensive notes 
 to Rerick v. Kern, 2 Am. Lead. Cas. Hare & W.'s notes, p. 
 546, where the subject is exhaustively treated. It is univer- 
 sal, however, both upon principle and authority, that it 
 requires words of grant to create an easement or a perma- 
 nent interest in realty. And it is equally obvious that in 
 construing instruments of all kinds the object of the court 
 should be to ascertain the purpose and meaning of the par- 
 ties thereto. 
 
 A license creates no interest in land. It is founded on 
 personal confidence and is not assignable, and its continu- 
 ance depends on the pleasure of the party giving it, and it is 
 revocable unless executed under such circumstances as would 
 authorize the interference of equity to prevent injustice. At 
 law a license could not have the effect to create an interest in 
 lands upon the theory of becoming irrevocable by applying 
 the principle of estoppel, because courts of law concern 
 themselves with the legal aspects of estates and cannot 
 apply equities which spring from thfe rules of estoppel, 
 against the owner of the land. Judge Cooley seems to 
 regard it as a serious reproach to the law that it should fail 
 to provide some adequate protection against the manifest 
 injustice of a revocation after the licensee, in reliance upon 
 his license, has made large and expensive improvements 
 upon the land.""" The contention is not well founded for the 
 obvious reason that the licensee is grossly in fault when he 
 makes improvements upon the property of another upon the 
 
 ""See Mumford v. Whitney, 15 675; Cowles v. Kidder, 24 N. H. 
 Wend. 380, 30 Am. Dec. 60; Prince 364, 57 Am. Dec. 287. 
 v. Case, 10 Conn. 375, 27 Am. Dec. ^"^ Maxwell v. Bay City Bridge 
 
 Co. 41 Mich. 467. 
 
 33 
 
5 14 REAL PROPERTY. 
 
 Strength of a mere license. As well might the law be criti- 
 cized for not providing a remedy for one who builds upon 
 the estate of another. It is the pivotal duty of everyone who 
 contemplates the substantial improvement of realty to know 
 the limitations under which he acts and to inform himself of 
 the situation of the title. Neither law nor equity should 
 protect him in an invasion of another's property under any 
 pretext short of some record title, and even this should be 
 an invulnerable and indisputable one. 
 
 The law will imply a license from the necessities of indi- 
 viduals and from the usages of the community. Thus, it has 
 been held that the entry upon another's close, or into his 
 house, at usual and reasonable hours, and in a customary 
 manner, for any of the common purposes of life, cannot be 
 regarded as a trespass. 
 
 Persons who live in the vicinity of railroads, and who use 
 the track, embankments of space between the tracks as a 
 footpath, are wrongdoers unless permission is granted by the 
 company to use the tracks, although pedestrians and the 
 public generally travel over these without objection ; people 
 go there at their own risk and enjoy the license subject to 
 their own perils."" 
 
 A mere permissive use of the track by the public without 
 objection on the part of the railroad company, does not alter 
 the company's measure of duty, and a person walking on the 
 track by the sufferance of the company, does so subject to 
 the risks of so hazardous an undertaking, and if injured by a 
 train of the company there is no liability unless the injury 
 was willful.'" 
 
 Mere passive acquiescence does not amount to license.'" 
 
 3'» Grethen v. Chicago, M. & St. 83 ; Baltimore & O. R. R. Co. v. 
 
 P. R. Co. (Minn.) 19 Am. & Eng. Sherman, 30 Gratt. 602. 
 
 R. R. Cas. 344 ; Gaynor v. Old '" McClaren v. Indianapolis & 
 
 Colony & N. R. 100 Mass. 208; V. R. Co. 83 Ind. 319, 8 Am. & Eng. 
 
 Georgia Cent. R. Co. v. Brinson, 10 R. R. Cas. 217. 
 
 Ga. 207, 19 Am. & Eng. R. R. Cas. ^^ Bancroft v. Boston & W. R. 
 
 42 ; Illinois Cent. R. Co. v. God- Corp. 97 Mass. 276 ; Hogan v. Chi- 
 
 frey, 71 111. 500, 22 Am. Rep. 112; cago, M. & St. P. R. Co. 59 Wis. 
 
 Baltimore & O. R. Co. v. State, 62 139, 15 Am. & Eng. R. R. Cas. 439; 
 
 Md. 479, 19 Am. & Eng. R. R. Cas. Baltimore & Ohio R. Co. v. Sher- 
 
EASEMENTS AND SERVITUDES. S'S 
 
 It is the duty of the railroad to give signals to keep per- 
 sons off of its right of way only at public crossings. 
 
 In a recent case it was said : ' ' The ruling asked for lays it 
 down as matter of law that if people are accustomed to cross 
 a railroad track at a certain place, and the company makes no 
 objection, this imports a license from the company, and that 
 such a license imposes a duty to use reasonable care to pro- 
 tect the crossers. But, even if we are to assume the use of 
 the crossing to be with knowledge of the company, it seems 
 a strong thing to say that the very state of facts which, if 
 continued twenty years, would create a right of way, on the 
 presumption that the user was adverse, that is without a 
 license,"' shall be presumed up to the very last moment of 
 the twenty years to have been with a license. We are aware 
 that language has been used in other States which seems to 
 sanction the plaintiff's proposition,'" but we think it would 
 be going quite as far as is possible if the fact of continuous 
 crossing, standing alone, were allowed to be considered by a 
 jury as evidence of a license.'"" 
 
 Active vigilance is not required to see that a mere licensee 
 on one's premises is not injured. A turntable on railroad 
 lands, properly made and used, is not, even as to children of 
 tender years, such a dangerous and enticing machine that the 
 railroad company will be liable for injury to a child playing 
 with it merely because it is in an unf enced lot near footpaths 
 which the public are permitted to use."' 
 
 Even if the public passed over a footpath crossing the 
 tracks with the knowledge of the railroad company, and 
 pedestrians passed along this pathway as mere licensees, the 
 railroad owed such passers only the duty to do them no 
 
 m^Ln, supra; Norfolk & W. R. R. H. Canal Co. 113 Pa. 162, 175, 57 
 
 Co. V. Harman, 83 Va. 577. Am. Rep. 446. 
 
 3'3 Johanson v. Boston & M. R. "» See Sweeny v. Old Colony & 
 
 Co. 153 Mass. 57, 59. N. R. Co. 10 Allen (Mass.), 368, 374, 
 
 '" Barry v. New York Cent. & 87 Am. Dec. 644 ; case of Haggart v. 
 
 H. R. R. Co. 92 N. Y. 289, 292, 44 Stehlin, L. R. A. 22, opinion by 
 
 Am. Rep. 377 ; Swift v. Staten Holmes, J. 
 
 Island Rapid Transit R. Co. 123 N. ^is Walsh v. Fitchburg R. Co. 145, 
 
 Y. 645, 649; Taylor v. Delaware & N. Y. 301. 
 
Sl6 REAL PROPERTY. 
 
 intentional harm and no burden of active vigilance was cast 
 upon the defendant.'" 
 
 Other States have refused to follow the Stout Case, as re- 
 ported in 17 Wall. 657.'" 
 
 § 204. How lost or extinguished. It may be affirmed as an 
 indisputable rule of law that any right whatever may be lost 
 or terminated by (i) act of God — "vis Major" or (2) by 
 operation of law ; or (3) by the act of the party. These three 
 methods may be safely relied upon to utterly annihilate any 
 right that any party at any time could possibly hold. "' And 
 hence an easement may be destroyed by any or all the ways 
 indicated. Merger is frequently relied upon to drown the 
 rights acquired by easement. Wherever the dominant and 
 servient estates come into the possession of the same person, 
 the rights of easement are extinguished.'"" And any act of 
 the parties will work the destruction of the easement, if that 
 act is, in legal effect, one from which such a result must fol- 
 low.'" So, a release may effect the same object. But the 
 release should be in writing according to the case last cited. 
 But a parol release clearly proven, under an allegation of 
 fraud, would accomplish the same thing. In. short, any 
 method by which it can be fairly presumed that there was an 
 intention to abandon, release, waive, or renounce the rights 
 acquired under the easement will be effectual. 
 
 '" Nicholson v. Erie R. Co. 41 N. 60 Am. Rep. 854; Twist v. Winona 
 
 Y. 531; Sutton V. New York Cent. & St. P. R. Co. 39 Minn. 164; Ma- 
 
 & H. R. R. Co. 66 Id. 243. ginnis v. Brooklyn, 7 N. Y. Supp. 
 
 5" Keflfe V. Milwaukee & St. P. R. 194; Breckenridge v. Bennett, 7 
 
 Co. 21 Minn. 207, 18 Am, Rep. 393; Kulp, 95; Greene v. Linton, 7 Misc. 
 
 Frost V. Eastern Railroad, 64 N. H. 272 ; Gillespie v. McGowan, 100 Pa. 
 
 220; Clark V. Manchester, 62 Id. 144, 45 Am. Rep. 365. 
 
 577 ; Bates v. Nashville, C. & St. L. ^is Xaylor v. Hamton, 4 McCord, 
 
 R. Co. 90 Tenn. 36 ; Daniels v. New 96. 
 
 York & N. E. R. Co. 13 L. R. A. ^20 Ritger v. Parker, 62 Mass. 147; 
 
 248, 154 Mass. 349; Merriman v. Stuyvesant v. Woodruff, 21 N. J. L. 
 
 Chicago, R. L & P- R. Co. 85 Iowa, 133; Colburn's App. 62 Pa. St. 
 
 634 ; Gay v. Essex Electric Street 274 ; Plympton v. Converse, 42 Vt. 
 
 R. Co. 21 L. R. A. 448, 159 Mass. 712. 
 
 238; Klix V. Nieman, 68 Wis. 271, sm -Qy^^ y_ Sanford, 50 Mass. 395. 
 
CHAPTER XIII. 
 
 USES AND TRUSTS. 
 
 Sec. 205. Nature and definition of a use. 
 
 206. Historical resume. 
 
 Note. Full text of the Statute of Uses, 27 Hen. VUI. c. 10. 
 
 207. Comments upon the Statute of Uses. 
 
 208. Doubts as to its introduction in this country. 
 
 209. Peculiar vices of the Statute of Uses. 
 
 210. Distinction between "uses" and "trusts. 
 
 211. New Yorls system examined. 
 
 212. The doctrine of uses and trusts in the United States. 
 
 213. What is a trust ? 
 
 214. How created. 
 
 a. Statutory regulations in California. 
 
 b. By precatory expressions. 
 
 c. Great caution in accepting precatory trusts. 
 
 215. For what purposes created. 
 
 216. Parties to a trust. 
 
 a. Corporations as trustees. 
 
 b. Who may be cesiuis que trust. 
 
 c. Quantity of interest held by trustee. 
 
 d. The beneficiary must be certain. 
 
 e. Review of the celebrated Tilden case. 
 
 217. Trustees — their duties and liabilities. 
 
 a. Views of Story, Sugden, Walworth and Kent. 
 
 b. Fraudulent acts of trustees — how established. 
 
 c. Rule as to preservation and care of trust property. 
 
 d. The measure of responsibility imposed. 
 
 e. Trustees are not guarantors of their investments. 
 
 f. Liability of co-trustees. 
 
 g. California code provisions on the subject, 
 h. Compensation of trustees. 
 
 i. Of trustees ex-maUficio. 
 
 218. Statute o: Limitations and its effect upon trusts. 
 
 219. The declaration of trust. 
 
 220. Incidents of trust estates. 
 
 221. Classification of trusts. 
 
 a. Express trusts. 
 
 b. Executory and executed trusts. 
 
 c. Of so-called illegal trusts. 
 
 [517] 
 
5l8 REAL PROPERTY. 
 
 Sec. 221. Classification of trusts — continued. 
 
 d. Implied trusts. 
 
 e. Resulting trusts. 
 
 f. Constructive trusts. 
 
 g. Voluntary trusts. 
 
 222. Charitable trusts. 
 
 a. The statute of 43 Elizabeth. 
 
 b. What is a charitable trust .' 
 
 c. Said to be favored in law. 
 
 d. Distinction between charitable and private trusts. 
 
 e. Judicial construction of charitable trusts. 
 
 f. Not forfeited by non-user. 
 
 g. Rules as to religious associations. 
 
 h. When charitable gifts will not be upheld, 
 i. Doctrine of charitable uses rejected in certain States, 
 j. The doctrine of cy pres examined. 
 
 223. The doctrine of spendthrift trusts considered. 
 
 a. When trust funds are beyond the reach of creditors. 
 
 Note from Professor Walker. 
 
 b. Partial review of the Pennsylvania cases. 
 
 c. Attitude of the New York Court of Appeals. 
 
 d. Views of Chief Justice Morton in Bank v. Adams. 
 
 e. Of Chief Justice Agnew in Overman's Appeal, 
 
 f. Of Mr. Perry in his work on Trusts. 
 
 g. Of Mr. Justice Miller in the great case of Nichols v. Eaton, 
 h. Comments. 
 
 224. Parol evidence to establish a resulting trust. 
 
 225. Trusts for married women. 
 
 226. Termination of the trust. 
 
 § 205. Nature and definition of a use. A use, at common 
 law, was technically defined to be an equitable right, which 
 he who conveyed a legal estate to another, reserved to him- 
 self upon trust and confidence that the person to whom 
 he so conveyed it, would nevertheless suffer him to take the 
 rents and profits of the land, and would execute estates 
 according to his direction.' The person to whom the legal 
 estate was conveyed, was called the feoffee or tertenant. He 
 had the freehold or sole estate in him. The person who con- 
 veyed the legal estate to him was called the cestui que use. 
 
 They were originated by sacerdotal corporations to evade 
 the statute of mortmain, and were gradually established to 
 mitigate the intolerable evils of the feudal system, and save 
 
 ' Gilbert's Law of Uses, 175. 
 
USES AND TRUSTS. 5^9 
 
 landed estates from attainder, forfeiture and other incidents. 
 In theory at least the use was rather a hold upon the con- 
 science of the feoffee to uses, than a lien upon, or interest in 
 the land ; and the principle upon which it was founded was 
 that the feoffee was bound in conscience to follow the direc- 
 tion of the feoffor. Thus, acting only upon the conscience, 
 it differed essentially from incorporeal hereditaments which 
 are of legal cognizance, and which were the subject of con- 
 veyance to uses. 
 
 "The ancient common law made the validity of a convey- 
 ance depend upon a visible act. The owner gave the pur- 
 chaser a clod of earth, or other symbol of possession (as a 
 twig). The ownership thus created admitted of no qualifica- 
 tion. The visible owner was to all intents and purposes the 
 actual proprietor. On this simple conception equity grafted 
 the notion of ' uses.' The owner of land could transfer it to 
 an indifferent person by a visible symbol, and charge the 
 transferee to hold it for the use of another. The conscience 
 of the transferee was said to be affected by this transaction, 
 and he was equitably bound to perform the trust imposed 
 upon him. This obligation could only be enforced in a court 
 of chancery, the presiding judge being an ecclesiastic. That 
 court was supposed to proceed upon those principles that 
 affect the moral sense."" 
 
 As to the original meaning of uses and trusts, Mr. Stephen 
 has very properly remarked that "the books are rather 
 vague, and not always correct in their account. ' ' Blackstone 
 says that ' ' uses and trusts were in their original of a nature 
 very similar, or rather exactly the same.'" Mr. Cruise also 
 remarks that ' ' the words use and trust were perfectly syn- 
 onymous. '" There can be no doubt, however, that there 
 might be "trusts" which involved no "uses" in the proper 
 meaning of that term. Thus, Lord Bacon expressly dis- 
 tinguishes a "use" from a "special" or "transitory trust." 
 Again, it is clear that a "trust" was referable rather to the 
 person in whom the confidence was reposed; "use" to the 
 
 ' See Sir Henry Main's ''Ancient ' 2 Bl. Com. 327. 
 Law," introduction by Hon. Theo- ■• Cruise's Dig. tit. xii. ch. i, sec. 2. 
 dore W. Dwight, LL.D. 
 
520 REAL PROPERTY. 
 
 person for whose benefit it was reposed. Thus, it is said 
 by Lord Chief Baron Gilbert: "If the use be not a thing- 
 annexed to the land, it will be asked of me, what it is ; to 
 which I answer, that a use is an equitable right to have the 
 profit of lands, the legal estate whereof is in the feoffee, 
 according to the trust and confidence reposed in him.'" Mr. 
 Stephen observes that uses and trusts were in their origin 
 closely united, but not identical. A trust was the confidence 
 reposed by one man in another, when he invested him with 
 the nominal ownership of property, to be dealt with in some 
 particular manner, or held for some particular person or pur- 
 pose pointed out. If the trust was of a certain description, 
 viz. , to hold land for the benefit of another person generally, 
 and to let him receive the profits, the sort of interest or right 
 which consequently attached to the latter person was called 
 a use, to distinguish it from the nominal ownership or estate 
 of the trustee.' 
 
 A use was never executed except upon the co-ordination of 
 three distinct circumstances, viz : (i) A proper party seized 
 to a use ; (2) A cestui que use in esse ; (3) A use in esse, neither 
 in reversion, possession, or remainder.' 
 
 § 206. Historical resume. The doctrine of uses and 
 trusts is of civil law extraction, and seems to have had a 
 qualified existence under the Roman praetors, while in 
 the codification of Justinian it was distinctly recognized. 
 The English ecclesiastics seized upon these provisions of 
 'Roman legislation as a felicitious evasion of the prohibi- 
 tions as to the alienation of lands, which the mortmain 
 statute had fastened upon English jurisprudence. We 
 have previously referred to these celebrated statutes, and 
 it will be remembered that through the rapacity and greed of 
 the ecclesiastical establishment, vast tracts of the most de- 
 sirable land in England had passed under the domination of 
 the church. To restrain the growing encroachments of the 
 papal power, the mortmain statutes were enacted primarily 
 with the dual design of crippling the church holdings on the 
 one hand, and increasing the influence and authority of the 
 
 » Gilb. Us. (by Sugden) 374. '' Chudleigh's case, i Rep. 126. 
 
 * Id. ; 2 Burrill's Law Diet. 
 
USES AND TRUSTS. 5^1 
 
 landed aristocracy on the other. Some method of neutraliz- 
 ing the effects of the mortmain statutes must be employed, 
 and to Jesuitical cunning and scholasticism must be at- 
 tributed the expansion of the doctrine of equitable estates. 
 In a crude and primitive form the theory had already obtained 
 a foothold previous to its formal introduction. The ecclesi- 
 astical tribunals seeking to enforce their behests by acting 
 upon the conscience of the trustee, had succeeded, to a lim- 
 ited extent, in effecting many of the purposes that the pres- 
 ent system of trusts is designed to cover. But these ecclesi- 
 astical courts, although in some respects well adapted to a 
 nascent civilization, possessed no way of enforcing their 
 decrees by judicial process. And the gradual emancipation 
 of the human mind from the fetters of medieval superstition 
 threatened to impair the efficacy of their mere decree, as 
 it was soon discovered that the f ulminations of ' ' mother 
 church" were not always successful in operating on the con- 
 science of the trustee. Under the fostering care of the equity 
 jurisdiction, the doctrine of uses expanded far beyond any 
 limits ever even imagined by the Roman publicists. And in 
 a comparatively short period nearly one-half of the habitable 
 area of England was held by a trustee for some beneficiary. 
 The political agitations of the times powerfully contributed 
 to precisely such a result. The rival contentions of the 
 powerful plutocratic houses of York and Lancaster had sub- 
 merged the nation in protracted civil war, and by the pro- 
 cess of attainder and confiscation the treasonable intriguings 
 of refractory nobles could lead to but one result, the hopeless 
 and irretrievable ruin of their rights in landed property 
 through conviction of treason by some star chamber tribunal 
 in the control of the particular faction, that for the time 
 being, appeared uppermost. It must be remembered too, 
 that treason at this period wrought corruption of blood, and 
 properties thus confiscated passed forever from the dominion 
 and control of their original owner. The doctrine of uses 
 and trusts averted these calamities, and the refinements and 
 subtleties engrafted upon the system by expert pundits in 
 the law, only added more attractiveness to this particular 
 species of land holding, and more safety to the agitators of 
 civil turmoil. The pacification following the accession of 
 
522 
 
 REAL PROPERTY. 
 
 Henry VIII to the English throne gave the coveted oppor- 
 tunity for the crown lawyers to investigate the ramifications 
 and subtleties of the doctrine of uses, and led to the enact- 
 ment in 1536 of the celebrated statute that through all its 
 vicissitudes retains its name if nothing else. 
 
 In its pivotal concept the scheme of uses aimed to transfer 
 the use into actual possession, and make the cestui que use the 
 absolute owner of the land, both in legal and equitable con- 
 templation. It destroyed or demolished the estate of the 
 feoffees to uses, and transferring it from them to the cestui 
 que use abrogated its character as an equitable incident cog- 
 nizable solely by chancery courts, and brought them under 
 the direct impulse of the legal tribunals. These courts held 
 that there were three essentials to the execution of a use 
 ■under the statute of Henry VIII. (i) A person seized to the 
 use of some other person ; (2) A cestui que use in esse ; and (3) 
 A use in esse in possession, remainder, or reversion.' 
 
 Appended in a note will be found the text of the original 
 statute taken from Reeves' History of English Law." 
 
 ^Chudleigh's case, i Co. 126a, 
 and notes. 
 
 s " Where any person or persons 
 stood or were seized, or at any time 
 thereafter should happen to be 
 seized, of and in any honours, cas- 
 tles, manors, lands, tenements, 
 rents, services, reversions, remain- 
 ders, or other hereditaments, to the 
 use, confidence or trust of any 
 other person or persons, or of any 
 body politic, by reason of any bar- 
 gain, sale, feoffment, fine, recovery, 
 covenant, contract, agreement, will, 
 or otherwise, by any manner of 
 means whatsoever it be ; that in 
 every such case all and every such 
 person and persons and bodies po- 
 litic, that have or hereafter shall 
 have, any such use, confidence, or 
 trust, in fee-simple, fee-tail, for term 
 of life, or for years or otherwise, or 
 any use, confidence or trust in re- 
 mainder or reverter, shall from 
 
 henceforth stand and be seized, 
 deemed and adjudged in lawful 
 seizin, estate and possession, of and 
 in the same honours, castles, man- 
 ors, lands, tenements, rents, ser- 
 vices, reversions, remainders, or to 
 hereditaments, with their appurte- 
 nances, to all intents, construc- 
 tions and purposes in the law, of 
 and in such like estates as they had 
 or shall have in the use, confidence 
 or trust of or in the same ; and that 
 the estate, title, right and posses- 
 sion, that was in such person or 
 persons, that were or hereafter shall 
 be seized of any lands, tenements 
 or hereditaments to the use confi- 
 dence or trust of any such person 
 or persons, or of any body politic, 
 be from henceforth clearly deemed 
 and adjudged to be in him or them 
 that have or hereafter shall have 
 such use, confidence or trust, after 
 such quality, manner, form and 
 
USES AND TRUSTS. 523 
 
 § 207. Comments on the Statute of Uses. Uses had been 
 very vigorously employed by the Roman ecclesiastics to 
 evade the operation of the mortmain statute. They simply 
 resorted to a feoffment to one person, who was to hold the 
 land to the use of another. The High Court of Chancery held 
 that the feoffee was, in such a case, bound in conscience and 
 good faith to hold the property merely for the benefit of a 
 third person. And this court alone recognized the existence 
 of this trust estate. The nisi prius courts — or courts of com- 
 mon law jurisdiction — held the opposite view, and regarded 
 the feoffee as the legal or real owner. By these contradic- 
 tory views held by different courts, it is quite obvious that 
 much confusion must result. Practically there were two 
 estates in the same property, but cognizable in different 
 courts. By this subterfuge many rules of real property 
 were virtually annulled. The priesthood could hold land 
 notwithstanding the mortmain statute. While a rebellious 
 peer could foment sedition with perfect impunity so far as 
 the forfeiture of his property was concerned. It is said that 
 the Statute of Uses" was enacted in order to remedy this con- 
 dition of things. But it must be remembered that this royal 
 "defender of the faith" was then in the zenith of his quarrel 
 with the Vatican over the divorce of Catharine and the mar- 
 riage with Anne Boleyn, and was already meditating, with 
 the connivance of his chancellor — Cromwell — who had suc- 
 ceeded both the deposed Cardinal Wolsey and the accom- 
 plished Sir Thomas More, the suppression of the monasteries 
 and the wholesale confiscation of their massive wealth for the 
 benefit of the crown, and as a telling blow at papal suprem- 
 acy in England. The covert object of the statute was to pre- 
 vent attainted peers and landed proprietors from placing the 
 
 condition as they had before, in or effect from the statute of uses, by 
 to the use, confidence or trust that which a man, seized of lands, cove- 
 was in them." nants, in consideration of blood or 
 The phrase " stand seized to marriage, that he will stand seized 
 uses " is frequently used in relation of the same, to the use of his child, 
 to conveyances under the statute wife or kinsman, for life, in tail or 
 of uses. It imports a covenant to in fee. (2 Bouv. Inst. n. 2080.) 
 stand seized to uses, and is a species " 27 Hen. VIII. c. 10. 
 of conveyance which derives its 
 
524 REAL PROPERTY. 
 
 reversion of their property beyond the royal clutch. This 
 particular Tudor had posed in many attitudes, but even Mr. 
 Froude will not undertake to depict him as a law reformer. 
 Neither he nor his fawning chancellor could possibly foresee 
 the ultimate results of this vile piece of class legislation. 
 The statute to which is affixed his name was merely intended 
 to concentrate the most arbitrary power in the hands of the 
 sovereign and his court favorites — an infamous set — pre- 
 sided over by Somerset and Northumberland with that poor 
 creature Cromwell as a sort of ring master. Before the stat- 
 ute was enacted uses could be created by a simple declaration, 
 as it was purely a matter of trust and confidence, and the 
 only way to create a future estate was by way of remainder, 
 which required a particular estate to support it. Under the 
 statute, however, uses might be created to spring up in 
 futuro. They need not be executed at the time of their con- 
 veyance, as a fee could be "limited upon a fee" contingent 
 upon the happening of some event. Hence, "uses" were said 
 to be "future or contingent" when they operate as remain- 
 ders, and are supported by some prior freehold estate, and 
 they are ' ' springing' ' when they arise without the support of 
 such an estate. They were also designated as "shifting" 
 when both the use and seizin shifted in derogation of some 
 estate previously granted. It may be added that "resulting" 
 uses were such as would arise whenever a use limited by a 
 conveyance could not for any reason vest. In such case it 
 was said to result to the grantor. Just here it will be seen 
 that substantially the distinction between a "springing use" 
 and an "executory devise" is this: The first requires a per- 
 son to be seized to use whenever the contemplated contin- 
 gency happens, while the latter does not exact any such 
 requirement. 
 
 Henry's scheme was largely subverted by the energetic 
 action of the English courts of equity. The law courts, in 
 their efforts to uphold the statute, gave to its interpretation a 
 strict construction complying in this respect with the imme- 
 morial dictum that any statute in contravention of common 
 law methods should be strictly construed. The glaring 
 instances of hardship and injustice that this system of strict 
 construction entailed, speedily roused the hostility of the 
 
USES AND TRUSTS. 525 
 
 chancery jurisdiction, and in its efforts to administer justice 
 and sustain its own dignity, and at the same time foster its 
 ingrained animosity to the encroachments of royal preroga- 
 tive, it held that uses, in many important cases, though void 
 at law, were perfectly good in equity. And by impressing the 
 characteristics of a "trust" upon what formerly had been a 
 use before the statute of uses, it revived and revamped 
 the old rights under a new baptismal name, while arrogating 
 to itself the exclusive supervision of those rights. There 
 were some modifications, and many extensions all along the 
 lines of manifest improvement, and ultimately to the nimble 
 wit of "my Lord Nottingham" — conspicuously the ablest of 
 the English chancellors up to Mansfield — the present elabo- 
 rate system of uses and trusts owes many of its beneficent 
 functions. This same great chancellor drafted and enforced 
 the passage of the famous ' ' Statute of Frauds, ' ' and by his 
 dexterous management and manipulation of the Statute of 
 Uses in its textual misfortunes, he has wrung from Lord 
 Hardwicke the confession that the whole effect of that elabo- 
 rate piece of legislation upon which so many fond hopes were 
 based was to "add three words to the form of a convey- 
 ance." Uses reappeared under the guileless name of 
 ',' trusts. ' ' And trusts now embody all that formerly character- 
 ized as a "use" — with much additional significance." Pun- 
 dits of the professorial ilk are constantly dilating upon the 
 difference. While our judges and clear-headed lawyers are 
 treating them as one and the same. If there is any distinc- 
 tion, the bench and bar don't know what it is, and care less. 
 Practically they deal, in every instance, with a trust through 
 a trustee for the advantage of a beneficiary. This, I main- 
 tain, is the gist of the matter. It is quite time these extrava- 
 gant assumptions about "uses" were called to a new audit, 
 and this paralytic flux of words on the subject of uses abated 
 if possible. A sedative was administered years ago by Chan- 
 cellor Kent, but the quacking continues in the very face of 
 an utterance like tliis : " I presume the abolition of uses could 
 not have had much effect. It was the abolition of a phantom. 
 The word 'grant' is not more intelligible to the world at 
 
 " 4 Kent, 327, et seq. 
 
526 REAL PROPERTY. 
 
 large than the -words 'bargain and sale;' and the fiction, 
 indulged for two hundred years, that the bargain raised a 
 use, and the statute transferred the possession to the use, was 
 as cheap and harmless as anything could possibly be." 
 
 A use limited upon a use was not executed or even affected 
 by the "Statute of Uses." The statute executes only the first 
 use. In the case of a deed of bargain and sale, the whole 
 force of the statute is exhausted in transferring the legal title 
 in fee simple to the bargainee. But the second use was held 
 valid as a TRUST, and as such enforcible in equity." The 
 effect, then, of the entire travail, as Mr. Williams further 
 remarks : ' ' Was to import into the rules of law some of the 
 then existing doctrines of the courts of equity, and to add 
 three little words, viz: ' to the use,' to every conveyance."" 
 
 Sir William Blackstone says that : " In construing this Stat- 
 ute of Uses there were two particular obstacles which the 
 common law judges found it hard to get over. For instance, 
 they held that no use could be limited on a use,- and that 
 when a man bargains and sells his land which raises a nse 
 by implication to the bargainee, the limitation of a further 
 use to another person is repugnant and therefore void. 
 Again, they held that as the statute mentions only such per- 
 sons as were seized to the use of others, this was held not to 
 extend to terms of years, or other chattel interests, whereof 
 the termor is not seized but only possessed ; and, therefore, 
 if a term of one thousand years be limited to A. to the use of 
 (or in trust for) B. the statute does not execute this use, but 
 leaves it as at common law." The courts of equity speedily 
 availed themselves of the dilemma in which the law courts 
 thrust themselves by tenaciously striving to uphold this view, 
 and by a judicious exercise of their peculiar jurisdiction, they 
 wisely avoided in a great degree those mischiefs which the 
 statute made intolerable. In the majority of instances the 
 use was one which the statute could not execute, yet still 
 they were trusts in equity which in conscience ought to be 
 performed. To this the reason of mankind assented, and 
 
 " Jackson V. Gary, i6 Johns, 304; Cas. 444; Gilbert, Uses (Sugden's 
 Francescus v. Reigart, 4 Watts, note) ; i Wiliams, Real Prop. 181. 
 408; Roe V. Tranmar, 2 Sm. Lead. '* Williams, Real Prop. 159, 160. 
 
 " 2 Bl, Com. chap. 20. 
 
USES AND TRUSTS. $2/ 
 
 the old doctrine of uses was revived, under the denomination 
 of trusts ; and thus, by this strict construction of the courts of 
 law, a statute made upon great deliberation, and introduced 
 in the most solemn manner, has had little other effect than 
 to make a slight alteration in the formal words of a convey- 
 ance.'' 
 
 § 208. Doubts as to its introduction in this country. We 
 
 may safely affirm that the modern view of trusts traverses 
 the same ground formerly occupied by uses before the Stat- 
 ute of Uses. It not only does this but goes far beyond it. 
 Mr. Story considers it a very fortunate circumstance that our 
 equity jurisprudence did not reach its matured expansion 
 until the rules regarding the management of equitable 
 estates had been well settled by the English Court of Chan- 
 cery. The assertion is constantly paraded by superficial 
 writers on this subject that the Statute of Uses has been 
 adopted in the different States of this country, "as part of 
 the common law" so that it prevails generally throughout the 
 United States. This is one of those detestable half truths so 
 pernicious in their influence and so difficult to smother. In 
 the first place the Statute of Uses never was a part of the 
 common law. It was a parliamentary enactment in the time 
 of Henry VIII. Before its passage uses, in a crude and 
 primitive condition, formed a part of the common law. But 
 the modern doctrine of "trusts," founded on these primitive 
 notions of uses, was of protracted gestation. In the second 
 place, at the time of the colonization of America, the entire 
 subject was in a chaotic state even in the English chancery. 
 It was not until the opening of the i8th century that it 
 assumed distinct and symmetrical proportions, and our most 
 eminent authorities agree in the assertion that on this side of 
 the Atlantic, equity practice in any form had not even a 
 faint recognition until long after the Revolution." The 
 legitimate inference from these repeated statements regard- 
 ing the domestication of the "Statute of Uses" as part of the 
 common law is, that our courts, even in colonial times, were 
 well acquainted with the subject. Whereas, as matter of 
 fact, there is not a report published on this continent prior 
 
 " 2 Bl. Com. chap. 20. '« Story, Eq. Jur. sec. 56. 
 
528 
 
 REAL PROPERTY. 
 
 to 1800 that makes the faintest allusion to the Statute of Uses. 
 And in practiqal effect the entire subject of uses and trusts 
 in this country owes its importance and elaboration to Mr. 
 Chancellor Kent. Universally the English chancellors repu- 
 diated the theory embodied in the statute of Henry VIII. 
 That statute was from start to finish a rank and glaring piece 
 of class legislation passed in the interests of the aristocracy. 
 It was doomed to utter prostration and failure, and it is ex- 
 ceedingly doubtful if the Stuarts could have retained their 
 throne, entrenched as they were behind that "frenzy of 
 ecstacy" known as the Restoration, had they refused to 
 yield to the suasive eloquence of Nottingham, who had prin- 
 cipally devised, or at least germinated, the method by which 
 that odious statute should be best avoided. And yet we are 
 glibly told that the "Statute of Uses" was brought to this 
 country by the colonists as part of our ' ' common law, ' ' when 
 it is an undoubted historical fact that the statute had been 
 refined away into absolute nothingness before America was 
 colonized." 
 
 " Would it not be more appropri- 
 ate to say that the doctrine of uses, 
 as known and administered at com- 
 mon law, and as amplified by the 
 equity jurisdiction, was brought to 
 this country by our ancestors ? To 
 say that the Statute of Uses, as en- 
 acted by the English parliament in 
 the time of Henry VIII. ever be- 
 came a part of our legal system 
 seems to me clearly erroneous. The 
 colonists only brought with them 
 such parts of the common law " as 
 were applicable to their condition." 
 And to hold that this particular act, 
 passed a full century before they 
 obtained a firm foothold upon 
 our soil, which had been a dead 
 letter upon the statute books for 
 many years, which had been passed 
 originally in the interest of king- 
 craft and aristocratic pretension, 
 which had become a phantom even 
 in the English law, supplanted by a 
 
 more flexible device — to hold, I 
 say, that this statute in hoc verba 
 was a thing to be caressed in our 
 nascent jurisprudence is inconceiv- 
 able. Certainly the Puritans hud- 
 dled around Plymouth Rock had 
 no affection for it. Its title alone 
 would have condemned it in their 
 estimation. Certainly the Dutch 
 at New Amsterdam never heard of 
 it. Nor had the Swedes on the 
 Delaware. And as for the James- 
 town colony, it is a violent wrench 
 upon all legal presumption to hold 
 that they had any earthly use for it. 
 As property rights expanded, and 
 civilization became more secure, 
 uses may have received some par- 
 tial recognition. But by that time 
 the theory of " trusts " was of wide 
 acceptance and the Statute of Uses 
 more useless than ever. 
 
 Uses in the United States.— "Th^ 
 extent to which the doctrine of 
 
USES AND TRUSTS. 
 
 529 
 
 I 209. Peculiar vices of the Statute of Uses. The old 
 
 English doctrine of uses, so far as typified in the statute of 
 Henry VIII, was obnoxious in various ways, (i) It rendered 
 conveyances more complex, verbose, and expensive than was 
 necessary, and perpetuated in deeds the use of a technical 
 language unintelligible as a "mysterious jargon" to all but 
 the members of one learned profession. (2) Limitations 
 intended to take effect at a future day were defeated by a 
 disturbance of the seizin arising from a forfeiture or change 
 of the estate of the person seized to the use. (3) There was 
 great difficulty in determining whether a particular limitation 
 was to take effect as an executed use, as an estate at common 
 law, or as a trust. ■ These objections were so strong and 
 unanswerable that it is a matter of small wonderment that in 
 course of time the statute was entirely discarded. Surely 
 every estate that can be created by a devise ought to be as 
 well created by a grant. Under the New York statutes the 
 conveyance by grant is a substitute for the old conveyance 
 to uses, and future interests in land may be conveyed by grant 
 as well as by devise." 
 
 uses and the conveyances founded 
 thereon have been introduced into 
 the jurisprudence of this country, 
 cannot be defined with any satisfac- 
 tory degree of accuracy. In some 
 of the States the. Statute of Uses 
 has been recognized as a part of 
 the common law. (Horton v. 
 Sledge, 29 Ala. 478 ; Rollins v. Ri- 
 ley, 44 N. H. II; Bryan v. Bradley, 
 16 Conn, 483; Marshall v. Fisk, 6 
 Mass. 31 ; Richardson v. Stodder, 
 100 Id. 528; Nightingale v. Hidden, 
 7 R. I. 115; Adams v. Guerard, 29 
 Ga. 651 ; Hutchins v. Heywood, 50 
 N. H. 491.) And in others similar 
 statutes have been enacted. (111. 
 Stats. 1883, chap. 30, sec. 3; Me. 
 Rev. Stats. 1879, sec. 3938; S. C. 
 Gen. Stats. 1882, sees. 1958-1960.) In 
 Virginia the statute only executes 
 the seizin to the use in the case of 
 
 34 
 
 deeds of bargain and sale, of lease 
 and release, and covenants to stand 
 seized to use. It does not, like the 
 English statute, include every case 
 where any person may stand or be 
 seized to the use of any other per- 
 son. (Lomax's Digest, Laws of Real 
 Prop. vol. I, 188. See in Wiscon- 
 sin Richl V. Bingenheimer, 28 Wis. 
 84; Rev. Stats. 1878, chap. 96, 618. 
 In Michigan, Ready v. Kearsley, 14 
 Mich. 228.) But in several of the 
 States it has never been recog- 
 nized, while in others it has been 
 expressly determined not to form a 
 part of the common law. (Thomp- 
 son V. Gibson, 2 Ohio, 439; Hel- 
 fenstine v. Garrard, 7 Id. 270; and 
 see Sheirman v. Dodge, 28 Vt. 26 ; 
 Gorham v. Daniels, 23 Id. 600.) ' 
 (Martindale on Conveyancing, 117.) 
 " Vide Kent's Com. 337. 
 
S30 REAL PROPERTY. 
 
 § 210. Distinction between " uses " and " trusts." What is 
 signified by the two words "use" and "trust" is really much 
 the same thing regarded from two different points of view. 
 A "use" regards principally the beneficial interest; a "trust" 
 regards principally the nominal ownership. '° Whatever the 
 distinction may have been under the English law, as it inter- 
 preted the famous statute of Henry VIII, certain it is, that in 
 our jurisprudence there is disclosed a constant tendency to 
 consider the use as merged in the trust accompanying it which 
 is always its inseparable incident. Both law and equity deal 
 with the trust estate, or rather with the legal estate held by 
 the trustee. This is the foundation upon which the entire 
 superstructure is reared, and in applying the avails of this 
 legal estate to the use of the beneficiary, the court acts 
 directly upon the trust itself through its representative, the 
 trustee. Mr. Perry, in his elaborate and scholarly treatment 
 of the subject, apparently adopts this view, as his entire dis- 
 cussion affects more particularly the trust estate, and the 
 word use entirely disappears even from the title of his work. 
 I am far from ignoring the term "use," but simply wish to 
 italicize the fact that the word ' ' trust, ' ' as used in the law of 
 equitable estates, is of overshadowing importance. 
 
 Uses and trusts are in their origin of a nature very simi- 
 lar, or rather exactly the same ; answering more to the fidei- 
 commissum than the usus-fructus of the civil law ; which latter 
 was the temporary right of using a thing, without having the 
 ultimate property, or full dominion of the substance." 
 
 The distinction that it is attempted to preserve merely 
 relates to the fixed or transitory nature of the estate created. 
 For instance, if a religious corporation becomes possessed in 
 perpetuity of the rents and profits arising from certain lands, 
 the character of the estate, from which these profits were 
 derived, took the form of a use so far as the corporation was 
 concerned. If, on the other hand, the same corporation had 
 a right to the same profits for the term say of twenty years, 
 the character of the estate from which those profits were 
 derived assumed the attributes of a trust estate. It will be 
 readily seen from this illustration, that the force of our pre- 
 vious remark is fully sustained, and there is no practical dis- 
 
 " Abbott's Law Diet. tit. Use. «» 2 Bl. Com. chap. 20. 
 
USES AND TRUSTS. 531 
 
 tinction between the tvfo, or, rather, uses have been drowned 
 in trusts ; one has engulfed the other, or so blended with it 
 that the original line of cleavage is becoming very obscure. 
 
 It is a case of distinction without a difference. While in 
 rigid, technical precision a use and a trust may be separated, 
 and each distinct term may convey to the mind a tolerably 
 distinct impression ; still in their practical applications, uses 
 and trusts may be regarded as synonymous terms, and import 
 such interests as are alone cognizable by the equity jurisdic- 
 tion. Mr. Perry, in his incomparable treatise on trusts, ad- 
 mirably summarizes the present situation, so far as regards 
 the distinction between the two when he says "that our pres- 
 ent trusts are almost identical with the old uses."" 
 
 In the case of Ware v. Richardson, 3 Md. 505, the court say 
 that by the provisions of this statute ' ' the use was transferred 
 into possession by converting the estate or interest of the 
 cestui que use into a legal estate, and by destroying the inter- 
 mediate estate of the feoffee. The strict construction which 
 was given to this statute by the judges of its time, and the 
 inconvenience and injustice which thereby followed, led, 
 after a lapse of time, through the interposition of a court of 
 chancery, and the ingenuity and learning of lawyers, to the 
 establishment of a regular and enlightened system of trusts. 
 In regard to this revival of the equity jurisdiction in respect 
 to trusts. Lord Mansfield has said in Burgess v. Wheate, i W. Bl. 
 123, 'that it has not only remedied the mischiefs of uses so 
 much complained of, but has given occasion to raise up a sys- 
 tem of equity, noble, rational, and uniform, in place of a sys- 
 tem at once unjust and inconvenient. Trusts are made to 
 answer the exigencies of families, and all purposes, without 
 producing one inconvenience, fraud, or private mischief, 
 which the statute of Henry VIII meant to avoid.' " 
 
 The same distinguished chancellor, in a subsequent case, 
 said that "it was the absurd narrowness of the courts of law 
 resting on literal distinctions, which in a manner repealed the 
 Statute of Uses, and drove cestuis que trust into equity."" It 
 thus conclusively appears that before Lord Mansfield's time 
 the Statute of Uses had been virtually ignored by the action 
 
 " Perry on Trusts, sec. 8, citing " 2 Dong. 274. 
 Penny v. Allen, 7 DeG. M. & G.422. 
 
532 REAL PROPERTY. 
 
 of the equity jurisdiction, and what had formerly been a use 
 before the statute of Henry VIII, was then recognized and 
 administered as a trust pure and simple. Lord Chancellor 
 Sugden says there is not another instance in the books in 
 which the clear intent of a parliamentary enactment has been 
 so systematically ignored. And yet we are told the ' ' Statute 
 of Uses' ' was ' ' quite generally adopted in this country, ' ' when 
 it had been entirely refined away in England before the year 
 1700! We are always open to conviction, and are afflictively 
 conscious of our liability to error. In view of all the facts, 
 however, we may be pardoned if we obtrude a doubt as to 
 the correctness of this statement, and leave the question for 
 common law pundits to squabble over, secure in the convic- 
 tion that whatever the result, students in the law of real 
 property will be neither edified nor fructified by the solution 
 of the problem. Our equity jurisprudence knows nothing of 
 the ' ' Statute of Uses. ' ' Its force and effect had been com- 
 pletely annihilated a hundred years before we had an equity 
 court, and if "it was brought here with other incidents of the 
 common law, ' ' we will let the common law professors tell us 
 what became of it. 
 
 § 211. The New York system examined. The New York 
 revision of 1830 as we have seen, abolished uses and trusts as 
 previously administered, and vastly simplified the entire sys- 
 tem of trust estates by an enactment of singular brevity and 
 excellence. Probably no great reform in legal methods has 
 ever been undertaken in this country that elicited more 
 opposition and virulent attack than this. It was confidently 
 predicted that such radical innovations upon the English 
 chancery system, then generally in vogue, would result in 
 the utter prostration of a magnificent equitable conception, 
 lead to inextricable confusion, and to the practical denial of 
 justice to a large class of meritorious litigants. The common 
 law pundits were found in the van of this attack, and, to a 
 man, were firmly convinced of the "calamitous effects" of 
 this ' 'jobbery. " It is quite usual for men nourished on theo- 
 rizing to overrun with ideas — all more or less idiotic — and 
 to attempt the instruction of such juristic Titans as Kent, 
 Livingston, and Walworth. People who are monomaniacs 
 
USES AND TRUSTS. 533 
 
 on the subject of tlieir own importance, are in a perpetual 
 quarrel with all who refuse to recognize their claims. In 
 the face of all this brainless chatter, the great reform was 
 duly inaugurated, and given strength and entablature by the 
 ablest jurists of modern times. By the provisions of the act, 
 trusts are regarded as either express or implied, and no 
 known formula of logic can ever make them anything else. 
 Wherever the trust is expressed in the instrument creating 
 the estate, every sale, conveyance, or other act of the trus- 
 tees, in contravention of the trust, is held absolutely void. 
 It abolished passive trusts, where the trustee has only a 
 naked and formal title, and the whole beneficial interest or 
 right in equity to the possession and profits of land is vested 
 in the person for whose benefit the trust was created." The 
 statute further declares that the person so entitled in interest 
 shall be deemed to have a legal estate therein, of the same 
 quality and duration and subject to the same conditions, as 
 his beneficial interest. If any such passive trust be created 
 by any disposition of lands by deeds or devise, no estate or 
 interest whatever vests in the trustee. This provision is 
 founded in sound policy. The revisers have justly observed 
 that the separation of the legal and equitable estates in every 
 such case, appears to answer no good purpose, and it tends to 
 mislead the public and obscure titles, and facilitate fraud." 
 The conviction was abroad that the knife must be put to the 
 ulcer, and this huge excrescence fostered and developed 
 through three centuries of nursing, and which had literally 
 eaten the heart out of both law and equity, must be lopped 
 off. The provisions were intended, as stated by the revisors 
 themselves, to "sweep away an immense mass of useless 
 refinements and distinctions, relieve the law of real property, 
 to a great extent, from its abstruseness and uncertainty, and 
 render it, as a s_ystem, intelligible and consistent; that the 
 security of creditors and purchasers will be increased, the 
 investigation of titles much facilitated, the means of aliena- 
 tion be rendered far more simple and less expensive and, 
 finally, that numerous sources of vexatious litigation will be 
 
 '3 See Voorhees v. Presbyterian " See 4 Kent, 349 et seq. 
 Church at Amsterdam, 17 Barb. 103. 
 
534 REAL PROPERTY. 
 
 perpetually closed. " That these objects have been accom- 
 plished is undeniable. And it is very doubtful if any mere 
 legislative enactment has ever been subjected to more pitiless 
 criticism or savage attack. The briefest consideration of the 
 facts will abundantly warrant this assertion. The city of 
 New York, as the financial center of the western world, rep- 
 resents to-day hundreds of millions of dollars of property 
 held in trust. It is along the lines of entire conservatism to 
 say that the aggregate trust capital of the entire American 
 Union does not exceed the amount that has been brought 
 under the sway of these trust enactments. For nearly 
 seventy years every conceivable phase of litigation af- 
 fecting trust properties has been under careful review, and 
 this mighty volume of litigation has been successfully dis- 
 posed of without wrenching a single principle of equity from 
 its fastenings. The law has abundantly vindicated the wis- 
 dom and the sagacity of the great lawyers who drafted its 
 various recitals. And in its simplification of methods alone 
 it is to be regarded as an achievement of monumental import- 
 ance. There will always be a class of men to whom obscu- 
 rity and perplexity in legal formulas is very fascinating. 
 To them everything calculated to break down the barriers 
 originally erected by the medieval ecclesiastics to prevent 
 the spread of legal information, and the simplification of 
 legal methods, is a direct menace to their own means of sus- 
 tenance. They thrive on ignorance, and foam into parox- 
 ysms of rage over any reform aimed to correct an abuse in 
 the perpetuation of which their professional success depends. 
 An edifying spectacle, illustrative of this truth, was recently 
 seen in the efforts of the Chicago abstract offices to suppress 
 the Torrens method of land transfers. It is true that inno- 
 vation is not a synonym for improvement, but in this matter 
 of trust estates, it is submitted that the New York system 
 stands unrivaled and unassailable, and merits wide recogni- 
 tion. In the interests of simplicity and uniformity I append 
 the text of this celebrated revision with the amendments of 
 May 1 2th, 1896. 
 
USES AND TRUSTS. 535 
 
 ARTICLE III.— USES AND TRUSTS. 
 
 Section 70. Executed uses existing. 
 
 71. Certain uses and trusts abolished. 
 
 72. When right to possession creates legal owner- 
 
 ship. 
 
 73. Trustees of passive trust not to take. 
 
 74. Grant to one where consideration paid by an- 
 
 other. 
 
 75. Bona fide TpUTchasers -pTotected. 
 
 76. Purposes for which express trusts may be cre- 
 
 ated. 
 ^y. Certain devises to be deemed powers. 
 
 78. Surplus income of trust property liable to credit- 
 
 ors. 
 
 79. When an authorized trust is valid as a power. 
 
 80. Trustee of express trust to have whole estate. 
 
 81. Qualification of last section. 
 
 82. Interest remaining in grantor of express trust. 
 
 83. What trust interest may be aliened. 
 
 84. Transferee of trust property protected. 
 
 85. When trustee may convey trust property. 
 
 86. When trustee may lease trust property. 
 
 87. Notice to beneficiary where trust property is con- 
 
 veyed, mortgaged or leased. 
 
 88. Person paying money to trustee protected. 
 
 89. When estate of trustee ceases. 
 
 90. Termination of trusts for the benefit of creditors. 
 
 91. Trust estate not to descend. 
 
 92. Resignation or removal of trustee and appoint- 
 
 ment of successor. 
 
 93. Grants and devises of real property for charitable 
 
 purposes. 
 
 Section 70. Executed uses existing. — Every estate which 
 is now held as a use, executed under any former statute of 
 the state, is confirmed as a legal estate. 
 
 §71. Certain uses and trusts abolished. — Uses and trusts 
 concerning real property, except as authorized and modified 
 by this article, have been abolished ; every estate or interest 
 
536 REAL PROPERTY. 
 
 in real property is deemed a legal right, cognizable as such 
 in the courts, except as otherwise prescribed in this chapter. 
 
 § 72. When right to possession creates legal ownership. — 
 Every person, who, by virtue of any grant, assignment or 
 devise, is entitled both to the actual possession of real prop- 
 erty, and to the receipt of the rents and profits thereof, m 
 law or equity, shall be deemed to have a legal estate therein, 
 of the same quality and duration, and subject to the same 
 conditions, as his beneficial interest; but this section does 
 not divest the estate of the trustee in any trust existing on 
 the first day of January, eighteen hundred and thirty, where 
 the title of such trustee is not merely nominal, but is con- 
 nected with some power of actual disposition or management 
 in relation to the real property which is the subject of the 
 trust. 
 
 § 73. Trustee of passive trust not to take. — Every dispo- 
 sition of real property, whether by deed or by devise, shall 
 be made directly to the person in whom the right to the pos- 
 session and profits is intended to be vested, and not to an- 
 other to the use of, or in trust for, such person ; and if made 
 to any person to the use of, or in trust for another, no estate 
 or interest, legal or equitable, vests in the trustee. But 
 neither this section, nor the preceding sections of this article 
 shall extend to the trusts arising, or resulting by implication 
 of law, nor prevent or affect the creation of such express 
 trusts as are authorized and defined in this chapter. 
 
 § 74. Grant to one where consideration paid by another. — 
 A grant of real property for a valuable consideration, to one 
 person, the consideration being paid by another, is presumed 
 fraudulent as against the creditors, at that time, of the person 
 paying the consideration, and unless a fraudulent intent is 
 disproved, a trust results in favor of such creditors, to an 
 extent necessary to satisfy their just demands ; but the title 
 vests in the grantee, and no use or trust results from the 
 payment to the person paying the consideration, or in his 
 favor, unless the grantee either 
 
 I. Takes the same as an absolute conveyance, in his own 
 name, without the consent or knowledge of the person pay- 
 ing the consideration, or. 
 
USES AND TRUSTS. 537 
 
 2. In violation of some trust, purchases the property so con- 
 veyed with money or property belonging to another. 
 
 § 75. Bona fide purchasers protected. — An implied or 
 resulting trust shall not be alleged or established, to defeat 
 or prejudice the title of a purchaser for a valuable considera- 
 tion without notice of the trust. 
 
 § 76. Purposes for which express trusts may be created. — 
 An express trust may be created for one or more of the fol- 
 lowing purposes : 
 
 1 . To sell real property for the benefit of creditors ; 
 
 2. To sell, mortgage or lease real property for the benefit 
 of annuitants or other legatees, or for the purpose of satisfy- 
 ing 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 provisions of 
 law relating thereto ; 
 
 4. To receive the rents and profits of real property, and to 
 accumulate the same for the purposes, and within the limits, 
 prescribed by law. 
 
 § yy. Certain devises to be deemed powers. — A devise of 
 real property to an executor or other trustee, for the pur- 
 pose of sale or mortgage, where the trustee is not also em- 
 powered to receive the rents and profits, shall not vest any 
 estate in him ; but the trust shall be valid as a power, and 
 the real property shall descend to the heirs, or pass to the 
 devisees of the testator, subject to the execution of the 
 power. 
 
 § 78. Surplus income of trust property liable to creditors.^ 
 Where a trust is created to receive the rents and profits of 
 real property, and no valid direction for accumulation is 
 given, the surplus of such rents and profits, beyond the sum 
 necessary for the education and support of the beneficiary, 
 shall be liable to the claims of his creditors in the same man- 
 ner as other personal property, which cannot be reached by 
 execution. 
 
 § 79. When an authorized trust is valid as a power. — 
 Where an express trust relating to real property is created 
 for any purpose not specified in the preceding sections of this 
 article, no estate shall vest in the trustees ; but the trust, if 
 
538 REAL PROPERTY. 
 
 directing or authorizing the performance of any act which 
 may be lawfully performed under a power, shall be valid as 
 a power in trust, subject to the provisions of this chapter. 
 Where a trust is valid as a power, the real property to which 
 the trust relates shall remain in or descend to the persons 
 otherwise entitled, subject to the execution of the trust as a 
 power. 
 
 § 80. Trustee of express trust to have whole estate. — Ex- 
 cept as otherwise prescribed in this chapter, an express trust, 
 valid as such in its creation, shall vest in the trustee the 
 legal estate, subject only to the execution of the trust, and 
 the beneficiary shall not take any legal estate or interest in 
 the property, but may enforce the performance of the trust. 
 
 §81. Qualification of last section. — The last section shall 
 not prevent any person, creating a trust, from declaring to 
 whom the real property, to which the trust relates, shall be- 
 long, in the event of the failure or termination of the trust, 
 or from granting or devising the property, subject to the 
 execution of the trust. Such a grantee or devisee shall have 
 a legal estate in the property, as against all persons, except 
 the trustees, and those lawfully claiming under him. 
 
 § 82. Interest remaining in grantor of express trust. — 
 Where an express trust is created, every legal estate and 
 interest not embraced in the trust, and not otherwise dis- 
 posed of, shall remain in or revert to, the person creating 
 the trust or his heirs. 
 
 § 83. What trust interest may be alienated. — The right of a 
 beneficiary of an express trust to receive rents and profits of 
 real property and apply them to the use of any person, can 
 not be transferred by assignment or otherwise ; but the right 
 and interest of the beneficiary of any other trust may be 
 transferred. Whenever a beneficiary in a trust for the receipt 
 of the rents and profits of real property is entitled to a 
 remainder in the whole or a part of the principal fund so 
 held in trust subject to his beneficial estate for a life or lives, 
 or a shorter term, he may release his interest in such rents 
 and profits, and thereupon the estate of the trustee shall 
 cease in that part of such principal fund to which such bene- 
 ficiary has become entitled in remainder, and such trust 
 estate merges in such remainder. 
 
USES AND TRUSTS. 539 
 
 § 84. Transferee of trust property protected.— Where an 
 express trust is created, but is not contained or declared in 
 the conveyance to the trustee, the conveyance shall be 
 deemed absolute as to the subsequent creditors of the trustee 
 not having notice of the trust, and as to subsequent pur- 
 chasers from the trustee, without notice and for a valuable 
 consideration. 
 
 § 85. When trustee may convey trust property. — If the 
 trust is expressed in the instrument creating the estate, 
 every sale, conveyance or other act of the trustee, in contra- 
 vention of the trust, except as provided in this section, shall 
 be absolutely void. The supreme court may, by order, on 
 such terms and conditions as seem just and proper, authorize 
 any such trustee to mortgage or sell such real property, or 
 any part thereof, whenever it appears to the satisfaction of 
 the court that it is for the best interest of such estate, or that 
 it is necessary and for the benefit of the estate, to raise funds 
 for the purpose of preserving and improving it ; and when- 
 ever the interest of the trust estate in any real property is an 
 undivided part or share thereof, the same may be sold, if it 
 shall appear to the court to be for the best interest of such 
 estate. 
 
 ^ § 86. When trustee may lease trust property. — A trustee 
 appointed to hold real property during the life of a benefi- 
 ciary, and to pay or apply the rents, income and profits 
 thereof to, or for, the use of such beneficiary, may execute 
 and deliver a lease of such real property for a term not ex- 
 ceeding five years, without application to the court. The 
 supreme court may, by order, on such terms and conditions 
 as seem just and proper, in respect to rental and renewals, 
 authorize such a trustee to lease such real property for a 
 term exceeding five years, if it appears to the satisfaction of 
 the court that it is for the best interest of the trust estate, 
 and may authorize such trustee to covenant in the lease to 
 pay at the end of the term, or renewed term, to the lessee the 
 then fair and reasonable value of any building which may 
 have been erected on the premises during such term. If any 
 such trustee has leased any such trust property before June 
 fourth, eighteen hundred and ninety-five, for a longer term 
 than five years, the supreme court, on the application of 
 
540 REAL PROPERTY. 
 
 such trustee, may, by order, confirm such lease, and such 
 order, on the entry thereof, shall be binding on all persons 
 interested in the trust estate. 
 
 § 87. Notice to beneficiary where trust property is con- 
 veyed, mortgaged or leased. — The supreme court shall not 
 grant an order under either of the last two preceding sec- 
 tions, unless it appears to the satisfaction of such court that 
 a written notice, stating the time and place of the application 
 therefor, has been served upon the beneficiary of such trust 
 property, at least eight da,ys before the making thereof, if 
 such beneficiary is an adult within the state ; or if a minor, 
 lunatic, person of unsound mind, habitual drunkard or 
 absentee, until proof of the service on such person of such 
 notice as the court, or a justice thereof, prescribes. 
 
 § 88. Person paying money to trustee protected. — A per- 
 son who shall actually and in good faith pay a sum of money 
 to a trustee, which the trustee as such is authorized to 
 rfeceive, shall not be responsible for the proper application of 
 the money, according to the trust; and any right or title 
 derived by him from the trustee in consideration of the pay- 
 ment shall not be impeached or called in question in conse- 
 quence of a misapplication by the trustee of the money paid. 
 
 § 89. When estate of trustee ceases. — When the purpose 
 for which an express trust is created ceases, the estate of the 
 trustee shall also cease. 
 
 § 90. Termination of trusts for the benefit of creditors. — 
 Where an estate or interest in real property has heretofore 
 vested or shall hereafter vest in the assignee or other trustee 
 for the benefit of creditors, it shall cease at the expiration of 
 twenty-five years from the time when the trust was created, 
 except where a different limitation is contained in the instru- 
 ment creating the trust, or is especially prescribed by law. 
 The estate or interest remaining in the trustee or trustees 
 shall thereon revert to the assignor, his heirs, devisee or 
 assignee, as if the trust had not been created. 
 
 §91. Trust estate not to descend. — On the death of the 
 last surviving or sole trustee of an express trust, the trust 
 estate shall not descend to his heirs nor pass to his next of 
 kin or personal representatives ; but in the absence of a con- 
 trary direction on the part of the person creating the same, 
 
USES AND TRUSTS. 541 
 
 such trust, if unexecuted, shall vest in the supreme court, 
 ■with all the powers and duties of the original trustee, and 
 shall be executed by some person appointed for that purpose 
 under the direction of the court who shall not be appointed 
 until the beneficiary thereof shall have been brought into 
 court by such notice in such manner as the court or a justice 
 thereof may direct. 
 
 § 92. Resignation or removal of trustee and appointment of 
 successor. — The supreme court has power, subject to the 
 regulations established for the purpose in the general rules 
 of practice : 
 
 1. On his application by petition or action, to accept the 
 resignation of a trustee, and to discharge him from the trust 
 on such terms as are just. 
 
 2. In an action brought or on a petition presented, by any 
 person interested in the trust, to remove a trustee who has 
 violated or threatens to violate his trust, or who is insolvent, 
 or whose insolvency is apprehended, or who for any other 
 cause shall be deemed to be an unsuitable person to execute 
 the trust. 
 
 3. In case of the resignation or removal of a trustee, to 
 apppint a new trustee in his place, and in the meantime, if 
 there is no acting trustee, to cause the trust to be executed 
 by a receiver or other officer under its direction. This sec- 
 tion shall not apply to a trust arising or resulting by impli- 
 cation of law, nor where other provision is specially made by 
 law, for the resignation or removal of a trustee or the appoint- 
 ment of a new trustee. 
 
 § 93. Grants and devises of real property for charitable 
 purposes. — A conveyance or devise of real property for 
 religious, educational charitable or benevolent uses, which is 
 in other respects valid, is not to be deemed invalid by reason 
 of the indefiniteness or uncertainty of the persons designated 
 as the beneficiaries thereunder in the instrument making 
 such conveyance or devise. If in such an instrument, a 
 trustee is named to execute the same, the legal title to the 
 real property granted or devised shall vest in such trustee. 
 If no person is named as trustee, the title to such real prop- 
 erty vests in the supreme court, and such court shall have 
 
54.2 REAL PROPERTY. 
 
 control thereof. The attorney-general shall represent the 
 beneficiaries in such cases and enforce such trusts by proper 
 proceedings. 
 
 § 212. The doctrine of uses and trusts in the United States. 
 
 Notwithstanding the seething contention that surrounded 
 the entire subject of uses and trusts in the mother country, 
 it was not until the period of the restoration (1660) that the 
 subject reached anything like a bed-rock foundation. The 
 nimble brain and suasive eloquence of Chancellor Notting- 
 ham had much to do with the fixity of the doctrine, and the 
 same great chancellor is generally supposed to have drafted 
 the entire scheme of what afterwards became so celebrated 
 as the statute for the prevention of frauds and perjuries. In 
 this country the development of the doctrine was very slug- 
 gish until some time after the , opening of the present cen- 
 tury. Mr. Justice Story doubts if there was any such thing 
 as equity jurisprudence administered in any form on this 
 side of the Atlantic until some time after the opening of 
 the present century except in a crude and unsatisfactory 
 way, that only resulted in great discontent to both the liti- 
 gating parties. Certain it is that the New York Court of 
 Chancery first gave impulse and direction to the equity juris- 
 prudence of America, and in the thirty-two volumes com- 
 prehending the decisions of this famous court, we find the 
 germ of what is now distinctively known as the American 
 Equity System. Under such chancellors as Kent, Livings- 
 ton, Lansing, Walworth, McCoun, Hoffman, Sandford, Van 
 Vleet, Whittlessey and their compeers, much has been 
 accomplished towards giving symmetry and stability to the 
 present system of uses and trusts. Their efforts have been 
 supplemented by a series of eminent jurists who have 
 adorned the New Jersey Equity bench, and the reports of 
 that tribunal are justly regarded as permanent repositories 
 of many valuable contributions to this intricate branch of 
 our jurisprudence. 
 
 § 213. What is a trust ? A trust, in its original and most 
 enlarged sense, may be defined to be an equitable right, title 
 or interest in property, real or personal, distinct from the 
 legal ownership, and to constitute which, three circum- 
 
USES AND TRUSTS. 543 
 
 Stances must concur, i, SufHcient words to raise it; 2, A 
 definite subject; and, 3, A certain or ascertained object." 
 
 The legal ownership holds the absolute and direct domin- 
 ion over the property in view of the law ; but the income, 
 profits or benefits thereof in his hands, belong wholly or in 
 part to others." The legal estate in the property is thus 
 made subservient to certain uses, benefits or charges in favor 
 of others; and the uses, benefits or charges, constitute the 
 trusts which courts of equity will compel the legal owner as 
 trustee to perform, in favor of the cestui que trust or bene- 
 ficiary. A trust is sometimes also called a use, from which 
 it is only technically distinguished." 
 
 This same question " What is a trust?" is asked and 
 answered in the most satisfactory way by Mr. Burrill, who 
 defines it as a confidence, for which the party is without 
 remedy, save in a court of equity.'"" 
 
 An obligation or duty, arising out of confidence.* An 
 obligation upon a person arising out of a confidence reposed 
 in him, to apply property faithfully, and according to such 
 confidence." 
 
 A right or interest, arising out of confidence.* An equit- 
 able right, title or interest in property, real or personal, dis- 
 tinct from the legal ownership thereof. °° An equitable right 
 or interest in property, which another holds in confidence 
 as the legal owner.* Both these definitions are essential to 
 make up the complete idea of the word. 
 
 *^*The radical idea of a trust is confidence, and this is the 
 word employed by Lord Coke in his definition of a use, 
 which has been adopted by Mr. Butler and Mr. Lewin, as 
 the best and most exact definition of a trust." The same 
 idea is still more aptly expressed by the Roman term fidei- 
 commissum, which literally means a thing committed to one's 
 
 " (a) Craweys v. Colman, 9 Ves. °' Willis on Trustees, chap, i, 2 ; 
 
 323. Stair's Inst. b. 4, tit. 6, sec. 2, cited 
 
 " (b) Stuart v. Melish, 2 Atkyns, ibid. 
 
 612. '» 2 Story's Eq. Jur. 964. 
 
 " Willard's Equity Jurisprudence '' Butler's Co. Litt. note 249, lib. 
 
 (Potter's ed.), 410. 3 ; Lewin on Trusts, 15 ; see infra. 
 
 '' Henley, Lord Keeper, in Bur- 
 gess V. Wheate, i W. Bl. 180. 
 
544 REAL PROPERTY. 
 
 faith, and Justinian explains that it was so called, because it 
 rested upon no obligation of law, nulla vinculo juris, but only 
 on the honor of those to whom it was committed, sed tantum 
 pudore eorum qui rogahanUir, continebanturJ''' 
 
 A trust, then, in its simplest elements, is a confidence 
 reposed in one person, who is termed the trustee, for the 
 benefit of another, who is called the cestui que trust ; and it 
 is a confidence respecting property, which is thus held by 
 the former for the benefit of the latter. Out of this confi- 
 dence arise two estates in the property which is the subject 
 of it ; a legal estate in the trustee, which consists essentially 
 in obligation ; and an equitable estate in the cestui que trust, 
 which consists in right and beneficial enjoyment. So that a 
 trust embraces the two ideas of an obligation on the part of 
 one person and a corresponding right on the part of another, 
 which are presented in the definitions above given; both 
 founded upon, and growing out of the radical idea of confi- 
 dence, which has been already explained. 
 
 In a trust thus constituted, the legal owner holds the direct 
 and absolute dominion over the property, in the view of the 
 law ; but the income, profits or benefits thereof in his hands 
 belong wholly, or in part, to others. The legal estate in the 
 property is thus made subservient to certain uses, benefits or 
 charges in favor of others; and these uses, benefits or 
 charges, constitute the trusts which courts of equity will 
 compel the legal owner, as trustee, to perform, in favor of 
 the cestui que trust, or beneficiary. "" 
 
 Mr. Cruise defines a trust or trust estate to be "a right in 
 equity to take the rents and profits of lands whereof the legal 
 estate is vested in some other person ; to compel the person 
 thus seized of the legal estate, who is called the trustee, to 
 execute such conveyances of the land as the person entitled 
 to the profits, who is called the cestui que trust, shall direct, 
 and to defend the title to the land. "In the meantime, the 
 cestui que trust, when in possession, is considered, in a court 
 of law, as tenant at will to the trustee." Chancellor Kent 
 expresses the same idea, in more comprehensive terms: "A 
 
 ^'10 31.2,23, I. "Cruise's Dig. tit. xii, chap, i, 
 
 'IS 2 Story's Eq. Jur. sec. 964. sec. 3. 
 
USES AND TRUSTS. 
 
 545 
 
 trust, in the general and enlarged sense, is a right on the 
 part of the cestui que trust to receive the profits and to dis- 
 pose of the lands in equity."" 
 
 In its simplest form it is a relation between two persons, 
 by virtue of which one of them (the trustee) holds property 
 for the benefit of the other (the cestui qui trust), while as 
 regards the rest of the world he, the trustee, is for most pur- 
 poses, absolute owner of it. They arise either by act of the 
 party or by operation of law.'° No technical language is 
 necessary to the creation of a trust. If it appears to be the 
 intention of the parties to an instrument conveying property 
 that it is to be held or dealt with for the benefit of another, 
 a court of equity will affix to it the character of a trust, and 
 impose corresponding duties upon the party receiving the 
 title, if it be capable of lawful enforcement. In each case 
 the intention is to be gathered from the general purpose and 
 scope of the instrument." It will be seen how closely we 
 parallel the former definition of a "use" when we come to 
 define a trust. ^'' 
 
 ^* 4 Kent's Com. 304; 2 Burrill's 
 Law Diet. tit. "Trust." 
 
 '* Rapalje & Lawrence's Law Diet; 
 
 "' Colton V. Colton, 127 U. S. 310. 
 Creswell v. Jones, 68 Ala. 423. 
 
 ^* A trust is where property is 
 eonferred upon and aceepted by- 
 one person on the terms of hold- 
 ing, using or disposing of it for the 
 benefit of another. Wherever sueh 
 a trust is shown it is cognizable 
 by a court of equity. The law 
 knows no trust which simply binds 
 the conscience. An alleged trust 
 which is cognizable only in the 
 court of morals or the forum of 
 conscience is no trust at all ; it is 
 an absurdity. The law does not 
 acknowledge a trust over the exer- 
 cise of which it will not through its 
 tribunals assume control to avert 
 its destruction, perversion or 
 abuse. (Morice v. Bishop of Dur- 
 ham, 9 Ves. Jr. 400.) 
 
 35 
 
 Trusts are the mere creatures of 
 confidence between party and party, 
 totally distinct in almost every 
 quality from those legal estates 
 which are the subjects of tenure. 
 They are in their nature independ- 
 ent of tenure, and, therefore, not 
 the objects of those laws which are 
 founded in the nature of tenure. 
 They are rights arising solely out 
 of the intent of the party who cre- 
 ated them, and, therefore, such in- 
 tent could be the only guide in the 
 execution of them. (Green v. 
 Green, 23 Wall. [90 U. S.] 486.) 
 
 The rule in Shelley's case is ap- 
 plicable to trust estates, where both 
 the life estate and the remainder 
 are of the same character; but not 
 where the life estate is an equitable 
 character, and the remainder is a 
 legal estate, or vice versa. (Green 
 v. Green, 23 Wall. 486.) The rule is 
 not one of construction, but of law 
 
54^ REAL PROPERTY 
 
 § 214. How created. Our present statutes require that the 
 trust should be created or declared by deed or conveyance in 
 writing, subscribed by the party creating or declaring the 
 trust f° but it need not be done in the form of a grant. A 
 declaration of trust is not a grant. It may be contained in 
 the reciting part of a conveyance. Such a recital in an 
 indenture is a solemn declaration of the existence of the 
 facts recited ; and if the trustee and the cestui que trust are 
 parties to the conveyance, the trust is as well and effectually 
 declared in that form as in any other." 
 
 The Statute of Frauds, as has been repeatedly stated, is uni- 
 versally accepted in this country although there is some 
 variation in details, as will be found by a careful comparison 
 of the various enactments. By the terms of this statute all 
 declarations of trust or confidence, affecting lands, tene- 
 ments and hereditaments, should be evidenced in writing. 
 Of course, it is not to be assumed that trusts raised by ope- 
 ration of law fall within the terms of this statute. The ex- 
 emption thus includes all grades of involuntary or implied 
 trusts. Nor does it include such declarations of trust as are 
 made with reference to personal property. But where it 
 would work a fraud, and permit an unconscionable advant- 
 age, the court will not allow the statute to act as a screen." 
 
 No precise form of words is necessary to create a convey- 
 ance to uses. It is sufficient if the intention to create one is 
 
 instituted as a support and prop to at the time of the testator's death, 
 feudal tenures. (White v. Howard, 46 N. Y. 144.) 
 In many of the leading States the A period measured by years in- 
 entire subject of trusts has been stead of by lives in being, during 
 brought within the limits of statu- which there will be no persons in 
 tory regulation. Under the New existence by whom an absolute es- 
 York law neither real nor personal tate in possession can be conveyed, 
 property can be kept from absolute brings the estate within the rule 
 ownership, except during two desig- against unlawful suspension of 
 nated lives in being. (Garvey v. alienation. (Cruikshank v. Home 
 McDevitt, 72 N. Y. 556; Hobsonv. for the Friendless, 113 N. Y. 337; 
 Hale, 95 N. Y. 588,) And these 18 Abb. N. C. [N. Y.] 282.) 
 rules are not relaxed for charity. ^' Cook v. Barr, 44 N. Y. 158. 
 (See the celebrated case of Holland ■*" Wright v. Douglass, 52 Pa. St. 
 v. Alcock, 108 N. Y. 312.) The ca- 527. 
 pacity to take is to be determined ^1 Foote v. Foote, 58 Barb. 258. 
 
USES AND TRUSTS. 547 
 
 clearly indicated, althougli the words "use, confidence or 
 trust " are not used. A conveyance of land may always be 
 construed to be that kind or species of conveyance which 
 may be necessary to vest the title according to the intention 
 of the parties, if such interpretation is not repugnant to the 
 terms of the grant." 
 
 Doubts were at one time entertained whether trusts could 
 be created by parol, but it is well established that this could 
 be done at common law, both as to real and personal prop- 
 erty. "A trust in reality, like a use, was in technical lan- 
 guage 'averable,' that is, could be created by word of mouth. 
 The better opinion is, however, that this is only true of 
 those cases in which the legal estate could be created by 
 feoffment, where of course no writing was necessary. But, 
 where a deed was requisite for the conveyance of the legal 
 estate, as in the covenant to stand seized to uses, these uses 
 and trusts were not averable, but could be treated only in the 
 same manner as legal estates." Trusts and uses were raised 
 in the same manner, and if a feoffment was made without 
 consideration, a use resulted to the feoffor, unless the use or 
 trust was declared at the time of the conveyance. Now, it 
 must be observed that no consideration was necessary to a 
 feoffment. The conveyance itself raised the use, and sepa- 
 rated it from the legal estate. The use so raised would, 
 however, as we have said, in the absence of a consideration, 
 result to the feoffor unless declared at the time of the feoff- 
 rtient, and this declaration might be voluntarily made by 
 parol, either in favor of the feoffee or of a third person. But 
 there was a great difference in this respect between a convey- 
 ance which operated by transmuting the possession and the 
 covenant to stand seized, which had no operation but by the 
 creation of a new use ; and as this use was raised by equity, 
 and equity never acts without a consideration, a con- 
 sideration was always necessary to the transfer of the 
 interest by this conveyance, whereas in the case of a feoff- 
 ment or fine, the use arises upon the conveyance itself. 
 * * * It seems, therefore, that at common law only the 
 
 « Marshall v. Fisk, 6 Mass. 24, 32 ; « 43 Bispham, Eq. 95 ; Hill, Trus- 
 2 Washb. Real. Prop. 146. tees, 86 ; Gilbert, Uses and Trusts, 
 
 270. 
 
548 REAL PROPERTY. 
 
 solemn conveyance, by livery or record, could raise the use 
 by its own virtue, and dispense with the deed for declaring 
 it, as well as the consideration for raising it."" It appears 
 then, that at common law no use or trust could be raised in 
 lands without a consideration, except in the single instance 
 of a conveyance operated by transmutation of possession, 
 the character of the conveyance alone being sufficient to 
 raise the use, and to dispense with the necessity for a con- 
 sideration. This view is distinctly approved in Wood v. 
 ' Cherry, 73 N. C. no, where it is said by Pearson, Ch. J., that 
 "a trust can only be created in one of four modes: i, 
 By transmission of the legal estate, when a simple declara- 
 tion will raise the use or trust ; 2, A contract based upon 
 valuable consideration to stand seized to the use or in trust 
 for another ; 3, A covenant to stand seized to the use of or 
 in trust for another, upon good consideration ; 4, when the 
 court, by its decrees, converts a party into a trustee, on the 
 ground of a fraud. "" 
 
 A trust of personalty is not within the Statute of Uses and 
 Trusts, and may be created for any lawful purpose." But 
 such trusts are within the statute forbidding accumulations, 
 except for minors." 
 
 Any agreement or contract in writing, whereby a person 
 agrees that a particular parcel of land shall be dealt with in 
 a particular manner for the benefit of another, raises a trust 
 in favor of such other person." 
 
 The trust may be manifested or proven by any writing in 
 
 " Roberts, Fr. 92. (Mass), 288 ; Giddings v. Palmer, 107 
 
 ^^ See also Frey v. Ramsour, 66 Mass. 270; Homer v. Homer, 107 Id. 
 
 N. C. 466 ; Shields v. Whitaker, 82 82 ; Price v. Minot, Id. 61 ; Paul v. 
 
 Id. 516; Malone, Real Prop. Trials, Fulton, 25 Miss. 156; Wadding v. 
 
 487. Loker, 44 Mo. 132 ; Currie v. White, 
 
 « Oilman v. McArdle, 99 N. Y. 45 N. Y. 882; Reed v. Lukens, 4f 
 
 451; Holmes V. Mead, 52 Id. 332. Pa. 200; Cressman's App. 42 Pa. 
 
 " Pray v. Hegeman, 92 N. Y. 50S. 147; Rees v. Livingston, 41 Id. 113; 
 
 ^' Conway V. Kinsworthy, 21 Ark. Pownal v. Taylor, 10 Leigh. 183; 
 
 9; Price V. Reeves, 38 Cal. 457; Seymore v. Freer, 75 U. S. (8 Wall.) 
 
 Rabun v. Rabun, 15 La. Ann. 471 ; 202, 19 L. ed. 306; Legard v, 
 
 Baylies v. Payson, 5 Allen (Mass), Hodges, i Ves. Jr. 478. 
 488; Pingree v. Coffin, 12 Gray 
 
USES AND TRUSTS. 549 
 
 wiiicli the fiduciary relation between the parties and its 
 terms can be clearly read." 
 
 a. Statutory regulations in California — Nature and creation 
 of a trust. Sec. 2215. Trusts classified. A trust is either : 
 
 1. Voluntary; or, 
 
 2. Involuntary. 
 
 Sec. 2216. Voluntary trusts, what. A voluntary trust is 
 an obligation arising out of a personal confidence reposed 
 in, and voluntarily accepted by, one for the benefit of an- 
 other. 
 
 Sec. 2217. Involuntary trust, what. An involuntary trust is 
 one which is created by operation of law. 
 
 Sec. 2218. Parties to the contract. The person whose confi- 
 dence creates a trust is called the trustor; the person in 
 whom the confidence is reposed is called the trustee ; and the 
 person for whose benefit the trust is created is called the 
 beneficiary. 
 
 Sec. 2219. What constitutes 07ie a trustee. Every one who 
 voluntarily assumes a relation of personal confidence with 
 another is deemed a trustee, within the meaning of this 
 chapter, not only as to the person who reposes such confi- 
 dence, but also as to all persons of whose affairs he thus 
 acquires information which was given to such person in the 
 like confidence, or over whose affairs he, by such confidence, 
 obtains any control. 
 
 Sec. 2220. For what purpose a trust may be created. A trust 
 may be created for any purpose for which a contract may 
 lawfully be made, except as otherwise prescribed by the 
 Titles on Uses and Trusts and on Transfers. 
 
 Sec. 2221. Voluntary trust, how created as to trustor. A vol- 
 untary trust is created, as to the trustor and beneficiary, by 
 
 *' Bragg V. Paulk, 42 Me. 502; Steere, 5 Johns. Ch. (N. Y.), i, L. 
 
 Portland Second Unitarian Soc. v. ed. 987 ; Cuyler v. Bradt, 2 Cal. 
 
 Woodbury, 14 Id. 281; Maccubbin Cas. 326; Graham v. Lambert, 5 
 
 V.Cromwell, 7 Gill & J. 157; Or- Humph. (Tenn.) 595; Barron v. 
 
 leans v. Chatham, 2 Pick. (Mass), Barron, 24 Vt. 375 ; Fisher v. 
 
 29; Gomez V. Tradesman's Bank, Fields, 10 Johns. (N. Y.), 495 ; Buck 
 
 4 Sandf. (N. Y.), 106 ; Raybold v. v. Swazy, 35 Me. 41 ; Chamberlain 
 
 Raybold, 20 Pa. 308 ; Steere v. v. Thompson, 10 Conn. 243. 
 
550 REAL PROPERTY. 
 
 any words or acts of the trustor, indicating with reasonable 
 certainty : 
 
 1 . An intention on the part of the trustor to create a trust, 
 and, 
 
 2. The subject, purpose, and beneficiary of the trust. (58 
 
 Cal. 483.) 
 
 Sec. 2222. How created as to trustee. Subject to the provi- 
 sions of section 852, a voluntary trust is created, as to the 
 trustee, by any words or acts of his indicating, with reason- 
 able certainty : 
 
 1. His acceptance of the trust, or his acknowledgment, 
 made upon sufficient consideration, of its existence ; and, 
 
 2. The subject, purpose, and beneficiary of the trust. 
 Sec. 2223. Involuntary trustee, who is. One who wrongfully 
 
 detains a thing is an involuntary trustee thereof, for the 
 benefit of the owner. 
 
 Sec. 2224. Involuntary trust resulting from negligence, etc- 
 One who gains a thing by fraud, accident, mistake, undue 
 influence, the violation of a trust or other wrongful act, is, 
 unless he has some other and better right thereto, an invol- 
 untary trustee of the thing gained, for the benefit of the per- 
 son who would otherwise have had it. " 
 
 b. By precatory expressions. Precatory words are merely 
 words of recommendation usually incorporated in a will and 
 designed to express the testator's wishes in reference to 
 some disposition of his property. Courts of equity have 
 gone great lengths in creation of implied or constructive 
 trusts from such words. The tendency is to discourage the 
 extension of the doctrine. Whenever the object or the 
 property of the supposed trust is not certain or definite, or a 
 clear discretion and choice to act is given and whenever prior 
 dispositions import uncontrollable ownership, the courts 
 will not create a trust from precatory words." We see no 
 sufficient ground for calling in question the wisdom or 
 policy or the rule of construction uniformly applied to wills 
 in the courts of England and in most of the United States, 
 that words of entreaty, recommendation, or wish, addressed 
 
 »» 58 Cal. 116,621 ; Cal. Civ. Code, " 2 Story's Eq. sec. 1086. 
 
 sees. 2215-2224. 
 
USES AND TRUSTS. 55' 
 
 by a testator to a devisee or legatee, -will make him a trustee 
 for the person or persons in whose favor such expressions are 
 used, provided the testator has pointed out with clearness 
 and certainty the objects of trust, and the subject matter on 
 which it is to attach or from which it is to arise and be 
 administered. The criticism which has been sometimes 
 applied to this rule by text-writers, and in judicial opinions, 
 will be found to rest mainly on its application in particular 
 cases and not to involve a doubt of the correctness of the 
 rule itself as a sound principle of construction. Indeed, we 
 cannot understand the force or validity of the objections 
 urged against it, if care is taken to keep it in subordination 
 to the primary and cardinal rule that the intent of the testa- 
 tor is to govern, and to apply it only when the creation of a 
 trust will clearly subserve that intent. 
 
 It may sometimes be difficult to gather that intent and 
 there is always a tendency to construe words as obliga- 
 tory in furtherance of a result which accords with a plain 
 moral duty on the part of the devisee or legatee, and with 
 what it may be supposed a testator would do if he could con- 
 trol his action. But difficulties of this nature which are in- 
 herent in the subject matter, can always be overcome by 
 bearing in mind and rigidly applying in all such cases the 
 test, that to create a trust it must clearly appear that the 
 testator intended to govern and control the conduct of the 
 party to whom the language of the will is addressed, and did 
 not design it as an expression or indication of that which the 
 testator thought would be reasonable exercise of a discretion 
 which he intended to repose in the legatee or devisee. If 
 the objects of the supposed trust are certain and definite ; if 
 the property to which it is to attach is clearly pointed out; if 
 the relation and situation of the testator and the supposed 
 cestuis que trust are such as to indicate a strong interest and 
 motive on the part of the testator in making them partakers 
 of his bounty ; and above all if the recommendatory or pre- 
 catory clause is so expressed as to warrant the inference that 
 it was designed to be peremptory on the donee, the just and 
 reasonable interpretation is, that a trust is created, which is 
 obligatory and can be enforced in equity as against the trus- 
 
552 REAL PROPERTY. 
 
 tee, by those in whose behalf the beneficial use of the gift 
 ■was intended. " 
 
 If there be a trust sufficiently expressed and capable of 
 enforcement, it does not disparage, much less defeat it, to 
 call it "precatory." The question of its existence depends, 
 after all, upon the intention of the testator as expressed by 
 the words he has used, according to their natural meaning, 
 modified only by the context and the situation and cir- 
 cumstances of the testator when he used them. On the one 
 hand, the words may be merely those of suggestion, counsel 
 or advice, intended only to influence, aind not to take away 
 the discretion of the legatee growing out of the right to use 
 and dispose of the property given as his own. On the other 
 hand, the language may be imperative in fact, though not in 
 form, conveying the intention of the testator in words equiva- 
 lent to a command, and leaving to the legatee no discretion 
 to defeat his wishes, although there may be a discretion to 
 accomplish them by a choice of methods, or even to defeat 
 and limit the extent of the interest conferred upon his bene- 
 ficiary.'' 
 
 In an ordinary deed the word " heirs," for instance, is 
 necessary to convey a fee simple. But it is not so in an 
 instrument creating a trust, whether it be a deed or a will." 
 Where a power of sale is given to a trustee, it necessarily 
 conveys a fee." If the purposes of the trust require that the 
 trustee take an estate in fee simple, such effect will be given 
 to the deed or devise, although there are no words of inherit- 
 ance. 
 
 Two rules of construction have been settled : "First, When- 
 
 ^' Bigelow, Ch. J., in Warner v. '" Colton v. Colton, 127 U.S. 312, 
 
 Bates, 98 Mass. 274; and see in Matthews, J.; see Perry on Trusts, 
 
 further illustration Handley v. sees. 112-23. 
 
 Wrightson, 60 Md. 198; Coates' " Fisherv.Fields, 10 Johns. (N.Y.) 
 
 App. 2 Barr, 129; Van Amee v. 495; Neilson v. Lagow, 12 How. 98; 
 
 Jackson, 35 Vt. 173; Knox v. Chamberlain v. Thompson, 10 Conn, 
 
 Knox, 59 Wis. 172; Erickson v. 243; Cleveland v. Hallett, 6 Cush. 
 
 Willard, i N. H. 217; Homer v. 403 ; Preachers' Aid Society v. Eng- 
 
 Sheldon, 2 Met. (Mass.), 194; Hess land, 106 111. 125; Ivory v. Burns, 
 
 V. Singler, 114 Mass. 56; i Jarman 56 Pa. St. 300. 
 
 on Wills, 333 ; i Red. on Wills, sec. «» Spessard v. Rohrer, 9 Gill, 261, 
 17, cl. II. sec. 43. 
 
USES AND TRUSTS. 5 S3 
 
 ever a trust is created, a legal estate sufficient for the pur- 
 poses of the trust shall, if possible, be implied in the trustee, 
 ■whatever may be the limitation in the instrument, whether 
 to him and his heirs or not." Second, Although a legal 
 estate may be limited to a trustee to the fullest extent as to 
 him and his heirs, yet it shall not be carried farther than the 
 complete execution of the trust requires."" 
 
 Although recommendatory words are used by a testator 
 which of themselves seem to leave the devisee to act as he may 
 deem proper, giving him a discretion, as when a testator gives 
 an estate to a devisee, and adds that " he hopes," " recom- 
 mends," "has a confidence," wish or desire that the devisee 
 shall do certain things for the benefit of another person ; yet 
 courts of equity have construed such precatory expressions 
 as creating a trust.'" But this construction will not prevail 
 when either the objects to be benefited are imperfectly 
 described, or the amount of property to which the trust 
 should attach, is not sufficiently defined." 
 
 c. Great caution in accepting precatory trusts. Redfield on 
 Wills, vol. 2, p. 416, in quoting the language of Lord Cran- 
 worth, V. C, in Williams v. Williams, i Sim. (N. S.), 358, 
 says that "the real question in these cases always is, 
 whether the wish or desire or recommendation that is ex- 
 pressed by the testator, is meant to govern the conduct of 
 the party to whom it is addressed, or whether it is merely an 
 indication of that which he thinks would be a reasonable ex- 
 ercise of the discretion of the party, leaving it, however, to 
 the party to exercise his own discretion." To the same 
 effect are the cases Gilbert v. Chapin, 19 Conn. 342 ; Pennock's 
 Estate, 20 Pa. St. 268. In the last case it was held, that ex- 
 pressions of desire, etc. , in a will were not prima facie suflS- 
 
 " Gates V. Cook, 3 Burr. 1684; Wilcox v. Wheeler, 47 N. H. 488; 
 
 Stearns v. Palmer, 10 Met. 32; Ellis v. Fisher, 3 Sneed, 231. 
 
 Deering v. Adams, 37 Me. 265; '* 18 Ves. 41; 8 Id. 380; Bac. Ab. 
 
 Baptist Society v. Hail, 8 R. I. 234 ; Legacies. 
 
 Nelson v. Davis, 35 Ind. 474. " i Bro. C. C. 142 ; i Sim. 542, 
 
 "Quoted by Perry, sec. 312; 556; see 2 Story's Eq. Jur. sec. 
 
 Barker v. Greenwood, 4 M. & W. 1070; Lewin on Trusts, 77 ; 4 Bouv. 
 
 421, 429; Warter v. Hutchinson, i Inst. n. 3953 ; 2 Bouvier's Law Diet. 
 
 B. & C. 721 ; Koenig's App. 57 Pa. 364. 
 St. 352 ; West V. Fitz, 109 111. 425 ; 
 
554 REAL PROPERTY. 
 
 cient to convert a devise or bequest into a trust, and that the 
 Roman and English rule on the subject did not prevail in 
 that State, and only amounts to a declaration of trust, where 
 it appeared from other parts of the will, that the testator did 
 not intend to commit the estate to the devisee or legatee, or 
 its ultimate disposal to his discretion. The principle clearly 
 deducible from these authorities, and numerous others that 
 might be cited, establish the doctrine that precatory words 
 will not create a trust, where, either by a consideration of all 
 of the provisions of the will, or by express words of the tes- 
 tator, it appears that the recommendation was not intended 
 to be obligatory. 
 
 Precatory words in the creation of trusts. It may be stated as 
 a general result of the cases in regard to the effect of words 
 expressive of wishes of a testator, not imperative in form, 
 that whether the words of the will are those of recommenda- 
 tion or precatory, or expressing hope, or that the testator has 
 no doubt, if the objects with regard to whom such terms are 
 applied are certain, and the subjects of property to be given 
 are also certain, the words are considered imperative and 
 create a trust." 
 
 It is true a tendency has been manifested by some courts 
 to restrict the application of this general rule, or to qualify 
 it, and even, as in Pennock's case, supra, to reject it altogether 
 and to adopt as more reasonable the presumption, that words 
 precatory in form are meant to imply discretion in the donee, 
 and should be so construed, unless clearly shown to be used 
 in an imperative sense from other parts of the will ; but we 
 consider the weight of authority to be for upholding words 
 of request, desire, expectation, and the like, as creative of 
 trusts, when the contrary does not appear from the context 
 or by necessary implication." 
 
 Courts of equity have gone great lengths in creating im- 
 plied or constructive trusts from such words. The tendency 
 is to discourage extending the doctrine. Whenever the 
 object or the property of the supposed trust is not certain or 
 definite, or a clear discretion and choice to act is given, and 
 
 '» I Jarm. on Wills (Rand. & Talc. " Rice, Prob. Law, 536. 
 
 ed.) 60; 2 Story's Eq. Jur. sec. 1068. 
 
USES AND TRUSTS. 555 
 
 whenever prior dispositions import uncontrollable owner- 
 ship, the courts will not create a trust from precatory words. 
 
 The rule laid down by Lord Cranworth, in Williams v. 
 Williams, I Sim. (N. S.), 358, and approved in Wood v. Sew- 
 ard, 4 Redf. 271, and by the New York Court of Appeals in 
 Foose V. Whitmore, 82 N. Y. 405, is as follows: "The real 
 question always is, whether the wish, or desire, or recom- 
 mendation that is expressed by the testator is meant to gov- 
 ern the conduct of the party to whom it is addressed, or 
 whether it is merely an indication of that which he thinks 
 would be a reasonable exercise of the discretion of the party, 
 leaving it, however, to the party to exercise his own discre- 
 tion."" 
 
 The existing state of the law on this subject, as re- 
 ceived in England, and generally followed in the courts 
 of the several States of this Union, is well stated by Gray, 
 Ch. J., in Hess v. Singler, 114 Mass. 56, 59, as follows: "It 
 is a settled doctrine of courts of chancery that a devise or 
 bequest to one person, accompanied by words expressing 
 a wish, entreaty, or recommendation that he will apply it 
 to the benefit of others, may be held to create a trust, 
 if the subject and the objects are sufficiently certain. Some 
 of the earlier English decisions had a tendency to give 
 to this doctrine the weight of an. arbitrary rule of construc- 
 tion. But by the later cases in this, and in all other ques- 
 tions of the interpretation of wills, the intention of the tes- 
 tator, as gathered from the whole will, controls the court ; in 
 order to create a trust, it must appear that the words were 
 intended by the testator to be imperative ; and when prop- 
 erty is given absolutely and without restriction, a trust is 
 not to be lightly imposed, upon mere words of recommenda- 
 tion and confidence." 
 
 In the previous case of Warner v. Bates, 98 Mass. 274, 277, 
 Chief Justice Bigelow vindicated the soundness and the value 
 of this rule in the following commentary: He said: "The 
 criticisms which have been sometimes applied to this rule by 
 text writers and in judicial opinions will be found to rest 
 mainly on its applications in particular cases, and not to 
 
 " See Rice, Prob. Law, 536. 
 
556 REAL PROPERTY. 
 
 involve a doubt of the correctness of the rule itself as a sound 
 principle of construction. Indeed, we cannot understand the 
 force or validity of the objections urged against it if care is 
 taken to keep it in subordination to the primary and cardinal 
 rule, that the intent of the testator is to govern, and to apply 
 it only where the creation of a trust will clearly subserve that 
 intent. It may sometimes be difficult to gather that intent, 
 and there is always a tendency to construe words as obliga- 
 tory in furtherance of a result which accords with a plain 
 moral duty on the part of a devisee or legatee, and with what 
 it may be supposed the testator would do if he could control 
 his action. But difficulties of this nature, which are inherent 
 in the subject-matter, can always be readily overcome by 
 bearing in mind and rigidly applying to all such cases the 
 test, that to create a trust it must clearly appear that the 
 testator intended to govern and control the conduct of the 
 party to whom the language of the will is addressed, and did 
 not design it as an expression or indication of that which the 
 testator thought would be a reasonable exercise of a discre- 
 tion which he intended to repose in the legatee or devisee. 
 If the objects of the supposed trust are certain and definite; 
 if the property to which it is to attach is clearly pointed out ; 
 if the relations and situation of the testator and the supposed 
 cestuis que trust are such as to indicate a strong interest and 
 motive on the part of the testator in making them partakers 
 of his bounty ; and, above all, if the recommendatory or pre- 
 catory clause is so expressed as to warrant the inference that 
 it was designed to be peremptory on the donee, the just and 
 reasonable interpretation is that a trust is created which is 
 obligatory and can be enforced in equity against the trustee 
 by those in whose behalf the beneficial use of the gift was 
 intended." 
 
 § 215. For what purposes created. Trusts are generally 
 created for any or either of the following purposes: i. To 
 sell lands for the benefit of creditors; 2, to sell, mortgage or 
 lease lands for the benefit of legatees, or for the purpose of 
 satisfying any charge thereon ; 3, To receive the rents and 
 profits of lands and apply them to the use of any person, 
 during the life of such person, or for any shorter term, sub- 
 
USES AND TRUSTS. 557 
 
 ject to the rules prescribed for the creation, etc., of legal 
 estates ; 4, To receive the rents and profits of lands, and to 
 accumulate the same, for the benefit of minors then in being 
 and during their minority. A devise of lands to executors or 
 other trustees to be sold or mortgaged, where the trustees 
 are not also empowered to receive the rents and profits, vests 
 no estate in the trustee, but the trust is valid as a power. 
 Where an express trust is created for any purpose other than 
 those above enumerated, no estate vests in the trustees ; but 
 the trust, if directing or authorizing the performance of any 
 act which may be lawfully performed under a power, is valid 
 as a power in trust. The absolute power of alienation can- 
 not be suspended for a longer period than two lives in being 
 at the time of the creation of the trust. 
 
 § 216. Parties to a trust. The person whose confidence 
 creates a trust is called a trustor. The person in whom the 
 confidence is reposed is called the trustee, and the person for 
 whose benefit the trust is created is called the beneficiary. 
 Generally it may be said that a trust may be created for any 
 purpose for which a contract can be made that would be 
 recognized in law and, so far as regards the trustor and 
 beneficiary, a trust arises wherever there are sufficient words 
 or acts, that indicate with reasonable certainty, an intention 
 on the part of the former to create a trust,' and there is equal 
 certainty as to the subject, purpose and beneficiary of that 
 trust." All persons sui juris and capable of holding prop- 
 erty may be trustees." 
 
 A near relative may be appointed, but such appointments 
 are in general objectionable." A nun may be a trustee," or 
 a bankrupt." The fact that the proposed trustee resides 
 abroad is of course objectionable." A witness to a will may 
 be a trustee under it." Married women, if of age, may be 
 
 '^Cal. Civ. Code, sees. 22 18-2221. " Shyrock v. Waggoner, 33 Pa. 
 
 **Canmeyer v. United Churches, St. 430. 
 2 Sandf. Ch. 186; Pickering v. *' Meinertzhagen v. Davis, I Coll. 
 
 Shotwell, 10 Pa. St. 27. 335. 
 
 «* Wilding V. Bolder, 21 Beav.222. «» Hogan v. Wyman, 2 Ore. 302. 
 
 «6 Smith v. Young, 5 Gill, 197. 
 
558 
 
 REAL PROPERTY. 
 
 trustees," and they may be such independently of any stat- 
 ute." Infants may be trustees by devolution or necessity. 
 
 In modern times corporations are often authorized by their 
 charters to act in this capacity, and they often do so act. In 
 Vidal V. Girard's Executors, 2 How. 127, it was held that a 
 city could be a trustee for a charitable institution. But a 
 corporation cannot be a trustee for any object foreign to the 
 purposes for which it was created." Some companies are 
 formed for the special purpose of administering trusts, i. e., 
 holding and managing property for the use and benefit of a 
 beneficiary." 
 
 Mass. Pub. stats, ch. 147, sec. 5. 
 
 ■" I Perry on Trusts, sees. 48- 
 
 51 ; People v. Webster, 10 Wend. 
 
 554. 
 
 "Jackson v. Hartwell, 8 Johns. 
 422 ; see generally Green v. Ruther- 
 ford, I Ves. Sen. 462 ; Trustees of 
 Phillips Academy v. King, 12 Mass. 
 546; The Dublin Case, 38 N. H. 
 459' 5^7 ; First Congregational So- 
 ciety v. Atwater, 23 Conn. 34. 
 
 " Professor Walker states the 
 law with his usual precision and 
 brevity : 
 
 "All persons may convey land in 
 trust who are capable of making a 
 deed or will. 
 
 "All persons may be made trus- 
 tees, not excepting infants or mar- 
 ried women ; because the mere ca- 
 pacity of being a trustee involves 
 nothing more than the capacity of 
 receiving a legal conveyance. It 
 is obvious, indeed, that there may 
 be certain acts required in the exe- 
 cution of a trust to which persons 
 under disability would not be legally 
 competent in their own right. But 
 in such cases the power conferred 
 by the grantor gives the trustee a 
 capacity which the law does not 
 give ; for example, in the execu- 
 tion of a trust an infant, or a mar- 
 
 ried woman without her husband, 
 may make a valid conveyance. 
 
 "All persons without exception 
 may be beneficiaries ; since no disa- 
 bility whatever can disqualify one 
 for enjoying the benefit of a trust 
 properly created. 
 
 " Every description of property 
 real or personal, is capable of being 
 settled in trust ; there being no 
 valuable thing which one man may 
 not hold for the benefit of another." 
 (Walker's Am. Law, 371.) 
 
 (a) Corporation as trustees. — In 
 Philadelphia v. Fox (64 Pa. St. 169 
 [1870]), the constitutionality of the 
 act of June 30, 1869, depriving the 
 city of Philadelphia of the power 
 to administer the trusts under the 
 wills of Mr. Girard and others, and 
 vesting the powers of the city in 
 this respect in an independent and 
 separate board, not appointed by 
 the city, was sustained. In giving 
 the judgment of the court Mr. Jus- 
 tice Sharswood, in the course of 
 his interesting and learned opinion, 
 remarks : 
 
 " A municipal corporation may be 
 a trustee, under the grant or will of 
 an individual or private corpora- 
 tion, but only, as it seems, for pub- 
 lic purposes, germane to its ob- 
 
USES AND TRUSTS. 
 
 559 
 
 §217. Trustees — their duties and liabilities. The word 
 "trustee" of itself means trustee for some one whose name 
 is not disclosed." 
 
 jects. (Philadelphia v. Elliott, 3 
 Rawle [Pa.], 170; Cresson's Appeal, 
 6 Casey [30 Pa. St.], 437 ; Vidal v. 
 Philadelphia, 2 How. 127.) I am 
 aware that it has been said by high 
 authority in England that it may 
 take and hold in trust for purposes 
 altogether private. (Gloucester v. 
 Osborn, i H. of Lords Cases, 285.) 
 But the administration of such 
 trusts, and the consequent liabili- 
 ties incurred, are altogether incon- 
 sistent with the public duties im- 
 posed upon the municipality. It 
 could hardly be pretended, I think, 
 in this country, that it could be a 
 trustee for the separate use of a 
 married woman, to educate the 
 children of a donor or testator, or 
 to accumulate for the benefit of 
 particular persons. It certainly is 
 not compellable to execute such 
 trusts, nor does it seem competent 
 to accept and administer them. 
 The trusts held by the city of Phila- 
 delphia, which are enumerated in 
 the bill before us, are germane to 
 its objects. They are charities, and 
 all charities are in some sense pub- 
 lic. If a trust is for any particular 
 persons, it is not a charity. In- 
 definiteness is of its essence. The 
 objects to be benefited are strangers 
 to the donor or testator. The wid- 
 ening and improvement of streets 
 and avenues ; planting them with 
 ornamental and shade trees ; the 
 education of orphans ; the building 
 of school-houses ; the assistance 
 and encouragement of young me- 
 chanics ; rewarding ingenuity in the 
 
 useful arts ; the establishment and 
 support of hospitals ; the distribu- 
 tion of soup, bread or fuel to the 
 necessitous, are objects within the 
 general scope and purpose of the 
 municipality. 
 
 "This whole question is put at rest, 
 and that as to one of the most im- 
 portant of these trusts and as to its 
 trustees, by the opinion of the Su- 
 preme Court of the United States 
 in Girard v. Philadelphia, 7 Wall. 
 14. ' It cannot admit of a doubt,' 
 says Mr. Justice Grier, ' that where 
 there is a valid devise to a corpora- 
 tion, in trust for charitable pur- 
 poses unaffected by any question 
 as to its validity because of super- 
 stition, the sovereign may interfere 
 to enforce the execution of the 
 trusts, either by changing the ad- 
 ministrator if the corporation be 
 dissolved, or, if not, by modifying 
 or enlarging its franchises, pro- 
 vided the trust be not perverted, 
 and no wrong done to the bene- 
 ficiaries. Where the trustee is a 
 corporation, no modification of its 
 franchises or change in its name, 
 while its identity remains, can af- 
 fect its right to hold property de- 
 vised to it for any purpose.' " 
 
 In Vidal v. Girard's Executors, 
 2 How. 127 (1844), the court lays 
 down this rule : " Where the corpo- 
 ration has a legal capacity to take 
 real or personal estate, there it may 
 take and hold it upon trust, in the 
 same manner and to the same ex- 
 tent as a private person may do. It 
 is true that if the trust be repug- 
 
 " Shaw V. Spencer, 100 Mass. 389. 
 
56o 
 
 REAL PROPERTY. 
 
 In one sense a mere bailee or agent is a trustee, because he 
 has property delivered to him in the confidence that he will 
 do with it according as he is directed by the bailor. It may 
 
 nant to, or inconsistent with, the 
 proper purposes for which the cor- 
 poration was created, that may fur- 
 nish a ground why it may not be 
 compellable to execute it. But it 
 will furnish no ground to declare 
 the trust itself void, if otherwise 
 unexceptionable; but it will simply 
 require a new trustee to be substi- 
 tuted by the proper court, possess- 
 ing equity jurisdiction, to enforce 
 and perfect the objects of the 
 trust." (Reaffirmed, Perin V. Carey, 
 24 How. 465 [i860] ; Girard v. 
 Philadelphia, 7 Wall, i [1868]). 
 
 (b) Who may be cestuis que tricst f 
 — The answer is, any one. (Bar- 
 row V. Wadkin, 24 Beav. i ; Night- 
 ingale V. Goulburn, 5 Hare, 484.) A 
 State may be a cestui que trust. 
 (Neilson v. Lagow, 12 How. 107.) 
 There is a general rule that one in- 
 competent to take the title to 
 property cannot be a cestui que 
 trust as to such property. Thus it 
 was held that a free negro, pro- 
 hibited by law from owning slaves, 
 could not be the cestui of slaves. 
 (Dunlop V. Harrison, 14 Grat. 251 ; 
 see Perry on Trusts, sees. 60-65.) 
 That an alien enemy cannot be a 
 cestui que trust was decided in Bard- 
 well V. Weeks, 13 Johns, i, over- 
 ruling Chancellor Kent's decision 
 reported in i Johns. Ch. 206. And all 
 property, real or personal, which 
 can be sold or assigned at law, may 
 be the subject of a trust. (Morison 
 V. Moat, 9 Hare, 241 ; Robinson v. 
 Mauldin, 11 Ala. 977; Merwin on 
 Equity, 85.) 
 
 (c) Quantity of interest held by 
 trustee. — In Sears v. Russell, 8 
 
 Gray, 86, the court said : " The rule 
 is well settled that trustees will be 
 held to take that quantity of in- 
 terest in estates devised to them 
 which the exigencies of the trust 
 may demand ; * * * and the 
 legal estate vested in them must be 
 commensurate with the estate 
 which they are bound to convey. 
 If they are to grant a fee, it is ne- 
 cessary they should have a fee.'' 
 (Slade V. Patten, 68 Me. 380.) 
 
 (d) The beneficiary must be cer- 
 tain. — The law is settled that a 
 certain designated beneficiary is 
 essential to the creation of a valid 
 trust. The remark of Judge Wright, 
 in Levy v. Levy, 33 N. Y. 107, that 
 " if there is a single postulate of the 
 common law established by an un- 
 broken line of decisions, it is that a 
 trust, without a certain beneficiary 
 who can claim its enforcement, is 
 void," has been repeated and reite- 
 rated by recent decisions of this 
 court. (Prichard v. Thompson, 95 
 N. Y. 76 ; Holland v. Alcock, 108 
 Id. 312, II Cent. Rep. 861 ; Read v. 
 Williams, 125 N. Y. 560.) And the 
 objection is not obviated by the ex- 
 istence of a power in the trustees 
 to select a beneficiary, unless the 
 class of persons in whose favor the 
 power may be exercised has been 
 designated by the testator with 
 such certainty that the court can 
 ascertain who were the objects of 
 the power. The equitable rule that 
 prevailed in English court of chan- 
 cery known as the " cy pres doc- 
 trine " and which was applied to 
 uphold gifts for charitable pur- 
 poses when no beneficiary was 
 
USES AND TRUSTS. 
 
 even be required, by statute, 
 conveyed to the trustee. * 
 another in confidence that he 
 
 S6i 
 
 that the title to the property be 
 
 * * Conveying property to 
 
 will sell it and apply the avails 
 
 named, has no place in the juris- 
 prudence of New Yorlc. (Holmes 
 V. Mead, 52 N. Y. 332 ; Holland v. 
 Alcock, supra.) If, for instance, the 
 Tilden Trust is but one of the bene- 
 ficiaries which the trustees may- 
 select as an object of the testator's 
 bounty, then it is clear and con- 
 ceded that the power conferred by 
 the will upon the executors is void 
 for indefiniteness and uncertainty 
 in objects and purposes. The range 
 of selection is unlimited. It is not 
 confined to charitable institutions 
 of the State, or of the United 
 States, but embraces the whole 
 world. Nothing could be more in 
 definite and uncertain, and broader 
 and more unlimited power could 
 not be conferred than to apply the 
 estate to " such charitable, educa- 
 tional and scientific purposes as in 
 the judgment of my executors will 
 render said residue of my property 
 most widely and substantially bene- 
 ficial to mankind." "A charitable 
 use, where neither law nor public 
 polic)'- forbids, may be applied to 
 almost anything that tends to pro- 
 mote the well-doing and well-being 
 of social man." (Perry, Tr. sec. 
 637.) "Such power is distinctly in 
 contravention of the policy of the 
 Statute of Wills. It substitutes for 
 a will of the testator the will of the 
 donees of the power and makes the 
 latter controlling in the disposition 
 of the testator's property. That 
 cannot well be said to be a disposi- 
 tion by the will of the testator with 
 which the testator had nothing to 
 do, except to create an authority 
 in another to dispose of the prop- 
 36 
 
 erty according to the will of the 
 donees of the power." (Read \-. 
 William, 125 N. Y. 569.) 
 
 (e) Review of the celebrated Tilden 
 case — In the case of Tilden v. 
 Green, 130 N. Y. 29; 14 L. R. A. 
 33, the devise in trust under the 
 thirty-fifth and thirty-ninth items 
 of the will of Samuel J. Tilden was 
 passed upon. Under these items 
 property was devised to trustees to 
 be held for two lives in being, with 
 requests that they procure an act 
 of incorporation, to be known as 
 the "Tilden Trust," with capacity 
 to establish and maintain a free lib- 
 rary and reading room in the city 
 of New York, and to promote such 
 scientific and educational objects as 
 the trustees might more particular- 
 ly designate, and authorize them to 
 convey such property to such cor- 
 poration when formed, or if, from 
 any cause or reason, they should 
 deem it inexpedient to convey to 
 such corporation, then they were 
 directed to apply it to the use of 
 such charitable, educational or sci- 
 entific purposes as in their judg- 
 ment would render such property 
 most widely and substantially bene- 
 ficial to the interests of mankind. 
 It was said in that case: "The de- 
 vise does not designate any bene- 
 ficiary, but, on the contrary, leaves 
 it to the discretion of the trustees 
 whether or not they will or will 
 not convey to the corporation. 
 Hence, there is not, and cannot be, 
 any person, natural or artificial, who 
 is, or will become, entitled to the 
 execution of the trust in his favor. " 
 The conclusion of the court was 
 
562 REAL PROPERTY. 
 
 in a particular way, not for his own use, undoubtedly creates 
 a trust." 
 
 A trustee is a person in whom some estate interest or 
 power in or affecting property is vested for the benefit of 
 another. When an agent contracts in the name of his prin- 
 cipal, the principal contracts and is bound. As a trustee 
 holds the estate, although only with the power and for the 
 purpose of managing it, he is personally bound by the con- 
 tracts he makes as trustee, even when designating himself as 
 such. When he acts in good faith for the benefit of the trust 
 he is entitled to indemnify himself for his engagements out 
 of the estate in his hands. If he wants to protect himself 
 from individual liability on a contract he must stipulate that 
 he is not to be personally responsible." 
 
 ' ' The law requires the personal attention and active inter- 
 vention of a trustee in the possession, protection, security, 
 collection and management of the estate. He cannot turn 
 the discharge of any of his duties in that behalf over to third 
 persons, except from actual necessity, without making him- 
 self liable for their negligence, misconduct and misapplica- 
 tion of any part of the estate, by which a loss results to the 
 estate, and, when an actual necessity arises for the employ- 
 that the Request could not be favor the power may be exercised 
 maintained because of the complete has been designated with such cer- 
 discretion vested in the trustees — tainty that the court can ascertain 
 whether they would give it or not, who were the objects of the power, 
 to the beneficiary suggested. A and when the beneficiary is not 
 charter was actually obtained and designated in the will, such bene- 
 the property was in fact conveyed ficiary cannot be designated by the 
 by the trustees to the corporation trustees in pursuance of a discretion 
 thus created, before the suit was vested in them by the will. It is 
 brought, but the court held that further said : "' No trust is enforci- 
 the invalidity of the trust could ble unless there is some person or 
 not be cured by anything done by class of persons, who have a right 
 the trustees towards its execution, to a part or all of the designated 
 It is also held in that case that a funds, and can demand its convey- 
 trust without a beneficiary who can ance to them, and in case of refusal 
 claim its enforcement is void, and can sue the trustees in equity, and 
 this objection is not obviated by compel compliance with demand." 
 the existence in the trustees in a " Anderson's Law Diet, 
 power to select a beneficiary, un- " Taylor v. Davis, 1 10 U. S. 334. 
 
 less the class of persons in whose 
 
USES AND TRUSTS. 5^3 
 
 ment of another, tie is bound to select and use the best 
 accredited agencies, and to use vigilance and prudence in 
 selecting the agency to be used, and make the selection at 
 the time the necessity arises. When he intrusts the dis- 
 charge of any of these duties to another, in case of a loss 
 arising therefrom, if he would exonerate himself, he takes 
 the burden of showing an existence of an actual necessity for 
 employing such third person, in the matters of the trust, and 
 that he has used this measure of vigilance, care and prudence 
 in making the selection. This is as it should be. He is 
 selected for his supposed fitness for a careful discharge of the 
 duties of the trust, and gives security therefor. Without 
 showing such actual necessity and such careful selection, he 
 cannot be heard to say, ' I turned the discharge of a part of 
 my duties over to an agent, and he has misapplied the funds, 
 or they have been lost through his negligence.' Without 
 showing such actual necessity for using the services of 
 another, and such care in his selection, such agent is the 
 chosen agent of the executor or administrator, his hand in 
 executing the trust, answerable to him alone, and he is 
 answerable over to the estate for any loss sustained by the 
 employment. There would be no safety for estates upon 
 any other basis. The careful inquiry into the fitness of the 
 person proposed, his selection and appointment, and the 
 requirement of security for the faithful performance of the 
 duties of the appointment, might as well be dispensed with, 
 if he can, at pleasure, turn the discharge of the duties over 
 to agents and attorneys, and shield himself from responsi- 
 bility for their misdeeds and negligence, in the discharge of 
 duties cast by the appointment upon him personally."" 
 
 a. Views of Story, Sugden, Walworth and Kent. As a general 
 rule, a party occupying a relation of trust or confidence to an- 
 other is, in equity, bound to abstain from doing everything 
 which can place him in a position inconsistent with the duty or 
 trust such relation imposes upon him, \ot which has a ten- 
 dency to interfere with the discharge of such duty. Upon 
 this principle no one placed in a situation of trust or confi- 
 dence in reference to the subject of a sale can be the pur- 
 
 " Wilmerding v. McKesson, 103 N. Y. 329. 
 
564 REAL PROPERTY. 
 
 chaser, on his own account, of the property sold. If such a 
 one purchases the property, it is in the option of the person 
 interested in the property, and to whom the relation of trust 
 or confidence was sustained, to set aside the sale, within a 
 reasonable time, however innocent the purchaser may be." 
 
 In Sugden on Vendors, the rule and its reasons are expressed 
 as follows : " It may be laid down as a general proposition 
 that trustees, unless they are nominally such, as trustees to 
 preserve contingent remainders, agents, commissioners of 
 bankrupts, assignees of bankrupts, solicitors to the commis- 
 sion, auctioneers, creditors who have been consulted as to 
 the mode of sale, counsel or any person who, by being em- 
 ployed or concerned in the affairs of another, have acquired 
 a knowledge of his property, are incapable of purchasing 
 such property themselves, for, if persons having a confiden- 
 tial character were permitted to avail themselves of any 
 knowledge acquired in that capacity, they might be induced 
 to conceal their information, and not to exercise it for the 
 benefit of the persons relying on their integrity. The char- 
 acters are inconsistent. Emptor emit quain minirno potest ven- 
 ditor vendit quam maximo potest."'" 
 
 In Imboden v. Hunter, 23 Ark. 622, the court said: "It is a 
 Stern rule of equity that a trustee to sell for others is not 
 allowed to purchase, either directly or indirectly, for his 
 own benefit at the sale. He cannot be both vendor and pur- 
 chaser. As vendor, it is his duty to sell the property for the 
 highest price ; and as purchaser, it is his interest to get it for 
 the lowest ; and these relations are so essentially repugnant — 
 so liable to excite a conflict between self-interest and integ- 
 rity — that the law positively forbids that they shall be 
 united in the same person. And it matters not, in the appli- 
 cation of the rule that the sale was bona fide, and for a fair 
 price. The inquiry is not whether there was fraud in fact. 
 In such a case, the danger of yielding to the temptation is so 
 imminent and the security against discovery so great, that a 
 court of equity, at the instance of the cestui que trust, if he 
 applies in a reasonable time, will set aside the sale, as of 
 
 "i Story, Eq. Jur., sees. 307-323, 887; Michoud v. Girod, 45 U. S.; 4 
 and cases cited. How. 504 ; 1 1 L. ed. 1077. 
 
 "2 Sugd. Vend., 7th Am. ed. 
 
USES AND TRUSTS. 565 
 
 course. The rule is not intended to remedy actual wrong, 
 but is intended to prevent the possibility of it. The situa- 
 tion of the party itself works his disability to purchase. 
 * * * The rule is not confined to persons who are trus- 
 tees within the more limited and technical signification of 
 the term, or to any particular class of fiduciaries, but applies 
 to all persons placed in a situation of trust or confidence with 
 reference to the subject of the purchase. It embraces all 
 that comes within its principle, permitting no one to pur- 
 chase property, and hold it for his own benefit, where he 
 has a duty to perform in relation to such property, which is 
 inconsistent with the character of a purchase on his own 
 account, and for his individual use. ' ' 
 
 The doctrine as to purchases by trustees, guardians, 
 administrators, and persons having a confidential character 
 arises from the relation between the parties, and not from 
 the circumstance that they have power to control the sale. 
 The right to set aside the sale does not depend on its fairness 
 or unfairness. To set aside the purchase, it is not necessary 
 to show that it was actually fraudulent or advantageous. If 
 the trustee or other person having a confidential character, 
 can buy in an honest case, he may in a case having that 
 appearance, but which may be grossly otherwise; and yet 
 the power of the court, because of the infirmity of human 
 testimony, would not be equal to detect the deception. It is 
 to guard against this uncertainty, and the hazard of abuse, 
 and to remove the trustee and other persons having confi- 
 dential relations from temptation, that the rule does and 
 will permit the cestui que trust or other person to come at 
 his option, and without showing actual injury or fraud, have 
 the sale set aside.'" 
 
 »" Davoue v. Fanning, Johns. Ch. v. Ridout, 7 Gill & J. i ; Ex parte 
 
 (N. Y.) 252, I L. ed. 365 ; Torrey v. Lucey, 6 Ves. Jr. 625; Ex parte 
 
 Bank of Orleans, 9 Paige (N. Y.), Bennett, 10 Ves. Jr. 381 ; Campbell 
 
 663, 4 L. ed. 859 ; Ex parte James, v. Pennsylvania L. Ins. Co. 2 
 
 8 Ves. Jr. 345 ; Brochett v. Rich- Whart. 62 ; Michoud v. Girod, 45 
 
 ardson, 61 Mass. 766; Van Epps v. U. S.; 4 How. 557, u L. ed. iioo 
 
 Van Epps, 9 Paige (N. Y.), 237, 4 and cases before cited ; McGaughey 
 
 L. ed. 682 ; Campbell v. Walker, 5 v. Brown, 46 Ark. 25. 
 Ves. Jr. 678 ; 13 Ves. Jr. 601 ; Callis 
 
566 REAL PROPERTY. 
 
 In Sweet v. Jacocks, 6 Paige (N. Y.), 355, 364, Chancellor Wal- 
 worth said : " It is a settled principle of equity that, where a 
 person undertakes to act as an agent for another, he cannot be 
 permitted to deal in the matter of that agency upon his own 
 account and for his own benefit. And if he takes a convey, 
 ance in his own name of an estate which he undertakes to 
 obtain for another, he will in equity be considered as holding 
 it in trust for his principal." 
 
 The rule that one clothed in a fiduciary character cannot 
 either directly or indirectly become a purchaesr of the trust 
 property at his own sale and hold such property against the 
 dissent of the cestui que trust is of such universal prevalence 
 and so grounded in the demands of public policy that no one 
 ventures to question its existence, or seeks now to overthrow 
 it. In looking at the many cases involving consideration of 
 this doctrine a sale by or under the control of the trustee is 
 not always present as a feature in the litigations which in 
 judicial judgment have called for the application of the salu- 
 tory principle which the rule embodies. Its adoption is to 
 prevent, as far as possible, fraud on the part of those having 
 the control of trust property, and to protect, to the largest 
 possible extent, the beneficiaries of such trusts, who without 
 this safeguard, are found by experience to be grievously ex- 
 posed to the hazard of fraud and wrong doing, such as courts 
 find difficult, if not impossible, to redress. The necessity of 
 placing guards around those whose interests are intrusted to 
 the agency and control of others, springs out of the weak- 
 ness and infirmity of human nature, which observation and 
 experience show is not, proof against the seductive and insidi- 
 ous influence of selfish interest, and ought not to be put to 
 the temptation to acquire personal gain through failure in, 
 or unfaithful performance of, fiduciary obligations. It recog- 
 nizes the difficulty, if not impossibility, of tracing actual 
 fraud in every case, and the frequent failure of justice and 
 success of wrong that must be consequent thereon, and it 
 attempts to apply a method that will remove all temptation 
 from the mind of the trustee to profit by infidelity in the 
 discharge of trust duties of every sort, and which will 
 remove all inducements to act otherwise than faithfully 
 toward the beneficiary, by utterly refusing to consider the 
 
USES AND TRUSTS. 5^7 
 
 question of good or bad faith, and holding the trustee who 
 attempts to deal with the trust property as an individual to 
 all the chances of loss, and denying to him all possible gain. 
 This rule, although perhaps most frequently found applied 
 in the decided cases where the existing fact is a sale by or 
 under the direction of a trustee, is by no means limited to 
 that circumstance, as reference to decided cases will show." 
 
 The same chancellor, in Van Epps v. Van Epps, g Paige (N. Y.), 
 237, states the doctrine in this wise: "The rule of equity 
 which prohibits purchases by parties placed in a situation of 
 trust or confidence with reference to the subject of purchase, 
 is not confined to trustees or others who hold the legal title 
 to the property to be sold ; nor is it confined to a particular 
 class of persons, such as guardians, trustees or solicitors. 
 But it is a rule which applies universally to all who come 
 within its principle ; which principle is that no party can be 
 permitted to purchase an interest in property and hold it for 
 his own benefit where he has a duty to perform in relation to 
 such property which is inconsistent with the character of a 
 purchase on his own account and for his individual use. ' ' 
 
 Chancellor Kent said in Davone v. Fanning, 5 Johns. Ch. 
 (N. Y.) 252, "that if a trustee, acting for others, sells an estate 
 and becomes himself interested in the purchase, the cestui que 
 trust is entitled to come here, as of course, and set aside that 
 purchase and have the property re-exposed for sale." At 
 page 259 he says: "However innocent the purchase may be 
 in the given case, it is poisonous in its consequences. The 
 cestui que trust is not bound to prove, nor is the court bound 
 to judge, that the trustee has made a bargain advantageous 
 to himself. The fact may be so, and yet the party not have 
 it in his power distinctly and clearly to show it. There may 
 be fraud, as Lord Hardwicke observed, and the party not 
 able to prove it. It is to guard against this uncertainty and 
 hazard of abuse, and to remove the trustee from temptation, 
 that the rule does and will permit the cestui que trust to come, 
 at his own option, and without showing actual injury, and 
 insist upon having the experiment of another sale. This is a 
 remedy which goes deep and touches the very root of the 
 
 «' Rice's Probate Law, 407. 
 
568 REAL PROPERTY. 
 
 evil. It is one which appears to me, from the cases which 
 have been already cited, and from those which are to follow, 
 to be most conclusively established." The rule seems to 
 have been established in this case that the cestui que trust may 
 elect to set aside the sale, and that it would be proper for the 
 court to order a resale at the price bid by the trustee ; and if 
 it does not sell for more, then the purchase is to stand. The 
 right of the cestui que trust to this election is recognized in 
 Barker v. Smith, I Dem. (N. Y.) 290, where it is held that ' ' if the 
 property is still in the possession of the executor, it is within 
 the power of the court to require him to restore it to the 
 estate. He ought not to have bought it, and ought not to be 
 allowed to retain it against objection, even if it were admitted 
 that he purchased in good faith and paid an adequate con- 
 sideration, but the parties entitled to object to such purchase 
 are at liberty to sanction it. " * * * In Jackson v. Walsh, 
 14 Johns. (N. Y.) 41 1, it was stated that the rule was to order a 
 resale, and if the property sells for more, the cestui que trust 
 takes the surplus; otherwise the original sale stands."' 
 
 In Gardner v. Ogden, 22 N. Y. 327, numerous authorities 
 are examined by Mr. Justice Davies, and the principle 
 announced is, that a trustee can never be a purchaser, and a 
 guardian, trustee or other person standing in a fiduciary 
 capacity, cannot deal with or purchase the property in refer- 
 ence to which he holds that relation.'' 
 
 A trustee holding a lease, whether corporate or individual, 
 holds the renewal as a trustee and as he held the original 
 lease. This does not depend upon any right which the cestui 
 que trust has to the renewal, but upon the theory that the new 
 lease is, in technical terms, "grafted" upon the old one; 
 and that the trustee has a facility by means of his relation to 
 the estate for obtaining the renewal from which he shall not 
 personally profit. This doctrine extends to commercial part- 
 nerships ; and one of several partners cannot, while a part- 
 nership continues, take a renewal lease clandestinely or 
 "behind the backs" of his associates for his own benefit. It 
 is not material that the landlord would not have granted the 
 new lease to the other partners or to the firm. It is of no 
 
 8» Rice's Probate Law, 408. "^ Forbes v. Halsey, 26 N. Y. 53. 
 
USES AND TRUSTS. 5^9 
 
 consequence whether the partnership is for a definite or 
 indefinite period. The disability to take the lease for indi- 
 vidual purposes grows out of the partnership relation. 
 While that lasts the renewal cannot be taken for individual 
 persons, even though the lease does not commence until 
 after the expiration of the partnership. And it cannot 
 necessarily be assumed that the lease can be taken by an 
 individual member of the firm even after dissolution. The 
 former partners may still be tenants in common, or there 
 may be other reason of a fiduciary nature why the transac- 
 tion cannot be entered into." 
 
 b. Fraudulent acts of trustees — how established. It may be 
 further obsdrved that slight proof is necessary to establish a 
 fraudulent intent between parties who occupy confidential 
 relations." If fraudulent intent was a matter of proof by 
 direct and positive testimony it would result in a practical 
 frustration of justice and render all attempts as to its dis- 
 closure abortive. The law is satisfied, therefore, with a 
 reasonable degree of certainty, and this position is abundantly 
 sustained by the adjudged cases. °° 
 
 In all investigations of questions involved in fraud the 
 courts extend an exceptional liberality to the admission of 
 evidence" and a broad interpretation is to be afforded to all 
 the rules of relevancy." 
 
 If desirable to summarize the legal conclusions on this sub 
 ject, it will be entirely accurate to state that parol evidence 
 is always competent to establish the fraudulent omission or 
 insertion of any material averment in the recitals of a con- 
 tract, and such evidence is also admissible whenever the 
 
 '■•Dwight Commissioner, in 88 Ind. 572; Parrott v. Parrott, i 
 
 Mitchell V. Read, 61 N. Y. 123. Heisk. 681 ; Massey v. Young, 73 
 
 *' Fisher v. Herron, 22 Neb. 183; Mo. 260; Graham v. Roder, 5 Tex. 
 
 Long V. Milford, 17 Ohio St. 484, 141 ; Smalley v. Hale, 37 Mo. 102; 
 
 93 Am. Dec. 638; Fisher v. Bishop, Burch v. Smith, 15 Tex. 219; 
 
 10 Cent. Rep. 707, 108 N. Y. 25. Thompson v. Shannon, 9 Tex. 
 
 «= Southern L. Ins. Co. v. Wilkin- 536. 
 
 son, 53 Ga. 535; Conant v. Jack- *' Zerbe v. Miller, 16 Pa. 488; 
 
 son, 16 Vt. 335; O'Donnell v. Hopkins v. Seivert, 58 Mo. 201; 
 
 Segar. 25 Mich. 367; Stanfield v. Stauffer v. Young, 39 Pa. 455. 
 
 Stilz. 93 Ind. 249; Strong V. Hines, *' Smalley v. Hale, 37 Mo. 102; 2 
 
 35 Miss. 201 ; Brower v. Goodyer, Rice Evidence, 953. 
 
570 REAL PROPERTY. 
 
 obligation has been contracted in fraudem legis. The con- 
 tracted form of the reprobative matter is of no consequence." 
 
 c. Rjile as to preservation and care of trust property. " In 
 regard to the preservation and care of trust property, ' ' says 
 Story in his Commentaries on Equity Jurisprudence, "it has 
 been said, that a trustee is to keep it as he keeps his own. 
 And, therefore, if lie is robbed of money belonging to his 
 cestiu que trust, without his own default or negligence, he will 
 not be chargeable. * * * The rule in all cases of this 
 sort is, that when a trustee acts by other hands, either from 
 necessity or conformably to the common usage of mankind, 
 he is not to be made answerable for losses. "''° 
 
 Investments carefully and judiciously made are not, as a 
 rule, to be disturbed. As was said by the court in Harvard 
 College V. Amory, g Pick. 461 : "All that can be required of a 
 trustee to invest is, that he shall conduct himself faithfully 
 and exercise a sound discretion. He is to observe how men 
 of prudence, discretion and intelligence manage their own 
 affairs, not in regard to speculation, but in regard to the per- 
 manent disposition of their funds, considering the probable 
 income as well as the probable safety of the capital to be 
 invested." 
 
 The very recent case of New England Trust Co. v. Eaton, 
 140 Mass. 532, reaffirms the doctrine of the foregoing case, 
 holding that "the investment of trust property should be 
 made with a view of permanency, and not in a spirit of 
 speculation." 
 
 The rule "that no investment can be considered safe, or 
 can be approved by a court of equity, except in public secu- 
 rities, however well supported by authorities," says Chief 
 Justice Shaw, "as a rule well established in English courts 
 of equity, is wholly inapplicable and untenable in this 
 country."" 
 
 89 Waddell v. Glassell, 18 Ala. (Iowa), 124; Bartle v. Vosbury, 3 
 
 561 ; Bottomley v. United States, i Grant, Cas. 277. 
 
 Story, 135; Hunter v. Bilyeu, 30 *° 2 Story's Eq. Jur., § 1269; Perry 
 
 111. 228 ; Townsend v. Cowles, 31 on Trusts, sees. 404, 441 ; Lewin on 
 
 Ala. 428; Lunday v. Thomas, 26 Trusts (6th Lond. ed.), 224, 260; 
 
 Ga. 538 ; Pierce v. Wilson, 34 Ala. Litchfield v. White, 7 N. Y. 438. 
 
 596; Hamilton v. Conyers, 28 Ga. "' Lovell v. Minot, 20 Pick. (Mass.) 
 
 276; Stannard v. McCarty, Morris 116, 
 
USES AND TRUSTS. 571 
 
 While there are now many more public securities than 
 those which existed when this remark was made, investments 
 cannot be confined to them. A loan at a fixed rate of inter- 
 est, even if secured by the stock of a manufacturing or other 
 business corporation as collateral security, if proper security 
 is taken against fluctuations, is not necessarily injudicious."" 
 There are many stocks under public supervision, bonds of 
 corporations where there is sufficient capital to insure their 
 safety, which, with bonds of municipalities, loans secured by 
 mortgages, etc., constitute proper investments." 
 
 In some States there is a statutory rule stating what invest- 
 ments may be made of trust funds. In other States, the rule 
 is that if the investment is made in good faith and with 
 sound discretion at the time of the investment, the trustee is 
 not liable for loss, for a trustee does not guarantee the 
 security of investments, but is protected if he acts as an ordi- 
 nary prudent man would act in the case of his own estate. 
 In New Jersey the investment may be on mortgage, at the 
 highest rate of interest procurable, or in United States or 
 New Jersey State bonds ; but not in municipal bonds or bank 
 stock, nor personal security. In Maryland, it has been held 
 that the statute which gives the probate court power to 
 authorize an investment by an executor or administrator in 
 bank stock or other good security, furnishes an analogical 
 protection for an executor who has, in good faith, invested 
 in such stock without the protection of an order of the court. 
 In New Jersey, a statute provides that an executor may con- 
 tinue the investments of his testator without liability for loss, 
 if he does so in good faith and in the exercise of a sound dis- 
 cretion." 
 
 "Every trustee must be presumed by the court before 
 whom his account is taken to use in his own concerns such 
 diligence as is commonly used by all prudent men. The 
 diligence of a provident man, therefore, is the measure of a 
 trustee's duty." The same rule is stated in Willis on Trus- 
 tees, 135. It was said by Chancellor Kent, in the case of 
 Smith v. Smith, 4 Johns. Ch. 284, after quoting the English 
 
 "Brown v. French, 125 Mass. " Croswell on Exrs. and Admrs., 
 410; s. c. 28 Am. Rep. 254. sec. 441. 
 
 " Rice's Probate Law, 403. 
 
572 REAL PROPERTY. 
 
 authorities : ' ' Personal security is always more or less pre- 
 carious ; particularly when the credit is given for a consider- 
 able length of time, or when the borrower, or his surety, is 
 engaged in mercantile or other hazardous pursuits. * * * 
 I have no doubt that it is a wise and excellent general rule 
 that a trustee loaning money must require adequate real 
 security, or resort to the public funds." In the case of 
 Thompson v. Brown, 4 Johns. Ch. (N. Y.) 628, the chancellor 
 wrote with approval the opinion of Lord Hardwicke in Knight 
 V. Lord Plymouth, 3 Atk. 480, in which it was held that a 
 receiver, who had deposited money with a banker, of good 
 credit, who afterwards failed, as the receiver was not charge- 
 able with any willful default or fraud, was not responsible 
 for the loss. The views of the chancellor as to the exact 
 rule to be adopted in fixing the responsibility of trustees are 
 not very definitely expressed. In Massachusetts the court 
 requires of a trustee only that he shall exercise such sound 
 discretion as a prudent man would be expected to use in his 
 individual investments, having regard to the safety of the 
 fund. Investments in stock of insurance, banking and rail- 
 road corporations, have been allowed." The same latitude 
 is allowed by the courts of New Hampshire and Vermont." 
 In many of the Southern States the same rule is observed, 
 and even legislative enactments have been adopted authoriz- 
 ing trustees to invest upon personal securities. The courts 
 of Pennsylvania and New Jersey incline to look with disfavor 
 upon investments in stock corporations, approving only real 
 estate mortgages and government securities." The Supreme 
 Court of the United States, in the case of Lamar v. Micou, 
 112 U. S. 452, says: "The general rule is everywhere recog- 
 nized that a trustee, when investing property in his hands, is 
 bound to act honestly and faithfully, and to exercise a sound 
 discretion, such as men of ordinary prudence and intelligence 
 use in their own affairs.""" 
 
 '' Bowker v. Pierce, 130 Mass. " Halsted v. Meeker's Exrs., 18 
 
 262; Brown v. French, 125 Mass. N J. Eq. 136; Ihmsen's Appeal, 43 
 
 410; Harvard College v. Amory, 9 Penn. St. 431. 
 
 Pick. (Mass.) 446. ss Rice's Probate Law, 400-2. 
 
 «« French v. Currier, 47 N. H. 88 ; 
 Barney v. Parsons, 54 Vt. 623. 
 
USES AND TRUSTS. 573 
 
 ' ' Trust moneys may be deposited for a reasonable time in 
 a bank having good credit, if the deposit is made to the credit 
 of the trust estate, and not in the trustee's individual name 
 and account ; and the trustee does not become liable for a 
 loss occasioned by a failure of the bank under those circum- 
 stances. '""' 
 
 The result of the foregoing authorities is, that a trustee is 
 not liable merely because, instead of undertaking to keep the 
 trust money safely in his own house, he deposits it in a pri- 
 vate bank which fails, not because the bank is weak, unless 
 that fact was known to the trustee, or might have been 
 known by the exercise of ordinary prudence and diligence. 
 The question in all such cases is, was the trustee reasonably 
 prudent and diligent in making or continuing the deposit? 
 If so, he will not be liable, although the bank was and had 
 been insolvent. Such insolvency will not affect him unless 
 he knew it, or unless it was generally known ; or unless there 
 were general rumors, injuriously affecting the credit of the 
 bank, which were known to the trustee, or might have been 
 so known by reasonable diligence. There is a class of cases 
 in which trustees have been held liable for losses oh invest- 
 ments made contrary to the directions of the instrument cre- 
 ating the trust, or without any authority to invest, or upon 
 personal security merely."" 
 
 Trustee acting in good faith treated with indulgence. A trus- 
 tee, as a general rule, is not held responsible for any lossess 
 occurring in the management of the trust property, so long 
 as he acted in good faith in the exercise of a fair discretion, 
 and in the same manner as he would ordinarily do in regard 
 to his own property."' It has also been held that each of 
 several trustees is not bound to take upon himself the con- 
 duct of every part of the trust, and that where, according to 
 the reasonable necessities of business, trust funds came into 
 the hands of one trustee and- a loss happened from the 
 default of such trustee, the others were not liable, though 
 for the sake of conformity they joined in the execution of a 
 
 " 2 Pom. Eq. Jur., sec. 1067 ; and 525 ; Perry on Trusts, sec. 465 ; 
 
 see McCabe v. Fowler, 84 N. Y. Rice's Probate Law, 399. 
 
 3<4- "" 2 Story's Eq. 154, sec. 1272. 
 
 ""• Rehden v. Wesley, 29 Beav. 
 
574 REAL PROPERTY. 
 
 receipt or conveyance or other disposition of the trust estate. 
 But this exemption from liability exists only when it is made 
 to appear that the default of one occurred in spite of the ex- 
 ercise of the requisite care and diligence by those who seek 
 immunity. The moment the want of care and diligence is 
 shown, which contributed to the loss, the case is taken out of 
 the general rule and the liability attaches. It is the same in 
 the case of executors. That in such a case executors are 
 liable, has been held in Clarke. Clark, 8 Paige (N. Y.), 153; 
 Adair v. Brimmer, "JA, N. Y. 566; Croft, as executor, etc., v. 
 William, 23 Hun (N. Y.), 102. 
 
 And that trustees are liable has also been repeatedly 
 af&rmed. Thus, in Townley v. Sher bourne, Bridg. 35, Lord 
 Keeper Coventry, under the advice of the associate judges, 
 after deciding that a trustee was not liable for rents which 
 had properly come into the hands of a co-trustee, and had 
 not been paid over, said: "But, if, upon proofs or circum- 
 stances, the court should be satisfied that there had been any 
 dolus mains, or any evil practice, fraud or evil intent in him 
 that permitted his companion to receive the whole profits, 
 he should be charged, though he received nothing." 
 
 In Thompson v. Brown, 4 Johns. Ch. 619, Chancellor Kent 
 holds that executors and administrators, acting in good faith, 
 and without willful default or fraud, will not be responsible 
 for the loss which may arise."' In discussing the question 
 of a devastavit by an executor, Williams on Executors lays 
 down the rule that an executor is not guilty of a devastavit 
 provided he exercised fair and reasonable discretion on the 
 subject."" 
 
 d. The measure of responsibility imposed. It is impossible to 
 give the measure of culpable negligence for all cases, as the 
 degree of care required depends upon the subjects to which 
 it is to be applied.'" What would be slight neglect in the 
 care of a quantity of iron might be gross neglect in the care 
 of a jewel. What would be slight neglect in the care exer- 
 cised in the affairs of a turnpike corporation, or even of a 
 
 '°'See Schultz v. Pulver, 11 on Exrs. 1539 (6th ed.); Rice, Pro- 
 Wend. (N. Y.) 361 ; Ruggles V. Sher- bate Law, 400. 
 man, 14 Johns. (N. Y.) 446. 'm First Nat. Bank v. Ocean Nat. 
 
 ™See Barn. & Aid. 360; Wms. Bank; 60 N. Y. 278. 
 
USES AND TRUSTS. 575 
 
 manufacturing corporation, might be gross neglect in the 
 care exercised in the management of a savings bank intrusted 
 with the savings of a multitude of poor people, depending 
 for its life upon credit, and liable to be wrecked by the 
 breath of suspicion. There is a classification of negligence 
 to be found in the books, not always of practical value, and 
 yet sometimes serviceable, into slight negligence, gross neg- 
 ligence, and that degree of negligence intermediate the two, 
 attributed to the absence of ordinary care ; and the claim on 
 behalf of those trustees is that they can only be held respon- 
 sible in this action in consequence of gross negligence, 
 according to this classification. 
 
 It is true that authorities are found which will hold the 
 trustees are liable only for crassa negligentia, which literally 
 means gross negligence ; but that phrase has been found to 
 mean the absence of ordinary care and diligence adequate to 
 the particular case. In Scott y. De Peyster, i Edw. Ch. (N. Y.) 
 5 1 3> 543 — 2- case much cited — the learned vice-chancellor said : 
 "I think the question in all such cases should and must 
 necessarily be, whether they (directors) have omitted that 
 care which men of common prudence take of their own con- 
 cerns. To require more would be adopting too rigid a rule, 
 and rendering them liable for slight neglect; while to 
 require less would be relaxing too much the obligation which 
 binds them to vigilance and attention in regard to the inter- 
 ests of those confided to their care, and expose them to lia- 
 bility for gross neglect only — which is very little short of 
 fraud itself . " In Spering's Appeal, 71 Penn. St. 11, Judge 
 Sharswood said : ' ' They (directors) can only be regarded as 
 mandatories — persons who have gratuitously undertaken to 
 perform certain duties, and who are, therefore, bound to 
 employ ordinary skill and diligence, but no more." In 
 Hodges V. New England Screw Co., i R. I. 312, Jenckes, J., 
 said : ' ' The sole question is whether the directors have or have 
 not bestowed proper diligence. They are liable only for 
 ordinary care; such as prudent men take in their own 
 affairs." And, in the same case, Ames, J., said: "They 
 should not, therefore, be liable for innocent mistakes, unin- 
 tentional negligence, honest errors of judgment, but only of 
 willful fraud or neglect, and want of ordinary knowledge and 
 
576 REAL PROPERTY. 
 
 care." The same case came again under consideration in 3 
 R. I. 9, and Green, Ch. J., said: "We think a board of direct- 
 ors acting in good faith and with reasonable care and dili- 
 gence, who nevertheless fall into mistake, either at law or 
 fact, are not liable for the consequences of such mistake. ' ' 
 In the case of The Liquidators of the Western Bank v. Douglas, 
 II Session Cases (3d series), 112 (Scotch), it is said: "What- 
 ever the duties (of directors) are, they must be discharged 
 with fidelity and conscience, and with ordinary and reason- 
 able care. It is not necessary that I should attempt to define 
 where excusable remissness ends and gross negligence begins. 
 Thab must depend, to a large extent, on the circumstances. 
 It is enough to say that gross negligence in the performance 
 of such a duty, the want of reasonable and ordinary fidel- 
 ity and care, will impose liability for loss thereby occa- 
 sioned." In Charitable Corporations v. Sutton, 2 Atk. 405, 
 Lord Chancellor Hardwicke said, that a person who accepted 
 the office of director of a corporation "is obliged to execute 
 it with fidelity and reasonable diligence," although he acts 
 without compensation.'" 
 
 Trustees are not bound to extraordinary diligence in the 
 preservation and protection of the trust estate. The law 
 contemplates only ordinary diligence — reasonable activity 
 in looking after the interests of tlie beneficiary. '" The office 
 is preeminently one personal to the trustee, and for this 
 reason he cannot delegate it to any other person.'" And he 
 must so invest the funds confided to his care that in the 
 event of loss it will abundantly appear that the investment 
 made was fairly such a one as good judgment and reasonable 
 prudence would dictate. Ordinarily he should confine his 
 investments to real estate securities."' Manifestly an invest- 
 ment made on the direction of the court would exonerate the 
 trustee in the event of loss. '°° Investment in personal secu- 
 rities has been quite generally condemned. But the rule is 
 
 "" Rice's Probate Law, 393. "' Taylor v. Hopkins, 41 111. 44.2. 
 
 ™ Kimball v. Reding, 31 N. H. ™ Gray v. Fox, i N.J. Eq. 259. 
 
 352; Commissioners v. Walker, 7 ""Brown v. Wright, 39 Ga. 96; 
 
 Miss. 143 ; Hutchinson v. Lloyd, i Gray v. Fox, supra. 
 Wis. 286 ; Knowlton v. Bradley, 17 
 N. H. 458. 
 
USES AND TRUSTS. 577 
 
 apparently ignored in New Hampshire, certainly with some 
 show of reason. Real estate securities are not so highly 
 favored as they were before the mania for western mort- 
 gages had reached its height. And there can be no valid 
 reason in this commercial age why we should cling to an 
 English rule that calls for a real estate investment in such 
 instances."" The promissory note of a good solvent debtor 
 must be, under most of the authorities, declined by the trustee 
 as an investment. But he is at liberty to take somebody ' s valu- 
 ation on a farm "out West," and as this is "real estate," his 
 judgment will, perhaps, be vindicated if the circumstances of 
 the situation showed fair diligence. Universally government 
 bonds or State securities are favorably regarded, and such an 
 investment would be considered as provident and thrifty 
 management provided they were purchased at the ruling 
 market rate.'" Generally, it has been held that a trustee is 
 exonerated if he follows the direction of the trustor in the 
 investment of the trust property. The proposition may be 
 doubted. The trustor may have been a man of exceptional 
 business capacity, but with advancing years, and increasing 
 infirmities, his aptitude for business management disappears, 
 and at the time of creating the trust estate he inserts a 
 recommendatory clause as to the investment of the property, 
 that might be wholly destitute of sagacity under the altered 
 condition of things. Time was when an investment in Panama 
 Canal stock might be judicious, but the situation was gradu- 
 ally indicating a collapse to far-seeing men, and would a 
 direction to invest the avails of a trust estate in such a man- 
 ner relieve the trustee of all responsibility in the event of 
 loss? Can he place the funds in such a manner, and then, 
 when the ruin comes, claim that he followed the instruc- 
 tions of the trustor? The trustee should not deposit trust 
 funds in a private bank, nor in his own name in any bank."'' 
 Nor is he allowed to take investments in his own name so 
 
 ""See Knowlton v. Bradley, 17 '"Jenkins v. Walter, 8 Gill & J. 
 
 N. H. 458. 218 ; Barney v, Saunders, 57 U. S. 
 
 '"Brown v. Wright, supra; 535. 
 Tucker v. Tucker, 33 N. J. Eq. 
 235- 
 
 37 
 
578 REAL PROPERTY. 
 
 that he is the ostensible owner. "^ In a general way it may 
 be said that he must keep in view the purposes of the trust, 
 and exercise such judgment as is becoming a prudent man 
 governing his own affairs. 
 
 It seems that, as a general rule, investments by executors 
 or testamentary trustees of the funds in their hands, which 
 take those funds beyond the jurisdiction of the court, will 
 not be sustained, and the trustee who so invests does so 
 at the peril of being held responsible for the safety of the 
 investments. 
 
 This rule, however, is not so rigid as to admit of no possi- 
 ble exceptions, although the case must be very rare and the 
 circumstances very unusual and peculiar to make it an excep- 
 tion. The rule relates only to voluntary investments by the 
 trustee, and does not govern a case where, by act of the tes- 
 tator, a foreign investment has been made, or where, with- 
 out the fault of the trustee, the assets have been transmuted 
 into a debt which can only be secured and saved by taking a 
 foreign security.'" 
 
 Under the rules of law, as they have been judiciously con- 
 strued, which controls trustees in the management of estates 
 committed to their care, and which fix the measure of their 
 responsibility the loan of the trust property by the executors 
 to a firm of stock brokers, without any security other than 
 the personal obligation of the borrowers, or the employment 
 of such property in a business of that character, with the per- 
 mission or acquiescence of the executors, was unauthorized, 
 and the executors became personally responsible for the 
 fund, and in such cases interest at the full legal rate is 
 chargeable against them so long as the prohibited use of the 
 fund continues, and without regard to the productiveness of 
 the investment. 
 
 The rule upon this subject is well stated by Chief Judge 
 Ruger, m. Deoboldv. Oppermann, in N. Y. 538, where, speak- 
 ing of the proper uses to which trust funds may be put, he 
 says : ' ' Their employment by the trustee in trade, or as loans 
 
 '" Ringgold V. Ringgold, i Har. '» Ormiston v. Olcott, 84 N. Y. 
 
 & G. II ; Morris v. Wallace, 3 Pa. 339, 
 St. 319- 
 
USES AND TRUSTS. 579 
 
 to persons engaged in such business, or in the prosecution of 
 mercantile, commercial and manufacturing enterprises of 
 speculative adventures, has been uniformly condemned as 
 illegal and as constituting a devastavit of the estate."" 
 
 In this view it is immaterial whether the trustees are them- 
 selves directly interested in the business undertaking in 
 which trust moneys have been improperly invested. They 
 become the debtors of the estate to the extent of the misap- 
 propriation, and the law prescribes the rate of interest upon 
 every indebtedness where it is fixed by the agreement of the 
 parties. The reason of the rule is, that as the primary act of 
 the creation of a trust is ordinarily the preservation and per- 
 petuity of the fund until the purposes of the trust have been 
 accomplished, this object is necessarily endangered and may 
 be entirely defeated by exposing the estate to the perils of 
 commercial pursuits, which are always, to some extent, 
 speculative and subject to the hazard of great loss. 
 
 In King v. Talbot, 40 N. Y. 86, it was declared that the 
 degree of diligence and prudence which trustees are required 
 to exercise in the care and management of trust estates 
 "necessarily excludes all speculation, all investments for an 
 uncertain and doubtful rise in the market, and, of course, 
 everything that does not take into view the nature and object 
 of the trust and the consequences of a mistake in the selec- 
 tion of the investment to be made.'"" 
 
 It is frequently necessary for an executor or administrator 
 to keep large sums in his hands, to answer the exigency of 
 the testator's or intestate's affairs, particularly during the 
 first year, and for that reason ordinarily, interest should not 
 be charged against him during that period. It follows that 
 if the money be kept separate and not mixed with his private 
 funds interest will not, as a general rule, be charged in such 
 a case. But even where the executor is justified in retaining 
 the assets, if they have been employed by him to his own 
 advantage, he is chargeable with interest on the ground that 
 he cannot be allowed to make profit out of the estate. The 
 English rule appears to be that an executor who is a trader, 
 and, deposits the funds of the estate at his bankers, in his 
 
 '" Rice Probate Law, 398. "« Rice's Probate Law, 398. 
 
58o REAL PROPERTY. 
 
 own name, thus acquiring credit and increasing the balance 
 in his favor, must therefore be considered as having used the 
 money for his own benefit, and is to be charged with 
 interest.'" 
 
 In Haslcr V. Hasler, i Bradf. (N. Y.) 248, Judge Bradford held 
 that where an administrator held funds of the estate in cash 
 over eighteen months, and did not show that the money was 
 kept in bank, or otherwise ready to be paid over, and did not 
 explain the causes of delay, he should be chargeable with 
 interest, on the presumption of use of the funds.'" 
 
 In Wharton on Negligence, § 519, we find the following : 
 "^ -X- * -X- trustee, * * * or executor has currency 
 in hand belonging to his trust. Is he to keep this in his own 
 house ? This would be negligent, and would make him liable 
 in case of loss, except under extreme circumstances of vis 
 major. His duty is to deposit such funds in bank ; and this 
 duty is satisfied, apart from statutory limitations, if the bank, 
 at the time of deposit, is in good reputation, and if there is 
 nothing in way of public rumor subsequently occurring, which 
 would lead a good business man to withdraw his funds." 
 
 e. Trustees are not guarantors of their investments. A trustee 
 is not a guarantor for the safety of the securities which are 
 committed to his charge, and he does not warrant such safety 
 under any and all circumstances, and against all contingen- 
 cies, accidents or misfortunes. The true rule which should 
 govern his conduct is that he is bound to employ such pru- 
 dence and diligence in the care and management of the estate 
 or property, as in general, prudent men of discretion and 
 intelligence employ in their own like affairs.'" While this 
 rule requires a trustee to avoid all extraordinary risks in the 
 investment of the moneys of the estate, and to keep the same 
 safely, it does not demand that he shall be made liable for 
 contingencies which, under ordinary circumstances, could 
 not have been anticipated.'^" 
 
 Nor are they liable for loss resulting from errors of judg- 
 ment made in the discharge of their duties."" 
 
 1" I Bro. C. C. 285 ; 11 Ves. 61 ; '" King v. Talbot, 40 N. Y. 76. 
 
 I Russ. C. C. 151 ; I Coll. 177. ™ McCabe v. Fowler, 84N.Y. 314. 
 
 "« Matter of Mairs, 4 Redf. (N.Y.) '" Scott v. De Peyster, i Edw. 
 
 160. Ch. (N. Y.) 513. Spering's Appeal, 
 
USES AND TRUSTS. 58 r 
 
 f. Liability of co-trustees. The most obvious principles of 
 equity would suggest the exemption of a trustee from lia- 
 bility for the fraudulent acts of his co-adjutor, provided he 
 was entirely ignorant of those acts, and nothing had appeared 
 to arouse suspicion. But, a co-trustee cannot sit in chronic 
 apathy, and allow his partner in the trust to manage affairs 
 at pleasure. It is his business to know the scope and nature 
 of all transactions that take place. He who can prevent, 
 when it is his duty to prevent — and does not prevent — 
 assists.'" In Bruen v. Gillett, 44 Hun, 298, the defendant, 
 Gillett, deposited with his co-trustee, who was a private 
 banker, a large sum of money, representing the avails of an 
 insolvent bank. The co-trustee became bankrupt under cir- 
 cumstances that at the time aroused some suspicion of care- 
 less management. The plaintiff, Bruen, brought suit to 
 recover the amount of his loss from the defendant, Gillett, 
 and the court sustained the action, and awarded judgment 
 on the theory that it was Gillett 's business to inform himself 
 as to the financial stability of his co-trustee. In general, it 
 may be said that the act of one, within the scope of his 
 authority, binds all. But, in the more important relations 
 of the trust, it is best that all should unite in some act evin- 
 cive of joint responsibility or acquiescence. They have a 
 
 71 Penn. St. 11; Miller v. Proctor, Johns. (N. Y.) 347; Clark v. Ander- 
 
 20 Ohio St. 442; Gould v. Branch son, 13 Bush (Ky.), i ii-i 17 ; Griffith 
 
 Bank of Mobile, 11 Ala. 191 ; Hodg- v. FoUett, 20 Barb. (N. Y.) 620, 634 ; 
 
 es V. N. E. Screw Co. i R. I. 312 ; Kavanagh v. City of Brooklyn, 38 
 
 Harmon V. Tappenden, i East, 555 ; Barb. 237; Vanderheyden v. Young, 
 
 Overend v. Gurney, 4 Ch. App. 11 Johns. (N. Y.) 150, 157, *i58; 
 
 701 ; Green's-Brice's Ultra Vires, Williams v. Weaver, 75 N. Y. 30, 
 
 note, 407, 408 ; Overend v. Gibb, 5 33 ; Lange v. Benedict, 73 N. Y. 12 ; 
 
 H. of L. R. 480, 494 ; Field on Corp. Hawley v. James, 5 Paige's Ch. fN. 
 
 183, 186 ; Angell & Ames on Corp., Y.) 318 ; Perry on Trusts, sec. 511 ; 
 
 sec.314; Hinley v.Merriman, 39Tex. Tiffany & Bullard on Trusts and 
 
 56, 62 ; Ellig v. Naglee, 9 Cal. 683, Trustees, 739 ; Lewin on Trusts, 
 
 695; Salter v. Salter, 6 Bush (Ky.), *338, 449 et ieq.; Hill on Trusts, 
 
 638; Cross V. Petree, 10 B. Monr. *488, 764; Roosevelt v. Roosevelt, 
 
 (Ky.)4i3; Perry on Trusts, sec. 276; 64 N. Y. 651 ; Rice's Probate Law, 
 
 Thompson v. Brown. 4 Johns. Ch. 404. 
 
 (N. Y.) 619, 627; Knight v. Earl of ™ Smith v. Rathbun, 88 N. Y. 
 
 Plymouth, 3 Atk. 480; Dickens, 660; Richards v. Seal, 2 Del. Ch. 
 
 120; Manhattan Bank v. Lydig, 4 266. 
 
5 82 REAL PROPERTY. 
 
 joint power over the estate, and all who assume the obliga- 
 tions of the trust are, to a certain degree, liable in case the 
 estate is defrauded through the single action of any one, or 
 the collusive action of several.'" And see the celebrated 
 English case of Townley v. Sherborne, i Bridg. 35. Also 
 reported in 3 Leading Ca. Eq. 718, and marginal notes. 
 See, also, the subsequent case of Brice v. Stokes, 11 Ves. 319, 
 which is distinguished by one of the most luminous opinions 
 ever delivered by Lord Eldon. As has been previously 
 stated, the functions of a trustee import personal confidence, 
 and, therefore, cannot be deputed to another even if that 
 other, be a co-trustee.'" Mere ministerial acts not involv- 
 ing a transfer of the corpus of a trust may be performed by 
 any one of the trustees.'" But, as a general rule, the joint 
 action should be preferred. 
 
 As a general rule, co-trustees are responsible only for their 
 own acts. They may, by agreement to that effect, or by co- 
 operation with or connivance in the act of another in viola- 
 tion of the trust, become themselves in one sense responsible 
 for the act of a co-trustee. In the discharge of their trust, 
 they must join in giving receipts and discharges for money 
 paid them; but such joint receipts are open to explanation, 
 and those only into whose actual possession and control the 
 money has come will be liable for its subsequent misapplica- 
 tion. It is said that this rule does not apply to executors whose 
 concurrence in acts relating to the estate is not necessary.'" 
 
 '" Wood V. Wood, 5 Paige (N. Y.), good faith. In all matters connec- 
 
 596 ; Deaderick v. Cantrell, 10 Yerg. ted with his trust, a trustee is bound 
 
 (Tenn.) 263; Ringgold v. Ringgold, to act in the highest good faith to- 
 
 I H. & G. 12. ward his beneficiary, and may not 
 
 "* Hawley v. James, 5 Paige Ch. obtain any advantage therein over 
 
 (N. Y.) 489. the latter by the slightest misrepre- 
 
 '■■'' Vandever's App. 8 Watts & S. sentation, concealment, threat, or 
 
 (Pa.) 405. adverse pressure of any kind. 
 
 "* Hill on Trustees, 471, note; Sec. 2229. Trustee not to use prop- 
 Kip v. Deniston, 4 Johns. 23 ; Leigh erty for his own profit. A trustee 
 V. Barry, 3 Atk. 584 ; Sadler v. may not use or deal with the trust 
 Hobbs, 2 Bro. Ch. 117. property for his own profit, or for 
 
 (g) California Code Provisions on any other purpose unconnected 
 
 the subject — Obligations of trustees. — with the trust, in any manner. 
 
 Sec. 2228. Trustee's obligation to Sec. 2230. Certain transactions for- 
 
USES AND TRUSTS. 
 
 583 
 
 h. Compensation of trustees. While it is entirely foreign to 
 the nature and scope of the present undertaking to indulge 
 
 bidden. Neither a trustee nor any 
 of his agents may take part in any 
 transaction concerning the trust in 
 which he or any one for whom he 
 acts as agent has an interest, pre- 
 sent or contingent, adverse to that 
 of his beneficiary, except as follows : 
 
 1. When the beneficiary, having 
 capacity to contract, with a full 
 knowledge of the motives of the 
 trustee, and of all other facts con- 
 cerning the transaction which might 
 affect his own decision, and without 
 the use of any influence on the part 
 of the trustee, permits him to do so; 
 
 2. When the beneficiary not hav- 
 ing capacity to contract the proper 
 court, upon the like information of 
 the fact, grants the like permission ; 
 or, 
 
 3. When some of the beneficiaries 
 having capacity to contract, and 
 some not having it, the former 
 grant permission for themselves, 
 and the proper court for the latter, 
 in the manner above prescribed. 
 (54 Cal. 106.) 
 
 Sec. 2231. Trustee's influence not 
 to be used for his advantage. A 
 trustee may not use the influence 
 which his position gives him to ob- 
 tain any advantage from his bene- 
 ficiary. 
 
 Sec. 2232. Trustee not to assume 
 a trust adverse to interest of bene- 
 ficiary. No trustee, so long as he 
 remains in the trust, may under- 
 take another trust adverse in its 
 nature to the interest of his bene- 
 ficiary in the subject of the trust, 
 without the consent of the latter. 
 
 Sec. 2233. To disclose adverse in- 
 terest. If a trustee acquires any 
 interest, or becomes charged with 
 
 any duty, adverse to the interest of 
 his beneficiary in the subject of the 
 trust, he must immediately inform 
 the latter thereof, and may be at 
 once removed. 
 
 Sec. 2234. Trustee guilty of fraud, 
 when. Every violation of the pro- 
 visions of the preceding sections of 
 this article is a fraud against the 
 beneficiary of the trust. (52 Cal. 
 406.) 
 
 Sec. 2235. Presumption against 
 trustees. All transactions between 
 a trustee and his beneficiary during 
 the existence of the trust, or while 
 the influence acquired by the trus- 
 tee remains, by which he obtains 
 any advantage from his beneficiary, 
 are presumed to be entered into by 
 the latter without sufficient con- 
 sideration, and under undue influ- 
 ence. 
 
 Sec. 2236. Trustee mingling trust 
 property with his own. A trustee 
 who willfully and unnecessarily 
 mingles the trust property with his 
 own, so as to constitute himself in 
 appearance its absolute owner, is 
 liable for its safety in all events. 
 
 Sec. 2237. Measure of liability for 
 breach of trust. A trustee who 
 uses or disposes of the property, 
 contrary to section 2229, may, at 
 the option of the beneficiary, be re- 
 quired to account for all profits so 
 made, or to pay the value of its 
 use, and, if he has disposed thereof, 
 to replace it, with its fruits, or to 
 account for its proceeds, with in- 
 terest. 
 
 Sec. 2238. Same. A trustee who 
 uses or disposes of the trust prop- 
 erty in any manner not 'authorized 
 by the trust, but in good faith, and 
 
584 REAL PROPERTY. 
 
 in any elaborate analysis of the rules regulating the payment 
 of a trustee it may be well to remark that his compensa- 
 tion is, in this country, largely regulated by statutory 
 provisions. These provisions are far from uniform, and 
 depend in many instances upon the amount represented by 
 the trust, its nature and situation, its freedom from litiga- 
 tion, and the value of the services performed. There is a 
 disposition to regard trustees as falling within the same cate- 
 gory with executors and administrators, and hence entitled 
 to the same remuneration. '" Justice Story says : ' ' The pol- 
 icy of the law ought to be such as to induce honorable men 
 without a sacrifice of their private interests, to accept the 
 office, and to take away the temptation to use the trust for 
 mere selfish purposes, as the only indemnity for services of 
 an important and anxious character.""' Frequently the 
 compensation is left to the sound discretion of the court 
 based upon a careful review of the circumstances surround- 
 ing the trust estate.'" In New York the matter is regulated 
 by a graduated scale varying from five to one per cent, and 
 computed upon the amount represented by the trust. In 
 addition to this there is an allowance for disbursements." 
 Similar provisions exist elsewhere, but in none of the States 
 does the allowance exceed five per cent on the gross valuation 
 of the trust property. 
 
 i. Of trustees ex-maleficio. A trustee, ex-male ficio is " one 
 who by wrongful or illegal conduct becomes or is held to be 
 a trustee.'"" The abhorrence for all forms of fraud and 
 duplicity is so engrafted upon the principles of both law and 
 equity, that at an early day it was found expedient to fasten 
 upon a wrongdoer the character of a trustee, and in this 
 
 with intent to serve the interests but for no others. (Cal. Civil Code, 
 
 of the beneficiary, is liable only to §§ 2228-2239.) 
 
 make good whatever is lost to the '•" Ogden v. Murray, 39 N. Y. 202 , 
 
 beneficiary by his error. Gibson's Case, i Bland's Ch. 138; 
 
 Sec. 2239. Co-trustees, how far Clark v. Piatt, 30 Conn. 282. 
 
 liable for each other. A trustee is '** 2 Story's Eq. Jur., sec. 1268. 
 
 responsible for the wrongful acts '"Tuttlev. Robinson, 33 N. H- 
 
 of a co-trustee to which he con- 118. 
 
 sented, or which, by his negligence, '™ Stevenson v. Maxwell, 2 Sandf. 
 
 he enabled the latter to commit, Ch. 284. 
 
 "' Anderson's Law Diet. 
 
USES AND TRUSTS. 585 
 
 way prevent a miscarriage of justice. It has been found 
 very effective in practice as a means of circumventing- 
 fraud."' So an oral promise to make a will in another's 
 favor, in consideration of the deed from that other is within 
 the Statute of Frauds, but if made with a fraudulent intent 
 to obtain the deed without consideration the statute does not 
 apply, and the grantor becomes a trustee ex-maleficio of the 
 property so acquired."' Many instances of such a trustee- 
 ship spring from the relation of principal and agent, and it 
 is elementary law that if an agent purchases lands with 
 money belonging to his principal, and takes title in himself 
 without the principal's knowledge, the land or the proceeds 
 arising from it will be impressed with a trust in favor of the 
 principal which the court will recognize at all times. "* It 
 is a general rule of wide acceptation that where money of 
 one person is wrongfully used by another, the defrauded 
 party may follow it into the lands purchased with the 
 money, and the court will hold the purchaser as a trustee ex- 
 maleficio for the party defrauded."' In cases of this nature, 
 the implication of a trust from the fact that the consideration 
 for the purchase was paid by one, while the land was con- 
 veyed to another, may be overcome or disproved, or may be 
 corroborated, by any oral or written testimony showing the 
 circumstances of the transaction and the expressed or proba- 
 ble intention of the parties. The admissions or agreements 
 of the parties, even if oral, may then be proved as tending to 
 destroy or confirm the inference deducible from the facts of 
 payment of consideration and of the deed."' So, an admin- 
 istrator attempting to manage the real estate of the decedent 
 instead of selling it for the payment of debts has done that 
 which he has no power or legal right to do, and he is held as 
 a trustee ex-maleficio."'' Any one wrongfully dealing with an 
 
 Rep. 373 ; Moore v. Stinson, 144 
 Mass. 594. 
 
 "» Blodgett V. Hildreth, 103 Mass. 
 484 ; McGivney v. McGivney, 142 
 Id. 156. 
 
 "' McCoy V. Scott, 2 Rawle. 222 ; 
 Le Fort v. Delafield, 3 Edw. Ch. 
 (N. Y.) 32. 
 
 '«' Shaffner v. 
 
 Shaffner, 
 
 145 
 
 Pa. 
 
 St. 163 ; Jones v 
 
 . Van Doren, 
 
 130 
 
 U. S. 684; Easterly v. Barbei 
 
 r, 65 
 
 N. Y. 252. 
 
 
 
 
 '^^ Manning v. 
 
 Pippen, 
 
 86 
 
 Ala. 
 
 357- 
 
 
 
 
 "*Kraemer v. 
 
 Deustermann 
 
 , 37 
 
 Minn. 469. 
 
 
 
 
 '"McClung v 
 
 . Steen, 
 
 33 
 
 Fed. 
 
586 REAL PROPERTY-. 
 
 estate by artifice or concealment is answerable to the benefi- 
 ciary, and equity will compel the trustee ex-maleficio to exe- 
 cute such conveyances as the court directs."' 
 
 In Pomeroy's Eq. Jur. sec, 155, the author says, citing 
 many cases : " If one party obtains the legal title to property, 
 not only by fraud or by violation of confidence or of fiduciary 
 relations, but in any other unconscientious manner, so that 
 he cannot equitably retain the property which really belongs 
 to another, equity carries out its theory of a double owner- 
 ship, equitable and legal, by impressing a constructive trust 
 upon the property in favor of the one who is in good con- 
 science entitled to it, and who is considered in equity as the 
 beneficial owner." And again, in section 1053 : "In general, 
 whenever the legal title to property, real or personal, has been 
 obtained through actual fraud, misrepresentations, conceal- 
 ments, or through undue influence, duress, taking advantage 
 of one's weakness or necessities, or through any other similar 
 means or under any other similar circumstances which 
 render it unconscientious for the holder of the legal 
 title to retain and enjoy the beneficial interests, equity 
 impresses a constructive trust on the property thus acquired 
 in favor of the one who is truly and equitably entitled to 
 the same, although he may never perhaps have had any legal 
 estate therein ; and a court of equity has jurisdiction to reach 
 the property either in the hands of the original wrongdoer, 
 or in the hands of any subsequent holder, until a purchaser 
 of it in good faith and without notice acquires a higher 
 right, and takes the property relieved from the trust. The 
 forms and varieties of these trusts, which are termed ex- 
 maleficio or ex-delicto, are practically without limit. The 
 principle is applied wherever it is necessary for the obtaining 
 of complete justice, although the law may also give the 
 remedy of damages against the wrongdoer.*"™ 
 
 "« Felix V. Patrick, 145 U. S. 317. Larren v. Brewer, 51 Me. 402 ; Til- 
 
 '^'See generally on this topic ford v. Torrey, 53 Ala. 120; Hancock 
 
 Rose V. Hayden, 35 Kan. 106 ; Bur- v. Titus, 39 Miss. 234 ; Settembre v. 
 
 den V. Sheridan, 36 Iowa, 125 ; De- Putnam, 30 Cal. 490; Woodford v. 
 
 peyster v. Gould, 3 N. J. Eq. 474; Stevens, 51 Mo. 443. 
 
 Lefevre's App., 69 Pa. St. 122 ; Far- The mere breach of an oral agree- 
 
 ley V. Blood, 30 N. H. 254; Mc- ment standing alone, though oftea 
 
USES AND TRUSTS. 587 
 
 § 218. The Statute of Limitations and its effect upon trusts. 
 
 Equity acts in strict analogy with the rules of law. In fact 
 it is a maxim of wide acceptation that equity follows the law. 
 Hence, by lapse of time the extinguishment of a trust may 
 be presumed where other circumstances seem to require it. 
 In law the Statute of Limitations may be pleaded in bar of 
 an alleged indebtedness. And the statute may be invoked 
 with equal force in equity. But if there is an allegation of 
 fraud, or the circumstances of the case are such as to raise 
 the suspicion of its presence, the court will deny the Statute 
 of Limitations any right to run during the period in which 
 the fraud has been successfully concealed and practiced."' 
 And the statute will not begin to run in favor of a trustee 
 who has received funds from his beneficiary, until a demand 
 has been made for repayment.'" It is certainly true that 
 length of time is no bar to a trust clearly established ; and in 
 a case where fraud is imputed and proved, length of time 
 ought not upon principles of eternal justice, to be admitted 
 to repel relief. On the contrary, it would seem that the 
 length of time, during which the fraud has been successfully 
 concealed and practiced, is rather an aggravation of the 
 offense, and calls more loudly upon a court of equity to grant 
 ample and decisive relief. But length of time necessarily 
 obscures all human evidence ; and as it thus removes from 
 the parties all the immediate means to verify the nature of the 
 original transactions, it operates by way of presumption, in 
 favor of innocence and against imputation of fraud. It 
 would be unreasonable, after a great length of time, to 
 require exact proof of all the minute circumstances of any 
 transaction, or to expect a satisfactory explanation of every 
 
 a moral wrong, is not sufficient to 86 ; Patton v. Beacher, 62 Ala. 
 
 establish that fraud in procuring 579.) The element of agency is 
 
 the title which is requisite to render usually required to fasten such a 
 
 the grantee or devisee a trustee ex relation upon a party. (Hoge v. 
 
 maleficio, although the fact of such Hoge, i Watts, 163. See generally 
 
 breach may be looked into, in con- upon this proposition, 2 Pom. Eq. 
 
 nection with the other circum- Jur., sees. 1055, 1056.) 
 
 stances of the case, as sometimes ''" Piatt v. Oliver, 2 McLean, 267 ; 
 
 constituting one of several links in Bank of U. S. v. Beverly, i How. 
 
 a chain of facts tending to prove 134; Boone v. Chiles, 10 Pet. 177. 
 
 fraud. (Brock v. Brock, 90 Ala. '*' Taylor v. Benham, 5 How. 233. 
 
588 REAL PROPERTY. 
 
 difficulty, real or apparent, with which it may be encum- 
 bered. The most that can fairly be expected in such cases, 
 if the parties are living, from the frailty of memory, and 
 human infirmity, is, that the material facts can be given with 
 certainty to a common intent ; and, if the parties are dead, 
 and the cases rest in confidence, and in parol agreements, 
 the most that we can hope is to arrive at probable conjec- 
 tures, and to substitute general presumptions of law for 
 exact knowledge. Fraud, or breach of trust ought not 
 lightly to be imputed to the living for the legal presumption 
 is the other way ; and, as to the dead, who are not here to 
 answer for themselves, it would be the height of injustice 
 and cruelty to disturb their ashes, and violate the sanctity of 
 the grave, unless the evidence of fraud be clear, beyond a 
 reasonable doubt.'" 
 
 As was said in the case of Hall v. Russell, 3 Sawy. 515: 
 "When an action upon a legal title to land would be barred 
 by the statute, courts of equity will apply a like limitation 
 to suits founded upon equitable rights to the same property. 
 So, in cases of implied or constructive trust, where it is 
 sought, for the purpose of maintaining the remedy, to force 
 upon the defendant the character of trustee, courts will apply 
 the same limitation as provided for actions at law." 
 
 I 219. The declaration of trust. The owner of any freehold 
 interest in land or chattels real may make a declaration of 
 trust. Such declaration is equally valid as to personal prop- 
 erty, but as this is not within the scheme of the present 
 undertaking, no further reference will be made to trusts in 
 personal property. The declaration should be in clear and 
 unequivocal language, although it is not necessary that the 
 legal estate should be transferred to some third person called 
 a trustee. There is a widely prevalent notion that this is 
 absolutely necessary to the creation of a trust, and such 
 notions are in need of immediate suppression, as it is abund- 
 antly settled that the owner of property may convert his 
 ownership into a trusteeship provided the declaration of trust 
 is sufficiently explicit, and there is such consideration as will 
 support a trust without contravening the rights of creditors. 
 
 '" Prevost V. Gratz, 6 Wheat. 481. 
 
USES AND TRUSTS. 5^9 
 
 The consideration is, however, frequently nominal.'" In the 
 case of express trusts the provisions of the Statute of Frauds 
 apply, and the declaration should be made in writing. It 
 need not take the form of a deed or for that matter any par- 
 ticular form, and may be evidenced by a mere note or memo- 
 randum. Even a letter has been held to be sufficient.'" See 
 a celebrated case in which the late General Burnside was 
 involved.'" The New York Court of Appeals say that any 
 language is sufficient to create the trust, provided the intent 
 to create is one fairly deducible from the instrument. '" It is 
 not necessary that the beneficiary should have knowledge of 
 the declaration. If he has, his assent will be assumed on the 
 theory that no man will repudiate what is for his own inter- 
 est.'" In some jurisdictions a trust may be proved by 
 parol.'" But this would seem to infringe the first pfinciples 
 of the Statute of Frauds, and open a wide door for intermin- 
 able abuses. 
 
 In Snelling v. Utterback, i Bibb. (Ky.), 609, the court say 
 that "where the conveyance is taken to one, and no declaration 
 in writing that the purchase was made in trust for another, 
 and the trust is denied by the answer of him who is charged 
 as trustee, it was formerly holden that no evidence aliunde 
 was admissible to show that the purchase was made with 
 trust money whereby to raise a trust in favor of the cestui que 
 trusts" And though modern decisions have in some measure 
 mitigated the rigor of this rule and permitted parol evidence 
 to establish the trust, yet such evidence must be very clear 
 and satisfactory, or it will be held insufficient. ' ' 
 
 § 220. Incidents of trust estates. Real property held in 
 trust is generally liable to sale on execution for the debts of 
 
 '*=See Taylor v. Henry, 40 Md. "' Furman v. Fisher, 4 Cold. 626 ; 
 
 550; Minor v. Rogers, 40 Conn. Woodbury v. Bowman, 14 Me. 154 ; 
 
 512; Young V. Young, 80 N. Y. Hempstead v. Johnson, 18 Ark. 
 
 422 ; Urann v. Coates, 109 Mass. 123 ; Stockard v. Stockard, 7 
 
 481 ; Martin v. Funk, 75 N. Y. 134. Humph. 303. 
 
 "" Ray V. Simmons, 11 R. I. 266 ; "' Miller v. Thatcher, 9 Tex. 482. 
 
 '"Kingsbury v. Burnside, 58 111. ""Newton v. Preston Prec. Ch. 
 
 310; Barron v. Barron, 24 Vt. 375 ; 103 ; Kirby v. Webb, Prec. Ch. 84 ; 
 
 Norman v. Burnett, 25 Miss. 183. Kendar v. Milward, 2 Vern. 440. 
 
 "" Morse v. Morse, 85 N. Y. 53. 
 
590 REAL PROPERTY. 
 
 the beneficiary. But in some States the process by which, 
 this result is reached is an equity procedure. "° But the trus- 
 tee cannot encumber or charge the estate with his executory 
 contracts unless the instrument creating the estate expressly 
 authorizes such a proceeding.'" In the case last cited the 
 courts say that if it is necessary for the safety and preserva- 
 tion of the estate to lay out considerable funds, and the trus- 
 tee is without funds and not disposed to advance them him- 
 self, he may, by express agreement, make the expenditure a 
 charge upon the trust estate. Such a ruling is eminently 
 proper, and will be universally recognized as a correct ex- 
 position of the law. Trust estates are also liable to merger. 
 But we must always remember that the doctrine of merger 
 is suspended wherever, by allowing it to act, it will work an 
 injustice. Broadly, it may be said, that merger will not be 
 tolerated if justice requires that the estates should continue 
 separate.'" 
 
 When a trust has been created, it is to be held large 
 enough to enable the trustee to accomplish the objects of its 
 creation. If a fee simple is necessary, it will be held to exist 
 though no words of limitation be found in the instrument by 
 which the title was passed to the trustee, and the estate cre- 
 ated. On the other hand, it is equally well settled that where 
 no intention to the contrary appears, the language used in 
 creating the estate will be limited and restrained to the pur- 
 poses of its creation And when they are satisfied, the estate 
 of the trustee ceases to exist, and his title becomes extinct. 
 The extent and duration of the estate are measured by the 
 objects of its creation. 
 
 Jarman says (2 Jarm. Wills, 156): "Trustees take exactly 
 the estate which the purposes of the trust require, and the 
 question is not whether the testator has used words of limi- 
 tation, or expressions adequate to carry an estate of inherit- 
 
 "» Pritchard v. Brown, 4 N. H. "' Earle v. Washburn, 89 Mass. 
 
 397 Matthews v. Stevenson, 6 Pa. 95 (1863); James v. Morey, 2 Cow. 
 
 St. 496. 246 ; Hunt V. Hunt, 31 Mass. 374 ; 
 
 "' Heath v. Richmond F. & P. Bolles v. State Trust Co. 27 N. J. 
 
 Co. 4 Gratt. 482; New v. Nicoll, Eq. 308. 
 73 N. Y. 127. 
 
USES AND TRUSTS. 591 
 
 ance, but whether the exigencies of the trust demand the fee 
 simple, or can be satisfied by any, and what, less estate. 
 
 Chancellor Kent says: "The general rule is that a trust 
 estate is not to continue beyond the period required by the 
 purposes of the trust ; and notwithstanding the devise to the 
 trustee and their heirs, they take only a chattel interest 
 where the trust does not require an estate of higher quality. '"" 
 
 This doctrine rests upon a solid foundation of reason and 
 authority, irrespective of the presence or absence of the Stat- 
 ute of Uses. "* 
 
 If a trust is declared in writing, parol evidence is admissi- 
 ble to contradict the expressed intentions of the instrument,"* 
 but if the instrument is vague and ambiguous, parol evidence 
 may be introduced to assist in its interpretation. "" An abso- 
 lute conveyance of land cannot be shown by the grantor to 
 be a grant in trust for himself, no fraud or mistake being 
 alleged,'" and evidence tending to show that a deed absolute 
 of its face is a mortgage or a conveyance in trust, should be 
 clear and received with great caution.'" Want of considera- 
 tion for a deed, possession of land by the grantor after con- 
 veyance, and the non-payment of the purchase money, may 
 be put in evidence to show a trust relation."" 
 
 If the instrument in any way indicates an intention of 
 making a person the holder of both the legal and beneficial 
 
 "'4 Kent's Com. 233 ; Webster v. Robinson, 29 Ala. 112, 65 Am. Dec. 
 
 Cooper, 14 How. 499 ; Neilson v. 387 ; Sturtevant v. Sturtevant, 20 
 
 Lagow, 12 How. no; Doe v. Hicks, N. Y. 39, 75 Am. Dec. 371; Lake 
 
 7 T. R. 437; Curtis v. Price, 12 v. Freer, 11 III. App. 576. 
 
 Ves. 99 ; Morrant v. Gough, 7 B. ''' Steere v. Steere, supra ; Fors- 
 
 & C. 206 ; I Greenl. Cruise, 359, ter v. Hale, 3 Ves. Jr. 696 ; Taylor 
 
 note. V. Taylor, i Atk. 386. 
 
 '"Doe V. Considine, 73 U. S. '"Sturtevant v. Sturtevant, 
 
 458. supra. 
 
 '" Lewis V. Lewis, 2 Rep. in Ch. 77 ; '*' Corbit v. Smith, 7 Iowa, 60, 71 
 
 Finch's case, 4 Inst. 86 ; Steere v. Am. Dec. A31 ; Hurst v. Harper, 14 
 
 Steere, S Johns. Ch. (II L. ed.) 987, 9 Hun, 283; Horn v. Keteltas, 43 
 
 Am. Dec. 256; Simms v. Smith, 11 How. Pr. 152; McMahon v. Macy 
 
 Ga. 198 ; Dickinson v. Dickinson, 2 51 N. Y. 161. 
 
 Murph. 279 ; Lloyd v. Inglis, i De- "' Vandever v. Freeman, 20 Tex. 
 
 saus, Eq. 333 ; Harris v. Barnett, 3 33, 70 Am. Dec. 391 ; i Rice, Ev. 
 
 Gratt. 339; Mann v. Mann, i Johns. 291. 
 Ch. 234, I L. ed. 124; Ashley v. 
 
592 REAL PROPERTY. 
 
 estate, a trust cannot be created by parol."" Neither can 
 there be a trust by parol where a valuable consideration is 
 paid'"' unless it can be proved by a person not privy to a 
 deed.'" Where property was conveyed for the benefit of a 
 child, though no declaration of trust appeared in the deed, 
 evidence was admitted to prove it. '" Whenever parol evi- 
 dence is admitted to prove a trust or establish a trust it must 
 be very clear and satisfactory."* 
 
 The United States Supreme Court, in Cook v. TuIHs, i8 
 Wall. 322, 341, say: "It is a rule of equity jurisprudence per- 
 fectly well settled and of universal application, that where 
 property held upon any trust to keep or use or invest it in a 
 particular way is misapplied by the trustee, and converted 
 into different property, or is sold and the proceeds are thus 
 invested, the property may be followed wherever it can be 
 traced through its transformations, and will be subject, when 
 found in its new form, to the rights of the original owner or 
 cestui que trust. " * * It cannot alter the case that the 
 newly acquired property, instead of being purchased with the 
 proceeds of the original property, is obtained by a direct ex- 
 change for it. The real question in both cases is, what has 
 taken the place of the property in its original form? When- 
 ever that can be ascertained, the property in the changed 
 form may be claimed by the original owner, or the cestui que 
 trust, and assignees and trustees in bankruptcy can acquire no 
 interest in the property in its changed form which will defeat 
 his rights in a court of equity." 
 
 Trusts never allowed to fail for want of a trustee. No 
 phase of calamity can deprive the trust estate of a proper 
 trustee to carry out the intentions of the donor. Death, in- 
 
 ""Lewin, Trusts, 51 ; Dean v. Ross v. Norvell, i Wash. 14, i 
 
 Dean, 6 Conn. 285; Philbrook v. Am. Dec. 422. 
 
 Delano, 29 Me. 410; Starr v. Starr, "ISnelling v. Utterback, i Bibb. 
 
 I Ohio, 321 ; Hutchinson v. Tin- 609, 4 Am. Dec. 661 ; Hunter v. 
 
 dall, 3 N. J. Eq. 357. Bilyeu, 30 III. 246; Harrison v. 
 
 "" lb.; Gilbert, Uses and Trusts, Howard, i Ired. Eq. 407 ; Brady v. 
 
 56, 57 ; Pilkington v. Bagley, 7 Bro. Parker, 4 Id. 430 ; Lymah v. Uni- 
 
 p. C. 383. ted Ins. Co. 2 Johns. Ch. (N. Y.) 630, 
 
 ""Squire's App. 70 Pa. 266; i L. ed. 519; Philpott v. Elliott, 4 
 
 Storng V. Glasgow, 2 Murph. 289. Md. Ch. 273; i Rice, Ev. 292-3. 
 
 les 
 
 Gay V. Hunt, i Murph. 141 ; 
 
USES AND TRUSTS. 593 
 
 sanity, protracted absence unexplained, lingering illness, 
 none of these are allowed to frustrate the operation of the 
 trust. Equity will invariably interpose its aid in such emer- 
 gencies, and select some proper person to perform the 
 duties of the trustee. But it must be remembered in this 
 connection that mere " powers" frequently repose in the 
 sound discretion of the donee. His action may depend en- 
 tirely upon the exercise of sound judgment, or possibly his 
 mere whim and caprice. And in such instances, the court 
 can exercise no supervisory control over his actions. But 
 we instantly encounter a distinction when this power — in 
 itself purely discretionary — becomes coupled with a trust. 
 In such a case the machinery of the equity court has full play, 
 and what was formerly "may" now becomes most emphati- 
 cally "must."'" The owner of the legal estate may be com- 
 pelled to execute proper conveyances, and equity will follow 
 the property, and impress upon a fraudulent or collusive 
 holder the character and attributes of a trustee ex-male ficio. "' 
 In compelling a conveyance, and in fact in any necessary 
 case, the court will assume that the trustee's estate is large 
 enough to cover all the purposes of trust. But he is never 
 allowed to take a greater estate than the proper discharge of 
 his trusteeship demands. For instance, if the trustee's duty 
 requires the vesting in him of an estate for the life of another 
 only, his legal interest will be cut down to that extent.'" 
 Equity always regards the beneficiary as the real owner of 
 the property.'" 
 
 § 221. Classification of trusts. So far as regards the duty 
 of the trustee, trusts may be divided into active or special, 
 and passive or simple trusts.'" A simple trust arises in those 
 cases where property is transferred to a certain person to be 
 held in trust by that person, but without specific direction a? 
 
 '"Babbitt v. Babbitt, 26 N. J. Eq. Md. 46; Adams v. Adams, 21 Wall. 
 
 44; Greenough v. Wells, 10 Cush. 185. 
 
 (Mass.) 576 ; McCartney v. Bostwick, '" M'cCosker v. Brady, i Barb. Ch. 
 
 32 N. Y. 53 ; Stone v. Griffin, 3 Vt. 329. 
 
 400- '*' Jamison v. Glascock, 29 Mo 
 
 '"Harris v. Rucker, 15 B. Mon. 191. 
 
 564; Druid Park v. Dettinger. 53 '«» Lewin on Trusts, 21. 
 38 
 
594 REAL PROPERTY. 
 
 to its management or ultimate control. The equity jurisdic- 
 tion is exclusively relied upon to enforce the respective rights 
 of the parties. Special trusts, on the contrary, are, as the 
 name indicates, devoted to some special object, and they are 
 exempt from any interference on the part of interested par- 
 ties until the set purposes for which they exist are fully 
 accomplished. In the case of passive trusts, we have the 
 simple trust under another name. Nothing is to be done by 
 the trustee except to convey the property to the beneficiary- 
 They are otherwise known as barren, dry, or naked trusts."" 
 Trusts are further considered as executed or executory. The 
 first arises wherever the estate passes directly to the trustee 
 by virtue and force of the instrument creating it, and without 
 the observance of some further formality which is necessary 
 to its operation as a trust. Executory trusts, on the other 
 hand, are those that require some further action on the part 
 of those interested in the property before the trust as such 
 vests in the trustee. At their inception they are regarded as 
 provisional, and contemplate some further conveyances, or 
 the performance of some specific acts, before they fasten any 
 liability upon the trustee. Again, an active trust, as its 
 term imports, calls for the performance of some active duty 
 on the part of the trustee, in order that he may retain the 
 legal investiture of the estate. The distinction between this 
 and a passive trust is quite obvious. 
 
 Further refinements have been attempted, and we find 
 some text-books embodying the classification of ministerial 
 and discretionary. The first resembles a simple trust. The 
 trustee is merely called upon to perform some purely minis- 
 terial act, in the doing of which he is denied the exercise of 
 any discretion whatever. While in the second, this element 
 of discretion designates the peculiarity of the trust. And he 
 is called upon to exercise such judgment and sagacity in the 
 matter as any reasonable and prudent man would employ in 
 similar circumstances. Ministerial and discretionary trusts 
 are practically of slight importance in the absence of fraud or 
 deceit. If the donor sees fit to vest absolute discretion in 
 
 "" Passive trusts have been abolished in several States and should be 
 in all. 
 
USES AND TRUSTS. 595 
 
 the trustee, the courts will not interfere with the exercise of 
 this discretion unless such gross perversion is present as 
 would suggest bad faith. 
 
 With reference to their creation, trusts are again divided 
 into express and implied trusts. This subdivision embraces 
 a wide range of topics, and involves a very broad survey of 
 the principles that underlie equitable estates. Briefly it may 
 be said that express trusts rely for their creation upon the 
 specific recitals of a deed, will, or other written instrument, 
 while the latter are the mere creatures of legal construction 
 or presumption. Implied trusts may, in turn, be divided into 
 two general classes: First, Those that rest upon the pre- 
 sumed intention of the parties; Second, Those which are 
 independent of any such express intentions, and are forced 
 upon the conscience of the party by operation of law.'" 
 These implied trusts are otherwise designated as resulting 
 where a beneficial interest does not accompany the legal title. 
 Familiar instances arise wherever a conveyance is taken in 
 the name of one person, and the consideration is paid by 
 another. In such cases the law raises a resulting trust in 
 favor of the party advancing the consideration. 
 
 Still another phase of these implied trusts must be noted. 
 I refer to constructive trusts. These never repose upon the 
 intention of the party, but are thrust upon the trustee 
 through reasons of natural equity and justice. More fre- 
 quently they arise from the suspicion of active or construc- 
 tive fraud, and they are formidable weapons under the equity 
 jursidiction for circumventing duplicity and unconscionable 
 advantage. 
 
 Such expressions as ' ' voluntary trusts, " " precatory trusts, ' ' 
 and "secret trusts" are occasionally met with. These will 
 be disposed of as we proceed. But I may state that Story 
 classifies precatory trusts with implied trusts, and that an 
 "illegal" trust is a term that may justly characterize any of 
 the categories where the circumstances are such as to repel 
 the application of legal rules or formulas, provided such 
 terms be used in such a connection as to convey an idea asso- 
 ciated with attempted illegality. A man may be said to 
 
 "'2 Story, Eq. Jur. 9th ed., sec. 1195. 
 
596 REAL PROPERTY. 
 
 attempt an illegal devolution of his property, and lie may 
 "attempt" to create a trust that the law will refuse to sanc- 
 tion ; but it is a manifest perversion of language to speak of 
 an "illegal" trust. The law knows nothing of any form of 
 trust that is not purely legal, and whenever it countenances 
 an "illegal" trust the judge who writes the opinion will have 
 immortalized himself. To make this classification complete 
 I should add that we have public and private trusts, and 
 charitable and spendthrift trusts. But these names denote 
 mere refinements, and for all practical purposes trusts may 
 be said to fall into one of two categories — they are either 
 express or implied. 
 
 What follows under this sectional treatment may be re- 
 garded as the amplification of the foregoing summary on the 
 subject of classification. 
 
 a. Express trusts. ' ' An express trust is simply a trust cre- 
 ated by the direct and positive acts of the parties, by some 
 writing, or deed, or will.""' 
 
 In another case it was said : " In order to constitute a trus- 
 tee of an express trust, there must be some express agree- 
 ment to that effect, or something which in law is equivalent 
 to such an agreement. The case of factors and mercantile 
 agents may or may not constitute an exception under the 
 custom and usage of merchants. But in every case the trust 
 must be expressed by some agreement of the parties, not 
 necessarily, perhaps, in writing, but either written or verbal, 
 according to the nature of the transaction."'" 
 
 ' ' One who contracts merely as the agent of another, and has 
 no personal interest in the contract, is not the trustee of an 
 express trust within the meaning of the statute, and cannot, 
 under the code, sue upon such contract in his own name. 
 Of course, this last expression must be taken in connection 
 with the facts of the case ; namely, that no promise is made 
 to the plaintiff individually.'" 
 
 An express trust cannot be created by parol testimony — 
 there are no contrarient decisions as to this proposition, and 
 the confusion that infests the topic arises from the fact that 
 
 '"Weaver v. Trustees, etc., of '" Robbins v. Deverill, 20 Wis. 
 Wabash, etc., Canal Co. 28 Ind. 142. 
 112. '" Rollins V. Fuller, 31 Ind. 255. 
 
USES AND TRUSTS. 597 
 
 in many instances there is an utter failure to observe the 
 radical distinction between express and resulting trusts. A 
 chancellor will sometimes decree a resulting trust on the 
 strength of parol testimony, while the former are strictly of 
 documentary creation."' 
 
 The nature of an "express trust" and the classes of per- 
 sons embraced within the statutory phrase "trustees of an 
 express trust," were determined upon great consideration by 
 the New York Court of Appeals, in the leading case of Con- 
 siderant v. Brisbane, 22 N. Y. 389, Judge Denio dissenting. 
 
 The prevailing opinion in that case says: "It is intended 
 manifestly to embrace not only formal trusts declared by 
 deed inter partes, but all cases in which a person acting in 
 behalf of a third person enters into a written express con- 
 tract with another either in his individual name, without 
 description, or in his own name expressly for, or on behalf 
 of, or for the benefit of, another, by whatever form of 
 expression such trust may be declared. It includes not only 
 a person with whom, but one in whose name, a contract is 
 made for the benefit of another.""" 
 
 It has been held that assignees for the benefit of credi- 
 tors, or in bankruptcy, are entitled to sue as "trustees of an 
 express trust.""' 
 
 So of an agent who takes a policy of life insurance in his 
 own name for a known, though unnamed principle. "' Where 
 a policy of insurance was issued to a party, payable ' ' to whom 
 it may concern," it was held that the person to whom it was 
 issued might sue as a trustee of an express trust."' Com- 
 mission merchants, insuring goods consigned to them to be 
 sold on commission, may sue on the policy as trustees of an 
 express trust."" Trustees named in a subscription paper, for 
 the purpose of an action against the subscribers are trustees 
 
 '"Philpotv. Penn.giMo. 38; Gil- "'Ogden v. Prentice, 33 Barb, 
 
 lespie V. Moon, 2 Johns. Ch. (N. Y.) (N. Y.) 160. 
 
 601 ; Bates v. Kelley, 80 Ala. 142 ; "' Pitney v. Glens Falls Ins. Co. 
 
 United States Bank v. Carrington, 65 N. Y. 6. 
 
 7 Leigh, 566. '" Walsh v. Washington Ins. Co. 
 
 "« See, also, N. W. Conference v. 32 N. Y. 427. 
 
 Myers, 36 Ind. 375. '"> Waring v. Indemnity Fire Ins. 
 
 Co. 45 N. Y. 606. 
 
598 REAL PROPERTY. 
 
 of an express trust. '" A guardian of an infant, appointed by 
 the probate court, is not a trustee of an express trust within 
 the meaning of this section."" Tlie trustee of an express 
 trust may maintain an action to prevent waste or trespass 
 upon the land held in trust, or to recover possession thereof, 
 without joining with him the cestui que trust; and should he 
 refuse to do so, his cestui que trust may compel him by action 
 to do so.'" Savings banks are trustees for the depositors, 
 within the meaning of this section, and not their debtors. A 
 deposit of money constitutes an express trust."' 
 
 b. Executory and executed trusts. Executory trust is a spe- 
 cies of trust that requires something to be done before it 
 takes effect. All trusts are in some sense executory, because 
 a trust cannot be executed except by conveyance, and there- 
 fore, there is always something to be done. But in equity an 
 "executory" trust occurs where the author of the trust has 
 left it to be made out from general expressions what his 
 intention is ; and an executed trust is where there is nothing 
 to be done but to take the limitations given and convert them 
 into a legal estate. The trust is "executed" when the limi- 
 tations of the equitable interest are complete and final ; in an 
 executory trust, the limitations of the equitable estate are 
 not intended to be complete and final, but merely to serve as 
 instructions for perfecting the settlement at some future 
 time. Equity has ample jurisdiction to modify executory 
 trusts in order to effectuate the intentions of the "donor" or 
 "founder.""' 
 
 It should be added that an executed trust is one that is in 
 such a perfect state of completion that nothing remains to be 
 done to perfect it."" 
 
 c. Of so called " illegal" trusts. The principle is that where 
 several trusts are created by a will, which are independent of 
 each other, and each complete in itself, some of which are 
 lawful and others are unlawful, and which may be separated 
 
 '»' Hutchins v. Smith, 46 Barb. 602 ; Zuck v. Culp, 59 Id. 142 ; 
 
 235 ; Slocum v. Barry, 34 How. Pr. Rice, Col. Code Pro. sec. 5. 
 
 320. "=2 Pomeroy, Eq. Jur., sec. 1000; 
 
 "' Fox V. Minor, 32 Cal. in. Lewin on Trusts, 4; Dennison v. 
 
 "^ Tyler V. Houghton, 25 Cal. 26. Goehring, 7 Pa. St. 177. 
 
 '" Burke V. Badlam, 57 Cal. 594; "64 Kent, 304. 
 
USES AND TRUSTS. 599 
 
 from each other, the illegal trusts may be cut off, and the 
 legal ones permitted to stand. This rule is of frequent 
 application in the construction of wills, but it can be applied 
 only in aid and assistance of the manifest intent of the tes- 
 tator, and never where it would lead to a result contrary to 
 the purpose of the will, or work an injustice among the bene- 
 ficiaries, or defeat the testator's scheme for the disposal of his 
 property. The rule, as applied in all reported cases, recog- 
 nizes this limitation, that when some of the trusts in a will 
 are legal, and some illegal, if they are so connected together 
 as to constitute an entire scheme, so that the presumed wishes 
 of the testator would be defeated if one portion was retained 
 and other portions rejected, or if manifest injustice would 
 result from such construction to the beneficiaries or some of 
 them, then all the trusts may be construed together and all 
 must be held illegal, and must fall.'" 
 
 It may be regarded as settled in Pennsylvania, that a court 
 of equity will not enforce a trust where its object is the propa- 
 gation of atheism, infidelity, immorality or hostility to the 
 existing form of government. A man may do many things 
 while living which the law will not do for him after he is 
 dead. He may deny the existence of a God and employ his 
 fortune in the dissemination of infidel views, but should he 
 leave his fortune in trust for such purposes, the law will 
 strike down the trust as contra bonos mores. We need not 
 elaborate this question nor extend the illustrations. The 
 whole subject is thoroughly discussed in a number of cases 
 which fully sustain the principle above stated.'" 
 
 d. Implied trusts. Express trusts are created by the action 
 of the parties while implied trusts result by construction of 
 law, and usually rest upon the presumed intent of the parties 
 or are enforced upon the conscience by operation of law.'"' 
 Implied trusts arise where the intent to create is a logical 
 
 '" Manice V. Manice, 43 N.Y. 303; monwealth, 11 S. & R. 394; Vidal 
 Van Shuyver V. Mulford, 59 N. Y. v. Girard's Executors, 2 How. 127; 
 426; Knox V. Jones, 47 N. Y. 389; Zeisweiss v. James, 13 P. F. Smith, 
 Benedict v. Webb, 98 N. Y. 460 ; 465 ; Eice's Probate Law, 543. 
 Kennedy v. Hoy, 105 N. Y. 135; 6 "'2 Story Eq., sec. U95; i Pome- 
 Cent. Rep. 805. roy Eq., sec. 155; 2 Id., sec. 1030, 
 
 ='*See Updegraph v. The Com- cases. 
 
600 REAL PROPERTY. 
 
 inference on the language of the instrument. Thus, if A. 
 gives property to B. "not doubting" or "hoping" or "en- 
 treating" that B. "will employ it for the benefit of C," a 
 trust is implied in favor of C. the execution of which C. is at 
 liberty to enforce, though it be given in this precatory form. 
 They are also denominated "precatory trusts."'" 
 ' ' One of the most common cases, ' ' remarks Judge Story, 
 ' ' in which a court of equity acts upon the ground of implied 
 trusts in invitum, is when a party receives money which he 
 cannot conscientiously withhold from another party."'" 
 And he states it to be a general principle that "whenever 
 the property of a party has been wrongfully misapplied, or a 
 trust fund has been wrongfully converted into another spe- 
 cies of property, if its identity can be traced, it will be held 
 in its new form liable to the rights of the original owner, 
 or cestui que trust. "^"'^ 
 
 Mr. Pomeroy says: "In general, whenever the legal title to 
 property, real or personal, has been obtained through actual 
 fraud, or through any other circumstances which render it 
 unconscientious for the holder of the legal title to retain and 
 enjoy the beneficial interest, equity imposes a constructive 
 trust on the property thus acquired in favor of the one who 
 is truly and equitably entitled to the same, although he may 
 never, perhaps, have any legal estate therein, and a court of 
 equity has jurisdiction to reach the property either in the 
 hands of the original wrongdoer or in the hands of any sub- 
 sequent holder until a purchaser in good faith, and without 
 notice, acquires a higher right and takes the property 
 relieved from the trust. The forms and varieties of these 
 trusts, which are termed 'ex nialeficio' or 'ex delicto,' are prac- 
 tically without limit. The principle is applied whenever it 
 is necessary for the obtaining of complete justice, although 
 the law may also give the remedy of damages against the 
 wrongdoer."'" A confidential relation is not necessary to 
 
 ™2 Story Eq. Jur., sec. 64. Hallett, L. R. 13 Ch. Div. 696; 
 
 "' Story Eq. Jur., sec. 1255. People v. City Bank of Rochester, 
 
 "''Id. 1258; Hill, Trustees, 222; 96 N. Y. 32; Central Nat. Bank of 
 
 "Whitley v. Foy, 59 N. C. 34, 78 Baltimore v. Connecticut Mut. L. 
 
 Am. Dec. 236 ; Taylor v. Plumer, 3 Ins. Co. 104 U. S. 54 26 L. ed. 693. 
 
 Maule & S. 562; Knatchbull v. "'Pom. Eq. Jur. 1053. 
 
USES AND TRUSTS. 6oi 
 
 establish such trust, and there is no good reason why the 
 owner of property taken and converted by one who has no 
 right to its possession should be less favorably situated in a 
 court of equity, in respect to his remedy (at least for the pur- 
 pose of recompense or indemnity), than one who by an abuse 
 of trust has been injured by the wrongful act of a trustee to 
 whom the possession of trust property has been confided. 
 ' ' The beautiful character — pervading excellence, if one may 
 say so — of equity jurisprudence," says Judge Story, "is that 
 it varies its adjustments and proportions so as to meet the 
 varying form and pressure of each particular case in all its 
 complex habitudes." 
 
 In Wheeler v. Reynolds, 66 N. Y. 227, it was said: "If, in 
 the case under consideration, the defendant at the sale had 
 declared that he was bidding in the property for the plaintiff, 
 and had thus induced other persons to refrain from bidding, 
 and purchased the property for less than its value, a case 
 would probably be made for holding him as trustee, ex male- 
 ficio, of the plaintiff. ' ' 
 
 e. Resulting trusts. ' ' The general principles of equity and 
 good conscience applied to certain situations and acts of the 
 parties are used to raise presumptions of intentions, and to 
 impress property with trusts, and to clothe one party with 
 the character and obligations of a trustee, and another with 
 the rights and privileges of a cestui que trust for the purpose 
 of securing honesty and fair dealing among mankind, and to 
 prevent fraud and injustice. The statute referred to was 
 never intended to interfere with the application of these 
 equitable and benign principles; but it was designed to pre- 
 vent fraud and perjuries by prohibiting the creation of trusts 
 relating to real estate dependent solely upon mere verbal or 
 parol conversations or agreements."'" 
 
 In Dyer v. Dyer, 2 Cox. 92 ; i Lead. Cas. Eq. 237, Chief 
 Baron Eyre stated the rule as follows: "It is the established 
 doctrine of a court of equity that this resulting trust may be 
 rebutted by circumstances in evidence. The cases go one 
 step further, and prove that the circumstance of one or more 
 of the nominees being a child, or children of the purchaser, 
 
 '"Church, C. J., in Foote v. Bryant, 47 N. Y. 544. 
 
6o2 REAL PROPERTY. 
 
 is to operate by rebutting tlie resulting trust ; and it has been 
 determined in so many cases that the nominee, being a child, 
 shall have such operation as a circumstance of evidence, that 
 we should be disturbing landmarks if we suffered either of 
 these propositions to be called into question, namely, that 
 such circumstances shall rebut the resulting trust, and that it 
 shall do as a circumstance of evidence. I think it would 
 have been a more simple doctrine if the children had been 
 considered as purchasers for a valuable consideration. 
 Natural love and affection raised a use at common law. 
 Surely, then, it will rebut a trust resulting to the father. 
 This way of considering it would have shut out all the cir- 
 cumstances of evidence which have found their way into 
 many of the cases, and would have prevented some very 
 nice distinctions and not very easy to be understood. Con- 
 sidering it as a circumstance of evidence, there must be, of 
 course, evidence admitted on the other side. Thus it was 
 resolved into a question of intent, which was getting into a 
 very wide sea, without any certain guides. ' ' 
 
 Where an estate is conveyed in trust for a particular and 
 temporary purpose, not requiring the whole of the estate, a 
 resulting trust generally arises in favor of the grantor, or 
 his heirs-at-law, in the remainder, after the original purpose 
 is accomplished.'" Whether a resulting trust should be 
 declared depends largely upon the intention of the grantor, 
 and in order to determine that intention, resort may be had 
 to the entire instrument with the aid of such evidence as can 
 lawfully be derived from the surrounding circumstances. 
 
 A resulting trust is not created in favor of one who pays, 
 directly or indirectly part of the purchase money for land 
 conveyed to another, unless such payment is made for some 
 specific or distinct portion of the estate. "° Generally the 
 insuperable difficulty, in cases where a misappropriation of 
 money is alleged, arises from the failure to identify and fol- 
 low it in its transformation into other property. This diffi- 
 culty is one of fact and not of law, and the oft asserted dic- 
 tum that money has no ' ' ear mark' ' must be understood as 
 predicated only of an undivided and undistinguishable mass 
 
 '"Story, Eq. Jur., sec. 1193 a. '»« McGowan v. McGowan, 14 Grey 
 
 (Mass.), 119. 
 
USES AND TRUSTS. 603 
 
 of current money.'" Although money has no ear mark it 
 may be followed onto the land where it has been invested, in 
 case where the purchaser stood as trustee on relation to the 
 fund. The trustee is not permitted to defeat the claim upon 
 the land, so long as he continues to hold the title, by prov- 
 ing only that he contributed to the purchase money and 
 mingled his own money with that of the plaintiffs.'" This 
 doctrine has many vindications in American law. Thus, in 
 Day v. Roth, 18 N. Y. 448, the plaintiff's money, held by one 
 of the defendants for investment, was used in the purchase 
 of land, which was conveyed to one of the other defendants 
 with full knowledge of the transaction, and it was held that 
 the fund was impressed with all the characteristics of a 
 resulting trust and that the plaintiff had an undoubted right 
 to follow the claim so long as it could be traced into whatso- 
 ever hands it might come. A mere change of property from 
 one form to another cannot divest the owner of his rights so 
 long as it is capable of identification."'' 
 
 In Wallace v. Duffield, supra, Gibson, Justice, writing for 
 affirmance, said that when a trustee purchases with the trust 
 fund and takes the conveyance in his own name, there is, 
 properly speaking, no resulting trust, although it is gene- 
 rally so called ; for there is in equity a very substantial differ- 
 ence between them, both in the quality and extent of the 
 relief that can be called for. In the former the trustee will 
 be compelled to execute the trust by a conveyance of the 
 land. In the latter, chancery will raise the money out of 
 the land by a sale of the whole, or such part of it as may be 
 necessary to produce the sum withdrawn ; and this mode is 
 peculiarly convenient where only part of the consideration 
 has been taken from the trust fund.""" In fact, the general 
 laws of agency may be appealed to for the purpose of 
 enforcing the same doctrine as it is an elementary rule that 
 when the money of the principal has been wrongfully 
 
 '" Taylor v. Plummer, 3 M. & S. ™ See, also, Olliver v. Piatt, 3 
 
 562. How. 333 ; Kirkpatrick v. McDon- 
 
 "8 Wallace V. Duffield, 2 S. & R. aid, 11 Pa. St. 387; Cheney v. 
 
 521; Dey V. Dey, 2 P. Wms. 412. Gleason, 117 Mass. 557; Adam's 
 
 "' McLarren v. Brewer, 51 Me. Eq. 33, note; 2 Story's Eq. Juris., 
 
 402. sec. 1258. 
 
6o4 REAL PROPERTY. 
 
 invested by the agent in land, equity will burrow into the 
 transaction and compel the legal owner, charged with 
 notice, to accept the relation of a trustee with all of the lia- 
 bilities that apply to that position."" 
 
 When one makes an oral contract with another that the 
 latter shall buy land, on joint account, and he, in violation 
 of the contract, takes the deed to himself, no trust results in 
 favor of the former as to one-half of the land, unless it is 
 
 shown that he furnished the money for the one-half in 
 
 other words, that it was bought with his money."' A result- 
 ing trust depends upon the fact that the money of the person 
 claiming it was used in the purchase, and it cannot be raised 
 by any future payments or tender. ' ' The trust, ' ' says Chan- 
 cellor Kent, "results from the original transaction at the time 
 it takes place, and at no other time, and it is founded on the 
 actual payment of the money, and on no other ground. It 
 cannot be mingled or confounded with any subsequent deal- 
 ings whatever."' 
 
 A resulting trust will not be altered, and the court will not 
 assist the purchaser, where the purchase is made with a view 
 to contravene public policy or accomplish an illegal purpose."' 
 
 Resulting trusts do not arise from parol agreements, but 
 spring from the actions and relations of the parties."' And 
 in all instances such trusts may be established by parol evi- 
 dence.'" And it is an indisputable rule that the Statute of 
 Frauds will never be allowed to apply to any trust arising 
 by operation of law. Equity never allows itself to be 
 
 ™- Story Agency, sec. 229. 85 Va. 740 ; Six v. Sbaner, 26 Md. 
 
 ''"^ Collins V. Sullivan, 135 Mass. 415; Ward v. Matthews, 73 Cal 13; 
 
 461; Dudley v. Bachelder, 53 Me. Green v. Dietsch, 114 111. 636 ; Wig- 
 
 403. gin V. Wiggin, 58 N. H. 235 ; Powell 
 
 ^'i Botsford V. Burr, 2 Johns. Ch. v. Powell, 114 111. 329; Stuckey v. 
 
 405; Richards v. Manson, 103 Mass. Stuckey, 30 N. J. Eq. 546. 
 
 482. 2°= Duffy V. Masterson, 44 N. Y. 
 
 '"Whaley v. Whaley ; Milner v. 557; Smith v. Hollenback, 51 111. 
 
 Freeman, 40 Ark. 62 ; F. Kenedy v. 223; Lynn v. Lynn, 27 Md. 547; 
 
 Keating, 34 Mo. 25 ; Nestal v. Hidden v. Jordan, 21 Cal. 92. 
 
 Schmid, 29 N. J. E. 460; Burden »™Smithealv. Gray, i Humph. 491; 
 
 V. Sheridan, 36 la. 125; Pearson v. Groesbeck v. Seeley, 13 Mich. 329; 
 
 East, 36 Ind. 28 ; Torey v. Cameron, Morgan v. Clayton, 61 111. 35. 
 73 Tex. 583; McDevitt v. Frantz, 
 
USES AND TRUSTS. 6o5 
 
 defeated in its action by a statute that was designed merely 
 to prevent a fraud."' 
 
 Laches as affecting resulting trusts. As a general rule mere 
 lapse of time is not a bar to the enforcement of a resulting 
 trust assuming that a reasonable excuse is given, and there 
 has been no adverse holding of the property."' But this 
 proposition is not without dissent. It may well be that by 
 the long lapse of time such as would constitute gross laches, 
 the court would decline to recognize the existence of a 
 resulting trust, even at the instance of a defrauded benefi- 
 ciary. One must not slumber on his rights but act promptly 
 on the discovery of wrong-doing."" As to the time when a 
 resulting trust springs into being it may be said that when 
 the papers or muniments of title of the property impressed 
 with the trust pass to the new grantee, the trust results at 
 the very inception of the title."" A father purchasing with 
 funds belonging to his children, and taking a deed in his own 
 name, will find himself the trustee of a resulting trust, and 
 be held in that capacity."" 
 
 ' f. Constructive trusts. This particular species of trust 
 estate is invariably grounded on fraud. Hence the equity 
 jurisdiction has always held that parol evidence was admis- 
 sible to establish such a trust. The fraud may be either 
 actual or presumed. Beach, in his recent elaborate work 
 on Equity Jurisprudence, says: "Rightly understood, a con- 
 structive trust is only a mode by which courts of equity work 
 out equity, and prevent or circumvent fraud and overreach- 
 ing. """ 
 
 "'■' Osborne v. Endicott, 6 Cal. 149; erts v. Ware, 40 Cal. 634 ; Reming- 
 
 Williams v. Hollingsworth, i ton v. Campbell, 60 111. 516; Gee v. 
 
 Strobh. Eq. 103; Irwing v. Ivers, 7 Gee, 32 Miss. 190. 
 
 Ind. 308. I '" Musham v. Musham, 87 111. 80; 
 
 ""Dow V. Jewel, 18 N. H. 340; Robinson v. Robinson, 22 la. 427 ; 
 
 Harris y. Mclntire, 118 111. 275. Overseers v. Bank, 2 Gratt. 544; 
 
 *«9 Brown v. Guthrie, 27 Tex. 610; Hunter v. Yarborough, 92 N.C. 68; 
 
 Midmer v. Midmer, 26 N. J. Eq. 299; Portland & H. H. S. Co. v. Locke, 
 
 King V. Pardee, 96 U. S. 90. 73 Me. 370 Allen v. Russell, 78 Ken. 
 
 ™Holliday v. Shoop, 4 Md. 59; 105. 
 
 Dudley v. Bosworth, 10 Humph. 9 ; =■' Beach, Eq. Jur., sec. 226 ; citing 
 
 Pinnock v. Clough, 16 Vt. 500; Perry v. Jackson, 85 Ala. 67. 
 Lehman v. Lewis, 62 Ala. 129; Rob- 
 
6o6 REAL PROPERTY. 
 
 A constructive trust is one which the court creates by a 
 legal construction put upon certain acts of the parties, even 
 in cases where the parties themselves had no intention of 
 creating a trust. It frequently arises from some actual or 
 constructive fraud, in which case it is known as a trust ex 
 maleficio.'"'^' 
 
 Constructive trusts are largely the creation of equity. 
 They are frequently imposed upon a party without his con- 
 sent and sometimes without his knowledge, and in many 
 instances their creation is inspired by the fraudulent acts of 
 the trustee.'" Trustees, by operation of law, are such as are 
 not declared by a party at all either directly or indirectly, 
 but result from the effect of a rule of equity, and are either 
 resulting trusts — as where an estate is devised to A. and his 
 heirs upon trust to sell and pay the testator's debts, in which 
 case the surplus of the beneficial interest is a resulting trust 
 in favor of the testator's heirs ^ or of constructive trusts, 
 which the court elicits by a construction put upon certain 
 acts of parties."" As regards their creation, trusts are either 
 express, resulting or constructive."" The first cannot be 
 created by parol — only by instrument in writing,"' while 
 the distinguishing characteristic of a resulting trust is the 
 active presence of the presumption that the beneficial owner- 
 ship of the estate resides with the party who furnished the 
 money for its purchase."" 
 
 g. Voluntary trusts. A voluntary trust is an obligation 
 springing from the personal confidence reposed in the donee, 
 and voluntarily accepted by him as an obligation of friend- 
 ship or duty or interest. Frequently a mixture of all these 
 considerations operates to fasten the acceptance. An invol- 
 untary trust, like an implied trust, arises by operation of law 
 whenever the facts in the case warrant its assertion. 
 
 § 222. Charitable trusts. Under the common law the stat- 
 ute of Elizabeth was largely relied upon in determining the 
 extent and nature of a charitable devise, but to guard against 
 
 "' Perry on Trust, 527 ; Bisph. '"* i Lewin, Trusts. 108. 
 
 Eq., sec. 91; i Pom. Eq. Jur., sec. ""Bisph. Eq., sees. 78-79. 
 
 155 ; 2 Id., sec. 1044. '" Adams v. Adams, 79 111. 517. 
 
 '" I Perry on Trusts, 16. '" Story, Eq. Jur., sec. 1201. 
 
USES AND TRUSTS. 607 
 
 improvident alienation of property, the celebrated Statutes 
 of Mortmain and Charities, enacted in the time of George the 
 Second, were devised as a means of restricting such inequit- 
 able transfers. Neither of these famous statutes has been 
 adopted in this country, in cxtcnso, although certain features 
 from both have from time to time appeared in our varient 
 legislation.'" And it may be confidently affirmed that the 
 test of a legal public charity is "the object sought to be 
 attained." A charitable use may be well defined as "a gift 
 to a general public use, which extends to the poor as well as 
 to the rich.""" It may be, and frequently is, vested in a 
 municipal corporation, empowered by its charter to so act, 
 and in such case the municipality may be compelled to exe- 
 cute the trust."' A public or charitable trust may be indefi- 
 nite in duration, and the beneficiaries under it may be 
 selected by trustees, but if too remote in its contingency it is 
 invalid,"' and it has been held that it is essential to a chari- 
 table devise that the beneficiaries should to some extent be 
 indefinite."" 
 
 a. The Statute of 4.J Elizabeth. The plain object of the Act 
 of 43 Eliz. is to place in commission a troublesome branch of 
 the royal prerogative, and to vest the commissioners with 
 power to institute inquests of office, or by other means to 
 discover charities, or the abuse or misapplication of charities, 
 and to authorize the board to exercise the same reach of dis- 
 cretion over such charities as the crown possessed, subject, 
 however, to a revising and controlling power in the lord 
 chancellor ; not a mere judicial power, but a ministerial legis- 
 lation and absolute power ; a power, however, secondary or 
 appellative in its nature, not original. This controlling 
 power being absolute and final, soon swallowed up its par- 
 ent, and became original and absolute. One judge admitted 
 the precedent of an original bill in a charity case, a second 
 judge satisfied his scruples upon that precedent, and other 
 judges following regarded it as a settled practice. But in 
 whatever way the power is exercised, whether as original 
 
 "' See Attorney-General v. Stew- ^'* Kent v. Dunham, 142 Mass. 
 
 art, 2 Meriv. 143. 216. 
 
 •"^ Perin v. Gary, 65 U. S. 506. ''^ Fontaine v. Ravenel, 58 U. S. 
 
 "' Peynado v. Peynado, 82 Ky. 5. 369. 
 
6o8 REAL PROPERTY. 
 
 or appellate, no other authority for its exercise has ever been 
 claimed by the chancellor but the 43d Elizabeth."" 
 
 The provisions of this once celebrated statute are not gene- 
 rally recognized in this country, although the courts of 
 Ohio, Connecticut and Pennsylvania, Maine and New Jersey 
 are some-what committed to a recognition of its main objects."' 
 It has been expressly abolished in New York ;"" in Michi- 
 gan;'" in North Carolina,"" and in Virginia."" Alabama, 
 Georgia, Indiana, Maryland and Wisconsin are also included 
 in this list."" 
 
 b. What is a charitable trust? It is well settled that any 
 purpose is charitable in the legal sense of the word, which is 
 within the principle and reason of this statute, although not 
 expressly named in it; and many objects have been upheld 
 as charities, which the statute neither mentions nor dis- 
 tinctly refers to. Thus, a gift "to the poor" generally, or 
 to the poor of a particular town, parish, age, sex, race or 
 condition, or to poor emigrants, though not falling within 
 any of the descriptions of poor in this statute, is a good 
 charitable gift."" So, gifts for the promotion of science, 
 learning and useful knowledge, though by different means 
 and by different ways from those enumerated under the 
 second class ; and gifts for bringing water into a town, for 
 building a town-house, or otherwise improving a town or 
 city, though not alluded to in the third class, have been held 
 to be charitable."'" By modern decisions in England, gifts 
 
 '" Inglis V. The Trustees of The ''^ WiUiams v. Pierson, 38 Ala. 
 
 Sailors' Snug Harbor, 3 Pet. 617. 299; Adams v. Bass, 18 Ga. 130; 
 
 '"See Brewster v. McCall, 15 State v. Warren, 28 Md. 353 ; Heiss 
 Conn. 274; Howard v. American v. Murphey, 40 Wis. 292; Grimes 
 Peace Society, 49 Me. 288 ; Hes- v. Harmon, 35 Ind. 198. 
 keth V. Murphy, 35 N. J. Eq. 29; "' Saltonstall v. Sanders, 1 1 Allen, 
 Fire Ins. Patrol v. Boyd, 120 Pa. 455-461, and cases cited; Magill 
 St. 417; Miller v. Teachout, 24 v. Brown, Brightly, 405, 496; Bar- 
 Ohio St. 533. clay, V. Maskelyne, 4 Jur. (N. S.) 
 
 ""Cottman v. Grace, 112 N. Y. 1294 ; Chambers v. St. Louis, 29 
 
 299. Mo. 543. 
 
 "' Newark M. E. Ch. v. Clark, 41 ^^' American Academy v. Harvard 
 
 Mich. 741. College, 12 Gray, 594; Drury v. 
 
 "'State v. Gerard, 2 Ired. Eq. 210. Natick, 10 Allen, 177-182, and au- 
 
 "» Gallego v. Attorney-General, thorities cited. 
 3 Leigh, 450. 
 
USES AND TRUSTS. 609 
 
 towards payment of the national debt, or "to the Queen's 
 chancellor of the exchequer for the time being, to be applied 
 for the benefit and advantage of Great Britain," are legal 
 charities."' 
 
 In Gould V. Washington Hospital for Foundlings, 95 U. S. 
 311 ; 24 L. ed. 450, Mr. Justice Swayne said: "A charitable 
 trust, when neither law nor public policy forbids, may be 
 applied to almost anything that tends to promote the well- 
 doing or well-being of social man." 
 
 A more concise and practical definition is probably: "A 
 gift to a general public use, which extends' to the rich as 
 well as to the poor.""* 
 
 Mr. Justice Gray, in the case of Jackson v. Phillips, 14 
 Allen, 556, has given a definition which seems to include all 
 the facts and circumstances and all varieties of charity, 
 under the law, and leaves nothing to be added. In his words ' ' a 
 'charity' in the legal sense, may be more fully defined as a gift 
 to be applied consistently with existing laws, for the benefit 
 of an indefinite number of persons, either by bringing their 
 minds or hearts under the influence of education or religion, 
 or by relieving their bodies from disease, suffering or con- 
 straint, or by assisting them to establish themselves in life, 
 or by erecting or maintaining public buildings or works, or 
 otherwise lessening the burden of government. It is imma- 
 terial whether the purpose is called "charitable' in the gift 
 itself, if it is so described as to show that it is charitable in 
 its nature. ' ' Trusts for the support of public worship and 
 religious instruction have always been held charitable. In 
 Perry on Trusts, sec. 701, referring to the fact that the Eng- 
 lish statute (43 Eliz.), makes no reference to religious use, 
 except the "repair of churches," it is said: "But in a Chris- 
 tian community of whatever variety of faith or form of wor- 
 ship there would be little need of a statute to declare gifts 
 for religious uses to be charitable. Therefore, both before 
 and since the statute, gifts for the advancement, spread and 
 teaching of Christianity, or for the convenience or support of 
 
 "3 Tudor on Charitable Trust (2d Mitford v. Reynolds, i Phil. Ch. L. 
 
 ed.), 14, 15, and cases cited. 91; Perin v. Carey, 65 U. S., 24 
 
 '"Coggeshall v. Pelton, 7 Johns. How. 506, 16 L. ed. 701. 
 Ch. 294, 2 N. Y. Ch. L. ed. 297; 
 
 39 
 
6lO REAL PROPERTY. 
 
 worship, or of the ministry, have been held charitable." 
 Mr. Pomeroy says: "The support and propagation of reli- 
 gion is clearly a ' charitable use. ' This includes gifts for the 
 erection, maintenance and repair of church edifices, the 
 maintenance of worship, the support of clergymen, the pro- 
 motion and promulgation of religious doctrines and beliefs, 
 in any manner, by the church or by associations, the aid of 
 missionary, Bible and other religious societies, and all other 
 objects and purposes which are really religious.'"" Adopt- 
 ing the language of Lewis, Ch. J., in the case of Price v. 
 Maxwell, supra : "A charitable use is not always a religious 
 one, but we know of no religious use which could be 
 regarded at all free from superstition that is not included in 
 the definition of a "charitable use.' " Gifts for the erection 
 of a house for public worship, or for the use of the ministry, 
 constitute a public charity, when it appears to be some 
 benefit to be conferred upon or duty to be performed 
 towards, either the public at large or some part thereof, or 
 an indefinite class of persons."' 
 
 c. Said to be favored in law. By the law of many States, as 
 by the law of England, gifts to charitable uses are highly 
 
 !S5 2 Pom. Eq. Jur., sec. 102 1. Trusts for the building and re- 
 "' Potter V. Thornton, 7 R. I. pairs of churches, chapels, etc., are 
 252 ; Johnson v. Mayne, 4 Iowa, sustained as good charitable trusts. 
 180 ; 2 Perry, Trusts, sec. 701 ; Beck- (Brodie v. Chandos, i Bro. Ch. 444, 
 with V. Rector of St. Philops' Par- notes ; Sewell v. Crewe- Read, L. R. 
 ish, 69 Ga. 564. 3 Eq. Cas. 60 ; Cresswell v. Cress- 
 Gifts for the benefit of a religious well, L. R. 6 Eq. Cas. 69. See Tys- 
 denomination are held valid as sen, Charitable Bequests, chap. 8 ; 
 charitable trusts. (Sowers v. Cyre- Pell v. Mercer, 14 R. I. 415; Cory 
 nius, 39 Ohio St. 29, 40 Am. Rep. Universalist Soc. Trustees at Sparta 
 418 ; De Camp v. Dobbins, 29 N. J. v. Beatty, 28 N. J. Eq. 570.) 
 Eq. 36; First Univ. Soc. in North Or to maintain a preaching min- 
 Adams v. Fitch, 8 Gray, 421 ; Atty.- ister. (Pember v. Kingston, Tot- 
 Gen. V. Dublin, 38 N. H. 459; hill, 34 ; Atty.-Gen. v. Cook, 2 Ves. 
 Atty.-Gen. v. Jolly, 2 Strobh. Eq. Sr. 273 ; Tyssen, Charitable Be- 
 379; Jones v. Habersham, 107 U. S. quests, p. 135; Williams v. Williams, 
 174, 27 L. ed. 401 ; Quinn v. Shields, 8 N. Y. 525 ; Wellbeloved v. Jones, 
 62 Iowa, 129, 49 Am. Rep. 141 ; i Sim. & Stu. 40; Preachers' Aid 
 Dexter v. Gardner, 7 Allen, 243; Soc. v. Rich, 45 Me. 559.) There 
 Earle v. Wood, 8 Cush. 430 ; Magill are many others, but these cases 
 V. Brown, Brightly [Pa.] 347.) suffice to illustrate the doctrine. 
 
USES AND TRUSTS. 6ll 
 
 favored, and will be most liberally construed in order to 
 accomplish the intent and purpose of the donor ; and trusts 
 which cannot be upheld in ordinary cases, for various rea- 
 sons, will be established and carried into effect when created 
 to support a gift to a charitable use. The most important 
 distinction between charities and other trusts is in the time 
 of duration allowed and the degree of definiteness required. 
 The law does not allow property to be made inalienable, by 
 means of a private trust, beyond the period prescribed by 
 the rule against perpetuities, being a life or lives in being 
 and twenty-one years afterwards; and if the persons to be 
 benefited are uncertain and cannot be ascertained within 
 that period, the gift will be adjudged void, and a resulting 
 trust declared for the heirs at law or distributees. But a 
 public or charitable trust may be perpetual in its duration, 
 and may leave the mode of application and the selection of 
 particular objects to the discretion of the trustees."' 
 
 It is said that gifts to public charity are highly favored by 
 the law, and courts will uphold them if it can possibly be 
 done. ' ' This is a charity which a court of equity is bound 
 to uphold if practicable," said Judge Foster, in White v. 
 Howard, 38 Conn. 366. "Charities are highly favored in law, 
 and they have always recevied a more liberal construction 
 than the law allows to gifts to individuals."^'" "Courts look 
 with favor upon charitable gifts, and take especial care to 
 enforce them and guard them from assault, and protect them 
 from abuse. ' ''"' ' ' Gifts to charitable uses are highly favored 
 in law, and will be most liberally construed in order to accom- 
 plish the intent of the donor ; and a trust, which cannot be 
 supported in ordinary cases, will be established and carried 
 into effect where it is to support a charitable use."'" If it is 
 once determined that the donor intends to create a public 
 charity, very different rules from those which are applied in 
 establishing private trusts will be applied, in order to effect 
 the intent of the testator and establish the charity."' 
 
 "'Sanderson v. White, 18 Pick. '"1 Story's Eq. Jur., sec. 1165. 
 333 ; Odell V. Odell, 10 Allen, 5, 6, '^s pgrry on Trusts, 630. 
 
 and authorities cited; Saltonstall '■"'Sanderson v. White, 18 Pick., 
 
 v. Sanders, 11 Allen, 446; Lewin on 333. 
 Trusts, c. 2. ^*^ Perry on Trusts, 629. 
 
6l2 REAL PROPERTY. 
 
 d. Distinction between charitable and private trusts. The 
 requisites of a valid private trust, and those of a charitable 
 use are materially different. In the former there must not 
 only be a certain trustee who holds the legal title, but a cer- 
 tain specified cestui que trust, clearly identified, or made capa- 
 ble of identification, by the terms of the instrument creating 
 the trust ; while it is an essential feature of the latter that 
 the beneficiaries are uncertain, a class of persons described 
 in some general language, often fluctuating, changing in their 
 individual members and partaking of a quasi public character. 
 Indeed, it is said a public charity begins where uncertainty 
 in the recipient begins."' 
 
 When the object and the purposes for which a trust is 
 intended to be created are determined to be charitable, 
 very different rules from those that are applied in adminis- 
 tering and establishing private trusts will be applied in order 
 to give effect to the intention of the donor, — establish the 
 charity. In a private trust if the cestuis qui trustent are so 
 uncertain or are so incapable of taking, that they cannot be 
 identified, or cannot, by legal or equitable proceedings, claim 
 the benefit conferred upon them, the gift will fail, and revert 
 to the donor, or his heirs; but, if a gift is made for a chari- 
 table purpose, it is immaterial that the cestuis que trustent are 
 indefinite or uncertain, or that the trustee is uncertain or 
 incapable of taking. Courts of equity look with favor upon 
 all such trusts and endeavor to carry them into effect, if it 
 can be done consistently with the rules of law. With regard 
 to the origin and extent of the equitable jurisdiction over 
 charitable trusts in this country, there is the utmost conflict 
 of judicial utterances in the earlier cases. The opinion 
 seems formerly to have prevailed that the peculiar equitable 
 jurisdiction over charities, except where a trust, valid by the 
 ordinary rules of law and equity, was created, was derived 
 solely from the Statute of 43 Eliz, chap. 4. It was so held 
 by the Supreme Court of the United State in the case of 
 Philadelphia Baptist Asso. v. Hart, 17 U. S. (4 Wheat.) i ; 4 L. 
 ed. 499 ; but in the case of Vidal v. Girard, 43 U. S. (2 How.), 
 
 '" 2 Pom. Eq. Jur., sec. 1018 ; 2 Perry Tr., sec. 687 ; Paley v. Umatilla 
 County, 15 Or. 172. 
 
USES AND TRUSTS. 613 
 
 127; II L, ed. 205, tlie court had occasion to re-examine the 
 question, and, after an able and exhaustive argument by 
 eminent counsel, in a learned opinion delivered by Justice 
 Story, practically overruled the case of Philadelphia Baptist 
 Asso. v. Hart, and held that courts of equity have jurisdiction 
 over charitable trusts as part of their ordinary jurisdiction 
 over trusts, and independently of the Statute of Elizabeth. 
 
 The doctrine of this case has generally been recognized as 
 the law wherever the system of charitable trusts has been 
 accepted at all."" It may then be stated, as a proposition 
 supported by the great weight of authority in this country, 
 that courts of equity, in the various States, when they are 
 not prohibited by the Statute, exercise an original inherent 
 jurisdiction over charitable trusts, and apply to them the 
 rules of equity, together with such other rules as may be 
 applicable under the laws of the several States, and this they 
 do by virtue of their inherent powers, without reference to 
 whether the Statute of Elizabeth has been adopted in their 
 State. Many definitions or attempted definitions, of a "legal 
 charity" are to be found in the books, only a few of which 
 will be given here. Mr. Binney, in his great argument in 
 the case of Vidal\. Girard, jM/ra, defined a "pious" or "chari- 
 table" gift to be "whatever is given for the love of God, or 
 for the love of your neighbor, in the catholic and universal 
 sense, given from these motives and to these ends, free from 
 the stain or taint of every consideration that is personal, pri- 
 vate or selfish."'" 
 
 2« 2 Pom. Eq. Jur., sec. 1028, and itself, in place of a trustee." (2 
 
 note; 2 Perry Tr. 694; Howe v. Pom. Eq. Jur., sees. 1025, 1026. See 
 
 Wilson, 91 Mo. 45. Brown v. Kelsey, 2 Cush. 243; 
 
 "*Mr. Pomeroy, in speaking of Washburn v. Sewall,' 9 Mete. 280. 
 the distinguishing features between In the celebrated Tilden Will 
 
 charitable and private trusts, says. Case, 130 N. Y. 29, the New York 
 
 that in the case of the former, " not Court of Appeals held that the 
 
 only may the beneficiaries be un- charitable scheme attempted by the 
 
 certain, but that even when the will of the testator was void for in- 
 
 gift is made to no certain trustee, definiteness and uncertainty. A 
 
 so that the trust, if private, would certain designated beneficiary is 
 
 wholly fail, a court of equity will essential to the creation of the valid 
 
 carry the trust into effect, either by testamentary trust ; and a trust 
 
 appointing a trustee, or by acting, without a beneficiary who can 
 
6i4 
 
 REAL PROPERTY. 
 
 e. Judicial construction of charitable trusts. In the case of a 
 charitaole gift, above all others, it is often said the construc- 
 tion should be such as -will preserve rather than destroy the 
 
 claim the advantage of its provision 
 is void and this objection is not 
 obviated by vesting the trustees 
 with the optional or discretionary 
 power of creating a trust for the 
 purpose of calling into being a 
 beneficiary capable of receiving the 
 inheritance. " If there is a single 
 postulate of the common law estab- 
 lished by an unbroken line of deci- 
 sion, it is that a trust without a 
 certain beneficiary, who can claim 
 its enforcement, is void, whether 
 good or bad, wise or unwise." 
 (Nichols V. Allen, 13 Mass. 211, 212; 
 In re Jarman, L. R., 8 Ch. Div. 584, 
 587 ; Norris v. Thompson, 4 C. E. 
 Green, 507 ; C. E. Green, 498 ; James 
 V. Allen, 3 Mer. 17; Vessey v. Jan- 
 son, I Sim. & Stu. 69 ; Williams v. 
 Kershaw, 5 L. J. [N. S.] Ch. 84; 5 
 CI. & Fin. Ill ; Elhsv. Selby, i Myl. 
 & Cr. 286 ; Kendall v. Granger, 5 
 Beav. 300, 302 ; Thompson v. 
 Thompson, i Colby, 398 ; Chamber- 
 lain v. Stearns, in Mass. 267 ; Hol- 
 land V. Alcock, 108 N. Y. 323 ; 
 Morice v. Durham, 9 Ves. 399; Om- 
 many v. Butcher, T. & R. 260.) 
 
 In the language of Story: "When- 
 ever, therefore, the objects of the 
 supposed recommendatory trusts 
 are not certain or definite ; wherever 
 the property to which it is to attach 
 is not certain or definite ; wherever 
 a clear discretion or choice to act, 
 or not to act, is given; wherever 
 the prior dispositions of the prop- 
 erty im port absolute and uncontrol- 
 able ownership — in all such cases, 
 courts of equity will not create a 
 trust from words of this character." 
 (2 Story's Eq. Jur., sec. 1070.) The 
 
 rule, which we believe to be amply 
 supported by the authorities, is 
 thus laid down in Hill on Trustees, 
 119: "But any words by which it 
 is expressed, or from which it may 
 be implied, that the first taker has 
 the power of withdrawing any part 
 of the subject from the object of 
 the wish or request, or of applying it 
 to his own use, will prevent the 
 subject of the gift from being con- 
 sidered certain. " (See, also. Knight 
 V. Knight, 3 Beav. 173 ; Howard v. 
 Carusi, 109 U. S. 725 ; 2 Pom. Eq. 
 Jur., sees. 1014-1017 ; Williams v. 
 Worthington, 49 Md. 572.) 
 
 There is, in American courts, 
 much diversity of decision upon 
 the subject of charitable trusts- 
 In express private trusts, there is 
 not only a certain trustee who holds 
 the legal estate, but there is a cer- 
 tain specified cestui que trusty clearly 
 identified, or made capable of identi- 
 fication, by the terms of the instru- 
 ment creating the trust. It is an 
 essential feature of public or chari- 
 table trusts that the beneficiaries 
 are uncertain — a class of persons 
 described in some general language, 
 often fluctuating, changing in their 
 individual members, and partaking 
 of a quasi public character. (2 Pome- 
 roy's Eq. Jur., sec. 1018.) In some 
 of the States, the equitable system 
 of distinctively charitable trusts is 
 not recognized, and the courts ap- 
 ply only the rules applicable to 
 express private trusts. In other 
 States, the statute of Charitable 
 Uses (43 Elizabeth, chap. 4), has 
 been adopted or repealed, and 
 thereby decisions have been influ- 
 
USES AND TRUSTS. 615 
 
 gift."' in many of the cases the word "benevolent" has 
 been coupled with "charitable" or some equivalent word, or 
 has been mentioned in connection with such public institu- 
 tions as to show an intent to make it synonymous with chari- 
 table.'" In other cases, where a bequest for "benevolent" 
 purposes contained no qualifying or explanatory words, the 
 bequest has been held void for uncertainty.'" The deci- 
 sions go upon the ground that the testator intended the word 
 "benevolent" to be understood according to the technical 
 construction which had been put upon it by the courts. But 
 in many of the recent English cases a more reasonable con- 
 struction in regard to technical language has been adopted. 
 In Jenkins^. Hughes, 8 H. L. Cas. 571, the court said words 
 of a technical kind are not necessarily to receive a technical 
 meaning. In Young \^. Robertson, ^Macc^. H. L. Cas. 314, 325, 
 it was said the primary duty of a court, in the interpretation 
 of wills, is to give each word employed, if it can with pro- 
 priety receive it, the natural and ordinary meaning which it 
 has in the vocabulary of ordinary life, and not to give words 
 employed in that vocabulary an artificial, secondary, or tech- 
 nical meaning. In Hall v. Warren, 9 H. L. Cas. 420, it is 
 laid down that, in construing the autograph of an illiterate 
 man, the meaning of technical language may be disregarded ; 
 
 €nced. And, in other cases, local '^* Saltonstall v. Sanders, 11 Allen 
 
 legislation, or supposed local policy, (Mass.), 446 ; Roch v. Emerson, 105 
 
 lo more or less extent, enters into Mass. 431 ; Hill v. Burns, 2 Wils. & 
 
 adjudications. In another, and, as Sh. 80 ; Crichton v. Grieson, 3 
 
 believed, the larger portion of the Bligh's N. R. 524; S. c. 3 Wils. & Sh_ 
 
 States, the system of charitable 329; Ewen v. Bannerman, 2 Dow. 
 
 trusts, as administered in the Eng- & C. 74; S. C. 4 Wils. & Sh. 346; 
 
 lish Court of Chancery, in the exer- Miller v. Rowan, 5 CI. & F. 99; s. c. 
 
 cise of its ordinary judicial power, 2 Shaw & McL. 866 ; 2 Per. Tr., sec. 
 
 prevails, with variation in regard to 711 et seq.; i Jarm. on Wills, 2u- 
 
 the element of certainty in the 215. 
 
 trustee and the object of the charity. ''"James v, Allen, 3 Mer. 17; 
 
 A classification of the decisions in Morice v. Bishop of Durham, 9 Ves. 
 
 the several States will be found in 399; s. c. 10 Ves. 522; Attorney- 
 
 2 Perry on Trusts, sec. 748, in note, General v. Haberdashers' Co. i 
 
 and 2 Pomeroy's Eq. Jur., sec. 1029. Myl. & K. 420; Nash v. Morley, 5 
 
 "' Saltonstall v. Sanders, 11 Al- Beav. 177; Chamberlain v. Stearns, 
 
 len, 446, 455 ; Whicker v. Hume, 7 in Mass. 267. 
 H. L. Cas. 154. 
 
6l6 REAL PROPERTY. 
 
 but no word which has a clear and definite operation can be 
 struck out. Judge Redfield, in commenting upon these 
 cases, says they ' ' evince a determination not to allow techni- 
 cal rules of construction to overbear and break down all the 
 better instincts and involuntary sentiments of common sense 
 and the common experience of mankind, even in the con- 
 struction of wills, and we hail the omen with no slight 
 gratification.'""' 
 
 When property is conveyed to a religious corporation to 
 promote the teaching of particular religious doctrines and 
 the funds are attempted to be diverted to different doctrines, 
 it is the duty of chancery to interfere."" 
 
 Equity will award the possession of the property to those 
 who are the true adherents to the doctrines, teachings and 
 faith of the church, and enjoin the seceders from the true 
 faith of the church from in any manner interfering with 
 them therein."" 
 
 f. Not forfeited by non-user. It has been so many times 
 decided by the Pennsylvania courts that a conveyance of 
 land to trustees for a charitable use does not create a condi- 
 tional estate, but only a trust for the charitable use, not 
 liable to be defeated by non-user or alienation, in the absence 
 of an express condition that a mere reference to some of the 
 authorities is sufficient."' 
 
 ^■"i Redf. Wills (Ed. 1864), 429, Grimes v. Harmon, 35 Ind. 198; 
 
 note; Perkins v. Mathes, 49 N. H. State v. Farris, 45 Mo. 183; Kisor's 
 
 107, no; Trustees v. Peaslee, 15 App., 62 Pa. 428; Henderson v. 
 
 N. H. 319; Tilton v. Tilton, 32 N. Hunter, 59 Pa. 335; Feizel v. First 
 
 H. 263 ; Goodhue v. Clark, 37 N. German Soc. of M. E. Church, 9 
 
 H. 525 ; Mathes v. Smart, 51 N. H. Kan. 592 ; McKinney v. Griggs, 5 
 
 438, 440; I Redf. Wills, 426, 442; Bush. 401. 
 
 Stokes V. Solomones, 9 Hare, 75 ; "' Wright v. Linn, 9 Pa. 433 ; Mc- 
 
 Hart V. Tulk, 2 DeG., M. & G. 311; Kissick v. Pickle, 16 Id. 140; 
 
 Rice, Probate Law, 539. Griffith v. Cope, 17 Id. 96; Pickle 
 
 "'Miller v. Gable, 2 Den. 492; v. McKissick, 21 Id. 232; Barr v. 
 
 Roshi's App., 69 Pa. 462, 8 Am. Rep. Weld, 24 Id. 84 ; Brendle v. Jack- 
 
 275 ; Rottmann v. Bartling, 22 Neb. son Twp. German Ref. Cong., 33 
 
 375. Id. 415. Columbia First M. E. 
 
 ™ Roshi's App. and Rottmann V. Church v. Old Columbia Public 
 
 Bartling, supra; Kniskern v. Luthe- Ground Co. 103 Id. 608 ; Wilkes 
 
 ran Churches of St. John and St. Barre v. Wyoming Historical & G. 
 
 Peter, i Sandf. Ch. 439, 7 L. ed. 388; Soc. 134 lb. 616. 
 
USES AND TRUSTS. 617 
 
 In the case of McKissick v. Pickle, it was said : ' ' The grant 
 being for a charity could not be forfeited for non-user nor 
 for misuser, except under an express condition or con- 
 tract, and although in the latter case it may, yet it must be 
 clearly, expressly and strictly shown that the condition was 
 broken. ' ' 
 
 g. Rules as to religious associations. Upon authority so gen- 
 eral as to be beyond -question it is held that property given 
 or set apart to a church or religious association, for its use 
 in the enjoyment and promulgation of its adopted faith and 
 teachings, is by said church or association held in trust for 
 that purpose, and any member of the church or association, 
 less than the whole, may not divest it therefrom. The fol- 
 lowing cases more or less directly sustain the rule, and are 
 but a few of the many bearing on the question."" 
 
 In App. V. Lutheran Congregation, 6 Pa. 201, it is said: "It is 
 the duty of the court to decide in favor of those whether a 
 minority or majority of the congregation, who are adhering 
 to the doctrine professed by the congregation, and the form 
 of worship in practice, as also in favor of the government of 
 the church in operation, with which it was connected at the 
 time the trust was declared. ' '"'' In deciding who is entitled to 
 control the church proper where there is such a division, 
 we must look to the situation when the dispute began. In 
 Roshi's Appeal, citing the above authorities, it is said: "The 
 title to the church property of a divided congregation is in 
 that part of it which is acting in harmony with its own law, 
 and the ecclesiastical laws, usages, and principles which 
 
 '"Kniskern V.Lutheran Churches 627, 4 L. ed. 1118,2 Denio(N.Y.), 492 ; 
 
 of St. John and St. Peter, i Sandf. Cincinnati M. E. Church v. Wood, 5 
 
 Ch. 439, 7 L. ed. 388; Atty.-Gen. v. Ohio, 284; Happy v. Morton, 33 111. 
 
 Pearson, 3 Meriv. 353 ; Baker v. 398 ; Lawson v. Kolbenson, 61 II!. 
 
 Fales, 16 Mass. 487; Stebbins v. Jen- 407; Dublin Case, 38 N. H. 459; 
 
 nings, lo Pick (Mass.) 172 ; Hale v. Watson v. Jones, 80 U. S., 13 Wall. 
 
 Everett, 53 N. H. 9 ; Lawyet v. Cip- 679, 20 L. ed.666 ; Fadness v. Braun- 
 
 perly, 7 Paige (N. Y.), 281, 4 L. ed. berg, 73 Wis. 257 ; First Constitu- 
 
 1 56 ; Hartford First Bapt. Church v. tional Presby. Church v. Congrega- 
 
 Witherell 3 Paige (N. Y.), 296, 3 L. ed. tional Soc, 23 Iowa, 567. 
 
 159; Harrison v. Hoyle, 24 Ohio St. ™ See also McGinnis v. Watson, 
 
 254; Field v. Field, 9 Wend. (N. Y.) 41 Pa. 9; Sutter v. First Dutch Re- 
 
 401 ; Gable v. Miller, 10 Paige (N.Y.), formed Church, 42 Id. 503. 
 
6l8 REAL PROPERTY. 
 
 were accepted among them before the dispute began are the 
 standard for determining which party is right." 
 
 If, perchance, a bare majority of some Baptist church 
 should determine on scriptural authority, their right to a 
 plurality of wives, and, against the protests of a minority, 
 devote the property of the church to the advocacy and prac- 
 tice of such a doctrine, under the claim that the church 
 ' ' owes no allegiance to any man or body of men, ' ' civil or 
 ecclesiastical, except a majority of its members, the only 
 redress of the minority would be to retire from the church, 
 and leave the property to the majority for such a purpose. 
 Such a surrender of civil rights is without support on any 
 principle of natural justice, and we believe without the sanc- 
 tion of any judicial tribunal. It is said in Schnorr's Appeal, 
 in a very similar connection that "the guaranty of religious 
 freedom has nothing to do with the property. It does not 
 guaranty freedom to steal churches." 
 
 h. When charitable gifts will not be upheld. Gifts for pur- 
 poses prohibited by or opposed to the existing laws cannot be 
 upheld as charitable, even if for objects which would other- 
 wise be deemed such. The bounty must, in the words of Sir 
 Francis More, be "according to the laws, not against the 
 law, ' ' and ' ' not given to do some act against the law. ' '"" So 
 Mr. Dane defines, as undoubted charities, ' ' such as are calcu- 
 lated to relieve the poor, and to promote such education and 
 emplo5''ment as the laws of the land recognize as useful. ' '"' 
 Upon this principle, the English courts have refused to sus- 
 tain gifts for printing and publishing a book inculcating the 
 absolute and inalienable supremacy of the pope in ecclesias- 
 tical matters; or for the support of the Roman Catholic 
 or the Jewish religion, before such gifts were countenanced 
 by act of Parliament."' And a bequest "towards the political 
 restoration of the Jews to Jerusalem and to their own land," 
 has been held void, as tending to create a political revolution 
 in a friendly country."' In a free republic, it is the right of 
 every citizen to strive in a peaceable manner by vote, speech 
 
 "■•Duke, 126, 169. neval, 5 Russ. 288; Tudor, 21-25, 
 
 "" 4 Dane Ab. 237. and cases cited. 
 
 "« De Themmines v. De Bon- '" Habershon v. Vardon, 4 De 
 
 Gex & Sm. 467. 
 
USES AND TRUSTS. 619 
 
 or writing, to cause the laws, or even tiie constitution, under 
 which he lives, to be reformed or altered by the Legislature 
 or the people. But it is the duty of the judicial department 
 to expound and administer the laws as they exist. And 
 trusts, whose express purpose is to bring about changes in 
 the laws or the political institutions of the country, are not 
 charitable in such a sense as to be entitled to peculiar favor, 
 protection and perpetuation from the ministers of those laws 
 which they are designed to modify or subvert. 
 
 A precise and complete definition of a legal charity is hardly 
 to be found in the books. The one most commonly used in 
 modern cases, originating in the judgment of Sir William 
 Grant, confirmed by that of Lord Eldon, in Morice v. Bishop 
 of Durham, 9 Ves. 405, and 10 Ves. 541, that those purposes 
 are considered charitable which are enumerated in the Stat- 
 ute of 43 Eliz. or which by analogies are deemed within its 
 spirit or intendment — leaves something to be desired in 
 point of certainty, and suggests no principle. Mr. Binney, 
 in his great argument in the Girard Will Case, 41, defined a 
 charitable or pious gift to be " whatever is given for the love 
 of God, or for the love of your neighbor, in the catholic and 
 universal sense — given from these motives, and to these 
 ends — free from the stain or taint of every consideration that 
 is personal, private or selfish. ' ' And this definition has been 
 approved by the Supreme Court of Pennsylvania."' A more 
 concise and practical rule is that of Lord Camden, adopted 
 by Chancellor Kent, by Lord Lyndhurst, and by the Supreme 
 Court of the United States: "A gift to a general public use, 
 which extends to the poor as well as to the rich.'"" A 
 charity, in the legal sense, may be more fully defined as a 
 gift, to be applied consistently with existing laws, for the 
 benefit of an indefinite number of persons, either by bring- 
 ing their minds or hearts under the influence of education or 
 religion, by relieving their bodies from disease, suffering or 
 constraint, by assisting them to establish themselves in life, 
 or by erecting or maintaining public buildings or works or 
 
 "* Price V. Maxwell, 28 Penn. (N. Y.) 294 ; Mitford v. Reynolds, i 
 
 State R. 35. Phil. Ch. 191, 192 ; Perin v. Carey, 
 
 "' Jones V. Williams, Ambl. 652 ; 24 How. 506. 
 Coggeshall v. Pelton, 7 Johns. Ch. 
 
620 REAL PROPERTY. 
 
 otherwise lessening the burdens of government. It is im- 
 material whether the purpose is called charitable in the gift 
 itself, if it is so described as to show that it is charitable in 
 its nature. 
 
 i. Doctrine of charitable uses rejected in certain States. While 
 it has been said that charitable trusts are favored in equity, 
 and while it would seem that such trusts would appeal with 
 peculiar force to the indulgence of any court, it still is 
 true that the doctrine is entirely repudiated in several 
 States. New York seems foremost in this repudiation, and 
 the celebrated case of Holland v. Alcock, io8 N. Y. 312, col- 
 lates and classifies many of the preceding decisions on the 
 subject."" In the case last cited both Marshall and Story 
 were of the opinion that the power of the English Court of 
 Chancery, in relation to charities, was derived from the Stat- 
 ute of 43d Elizabeth. This doctrine was denied by Chancel- 
 lor Walworth, of New York, in Potter v. Chapin, 6 Paige, 649, 
 and the Supreme Court of the United States subsequently 
 adopted his view in Vidal v. Girard, 2 How. 196. As a 
 result, it now appears, that the English Court of Chancery 
 received its jurisdiction over charities from the common law, 
 and not from the statute referred to. 
 
 In Illinois the Statute of Elizabeth is said to be in force, 
 and courts will carry out the intention of the donor in estab- 
 lishing a charity. They disclaim the power to change the 
 object, cypres, and decide that a charity must be accepted as 
 given. AU'of which is undoubted law ; but from the princi- 
 ples of interpretation laid down there is no reason why they 
 should not carry out the intention of the donor cy pres, if 
 there fail to be any objects of his charity, as originally 
 given and administered. And this doctrine has been applied 
 to a certain extent."' 
 
 It would be quite inappropriate to now repeat the history 
 of the contest in New York upon the question whether the 
 English doctrine of charitable uses ever prevailed here. A 
 general review of that contest was made by the late Judge 
 
 '"" See also Wilderman v. Baiti- live case); Baptist Asso. v. Hart, 4 
 
 more, 8Md. 551 ; Pringle v. Dorsey, Wheat, i. 
 
 3 S. C. 502; Beekman v. Bonsor, "' Gilman v. Hamilton, 16 111. 225; 
 
 23 N. Y. 298 (a peculiarly instruc- Heuser v. Harris, 42 111. 425. 
 
USES AND TRUSTS. 621 
 
 Rapallo, in the recent case of Holland v. Alcock, io8 N. Y. 312 ; 
 II Cent. Rep. 861, and his opinion leaves nothing to be 
 added on that subject. That case leaves the doctrine no 
 longer in doubt that to constitute a valid trust there must be 
 a defined beneficiary ; and the absence of such is, as a gene- 
 ral rule, fatal to the validity of a testamentary trust. 
 
 Referring to what was maintained in an early case that the 
 system was inherited as a branch of the common law, he 
 said : ' ' That particular postulate being finally overthrown 
 and the British statutes having been repealed at the very 
 origin of our State government, we should be a civilized 
 State without provisions for charity if we had not enacted 
 other laws for ourselves. But charity, as a great interest of 
 civilization and Christianity, has suffered no loss or diminu- 
 tion in the change which has been made. The law has been 
 simplified and that is all. Instead of the huge and complex 
 system of England, for many generations the fruitful source 
 of litigation, we have substituted a policy which offers the 
 widest field for enlightened benevolence. The proof of 
 this is in the great number of charitable institutions scat- 
 tered throughout the State. It is not certain that any politi- 
 cal State or society in the world offers a better system of law 
 for the encouragement of property limitations in favor of 
 religion and learning, for the relief of the poor, the care of 
 the insane, the sick and the maimed, and the relief of the 
 destitute, than our system of creating organized bodies by 
 the legislative power, and endowing them with the legal 
 capacity to hold property which a private person or a private 
 corporation has to receive and hold transfers of property. 
 Under this system many doubtful and obscure questions dis- 
 appear and give place to the more simple inquiry whether 
 the grantor or devisor of a fund designed for charity is com- 
 petent to give ; and whether the organized body is endowed 
 by law with capacity to receive and hold and administer the 
 gift." The doctrine of charitable uses does not prevail in 
 New York.=" 
 
 "' Holmes v. Mead, 52 N. Y. 232 ; v. Levy, 33 N. Y. 97; Bascom v. Al- 
 
 Yates V. Yates, 9 Barb. (N. Y.) 341 ; bertson, 34 N. Y. 584 ; Adams v. 
 
 Ayers v. Methodist Epis. Church Perry 43 N. Y. 487 ; Holland v. 
 
 Trustees, 3 Sandf. (N. Y.) 351 ; Levy Alcock, supra. 
 
622 REAL PROPERTY. 
 
 j. The doctrine of cy pres examined. It remains to examine 
 the question as to how far a court will execute a trust cy 
 pres. The leading case in this country is that of Jackson v. 
 Phillips, 14 Allen, 539, decided by the Massachusetts Supreme 
 Court of Judicature in 1 867. The opinion was by Chief Jus- 
 tice Gray, now of the Supreme Court of the United States, 
 and is one of the most polished and scholarly attempts of that 
 celebrated jurist. It would be utterly impossible at the pres- 
 ent day for any text writer to enter upon an intelligent dis- 
 cussion of this subject without a careful study of this oft- 
 quoted case, and a repeated reference to Judge Gray's opin- 
 ion. As it is quite impossible to improve upon his elaborate 
 diction I shall make extended extracts from his review, and 
 not attempt a criticism of the conclusions reached. Perhaps 
 it would be well to preface the discussion with the remark, 
 that in general the doctrine of cy pres is only applied in cases 
 of charitable trusts. It proceeds upon the theory that an 
 intention is evinced to devote a certain fund to public 
 charity — that for some supervening reason at the time the 
 fund becomes available for the use of the charity designated 
 it is found impossible to administer it — as where the corpo- 
 rate body, that represents the charity, has gone out of exist- 
 ence. Obviously the question then is what shall be done 
 with the fund. The doctrine of cy pres says : "let us apply 
 it to the next best thing, ' ' and accordingly it devotes it to 
 some analogous charity. It is evident that in such a case 
 there is great danger of foisting upon the testamentary 
 intent a scheme that was never contemplated by the testator. 
 And that the court is in effect making a will pro tanto for the 
 late lamented that entirely ignores the claim of his kindred. 
 It is said that the prejudice against the doctrine have been 
 notorious in England for centuries, and that there is no 
 reported case of controlling authority in this country which 
 sustains the doctrine. With us it is quite generally repudi- 
 ated, and has been apologized for and lamented over by sev- 
 eral English judges of high repute. Wherever it has been 
 administered and recognized, it has only been allowed to ope- 
 rate as to minor details — in cases where the substance of the 
 charity could be respected, and the deficiencies were sup- 
 plied only as to subordinate matters. 
 
USES AND TRUSTS. 623 
 
 In Jackson v. Phillips, supra, one of the trusts was for the 
 inflaming of public sentiment against the internal polity of 
 some of the American commonwealths, thereby to secure the 
 repeal of their laws in regard to the relations of master and 
 servant, and for harboring persons who, in violation of those 
 relations, abandoned the States wherein they existed. After 
 the death of the testator, but while litigation upon his will 
 was still in progress, the laws referred to were rendered 
 inoperative by an amendment to the Federal Constitution ; 
 and the immediate purpose for which the bequest was made 
 having failed, the fund was applied to the New England 
 Branch of the American Freedmen's Union Commission. 
 And it was ther^ laid down that where a gift is made to a 
 trustee for a charitable purpose, the general nature of which 
 is pointed out, and which is lawful and valid at the time of 
 the death of the testator, no intention being expressed to 
 limit it to a particular institution or mode of application ; and 
 afterwards if either by change of circumstances the scheme 
 of the testator becomes impracticable, or by change of law 
 becomes illegal, the fund having once vested in the charity 
 does not go to the heirs-at-law as a resulting trust, but is to 
 be applied by the Court of Chancery in the exercise of its 
 jurisdiction in equity, cypres, or as near the testator's par- 
 ticular directions as possible, thereby to carry out his general 
 charitable intent. Even when the trust is to be executed out 
 of the State, chancery may appoint a trustee within the 
 State to receive the bequest, or may order the fund or the 
 profits arising from it to be paid from time to time to a trus- 
 tee, in the place where the trust is to be executed. There 
 seems to be "no valid reason why the judicial cy pres doc- 
 trine, as explained in Jackson v. Phillips, should not be 
 approved in all those St^es wherein the Statute of Eliza- 
 beth has been decided to be in force, or where its principles 
 have been adopted by the law of the State ; in other words, 
 in those States where the doctrine that indefiniteness of the 
 object is no objection to a trust, provided it is for a charity, 
 is recognized. This is the case in many States of the 
 Union." And indeed it would seem that courts of equity 
 have derived from the English common law, independent of 
 the "Statute of Elizabeth, the authority to enforce charities 
 
624 REAL PROPERTY. 
 
 when trustees competent to take the legal title are named, 
 and the class to be benefited and the individuals to be desig- 
 nated by the trustees are ascertainable. Thus, it has been 
 held, that in the general devolution upon the courts of Cali- 
 fornia of all judicial power with respect to charities is 
 included the power of cy pres, so far as it may be employed 
 in directing the trustees under a will to carry into effect the 
 general, lawful, and charitable intent, when the particular 
 scheme is impracticable or has become unlawful. The 
 existence of a judicial power to administer a charity cy pres, 
 where the expressed intention of the founder cannot be 
 exactly carried out, has been either countenanced or left an 
 open question in all the New England States except Connec- 
 ticut. In New Jersey the doctrine is favorably regarded. 
 In Kentucky the Statute of Elizabeth is re-enacted. Grants 
 and devises for charitable and educational purposes are 
 declared valid, and the judicial doctrine of cy pres is fully 
 applied. In another class of States, the doctrine of charitable 
 trusts has never been adopted, or has been abolished, either 
 by statutory prohibition of all uses and trusts where the 
 trustee has no active service to perform, with a few specified 
 exceptions, or by the provisions of the law against perpetui- 
 ties, or by the general policy of the State legislation. And 
 in those States charitable trusts do not exist except where 
 they are merely the express private trusts permitted by the 
 law, or in those particular instances authorized by statute. 
 In this class are included New York, Wisconsin, Michigan, 
 Maryland, North Carolina, Virginia, West Virginia. In all 
 of these States a trust for charitable purposes would be 
 upheld provided it possessed all the elements of a valid ordi- 
 nary trust, a competent and certain trustee, certainty in the 
 beneficiaries, and compliance with the laws against perpetui- 
 ties. 
 
 The doctrine of cy pres as applicable to a court of equity 
 includes two general clauses : 
 
 1. Where a gift is made to trustees for a general public 
 charity, and the limitations of the trust are vague or imper- 
 fect. 
 
 2. When a charitable gift is made to trustees and the limi- 
 tations which were originally clear and precise, have become 
 
USES AND TRUSTS. 625 
 
 by lapse of time or other circumstances, impossible of strict 
 execution/" 
 
 It is not every charitable gift falling within the general 
 divisions above named which is enforced cy pres. 
 
 The exceptions are : 
 
 1. A gift with no general charitable intention to a speci 
 fie object of charity that fails. When there is no general, 
 but only a particular intention, the gift is at an end when 
 that fails.'" 
 
 2. A gift in trust to charity is not altered cy pres or the 
 trust changed because the original limitations are become 
 inexpedient ; even though a decided benefit would arise from 
 the alteration.'"' 
 
 3. A gift in trust to charity will not be altered cy pres be- 
 cause the duties imposed upon the beneficiaries are burden- 
 some."' 
 
 4. Or the gift may not be a good charitable trust ; as the 
 jurisdiction of the Court of Chancery is a part of its ordinary 
 trust jurisdiction existing before the Statute of Elizabeth, no 
 power to appoint cy pres can be exercised if the gift be a bad 
 trust through incomplete limitation, uncertainty, limitations 
 impossible of ascertainment by a court, or by reason of an 
 absence of tangible objects or otherwise. 
 
 5. But where a testator intends to benefit a society which 
 has ceased to exist before the death of testator, the legacy is 
 held to lapse, and no case arises to apply the case cy pres™ 
 
 '^^^- Tudor, Charitable Tr. 260. "^= Harvard College v. Society for 
 
 '"Atty.-Gen. v. Oxford, i Bro. Promoting Theological Education, 3 
 
 Ch. 444, note. Anonymous, 2 Gray (Mass.), 280; Atty.-Gen. v. 
 
 Freera. 261 ; Cherry v. Mott, i Myl. Hartley, 2 Jac. & W. 382; Atty.-Gen. 
 
 & C. 123; Atty.-Gen. v. Whitely, v. Mansfield, 2 Russ. 520. 
 
 II Ves. Jr. 251 ; Clark v. Taylor, i '*' American Academy of A. & S. 
 
 Drew, 642; Fisk v. Atty.-Gen. L. v. Harvard College, 12 Gray (Mass.), 
 
 R. 4 Eq. 521 ; Re Ovey, L. R. 29 595; Atty.-Gen. v. Andrews, 3 Ves. 
 
 Ch. Div. 560 ; Carter v. Balfour, Jr. 646 ; Atty.-Gen. v. Margaret & R. 
 
 19 Ala. 814; Russell v. Kellett, 3 Professors, i Vern. 55; Atty.-Gen. 
 
 Smale & G. 264; Sinnett v. Her- Piatt, Finch, 221; Atty.-Gen. v. 
 
 bert, L. R. 7 Ch. 232 ; Re White's Dean of Christ Church, Rep. Ch. 
 
 Trust, 55 L. J. Ch. N. S. 701 ; Lech- Jac. 474. 
 
 mere v. Curtler, 24 L. J. Ch. N. S. "' Marsh v. Means, 3 Jur. N. S. 
 
 *47- 790; Langford v. Gowland, 3 Giff. 
 40 
 
626 REAL PROPERTY. 
 
 It is accordingly well settled by decisions of the highest 
 authority, that when a gift is made to trustees for a chari- 
 table purpose, the general nature of which is pointed out, 
 and which is lawful and valid at the time of the death of the 
 testator, and no intention is expressed to limit it to a particu- 
 lar institution or mode of application, and afterwards, either 
 by change of circumstances the scheme of the testator be- 
 comes impracticable, or by change of law becomes illegal, 
 the fund, having once vested in the charity, does not go to 
 the heirs-at-law as a resulting trust, but is to be applied by 
 the Court of Chancery, in the exercise of its jurisdiction in 
 equity, as near the testator's particular directions as possible, 
 to carry out his general charitable intent. In all the cases of 
 charities which have been administered in the English Courts 
 of Chancery without the aid of the sign manual, the preroga- 
 tive of the king acting through the chancellor has not been 
 alluded to, except for the purpose of distinguishing it from 
 the power exercised by the court in its inherent equitable 
 jurisdiction with the assistance of its masters in chancery. 
 
 As before intimated. Judge Gray's opinion leaves nothing 
 whatever to be said upon that side of the subject. It is a 
 sixty-page essay of exceptional merit, and in one sense is a 
 mine of valuable information particularly as to the judicial 
 construction of the famous Statute of 43 Elizabeth, so fre- 
 quently referred to. I have already indicated the many 
 obligations I am under to this celebrated opinion, and shall 
 offer no further apology for the following extract : 
 
 " It is contended for the heirs-at-law, that the power of the 
 English chancellor, when a charitable trust cannot be admin- 
 istered according to its terms, to execute it so as to carry out 
 the donor's intention as nearly as possible — cy pres — is 
 dervied from the royal prerogative or the Statute of 43 Eliza- 
 beth, and is not an exercise of judicial authority; that, 
 whether this power is prerogative or judicial, it cannot, or, 
 if it can, should not, be exercised by this court ; and that the 
 doctrine of cy pres, even as administered in the English chan- 
 cery, would not sustain these charitable bequests since 
 slavery has been abolished. 
 
 617; Fisk V. Atty.-Gen. L. R. 4 Eq. 29 Ch. Div. 560; Clark v. Taylor, i 
 521 ; Broadbent v. Barrow, L. R. Drew. 642. 
 
USES AND TRUSTS. 627 
 
 Much confusion of ideas has arisen from the use of the 
 term cy pres in the books to describe two distinct powers exer- 
 cised by the English chancellor in charity cases, the one 
 under the sign manual of the crown, the other under the 
 general jurisdiction in equity ; as well as to designate the rule 
 of construction which has sometimes been applied to execu- 
 tory devises or powers of appointment to individuals, in 
 order to avoid the objection of remoteness. It was of this 
 last, and not of any doctrine peculiar to charities, that Lord 
 Kenyon said, 'The doctrine of cy pres goes to the utmost 
 verge of the law, and we must take care that it does not run 
 wild;' and Lord Eldon, 'It is not proper to go one step 
 farther.'"' 
 
 The principal, if not the only, cases in which the disposi- 
 tion of a charity is held to be in the crown by sign manual, 
 are of two classes: the first of bequests to particular uses 
 charitable in their nature, but illegal, as for a form of reli- 
 gion not tolerated by law ; and the second, of gifts of property 
 to charity generally, without any trust interposed, and in 
 which either no appointment is provided for, or the power of 
 appointment is delegated to persons who die without exer- 
 cising it." The whole doctrine has repeatedly been con- 
 demned.'-"" 
 
 In its origin and history, this jurisdiction was an exercise 
 of prerogative power, and not of judicial."" ^ The application 
 of the doctrine is unconstitutional in Massachusetts, where 
 the legislative and judicial departments are carefully sepa- 
 rated. Cy pres is fitted only for a government of men, and 
 not for a government of laws. 
 
 There is a strong presumption against this doctrine be- 
 cause its administration in England has been notorious for 
 
 •its Brudenell v. Elwes, i East. 451 ; 2 Ired. Eq. 261 ; Beekman v. Bonsor, 
 
 S. c. 7 Ves. 390, I Jarman on Wills, 23 N. Y. 298. 
 
 261-263; Sugden on Powers, ch. 9, ""Baptist Association v. Hart, 4 
 
 sec. 9; Coster V. Lorillard, 14 Wend. Wheat, i; Ayres v. Methodist 
 
 (N. Y.) 309, 348. Church, 3 Sandf. (N.Y.)35i; Andrew 
 
 ^"Brudenell v. Elwes, i East. 451; v. New York Bible, etc. Soc. 4 Id. 
 
 Mills V. Farmer, I Meriv. 94 ; Mogg- 156, 178; White v. Fisk, 22 Conn, 
 
 ridge v. Thackwell, 7 Ves. 87 ; Cary 31 ; Whitman v. Lex, 17 S. & R. 88 ; 
 
 V.Abbot, lb. 490; Fontain V. Rave- Dickson v. Montgomery, i Swan 
 
 nel, 17 How, 387 ; Holland v. Peck, (Tenn.), 348. 
 
628 REAL PROPERTY. 
 
 centuries ; and by the Supreme Court of the United States it 
 has been rejected, and it has been administered, as it is be- 
 lieved, in no reported case of authority by the courts of any 
 State. 
 
 For a century, its existence has been apologized for and 
 lamented by the English courts, and in most American courts 
 it is denied and repudiated. 
 
 The doctrine of cy pres is nothing more than the rule of 
 approximation or the carrying into effect the intent of the 
 testator as near as possible although the beneficiary may be 
 some other than the one named in the testamentary grant,"' 
 and if a literal execution of the testator's intent becomes inex- 
 pedient or impracticable, the court will attempt an approxi- 
 mation of the object."" The construction of a will cy pres is 
 not generally adopted on behalf of charities and many courts 
 regard the cy pres power with hostility.""' The Statute of 
 Elizabeth and the Mortmain Acts were repealed in New York 
 by legislation in 1788,"" and the courts of this State refuse to 
 enforce the execution of a charitable use if in order to effect 
 the intent of the testator resort must be had to the doctrine 
 of cy pres.'''"' The cy pres power is totally at variance with 
 the spirit of our institutions and should be denied all recog- 
 nition."" It has no standing in the practice of any court in 
 this country and if allowed to operate as a rule of disposition 
 the power resides in the State Legislature as representing 
 the power formerly residing in the king."' The favor 
 shown to charities should not be carried to the point of over- 
 riding the plainly expressed limits of a gift. 
 
 Sometimes it is said that if there is a gift to charity and 
 no specified object seems to have been in the contemplation 
 of the testator or the particular object ceases to exist or 
 fails, the court will execute the trust cy pres by applying the 
 
 "' Potter V. Chapin, 6 Paige (N. "■* Bascom v. Albertson, 34 N. Y. 
 
 Y.), 639. , 584. 
 
 "' See Rice's Probate Law, 541-3 ; "''Ayres v. Methodist Episcopal 
 
 Inglis V. Sailors' Snug Harbor, 28 Ch. 3 Sandf. (N. Y.) 351. 
 
 U. S. 99. "6 Fontain v. Ravenel, 58 U. S. 
 
 '"White V. Fiske, 22 Conn. 31; 384. 
 
 Lepage V. McNamara, 5 la. 124. '"Whitman v. Lex, 17 S. & R. 
 
 93 ; Bartlet v. King, 12 Mass. 545. 
 
USES AND TRUSTS. 629 
 
 fund to some other meritoriotis object, similar in its general 
 scope to the object sought to be benefited by the testator or 
 donor. But where the intent — and here comes the limita- 
 tion on the general doctrine — too is to benefit some desig- 
 nated charity, and this intent cannot be accomplished, the 
 gift wholly fails and the trust scheme must be abandoned."' 
 A legacy to a medical institution which is not a free school 
 but an individual enterprise is not in any sense a gift to a 
 public charity, and in case the beneficiary ceases to exist 
 before the will takes effect the application of the doctrine of 
 cy pres will be denied.'" 
 
 Notwithstanding all that has been said and written in dero- 
 gation of the cy pres power there is an abiding conviction that 
 a court of equity, unless trammeled by precedent or adverse 
 legislation, should in a proper case be invested with power 
 in the nature of cy pres, it should be regarded as a natural 
 incident to the equity jurisdiction and in the multiplicity of 
 charitable institutions organized for the general benefit and 
 betterment of the people, it is indispensable that the doctrine 
 should be accorded a more cordial reception in our scheme 
 of jurisprudence. There is a constant tendency to adopt the 
 principle in many of our courts. Massachusetts stands fully 
 committed to the rule"" and it has obtained considerable 
 indulgence in the Supreme Court of the United States."' 
 Rhode Island has always recognized it as a salutary doctrine.'"" 
 Kentucky is committed to the rule,"' and other States are 
 gradually appreciating the beneficence and policy of the 
 principle involved.'" The courts will not allow a valid 
 trust to fail for the want of a trustee. Why allow it to fail 
 for the want of a beneficiary ? The trustee, if the one desig- 
 nated by the testator is incapable of acting, is designated by 
 the court, and it requires no violence to logical deduction to 
 
 ™ 2 Pom. Eq. Jur. 595. '"'■^ Halden v. Chorn, 8 B. Mon. 
 
 '" Stratton v. Physio-Medical In- (Ky.) 70. 
 
 stitute, 148 Mass. 505. '« Estate of Hinckley, 58 Cal. 
 
 '^ Jackson v. Phillips, 14 Allen 457; Heuser v. Harris, 42 111.425; 
 
 (Mass.), 539. Academy v. Clemmens, 50 Mo. 
 
 »*' Russell V. Allen, 107 U. S. 163. 167 ; Erskine v. Whitehead, 84 
 
 '*• Pell V. Mercer, 14 R. I. 412. Ind. 357 ; Hasketh v. Murphey, 36 
 
 N. J. Eq. 304. 
 
630 REAL PROPERTY. 
 
 claim that a beneficiary, if the one selected be incapable of 
 receiving the intended bounty, should be designated by the 
 court. It is quite time that this entire question was sum- 
 moned to a new audit and a more sensible rule adopted to 
 the end that charity, so highly favored by the law, may 
 receive more substantial recognition. 
 
 § 223. The doctrine of spendthrift trusts considered. 
 
 a. When tmst funds are beyond the reach of creditors. A party 
 having the absolute right of disposition, may create a trust 
 in favor of another, and in the instrument creating the same 
 he may incorporate a recital to the effect that the income 
 arising from the funds constituting the corpus of the trust 
 shall not be alienated by the beneficiary or subjected to the 
 demands of his creditors, although there is no cessor or limi- 
 tation of the estate in such an event."" This decision ren- 
 dered by the Supreme Judicial Court of Massachusetts in 
 1882, after an elaborate re-argument of the principles 
 involved, merely adopted a rule already enunciated by the 
 Supreme Court of the United States in the celebrated case of 
 Nichols V. Eaton, 91 U. S. 716. It indicated a departure from 
 the English rule which subjects trust funds to the payment 
 of debts owing by the beneficiary notwithstanding an ex- 
 press provision in the instrument creating the trust to the 
 contrary,"" and both cases have been the prolific source of 
 discussion from jurists and text writers who regard the rule 
 established as subversive of well settled principles of equity 
 procedure. Mr. Wait, in his well known work on Fraudu- 
 lent Conveyances, is particularly violent in his anathema of 
 the principle contended for in the Nichols and Adams cases, 
 and regards the attitude of the courts in this particular as 
 palpably antagonistic to the just rights of the creditor class. 
 Much of this opposition has been smelted down by repeated 
 roasting until at the present day we hear little or nothing of 
 it, professionally, except from the theory -mongers. 
 
 The reasoning of the Massachusetts court in the Adams 
 case seems to me entirely logical and convincing. "The 
 
 '''^ Broadway National Bank v. Ves. 482 ; Green v. Spicer, i R. & 
 Adams, 133 Mass. 170. M. 395 ; Snowdon v. Dales, 6 Sinm. 
 
 ^'See Brandon v. Robinson, 18 524. 
 
USES AND TRUSTS. 63 1 
 
 founder of this trust was the absolute owner of his property. 
 He had the entire right to dispose of it, either by an absolute 
 gift to his brother, or by a gift with such restrictions or limita- 
 tions, not repugnant to law, as he saw fit to impose. We are 
 tiot able to see that it would violate any principle of sound 
 public policy to permit a testator to give to the object of his 
 bounty such a qualified interest in the income of a trust 
 fund, and thus provide against the improvidence or misfor- 
 tune of the beneficiary. It is argued that the vesting a man 
 with apparent wealth tends to mislead creditors, and induces 
 them to give him credit. The answer is, that creditors have 
 no right to rely upon property thus held, and to give him 
 credit upon the basis of an estate which, by the instrument 
 creating it, is declared to be inalienable by him, and not 
 liable for his debts. By the exercise of proper diligence 
 they can ascertain the nature and extent of the estate espe- 
 cially in view of our registry system by which all matters 
 relating to real property are spread upon the public records. 
 Whether a man can settle his own property in trust for his 
 own benefit, so as to exempt the income from alienation by 
 him is a different question. The mental equipment that can- 
 not assimilate the force of this reasoning should not vex itself 
 with the intricacies of a legal controversy.''" 
 
 The founder of a trust should be able to secure the bene- 
 ficial effects of it to the object of his bounty by an express 
 provision in the instrument creating it to the effect that the 
 income arising from the trust fund shall not become charge- 
 able with the debts of the beneficiary nor alienable by antici- 
 pation. It should be remembered in this connection that a 
 "trust" is frequently created in favor of some beneficiary who 
 has developed an utter incompetency to properly administer 
 his own affairs. This incompetency may result from pre-natal 
 deficiencies of intellect, or from acquired habits of dissipa- 
 tion and improvidence. The donor in such a case wishing 
 to place the beneficiary beyond the possibility of becoming 
 a public charge or to avoid the relapsing into a state of 
 
 '"See White v. White, 30 Vt. 113; Contra Tillinghast v. Brad- 
 338 ; Pope V. Elliott 8 B. Men. 56 : ford, 5 R. I. 205 ; Mebane v. Me- 
 Shankland's Appeal, , 47 Pa. St. bane, 4 Ired. Eq. 131. 
 
632 
 
 REAL PROPERTY. 
 
 squalor and degradation, adopts this method of providing for 
 his wants. The public at large are indirectly interested in 
 seeing that such a provision is rigidly enforced in order to 
 prevent the incompetency and improvidence of the benefi- 
 ciary from resulting in a public burden. And for this reason 
 the equity courts of this country repudiate the assertion of 
 the English decisions which allow the beneficiary to mort- 
 gage or alien his expectant income. Courts that have sus- 
 tained only tangential relations with the experiment of en- 
 forcing trusts with a view of permanent advantage to the 
 beneficiary must have experienced the difficulty of enforc- 
 ing the trust where the beneficiary was at liberty to alien or 
 mortgage the income arising from it."' 
 
 ^»8 White V. White, 30 Vt. 338; 
 Arnwine v. Carroll, 4 Hal. Ch. 
 620; Brown v. Williamson, 36 Pa. 
 St. 338 ; Rife v. Geyer, 59 Pa. St. 
 392 ; Nichols V. Eaton, 91 U. S. 
 716; and see Soarhawk v. Cloon, 
 125 Mass. 263; Contra Tillinghast 
 V. Bradford, 5 R. I. 205 ; Smith v. 
 Moore, 37 Ala. 327 ; Bramhall v. 
 Ferris, 14 N. Y. 41 ; Mcllvane v. 
 Smith, 42 Mo. 45. 
 
 Note from Professor Walker. — 
 The republican habits of our citi- 
 zens being opposed to complicated 
 family settlements, we have very 
 few express trusts created by deed, 
 though they occasionally occur. 
 But trusts created by will are more 
 frequent. The leading motive for 
 creating a trust is to prevent prop- 
 erty from being improvidently 
 squandered. If a father wishes to 
 provide with certainty for a child 
 about to marry, and for the issue 
 of such marriage, instead of con- 
 veying property to the child di- 
 rectly, he conveys it to trus- 
 tees, with a declaration of his 
 wishes; and thus, while he gives 
 the annual income to the married 
 couple, he secures the principal to 
 
 their children. In like manner, if 
 a man wishes to guard with cer- 
 tainty against the prodigality of 
 his heirs, he devises his property 
 to trustees, with specific instruc- 
 tions ; and thus limits the power of 
 his heirs, as far as he considers ex- 
 pedient, (d) But a trust estate- 
 cannot be made incapable of aliena- 
 tion by the beneficiary, nor pre- 
 vented from becoming liable for 
 the payment of his debts. " It is a 
 settled rule of law that the benefi- 
 cial interest of the cestui que trust, 
 whatever it may be, is liable for the 
 payment of his debts. It cannot be 
 so fenced about by inhibitions or 
 restrictions as to secure to it the 
 inconsistent characteristics of right 
 to enjoyment by the beneficiary 
 and immunity from his creditors. 
 A condition precedent that the pro- 
 vision shall not vest until his debts 
 are paid, and a condition subse- 
 quent that it shall be divested and 
 forfeited by his insolvency, with a 
 limitation over to another person, 
 are valid, and the law will give 
 them full effect. Beyond this, pro- 
 tection from f^ie claims of creditors 
 is not allowed to go." Swayne, J., 
 
USES AND TRUSTS. 633 
 
 b. Partial review of the Pennsylvania cases. It is well settled 
 in Pennsylvania since Barnett's App., 46 Pa. 392, although pre- 
 vious to that decision a contrary doctrine prevailed, that 
 -where an active trust is created to give effect to a well-defined 
 and lawful purpose of a donor or devisor, with respect to the 
 party to be benefited thereby, the trust will be sustained, 
 whether the cestui que trust be sui juris or not. It is as well 
 settled in Pennsylvania that it is a lawful purpose, upon the 
 part of a father, to protect his bounty to a spendthrift son, 
 both principal and interest, not only against his son's improvi- 
 dence, but also against his creditors"" and in Ashkurst's App. 
 77 Pa. 464, it is said that a spendthrift trust may be created as 
 well for a woman as for a man. But it has never been held 
 by this court that a person sui Juris could settle his entire 
 estate upon himself free from liability for debts. Indeed, 
 the very contrary has been ruled in Mackasons App., 42 Pa. 
 330. In that case, the trustees were to hold the estate of the 
 settlor free and clear of his debts ; to pay the net income, 
 without anticipation, during his life to himself, after his 
 death to his appointee by will, and, in default of an appoint- 
 ment to his heirs, and it was held that property so settled 
 was assets in the hands of the trustees for the payment of 
 
 in Nichols v. Levy, 5 Wall. 441. ined and all the cases given in Gray 
 
 This is altered by statute in Ten- on Restraints on Alienation. The 
 
 nessee. Nichols v. Levy, supra ; only exceptions to this rule are the 
 
 Turney v. Massingill, 7 Lea (Va.), separate use and pin-money trusts 
 
 353. In Pennsylvania, Massachu- for married women. Adams, Eq. 
 
 setts and Kentucky, where the doc- *43 ; Perry on Trusts, sect. 387.) 
 
 trine of spendthrift trusts obtains, These examples will serve for illus- 
 
 such a provision is allowed if the tration ; and a little reflection will 
 
 beneficiary is entirely excluded from convince any one of the very great 
 
 control of the funds. Broadway utility of this description of estates. 
 
 Bank v. Adams, '33 Mass. 170; Vaux (Cited from Walker's Am. Law, p. 
 
 V. Parke, 7 W. & S. 19 ; Pope v. Elli- 373.) 
 
 ott, 8 B. Monr. (Ky.) 56. In New '^ Fisher v. Taylor, 2 Rawle, 33; 
 York, the court will leave him a rea- Brown v. Williamson, 36 Pa. 338- 
 sonable sum for support, and so in Rife v. Geyer, 59 Pa. 385 ; Over- 
 several States by statute. Genet V. man's App. 88 Pa. 276; Eberly's 
 Beekman, 45 Barb. (N. Y.) 382; App. no Pa. 95, i Cent. Rep. 97; 
 Campbell v. Foster, 35 N. Y. 361; People's Sav. Bank v. Denig, 131 
 Adams, Eq. *43 ; Perry on Trusts, Pa. 241. 
 sect. 386. This doctrine is exam- 
 
634 REAL PROPERTY. 
 
 debts, whether contracted prior or subsequent to the execu- 
 tion of the deed of trust ; and that the devisees or appointees 
 under the will of the settlor were postponed to his creditors. 
 After stating the facts, this court in the opinion filed, says : 
 "This statement brings us to the simple inquiry, Can the 
 owner of property so dispose of it for his own use, benefit 
 and support, as to put it beyond the reach of liability for his 
 future debts, he being and continuing sui juris, and there 
 appearing to be no reason therefor excepting to withdraw 
 it from such liability, and thus retain the temporal ownership 
 with its incidents? This would be a startling proposition to 
 affirm. It would revolutionize the credit system entirely, 
 destroy all faith in the apparent ownership of property and 
 repeal all our statutes and decisions against frauds. ' ' 
 
 Yet Chief Justice Agnew said in Overmans Appeal, 88 Pa. 
 St. 276, 281: "It (a spendthrift trust) is exceptional in its 
 very nature, because it contravenes that general policy which 
 forbids restraints on alienation and the non-payment of hon- 
 est debts. * * * A trust to pay income for life may last 
 for the longest period of human existence, and may run for 
 seventy or eighty years. While the law simply tolerates 
 such a trust, it cannot approve of it as contributing to the 
 general public interest. Property tied up for half a century 
 contributes nothing to the general wealth, while it is a great 
 stretch of liberality to the ownership of it to suffer it to 
 remain in this anomalous state for so many years after its 
 owner has left it behind him. Clearly it is against public 
 interest that the property of an after generation shall be 
 controlled by the deed of a former period, or that the non- 
 payment of debts should be encouraged.""" 
 
 In Leavitt v. Beirne, 2 1 Conn, i , property was devised to a 
 married woman, for the exclusive use of herself and her 
 children, free from the debts and control of her husband; 
 and to secure the same to their unimpaired enjoyment, he 
 gave the property in trust, with full authority to apply the 
 property as to the trustee should seem best for their exclu- 
 sive benefit during her life ; and on her death to divide the 
 same among her children. It was held that the principal of 
 
 "» See Gray on Restraints on Alienation, § 334. 
 
USES AND TRUSTS. 635 
 
 the trust fund was not liable for debts contracted by the 
 wife. Waite, J. says: "A man may have a son so fallen into 
 vicious habits as to be utterly unfit for the management of 
 any property. A gift to him might be worse than useless. 
 That son may have a wife and children whom he entirely 
 neglects. The father (may) be both able and willing to 
 make ample provision for them, and save them from being a 
 public burden ; but he can do nothing through the instru- 
 mentality of his son. But may he not, through the interven- 
 tion of trustees, in whom he can confide, and place property 
 in their hands for the benefit of his son and family, beyond 
 his control?" 
 
 On the decisions sustaining the right of the donor to ex- 
 clude by the terms of the trust the creditors of the benefi- 
 ciary, the following may be noted as containing exhaustive 
 examinations of the principle involved, and vigorous argu- 
 ments in vindication of the right.'" It was settled at a very 
 early day in Pennsylvania that limitations of this character 
 were valid,"' and they have since been frequently upheld.'" 
 So in Vermont,'" Maryland,'" Connecticut,'" and Virginia.'" 
 
 c. Attitude of the New York Court of Appeals. The doctrine 
 of the English courts is well settled on the point involved, 
 and some courts of this country have followed it. But in 
 Nichols V. Eaton, 91 U. S. 716; 23 L. ed. 254, the Supreme 
 Court of the United States was not disposed to accept the 
 doctrine in so far as it restricted the power of testamen- 
 tary disposition so as to prevent the beneficiary from using 
 and enjoying the benefits of the devise against the claims 
 of creditors. In that case the bankruptcy of the devisee was 
 by the will to terminate all his interest in the estate, and his 
 creditors were denied the right to the estate or its profits 
 after the act of bankruptcy. Where the debtor, who is the 
 
 2" Pope V. Elliott, 8 B. Mon. 56 ; S. 323 ; Holdship v. Patterson, 7 
 
 Nichols V. Eaton, 91 U. S. 716, 23 Watts (Pa.), 547; Brown v. William- 
 
 L. ed. 254 ; Broadway Nat. Bank son, 36 Pa. 338. 
 
 V. Adams, 133 Mass. 170, 43 Am. "* White v. White, 30 Vt. 338. 
 
 Rep. 504 ; Lampert v. Haydel, 96 "' Smith v. Towers, 69 Md. 77. 
 
 Mo. 439, 2 L. R. A. 113. ' 296Leavitt v. Beirne, 21 Conn. i. 
 
 "« Fishery. Taylor, 2 Rawle (Pa.), '^ Garland v. Garland, 87 Va. 
 
 33- 758, J3 L. R. A. 212. 
 
 «" Ashhurst v. Given, 5 Watts & 
 
636 REAL PROPERTY. 
 
 beneficiary, has any substantial right in the property that a 
 chancellor can enforce, then, so long as that right continues, 
 his interest is liable for his debts, but no longer. The event 
 happening upon which the interest passes to another the 
 creditor is without remedy. 
 
 Nor are we without precedent establishing the doctrine 
 that the event upon which the beneficiary may be divested of 
 title may be the decision of a chancellor subjecting the inter- 
 est or income to the payment of the debts of the cestui que 
 trust. 
 
 In a New York case of some celebrity, one Joshua Ferris 
 died in 1 848, leaving this codicil to his will : " I hereby de- 
 clare in making provision in my will that the income of 
 one-third of my estate upon payment of debts and legacies 
 should be paid to my son, Myron H. Ferris, it was my 
 design to make provision for the support of himself and 
 family which could not be taken from them by his creditors, 
 and, for the purpose of making myself more plainly under- 
 stood on this point and to carry out said design, it is my will 
 that in case creditors' bill shall be filed or any proceedings 
 instituted against my son Myron for the purpose of reaching 
 the interest or income so provided for him, and diverting it 
 from the object intended by me, and a decree of judgment ob- 
 tained for that purpose, that then, from that period, the said 
 interest or income shall cease ; and I direct my executors from 
 henceforth to expend the said interest or income for the sup- 
 port of the family of the said Myron H. Ferris, either by 
 paying the same to his wife, or in any other practical way in 
 their discretion." Bramhallv. Ferris, 14 N. Y. 41. 
 
 The controversy was in that case between the creditors of 
 the son and the devisees over or the executors. The New 
 York Court of Appeals was then presided over by Denio, as 
 chief justice, with three associates, and the court held with- 
 out dissent that the provision of the will that the interest of 
 the devisee should cease on the recovery of a judgment by 
 creditors, was valid. 
 
 Without regard to the view taken by the English courts 
 on this question, some courts of the highest authority in 
 this country maintain the opposite contention, holding that 
 those considerations which apply to legal estates have no ap- 
 
USES AND TRUSTS. 637 
 
 plication where property is transferred in trust, as in such in- 
 stances the trustee takes the whole property, with the usual 
 incidents of alienation, and in like manner the beneficiary 
 takes the legal title to the income when it is paid over to 
 him, and therefore the point about restraints upon alienation 
 has no foundation either in law or in fact. This is the posi- 
 tion taken by the Supreme Court of Massachusetts in a cause 
 which was twice argued,"' and the trust in that case, held 
 valid. 
 
 Similar adjudications have been made in Pennsylvania 
 from an early period in its judicial history ;"" and in other 
 States. '°° The two cases just cited are quite recent, the 
 former having been decided in 1887, and the latter in 1891. 
 
 The Supreme Court of the United States in Nichols v. 
 Eaton, 91 U. S. 716; 23 L. ed. 254, has affirmed the validity 
 of such trusts, and also in a subsequent case."' The oppo- 
 site view is taken in several States. In some States the 
 validity of such trusts, where the fund proceeds from the 
 bounty of another, is sanctioned by express statutes. This 
 is true of New York, New Jersey, Illinois and Tennessee. 
 Decisions in those States, therefore, are of no value in the 
 discussion of the question where such statutory provisions 
 are not involved. 1 
 
 d. Views of Chief Justice Morton in Bank v. Adams. The 
 question whether the founder of a trust can secure the income 
 of it to the object of his bounty, by providing that it shall not 
 be alienable by him or be subject to be taken by his credit- 
 ors, has not been directly adjudicated in several states. 
 The tendency has been in favor of such a power in the 
 founder.'" 
 
 It is true that the rule of the common law is, that a man 
 cannot attach to a grant or transfer of property, otherwise 
 
 "' Broadway Nat. Bank v. Adams, ™ Hyde v. Woods, 94 U. S. 523, 
 
 133 Mass. 170. 24 L. ed. 264. 
 
 ^"Thackara v. Mintzer, 100 Pa. '"^ Branian v. Stiles, 2 Pick. 460; 
 
 151, and cases cited. Perkins v. Hays, 3 Gray (N. Y.), 405 ; 
 
 ^^ Vermont, Barnes v. Dow, 4 Russell v. Grinnell, 105 Mass. 425 ; 
 
 New Eng. Rep. 717, S9 Vt. 530, and Hall v. Williams, 120 Mass. 344; 
 
 cases cited; Maryland, Smith v. Sparhawk v. Cloon, 125 Mass. 263. 
 Towers, 12 Cent, Rep. 872. 
 
638 REAL PROPERTY. 
 
 absolute, the condition that it shall not be alienated ; such 
 condition being repugnant to the nature of the estate granted.'"' 
 
 Lord Coke gives as the reason of the rule that "it is ab- 
 surd and repugnant to reason that he, that hath no possibili- 
 ty to have the land revert to him, should restrain his feoffee 
 in fee simple of all his power to alien, ' ' and that this is 
 ' ' against the height and purity of a fee simple. ' ' By such a 
 condition, the grantor undertakes to deprive the property in 
 the hands of the grantee of one of its legal incidents and 
 attributes, namely, its alienability, which is deemed to be 
 against public policy. But the reasons of the rule do not 
 apply in the case of a transfer of property in trust. By the 
 creation of a trust like the one under review, the trust prop- 
 erty passes to the trustee with all its incidents and attributes 
 unimpaired. He takes the whole legal title to the property, 
 with the power of alienation ; the cestui que trust takes the 
 whole legal title to the accrued income at the moment it is 
 paid over to him. Neither the principle nor the income is at 
 any time inalienable. 
 
 The question whether the rule of the common law should 
 be applied to equitable life estates created by will or deed, 
 has been the subject of conflicting adjudications by different 
 courts. As is stated in Sparhawk v. Cloon, above cited, from 
 the time of Lord Elden the rule has prevailed in the English 
 Court of Chancery, to the extent of holding that when the 
 income of a trust estate is given to any person (other than a 
 married woman) for life, the equitable estate for life is alien- 
 able by, and liable in equity to the debts of, the cestui que trust, 
 and that this quality is so inseparable from the estate that no 
 provision, however express, which does not operate as a cessor 
 or limitation of the estate itself, can protect it from his debts. '" 
 
 The English rule has been adopted in several of the courts 
 of this country.'" 
 
 ^°' Co. Lit. 223a; Blackstone Bank 6 Sim. 524; Rippon v. Norton, 3 
 
 V. Davis, 21 Pick. 42. Beav, 63. 
 
 ^ Brandon v. Robinson, 18 Ves. ™= Tillinghast v. Bradford, 5 R. I. 
 
 429 ; Green v. Spicer, i Russ. & 305 ; Heath v. Bishop, 4 Rich. Eq. 
 
 Myl. 395 ; Rochford v. Hackman, 9 46 ; Dick v. Pitchford, i Dev. & 
 
 Hare, 475; Trappes v. Meredith, Bat. Eq. 480; Mebane v. Mebane, 
 
 L. R. 9 Eq. 229; Snowden v. Dales, 4 Ired. Eq. 131. 
 
USES AND TRUSTS. 639 
 
 Other courts as we have seen have rejected it, and have 
 held that the founder of a trust may secure the benefit of it 
 to the object of his bounty, by providing that the income 
 shall not be alienable by anticipation, nor subject to be taken 
 for his debts."' 
 
 A settlement in trust expressly providing that the income 
 shall not be alienable by the cestui que trust by anticipation, 
 and shall not be subject to his creditors, is valid, although 
 there is no cesser or limitation over of the estate in the event 
 of the cestui que trust's bankruptcy or insolvency. This is the 
 rule in the Federal courts and in many of the States. The 
 English doctrine, on the other hand, is to the effect that, 
 where the income of a trust estate is given for life to a per- 
 son other than a married woman, the equitable estate is 
 alienable by, and liable in equity for, the debts of the cestui 
 que trust,'"'' and that this quality is so inseparable from the 
 estate that no provision, however express, which does not 
 operate as a cessor or limitation of the estate itself, can pro- 
 tect it from his debts. Several of the States follow the Eng- 
 lish rule.=°» 
 
 This precise question arose for the first time in Massachu- 
 setts in the case just mentioned, and it was settled mainly 
 upon the same grounds taken by Mr. Justice Miller in Nichols 
 V. Eaton, supra. The gift by will was: "I give the sum of 
 $75,000 to my said executors * * * in trust to invest the 
 same * * * and to pay the net income thereof semi- 
 annually to my brother C. during his natural life, such pay- 
 ments to be made to him personally when convenient, other- 
 wise upon his order or receipt in writing, in either case free 
 from the interference or control of his creditors, my inten- 
 tion being that the use of said income shall not be anticipated 
 by assignment." 
 
 '<" Holdship V. Patterson, 7 Broadway Bank v. Adams, 133 
 
 Watts, 547 ; Shankland's Appeal, Mass. 170. 
 
 47 Penn. St. 113; Rife v. Geyer, 59 ^"Graves v. Dolphin, i Sim. 66. 
 
 Penn, St. 393 ; White v. White, 30 '™ The cases are cited in Broad- 
 
 Vt. 338; Pope v. EHiott, 8 B. Mon. way National Bank v. Adams, 133 
 
 56; Nichols V. Eaton, 91 U. S. 716; Mass. 170. See, also, Easterly v. 
 
 Hyde v. Woods, 94 U. S. 523; Keney, 36 Conn. 18; Mebane v. 
 
 Mebane, 4 Ired. Eq. (N. C.) 131. 
 
640 REAL PROPERTY. 
 
 The court say: "The rule of public policy which subjects 
 a debtor's property to the payment of his debts does not sub- 
 ject the property of a donor to the debts of his beneficiary, 
 and does not give a creditor the right to complain that, in 
 the exercise of his absolute right of disposition, the donor 
 has not seen fit to give the property to the creditor, but has 
 left it out of his reach. ' ' This case was approved in Baker v. 
 Brown, 146 Mass. 369. The doctrine seems to me to be just. 
 
 The following cases approve the doctrine r™ 
 
 It is important to distinguish these cases from the case of 
 a voluntary settlement by the owner of property in his own 
 behalf. A person cannot settle his own property in trust 
 and pay the income to himself for life, with a provision that 
 it shall not be alienable by him or subject to his debts. 
 Such a provision is contrary to the policy of the law, and is 
 void."" 
 
 This rule applies to a married woman settling her private 
 property, and also to a woman settling her property in anti- 
 cipation of marriage. 
 
 e. Of Chief Justice Agnew in Overman's Appeal. That a 
 trust for a spendthrift, as it is termed, will be upheld in 
 equity, is a settled doctrine of Pennsylvania, and rests on the 
 donor's right of dominion over his own property for a rea- 
 sonable time. But it is exceptionable in its very nature, be- 
 cause it contravenes that general policy which forbids 
 restraints on alienation and the non-payment of honest debts. 
 In order to support it, resort is had to a trust, which equity 
 will enforce, and equity necessarily regards its reasonable- 
 ness and the clearly defined intent of the donor. Without 
 such a trust upheld in equity, title in the devisee or legatee 
 claims to itself control and liability to creditors. As this is 
 a trust resting in equity, it is clear that equity will support 
 it only as long as it rests on the well-defined intention of the 
 donor. When that is gone, the trust falls with the loss of 
 
 ^»' Spindle v. Shreve, 4 Fed. Rep. ^'° Pacific National Bank v. Wind- 
 
 136; Lampert v. Haydel, 20 Me. ram, 133 Mass. 175; Jackson v, 
 
 Ap. 616; Thackara v. Mintzer, 100 Von Zedlitz, 136 Mass. 342; Mcll- 
 
 Pa. St. 151; Steib v. Whitehead, vaine v. Smith, 42 Me. 45. 
 Ill 111. 247; White V. White, 30 
 Vt. 338 ; Smith v. Towers, 69 Md. T]. 
 
USES AND TRUSTS. 64I 
 
 this, the only true basis. A trust to pay income for life may 
 last for the longest period of human existence, and may run 
 for seventy or eighty years. While the law simply tolerates 
 such a trust, it cannot approve of it as contributing to the 
 general public interest. Property tied up for half a century 
 contributes nothing to the general wealth, while it is a great 
 stretch of liberality to the ownership of it to suffer it to 
 remain in this anomalous state for so many years after its 
 -owner has left it behind him. Clearly it is against public 
 interest that the property of an after generation shall be con- 
 trolled by the deed of a former period, or that the non-pay- 
 ment of debts should be encouraged."' 
 
 f. Of Mr. Perry and his work on Trusts. Nichols n. Eaton, gi 
 U. S. 716, cited and approved in Hyde v. Woods, 94 U. S. 523 ; 
 Ashurst V. Given, 5 Watts & S. 323 ; Holdship v. Patterson, 7 
 Watts, 547; Browne. Williamson, 36 Pa. St. 338; Still -v. Spear, 
 45 Pa. St. 168; Shankland's App.i;j Pa. St. 113; Popev. Elliott, 
 8 B. Mon. 56; White v. White, 30 Vt. 338; Campbell v. Foster, 
 35 N. Y. 361. The argument in these cases proceeds upon 
 the ground that the doctrine of the English case must rest 
 upon the rights of creditors ; and it is claimed that the policy 
 of the States of this Union has not been carried so far in fur- 
 therance of creditor's rights, that creditors can have no claim 
 upon property which belonged to the founder of the trust, 
 and of which he had the full and entire right of disposing as 
 he chose, for the benefit of the cestui que trust, who parts with 
 nothing in return, and that the intent of the donor, clearly 
 expressed in disposing of his property for a lawful purpose, 
 must be carried out ; and the laws enacted in nearly or quite 
 every State, exempting property of greater or less amounts 
 in value from liability for the payment of debts, are relied 
 on as showing the policy of these States. It is conceded that 
 there are, however, limitations which public policy or general 
 statutes imposes upon dispositions of property, such as those 
 designed to prevent perpetuities and accumulations in 
 corporations, etc. But the owner of property is governed 
 by the rules of law, both in the use and enjoyment and in 
 disposing of his property ; and the doctrine in question seems 
 
 '"Overman's Appeal, Penn. 1879. (Reported 88 Pa. 276.) 
 41 
 
642 REAL PROPERTY. 
 
 to be founded upon the rule that title to property includes, 
 the right of alienation and liability for debts, and it seems- 
 impossible that there can be any reason in public policy, 
 tinder a free government, having for its object the growth 
 and development of a commercial people, for such a limita- 
 tion of the incidents of title to property, and the argument 
 from the exemption laws would seem to be well answered by 
 the maxim, expressio unius est exclusio alterius. 
 
 Many of the American cases, where the English doctrine 
 has been doubted or denied, seem to have been cases of trust 
 for the support and maintenance of the cestui que trust ; and a 
 clearly manifested intention on the part of the donor that 
 the income of the fund shall be devoted to that purpose may 
 impose a duty and give a consequent power in the trustee, 
 either in his discretion or under the direction of the court, to 
 pay over the income only in such manner as shall insure its 
 application in accordance with the intent of the donor and 
 protect it from the claims of creditors and the improvidence 
 of the beneficiary, with substantially the same result upon 
 the absolute character of the estate of the cestui que trust as if 
 the instrument declaring the trust had expressly provided 
 that the payments should be made at the discretion of the 
 trustee — a result more in accordance with the rules of inter- 
 pretation than a strict adherence to a definition to the ex- 
 tent of defeating the accomplishment of the benefit intended 
 by the donor/" 
 
 g. Of Mr. Justice Miller in the great case of Nichols v. Eaton. 
 It is believed that every State in the Union has passed 
 statutes by which a part of the property of the debtor is ex- 
 empt from seizure on execution or other process of the 
 courts ; in short, is not by law liable to the payment of his 
 debts. This exemption varies in its extent and nature in 
 the different States. In some it extends only to the merest 
 implements of household necessity ; in others it includes the 
 library of the professional man, however extensive, and the 
 tools of the mechanic ; and in many it embraces the home- 
 stead in which the family resides. This has come to be con- 
 sidered in this country as a wise, as it certainly may be called 
 
 =" Perry on Trusts, p. 495, vol. i, note. 
 
USES AND TRUSTS. 643 
 
 a settled, policy in all the States. To property so exempted 
 the creditor has no right to look, and does not look, as a 
 means of payment when his debt is created ; and while this 
 court has steadily held, under the constitutional provision 
 against impairing the obligations of contracts by State laws, 
 that such exemption laws, when first enacted, were invalid 
 as to debts then in existence, it has always held that, as to 
 contracts made thereafter, the exemptions were valid. 
 
 This distinction is well founded in the sound and unan- 
 swerable reason, that the creditor is neither defrauded nor 
 injured by the application of the law to his case, as he knows, 
 when he parts with the consideration of his debt, that the 
 property so exempt can never be made liable to its payment. 
 Nothing is withdrawn from this liability which was ever sub- 
 ject to it, or to which he had a right to look for its discharge 
 in pa3niient. The analogy of this principle to the devise of 
 the income from real and personal property for life seems 
 perfect. In this country, all wills or other instruments cre- 
 ating such trust estates are recorded in public offices, where 
 they may be inspected by every one ; and the law in such 
 cases imputes notice to all persons concerned of all the facts 
 which they might know by the inspection. When, therefore, 
 it appears by the record of a will that the devisee holds this 
 life estate or income, dividends, or rents of real or personal 
 property, payable to him alone, to the exclusion of the 
 alienee or creditor, the latter knows, that in creating a debt 
 with such person, he has no right to look to that income as a 
 means of discharging it. He is neither misled nor defrauded 
 when the object of the testator is carried out by excluding 
 him from any benefit of such a devise. 
 
 Nor do we see any reason, in the recognized nature and 
 tenure of property and its transfer by will, why a testator 
 who gives, without any pecuniary return, who gets noth- 
 ing of property value from the donee, may not attach to 
 that gift the incident of continued use, of uninterrupted 
 benefit of the gift, during the life of the donee. Why a 
 parent, or one who loves another, and wishes to use his 
 own property in securing the object of his affection, as far as 
 property can do it, from the ills of life, the vicissitudes of 
 fortune, and even his own improvidence, or incapacity for 
 
644 REAL PROPERTY. 
 
 self protection, should not be permitted to do so, is not read- 
 ily perceived. 
 
 These views are well supported by adjudged cases in the 
 State courts of the highest character. 
 
 In the case of Fisher v. Taylor, 2 Rawle, 33, a testator had 
 directed his executors to purchase a tract of land, and take 
 the title in their name in trust for his son, who was to have 
 the rents, issues and profits of it during his life, free from 
 liability for any debts then or thereafter contracted by him. 
 The Supreme Court of Pennsylvania held that this life estate 
 was not liable to execution for the debts of the son. "A 
 man," says the court, "may undoubtedly dispose of his land 
 so as to secure to the object of his bounty, and to him exclu- 
 sively, the annual profits. The mode in which he accom- 
 plishes such a purpose is by creating a trust estate, explicitly 
 designating the uses and defining the powers of the trustees. 
 * * * Nor is such a provision contrary to the policy of 
 the law or to any Act of Assembly. Creditors cannot com- 
 plain, because they are bound to know the foundation on 
 which they extend their credit. ' ' 
 
 In the subsequent case of Holdship v. Patterson, 7 Watts, 
 547, where the friends of a man made contributions by a 
 written agreement to the support of himself and family, the 
 court held that the installments which they had promised to 
 pay could not be diverted from his creditors to the payment 
 of his debts, and Gibson, C. J., remarks that "the fruit of 
 their bounty could not have been turned from its object by 
 the defendant's creditors, had it been applicable by the 
 terms of the trust to his personal maintenance ; for a bene- 
 factor may certainly provide for the maintenance of a friend, 
 without exposing his bounty to the debts or imprudence of 
 the beneficiary." 
 
 In the same court, as late as 1864, it was held that a devise 
 to a son of the rents and profits of an estate during his natu- 
 ral life, without being subject to his debts and liabilities, is a 
 valid trust ; and, the estate being vested in trustees, the son 
 could not alienate.'" 
 
 The same proposition is either expressly or impliedly 
 
 "' Shanklord's Appeal, 47 Pa. St. 113. 
 
USES AND TRUSTS. 645 
 
 asserted by that court in the cases of Ashurst v. Given, 5 W. 
 & S. 323 ; Brown v. Williamson, 36 Pa. St. 338 ; Still v. Spear, 
 45 Id. 168. 
 
 In the case of Lenvitt v. Bierne, 21 Conn., Waite, J., in de- 
 livering the opinion of the court says : ' ' We think it in the 
 power of a parent to place property in the hands of trustees 
 for the benefit of a son and his wife and children, with full 
 power in them to manage and apply it at their discretion, 
 without any power in the son to interfere in that manage- 
 ment, or in the disposition of it until it has actually been 
 paid over to him by the trustees;" and he proceeds to argue 
 in favor of the existence of this power, from the vicious 
 habits or intemperate character of the son, and the right of 
 the father to provide against these misfortunes. 
 
 In the case of Nickell et al. v. Hanqy et al., 10 Gratt. 336, the 
 court thus expresses its view on the general question, though 
 not, perhaps, strictly necessary to the judgment in that case : 
 ' ' There is nothing in the nature or law of property which 
 would prevent the testatrix, when about to die, from appro- 
 priating her property to the support of her poor and helpless 
 relatives, according to the different conditions and wants of 
 such relatives; nothing to prevent her from charging her 
 property with the expense of food, raiment, and shelter for 
 such relatives. There is nothing in law or reason which 
 should prevent her from appointing an agent or trustee to 
 administer her bounty. ' ' 
 
 In the case of Pope's Executors v. Elliott & Co.,?, Ben. Monr. 
 56, the testator had directed his executors to pay for the 
 support of Robert Pope the sum of $25 per month. Robert 
 Pope having been in the Rocky Mountains until the sum of 
 $225 of these monthly payments had accumulated in the 
 hands of the executors, his creditors filed a bill in chancery, 
 accompanied by an attachment, to subject this fund to the 
 payment of their debt. 
 
 The Court of Appeals of Kentucky say that it was the mani- 
 fest intent of the testator to secure to Robert the means of sup- 
 port during his life to the extent of $25 per month, or $300 
 per year ; and that this intent cannot be thwarted, either by 
 Robert himself by assignment or alienation, or by his cred- 
 itors seizing it for his debts, unless the provision is contrary 
 
646 REAL PROPERTY. 
 
 to law or public policy. After an examination of the stat- 
 utes of Kentucky and the general principle of equity juris- 
 prudence on this subject, they hold that neither of these are 
 invaded by the provisions of the will. 
 
 The last case we shall refer to specially is that of Campbell 
 V. Foster, 35 N. Y. Ct. of App. 361. 
 
 In that case it is held, after elaborate consideration, that 
 the interest of a beneficiary in a trust fund, created by a per- 
 son other than the debtor, cannot be reached by a creditor's 
 bill ; and, while the argument is largely based upon the spe- 
 cial provision of the statute regulating the jurisdiction of the 
 court in that class of cases, the result is placed with equal 
 force of argument on the general doctrines of the Court of 
 Chancery, and the right of the owner of property to give it 
 such direction as he may choose without its being subject to 
 the debts of those upon whom he intends to confer his 
 bounty. 
 
 That being so, it follows, that the interest of the cestui que 
 trust, whatever it may be, is liable in a court of equity for his 
 debts. For it would be a shame upon any system of law, if, 
 through the medium of a trust of any kind of contrivance, pro- 
 perty, from which a person is absolutely entitled to a comfort- 
 able, perhaps an affluent support, and over which he can exer- 
 cise the highest right of property, namely, alienation, and 
 which, upon his death, would undoubtedly be assets, should be 
 shielded from the creditors of that person during his life. 
 There is no such reproach upon nor absurdity in our law ; for 
 we hold, that whatever interest a debtor has in property of 
 any sort may be reached by his creditors, either at law or in 
 equity, according to the nature of the property. Terms of 
 exclusion of the donee's creditors, not amounting to a limi- 
 tation of the estate, can no more repel the creditors, than a 
 restraint upon alienation can tie the hands of the donee him- 
 self. Liability for debts ought to be, and is, just as much an 
 incident of property, as the jus disponendi is; for, indeed, it is 
 one mode of exercising the power of disposition. 
 
 In Hyde v. Woods, 94 U. S. 526, Mr. Justice Miller takes 
 occasion to observe that his own opinion in Nichols v. Eaton, 
 91 U. S. 716, "was well considered," and says: "In that 
 case, the mother of the bankrupt Eaton, had bequeathed to 
 
USES AND TRUSTS. 647 
 
 him by will the income of a fund, with a condition in the 
 trust that on his bankruptcy or insolvency the legacy should 
 cease and go to his wife or children, if he had any, and if 
 not, it should lapse into the general fund of the testator's 
 estate, and be subject to other dispositions. The assignee of 
 the bankrupt sued to recover the interest bequeathed to the 
 bankrupt, on the ground that this condition was void as 
 against public policy. But this court, on a full examination 
 of the authorities, both in England and this country, held 
 that the objection was not well taken, that the owner of 
 property might make such a condition in the transfer of that 
 which was his own, and in doing so violated no creditor's 
 rights and no principle of public policy. ' ' 
 
 h. Coinuients. Although they stand for much that is yet 
 in dispute, these twin cases of Nichols v. Eaton and Broadway 
 Batik v. Adams, will ever offer an insuperable bar to the 
 prosperous survival of what is left of the opposite doctrine. 
 Both cases were submitted to the utmost rigor of critical 
 procedure; both were decided by tribunals of exceptional 
 ability, and both were illuminated by the scholarly research 
 of eminent practitioners who focused upon the contention 
 every available argument known to either law or equity. 
 These decisions have been assailed by much turgid rhetoric, 
 and have been stigmatized as "unfortunate" and "mislead- 
 ing" by a class of critics, who are much better qualified to 
 follow than to lead on any avenue of judicial exposition, 
 which reqtiires the least mental tuition. There is a growing 
 conviction that . the creditor class in this country have been 
 pretty carefully provided for, and the danger that some of 
 them will fail to "collect a bill" after all the facilities the law 
 affords them, is rather remote and should not hinder the 
 enunciation of a principle that is bottomed on a wise public 
 policy. We have every day occurrences of the peculiar estate 
 which is a recent creation among us known as "homestead 
 exemption. ' ' To raise this peculiar right a man is at liberty 
 to employ the funds accumulated by his own labor, and on 
 signing the necessary documents, he places the aggregation 
 of that fund beyond the reach of creditors, although it repre- 
 sents something upon which to a certain extent those creditors 
 had a right to rely for payment. All this elicits no particular 
 
648 REAL PROPERTY. 
 
 wail from the creditor classes or their self -constituted cham- 
 pions. How much more then is it permissible for a fund to be 
 placed beyond their clutches by a grantor who owes them noth- 
 ing, and from whom they have no right to expect indemnity. 
 Declamatory assertion is not proof, and we are wholly un- 
 able to perceive the least menace to our inalienable rights in 
 a testamentary provision that secures to a man and his family 
 the means of subsistence, even in luxury, if you will — when 
 the terms upon which he received this benefit are spread 
 upon the public records and open to the inspection of all. 
 The fact is, that the creditor is in a feverish anxiety to increase 
 his sale, and is entirely willing to take chances. If he is 
 doing business on the credit system at this late day, the law 
 should not supplement his folly by struggling to protect him 
 in such a quixotic undertaking. 
 
 Both cases have been singularly unfortunate in failing to^ 
 meet with the approval of eminent professors in the law who- 
 are constantly asserting their claims for recognition. They 
 place great stress upon a principle of law that subjects a 
 man's property to the payment of his debts, and this unques- 
 tioned postulate is paraded with as much pride as if it were 
 new, and with as much zeal as if it were important to the dis- 
 cussion. They wholly evade or ignore the pitiless logic 
 which asserts that while a rule of public policy subjects a 
 doctor's property to the payment of his debts, it does not sub- 
 feet the property of the donor to the debts of his beneficiaries, and 
 the debtor has no ground of complaint if, in the exercise of 
 his absolute right of disposition, the donor has not seen fit 
 to give the property to the creditor, but has left it out of his 
 reach. 
 
 The critics of Nichols v. Eaton, were too apt to rely upon 
 dogmatic assertion — which is not proof — upon passionate 
 entreaty — which cannot affect a pillared law — and upon 
 furious invective that never should sway an impartial judge 
 for the overthrow of a decision that appealed to every just 
 sentiment that can arise in favor of the meritorious litigant. 
 
 Rants worthy only of a college declamation came from all 
 radii which as exuberant exhibits of mental sterility and 
 penury of thinking have been unsurpassed, but which have 
 been as yet ineffectual in disturbing or in subverting the great 
 
USES AND TRUSTS. 649 
 
 principle which underlies the decision of that case. In law 
 we aspire to know the reason, in other sciences we simply 
 aspire to doubt ; in lectures on fine distinctions in philosophy, 
 or the abstractions of metaphysics we can tolerate a "theory" 
 but with a legal proposition we demand the rigid analysis of 
 facts and the equally rigid application of principles. The 
 diatribes against the decision start out with a great display 
 of a priori reasoning but generally end in a dismal failure 
 to convince any one of the error in the ruling of the court. 
 Like the Code reform it has had to contend with a dead 
 weight of passion, prejudice and bigotry — impervious to 
 argument, immovable by discussion — uninfluenced by pro- 
 gress, and assertive of its fore-ordained right to obstruct the 
 wheels of justice at every turn. 
 
 Its detractors have been outvoted but by no means 
 silenced. I leave them in undisturbed possession of what- 
 ever advantage there may be in the "last word." 
 
 § 224. Parol evidence to establish a resulting trust. All 
 
 the facts tending to sustain a resulting trust may be shown 
 by parol evidence."* A leading case is that oi Boydv. Mc- 
 Lean, I Johns. Ch. 582. A more recent case is that of Foote 
 v. Bryant, 47 N. Y. 544, in which Chief Justice Church em- 
 ploys the following language: "The general principles of 
 equity and good conscience, applied to certain situations and 
 acts of the parties, are used to raise presumptions of inten- 
 tions, and to impress property with trusts, and to clothe 
 one party with the character and obligations of a trustee and 
 another with the rights and privileges of a cestui que trust for 
 the purpose of securing honesty and fair dealing among man- 
 kind, and to prevent fraud and injustice. The statute 
 referred to (of Frauds), was never intended to interfere with 
 the application of these equitable and benign principles ; but 
 it was designed to prevent fraud and perjuries by prohibit- 
 ing the creation of trusts relating to real estate dependent 
 solely upon mere verbal or parol conversations or agreements. 
 The correct view seems to be this : Equity will at all times 
 lend its aid to defeat a fraud, notwithstanding the Statute of 
 
 «» I Rice, Ev. 284. 
 
650 REAL PROPERTY. 
 
 Frauds. Any unconscionable act by which it is sought to 
 defraud a party calls for the protection of the court, and 
 parol evidence is always admissible to show the fraud. °" 
 
 In the case of Ringo v. Richardson, 53 Mo. 385, this court, 
 speaking through Sherwood, J. , announced the doctrine that 
 ' ' testimony as to verbal admissions of persons since dead is 
 to be received with great allowance, and whenever it is 
 attempted to prove resulting trusts by virtue of such admis- 
 sions, the testimony must be clear, strong and unequivocal, 
 and leave no room for doubt in the mind of the chancellor as 
 to the existence of such a trust. And the admissions should 
 be supported by other circumstances, also going to show the 
 existence of the trust. In the case at bar there are no such 
 supporting circumstances going, also, to show the existence 
 of the alleged trust. ' ' 
 
 In the case of Johnson v. Quaries, 46 Mo. 423, Bliss, J., de- 
 livering the opinion, a similar doctrine is announced; and, 
 proceeding further, it is, in effect, held that ' ' evidence of 
 declaration in the nature of admissions by a deceased person, 
 although competent, never amounts to direct proof of the 
 facts claimed to have been admitted by those declarations, 
 and it has sometimes been doubted whether they ought to be 
 received at all, when introduced for the purpose of divesting 
 a title created by a deed. However, if properly sustained by 
 other circumstances, such declarations would warrant courts 
 in sustaining the claim." 
 
 Authorities collected. If a trust is declared in writing, parol 
 evidence is inadmissible to contradict the expressed intentions 
 of the instrument,'" but if the instrument is vagiie and ambigu- 
 ous, parol evidence may be introduced to assist in its inter- 
 pretation. '" An absolute conveyance of land cannot be shown 
 
 ^" Ryan v. Dox, 34 N. Y. 307 ; I Mann, 1 Johns. Ch. 234, i L. ed. 
 
 Rice, Ev. 285. 124; Ashley v. Robinson, 29 Ala. 
 
 3"Lewis V. Lewis, 2 Rep. in Ch. 112, 65 Am. Dec. 387; Sturtevant 
 
 77; Finch's Case, 4 Inst. 86 ; Steere v. Sturtevant, 20 N. Y. 39, 75 Am, 
 
 V. Steere, 5 Johns. Ch. i (i L. ed), Dec. 371; Lalce v. Freer, n 111. 
 
 987, 9 Am. Dec. 256 ; Simms v. App. 576. 
 
 Smith, II Ga. 198; Dickenson v. *" Steere v. Steere, supra; For- 
 
 Dickenson, 2 Murph. 279; Lloyd v. ster v. Hale, 3 Ves. Jr. 696 ; Taylor 
 
 Inglis, I Desaus. Eq. 333 ; Harris v. Taylor, i Atk. 386. 
 V. Barnett, 3 Gratt. 339; Mann v. 
 
USES AND TRUSTS. 65 1 
 
 by the grantor to be a grant in trust for himself, no fraud or 
 mistake being alleged/" and evidence tending to show that a 
 deed absolute on its face is a mortgage or a conveyance in 
 trust, should be clear and received with great caution."" 
 Want of consideration for a deed, possession of land by the 
 grantor after conveyance, and the non-payment of the pur- 
 chase money, may be put in evidence to show a trust rela- 
 tion.'" 
 
 If the instrument in any way indicates an intention of 
 making a person the holder of both the legal and beneficial 
 estate, a trust cannot be created by parol. '" Neither can there 
 be a trust by parol where a valuable consideration is paid,"' 
 unless it can be proved by a person not privy to a deed.'" 
 Where property was conveyed for the benefit of a child, 
 though no declaration of trust appeared in the deed, evi- 
 dence was admitted to prove it.'" Whenever parol evidence 
 is admitted to prove a trust or establish a trust it must be 
 very clear and satisfactory."' 
 
 § 225. Trusts for married women. A vast mass of learning 
 has been swept away by the various statutory enactments 
 which followed the New York legislation of 1848 regarding 
 the separate estates of married women. Under the former 
 law, both in England and in this country, a large proportion 
 of trust estates were designed and administered for the 
 benefit of married women, and there is a corresponding pro- 
 portion of law reports devoted to this subject. In all of the 
 
 ^" Sturtevant v. Sturtevant, supra. 56, 57 ; Pilkington v. Bayley, 7 Bro. 
 
 ^"Corbit V. Smith, 7 la. 60, 71 P. C. 383. 
 
 Am. Dec. 431 ; Hurst v. Harper, 14 *'' Squire's App. 70 Pa. 266 ; 
 
 Hun (N. Y.}, 283 ; Horn v. Ketel- Strong v. Glasgow, 2 Murph. 289. 
 
 tas, 42 How. Pr. (N. Y.) 152; Mc- ^^^Gay v. Hunt, i Murph. 141; 
 
 Mahon v. Macy, 51 N. Y. 161. Ross v. Norvell, i Wash. 14, i Am. 
 
 ss^i Vandever v. Freeman, 20 Tex. Dec. 422. 
 
 33, 70 Am. Dec. 391, i Rice, Ev. '''^ Snelling v. Utterback, i Bibb. 
 
 291. 609, 4 Am. Dec. 661 ; Hunter v. 
 
 ^" Lewin, Trusts, 51; Dean v. Bilyeu, 30 III. 246; Harrison v. 
 
 Dean, 6 Conn. 285 ; Philbrook v. Howard, i Ired. Eq. 407 ; Brady v. 
 
 Delano, 29 Me. 410; Starr v. Starr, Park, 4 Id. 430; Lyman v. United 
 
 I Ohio, 321 ; Hutchinson v. Tindall, Ins. Co. 2 Johns. Ch. (N. Y.) 630, i 
 
 3 N. J. Eq. 357- L- ed. 519 ; Philpott v. Elliott, 4 Md. 
 
 '" Id.; Gilbert, Uses and Trusts, Ch. 273 ; i Rice on Evidence, 291. 
 
652 REAL PROPERTY. 
 
 States there are at the present time no specific rules pecu- 
 liarly applicable to trusts for married women. Such trusts, 
 wherever they do exist, repose substantially upon the same 
 principles that underlie trust creation in other cases. It is 
 no longer necessary to vest the separate provision for the 
 wife in the hands of trustees. Modern law graciously con- 
 descends to regard her as capable of taking and holding real 
 property as well after marriage as before it. So that much 
 of the learning has become oblivionized, and the doctrine of 
 trusts considerably simplified. 
 
 § 226. Termination of the trust. A trust is extinguished 
 by the entire fulfilment of its object, or by such object be- 
 coming impossible or unlawful. 
 
 A trust cannot be revoked by the trustor after its accept- 
 ance, actual or presumed, by the trustees and beneficiaries, 
 except by the consent of all the beneficiaries, unless the dec- 
 laration of trust reserves a power of revocation to the trustor, 
 and in that case the power must be strictly pursued."^' In 
 some cases the instrument itself which creates the trust 
 estate provides for the sale of the corpus of the trust on the 
 lapse of certain time. In such case the trust is terminated 
 when the sale takes place.'" Another cause of termination 
 as above outlined is where the trust is impossible to be per- 
 formed, where it becomes barren, dry, and naked. In such 
 instances it is said a court of equity, if applied to, will compel 
 a reconveyance either to the trustor or his legal heir. It 
 certainly will not allow a vast estate to repose idly in the 
 hands of the trustees, after the trust has become impossible 
 of performance. In Lade v. Holford, Bull, N. P., no. Lord 
 Mansfield said that when trustees ought to convey to the 
 beneficial owner he would leave it to the jury to presume, 
 where such presumption might reasonably be made, that 
 they had conveyed accordingly "In order to prevent a just 
 title from being defeated by a matter of form. ' ' This case 
 was approved and the doctrine applied by Lord Kenyon in 
 
 ™Cal. Civil Code, sees. 2279- Edwards, 88 U. S. 147 ; Guphill v. 
 2280. See Sliepard v. McEvers, 4 Isbell, i Bailey, 230. 
 Johns. Ch. (N. Y.) 136; French v. ^" Kendall v. Gleason, 152 Mass. 
 
 467. 
 
USES AND TRUSTS. 653 
 
 England v. Slade,, 4 T. R. 682. Three things must concur to 
 warrant the presumption : i, It must liave been the duty of 
 the trustee to convey ; 2, There must be sufficient reason for 
 the presumption ; 3, The object of the presumption must be 
 the support of a just title."" The case must be clearly such 
 that a court of equity, if called upon, would decree a recon- 
 veyance. Properly guarded in its application, the principle 
 is a salutary one. It prevents circuity of action with its 
 delays and expense, quiets possession, and gives repose and 
 security to titles. The rule has been firmly established in 
 England, and was well settled in this country at an early 
 day."" The rule stated by Lord Mansfield is only an ampli- 
 fication of the maxim "that which ought to have been done 
 is to be regarded as done in favor of him to whom, and 
 against him from whom performance is due. ' ' 
 
 ='8 Hill, Tr., Bisph. 394. Y.) 62; Doe v. Campbell, 10 Johns. 
 
 3" Moore v. Jackson, 4 Wend. (N, (N. Y.) 475. 
 
CHAPTER XIV. 
 
 REMAINDERS. 
 Sec. 227. Preliminary. 
 
 228. Definition and nature. 
 
 229. Classified as "vested," "contingent," and "cross." 
 
 230. Conditional limitations. 
 
 231. Of vested remainders. 
 
 232. Of contingent remainders. 
 
 233. Different kinds of contingent remainders. 
 
 234. Modern legislation not favorable to contingent remainders. 
 
 235. Partiality of the courts for vested remainders. 
 
 236. Is a freehold estate necessary to support a freehold contingent 
 
 remainder .' 
 37. Conveyances of property in expectancy. 
 
 238. Cross remainders. 
 
 239. Judicial construction of remainders. 
 
 240. Effect of power of sale annexed to a life estate. 
 
 241. Remainders, how destroyed. 
 
 242. Rule as to remoteness. 
 
 243. Limitations. 
 
 244. Merger. 
 
 245. Rare merits of the New York codification. 
 
 246. Judicial comment on this codification. 
 
 247. Origin and history of the rule in Shelley's case. 
 
 a. Theory of the rule. 
 
 b. Analysis of Mr. Hayes. 
 
 c. Of Chief Justice Gibson. 
 
 d. Of Chancellor Kent. 
 
 e. Of Mr. Preston. 
 
 f. Repudiation of the rule in several States. 
 
 g. Comments on the rule. 
 
 248. Future or contingent uses. 
 
 249. Of shifting and springing uses. 
 
 250. Suggestions from Prof. Walker. 
 
 § 227. Preliminary. No topic in the entire law of realty is 
 more abstruse and intricate than that relating to estates in 
 expectancy. The elaborate contrivances of the English law 
 of entailments, and the deep rooted tendency in the mother 
 country to preserve landed property within the confines of 
 
 [654] 
 
REMAINDERS. 655 
 
 a particular family are largely responsible for the per- 
 plexities and uncertainties that infest this topic. Under 
 the English system it is not at all unusual to find half a dozen 
 remainders limited one after another in order to preclude the 
 possibility of the estate passing into the hands of strangers. 
 In this country the subject is bereft of much of its import- 
 ance owing to the prevailing tendency to leave property un- 
 fettered, and to divide it equally among the heirs, and, as a 
 consequence, our reports are singularly deficient in exhibit- 
 ing the traces of such estates. While they have a well recog- 
 nized status in our law of real property, the entire absence 
 of the law of primogeniture — the principles of free aliena- 
 tion, and the disposition to equalize the distribution of 
 estates, has had a very discouraging effect upon this species 
 of land tenures on this side of the Atlantic. 
 
 As regards the commencement of estates the law regards 
 them as being either in possession — as estates in fee, for 
 life, or for years, or in reversion, or remainder — in other 
 words, expectant. Estates in possession have received due 
 treatment in the foregoing chapter. But such estates, while 
 in the occupation and possession of some particular person, 
 may belong in expectancy to somebody else. And this ex- 
 pectancy is the word that gives the title to the present chap- 
 ter. Estates in expectancy then naturally bisect into rever- 
 sions and remainders. The first is always created by opera- 
 tion of law, and may be in fee, for life, or for years. The 
 incident of rent may or may not attach according to circum- 
 stances, and it is regarded as a present interest in land 
 although it may not commence, or rather does not take effect, 
 until some time in the future. The distinction between a 
 reversion and a remainder is chiefly this — the latter are 
 always created by act of the parties, and are never limited to 
 the grantor, although in the loose and unconventional lan- 
 guage of every-day life they are sometimes spoken of as if so 
 limited. To give certitude to this proposition I will illus- 
 trate. Suppose a person seized in fee of certain lands grants 
 them to A. for twenty years, and after the expiration of that 
 term to B. and his heirs forever. Now, in this case B. has 
 an estate in expectancy called a remainder. During the 
 twenty years that A. is in occupation and possession, this 
 
656 REAL PROPERTY. 
 
 estate in expectancy continues in B. And by efflux of time 
 it is annihilated, and B. takes a fee. The entire appositeness 
 of the New York statutory definition is, therefore, clearly 
 apparent. ' ' A remainder is an estate limited to commence 
 in possession at a future day, on the determination by lapse 
 of time or otherwise of a precedent estate created at the 
 same time.'" As previously intimated the theory of our law 
 may admit of several remainders over, one immediately fol- 
 lowing the other. As a grant to A. for five years, remainder 
 to B. for life, reiAainder to C. in tail, and remainder to D. in 
 fee." What is to interfere with our regarding a remainder as 
 any estate dependent on a precedent estate? It seems to 
 me that after exhausting all the definitions this is about what 
 it amounts to. 
 
 Hitherto we have considered estates solely with regard to 
 their duration, or the quantity of interest which the owners 
 have therein.^ We are now to consider them in another view ; 
 with regard to the time of their enjoyment, when the actual 
 permanency of the profits (that is the taking possession or 
 receipt of the rents and other advantages arising therefrom) 
 begins. Estates, therefore, with respect to this considera- 
 tion, may either be in possession, or in expectancy ; and of 
 expectancies there are two sorts ; one created by the act of 
 the parties, called a remainder; the other by act of law, and 
 called a reversion." 
 
 § 228. Definition and nature. Estates in expectancy are such 
 interests in real property as are to be enjoyed by the benefi- 
 ciary at some time in the future usually on the termination 
 of some precedent estate. They are characterized by the 
 common law as reversions and remainders.' It is an execu- 
 tory estate, as opposed to an estate in actual present posses- 
 sion, an estate executed. In New York it imports any pres- 
 ent right or interest in real property which by possibility 
 may vest in possession at a future day.' 
 
 ' I R. S. 723, sees. lo-ii; Sulli- *2 Bl. Com. 163. 
 
 van v. Sullivan, 66 N. Y. 37 ; and * 2 Bl. Com. 163. 
 
 see Sayward v. Sayward, 7 Me. 210. '7 Paige (N. Y.), 76; Story's Eq. 
 
 '4 Kent's Com. 198. Jur. sec. 334. 
 
REMAINDERS. 657 
 
 § 229. Classified as vested, contingent and cross. A re- 
 mainder is a remnant of an estate in lands or tenements, ex- 
 pectant on a particular estate created together with, the same 
 at one time.' Thus, if A., a tenant in fee simple, grants 
 lands to B. for life, and after B.'s decease to C. and his heirs, 
 C.'s interest is termed a remainder in fee expectant on the 
 decease of B.' The term remainderman designates the 
 party who is ultimately to receive an estate in remainder. 
 Williams further states that the distinction between a 
 remainder and a reversion is this — that between the par- 
 ticular tenant B. and the remainderman C. no tenure exists, 
 from which it follows that no rent service can be incident to 
 a remainder. They are usually designated as "vested," 
 "contingent" and "cross," each having peculiar attributes. 
 A remainder is "vested" when there is a person in being 
 who would have an immediate right to the possession upon 
 the termination of the intermediate estate. It is an estate 
 grantable by any of the conveyances operating by force of 
 the Statute of Uses. A remainder limited upon an estate 
 tail is a vested remainder. In fact, a remainder is never 
 held to be contingent if in harmony with the intention it can 
 be regarded as vested." 
 
 ' Co. Litt. 49a. which is Hmited to take effect on 
 ■■ WilHams on Real Property, 253. an event or condition, which may 
 ' Doe V. Consadine, 6 Wall. 474. never happen or be performed, or 
 Bouvier says that a remainder is which may not happen or be per- 
 the remnant of an estate in lands formed till after the determination 
 or tenements expectant on a par- of the preceding particular estate; 
 ticular estate, created together with in which case such remaindernever 
 the same, at one time. (Co. Litt. can take effect. 
 143a.) According to Mr. Fearne, contin- 
 Remainders are either vested or gent remainders may properly be 
 contingent. A vested remainder is distinguished into four sorts: i. 
 one by which a present interest Where the remainder depends en- 
 passes to the party, though to be tirely on a contingent determina- 
 enjoyed in future ; and by which tion of the preceding estate itself, 
 the estate is invariably fixed to re- 2. Where the contingency on which 
 main to a determinate person, after the remainder is to take effect, is 
 the particular estate has been spent, independent of the determination 
 < Vide, 2 Johns. (N. Y.) 288 ; i Yeates, of the preceding estate. 3. Where 
 R. 340.) the condition upon which the re- 
 A contingent remainder is one mainder is limited, is certain in 
 42 
 
658 REAL PROPERTY. 
 
 The essence of a remainder is that it is to arise immedi- 
 ately on the termination of the particular estate, by lapse of 
 time, or other determinate event, and not by abridgment 
 of it.' 
 
 One of the tests by which to distinguish between estates 
 in remainder, and other contingent and conditional interests 
 in real property is, that where the event, which gives birth 
 to the ulterior limitation determines and breaks off the pre- 
 ceding estate, before its natural termination, or operates to 
 abridge it, the limitation over does not create a remainder 
 because it does not wait for the regular expiration of the pre- 
 ceding estate." 
 
 Besides, wherever the gift is of a fee, there cannot be a 
 remainder, although the fee may be a qualified or determi- 
 nable one. The fee is the whole estate. When once 
 granted, there is nothing left in the donor but a possibility 
 or right of reverter, which does not constitute an actual 
 estate." All the estate vests in the first grantee, notwith- 
 standing the qualification annexed to it. If, therefore, the 
 prior gift or grant be of a fee, there can be neither particular 
 estate nor remainder ; there is no particular estate, which is 
 an estate less than a fee ; and no remainder, because, the fee 
 being exhausted by the prior gift, there is nothing left of it 
 to constitute a remainder. Until the happening of the con- 
 tingency, or a breach of the condition by which the prece- 
 dent estate is determined, it retains all the characteristics 
 and qualities of an estate in fee. Although defeasible, it is 
 still an estate in fee. The prior estate may continue for- 
 ever, it being an estate of inheritance, and liable only to de- 
 termine on an event which may never happen. For this 
 reason, the rule of the common law was established, that a 
 remainder could not be limited after a fee. '" 
 
 event, but the determination of the '" i Jarm. on Wills, 780. 
 
 particular estate may happen be- "4 Kent's Com. 10, note; Martirt 
 
 fore it. 4. Where the person, to v. Strachan, 5 T. R. 107, note ; r 
 
 whom the remainder is limited, is Jarm. on Wills, 792. 
 
 not yet ascertained, or not yet in ''^ A remainder limited after a life 
 
 being. (Fearne, 5 ; 2 Bouvier's estate to children or issue of either 
 
 Law Diet. 441.) the life tenant or any other party, 
 
 'Brattle Square Church Props. vestsin the children or issue as rap- 
 
 V. Grant, 3 Gray (Mass.), 141, 142. idly as they come in being. Doe v. 
 
REMAINDERS. 659 
 
 At common law where the person was certain and the 
 event uncertain, the remainder was descendible and passed 
 to the heirs of the remainderman, but this was not so where 
 the person was uncertain and the event certain." 
 
 The distinction is well settled and universally recognized 
 and seems to proceed upon this principle : That where the 
 person is certain and the event only uncertain, though the 
 remainder is contingent, yet the contingency cannot fall in 
 without benefiting that particular person ; hence, whatever 
 this thing the remainderman has is, whether you call it a 
 possibility or an interest, however little it may be worth, it 
 is his and no one else's, and whatever an ancestor has in the 
 nature of an interest in land, however small its value, passes 
 by descent ; while, on the other hand, it is inherent, in the 
 very nature of descent, that there should be something in 
 the ancestor, and if it is uncertain that the ancestor is to take 
 even if the event happen, then there can be no such thing as 
 a descent from him. And a contingent remainder, whether 
 descendible or not, has never been called an interest in or 
 right to the land." 
 
 A contingent remainder is a mere right, and cannot be 
 transferred before the contingency happens, otherwise than 
 by way of estoppel. Any conveyance by matter of record or 
 
 Prigg, 8 Barn. &C. 231 ; Doe v. Pro- The power of appointment does 
 
 vost, 4 Johns. (N. Y.) 61, 4 Am. not afifect the vesting of the estate. 
 
 Dec. 249; Ballard v. Ballard, 18 Fearne, Contingent Remainders, 
 
 Pick. 41; Viner v. Francis, 2 Cox 226; 2 Cruise, Dig. 146; 2 Washb. 
 
 Ch. 190, and notes; aBro. Ch. 658; Real Prop. 542, 578; Bowen v. 
 
 Swinton v. Legare, 2 McCord, Ch. Chase, 94 U. S. 812, 24 L. ed. 184; 
 
 440; Myers V. Myers, Id. 257; Jen- Rogers v. Rogers, 11 R. I. 38; 
 
 kins v. Freyer, 4 Paige (N. Y.), 47; Railsback v. Lovejoy, 116 111. 442 ; 
 
 3 L. ed. 336 ; 2 Jarm. Wills, 75; 4 Kent's Com. 205 ; Breit v. Yea- 
 
 Dingley v. Dingley, 5 Mass. 535 ; ton, loi 111. 242 ; Smith v. West, 
 
 Wight V. Shaw, 5 Cush. (Mass.) 103 111. 332 ; Santa Clara Female 
 
 56; Parker v. Converse, 5 Gray Academy v. Sullivan, 116 111. 375, 
 
 (Mass.), 338; Yeaton v. Roberts, 56 Am. Rep. Tjb; McArthur v. 
 
 supra; Carrol v. Hancock, 48 N. Scott, 113 U. S. 340; 28 L. ed. 1015. 
 
 C. 471; Doe V. Considine, 73 U. "Fearne, Rem. 534-546; Lomax, 
 
 S., 6 Wall. 475; 18 L. ed. 874; 2 Dig. 6or ; Watson v. TioAA, supra ; 
 
 Washb. Real Prop. 552 , Coursey v, 4 Kent's Com. 262. 
 
 Davis, 46 Pa. 25, 84 Am. Dec. 519 ; '"Story, Eq. Jur. 1040; Fearne, 
 
 Walker V. Johnston, 70 N. C. 576. Rem. 15-33. 
 
66o REAL PROPERTY. 
 
 by deed indented, of an executory or contingent interest will 
 work an estoppel. Estoppels exist when no interest passes 
 from the party." 
 
 The principle of estoppel which is here invoked, is both 
 sound and salutary, indeed there are but few applications of 
 the doctrine in recent times that are not entirely justifiable 
 upon every theory of equitable procedure. The old jaundiced 
 view of estoppel was the product of a seriously distempered 
 imagination, and reached the climax of mental obfuscation 
 when it asserted that doctrine was an impediment to the 
 development of truth. 
 
 § 230. Conditional limitations. Douglass, in a note to i 
 Doug. Rep. 755, thinks the distinction between a conditional 
 limitation and a remainder, merely verbal ; but Fearne" vin- 
 dicates the distinction, and relies on the authority of the case 
 of Cogan V. Cogan, Cro. Eliz. 360. Conditional limitations 
 which are contingent remainders, are limited to commence 
 when the first estate is, by its original limitation, to deter- 
 mine ; but conditional limitations, which are not remainders, 
 are so limited as to be independent of the extent and measure 
 given to the first estate, and are to take effect upon an event 
 which may happen before the regular determination of the 
 first estate, and so rescind it. This is Mr. Fearne 's distinc- 
 tion ; but he is not clear and fortunate when he comes to 
 illustrate it by examples; and they appear to be quite 
 refined, and essentially verbal. 
 
 § 232. Of vested remainders. A remainder is said to be 
 vested when a present interest passes to a party to be enjoyed 
 in the future, so that the estate is invariably fixed in a deter- 
 minate person after the particular estate terminates ; while a 
 contingent remainder is one limited to take effect either in a 
 dubious or uncertain person, or upon a dubious and uncer- 
 tain event." This definition is very generally accepted. 
 We have long and learned disquisitions which undertake to 
 vindicate the entire accuracy of other definitions, and in all 
 the severity of criticism Mr. Preston will impugn the accu- 
 
 "i Lotnax, Dig. 602; 4 Kent's "= Fearne on Remainders, 10- 1 8. 
 
 Com. 260, 261. "2 Bl. Cora. 168. 
 
REMAINDERS. 66l 
 
 racy of Coke.— Hargrave quarrels with both— Fearne indorses 
 Hargrave ; while the Lord Chancellor can scarcely restrain 
 his contempt while he gasps an anathema of "no foundation 
 in natural reason"— "raised and supported purely by the 
 artifice of lawyers." In all this the American studsnt- 
 reposes upon the placid suggestion of Mr. Abbott that these 
 wearisome details are of only limited interest in the United 
 States. Resuming the discussion of Blackstone's definition 
 above quoted, it does not necessarily follow that every estate 
 in remainder, which is subject to a contingency or a condi- 
 tion, is a contingent remainder. The condition may be pre- 
 cedent or subsequent. If the former, the remainder will 
 not vest until that which is contingent has happened, and, 
 therefore, become certain. If the latter, the estate vests 
 immediately subject to be defeated by the happening of the 
 condition.'" The case last cited is one of the most celebrated 
 in the New York annals of testamentary law. And among 
 its numerous incidents of value is an illustration drawn by 
 Judge Rapallo as to what is a vested and contingent remain- 
 der. I quote : " A devise of lands to an infant when he shall 
 become of age with remainder over if he dies under age cre- 
 ates a vested and not a contingent estate in the infant. It is 
 defeasible by condition subsequent. His coming of age is 
 not a condition precedent to the vesting of the estate. When 
 nothing is interposed between the infant and his enjoyment 
 of the possession of the estate except his own minority, he 
 has a vested estate, subject to be defeated by the condition 
 subsequent of his dying under age. "'° We have already had 
 occasion to remark that a remainderman always takes by 
 purchase, and never by descent. 
 
 In Moore v. Lyons, 25 Wend. 119, a devise to one for life, 
 and from and after his death to three others or to the survi- 
 vors or survivor of them, their or his heirs and assigns for- 
 ever, was held, in the Court of Appeals, to give a vested 
 interest to the remaindermen at the death of the testator, 
 the words of survivorship being construed to refer to the 
 death of the testator, and not to the death of the tenant for 
 
 "Blanchard v. Blanchard, i Allen " See, also, Roper on Legacies, 
 (Mass.), 223; Manice v. Manice, 43 571 ; 2 Redfield on Wills, 592. 
 N. Y. 380. 
 
662 REAL PROPERTY. 
 
 life. It has been conceded in the Supreme Court that, if the 
 survivors at the death of the tenant for life had been in- 
 tended, the remainder would have been contingent. Here, 
 too, the survivorship directly qualified the gift, and it was 
 not easy to regard it as a subsequent condition to an estate 
 previously given. But Chancellor Walworth, in this case, 
 was of opinion that the remainders would have been vested, 
 even if the words of survivorship had been taken to refer to 
 the death of the tenant for life ; and states the rule to be, 
 that "where a remainder is so limited as to take effect in pos- 
 session, if ever, immediately upon the determination of a 
 particular estate, which estate is to determine by an event 
 that must unavoidably happen by the efflux of time, the 
 remainder vests in interest as soon as the remainderman is 
 in esse and ascertained ; provided nothing but his own death 
 before the determination of the particular estate will prevent 
 such remainder from vesting in possession. Yet, if the estate 
 is limited over to another in the event of the death of the 
 first remainderman before the determination of the particu- 
 lar estate, his vested estate will be subject to be divested by 
 that event, and the interest of the substituted remainder- 
 man, which was before either an executory devise or a con- 
 tingent remainder, will, if he is in esse and ascertained, be 
 immediately converted into a vested remainder. ' ' 
 
 The law will not construe a limitation in a will into an 
 executory devise when it can take effect as a remainder, nor 
 a remainder to be contingent when it can be taken to be 
 vested. 
 
 It is a rule of law that estates shall be held to vest at the 
 earliest possible period, unless there be a clear manifestation 
 of the intention of the testator to the contrary."" 
 
 Adverbs of time — as, where, thereafter, from, etc. — in a 
 devise of a remainder, are construed to relate merely to the' 
 
 ''"Johnson v. Valentine, 4 Sandf. King, 3 Pet. 374; Asay v. Hoover, 
 
 (N. Y.)43 ; Wrightson v. Macauley, 5 Pa. 28 ; Carver v. Jackson, 4 Pet. 
 
 14 M. & W. 240; Chow's Appeal, 37 92; Purefoy v. Rogers, 2 Saund. 
 
 Pa. 28 ; Moore v, Lyons, 25 Wend. 388 ; Doe v. Morgan 3 T. R. 765 ; 
 
 (N. Y.) 126; Phipps V. Williams, 5 Nightingale v. Burrell, 15 Pick. 
 
 Sim. 44; Gold v. Judson, 21 Conn. (Mass.) no. 
 622; Redfield, Wills, 379 ; Finlayv. 
 
REMAINDERS. 663 
 
 time of the enjoyment of the estate, and not the time of the 
 vesting in interest." 
 
 Where there is a devise to a class of persons to take effect 
 in enjoyment at a future period, the estate vests in the per- 
 sons as they come in esse, subject to open and let in others 
 as they are born afterwards." 
 
 An estate once vested will not be divested unless the 
 intent to divest clearly appears." 
 
 The law does not favor the abeyance of estates, and never 
 allows it to arise by construction or implication." 
 
 "When a remainder is limited to a person in esse and 
 ascertained, to take effect by express limitation, on the ter- 
 mination of the preceding particular estate, the remainder is 
 unquestionably vested."" 
 
 This rule is thus stated with more fullness by the Supreme 
 Court of Massachusetts : ' ' Where a remainder is limited to 
 take effect in possession, if ever, immediately upon the deter- 
 mination of a particular estate, which estate is to determine 
 by an event that must unavoidably happen by the efflux of 
 time, the remainder vests in interest as soon as the remain- 
 derman is in esse and ascertained, provided nothing but his 
 ■own death before the determination of the particular estate, 
 will prevent such remainder from vesting in possession ; yet, 
 if the estate is limited over to another in the event of the 
 death of the remainderman before the determination of the 
 particular estate, his vested estate will be subject to be 
 divested by that event, and the interest of the substituted 
 remainderman which was before either an executory devise 
 
 "Johnson v. Valentine, 4 Sandf. R.), 326; Phipps v. Ackers, 9 CI. & 
 
 (N. Y.) 43 ; Moore v. Lyons, 25 F. 583 ; Doe v. Prigg, 8 Barn. & C. 
 
 Wend. (N. Y.) 119 ; Boraston's case, 235; Minnig v. Batdorff, 5 Pa. 505; 
 
 3 Coke, 120; Minnig v. Batdorff, 5 Gold v. Judson, 21 Conn. 623. 
 Pa. 506 ; Rives v. Frizzle, 8 Ired. ''^ Chew's Appeal, 45 Pa. 232 ; 
 
 Eq. 239. Harrison v. Forman, 5 Ves. 208 ; 
 
 ''"' Johnson v. Valentine, 4 Sandf. Doe v. Perryn, 3 T. R. 493 ; Smither 
 
 <N. Y.)45 ; Doev. Provost, 4 Johns, v. Willock, 9 Ves. 234. 
 (N. Y.) 61 ; Chew's Appeal, 37 Pa. " Com. Dig., Abeyance, A. E.; 
 
 28 ; Doe V. Ward, 9 Ad. & Ell. 582, Catlin v. Jackson, 8 Johns. (N. Y.) 
 
 607 ; Hancock v. Hancock, 4 Dow, 549 ; Ekins v. Dormer, 3 Atk. 534. 
 203 ; Doe V. Nowell, i M. & S. 334 ; " Preston, Estates, 70. 
 Bromfield v. Crowder, i B. & P. (N. 
 
664 REAL PROPERTY. 
 
 or a contingent remainder, will, if lie is in esse and ascer- 
 tained, be immediately converted into a vested remainder."" 
 
 In 4tli Kent's Commentaries, 282, it is said : "This has now- 
 become the settled technical construction of the language 
 and the established English rule of construction."" It is 
 added: "It is the uncertainty of the right of enjoyment, and 
 not the uncertainty of its actual enjoyment, which renders a 
 remainder contingent. The present capacity of taking effect 
 in possession — if the possession were to become vacant — 
 distinguishes a vested from a contingent remainder, and not 
 the certainty that the possession will ever become vacant 
 while the remainder continues."" 
 
 It is further said in the same volume, page 284: "A. de- 
 vises to B. for life, remainder to his children, but if he dies- 
 without leaving children, remainder over, both the remain- 
 ders are contingent ; but if B. afterwards marries and has a 
 child, the remainder becomes vested in that child, subject to 
 open and let in unborn children, and the remainders over are 
 gone forever. The remainder becomes a vested remainder 
 in fee in the child as soon as the child is born, and does not 
 wait for the parent's death, and if the child dies in the life- 
 time of the parent, the vested estate in remainder descends 
 to his heirs."" 
 
 The propositions stated are fully sustained by the authori- 
 ties referred to. Other authorities, too numerous to be 
 named, to the same effect, might be cited. We content our- 
 selves with referring to Harrison v. Foreman, 5 Ves. 208 ; Belk 
 V. Slack, I Keen, 238; Bromfield\. Crowder, i B. & P. (N. R.), 
 325 ; Danforth v. Talbot, 7 B. Mon. (Ky.) 624; GoodtitUw. Wkitbyi 
 I Burr. 234 ; Moore v. Lyons, 25 Wend. (N. Y.) 119; RandollY. Doe, 
 5 Dow. 204 ; Edwards v. Symons, 6 Taunt. 214; Phipps v. Acker s,^ 
 9 CI. & F. 583; Stanley v. Stanley, 16 Ves. 506; Doe Y.Nowell, 
 I M. & S. 334; Boraston's Case, 3 Coke, 52; Doe v. Ewart, 7 
 Ad. & El. 636, and Minnig v. Botdorff, 5 Pa. 503. 
 
 " Blanchard v. Blanchard, i Al- Right v. Creber, 5 B. & C. 866 ; Sis- 
 
 len (Mass.), 227. son v. Seabury, Story, J. J., i Sumn.. 
 
 " Doe V. Prigg, 8 Barn. C. 231, 243; Hannan v. Osborn, 4 Paige 
 
 '8 Williamson v. Field, 2 Sandf. Ch. (N. Y.) 336; Marsellis v. Thai- 
 
 Ch. (N. Y.) 533. himer, 2 Id. 35. 
 
 "Doe V. Perryn, BuUer's op.; 
 
REMAINDERS. 
 
 665 
 
 The doctrine received the sanction of the Supreme Court of 
 Ohio in Jeffers ^.Lampson, 10 O. St. loi, where it was adopted 
 and applied. The same doctrine has been sanctioned by the 
 U. S. Supreme Court. =° 
 
 § 232. Of contingent remainders. Where a contingency is 
 limited to depend upon an estate in freehold, which is capable 
 of supporting a remainder, it shall never be construed to be 
 an executory devise, but a contingent remainder only." It 
 is the uncertainty of the right of enjoyment which renders a 
 remainder contingent, not the uncertainty of the actual en- 
 joyment." 
 
 '" Finlay v. King, 3 Pet. 376 ; 
 Carver v. Jackson, 4 Id. i ; Wil- 
 liamson V. Berry, 8 How. 495 ; 
 Croxall V. Sherrerd (ante, S77); 
 Washb. Real Prop. 229, i Greenl. 
 Cruise, tit. Remainder ; Doe v. 
 Considine, 73 U. S. 458. 
 
 When a conveyance of the par- 
 ticular estate is made to support a 
 remainder, the tenant for the par- 
 ticular estate takes it, and if the re- 
 mainderman is in being- he takes 
 the fee. In such a case the re- 
 mainder is not contingent as to its 
 becoming a vested remainder, be- 
 cause the title vests in the re- 
 mainderman on the delivery of the 
 deed. The title thus vested be- 
 comes an estate of inheritance, and 
 in case the remainder man dies be- 
 fore the particular estate is expend- 
 ed, the title passes to his heirs, un- 
 less the deed otherwise directs. 
 (Smith v. West, 103 111. 332 ; Moore 
 V. Littel, 41 N. Y. 75.) An estate 
 is contingent when a right of enjoy- 
 ment is to accrue on an event that 
 is dubious or uncertain. But an 
 estate is vested when there is an 
 immediate fixed right of present or 
 future enjoyment. In doubtful 
 cases an interest shall, if it possibly 
 
 can, consistent with the rules of 
 law, be construed to be vested in 
 the first instance, rather than con- 
 tingent, but if it cannot be con- 
 strued as vested in the first in- 
 stance, it shall be construed to be- 
 come vested as early as possible. 
 (Fearne, on Remainders, 73.) 
 
 ^' Fearne on Remainders, 8, 10 ; 
 Butler's notes, see Poor v. Consa- 
 dine, 73 U. S. 475. 
 
 ^^ Lehndorf V. Cope, 122 111. 307. 
 
 Note. — Chancellor Kent states the 
 distinction in a manner that leaves 
 nothing to be desired. 
 
 "A contingent remainder is 
 limited so as to depend on an 
 event or condition which is dubi- 
 ous and uncertain, and may never 
 happen or be performed, or not 
 until after the determination of the 
 particular estate. (See Hilliard v. 
 Kearney, i Busbee's Eq. (N. C.) 
 221, where the subject of the vest- 
 ing of contingent interests is fully 
 discussed ; Alexander v. Alexan- 
 der, 30 Eng. L. & Eq. 435 ; Crofts 
 V. Middleton, 35 Id. 466 ; Chamber- 
 layne v. Chamberlayne, 34 Id. 207.) 
 It is not the uncertainty of enjoy- 
 ment in future, but the uncertainty 
 of the right to that enjoyment, 
 
666 
 
 REAL PROPERTY. 
 
 The test of a vested remainder is its present capacity to 
 take effect in possession wlienever the prior estate shall 
 determine ; that is, if the remainderman has the right in case 
 of the sudden determination of the prior estate, immediately 
 to go in and take possession, the remainder is vested. 
 
 In Hawley v. James, 5 Paige (N. Y), 466, Chancellor Walworth 
 says : " A remainder is vested in interest where the person is 
 in being and ascertained who will, if he lives, have an abso- 
 lute and immediate right to the possession of the land upon 
 the ceasing or failure of all the precedent estates. ' ' 
 
 In Moore v. Littel, 41 N. Y. 72, it is said: "Decisions and 
 text writers agree that by the common law a remainder is 
 vested when there is a person in being who has a present 
 capacity to take the estate in remainder, if the particular 
 estate be then presently determined ; otherwise the remain- 
 der is contingent. ' ' 
 
 In all these cases and in the text-books, it is always said 
 that before the remainder is vested "the person must be 
 ascertained" — "the person must be certain and determi- 
 
 which marks the difference between 
 a vested and contingent interest, 
 (c) Fearne on Rem. 3 ; Preston on 
 Estates, vol. i. 71, 74. By the stat- 
 ute in 1844, of 7 and 8 Vict., ch. 76, 
 for ' simplifying the assurance of 
 property by deed,' contingent re- 
 mainders are abolished, and every 
 estate which would have taken 
 effect as such, shall take effect, if 
 in a will, as an executory devise; 
 and if in a deed, as an executory 
 limitation or estate of the same na- 
 ture as an executory devise. Con- 
 tingent remainders are by this stat- 
 ute abolished thereafter. Judge 
 Williams, in his plain and familiar, 
 but quite learned ' Principles of 
 the Law of Real Property,' says 
 that there is not an instance to be 
 found of a valid contingent re- 
 mainder, prior to the reign of 
 Henry VL The masterly treatise 
 
 of Mr. Fearne, and which is now in 
 a great degree in the State of New 
 York rendered useless by the late 
 statutes, presented, as he observes, 
 a beautiful specimen of an endless 
 variety of complex cases, all redu- 
 cible to a few plain and simple 
 principles. But the Act of 1845. 
 ch. 106, repealed the Act of 7 and 8 
 Vict. c. 76, which abolished con- 
 tingent remainders retrospectively, 
 and allowed contingent interests to 
 be disposed by deed, but not to 
 defeat or enlarge an estate tail. A 
 bequest of a contingent interest 
 without reference to the death of 
 the legatees during the pendency 
 of the contingency, vests such an 
 interest as survives them on their 
 dying before the determination of 
 the contingent event. Sanderlin 
 v. Deford, 2 Jones, Law (N. C.) 
 74.)" (4 Kent's Com. 241.) 
 
REMAINDERS. 66/ 
 
 nate;" and these expressions mean that the person must be 
 one to whose competency to take no further or other condi- 
 tion attaches — one in respect to whom it is not necessary 
 that an event shall occur, or condition be satisfied, save only 
 that the precedent estate shall determine. 
 
 We shall adopt Blackstone's classification and definitions 
 of "estates in remainder," both vested and contingent. 
 They are approved by Kent, are more easily understood 
 than those of other text writers, and better suited to the 
 condition of real property in this country. 
 
 The uncertainty which makes a remainder contingent is 
 uncertainty as to who will take at any given time if the 
 precedent estate should then terminate. If there are per- 
 sons in being who would be entitled to take if the precedent 
 estate should presently determine, their interest is a vested 
 future estate under the Revised Statutes, notwithstanding 
 that it may be liable to be defeated, e. g., by the death of 
 such a person before the precedent estate actually deter- 
 mines." 
 
 Under a deed of lands to A. for life, and after his death, 
 then to his heirs and assigns forever, the children of A. dur- 
 ing his life have a vested future estate in remainder, which is 
 not contingent by the fact that it is liable to be defeated or 
 modified by death of any of them, or the birth of other chil- 
 dren during his life." 
 
 And this remainder is an estate of which the remainder- 
 man's wife is dowable." 
 
 "In determining whether a remainder is vested or contin- 
 gent, it is to be considered that it was one of the objects of 
 our Revised Statutes to introduce simplicity in these rules, 
 and to favor the vesting of estates and the alienability 
 thereof. And if there is a person in being who would have 
 an immediate right to the possession of the lands upon the 
 ceasing of the precedent estate, then that remainder is 
 vested within the terms of the statute. It is not 'a person 
 who now has a present fixed right of future possession or 
 
 ^^Ct. of Ap., 1868, Sheridan v. a* Id. 
 
 House, 4 Abb. Ct. App. Dec. (N. Y.) '^1872, House v. Jackson, 50 
 
 218 ; S. c. 4 Keyes, 569 (S. P. 4 Abb. N. Y. l6i. 
 Ct. App. Dec. 98). 
 
668 REAL PROPERTY. 
 
 enjoyment,' but a person who would have an immediate 
 right if the precedent estate were now to cease. "" 
 
 Contingent remainders designated also as " executory remain- 
 ders.'^ The presence of some element of uncertainty as to 
 the ultimate vesting of an estate is what brands the interest 
 as ' ' contingent. " It is where the intermediate estate may 
 chance to determine and the remainder never take effect, 
 that imparts the necessary conditional quality which goes to 
 the making of a contingent estate. The present capacity of 
 taking effect in possession, if the possession were to become 
 vacant, distinguishes a ' ' vested' ' from a ' ' contingent' ' remain- 
 der, and not the certainty that the possession will ever be- 
 come vacant while the remainder continues." Recurring to 
 the illustration from Williams: If A. had limited the land 
 after B. 's estate to the heir of C. , a living person, the remain- 
 der would not be ready to come into possession at once, be- 
 cause, until C. dies there is no one to take the remainder ; 
 for nemo est haeres viventis," and during C. 's life there is no 
 such person as his heir. So, if land is limited to B. for life, 
 and after his death, if C. should then be living, to D., D. 's 
 remainder is not vested, because its coming into possession 
 depends not merely on the termination of B. s estate, but on 
 its determination during C. 's life; hence such a remainder is 
 termed a contingent remainder, being a remainder limited 
 so as to depend on an event or condition which may never 
 happen, or be performed, or which may not happen or be 
 performed till after the determination of the preceding 
 estate." When the uncertainty is removed, the remainder 
 becomes vested. The possibility that a remainder may 
 never come into possession at all, does not, of itself, make 
 the remainder contingent. Thus, if land be granted to A. 
 for life, remainder to B. for life, B.'s remainder is vested, 
 although he may die before A. and consequently never come 
 into possession.'" 
 
 '* Moore V. Littel, 41 N. Y. 66. mining the particular estate upon 
 
 ^' 2 Kent, 202. which they depend, before the con- 
 
 '* Fearne on Remainders, i. tingency happens whereby they 
 
 "Id. 216. become vested, (i Rep. 66, 135.) 
 
 Contingent remainders may be Therefore, when there is tenant for 
 
 defeated by destroying or deter- life, with divers remainders in con- 
 
REMAINDERS. 
 
 669 
 
 §233. Different kinds of contingent remainders. Mr. Fearne, 
 in his exhaustive treatise on contingent remainders, classifies 
 them under four distinct heads, and accords to each an ex- 
 tended and critical analysis. Blackstone, on the contrary, 
 regards them as falling under but two subdivisions, viz : i. 
 Such as take effect to an uncertain person, and, 2, such as 
 take effect upon the happening of an uncertain event. There 
 is much controversy over the respective merits of these two 
 classifications.''" Again I will endeavor to illustrate. Sup- 
 
 tingency, he may, not only by his 
 death, but by alienation, surrender, 
 or other methods, destroy and de- 
 termine his own life-estate, before 
 any of those remainders vest ; the 
 consequence of which is, that he 
 utterly defeats them all. As, if 
 there be tenant for life, with re- 
 mainder to his eldest son unborn 
 in tail, and the tenant for life, be- 
 fore any son is born, surrenders 
 his life-estate, he by that means de- 
 feats the remainder in tail to his 
 son ; for his son not being in esse, 
 when the particular estate deter- 
 mined, the remainder could not 
 then vest ; and, as it could not vest 
 then, by the rules before laid down, 
 it never can vest at all. In these 
 cases, therefore, it is necessary to 
 have trustees appointed to preserve 
 the contingent remainders : in 
 whom there is vested an estate in 
 remainder for the life of the tenant 
 for life, to commence when his es- 
 tate determines. If, therefore, his 
 estate for life determines otherwise 
 than by his death, the estate of the 
 trustees, for the residue of his natu- 
 ral life, will then take effect, and 
 become a particular estate in pos- 
 session, sufficient to support the 
 remainders depending in contin- 
 gency. {Seeposi. V.) This method 
 is said to have been invented by 
 Sir Orlando Bridgman, Sir Geoffrey 
 
 Palmer, and other eminent counsel, 
 who betook themselves to convey- 
 ancing during the time of the civil 
 wars, in order thereby to secure in 
 family settlements, a provision for 
 the future children of an intended 
 marriage, who before were usually 
 left at the mercy of the particular 
 tenant for life ; and when, after the 
 restoration, those gentlemen came 
 to fill the first offices of the law, 
 they supported this invention, 
 within reasonable and proper 
 bounds and introduced it into gene- 
 ral use. (2 Comm. c. 11. See 
 Moor. 486; 2 Roll. Abr. 797, pi. 12; 
 2 Sid. 159; 2 Chan. Rep. 170; 2 
 Jacob's Law Diet. tit. Remainders.) 
 * Mr. Challis reviews the contro- 
 versy in these words : "It is con- 
 ceived that, in this controversy, 
 each side is partly in the right and . 
 partly in the wrong. The truth 
 seems to be, that the definition of 
 the first class of contingent re- 
 mainders, as given by Fearne, is 
 somewhat incomplete, and that, by 
 reason of this incompleteness, it 
 contains within its terms the estate 
 of trustees to preserve contingent 
 remainders ; and that in this sense 
 and to this extent, those who have 
 contended that the estate in ques- 
 tion is a contingent remainder, are 
 right, but that the definition admits 
 of being rectified so as to exclude 
 
6/0 
 
 REAL PROPERTY. 
 
 pose the remainder is limited to the first born son of B. , who 
 is childless at the time. Here you have a contingent remain- 
 der, for it is entirely uncertain that B. will ever have a son. 
 
 this estate, without at the same 
 time excluding any other estate 
 which it was designed to include, 
 and that when examined by the 
 proper tests for distinguishing 
 vested estates in general from con- 
 tingent estates in general, the es- 
 tate of the trustee seems much 
 more properly to come within the 
 conception of a vested estate than 
 of a contingent estate. This is 
 equivalent to saying that the deci- 
 sion in Dormer v. Parkhurst, 3 
 Atk. 135, seems to be substantially 
 right in principle. 
 
 " The estate of the trustees does 
 seem to come within the words of 
 Fearne's definition as stated in the 
 text, if they are taken strictly. It 
 is the fact that in this case 'the re- 
 mainder depends entirely upon a 
 contingent determination of the 
 preceding estate itself;' and that 
 while the precedent estate is capa- 
 ble of being determined in several 
 ways, the estate of the trustees is 
 so limited as to take effect only in 
 case the determination shall take 
 place in some of those ways. But 
 the examples given by Fearne show 
 his meaning. In those examples 
 the contingent remainder is capable 
 of being destroyed, if the precedent 
 estate should determine in what 
 may be called the wrong way; and 
 this quality of contingent re- 
 mainders supplied the principle 
 motive which induced him to write 
 his treatise. This distinguishing 
 characteristic is not possessed by 
 the estate of the trustees, because 
 if the precedent estate should de- 
 termine in the wrong way, that is, 
 
 by the death of the tenant for life, 
 the estate of the trustee will not be 
 destroyed, but will simultaneously 
 determine by its own natural expi- 
 ration. Nothing is more evident 
 than that Fearne's treatise was not 
 written to illustrate the nature of 
 estates of this description ; and if 
 by inadvertance he has included 
 any of them in his definition, the 
 most reasonable course seems to 
 be to amend the definition so as to 
 exclude these extraneous speci- 
 mens, and not to take advantage of 
 the words of the definition in order 
 to include within it something to 
 which it was not meant to apply. 
 
 " The estate of the trustees is such 
 that it either must actually take 
 effect in possession or else must 
 determine by natural e.xpiration eo 
 instanti with the determination of 
 the precedent estate. But no 
 words could be more appropriate 
 to describe a vested estate. Every 
 vested estate which is capable of a 
 natural expiration, may, by possi- 
 bility, fail to become an estate in 
 possession, by reason of its deter- 
 mination during the continuance 
 of, or eo instanti viilh. the precedent 
 estate. The peculiar feature of con- 
 tingent remainders, and the only 
 feature which makes it necessary 
 to bestow upon them special con- 
 sideration, is their liability to fail 
 to become estates in possession by 
 reason of something else than their 
 own natural expiration. 
 
 "It accordingly seems to be expe- 
 dient that the following proviso 
 should be added to the definition 
 above given of the first class of 
 
REMAINDERS. 67 1 
 
 And, as illustrative of the second class, suppose an estate is 
 granted with a remainder to B. in fee, if B. should survive 
 A. Here again, the remainder is contingent. But not be- 
 cause of any uncertainty in the person, as B. is a large and 
 wholesome entity. But rather because there is uncertainty 
 in the event for, obviously, B. may not survive A. Again, 
 I cannot refrain from pointing out the simple precision of 
 the New York revision which states the ultimate essence of 
 all this learning in two brief lines. "Remainders are con- 
 tingent whilst the person to whom, or the event upon which 
 they are limited to take effect remains uncertain."" And 
 see the decision of the General Term of the Supreme Court 
 in Leslie v. Marshall, 31 Barb. 564, opinion by Marvin, J. If 
 it be within the power of language to make a more concise 
 and accurate statement we are envious of that power. Glanc- 
 ing over the mighty elaborations of Mr. Fearne and Mr. 
 Preston — recalling Mr. Cornish's labored view, where in 
 seventy pages of fine type he seeks to show a defect in Coke's 
 definition of "remainders," and the all but endless disserta- 
 tions of dead and gone pundits, it is with a feeling of relief 
 and gratification that we can reach at least this stage of the 
 subject with something like a clear-headed notion of what 
 contingent remainders are. He who wishes to experience a 
 like sensation should devote his study to Fearne on Remain- 
 ders, where the great art of simplifying a thing to a state of 
 bewilderment has been most indubitably illustrated. It is 
 generally referred to as a "treatise," it is more properly a 
 nightmare. I have followed with waning hopes every intel- 
 ligent attempt at its mastery, and hear that a group of advo- 
 cates in London, having coherence enough to merit the name 
 of a school, claim to understand it. I trust their claim is illu- 
 sory — as in the light of personal experience it is permitted 
 me to doubt that the human intellect can ever co-ordinate 
 into any mutual relation of unity so much contradiction and 
 absurdity. And yet this heterodite production imposed 
 
 contingent remainders. Provided, determine by its own natural expi- 
 
 always, that the precedent estate is ration.'' (Challis, Real Prop. 116, 
 
 capable of determination in at 117.) 
 
 least one way, which will neither ■" See sec. 234, post. 
 
 vest the remainder nor cause it to 
 
672 REAL PROPERTY. 
 
 itself t pon several generations of lawyers as a true triumph 
 of genius ! I have no wish to even minimize the services of 
 this consecrated man, but regard it as a healthy manifesta- 
 tion of sanity and courage that Mr. Fearne is no longer read. 
 
 § 234. Modern legislation not favorable to contingent re- 
 mainders. The tendency of all modern legislation is against 
 contingent remainders, and this, too, seems to be the drift of 
 judicial construction. It is said, to have the fee in a state of 
 abeyance, a condition that often occurs in contingent remain- 
 ders, is always odious. This legislative and judicial current 
 can be attributed to a variety of causes. One of the most 
 influential reasons for the drift is inherent in the subject; for 
 while a remainder, in its original simplicity, would appear 
 to be easy and practical in its application and operation, yet 
 the collateral refinements and complex questions that have 
 grown out of it from time to time cause the inquiry to in- 
 volve critical discussions upon the most abstruse, subtle and 
 artificial distinctions in the law. To such an extent, had 
 this excessive refinement been carried, that Chancellor Kent 
 said ' ' that the English law of real property has, in the lapse 
 of ages, become encumbered with much technical and 
 abstruse refinement, which destroys its simplicity and good 
 sense, and renders it almost impossible for ordinary minds 
 to obtain the mastery of the science."" 
 
 Lord Chancellor Cowper said ' ' that it had no foundation 
 in natural reason, but is raised and supported purely by the 
 artificial reasoning of lawyers."" 
 
 Let the modern lawyer undertake to read and compre- 
 hend the classification of contingent remainders in the trea- 
 tise of Fearne, or Preston's observations on the rule in 
 Shelley's case, until he becomes inextricably tangled in 
 "wild involutions," and then the drift towards a less 
 refined and a more easily comprehended law of real property 
 will be appreciated. The reactionary feeling against the 
 web of perplexing refinement arose in the place of its growth 
 and development, and resulted in the Statute of 7 and 8 Vict, 
 chap. 76, in 1 844, ' ' for simplifying the assurance of property 
 
 ■"4 Kent's Com. 212. '"Brown v. Barkham, Finch, 
 
 Prec. in Ch. 462. 
 
REMAINDERS. 673 
 
 "by deed." By this statute contingent remainders are abol- 
 ished, and it is provided that every estate that would have 
 taken effect as such shall take effect, if in a will, as an execu- 
 tory devise, and, if in a deed, as an executory estate or limi- 
 tation of the same nature as an excutory devise. By the Act 
 of Parliament of 1845, chap. 106, so much of the Act of 7 and 
 8 Vict, chap. 76 as abolished contingent remainders retro- 
 spectively, was repealed, and this latter act allowed "contin- 
 gent interests" to be disposed of by deed, but not to defeat 
 or enlarge an estate; so that in all conveyances either by 
 will or deed, made after the Statute of 7 and 8 Vict., contin- 
 gent remainders were not created. 
 
 In this country the legislation has not been so radical, not- 
 withstanding the existence of numerous and important rea- 
 sons for it. The aversions of the law to the inheritance 
 being in abeyance, the desire that the alienation of estates 
 should be facilitated, the stability of the title, and the benefit 
 of creditors are inducements, in addition to the complicated 
 condition of the subject, to such legislative action as will 
 render the construction of a will or conveyance easy of com- 
 prehension to the ordinary mind. 
 
 The statutes of New York define an "estate in remainder" 
 as follows : 
 
 ' ' Where a future estate is dependent on a precedent estate, 
 it may be termed a ' remainder, ' and may be created and 
 transferred by that name. ' ' 
 
 These statutes also allow "a future estate which needs no 
 particular estate to support it ; and, where it is limited on a 
 prior estate, it need not rest immediately upon the determi- 
 nation of the prior estate. ' ' Of course this legislation practi- 
 cally destroys "remainders," properly so called." 
 
 Under the statutes in various States, if the person who is 
 to take the estate is ascertained, he has what is called a 
 ' ' vested interest in a contingent remainder, ' ' which may be 
 alienated by deed. When the person is ascertained who is 
 to take the remainder when it becomes vested, and he dies, 
 it will pass to his heirs, or may be devised by him. It might 
 always have been released by him to the reversioner. 
 
 ♦•See Hennessy v. Patterson, 85 N. T. 91. 
 43 
 
674 REAL PROPERTY. 
 
 In the case of Putnam v. Story, 132 Mass. 205, it is held that 
 where there was a remainder to heirs, though contingent, it 
 was assignable ; it appearing that there were children living 
 at the time. An attempted conveyance by deed will pass 
 the estate by estoppel when it vests." 
 
 When, however, the contingency is not in reference to the 
 person who is to take, but to the event upon which he is to 
 take, the remainderman may grant his interest, and the 
 grantee will take subject to the contingency." 
 
 In Drake v. Brown, 68 Pa. 223, Agnew, J., says: "It is im- 
 material whether his interest in the property was vested or 
 contingent, it was liable for his debts."" 
 
 It may pass to the assignee in insolvency." 
 
 Such a remainder descends." 
 
 In New York, Michigan, Minnesota and Wisconsin expect- 
 ant estates are descendible, devisable, and alienable in the 
 same manner as estates in possession. In the States of 
 Massachusetts and Maine, when any contingent remainder is 
 so limited to any person that in case of his death, the estate 
 would descend to his heirs in fee simple, such person may, 
 before the happening of the contingency, sell, assign or 
 devise the premises subject to the contingency. Where 
 lands are held by one person for life, and with a vested 
 remainder in tail to another, the tenant and remainderman 
 may together convey the same in fee simple. In Alabama 
 no estate in lands can be created by way of a contingent 
 remainder, but every estate created by will or deed, which 
 might have taken effect as a contingent remainder or execu- 
 tory devise, has the same properties and effect as the latter 
 estate. 
 
 The rule in the Shelley case, which was a part of the com- 
 mon law, has been repealed or altered by all the States, ex- 
 cept in Maryland, Georgia, Texas, Indiana and Pennsylvania. 
 
 Judicial construction has been doing its work in this direc- 
 tion, but the line on which this warfare has been carried on 
 
 « Robertson v. Wilson, 38 N. H. ■^ Belcher v. Burnett, 126 Mass. 
 
 48. 230. 
 
 « Kenyon v. See, 94 N. Y. 563. " Chess' App. 87 Pa. 362 ; Buck 
 
 '" See, also, White v. McPheeters, v. Lantz, 49 Md. 439. 
 
 75 Mo. 286. 
 
REMAINDERS. 675 
 
 tas been principally against contingent remainders, on the 
 ground that they violate the rule against perpetuities, and 
 that, like executory devises, they must be so limited as to 
 take effect, if at all, within a life or lives in being and 
 twenty-one years and a fraction after. 
 
 In Massachusetts the courts have applied the rule against 
 perpetuities to contingent remainders, without question. '° 
 
 § 235. Partiality of the courts for vested remainders. There 
 are some rules for guiding the court in determining ques- 
 tions of this kind that have been so often declared in adjudi- 
 cated cases, and so strongly emphasized by the text writers, 
 and are so well settled as to become imperative in their ope- 
 ration and universal in their application. There is a preva- 
 lent disposition by all courts upon the grounds of general 
 policy, to favor vested rather than contingent remainders, 
 and consequently, where there arises from the terms of the 
 conveyance a grave doubt as to whether the remainder vested 
 at the death of the devisor, or should remain expectant and 
 contingent until the happening of a future event, the doubt 
 is always resolved in favor of a vested remainder. 
 
 Indeed, many well considered cases assert a still stronger 
 rule in favor of vested remainders, by holding that all estates 
 in remainder are to be treated as vested, except in a devise 
 in which a condition precedent to the vesting is so clearly 
 expressed that the court cannot treat it as vested, without, 
 doing so in plain contradiction of the language of the will. 
 Another rule so often expressed that we find it everywhere 
 in the books, but probably included in those already stated, 
 is that no remainder will be construed to be contingent 
 which may, consistently with the words used or the inten- 
 tion expressed, be deemed vested. Another goes to the ex- 
 tent that the intent to make a contingent remainder must be 
 expressed in words so plain that there is no room for con- 
 struction." These rules sufficiently indicate the leaning of 
 the courts towards vested- remainders." 
 
 »» Loveringv. Levering, 129 Mass. " Straus v. Rost, 67 Md. 465. 
 97; Hills v. Simonds, 125 Mass. " Bunting v. Speaks, 41 Kan. 424. 
 S36; Otis v. McLellan, 13 Allen 
 (Mass.), 339. 
 
6/6 REAL PROPERTY. 
 
 § 236. Is a freehold estate necessary to support a freehold 
 contingent remainder? In a qualified and restrictive way we 
 must answer this question in the negative. Under the old 
 common law regulations a freehold estate was necessary to 
 support the remainder. But, as has been repeatedly indi- 
 cated, we are rapidly receding from the tyranny of the com- 
 mon law and are rapidly developing a jurisprudence more in 
 harmony with an advanced civilization, and the requirements 
 of a commercial age. Statutory enactments are quite gene- 
 rally provided that a freehold is no longer necessary to sup- 
 port a remainder, and quite generally it is also saved from 
 forfeiture or merger in the life estate. Provisions to this 
 effect are not universal in this country, but will be found to 
 obtain in several States, notably Alabama, Arkansas, Cali- 
 fornia, Georgia, Indiana, Iowa, Kentucky, Maine, Massachu- 
 setts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, 
 New York, North Dakota, South Dakota, Texas, Vermont, 
 Virginia, West Virginia, Washington and Wisconsin. Penn- 
 sylvania never tolerated the common law rulfe, and Louisi- 
 ana is practically under the Napoleon code. Statutory 
 regulations of this character cannot but have a salutary 
 effect, and it is to be regretted that they are not of wider 
 acceptation. 
 
 § 237. Conveyance of property in expectancy. The sale of 
 an heir's expectancy is not void in equity, but if unaccom- 
 panied by fraud and for a fair consideration, it will be upheld." 
 It follows from this postulate that a deed which purports to 
 convey property which is in expectancy, or to be subse- 
 quently acquired, though inoperative as a grant, will be 
 given effect as an executory agreement, and enforced accord- 
 ing to its intent, if grounded on a valuable consideration, and 
 free from any suggestion of fraud." This view is repudiated 
 in some jurisdictions as a fraud upon the ancestor productive 
 of public mischief, and void at law and in equity." Pomeroy 
 says: "All conveyances and charges and contracts of sale of 
 future and expectant interests during the life of the ancestor 
 
 " Parsons v. Ely, 45 111. 243. ^5 Boynton v. Hubbard, 7 Mass. 
 
 " Bayler v. Com, 40 Pa. 37; 112. 
 Bailey v. Hoppin, 12 R. I. 568. 
 
REMAINDERS. ^77 
 
 or life tenant upon an inadequate consideration (mark) will 
 be relieved against in equity, and either wholly or partially 
 set aside/" Such conveyances usually take the form of a. post 
 obit bond or contract, which is an agreement on the receipt 
 of a sum of money by the obligor to pay a larger sum on the 
 death of the person from whom he has some expectation of 
 receiving an inheritance. Such contracts are not nullities 
 and if the stipulated indemnity is a just consideration for the 
 hazard it is enforcible. Such contracts are regarded with 
 suspicion and will be rigidly scrutinized. Hart v. Gregg, 32 
 Ohio St. 502, is an illuminative case, holding that such a con- 
 veyance or contract does not operate to defeat the grantor's 
 title afterward acquired by descent, except by way of legal or 
 equitable estoppel and in the absence of covenants of war- 
 ranty, he is not bound. 
 
 § 238. Cross-Remainders. ' ' Cross-remainders are another 
 qualification of these expectant estates, and they may be 
 raised expressly by deed, and by implication in a devise. If 
 a devise be of one lot of land to A., and of another lot to B., 
 in fee, and if either dies without issue, the survivor to take, 
 and if both die without issue, then to C. in fee, A. and B. 
 have cross-remainders over by express terms; and on the 
 failure of either, the other or his issue takes, and the remain- 
 der to C. is postponed ; but if the devise had been to A. and 
 B. of lots of each, and remainder over on the death of both of 
 them, the cross-remainders to them would be implied. So, 
 if different parcels of land are conveyed to different persons 
 by deed, and by the limitation they are to have the parcel of 
 each other when their respective interests shall determine, 
 they take by cross-remainders ; and this complex doctrine of 
 cross-remainders, in the mode in which the parties become 
 entitled, and in their proportions, though not in their inter- 
 ests, has a great analogy, as Mr. Preston observes, to the 
 order of succession between co-partners. The courts lean in 
 favor of cross-remainders, in order to effectuate the intention. 
 It is a method to bring the estate together."" 
 
 Cross-remainders will not be raised by implication in a will, 
 unless the intention appears clearly that no person shall in- 
 
 '* 2 Pom. Eq. Jur. 474. " 4 Kent's Com. 235. 
 
678 REAL PROPERTY. 
 
 herit any part of the estate, or take it by way of remainder, 
 as long as any of the devisees, or any of their issue to whom 
 it is given, are alive. " 
 
 Thus A. devised land to his four sons, B., C, D., and E., 
 "and to their male heirs of their own bodies begotten, for- 
 ever ; and in case either of them should die before the age of 
 twenty-one, his or their lands to be equally divided between 
 their surviving brothers, or to their male heirs. B. died 
 during infancy, before distribution of the lands, without 
 issue, and C. and D. died successively afterwards, leaving 
 male issue. Finally E. died, leaving issue female only. It 
 was held, that this devise created no cross-remainders among 
 the devisees, but that, upon the death of E. without issue 
 male, the estate reverted to the heirs general of the devisor, 
 except the share of B. , which, on his death, went to the sur- 
 viving- brothers, and, on their deaths, to their respective 
 heirs general." 
 
 It has been said that cross-remainders are accorded very 
 scant respect, as between more than two they are never im- 
 plied, but must arise from distinct recitals in the deed or 
 will. Hence, a devise "to my four sons or the survivors of 
 them, and their heirs and assigns, to be equally divided 
 among them, when the youngest becomes of age," was held 
 to vest a fee." 
 
 § 239. Judicial Construction of remainders. The struggle 
 with the courts has always been for that construction which 
 gives to the remainder a vested rather than a contingent 
 character. A remainder is never held to be contingent 
 when, consistently with the intention, it can be held to be 
 vested. If an estate be granted for life to one person — and 
 any number of remainders for life to others in succession — 
 and finally a remainder in fee simple or fee tail, each of the 
 grantees of a remainder for life takes at once a vested estate, 
 although there be no probability, and scarcely a possibility, 
 that it will ever, as to most of them, vest in possession." 
 
 "Hungerford v. Anderson, 4 Day «" Lawrence v. McArter, 10 Ohio, 
 (Conn.), 368. 37. 
 
 '» Id. •' Williams, Real Prop. 208. 
 
REMAINDERS. 679 
 
 § 240. Effect of power of sale annexed to a life estate. 
 
 There is a slight misapprehension as to the effect of a power 
 of sale when such power is supplemental or additional to a 
 life estate. It has been gravely contended by lawyers of high 
 repute that such a power practically and undisputably ele- 
 vated the estate to the full dignity of a fee. This must be 
 regarded as an erroneous view. Power to sell and convey 
 the fee may at the same time limit a remainder after the ter- 
 mination of the life estate. If the power is so exercised as 
 to dispose of the entire estate, of course the remainderman 
 has nothing simply because there is nothing. But the 
 remainder is not contingent because it is uncertain if the 
 power will be so exercised." 
 
 § 241. Remainders, how destroyed. If the particular estate 
 is determined before the contingency happens on which the 
 expectant estate depends, the remainder is annihilated, and 
 the alteration in the particular estate which will destroy the 
 remainder must concern its quantity, and not merely its qual- 
 ity." The English cases say that a merger by the act of the 
 parties of the particular estate is also equally effectual as 
 a fine to destroy a contingent remainder. But on this doc- 
 trine of merger, the English law engrafts a multitude of 
 perplexing subtleties, that are of no conceivable conse- 
 quence in the American law. Chancellor Kent, when in 
 one of his apologetic moods, could not restrain a rising emo- 
 
 " Burleigh v. Clough, 52 N. H. the New York Court of Appeals 
 
 367. once characterized Fearne's treatise 
 
 This case was decided in 1872, as " an evergreen tree of diabolical 
 and the opinion was written by Mr. knowledge." But it is unquestion- 
 Justice Foster. Few, if any, of our able that the very absurdities it 
 State reports contain a more lumi- emphasized originated the most 
 nous exposition of a perplexing salutary reforms. Judge Foster 
 topic than will be found in this touches upon several of the protu- 
 singularly exhaustive review. If berances in the law of remainders 
 Mr. Fearne could have emancipated with extreme tact and rare compre- 
 himself from the trammels of an hensiveness. And no student of 
 exceedingly voluble diction he our modern law of real property is 
 would not have made confusion justified in neglecting a careful re- 
 worse confounded by spreading be- view of this highly illustrative case, 
 fore the profession his alleged trea- '' See Fearne on Remainders, 426. 
 tise. A distinguished member of 
 
68o REAL PROPERTY. 
 
 tion of hostility to the senseless parade of trifling distinc- 
 tions with which P'earne on Remainders is literally thatched, 
 and in a mildly explosive way delivers himself as follows: "I 
 allude to it merely as fresh proof of the everlasting uncer- 
 tainty that perplexes this branch of legal science. This is 
 one among the thousand samples of the refinements which 
 have gradually accumulated, until they have, in a very con- 
 siderable degree, overshadowed and obscured many parts of 
 the English law of real property ; and I am more and more 
 impressed with a sense of the great utility of the provision 
 rescuing contingent remainders, by legislative authority, 
 from all perplexing dependence on the particular estate." 
 
 If the mild and philosophic chancellor could be goaded into 
 splenetic observations over the general chaos of this theme, 
 surely the poor drudge, who is floundering in an abyssmal 
 welter of alleged distinctions that even Fearne's treatise fails 
 to tabulate, may be excused for expressing his want of sym- 
 pathy with the ' ' symmetries of the common law. ' ' 
 
 It may be added that a person holding merely a trust can- 
 not by any species of conveyance destroy a contingent 
 remainder arising on the termination of the expectant estate. 
 In such cases the legal estate is vested in the trustee, and 
 such an investiture gives them a right of entry abundantly 
 sufficient to support the remainder." 
 
 An estate in expectancy cannot, as a rule, be defeated by 
 an act tortious or otherwise of the tenant of the precedent or 
 particular estate. And a conveyance which would operate 
 under the Statute of Uses, or a lease and release is compe- 
 tent to pass only such interest as the grantor himself law- 
 fully possesses. In no case can he prejudice the rights of 
 the remainderman.'" And even in those few States where 
 the freehold is said to be in abeyance, a remainder is practi- 
 cally indestructible. 
 
 Much learning has been displayed in the effort to inform 
 us that under the common law, by entry for condition broken, 
 or by disseizin of the particular tenant, or by feoffment, or 
 merger, and descent cast, a contingent remainder might be 
 
 "I Greenl. Cruise, 717. es Dennett v. Dennett, 43 N. H. 
 
 498. 
 
REMAINDERS. 
 
 68 [ 
 
 defeated. All this learning is dust and rubbish in out mod- 
 ern law, but is valuable as casting a strong side light upon 
 another of the wholesome features of the common law. 
 That it was ever possible, in any land, to abolish such valu- 
 able rights as are frequently represented by remainders 
 through the exercise of any mere whim of the occupant of 
 the particular estate seems incredible, yet sach was the rul-_ 
 ing under the common law. To prevent this rank and glar- 
 ing injustice a legal fiction was indulged by which a board of 
 trustees was interposed between the particular estate and the 
 expectant estate, and by this cumbersome device the latter 
 estate retained its autonomy. But we are not called upon to 
 pursue this subject further, as, in this country the expect- 
 ancy is inviolable until the period of its natural limitation 
 has been reached by the happening of the event upon which 
 depended the enjoyment of the particular estate. 
 
 § 242. Rules as to remoteness. Limitations will not take 
 effect as contingent remainders where the contingency is too 
 remote, and there has been a vast amount of refined theoriz- 
 ing in the application of this rule. For instance, double pos- 
 sibilities or a possibility on a possibility is without doubt 
 obsolete as a rule of property. Williams says "that an estate 
 cannot be given to an unborn person for life followed by any 
 estate to any child of such unborn person."" Mr. Tiedeman 
 says : " A remainder, therefore, may be made to depend upon 
 any number of contingencies, provided the person who is to 
 take is not the unborn child of an unborn person. This does 
 not, of course, prevent the limitation of an estate tail to an 
 unborn child. And when a testator attempts to give a life 
 estate to an unborn person, with remainder in tail to his 
 children, the courts, taking note of the general intent to 
 create an estate tail, will construe the estate to the unborn 
 person to be a fee tail, instead of declaring void the remain- 
 der in tail to his children. But if such a limitation appeared 
 in a deed this construction could not be upheld, and the 
 remainder would be declared void."" So, too, it is import- 
 
 ** William's Real Prop. 274. 114; Jackson v. Brown, 13 Wend. 
 
 "Tied. Real Prop. sec. 417 ; citing (N. Y.) 437 ; Daebler's App. 64 Pa. 
 
 j^^^ra/zaNourse V. Merriam,8 Cush. St. 15. 
 (Mass.) II ; Allyn v. Mather, 9 Conn. 
 
682 REAL PROPERTY. 
 
 ant to remember that the event upon which a contingent 
 remainder may depend is, in the language of Mr. Washburn, 
 "that it must not be of such as to abridge the particular 
 estate, for it is of the essence of a remainder that it should 
 wait until the particular estate has had a natural determina- 
 tion, according to the terms of its limitation. The remain- 
 der must not, therefore, be in the nature of a condition at 
 common law which may defeat the particular estate, for first, 
 no one but the grantor in such a case could take advantage 
 of it, and second, upon his doing so in the only way in which 
 it can be done, namely, by the making of an entry, he would 
 thereby regain his original seizin, and defeat the seizin as 
 well as the freehold on which the remainder depended, 
 wherefore no remainder could be limited upon a condition. 
 If the particular estate be limited to two, with a remainder 
 over upon the death of one of them to a stranger in fee, the 
 remainder is void, because, as the survivor must have the 
 estate for life, by reason of his having been a joint tenant 
 with the deceased, the limitation over upon the death of one, 
 can only take place by defeating the estate of the survivor. 
 Had the limitation been to the survivor instead of a stranger, 
 it would have been good. ' ' 
 
 It may be observed in this connection that an estate in ex- 
 pectancy can never be limited after an estate upon condition, 
 and to take effect only upon the breach of the condition. 
 Concisely this proposition may be stated thus : The particular 
 estate cannot be defeated before its natural termination by 
 the mere happening of some contingent event, which may 
 abridge the estate. Again, let us resort to Mr. Washburn's 
 very apt illustration. " The proposition that a remainder 
 must not abridge the particular estate, may be illustrated by 
 a limitation of an estate to a widow with an expectant estate 
 depending upon it. Thus, supposing it were desired to limit 
 an estate expectant upon her marrying again, it would not 
 do to make an estate to her for life, remainder to A. B. in fee 
 on condition she remains a widow, for if the heir were to 
 enter upon her marrying again, and defeat the estate, he 
 would also defeat the remainder. To accomplish the desired 
 purpose, the limitation to the widow should be during her 
 widowhood, with remainder over. The remainder upon her 
 
REMAINDERS. 683 
 
 marrying again will then take effect upon the natural deter- 
 mination of her estate. But it will be understood, that the 
 propositions here sought to be illustrated, apply only to 
 estates at common law ; for a limitation of an estate after a 
 prior one which is to abridge or defeat the first, may be 
 good if created by will as a conditional limitation."" 
 
 §243. Limitations. " A limitation may be made to depend 
 on any number of contingencies, even though they may be 
 engrafted on each other, so long as each amounts to a com- 
 mon probability, and so long as they may, according to com- 
 mon probability, grow out of or be connected with each 
 other in the manner specified by the instrument containing 
 the limitation. But a limitation is invalid, when made to 
 depend on a single contingency, if it is made to depend on a 
 remote possibility or when made to depend on two contin- 
 gencies; if, according to common probability, they do not 
 grow out of and are not connected with each other in the 
 manner specified."" 
 
 The freehold in the ancestor, and the limitation to his 
 heirs, must be by the same deed or instrument, or they will 
 not consolidate in the ancestor. If he acquires the freehold 
 by one deed, and the limitation to his heirs by another, 
 the limitation will continue, as it originally was, a contingent 
 remainder. But if the estate be limited to A. for life by one 
 deed, and afterwards in his lifetime, to the heirs of his body, 
 under the execution of a power of appointment contained in 
 the same deed, the limitations unite according to the general 
 rule ; and on this principle, that a limitation under a power 
 
 " In Cole V. Sewell, supra, Lord possession, because the previous 
 
 St. Leonards (Sir E. Sug-den) says : estate may subsist for centuries, or 
 
 "As to the question of remote- for all time, or it is a contingent 
 
 ness, at this time of day, I was very remainder, and then, by the rule of 
 
 much surprised to hear it pressed law, unless the event upon which 
 
 upon the court, because it is now the contingency depends happens 
 
 perfectly settled that where a limi- so that the remainder may vest eo 
 
 tation is to take effect as a remainder, instantt, the preceding limitation 
 
 remoteness is out of the question ; determines, it can never take effect 
 
 for the given limitation is either a at all." 
 
 vested remainder, and then it mat- <" Smith's Ex. Int. sees. 697, 698. 
 ters not whether it ever vest in 
 
684 REAL PROPERTY. 
 
 contained in a conveyance to uses, operates as a use created 
 by and arising under the conveyance itself. It is a branch 
 of one and the same settlement. This arises from the retro- 
 spective relation which appointments bear to the instrument 
 containing the power." 
 
 ' ' When a contingent particular estate is followed by other 
 limitations, a question frequently arises whether the contin- 
 gency affects such estate only or extends to the whole series. 
 The rule in these cases seems to be that if the ulterior limita- 
 tions be immediately consecutive on the particular estate, in 
 unbroken continuity, and no intention or purpose is ex- 
 pressed with reference to that estate in contradistinction 
 to the others, the whole will be considered to hinge on 
 the same contingency; and that, too, although the con- 
 tingency relate personally to the object of the particular 
 estate, and, therefore, appear not reasonably applied to 
 the ulterior limitations. Thus, where an estate for life is 
 made to depend on the contingency of the object of it being 
 alive at the period when the preceding estates determine, 
 limitations consecutive on that estate have been held to be 
 contingent on the same event for want of something in the 
 will to authorize a distinction between them.V" 
 
 But the rule referred to is one of construction, merely, and 
 intended only as a formula for the purpose of classifying 
 cases in which the meaning is gathered from the language of 
 the testator expressing such intention, and is not to be 
 applied to instances in which it appears that the contingency 
 is restricted to the immediate estate. The same author 
 divides those instances into two other classes ; "First, Where 
 the words of contingency are referable to and evidently 
 spring from an intention which the testator has expressed in 
 regard to that estate by way of distinction from the others. 
 Secondly, The contingency is restricted to the particular 
 estate with which it stands associated where the ulterior limi- 
 tations do not follow such contingent estate in one uninter- 
 rupted series in the nature of remainders, but assume the 
 form of substantive independent gifts."" 
 
 '» 4 Kent's Com. 246. " Id. 831, 832. 
 
 " I Jarm. Wills (5th Am. ed.), by 
 Bigelow,* 831. 
 
REMAINDERS. 685 
 
 § 244. Merger. Merger bears a very near resemblance, in 
 circumstances and effect, to a surrender: but the analogy- 
 does not hold in all cases, though there is not any case in 
 which merger will take place, unless the right of making and 
 accepting a surrender resided in the parties between whom 
 the merger takes pace." To a surrender, it is requisite that 
 the tenant of the particular estate should relinquish his 
 estate in favor of the tenant of the next vested estate, in 
 remainder or reversion. But merger is confined to the cases in 
 which the tenant of the estate in reversion or remainder 
 grants that estate to the tenant of the particular estate, or in 
 which the particular tenant grants his estate to him in rever- 
 sion or remainder." Surrender is the act of the party, and 
 merger is the act of the law. The latter consolidates two 
 estates, and sinks the lesser in the greater estate. The mer- 
 ger is co-extensive with the interest merged, as in the case of 
 joint tenants and tenants in common; and it is only to the 
 extent of the part in which the owner has two several estates. 
 An estate may merge for one part of the land, and continue 
 in the remaining part of it." 1 
 
 I 245. Rare merits of the New York codification of 1896. 
 
 In New York, very deep innovations have been made upon 
 the English system. No valid remainder can be defeated by 
 the determination of the precedent estate, before the hap- 
 pening of the contingency on which the remainder is limited 
 to take effect ; and the remainder takes effect when the con- 
 tingency happens, in the same manner and to the same ex- 
 tent as if the precedent estate had continued. This relieves 
 us in New York, and fortunately and wisely relieves us, 
 from the burden of investigating and following all the inven- 
 tions and learning calculated to elude the fatal consequences 
 of the premature destruction of the particular estate. But 
 another and more momentous change in the law has annihi- 
 lated at once all this doctrine of remainders by way of use. 
 Every contingent remainder which, under the English law, 
 is by way of use, is now (1896) in New York, a strictly legal 
 contingent remainder, and governed by the same rules. 
 
 "Preston on Convey, vol. Ill, "Id. 25. 
 23, 153. "Id. 88, 89. 
 
686 REAL PROPERTY. 
 
 There is no longer any need of trustees to preserve contin- 
 gent remainders; and they could not exist if they were 
 necessary, for their duty is not one of the express trusts 
 which may be created. It is declared that every disposition 
 of lands, whether by deed or devise, shall be directly to the 
 person in whom the right to the possession and profits shall 
 be intended to be invested, and not to any other, to the use 
 of, or in trust for such person ; and if so made, no estate or 
 interest, legal or equitable, vests in the trustee. 
 
 If, by some feat of necromancy the student of the law of 
 real property could but get a glimpse of the stupendous 
 mass of discussion, wise and otherwise, that has found its 
 way into type, he would at once turn with gratitude to the 
 New York revision of 1896, as embodying the most pithy 
 and sententious utterances on this truly perplexing topic of 
 expectancies. The whole range of legal literature cannot 
 afford a more striking instance of apt condensation. And it 
 has received the repeated endorsement of jurists of high 
 repute and of lawyers of the most critical disposition. I 
 append the text as expository of a highly refined subject. 
 
 ARTICLE II — Creation and Division of Estates in Ex- 
 pectancy. 
 
 Section 25. Estates in possession and expectancy. 
 
 26. Enumeration of estates in expectancy. 
 
 27. Definition of future estates. 
 
 28. Definition of remainder. 
 
 29. Definition of reversion. 
 
 30. When future estates are vested; when contin- 
 
 gent. 
 
 31. Power of appointment not to prevent vesting. 
 
 32. Suspension of power of alienation. 
 
 33. Limitation of successive estates for life. 
 
 34. Remainders on estates for life to third person. 
 
 35. When remainder to take effect if estate be for 
 
 lives of more than two persons, 
 
 36. Contingent remainder on term of years. 
 
 37. Estate for life as remainder on term of years. 
 
 38. Meaning of heirs and issue in certain remainders. 
 
REMAINDERS, 687 
 
 Section 39. Limitations of chattels real. 
 
 40. Creation of future and contingent estates. 
 
 41. Future estates in the alternative. 
 
 42. Future estates valid though contingency improb- 
 
 able. 
 
 43. Conditional limitations. 
 
 44. When heirs of life tenants take as purchasers. 
 
 45. When remainder not limited on contingency de- 
 
 feating precedent estate takes effect. 
 
 46. Posthumous children. 
 
 47. When expectant estates are defeated. 
 
 48. Effect on valid remainders of determination of 
 
 precedent estate before contingency. 
 
 49. Qualities of expectant estates. 
 
 50. Disposition of rents and profits. 
 
 51. Accumulations. 
 
 52. Anticipation of directed accumulation. 
 
 53. Undisposed of profits. 
 
 54. When expectant estates are deemed created. 
 
 5 5 . Estates in severalty, j oint tenancy and in common. 
 56. When estate in common ; when in joint tenancy. 
 
 Section 25. Estates in possession and expectancy. — Estates, 
 as respects the time of their enjoyment, are divided into estates 
 in possession, and estates in expectancy. An estate which 
 entitles the owner to immediate possession of the property, 
 IS an estate in possession. An estate, in which the right of 
 possession is postponed to a future time, is an estate in ex- 
 pectancy. 
 
 § 26. Enumeration of estates in expectancy. — All expect- 
 ant estates, except such as are enumerated and defined in 
 this article, have been abolished. Estates in expectancy are 
 divided into, 
 
 1. Future estates, and 
 
 2. Reversions. 
 
 § 27. Definition of future estates. — A future estate, is an 
 estate limited to commence in possession at a future day, 
 either without the intervention of a precedent estate, or on 
 the determination, by lapse of time or otherwise, of a prece- 
 dent estate created at the same time. 
 
688 REAL PROPERTY. 
 
 § 28. Definition, remainder. — Where a future estate is 
 dependent on a precedent estate, it may be termed a remain- 
 der, and may be created and transferred by that name. 
 
 § 29. Definition, reversion. — A reversion is the residue of 
 an estate left in the grantor or his heirs, or in the heirs of a 
 testator, commencing in possession on the determination of 
 a particular estate granted or devised. 
 
 § 30. When future estates are vested ; -when contingent. — 
 A future estate is either vested or contingent. It is vested, 
 when there is a person in being, who would have an imme- 
 diate right to the possession of the property, on the determi- 
 nation of all the intermediate or precedent estates. It is con- 
 tingent while the person to whom or the event on which it is 
 limited to take effect remains uncertain. 
 
 § 31. Power of appointment not to prevent vesting. — The 
 existence of an unexecuted power of appointment does not 
 prevent the vesting of a future estate, limited in default of 
 the execution of the power. 
 
 § 32. Suspension of power of alienation. — The absolute 
 power of alienation is suspended, when there are no persons 
 in being by whom an absolute fee in possession can be con- 
 veyed. 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 ; except that a contingent remain- 
 der in fee may be created on a prior remainder in fee, to take 
 effect in the event that the persons to whom the first remain- 
 der 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 pur- 
 poses 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. 
 
 § 33. Limitation of successive estates for life. — Successive 
 estates for life shall not be limited, except to persons in being 
 at the creation thereof ; and where a remainder shall be lim- 
 ited on more than two successive estates for life, all the life 
 estates subsequent to those of the two persons first entitled 
 thereto, shall be void, and on the death of those persons, the 
 
REMAINDERS. 689 
 
 remainder shall take effect, in the same manner as if no 
 other life estates had been created. 
 
 § 34. Remainders on estates for life of third person. — A 
 remainder shall not be created on an estate for the life of any- 
 other person than the grantee or devisee of such estate, un- 
 less such remainder be in fee ; nor shall a remainder be cre- 
 ated on such an estate in a term of years, unless it be for the 
 whole residue of such term. 
 
 § 35. When remainders to take effect if estate be for lives 
 of more than two persons. — - When a remainder is created on 
 any such life estate, and more than two persons are named 
 as the persons during whose lives the life estate shall con- 
 tinue, the remainder shall take effect on the death of the two 
 persons first named, as if no other lives had been introduced. 
 
 § 36. Contingent remainder on term of years. — A contin- 
 gent remainder shall not be created on a term of years, 
 unless the nature of the contingency on which it is limited 
 be such that the remainder must vest in interest, during the 
 continuance of not more than two lives in being at the crear 
 tion of such remainder, or on the termination thereof. 
 
 § 37. Estate for life as remainder on term of years. — No 
 estate for life shall be limited as a remainder on a term of 
 years, except to a person in being at the creation of such 
 estate. 
 
 § 38. Meaning of heirs and issue in certain remainders. — 
 Where a remainder shall be limited to take effect on the 
 death of any person without heirs, or heirs of his body, or 
 without issue, the words "heirs" or "issue," shall be con- 
 strued to mean heirs or issue, living at the death of the person 
 named as ancestor. 
 
 § 39. Limitations of chattels real. — All the provisions con- 
 tained in this article, relative to future estates, apply to limi- 
 tations of chattels real, as well as of freehold estates, so that 
 the absolute ownership of a term of years shall not be sus- 
 pended for a longer period than the absolute power of aliena- 
 tion can be suspended in respect to a fee. 
 
 § 40. Creation of future and contingent estates. — Subject 
 
 to the provisions of this article, a freehold estate as well as a 
 
 chattel real may be created to commence at a future day ; an 
 
 estate for life may be created in a term of years, and a 
 
 44 
 
690 REAL PROPERTY. 
 
 remainder limited thereon; a remainder of a freehold or 
 chattel real, either contingent or vested, may be created ex- 
 pectant on the determination of a term of years ; and a fee 
 or other less estate, may be limited on a fee, on a contin- 
 gency which, if it should occur, must happen within the 
 period prescribed in this article. 
 
 § 41. Future estates in the alternative. — Two or more 
 future estates may be created to take effect in the alterna- 
 tive, so that if the first in order fails to vest, the next in suc- 
 cession shall be substituted for it, and take effect accord- 
 ingly. 
 
 § 42. Future estate valid though contingency improba- 
 ble. — A future estate, otherwise valid, shall not be void on 
 the ground of the improbability of the contingency on which 
 it is limited to take effect. 
 
 § 43. Conditional limitations. — A remainder may be lim- 
 ited on a contingency, which, if it happens, will operate to 
 abridge or determine the precedent estate ; and every such 
 remainder shall be a conditional limitation. 
 
 § 44. When heirs of life tenant take as purchasers. — Where 
 a remainder shall be limited to the heirs, or heirs of the body, 
 of a person to whom a life estate in the same premises is 
 given, the persons who, on the termination of the life estate, 
 are the heirs, or heirs of the body, of such tenant for life, 
 shall take as purchasers, by virtue of the remainder so lim- 
 ited to them. 
 
 § 45. When remainder not limited on contingency defeating 
 precedent estate, takes effect. — When a remainder on an 
 estate for life or for years is not limited on a contingency 
 defeating or avoiding such precedent estate, it shall be con- 
 strued as intended to take effect, only on the death of the 
 first taker, or the expiration by lapse of time of such term of 
 years. 
 
 § 46. Posthumous children. — Where a future estate is lim- 
 ited to heirs, or issue, or children, posthumous children shall 
 be entitled to take in the same manner as if living at the 
 death of their parents ; and a future estate, dependent on the 
 contingency of the death of any person without heirs, or 
 issue, or children, shall be defeated by the birth of a posthu- 
 mous child of such person, capable of taking by descent. 
 
REMAINDERS. 69 1 
 
 § 47. When expectant estates are defeated. — An expectant 
 estate cannot be defeated or barred Ify any transfer or other 
 act of the owner of the intermediate or precedent estate, nor 
 by any destruction of such precedent estate by disseizin, for- 
 feiture, surrender, merger or otherwise; but an expectant 
 estate may be defeated in any manner, or by any act or 
 means which the party creating such estate, in tlie creation 
 thereof, has provided for or authorized. An expectant 
 estate thus liable to be defeated shall not, on that ground, be 
 adjudged void in its creation. 
 
 § 48. Effect on valid remainders of determination of prece- 
 dent estate before contingency.^ A remainder valid in its 
 creation shall not be defeated by the determination of the 
 precedent estate, before the happening of the contingency on 
 which the remainder was limited to take effect ; should such 
 contingency afterwards happen the remainder shall take 
 effect in the same manner and to the same extent as if the 
 precedent estate had continued to the same period. 
 
 § 49. Qualities of expectant estates. — An expectant estate 
 is descendible, devisable and alienable, in the same manner 
 as an estate in possession. 
 
 § 50. Dispositions of rents and profits. — A disposition of 
 the rents and profits of real property to accrue and, be 
 received at any time subsequent to the execution of the in- 
 strument creating such disposition, shall be governed by the 
 rules established in this article, for future estates in real 
 property. 
 
 § 51. Accumulations. — All directions for the accumluation 
 of the rents and profits of real property, except such as are 
 allowed by statute, shall be void. An accumulation of rents 
 and profits of real property, for the benefit of one or more 
 persons, may be directed by any will or deed sufficient to 
 pass real property as follows : 
 
 1. If such accumulation be directed to commence on the 
 creation of the estate out of which the rents and profits are 
 to arise, it must be made for the benefit of one or more 
 minors then in being, and terminate at or before the expira- 
 tion of their minority. 
 
 2. If such accumulation be directed to commence at any 
 time subsequent to the creation of the estate out of which 
 
692 REAL PROPERTY. 
 
 the rents and profits are to arise, it must commence mthin 
 the time permitted, by the provisions of this article, for the 
 vesting of future estates, and during the minority of the 
 beneficiaries, and shall terminate at or before the expiration 
 of such minority. 
 
 3. If in either case such direction be for a longer term than 
 during the minority of the beneficiaries it shall be void only 
 as to the time beyond such minority. 
 
 § 52. Anticipation of directed accumulation. Where such 
 rents and profits are directed to be accumulated for the 
 benefit of a minor entitled to the expectant estate, and such 
 minor is destitute of other sufficient means of support and 
 education, the supreme court, at a special term, or, if such 
 accumulation has been directed by will, the surrogate's court 
 of the county in which such will has been admitted to pro- 
 bate, may, on the application of his general or testamentary 
 guardian, direct a suitable sum out of such rents and profits 
 to be applied to his maintenance or education. 
 
 § 53. Undisposed profits. — When, in consequence of a valid 
 limitation of an expectant estate, there is a suspension of the 
 power of alienation, or of the ownership, during the continu- 
 ance of which the rents and profits are undisposed of, and no 
 valid direction for their accumulation is given, such rents 
 and profits shall belong to the persons presumptively entitled 
 to the next eventual estate. 
 
 § 54. When expectant estates are deemed created. — Where 
 an expectant estate is created by grant, the delivery of the 
 grant, and where it is created by devise, the death of the 
 testator, shall be deemed the time of the creation of the 
 estate. 
 
 §246. Comments on this codification. "Here, discarding 
 all the abstruse and refined discussions and disputes as to 
 what constitutes an estate and what a mere possibility or ex- 
 pectation, we have a series of statutory definitions, under 
 which a remainder expectant upon the determination of the 
 estate of a tenant for life is declared to be : First, An ' estate 
 in expectancy;' Second, A 'future estate;' and it is either 
 vested or contingent. 
 
 ' ' If there ' is a person in being who would have an immedi- 
 
REMAINDERS. 693 
 
 ate right to the possession of the lands upon the ceasing of 
 the precedent estate, then that remainder is vested' within 
 the terms of the statute. It is not 'a person who now has a 
 present iixed right of future possession or enjoyment,' but a 
 person who would have an immediate right if the precedent 
 estate were now to cease. I read this language according to 
 its ordinary and natural signification, and if you can point to 
 a human being and say as to him, 'that man or woman by 
 virtue of a grant of a remainder, would have an immediate 
 right to the possession of certain lands if the precedent estate 
 of another therein should now cease, ' then the statute says he 
 or she has a vested remainder. 
 
 * * * "Without enlarging further, the statute rejecting 
 technical expressions and phrases heretofore employed means 
 by the word person just what it expresses and no more. 
 ' When there is a person in being, ' means when you can point to 
 a human being, man, woman, or child; and 'who would have 
 an immediate right to the possession of the lands upon the 
 ceasing of the precedent estate, ' means that if you can point 
 to a man, woman, or child who, if the life estate should now 
 cease, would, eo instanti et ipso facto, have an immediate right of 
 possession, then the remainder is vested and, by necessary 
 consequence, all the contingencies which may operate to 
 defeat the right of possession are to operate, and only to 
 operate as conditions subsequent."" 
 
 Refinements have gradually accumulated, until they have, 
 in a very considerable degree, overshadowed and obscured 
 many parts of the English law of real property, and I am 
 more and more impressed with a sense of the great utility of 
 the provision rescuing contingent remainders, by legislative 
 authority, from all perplexing dependence on the particular 
 estate. 
 
 § 247. Origin and history of the rule in Shelley's case. The 
 
 Shelleyite controversy in the time of Queen Eizabeth has be- 
 come historical, and it is extremely doubtful if the legal arena 
 has ever witnessed a more protracted or virulent discussion, or 
 one that has enlisted a more formidable array of talent or 
 elicited more critical acumen and analysis. 
 
 " Woodruff, J., in Moore v. Littel, 41 N. Y. 66. 
 
694 REAL PROPERTY. 
 
 The earliest intelligible decision upon the subject, how- 
 ever, is to be found in the case of the Provost of Beverly, in 
 the time of Edward III, and reported in the Year Books, in 
 which the rule is substantially declared as in Shelley's case. 
 Various theories have been suggested as furnishing a founda- 
 tion for the rule in the first instance; some authors, with 
 much plausibility, tracing it to the same principle which 
 applied originally to "heirs" when used in a conveyance. 
 "It was at first understood that in case of such a limitation 
 the estate was in fact to go to the heirs of the grantee 
 named ; that, though he had a right to enjoy it during life, 
 he had no right to cut off the descent by alienation ; and that 
 when, therefore, the word 'heirs' in the progress of estates, 
 came to be regarded as a mere term of limitation, giving the 
 grantee a complete ownership, with an unrestricted right of 
 alienation, it was not easy to distinguish between a case where 
 the limitation was to one and his heirs, and that where it was to 
 him for life, and after his death to his heirs ; the effect at 
 common law being the same in both forms of limitation."" 
 Nor does it seem that this result worked any particular hard- 
 ship to the heir, as in those days ready money was extremely 
 scarce, and the alienation of lands assumed the form of per- 
 petual leases, granted in consideration of certain services or 
 rents reserved to the grantor and his heirs ; and, as such ser- 
 vices and rents descended to the heir, it was not so great a 
 disadvantage to him as at first might be supposed." 
 
 Blackstone says : ' ' Another foundation of the rule probably, 
 was laid in a principle diametrically opposite to the genius 
 of feudal institutions, namely a desire to facilitate the aliena- 
 tion of land, and to throw it into the track of commerce 
 one generation sooner, by -vesting the inheritance in the 
 ancestor."" 
 
 In Polk v. Paris, 30 Am. Dec. 400, Reese, J., in a very able 
 opinion in vindication of the rule, uses this language : " It is 
 a rule of canon and property, which so far from being at war 
 with the genius of our limitations, or with the liberal and 
 commercial spirit of the age, which alike abhor the locking 
 
 " 2 Washb. Real Prop. 647 ; Wms. '" See also Rawle's note, Wms. 
 Real Prop. 254. Real Prop. 253. 
 
 "Wms. Real Prop. 39. 
 
REMAINDERS. 695 
 
 up and rendering inalienable real property and other prop- 
 erty, seems to be in perfect harmony with both. It is 
 owing, perhaps, to this circumstance, that the rule, a Gothic 
 column found among the remains of feudality, has been 
 preserved in all its strength to aid in sustaining the fabric 
 of the modern social system." 
 
 In Hileman v. Bouslaugh, 53 Am. Dec. 474, the distinguished 
 Chief Justice Gibson says : ' ' Though of feudal origin, it is 
 not a relic of barbarism, or a part of the rubbish of the dark 
 ages," etc. It has other than feudal objects, to wit, the un- 
 fettering of estates, by vesting the inheritance in the ances- 
 tor and making it alienable a generation sooner than it other- 
 wise would be. 
 
 That this result accords most thoroughly with the general 
 tendency of juridical evolution is apparent from the progress 
 of the law, and the gradual falling away of entails, and other 
 restraints on alienation, from the times of Henry I to the 
 present. It seems clear that in a highly complex state of 
 society, with greatly diversified industries and immense 
 commercial activities, it would be desirable to remove every 
 clog on the free and easy alienability of all kinds of property 
 and that such has been the spirit of the legislation in this 
 State is manifest from a perusal of the various statutes en- 
 acted upon the subject. We are not unaware of the fact that 
 in some of the States the rule has been partially, if not 
 wholly abolished. Such legislation was probably influenced 
 by the presumed lack of conformity with the supposed inten- 
 tion of the grantor or testator. But to this it has been an- 
 swered that "when a case arises, fulfilling the requirements 
 for the application of the rule, it is not against the intention 
 of the testator. It is only applicable when the intention of 
 the testator has been discovered by the ordinary canons of 
 descent." "The rule is not a means to discover the inten- 
 tion of the grantor or testator, but supposing the intention 
 ascertained, the rule controls it, so far as it is repugnant to 
 the policy of the law, giving effect to the general and legal, 
 rather than the more particular and prescribed, intent. The 
 party making such a limitation has in its mind two purposes 
 
 8» 2 Fearne, Remainders, sec. 434. 
 
696 REAL PROPERTY. 
 
 which are legally in conflict. One is to give the ancestor 
 only a life estate, the other to limit the land to his heirs col- 
 lectively, and in indefinite succession. These two intents 
 cannot stand together without more or less of general mis- 
 chief to the public welfare ; and the rule prevails simply to 
 subordinate the particular and apparently less important 
 design, of limiting the ancestor's interest to a life estate to 
 the more comprehensive and probably preferred purpose of 
 transmitting the inheritance in the manner indicated."" 
 
 a. Theory of the rule. Theoretically the rule is this : When 
 an estate of freehold is limited to a person, and in the same 
 instrument there is a limitation, either mediate, or immedi- 
 ate, to his heirs or the heirs of his body, the word "heirs" is 
 to be taken as a word of limitation, or, in other words, the 
 ancestor takes the whole estate comprised in these words, if 
 it be to the heirs of his body, a fee tail ; if to his heirs, a fee 
 simple.*' ' 
 
 By force of the rule, the ancestor took the whole estate, 
 and the heirs, if they took at all, could only take by descent, 
 which of course might be barred by grant or devise. The 
 technical legal principle of the rule was that the words 
 "heirs" or "heirs of the body" created a remainder in fee or 
 in tail, which the law, to prevent an abeyance, vested in the 
 ancestor, who is tenant for life; and by the conjunction of 
 the two estates, he became tenant in fee or in tail. 
 
 The word heirs had to be used to make the rule applicable, 
 and the estate of the ancestor had to be a freehold. The 
 words "lawful issue" have been held to have as extensive a 
 signification as heirs of the body." If the heirs were desig- 
 nated nominatim or as a class, the rule did not apply, nor if 
 the person to take the first estate were deceased.'* The rule 
 was also often relaxed in interpreting wills and marriage 
 settlements, and in executory trusts." If the word "issue" 
 was defined as referring to a certain class, as issue living at 
 the time of the devisee's death, or "children," the rule did 
 
 *' 2 Minor, Inst. 395, cited with '^ Kinsland v. Rapelyea, 3 Ed. 
 
 approval in Leathers v. Gray, 96 Ch. i. 
 N. C. 548. 8" Brunt v. Gelston, 2 John. Ca. 
 
 '* I Powell on Devises, 429. 384. 
 
 ''Tallman v. Wood, 26 Wend. 9. 
 
REMAINDERS. 697 
 
 not apply." The origin and polity of the rule arose from 
 the feudal tenure, which favored descents, among other rea- 
 sons, because if the heirs took as purchasers, the lord would 
 be deprived of certain feudal incidents. By reflecting on this 
 theory of the rule, the rule itself is easily remembered. 
 Upon the abolition of feudal tenures, the reason for the rule 
 no longer existed, but the rule itself remained. 
 
 b. Analysis of Mr. Hayes. "The rule assumes and founds 
 itself upon two pre-existing circumstances — a freehold in 
 the ancestor, and a remainder to the heirs. The absence of 
 either of these ingredients repels the application of the rule ; 
 their concurrence irresistibly invites it. When the rule 
 supposes the second limitation to be a remainder, it plainly 
 excludes: i. The case of limitations differing in quality, 
 the one being legal and the other equitable ; 2, The case of 
 limitations arising under distinct assurances ; and, 3, The case 
 of an executory liraitation, by way of devise or use, and, con- 
 sequently, upon principle, the case of a limitation arising 
 under an appointment of the use ; but authority seems to 
 have established an anomalous exception in regard to 
 appointments. Again, as the second limitation must be a 
 remainder to the heirs, it follows that, with limitations to 
 sons, children, or other objects, to take, either as individuals 
 or as a class, under what is termed a descriptio personcz, as 
 distinguished from a limitation embracing the line of inherit- 
 able succession, the rule has no concern whatever. In order 
 to find whether the second limitation is a remainder to the 
 heirs or not, we must resort to the general rules and princi- 
 ples of law. The rule being a maxim of legal policy, con- 
 versant with things and not with words, applies whenever 
 judicial exposition determines that heirs are described, 
 though informally, under a term correctly descriptive of 
 other objects, but stands excluded whenever it determines 
 that other objects are described, though informally, under 
 the term heirs. Thus, even the word children, aided by the 
 context, or the word issue, uncontrolled by the context, may 
 have all the force of the word heirs, and then the rule 
 
 ««4 Paige, 345; Id. 293; 3 Sandf. Wend. 503; Campbell v. Rawden, 
 Ch. 64; Christie v. Phyfe, 19 N. Y. 18 N. Y. 412. 
 344; Post v. Post, 47 Barb. 72 ; 3 
 
698 REAL PROPERTY. 
 
 applies; while the word heirs, restrained by the context, 
 may have only the force of the word children, and then the 
 rule is utterly irrelevant. These are preliminary questions, 
 purely of construction, to be considered without any refer- 
 ence to the rule, and to be solved by, exclusively, the ordi- 
 nary process of interpretation. This point, kept steadily in 
 view, would have prevented infinite confusion. 
 
 ' ' The operation of the rule is two-fold : First, It denies 
 to the remainder the effect of a gift to the heirs ; Secondly, 
 it attributes to the remainder the effect of a gift to the an- 
 cestor himself. It is, therefore, clear that the rule not only 
 defeats the intention, but substitutes a legal intendment 
 directly opposed to the obvious design of the limitation. A 
 rule which so operates cannot be a rule of construction. As 
 a consequence of transferring the benefit of the. remainder 
 from the heirs, who are unascertained, to the ancestor, who 
 is ascertained, the inheritance, limited in contingency to the 
 heirs, may become vested in the ancestor; and as another 
 consequence of the same process, the ancestor's estate of free- 
 hold may merge in the inheritance. 
 
 ' ' The obvious deduction is that in no case does the rule dis- 
 turb the particular estate of freehold in the ancestor, which 
 estate is left to the uncontrolled operation of ordinary prin- 
 ciples, merging, or not merging, according as the remainder, 
 transferred by the rule from the heirs to the ancestor, is 
 absolute or conditional, proximate or remote. The estate of 
 freehold is a circumstance without which the rule is dormant ; 
 but the rule, when called into action, exerts its force on the 
 remainder alone. Why that circumstance was selected, we 
 can only conjecture. It is affirmed, indeed, that a limitation 
 to A. fpr life, with remainder to his heirs, is in truth the 
 same thing as a limitation to A. and his heirs. In the sim- 
 ple cases thus put, the effect, under the rule, aided by the 
 doctrine of merger, is the same, but surely the import is not 
 the same. And how unsatisfactory does this reasoning 
 appear when it is recollected that the rule equally applies 
 where the gift is to A. for life, remainder (interposed), to B. 
 for life, remainder to the heirs of A. ; or, to A. pur autre vie, 
 remainder to the heirs of A. ; or, to A. durante viduitate, 
 remainder to the heirs of A. ; or, to A. in tail, remainder to 
 
REMAINDERS. 699 
 
 the heirs of A., etc. — cases which need only be mentioned 
 in order to destroy the theory that would form a fee by the 
 union of the two limitations. It is an error, and the fruitful 
 parent of errors, to affirm that the limitations unite or coal- 
 esce under the rule, which has discharged its office by sim- 
 ply substituting the ancestor for the heirs in the second 
 limitation. 
 
 "When the ordinary rules of construction have ascertained 
 the co-existence of a freehold in the ancestor with a remain- 
 der to the heirs, the simplest and surest method of applying 
 the rule is to read the second limitation as a limitation to the 
 ancestor himself and his heirs. This gives at once, and in 
 every possible case, the true result. The effect, univer- 
 sally and constantly, will be the same as if the remainder 
 had been expressly and intentionally limited to the ancestor 
 and his heirs — reading the words ' and his heirs, ' not (accord- 
 ing to the notion referred to at the close of the preceding 
 paragraph), as words of limitation of the estate of freehold 
 before expressly limited to him, but as words of limitation of 
 the estate in remainder attributed to him by the rule."" 
 
 c. Of Chief Justice Gibson. In Hillman v. Bouslagh, 1 3 Pa. 
 St. 344, Chief Justice Gibson, in an able opinion, gives the 
 rule a most earnest support, and defends the policy of retain- 
 ing it as a part of the American law of real property. "The 
 rule in Shelley's case," says he, "ill deserves the epithets 
 bestowed on it in the argument. It is part of a system ; an 
 artificial one, it is ' true, but still a system, and a complete 
 one. * * * It happily falls in with the current of our 
 policy. By turning a limitation for lifq, with remainders to 
 the heirs of the body, into an estate tail, it is the handmaid 
 not only of Taltarum's case, but of our statute for barring 
 entails by a deed acknowledged in court, and where the 
 limitation is to heirs general, it cuts off what would other- 
 wise be a contingent remainder, destructible only by a com- 
 mon recovery. * * * It is admitted that the rule sub- 
 verts a particular intention in perhaps every instance ; for as 
 was said in Roe v. Bedford, 4 Maule & Sel. 363, it is proof 
 against even an express declaration that the heirs shall take 
 
 «' I Hayes, Conv. (5th ed.), 542-546. 
 
700 REAL PROPERTY. 
 
 as purchasers. But it is an intention which the law cannot 
 indulge, consistently with the testator's general plan, and 
 which necessarily subordinates to it. It is an intention to 
 create an inalienable estate tail in the first donee, and to 
 invert the rule of interpretation, by making the general 
 intention subservient to the particular one. The donor is no 
 more competent to make a tenancy for a life a source of inheri- 
 table succession, than he is competent to create a perpetu- 
 ity, or a new canon of descent. The rule is too intimately 
 connected with the doctrine of estates to be separated from 
 it without breaking the ligaments of property. ' ' 
 
 Under the "rule in Shelley's case," where it is in force, 
 the word "heirs," when used, must be held to be a word of 
 limitation, and not of purchase. This rule and its applica- 
 tion have been fully and elaborately considered and illus- 
 trated in Baker v. Scott, 62 111. 86 ; Carpenter v. Van Olinder, 
 127 111. 42; 2 L. R. A. 455 ; Hageman v. Hageman, 129 111. 164. 
 The rule is said to be a rule of property which overrides 
 even the expressed intention of the testator or grantor that 
 it shall not operate, or which rather raises a conclusive pre- 
 sumption that, where a devise or grant is made to a man and 
 his heirs, the testator or grantor intended to use the word 
 "heirs" as a word of limitation, and not of purchase. Thus, 
 in the language of Preston on Estate, quoted and adopted by 
 us in Carpenter v. Van Olinder, supra : ' ' Neither the expressed 
 declaration, first, that the ancestor shall have an estate for 
 his life, and no longer; nor, secondly, that he shall have 
 only an estate for life in the premises, and after his decease 
 it shall go to the heirs of his body, and, in default of such 
 heirs, vest in the person next in remainder, and that the 
 ancestor shall have no power to defeat the intention of the 
 testator ; nor, thirdly, that the ancestor be tenant for his life, 
 and no longer, and that it shall not be in his power to sell, dis- 
 pose or make away with any part of the premises — will 
 change the word 'heirs' into a word of purchase." 
 
 d. Of Chancellor Kent. "The judicial scholar, on whom his 
 great master. Coke, has bestowed some portion of the 'glad- 
 some light of jurisprudence,' will scarcely be able to with- 
 draw an involuntary sigh, as he casts a retrospective glance 
 over the piles of learning devoted to destruction by an edict 
 
REMAINDERS. 7° I 
 
 as sweeping and unrelenting as the torch of Omar. He 
 must bid adieu forever to the renowned discussions in Shel- 
 ley's case, which were so vehement and so protracted as to 
 rouse the sceptre of the haughty Elizabeth. He may equally 
 take leave of the multiplied specimens of profound logic, 
 skillful criticism, and refined distinctions, which pervade the 
 varied cases in law and equity, from those of Shelley and 
 Archer, down to the direct collision between the courts of 
 law and equity, in the time of Lord Hardwicke. He will 
 have no more concern with the powerful and animated dis- 
 cussions in Perrin v. Blake, which awakened all that was noble 
 and illustrious in talent and endowment, through every pre- 
 cinct of Westminster Hall. He will have occasion no longer, 
 in pursuit of the learning of that case, to tread the clear and 
 bright paths illuminated by Sir William Blackstone's illus- 
 trations, or to study and admire the spirited and ingenious 
 dissertation of Hargrave, the comprehensive and profound 
 disquisition of Fearne, the acute and analytical essay of 
 Preston, the neat and orderly abridgment of Cruise, and the 
 severe and piercing criticisms of Reeve. What I have there- 
 fore written on this subject, may be considered, as far as my 
 native State is concerned, as an humble monument to the 
 memoiry of departed learning."" 
 
 And so it continued to be until the revisers lately recom- 
 mended its abolition as being a rule "purely arbitrary and 
 technical, ' ' and calculated to defeat the intentions of those 
 who are ignorant of technical language. 
 
 In Kingsland v. Rapelye, decided by the vice-chancellor, in 
 the city of New York (1834), and in Schoonmaker v. Shelley, 
 decided in the New York Circuit Court for the Second circuit, 
 in 1 841, upon wills made prior to the operation of the Revised 
 Statutes of 1830 in that State, the rule in Shelly 's case was re- 
 cognized, and strictly applied and enforced. " The words law- 
 ful issue were held to have as extensive a signification as heirs 
 of the body. The New York Revised Statutes" have accord- 
 ingly declared that "where a remainder shall be limited to the 
 heirs, or heirs of the body of a person to whom a life estate in 
 the same premises shall be given, the persons who, on the ter- 
 
 ''4 Kent's Com. 267. '" Vol. i. 725, sec. 28. 
 
 "3 Edward's Ch. Rep. i. 
 
702 REAL PROPERTY. 
 
 mination of the life estate, shall be the heirs, or heirs of the 
 body of such tenant for life, shall be entitled to take as pur- 
 chasers, by virtue of the remainder so limited to them. ' ' Such 
 is now the statute law of Virginia." The abolition of the rule 
 applies equally to deeds and wills ; and in its practical opera- 
 tion it will, in cases where the rule would otherwise have 
 applied, change estates in fee into contingent remainders. It 
 sacrifices the paramount intention in all cases, and makes the 
 heirs instead of the ancestor the stirps or terminus from 
 which the posterity of heirs is to be adduced. It will tie up 
 property from alienation during the lifetime of the first taker, 
 and the minority of his heirs. But this, it may perhaps be 
 presumed, was the actual intention of the party, in every 
 case in which he creates an express estate for life in the first 
 taker, for otherwise he would not haVe so limited it." 
 
 e. Of Mr. Preston. We held in Baker v. Scott, 62 111. 88, 
 that the rule in Shelley's case is in force here, as a rule of 
 property, and that the question of intent in determining 
 whether it is applicable in a given case does not turn upon 
 the quantity of estate intended to be given to the ancestors, 
 but upon the nature of the estate intended to be given to the 
 heirs, and it was shown in that case that in the great case of 
 Perrin v. Blake, 4 Burr. 2579 (3 Greenl. Cruise, Real Prop. 
 313), as finally decided in the Exchequer Chamber, it was 
 admitted that the rule in Shelley's case often defeats the un- 
 doubted intention of the devisor, "for," it was said, "there 
 was never an instance where the estate for life was expressly 
 devised to the first taker that the devisor intended he should 
 have any more. But if he afterwards gives an estate to the 
 heirs of the tenant for life, or to the heirs of his body, it is 
 the consequence or operation of law that in this case super- 
 venes his intention and vests the remainder in the ancestor. ' ' 
 
 Preston, in his work on Estates, says in vol. i, pages 281, 
 283, speaking of the legal effect under the rule in Shelley's 
 case of the word "heirs" in a grant or devise, "that all pos- 
 sible heirs of the given description are to take in succession 
 from generation to generation under the name of heirs of 
 the ancestor, is to bring the case immediately within the 
 
 9' Rev. Stat. 1849, tit. 33, ch. 116, ^'' i^ Kent's Com. 265. 
 sec. II. 
 
REMAINDERS. /OJ 
 
 rule. That only one individual or several individuals is or 
 are to take in the characters of heirs, or rather as particular 
 persons described by that name, either for their lives only or 
 for an estate of inheritance to be deducible from them as 
 the stock or ancestor ; and that their heirs are described by 
 superadded words of limitation, and as their descendants, is 
 to exclude the rule. ' ' And, again, in the same volume, at 
 pages 362, 363, this author says: "In wills the rule " (i. e., in 
 Shelley's case), "applies generally and without exception to 
 the several limitations as often ^s the gift to the heirs is 
 without any expression of qualification;" and he thus illus- 
 trates his meaning : "Neither the expressed declaration (i) 
 that the ancestor shall have an estate for his life and no 
 longer, nor (2) that he shall have only a life estate in the 
 premises, and that, after his decease, it shall go to the heirs 
 of his body, and in default of such heirs vest in the person 
 next in remainder; and that the ancestor shall have no 
 power to defeat the intention of the testator ; nor (3) that the 
 ancestor shall be a tenant for his life and no longer, and that 
 it shall not be in his power to sell, dispose, or make away 
 with any part of the premises, will change the word 'heirs' 
 into a word of purchase. ' ' 
 
 Kent says, vol. 4, p. 233, 8th ed., in speaking of the deci- 
 sion of the Exchequer Chamber in Perrin v. Blake, supra: 
 "The result of that famous controversy tended to confirm by 
 the weight of judicial authority at Westminster Hall, the 
 irresistible pre-eminence of the rule (i. e., in Shelley's case), 
 so that even the testator's manifest intent could not control 
 the legal operations of the word heirs when standing for the 
 ordinary line of succession as a word of limitation, and 
 render it a word of purchase. If the term heirs, as used in 
 the instrument, comprehended the whole class of heirs, and 
 they became entitled, on the death of the ancestor, to the 
 estate, in the same manner and to the same extent and with 
 the same descendible qualities as if the grant or devise had 
 been simply to him and his heirs, then the word heirs is a 
 word of limitation, and the intention will not control the 
 legal effect of the word. The term must be used as a mere 
 designation of one or more individuals or a new import 
 given to it by superadded or ingrafted words of limitation. 
 
704 REAL PROPERTY. 
 
 varying its sense and operation, in order to make it a word 
 of purchase." 
 
 f. Repudiation of the rule in several States. In New York 
 the revisers of the statutes in 1830 recommended the aboli- 
 tion of the'.ule as being one "purely arbitrary and technical, 
 and calculated to defeat the intentions of those who are igno- 
 rant of technical language. " The New York Revised Stat- 
 utes have accordingly declared that where a remainder shall 
 be limited to the heirs, or heirs of the body of a person, to 
 whom a life estate in the same premises shall be given, the 
 persons who, on the termination of the life estate, shall be 
 the heirs or heirs of the body, of such tenant for life, shall 
 be entitled to take as purchasers, by virtue of the remainder 
 so limited to them. 
 
 The practical operation of the abolition of the rule is, in 
 cases where the rule would otherwise apply, to change what 
 would, under the rule, be a fee, into a precedent estate and 
 remainder. A devise, therefore, or grant, since the Revised 
 Statutes of 1830, to A. for life, and after his decease to his 
 heirs and assigns forever, would give the heirs a vested 
 interest in the land, subject to open and let in after born 
 children; the interest of each, however, being liable to be 
 defeated by his death before the first taker." 
 
 The rule in Shelley's case yields to a clear intention of the 
 grantor, and was not adopted with a view to gratify the in- 
 tention of the settler, but it was adopted from feudal con- 
 sideration to merge the life estate in the inheritance, and it 
 frequently, if not always, disregarded or annulled the inten- 
 tion, however clearly expressed, to give a life estate only to 
 the ancestor. Lord Mansfield clearly shows that the rule 
 arose from feudal considerations." 
 
 That this was the origin and reason of the rule, appears 
 by all the writers on it, especially i Prest. Est., 272. 
 
 And Mr. Preston, in the most decided manner, condemns 
 the rule, because it is subversive of the inttention." 
 
 The Supreme Court of the United States have emphatically 
 declared their purpose to respect the lawful intention of the 
 
 933 R. S. 12. 9' I Prest. Est. 300. 
 
 " 2 Burr. [ 106. 
 
REMAINDERS. 705 
 
 donor in all instruments, regardless of any opposing rule of 
 law, however ancient."' 
 
 As the Supreme Court in 2 How. 55, refers approvingly to 
 the opinions of Mansfield, Hardwicke and BuUer, we call 
 attention specially to the masterly arguments of these great 
 judges in 2 Burr. 1107; 2 Atk. 578; 2 Ves. 655. 
 
 All the authorities in England and America unite in ex- 
 cluding the rule in Shelley's case, where the estate limited 
 to the ancestor and his or her heirs, general or special, are 
 not both legal or equitable. 
 
 While it is a rule of law too firmly established to be shaken 
 by the courts, and which the courts should enforce, not be- 
 cause it is just or wholesome, but because it is law, yet its 
 operation more frequently defeats the just and undoubted 
 intention of grantors and testators than any other effect it 
 has. For this reason the courts everywhere are inclined to 
 circumscribe its operation within the strict limits of its own 
 boundaries. 
 
 g. Comments on the rule. This celebrated decision, which 
 has agitated the legal minds of two centuries, is very gene- 
 rally discredited in the United States. In most of them it is 
 a mere tradition, although Pennsylvania, Maryland, Indiana, 
 and provisionally, Vermont, still cling to a semblance or 
 shadow of the rule. It is exceedingly doubtful if any equity 
 court in this country would enforce its provisions in an ex- 
 treme case, and it is certain that it is very generally regarded 
 rather as a rule of construction than as a rule of law, that is to 
 say, its rigors are abated in all instances when its enforce- 
 ment would contravene the mainfest intention of the testator." 
 
 Where a deed or a will uses the word "heirs" and uses it 
 in its ordinary legal signification, a fee is vested in the first 
 taker. This is the effect and force of the rule in Shelley's 
 case, I Co. 88, and that rule enters into our law as a rule of 
 property." 
 
 The rule in Shelley's case is based upon the idea that 
 there is in the mind of the maker of the instrument, that 
 
 9E < 
 
 ' Shriver V. Lynn, 2 How. 55. Austin v. R. R. Co. 45 Vt. 215; 
 
 "Millet v. Ford, 109 Ind. 159; Rice's Probate Law, 169. 
 
 Belslay v. Engle, 107 111. 182 ; Hen- '8 Maxwell v. Featherston, 83 Ind. 
 
 derson v. Henderson, 64 Md, 185; 339. 
 
 45 
 
706 REAL PROPERTY. 
 
 comes under its operation, two intents, one a paramount or 
 general, or legal intent as it is called, and the other a par- 
 ticular or prescribed intent, and if both intents cannot have 
 efJEect, the latter must yield to the former." 
 
 It is a rule of construction, that when technical words or 
 phrases are used, nothing else appearing, they must be taken 
 in their technical sense, and when the words "heirs" or 
 "heirs of the body" are used alone, without anything to 
 show that they were not so intended, the technical meaning 
 must prevail, because, standing alone, there can be no other 
 certain meaning given to them ; but it has been held and is 
 settled in North Carolina that superadded words "equally to 
 be divided' ' and like qualifying words which show that they 
 were not used in a technical sense, will prevent the operation 
 of the rule in Shelley's case.'°° 
 
 Whatever in the past may have been the value of the rule 
 in Shelley's case, I think it should be strictly construed when 
 otherwise it would defeat the manifest intention of the tes- 
 tator. I think the tendency of modern decisions in America 
 is to limit its operations to cases that come strictly and tech- 
 nically within the rule, and in many of the States it has been 
 abolished by statute. It is a rule by which the meaning of 
 the testator is construed, and when this meaning is clear I do 
 not see why it should be defeated by a too liberal construc- 
 tion of a rule of construction."' 
 
 As much as the memory of Coke is to be venerated for his 
 great legal learning, I think, with all his faults, if not 
 crimes, while attorney-general, his services in behalf of 
 popular rights and civil liberty in resisting the encroach- 
 ments and tyranny of the house of Stuart, entitle him to far 
 more lasting fame than did his services in the legal war car- 
 ried on by the bench and the bar between the " Shelleyites" 
 and the "anti-Shelleyites."'" 
 
 In Indiana the rigidity with which the rule has been 
 applied elsewhere seems to have been somewhat relaxed; 
 
 '° See the question discussed by and authorities there cited ; Cham- 
 Pearson, J., in Ward v. Jones, 5 hers v. Payne, 6 Jones' Eq. 276. 
 Ired. Eq. 400; see also the authori- "" Rice's Probate Law, 170. 
 ties cited in 96 N. C. 548. "^ Leathers v. Gray, loi N. C. 
 
 ""Mills v. Thome, 95 N. C. 362, 162, p. 72, per Davis, J. 
 
REMAINDERS. 70/ 
 
 and it has been held that the word "issue" in a will is some- 
 times a word of limitation, and sometimes of purchase, 
 according to the context of the devise, and the apparent in- 
 tention of the testator. There can be no doubt that where 
 the testator manifests an intent to give the first taker only 
 an estate for life, and uses the word "issue," "sons," "chil- 
 dren," or "descendants," the case will be withdrawn from 
 the operation of the rule. And in regard to all executory- 
 trusts, it is undoubtedly true that in courts of equity the rule 
 will be adhered to only in cases literally within it, and that 
 where circumstances take the case out of the letter of the 
 rule, it will be held subservient to the manifest intention 
 which led to the creation of the trust."' 
 
 In Allen v. Pass, 4 Dev. & Bat. T], Judge Gaston used the 
 following language : ' ' Before the application of the rule in 
 Shelley's case, it is always proper first to ascertain whether, 
 on the true interpretation of the words of the gift, there is a_ 
 limitation of the inheritance in remainder to the heirs, or to 
 the heirs of the body, of one to whom a precedent estate is 
 given — such a limitation does not exist when the limitation 
 is to them in the quality of heirs — embracing the same num- 
 ber — in succession of objects and conferring the same extent 
 of interest as would be embraced and conferred when the 
 inheritance has been limited to the ancestor. ' ' He proceeds 
 to say that when these requisites are embraced in the terms 
 of a devise, the rule in Shelley's case applies. But, he adds, 
 "On the other hand, as the law will not entrap men by words 
 incautiously used, if the limitation of a remainder by any 
 instrument of conveyance, the phrase 'heirs,' or 'heirs of the 
 body' be expressed, but it is unequivocally seen that the 
 limitation is not made to them in that character, but simply 
 as a number or class of individuals thus attempted to be de- 
 scribed,, then the whole force of the phrase is restricted to 
 this designation or description — it shall have the same ope- 
 ration the words would have, of which it is the representa- 
 tive ; there is not in fact a limitation to heirs, and, of course, 
 there is no room for the application of the rule." 
 
 "" Lyles V. Digges, Lessee, 6 H. 320; 4 Kent's Com. 240; Rice's 
 & J. 364 ; Home v. Lyeth, 4 Id. Probate Law. 
 431 ; Dickson v. Satterfield. 53 Md. 
 
7o8 REAL PROPERTY. 
 
 And in the more recent case of Ward v. Jones, S Ired. Eq. 
 400, Chief Justice Pearson says: "The rule in Shelley's case 
 only applies where the same persons will take the same 
 estate, whether they take by descent or purchase ; in which 
 case they are made to take by descent, it being more favor- 
 able to dower, to the feudal incidents of seignories, and to the 
 rights of creditors, that the first taker should have an estate 
 of inheritance ; but where the persons taking by purchase 
 would be different, or have different estates, then they would 
 take by descent from the first taker, the rule does not apply, 
 and the first taker is confined to an estate for life, and the 
 heirs, heirs of the body, or issue in wills, take as purchasers. ' ' 
 
 This court has held that, as the common law has been 
 adopted by statute in this State, the rule in Shelley's case is 
 binding upon the courts as a law of real property, and has 
 applied such rule in the construction of devises."*' While we 
 might not agree to the application of the rule in Shelley's 
 case to testamentary construction, if the question could be 
 regarded as an open one, yet we would feel constrained, in a 
 proper case, to adhere to our previous decisions. 
 
 In the well considered case of McMahon v. Newcomer, 82 
 Ind. 565, in speaking of the application of the rule in Shel- 
 ley's case to the construction of a devise of real property, 
 the court says: "A fee will pass if, taking all the provisions 
 of the will together, it is clear that the testator intended to 
 vest such an estate in the devisee.'" It is settled bylaw that 
 the rule in Shelley's case will not be allowed to defeat the 
 plain intention of a testator.""' 
 
 The rule in Shelley's case will not, in any case, be allowed 
 to override the manifest intention of the testator, where such 
 intention is neither lawful nor inconsistent with the estab- 
 lished rules of law. Whenever it is certain that the term 
 "heirs" is used with the intention that they should take as 
 children or as purchasers, the will should be so construed."' 
 
 •°*SiceloflFv. Redman, 26 Ind. 251; Siceloff v. Redman, 26 Id. 251; 
 
 McCray v. Lipp, 35 Id. 116; Gon- Helm v. Frisbie, 59 Id, 526; sec. 
 
 zales V. Barton, 45 Id. 295. 2567, R. S. 1881. 
 
 '"^ 4 Kent's Com. 535 ; Smith v. •'" Rapp v. Matthias, 35 Ind. 332 ; 
 
 Meiser, 51 Ind. 419. Brown v. Harmon, 73 Id. 412; Clif- 
 
 "» Doe V. Jackraan, 5 Ind. 283 ; ford v. Farmer, 79 Id. 529 ; Jones v. 
 
REMAINDERS. 7^9 
 
 It is firmly established by the decisions, that the rule in 
 Shelley's case is the law'of Indiana. In one case the court 
 declared and enforced this rule, but expressed the hope that 
 it might be changed by legislation, avowing that it was not 
 ■within the power of the court to change it, much as the court 
 doubted its wisdom and justice."' But the rule has been so 
 repeatedly and emphatically declared to be a rule of prop- 
 erty, that it is no longer a question as to its binding force 
 upon the courts of the State."' 
 
 Mr. Fearne states the rule very strongly, perhaps too 
 strongly, for he says that the most positive directions will 
 not defeat the operation of the rule in Shelley's case."" 
 
 Judge Sharswood, in delivering the opinion of the Supreme 
 Court in IngersolV s Appeal, 86 Pa. St. 240, 245, said: " Noth- 
 ing, certainly, is better settled than that the intention of a 
 testator, if not contrary to law, shall be carried out in the dis- 
 position he may make of his property after death. There 
 are many things which he cannot do, however clearly he 
 may intend it. He cannot create a fee and clog the power of 
 alienation or relieve it from liability for debts. He cannot 
 create a perpetuity by an executory devise after an indefinite 
 failure of issue or at any other future period, which may not 
 be until after a life or lives in being and twenty-one years." 
 The same learned judge, in Doeblers Appeal, 64 Pa. St. 9, at 
 page 15, said: "While the intention of the testator, if con- 
 sistent with law, is undoubtedly to be the polar star, yet we 
 are bound to take as our guides those general rules or canons 
 of interpretation which have been adopted and followed by 
 those who have gone before us. It becomes no man and no 
 court to be wise above that which is written. Security of 
 titles requires that no mere arbitrary discretion should be 
 
 Miller, 13 Id. 337 ; see also Hileman p. "JT ; Schimer v. Mann, 99 Ind. 
 
 V. Bouslaugh, 13 Pa. St. 344; Rice's 190, 50 Am. Rep. 82; Ridgeway v. 
 
 Probate Law, 172. Lamphear, 99 Ind. 251 ; Biggs v. 
 
 '"^Sicelofifv. Redman, 26 Ind. 251; McCarty, 86 Id. 352, 44 Am. Rep. 
 
 see p. 259. 320; McCray v. Lipp, 35 Ind. 116; 
 
 "9 Hochstedler v. Hochstedler, Andrews v. Spurlin, 35 Id. 262 ; Doe 
 
 108 Ind. 506 ; Fountain County, etc., v. Jackman, 5 Id. 283. 
 
 Co. V. Beckleheimer, 102 Id. 76, 52 ""2 Fearne on Remainders, sec. 
 
 Am. Rep. 645, and authorities cited, 453. 
 
7IO REAL PROPERTY. 
 
 exercised in conjecturing what words the testator would 
 have used, or what form of disposition he would have 
 adopted had he been truly advised as to the legal effect of 
 the words actually employed. That would be to make a will 
 for him instead of construing that which he has made. ' ' 
 
 In Bender v. Fleurie, 2 Grant, Pa. 345, the testator gave to 
 his daughter certain lands in these words : ' ' She shall have 
 it as her own during her life, and then it is to come to the 
 heirs of her body for their own use." This was held to be 
 clearly an estate tail, within the rule, and it was said by the 
 court: "But, it is said, the testator did not mean to give her 
 an estate tail. Perhaps he did not. But he has used words 
 which in law mean nothing else. If he intended to give her 
 but a life estate voluit {sed) non dixit, we must take what he 
 said, not what he meant. * * * But no court in this State 
 nor in England has ever- treated the phrase 'heirs of her 
 body,' as words of purchase, when they are used with refer- 
 ence to the issue of a devisee, to whom a life estate is given. 
 They are words of limitation, and as such they create an 
 estate tail in the first taker, which cannot be cut down even 
 by the clearest expressions of a desire that it shall be a life 
 estate only.""' 
 
 In a work declared by the Supreme Court of Pennsyl- 
 vania, in Hileman v. Bouslaugh, 13 Pa. St. 344, to be a "mas- 
 terly disquisition, "it is written : ' ' The requisite limitation 
 to the ancestors and his heirs being found, the rule must be 
 applied. It can never be a question whether the rule shall 
 be applied or not — whether the author of the limitations 
 intended it to be applied or not. We might as well ask 
 whether a testator intended to contravene the rule against 
 perpetuities. It will no more yield to individual intention 
 than any other fundamental law of property. The rule 
 admits of no exceptions.""' 
 
 Stronger still is the expression of the rule in Walker v. 
 Vincent, 19 Pa. St. 369, for it was there said: "The law does 
 not pretend to carry out the intention of the testator in all 
 cases; for many testators show a very clear intention to 
 shackle the estates granted by them to a dergee that is wholly 
 
 '" Rice's Probate Law, 173. ing Dispositions of Real Estate, 96 
 
 '" Hays' Principles for Expound- (7 Law Libr. 52). 
 
REMAINDERS. 7" 
 
 incompatible with any real enjoyment of them, and which 
 the law does not allow. * * * The great merit of the 
 rule in Shelley's case is, that it frustrates, and is intended to 
 frustrate, unreasonable restrictions upon titles ; for when an 
 estate is declared to be a fee simple or fee tail, it is at once 
 made subject to a limitation in its proper form, no matter 
 how clear may be the testator's intention to the contrary." 
 
 It may be further observed that the rule in Shelley's case 
 is by no means the only principle of law which may thwart 
 the intention of the grantor or testator in the interest of pub- 
 lic policy, as, for instance, the intention cannot change the 
 rule against perpetuities, nor impose a general restraint upon 
 alienation. If the views of eminent jurists and authors be 
 sound, there is certainly no reason for looking upon the rule 
 with disfavor; but, on the contrary, it is highly useful, and 
 should be jealously guarded and preserved. 
 
 Coke's mind had not expansion enough to comprehend a 
 great scheme and the rule has remained to torture the pro- 
 fession through three hundred years of travail while it ope- 
 rated from start to finish as a boomerang and frustrated the 
 efforts of the very class who were supposed to have been 
 embraced within its protection — indeed the "Brahmanical" 
 caste of Great Britain has been most unconscionably mulched 
 by the incessant litigation that has attended the propagation 
 of the rule. Only the strongest necessity can vindicate such 
 a measure and that certainly never existed. 
 
 § 248. Future or contingent uses. Contingent uses are 
 sometimes limited to take effect as remainders, and remain- 
 ders, whether vested or contingent, may be limited by way 
 of use as well as by way of conveyance. Indeed, it may be 
 said, that this is the usual manner in which they are created. 
 Contingent, shifting, and springing uses presented a method 
 of creating a future interest in land, and executory devises 
 owed their origin to the doctrine of shifting or springing 
 uses. But uses differ from executory devises in this respect ; 
 that there must be a person seized to the uses when the con- 
 tingency happens, or they cannot be executed by the statute. 
 If the estate of the feoffee to such uses be destroyed by 
 alienation or otherwise, before the contingency arises, the 
 
712 REAL PROPERTY. 
 
 use is destroyed forever; whereas, by an executory devise, 
 the freehold is transferred to the future devisee. Contingent 
 uses are so far similar to contingent remainders, that they 
 also require a preceding estate to support them, and take 
 effect, if at all, when the preceding estate determines. The 
 Statute of Uses meant to exclude all possibility of future 
 uses, but the necessity of the allowance of free modifications 
 of property introduced the doctrine that the use need not be 
 executed the instant the conveyance is made, and that the 
 operation of the statute might be suspended until the use 
 should arise, provided the suspension was confined within 
 reasonable limits as to time.'" 
 
 § 249. Of shifting and springing uses. A use may be limited 
 to arise on some future event without any preceding estate 
 to support it, and hence the happening of the event, which 
 may be either certain or uncertain, calls the estate into being. 
 In all cases of springing use, the estate reposes in the origi- 
 nal proprietor until the use rises. And it never takes effect 
 in derogation of any preceding interest. If a grant be to A. 
 in fee to the use of B. in fee after the first day of January 
 next, this is an instance of a springing use, and no use arises 
 until the limited period. The use in the meantime results 
 to the grantor who has a determinable fee. A springing use 
 may be limited to arise within the period allowed by law in 
 the case of an executory devise. And, by means of powers, 
 a use with its accompanying estate, may spring up at the will 
 of any given person. '" Shifting or secondary uses take effect 
 in derogation of some other estate, and are either limited by 
 the deed creating them, or authorized to be created by some 
 person named in it. Thus, if an estate be limited to A. and 
 his heirs, with a proviso that if B. pay to A. one hundred 
 dollars by a given time, the use of A. shall cease, and the 
 estate go to B. in fee. The estate is vested in A. subject to 
 a shifting or secondary use in fee in B."" 
 
 Shifting or secondary uses are such as take effect in dero- 
 gation of some other estate, and are either limited by the 
 deed creating them, or authorized to be created by some per- 
 
 "'4 Kent, 332. '"Id.; Proprietors, etc. v. Grant, 
 
 "*4 Kent's Com. 298. 3 Gray (Mass.), 142. 
 
REMAINDERS. 713 
 
 son named in the deed. * * •* The doctrine of shifting 
 or secondary uses furnished a means of evading the principle 
 of the common law, that a fee could not be limited after a 
 fee. 
 
 Springing uses are limited to arise in a future event, where 
 no preceding use is limited, and which does not take effect 
 in derogation of any other interest than that which results to 
 the grantor or remains in him in the meantime. A grant 
 to A. in fee, to the use of B. in fee, after the first day of 
 March next, is an instance of a springing use, and no use 
 arises until the limited period. The use in the meantime 
 results to the grantor, who has a determinable fee. By 
 means of powers a use, with its accompanying estate, may be 
 made to spring up at the will of any given person. Spring- 
 ing uses may be raised by any form of conveyance ; but in 
 the common law conveyances, which operate by transmuta- 
 tion of possession, the estate must be conveyed, and the use 
 be raised, out of the seizin created in the grantee by the con- 
 veyance ; while, in covenants to stand seized and conveyances 
 by bargain and sale, the use is severed out of the grantor's 
 seizin and executed by the statute. 
 
 Future or contingent uses are limited to take effect as 
 remainders, and are subject to the same rules as contingent 
 remainders."' 
 
 These springing and shifting uses originate and propagate 
 a great deal of unnecessary confusion. If we could only 
 preserve the distinct line of cleavage between a shifting use, 
 which is sometimes called a conditional limitation, and a 
 contingent remainder, we shall have made considerable 
 advancement. A conditional limitation is said to be created 
 either by force of the Statute of Uses or the Statute of Wills. 
 If under the first, it is a shifting use. If under the latter, it 
 is an executory devise. Hence, with all the pomp of syllo- 
 gistic reasoning the English pundits tell us that an execu- 
 tory devise and a shifting use are both conditional limita- 
 tions. And a conditional limitation is a certain form of 
 remainder. And that all remainders are vested, contingent 
 or cross. "' 
 
 '" Martindale on Conveyancing, "' See Battey v. Hopkins, 6 R. I. 
 sees. 133-135- 445- 
 
714 REAL PROPERTY. 
 
 The various necessities of mankind induced the judges 
 to depart from the rigor and simplicity of the rules of the 
 common law, and allow a more minute and complex con- 
 struction upon conveyances to uses than upon others. Hence 
 it was adjudged, that the use need not always be executed 
 the instant the conveyance is made; but, if it cannot take 
 effect at that time, the operation of the statute may wait 
 till the use shall arise upon some future contingency, to hap- 
 pen within a reasonable period of time ; and in the meanwhile 
 the ancient use shall remain in the original grantor ; as, when 
 lands are conveyed to the use of A. and B., after a marriage 
 shall be had between them, or to the use of A. and his heirs 
 till B. shall pay him a sum of money, and then to the use of 
 B. and his heirs. Which doctrine, when devises by will 
 were again introduced, and considered as equivalent in point 
 of construction to declarations of uses, was also adopted in 
 favor of executory devises. But herein these, which are 
 called contingent or springing uses, differ from an executory 
 devise ; in that there must be a person seized to such uses at 
 the time when the contingency happens, else they can never 
 be executed by the statute ; and therefore if the estate of the 
 feoffee to such use be destroyed by alienation or otherwise, 
 before the contingency arises, the use is destroyed forever, 
 whereas by an executory devise the freehold itself is trans- 
 ferred to the future devisee. And in both these cases, a fee 
 may be limited to take effect after a fee."' 
 
 A clear deduction from the foregoing summary is this: 
 future or contingent uses are, in certain instances, limited to 
 take effect as remainders. And, hence, the pertinency of 
 this review. The student anxious for a more minute analy- 
 sis is referred to Mr. Preston's Abstracts of Title, vol. i, 105, 
 106, 107, and to Lord St. Leonard's note to his edition of 
 Gilbert on Uses. In conclusion let it be remembered that 
 our courts construe all future estates no matter how created, 
 as remainders even in case they are limited as uses. These 
 future or contingent uses, that form the title of the present 
 section, are regarded as ' ' contingent remainders ' ' but 
 remainders that are specifically designated as ' ' executory de- 
 
 "8 2 Bl. Com. 334. 
 
REMAINDERS. 
 
 715 
 
 vises. ' ' Without anticipating the discussion of these ' ' execu- 
 tory devises," which will form the subject of a subsequent 
 chapter, it may be well to state that they are nothing more 
 than remainders created by will. Concisely then, future 
 uses (springing, shifting or contingent), are the same thing 
 substantially as "executory devises," and executory devises, 
 in their turn, are simply peculiar forms of remainders. It 
 would be quite logical to amplify the rules and doctrines of 
 executory devises under the general head of remainders. But 
 as a preference exists in favor of Sir Edward Sugden's 
 method of treatment, I yield to a view that may be of little 
 consequence.'" 
 
 If we were called upon to state, in an epitomized form, 
 just what springing and shifting uses effect in the law of real 
 property, I would say they permit ulterior estates, or, in 
 other words, estates in expectancy, to be created upon the 
 defeasance of a prior or particular estate in the same property. 
 
 "'The original intent of the stat- 
 ute of Henry VIII, as previously- 
 noted, was to annihilate the juris- 
 diction of equity over landed es- 
 tates by giving actual possession at 
 law to the same person who was 
 beneficially entitled to receive the 
 estate in equity, leaving only a 
 legal estate cognizable as such in a 
 court of law. The court of chan- 
 cery entirely frustrated this inten- 
 tion. (Beckwith v. Rector, etc., 69 
 Ga. 574.) Kent says "the wants 
 and convenience of mankind have 
 triumphed over that intention, and 
 the beneficial and ostensible own- 
 ership of estates were kept as dis- 
 tinct as ever." But during the 
 protracted struggle that followed 
 the parliamentary enactment, there 
 were imported into the rules of 
 law many equitable doctrines, and, 
 conversely, many complex and 
 modified interests were engrafted 
 upon the doctrine of uses, as is 
 shown by their classification into 
 
 / 
 
 shifting or secondary, springing 
 and future, or contingent and re- 
 sulting. These are only the refine- 
 ments that have been engrafted 
 upon what we may generally term 
 future uses. For instance, Burrill 
 says a shifting use is one made to 
 shift or change from one person to 
 another, by matter ex ;post facto {pi 
 after occurrence). As if an estate 
 be limited to the use of A and his 
 heirs, with proviso that when B re- 
 turns from Rome, the land shall be 
 to the use of C and his heirs ; here, 
 on the return of B, the use changes 
 or shifts from A to C, and is hence 
 called a shifting use. (See i Steph. 
 Com. 503.) These shifting uses are 
 common in all settlements ; and in 
 marriage settlements, the first use 
 is always to the owner in fee till 
 the marriage, and then to other 
 uses. The fee remains with the 
 owner until the marriage, and then 
 it shifts as uses arise. (4 Kent's 
 Com. 297.) 
 
71 5 REAL PROPERTY. 
 
 §250. Suggestions from Prof. Walker. "As to the law of 
 
 remainders, we have seen that this immense fabric has been 
 built upon reasons which no longer exist. It is, perhaps, 
 well to allow men to make future limitations of their prop- 
 erty, within the boundaries prescribed by the statute against 
 perpetuities; and if so, it is certainly desirable that this 
 should be done in the most [^simple and certain manner; 
 whereas, the present law of remainders is, beyond any other 
 branch of law, complicated and uncertain. Now a single 
 enactment would, in a great measure, remove this objection. 
 It is only necessary to apply to remainders created by deed, 
 the present doctrines of executory devises, or, in other words, 
 to give to deeds the same capacity of future operations that 
 wills already have, and to this there can be no inherent 
 objection. The main prop of the present fabric, as we have 
 heretofore seen, is the particular estate which precedes the 
 remainder. By the reform proposed, this prop being with- 
 drawn, the fabric itself would be dispensed with. While at 
 the same time, the object of creating remainders would be 
 equally well attained, and in a far simpler manner.'"" 
 
 ISO Walker's American Law, p. 835. 
 
CHAPTER XV. 
 
 REVERSIONS. 
 Sec. 251. The term defined. 
 
 252. Views of Chancellor Kent. 
 
 253. Distinction between reversion and reverter. 
 
 254. The phrase " possibility of reverter " examined. 
 
 255. Incidents of reversions. 
 
 256. Sale of reversionary interest. 
 
 257. Incumbrance of reversions. 
 
 258. Reversions in land held by corporations. 
 
 § 251. The term defined. A reversion is literally a return- 
 ing of land into the possession of the donor, or his heirs, after 
 the gift is ended.' The residue of an estate left in the 
 grantor, to commence in posssession after the determination 
 of some particular estate granted out by him.'' Thus, where 
 a lease for life or years is made by a person seized in fee, the 
 reversion or residue, of the fee continues in the lessor, and, 
 on the expiration of the lease, the possession returns to him.' 
 
 ' Co. Litt. 142b. grantor, or his heirs, or in the 
 
 '2 Bl. Com. 175. heirs of a testator, commencing in 
 
 ' Mr. Stephen, in his Commen- possession on the determination of 
 
 taries, substitutes, in place of a particular estate granted or de- 
 
 Blackstone's definition, the follow- vised." (i Rev. St. [723], 718, sec. 
 
 ing: "An estate in reversion is 12; Burrill's Law Diet., tit. Rever- 
 
 where any estate is derived, by sion.) 
 
 grant or otherwise, out of a larger Challis' definition (Real Prop. 58) 
 
 one, leaving in the original owner is: "A reversion without any ex- 
 
 an ulterior estate immediately ex- press act of the grantor or settler 
 
 pectant on that which is so derived ; is left in him by the operation or 
 
 the latter interest is called the par- construction of law, when he merely 
 
 ticular estate (as being only a small parts with less than his whole es- 
 
 part or particular of the original tate, retaining in himself a residue 
 
 one), and the ulterior interest, the which awaits the determination of 
 
 reversion." (i Steph. Com. 290.) that with which he has parted, be- 
 
 The Revised Statutes of New York fore it can become the estate in 
 
 have defined a reversion to be possession." 
 " the residue of an estate left in the 
 
 [717] 
 
71 8 REAL PROPERTY. 
 
 Reversions result invariably from operation of law. In this 
 they are distinct from remainders wliicli are always created 
 by express act of the parties. And, again, another distinc- 
 tion is always prominent, viz., remainders are never limited 
 to the grantor, while reversions are invariably reserved to 
 him or his heirs. Briefly, a reversion is something reserved. 
 A remainder is something granted. 
 
 § 252. Views of Chancellor Kent. The doctrine of rever- 
 sions is said, by Sir William Blackstone, to have been plainly 
 derived from the feudal constitution. It would have been 
 more correct to have said that some of the incidents attached 
 to a reversion were of feudal growth, such as fealty, and the 
 varying rule of descent between the cases of a reversion 
 arising out of the original estate, and one limited by the 
 grant of a third person. Reversion, in the general sense, as 
 being a return of the estate to the original owner, after the 
 limited estate carved out of it had determined, must be 
 familiar to the laws of all nations who have admitted of pri- 
 vate property in land. The practice of hiring land for a 
 limited time, and paying rent to the owner of the soil (and 
 which is one of the usual incidents to a reversion), was not 
 only known to the Roman law, but it was regulated in the 
 code of the ancient Hindoos. 
 
 The reversion arises by the operation of law and not by 
 deed or will ; and it is a vested interest or estate, inasmuch 
 as the person entitled to it has a fixed right of future enjoy- 
 ment. It is an incorporeal hereditament, and may be con- 
 veyed, either in whole or in part, by grant, without livery 
 of seizin. A grant of the reversion of an estate, absolutely 
 or by way of mortgage, passes the rights to rents that subse- 
 quently became due as incident to the reversion, but not the 
 rents then in arrears. Reversions expectant on the determi- 
 nation of estates for years, are immediate assets in the hands 
 of the heir ; but the reversion expectant on the determination 
 of an estate for life, is not immediate assets during the con- 
 tinuance of the life estate, and the creditor takes judgment 
 for assets in futuro. If the reversion be expectant on an estate 
 tail, it is not assets during the continuance of the estate tail ; 
 and the reason assigned is, that the reversion is of little or no 
 
REVERSIONS. 719 
 
 value, since it is in tlie power of the tenant in tail to destroy 
 it when he pleases." 
 
 § 253. Distinction between remainders and reversions. A 
 
 careful analysis of the law governing remainders will disclose 
 this distinction. By remainder the estate goes to a third 
 party upon the determination of the particular priority, while 
 by a reversion the property reverts to the original donor. 
 Again, between the owner of the particular estate and the 
 remainderman no tenure whatever exists; while between 
 the owner of the particular estate and the owner of the rever- 
 sion a tenure with all its incidents is established. It is also 
 well settled as to remainders, that they can only be acquired 
 by purchase, never, under any circumstances, by descent.' 
 
 §254. The phrase "possibility of reverter" examined. 
 
 While expectant estates, according to Chancellor Walworth, 
 include every present right or interest, either vested or 
 contingent, which may by possibility vest at a future day." 
 yet they do not include the mere possibility of a reverter 
 which the grantor has after he has conveyed in fee. In such 
 a case he has no present right or interest whatever. Sup- 
 pose a fee simple, without a reservation of rents is granted 
 upon a condition subsequent. There is no estate remaining 
 in the grantor — simply a possibility of reverter. And this 
 
 *4 Kent's Com. 402. possibility remaining in the grantor 
 
 ' See opinion of Mr. Justice Bell of a qualified fee of a return of the 
 
 in Dennett v. Dennett, 40 N. H. fee. This is not a reversion nor an 
 
 498. estate in reversion; it is properly 
 
 "While a reversion could not ex- called a possibility of reverter, or a 
 
 ist after the old fee simple condi- reverter. According to the latest 
 
 tional, this was changed by the and best opinion, qualified fees and 
 
 statute De Donis, after which, in with them possibilities of reverter 
 
 harmony with the common-law doc- have ceased to exist in England 
 
 trine of estates, there remained an and in those States in which the 
 
 estate of reversion in the donor of Statute of Quia Emptores is in force, 
 
 an estate tail. An estate in rever- In Pennsylvania and South Caro- 
 
 sion cannot exist expectant upon lina, where the statute is not in 
 
 an estate in fee. This follows from force, possibilities of reverter may 
 
 the theory of the common law as to exist." (21 Am. & Eng. Encyc. 
 
 the division of the ownership into Law, p. 345.) 
 estates. There may, however, be a 
 
720 REAL PROPERTY. 
 
 possibility is not accorded the status of an estate. It is not 
 even a possibility coupled witii an interest, but a bare possi- 
 bility alone. It bas been said that these possibilities were 
 assignable in equity, but this theory cannot be sustained in 
 the face of modern adjudications.' On the other hand, it is 
 said that if this possibility of reverter be coupled with an 
 interest, as when a person who is to take upon the happening 
 of the contingency is ascertained and fixed, such a possibility 
 may be released, devised, or assigned like any other future 
 estate in remainder.' It will be readily admitted that all con- 
 tingent estates of inheritance, as well as springing and execu- 
 tory uses, and possibilities coupled with an interest, are both 
 devisable and of course assignable . But, as shown by Mr. Jus- 
 tice Parker, in NicollY. N. Y. &■ E. R. R. Co. (12 N. Y. 121), if the 
 person is not ascertained, they are not possibilities coupled 
 with an interest — it would seem that certainty as to the per- 
 son who is to ultimately take, is the controlling factor in 
 determining whether a possibility is coupled with an interest. 
 It has been assumed, that where one grants a base fee in 
 land there is no reversion remaining in him. But if the 
 determinability of the fee depend upon an event which, by 
 the laws of nature, must happen at some time, as an estate 
 to A. and his heirs, so long as a certain tree stands, it would 
 seem that there would be a reversion in the grantor. In one 
 of the cases the court call such an interest as this a "possi- 
 bility of reverter, ' ' but they all agree that it is not an inter- 
 est which can be limited by way of remainder. Whereas, if 
 the estate were granted to A. and his heirs, till B. returns 
 from Rome, it would create a possibility of reverter, and not 
 a reversion, for if B. were to die at Rome, the estate in A. 
 wQuld become absolute and indeterminable. So, if A. sell 
 land to a banking company, and they hold it till their charter 
 expires, it will revert to him or his heirs. But such a right 
 is not a reversion, it is a naked possibility of reverter which 
 he could not convey or assign.' 
 
 «See 4 Kent's Com. 262, note b.; ' Fortescue v. Satterthwaite, i 
 
 Jackson v. Waldron, 13 Wend. (N. Ired. 570. 
 
 Y.) 178. And particularly Nicoll v. "2 Washb. Real Prop. 687. 
 N, Y. & E. R. R. Co. 12 N. Y. 121. 
 
REVERSIONS. 721 
 
 All that remains in the grantor after conveying a determin- 
 able fee is a possibility of reverter.' 
 
 No reversion remains and no valid remainder can be lim- 
 ited upon such estate." 
 
 Determinable fees are divisible into two classes, according 
 to the future event which may determine them, i, Is an 
 event which admits of becoming impossible to happen.; such 
 as the marriage of C. D. , which may become impossible by 
 C. D. 's death; or, 2, Is an event which must forever, if it 
 does not actually happen, remain liable to happen ; such as 
 the fall of a particular building. In the former case, if the 
 event has not happened before the death of C. D. , the deter- 
 minable fee is by his death ipso facto enlarged into a fee sim- 
 ple. In the latter case the determinable fee can never be 
 enlarged into a fee simple, except by a release of the possi- 
 bility of reverter." 
 
 The happening of a future event ipso facto determines the 
 estate without any entry or claim by the person entitled to 
 the possibility of reverter. " 
 
 § 255. Incidents of reversions. A reversion will be at once 
 recognized as an incorporeal hereditament capable of convey- 
 ance in whole or in part." The incident of rent may be ex- 
 pected from the transfer of the estate, and conversely, the 
 rent may be assigned without the reversion." If the rever- 
 sion is expectant on a freehold estate, the incidents of dower 
 and curtesy will not attach. But if the reversion is expect- 
 ant upon an estate for years or any estate less than a free- 
 hold, the incidents of dower and curtesy attend it, and will 
 be always recognized.'^ If the reversion and the preceding 
 estate upon which it depends unite in one and the same per- 
 son, and there are no particular equities that would suggest 
 a separation of the estates, merger, in the reversion of the 
 
 'Brattle Square Church Proprs. "Id. 197. 
 
 V. Grant, 3 Gray (Mass.), 142 ; Hun- "Miller v. Miller, 10 Met. (Mass.) 
 
 ter V. Middleton, 13 111. 50. 393. 
 
 '» I Hilliard, Real Prop. (3d ed.) " Demarest v. Willard, 8 Cow. 
 
 563; Brattle Square Church Proprs. (N. Y.) 206. 
 
 V. Grant, supra ; Ayres v. Falkland, " Durando v. Durando, 23 N. Y. 
 
 I Ld. Raym. 325. 331; Arnold v. Arnold, 8 B. Men. (Ky.) 
 
 " Challis, Real Prop. 200. 203 ; Otis v. Parshley, 10 N. H. 403. 
 46 
 
722 REAL PROPERTY. 
 
 particular estate — the greater swallowing up the less — will 
 follow.'" So, too, the interests of the reversioner are suffi- 
 cient to support an action for waste in case the owner of the 
 particular estate attempts irreparable mischief." And in 
 general we may say that all of the legal incidents that repose 
 in a remainderman will also be found in a reversioner. 
 We must always keep in mind the fact that these rever- 
 sions we are now discussing are only a certain form of 
 remainders. 
 
 The reversioner may have an action of waste against the 
 tenant in dower or tenant by the curtesy, and upon waste 
 proved, may be put into immediate possession. Such rever, 
 sioner may alienate his interest or mortgage , it, or charge it 
 with his specialty debts. It is, therefore, an estate, an inter- 
 est in the land, obtained by the inheritance, by the descent 
 cast, and by force of the rules -of law operating upon and 
 giving effect to that event ; and though it is enlarged and 
 perfected, and discharged from a burden, on the death of the 
 tenant for life, it does not then originate, nor derive its 
 character from the law then in force. 
 
 But even if the vesting of the estate were suspended, until 
 the happening of any event, when the event does happen, 
 the right by descent must depend upon the law, as it stood 
 when the descent was cast. Suppose an estate was granted 
 sixty years ago, upon a condition subsequent, and the grantee 
 died the year following ; and now the event happens upon 
 which the estate, by force of the condition, is defeated, and 
 the heirs of the grantor become entitled to enter ; and the 
 question is, who are his heirs? Would it not be those who 
 were the heirs of the donor at the time of his decease, sixty 
 years ago? The benefit of the condition, the scintilla juris, 
 then vested in them, viz., the right to enter for condition 
 broken ; and whether the condition were broken before or 
 after the change of the law, the same persons would be heirs, 
 constituted so by law, taking in the proportions fixed by that 
 law when they became heirs." 
 
 "Allen V. Anderson, 44 Ind. 325. "Miller v. Miller, 10 Met. (Mass.) 
 
 "Wood V. Griffin, 46 N. H. 239; 393. 
 Livingston v. Hayward, 11 Johns. 
 (N. Y.) 429. 
 
REVERSIONS. 723 
 
 § 256. Sale of reversionary interest.' Immediately connected 
 with this subject is the sale by an heir or reversioner of his 
 expectancy or reversionary interest. It is said that "it is 
 incumbent upon those who deal with an expectant heir, rela- 
 tive to his reversionary interest, to make good the bargain ; 
 that is, to be able to show that a full and adequate considera- 
 tion was paid. In all such cases the issue is upon the ade- 
 quacy of the price. No proof of fraud is necessary ; and the 
 relief is given upon general principles of mischief to the 
 public, without requiring particular evidence of actual impo- 
 sition." Such a purchase is a constructive fraud, and the 
 purchaser, if a stranger, will be compelled to account and to 
 give up the bargain, if found to be advantageous. A sale by 
 an heir will not be supported against him unless it is per- 
 fectly fair in every respect, and beyond suspicion, and for an 
 adequate price. The burden is upon the purchaser to show 
 the fairness of the transaction and the sufficiency of the con- 
 sideration, and not upon the heir to impeach either the one 
 or the other ; and it is said that it is immaterial that the heir 
 is of mature age. In this country the rule may be stated 
 with still more severity, that the sale, by an heir, of his 
 expectancy during the life of the ancestor, is contrary to 
 public policy and is void, unless such sale is assented to by 
 the ancestor, and supported by an adequate consideration. 
 If, however, the sale is at auction, it will be some proof of 
 fairness and sufficiency of price, and if the sale is made with 
 the knowledge and assent of the ancestor it will be good. 
 But it seems that the rule is confined to those expectancies 
 that combine the relation of heir with that of remainderman 
 and reversioner. If the expectant is not heir, but is simply 
 entitled to a remainder or reversion by virtue of some instru- 
 ment or settlement, he may sell and assign his future inter- 
 est, and such sale will not be avoided unless some of the 
 common rules of equity are violated by the purchaser. In 
 such cases there is no fraud upon parents or third persons, 
 consequently there is nothing contrary to public policy in 
 such purchases." The case last cited is not sustained by 
 
 " I Perry on Trusts, citing inter Nimmo v. Davis, 7 Tex. 260 ; Poor 
 alia, Jenliins v. Pye, 12 Pet. 258; v. Hazelton, 15 N. H. 564; David- 
 
724 REAL PROPERTY, 
 
 other authorities and seems not to rest upon the principles 
 applicable to such transactions. 
 
 In the language of Sir William Grant in Gowland v. De 
 Faria, 17 Ves. 23, it will be laid down that "this is the case 
 of a person who, in this court, is considered as an expectant 
 heir ; ' ' and ' ' that it is incumbent upon those who have dealt 
 with an expectant heir, relative to his reversionary interest, 
 to make good the bargain ; that is, to be able to show that a 
 full and adequate consideration was paid. In all such cases, 
 the issue is upon the adequacy of price ; no proof of fraud is 
 necessary, and the relief is given upon general principles of 
 mischief to the public, without requiring particular evidence 
 of actual imposition."" 
 
 As some doubts are suggested by Mr. Justice Story and by 
 Mr. Jeremy, in the passages cited of their treatises, whether 
 the strictness of the doctrine applies to cases of dealings for 
 remainders, it is deemed necessary to go into a slight review 
 of the leading adjudged cases, to see if any conveyance 
 resembling the present has been permitted to stand. 
 
 It is but justice, however, to say that I do not suppose 
 either of those highly respectable authors intended to ques- 
 tion the doctrine in a case like the present, where the 
 estate in reversion descended upon an infant heir, encum- 
 bered with a life interest, and the expectancy was given to 
 the tenant for life, within eighteen months after the heir 
 became of age. That such purchase is a constructive fraud, 
 and the purchaser, if a stranger, compelled to account and 
 give up his bargain, if found to be advantageous, has not, 
 for a century, been an open question. The conveyance is 
 treated as a mortgage, and the grantor relieved on payment 
 of the principal advanced and interest, without inquiry 
 whether there was fraud or imposition." 
 
 son V. Little, 22 Pa. St. 252 ; Boyn- i Madd. Ch. 118, state the result of 
 ton V. Hubbard, 7 Mass. 112; Fitch the adjudications. 
 V. Fitch, 8 Pick. (Mass.) 480 ; Var- " The doctrine, during the seven- 
 ick V. Edwards, i HoflF. (N. Y.) 383 ; teenth century, met with some op- 
 Needles V. Needles, 7 Ohio St. 432. position, especially in the reigns of 
 '"2 Atk. 28; Jeremy's Eq. 398; i Car. II, and Jac. II; but in Nott v. 
 Story's Eq. 330, sec. 338; i Fon- Hill, I Vern, 169; i P. W. 310; 
 blanque's Eq. bk. I, chap. 2, sec. 12 ; Newland on Contracts, 436, and 
 
REVERSIONS. 
 
 '^5 
 
 § 257. Incumbrance of reversions. Does the law authorize 
 the holder of a mechanic's lien to pass over, and leave wholly 
 unmolested and untouched, the estate of the lessee, which 
 
 Bemey v. Pitt, 2 Vern. 14, it re- 
 ceived the most conclusive confir- 
 mation short of the judgment of 
 the House of Lords. In the former 
 case, Lord Ch. Nottingham decreed 
 redemption (in his own phrase) ; on 
 rehearing. Lord Keeper North re- 
 versed this decree, and refused re- 
 lief; but this last decree was again 
 reheard before Lord Ch. Jeffries (2 
 Vern. 27), and reversed, and that 
 of Lord Nottingham confirmed. 
 So, in Bemey v. Pitt, the report of 
 which is found in 2 Vern. 14; i P. 
 W. 3U ; Newland Con. 347; Lord 
 Nottingham denied relief ; but Lord 
 Ch. Jeffries (2 Jac. 2), on rehearing, 
 reversed the decree, and let in the 
 grantor to redeem on the usual 
 terms of paying the money ad- 
 vanced with interest. 
 
 In the case of Twisleton v. 
 Griffith, 1716, the exception was 
 again invoked that there was no 
 fraud in fact ; it was urged that at 
 this rate the heir of the remainder 
 could not sell, as no one would 
 buy, to which Lord Cowper replied: 
 "This might force an heir to go 
 home and submit to his father, or 
 bite on the bridle and endure some 
 hardships ; and in the meantime he 
 might grow wiser and be re- 
 claimed." (i P. W. 313.) 
 
 In Peacock v. Evans, 16 Ves. 
 514, the Master of the Rolls says, 
 when speaking of an heir selling 
 the expectancy of a remainder dur- 
 ing his father's life: "To that 
 class of persons this court seems to 
 have extended a degree of protec- 
 tion approaching nearly to an in- 
 capacity to bind themselves by con- 
 
 tract ; " and he cites with approba- 
 tion the expressions of Lord Ch. 
 Eldon, in Coles v. Trecothick, 9 
 Ves. 234, that '' the cases of rever- 
 • sions and interests of that sort go 
 upon a very different principle ; in 
 some the whole duty of making 
 good the bargain, upon the princi- 
 ples of this court, is upon the ven- 
 dee, as in the instance of heirs ex- 
 pectant.'' And Sir William Grant 
 added : " The tendency of this doc- 
 trine to render all bargains with 
 such persons very insecure, if not 
 altogether impracticable, seems not 
 to have been considered as operat- 
 ing to prevent its adoption and es- 
 tablishment ; but, on the contrary, 
 some of the judges have avowed 
 that probable consequence as being 
 to them the recommendation of the 
 doctrine." 
 
 In the case referred to, it was ad- 
 mitted there was nothing approach- 
 ing to fraud or imposition, yet the 
 conveyance was set aside, because 
 a full price had not been paid. All 
 that could be said of it was that 
 Mr. Peacock had obtained a very 
 advantageous bargain. 
 
 So, in Gowland v. DeFaria, 17 
 Ves. 23, where reversionary inter- 
 est had been sold, in which the 
 plaintiflfs mother had a life estate, 
 all fraud was denied, and no proof 
 introduced save that the considera- 
 tion was not full ; and in reply to 
 the argument of manifest fairness, 
 the Master of the Rolls replied; 
 " In all these cases the issue is on 
 the inadequacy of price. This is 
 the case of a person who, in this 
 court, is considered as an expect- 
 
726 REAL PROPERTY. 
 
 may be for a long term of years, or that of a tenant by the 
 curtesy, for example, which is for life, and at his mere will 
 and choice to throw the whole burden of expensive improve- 
 ments upon the reversioner, and enforce the claim by a sale 
 of the reversion ? If so, it is easy to see that the position of 
 landowners who have given what are called building leases, 
 may be subject to great embarrassment. It may be that the 
 right of the reversioner is very remote, and he may be 
 wholly unable to regulate or prevent the operations of the 
 intermediate tenant. He may have a mere contingent remain- 
 der, in which the rights of persons not yet in being are im- 
 plicated. But we do not understand that the law gives to 
 the holder of the lien any such arbitrary and unreasonable 
 option.'" 
 
 § 258. Reversions in lands held by corporations. Charter 
 recitals may limit the duration of a corporation to a specified 
 number of years, and yet the company is at liberty to pur- 
 chase and hold a fee, and to dispose of any realty at pleas- 
 ure. On the dissolution of the corporation the grantor of 
 any real estate previously sold to it will be debarred of any 
 reversionary interest by an alienation in fee made by the 
 corporate ofiicials before the expiration of the charter limit. 
 And this rule is founded upon the most obvious principles of 
 justice. The grantor having received full consideration for 
 his conveyance, and having intended to part with all of his 
 interest, both legal and equitable, in the estate conveyed, 
 should not be allowed to receive a donative in the shape of a 
 reversion, and hence the device is resorted to of an alienation 
 of the property in fee in order to defeat his claim. I hazard 
 the suggestion that even in the absence of a conveyance by 
 the corporation before its legal dissolution, the principle of 
 estoppel might be successfully invoked to prevent the intru- 
 sion of any claim whatever on the part of the grantor. Cer- 
 
 ant heir. He has charged his re- treated as a mortgage. ( Vide, Da- 
 
 versionary interest, and the ques- vis v. The Duke of Marlborough, 2 
 
 tioii is whether he has received an Swanston, 147.) 
 
 adequate consideration. Upon that ™ Francis and others v. Sayles, 
 
 question the evidence is all one loi Mass. 435. 
 
 way," and the conveyance was 
 
REVERSIONS. 727 
 
 tainly equity would regard the real estate of the corporation 
 after its dissolution as valuable assets belonging to the stock- 
 holders. A recent New York decision has held that where 
 premises were conveyed for the uses and purposes of a rail- 
 way, and for no other purpose, there was still nothing to 
 prevent a valid alienation by the grantee, although the con- 
 dition subsequent might raise the possibility of a reverter." 
 In this c&se, however, the company took the estate subject to 
 a condition. Had it received an absolute fee in the first 
 instance, it may be doubted if any reversion could be claimed 
 by the grantor."' 
 
 «' BuflFalo Pipe Line Co. v. R. R. « See Nicoll v. N. Y. & E. R. R. 
 Co. 10 Abb. (N. C.) 107. Co. 2 Kern. (12 N. Y.) 129. 
 
CHAPTER XVI. 
 
 POWERS. 
 
 Sec. 259. Powers of attorney. 
 
 260. Construction of powers. 
 
 Introductory note. After a most extended and laborious 
 investigation and comparison of the statute law of the vari- 
 ous States, relating to the subject of powers, the conclusion 
 is irresistible that the codification effected by the recent en- 
 actments of the New York Legislature is by far the most 
 valuable exposition of the topic ever spread upon the statute 
 books of any jurisdiction. Upon critical review it will be 
 readily admitted that they embody not only the substantive 
 law relating to the discussion, but also many efficient practice 
 regulations that under the modern procedure are quite gen- 
 erally regarded as tributary to this discussion. In brief they 
 are clear, crisp, and epigrammatic utterances by which in- 
 disputably appear, without tautology or senseless verbiage, 
 the ultimate essence of the law that now controls all phases 
 of the subject. Article IV of chapter 46, of the Laws of 
 1896, displays itself in fifty -two subdivisions, where with rare 
 skill the very eminent revisers have stated the law with un- 
 rivaled felicity and brevity. The article is here reproduced 
 under the conviction that no text writer is likely to improve 
 upon that which has engrossed the exclusive attention of 
 some of the ablest jurists in this or any other land. Those 
 who are in a position to recall the painful elaborations of Mr. 
 Sugden — elaborations that drone through interminable 
 reams of paper merely for the purpose of exposing some par- 
 ticular "whim -wham" of the English practice that is of no mo- 
 ment here — will the more appreciate the obvious merits of 
 this exceedingly creditable piece of legislation. 
 
 By the previous revision of 1830, a series of enactments 
 were passed by the New York Legislature, the design of 
 which was to abolish all powers previously known as operat- 
 
 [728] 
 
POWERS. 729 
 
 ing under the Statute of Uses and the Statute of Wills, and 
 for nearly seventy years the enactments designed to replace 
 the laws previously in vogue have been under constant judi- 
 cial construction. The result has been highly satisfactory, 
 and the codification of 1896 supplies deficiencies, modifies 
 previous rulings, enlarges the scope of some sections, and 
 creates a general re-vamping of the subject as administered 
 by the courts in that State. I append the full text of this 
 very admirable performance in the hope that it will stimu- 
 late a sentiment toward uniformity in this important branch 
 of our jurisprudence.' 
 
 POWERS. 
 
 Section iii. Definition of a power. 
 
 112. Definitions of grantor, grantee. 
 
 113. Division of powers. 
 
 114. General power. 
 
 115. Special power. 
 
 116. Beneficial power. 
 
 117. General power in trust. 
 
 118. Special power in trust. 
 
 119. Capacity to grant a power. 
 
 120. How power may be granted. 
 
 121. Capacity to take and execute a power. 
 
 122. Capacity of married woman to take power. 
 
 123. Capacity to take a special and beneficial power. 
 
 124. Reservation of a power. 
 
 125. Effect of power to revoke. 
 
 126. Power to sell in a mortgage. 
 
 127. When power is a lien. 
 
 128. When power is irrevocable. 
 
 129. When estate for life or years is changed into a 
 
 fee. 
 
 130. Certain powers to create a fee. 
 
 131. When grantee of power has absolute fee. 
 
 132. Effect of power to devise in certain cases. 
 
 133. When power of disposition absolute. 
 
 134. Power subject to condition. 
 
 ' On the subject of the Revision of 1830 see Hotchkiss v. Elting, 36 
 Barb. (N. Y ) 38. 
 
730 REAL PROPERTY. 
 
 Section 135. Power of life tenant to make leases. 
 
 136. Effect of mortgage by grantee. 
 
 137. When a trust power is imperative. 
 
 138. Distribution when more than one beneficiary. 
 
 139. Beneficial power subject to creditors. 
 
 140. Execution of power on death of trustee. 
 
 141. When power devolves on court. 
 
 142. When creditors may compel execution of trust 
 
 power. 
 
 143. Defective execution of trust power. 
 
 144. Effect of insolvent assignment. 
 
 145. How power must be executed. 
 
 146. Executed by survivors. 
 
 147. Execution of power to dispose by devise. 
 
 148. Execution of power to dispose by grant. 
 
 149. When direction by grantor does not render power 
 
 void. 
 
 150. When directions by grantor need not be followed. 
 
 151. Nominal conditions may be disregarded. 
 
 152. Intent of grantor to be observed. 
 
 153. Consent of grantor or third person to execution 
 
 of power. 
 
 154. When all must consent. 
 
 155. Omission to recite power. 
 
 156. When devise operates as an execution of the 
 
 power. 
 
 157. Disposition not void because too extensive. 
 
 158. Computation of terni of suspension. 
 
 1 59. Capacity to take under a power. 
 
 160. Purchaser under defective execution. 
 
 161. Instrument affected by fraud. 
 
 § III. Definition of a power. — A power is an authority to 
 do an act in relation to real property, or to the creation or 
 revocation of an estate therein, or a charge thereon, which 
 the owner, granting or reserving the power might himself 
 lawfully perform. 
 
 § 1 1 2. Definition of grantor, grantee. — The word ' ' grantor' ' 
 is used in this article, in connection with a power, as desig- 
 nating the person by whom the power is created, whether by 
 
POWERS. 731 
 
 grant or by devise; and the word "grantee" is so used as 
 designating the person in whom the power is vested, whether 
 by grant, devise or reservation. 
 
 § 1 13. Division of powers. — A power, as authorized in this 
 article, is either general or special, and either beneficial or 
 in trust. 
 
 § 114. General power. — A power is general, when it au- 
 thorizes the transfer or encumbrance of a fee, by either a 
 conveyance or a will of or a charge on the property embraced 
 in the power, to any grantee whatever. 
 
 § 115. Special power. — A power is special where either: 
 
 1. The persons or class of persons to whom the disposition 
 of the property under the power is to be made are desig- 
 nated ; or, 
 
 2. The power authorizes the transfer or encumbrance, by 
 a conveyance, will or charge, of any estate less than a fee. 
 
 § 116. Beneficial power. — A general or special power is 
 beneficial, where no person, other than the grantee, has, by 
 the term of its creation, any interest in its execution. A 
 beneficial power, general or special, other than one of those 
 specified and defined in this article, is void. 
 
 § 117. General power in trust. — A general power is in 
 trust, where any person, or class of persons, other than the 
 grantee of the power, is designated as entitled to the pro- 
 ceeds, or any portion of the proceeds, or other benefits to result 
 from its execution. 
 
 § 1 18. Special power in trust. — A special power is in trust, 
 where either, 
 
 1. The disposition or charge which it authorizes is limited 
 to be made to a person or class of persons, other than the 
 grantee of the power ; or, 
 
 2. A person or class of persons, other than the grantee, is 
 designated as entitled to any benefit, from the disposition or 
 charge authorized by the power. 
 
 § 1 19. Capacity to grant a power. — A person is not capable 
 of granting a power, who is not, at the same time, capable of 
 transferring an interest in the property to which the power 
 relates. 
 
 § 120. How power may be granted. — A power may be 
 granted either : 
 
732 REAL PROPERTY. 
 
 1. By a suitable clause, contained in an instrument suffi- 
 cient to pass an estate in the real property, to which the 
 power relates ; or, 
 
 2. By a devise contained in a will. 
 
 § 121. Capacity to take and execute a power. — A power 
 may be vested in any person capable in law of holding, but 
 cannot be exercised by a person not capable of transferring 
 real property. 
 
 § 122. Capacity of married woman to take power. — A gene- 
 ral and beneficial power may be given to a married woman, 
 to dispose, during her marriage, and without concurrence of 
 her husband, of real property conveyed or devised to her in fee. 
 
 § 123. Capacity to take a special and beneficial power. — A 
 special and beneficial power may be granted, 
 
 1. To a married woman, to dispose, during the marriage, 
 and without the concurrence of her husband, of any estate 
 less than a fee, belonging to her, in the property to which 
 the power relates ; or, 
 
 2. To a tenant for life, of the real property embraced in 
 the power, to make leases for not more than twenty-one 
 years, and to commence in possession during his life ; and 
 such a power is valid to authorize a lease for that period but 
 is void as to the excess. 
 
 § 124. Reservation of a power. — The grantor in a convey- 
 ance may reserve to himself any power, beneficial or in 
 trust, which he might lawfully grant to another; and a 
 power thus reserved, shall be subject to the provisions of 
 this article, in the same manner as if granted to another. 
 
 § 125. Effect of power to revoke. — Where the grantor in a 
 conveyance reserves to himself for his own benefit, an abso- 
 lute power of revocation, he is to be still deemed the absolute 
 owner of the estate conveyed, so far as the rights of creditors 
 and purchasers are concerned. 
 
 § 126. Power to sell in a mortgage. — Where a power to 
 sell real property is given to a mortgagee, or to the grantee 
 in any other conveyance intended to secure the payment of 
 money, the power is deemed a part of the security, and vests 
 in, and may be executed by any person who, by assignment 
 or otherwise, becomes entitled to the money so secured to be 
 paid. 
 
POWERS. 733 
 
 § 127. When power is a lien. — A power is alien or charge 
 on the real property which it embraces, as against creditors, 
 purchasers and encumbrancers in good faith and without 
 notice, of or from a person having an estate in the property, 
 only from the time the instrument containing the power is 
 duly recorded. As against all other persons, the power is a 
 lien from the time the instrument in which it is contained 
 takes effect. 
 
 § 128. When power is irrevocable. — A power, whether 
 beneficial or in trust, is irrevocable, unless an authority to 
 revoke it is granted or reserved in the instrument creating 
 the power. 
 
 § 129. When estate for life or years is changed into a fee. — 
 Where an absolute power of disposition, not accompanied by 
 a trust, is given to the owner of a particular estate for life or 
 for years, such estate is changed into a fee absolute in respect 
 to the rights of creditors, purchasers and encumbrancers, 
 but subject to any future estates limited thereon, in case the 
 power of absolute disposition is not executed, and the prop- 
 erty is not sold for the satisfaction of debts. 
 
 § 130. Certain powers create a fee. — - Where a like power 
 of disposition is given to a person to whom no particular 
 estate is limited, such person also takes a fee, subject to any 
 future estates that may be limited thereon, but absolute in 
 respect to creditors, purchasers and encumbrancers. 
 
 § 131. When grantee of power has absolute fee. — Where 
 such a power of disposition is given, and no remainder is 
 limited on the estate of the grantee of the power, such 
 grantee is entitled to an absolute fee. 
 
 § 132. Effect of power to devise in certain cases. — Where a 
 general and beneficial power to devise the inheritance is 
 given to a tenant for life, or for years, such tenant is deemed 
 to possess an absolute power of disposition within the mean- 
 ing of and subject to the provisions of the last three sections. 
 
 § 133. When power of disposition absolute. Every power 
 of disposition by means of which the grantee is enabled, in 
 his lifetime, to dispose of the entire fee for his own benefit, 
 is deemed absolute. 
 
 § 134. Power subject to condition. — A general and benefi- 
 cial power may be created subject to a condition precedent 
 
734 REAL PROPERTY. 
 
 or subsequent, and until the power becomes absolutely vested 
 it is not subject to any provision of the last four sections. 
 
 § 135. Power of life tenant to make leases. — 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 excepted, it is 
 extinguished. Such a power may be released by the tenant 
 to a person entitled to an expectant estate in the property, 
 and shall thereupon be extinguished. 
 
 § 136. Effect of mortgage by grantee. — A mortgage exe- 
 cuted by a tenant for life, having a power to make leases, 
 does not extinguish or suspend the power ; but the power is 
 bound by the mortgage in the same manner as the real prop- 
 erty embraced therein, and the effects on the power of such 
 lien by mortgage are : 
 
 1. That the mortgagee is entitled to an execution of the 
 power so far as the satisfaction of his debt requires ; and, 
 
 2. That any subsequent estate, created by the owner, in 
 execution of the power, becomes subject to the mortgage as 
 if in terms embraced therein. 
 
 § 137. When a trust power is imperative. — A trust power, 
 unless its execution or non-execution is made expressly to 
 depend on the will of the grantee, is imperative, and imposes 
 a duty on the grantee, the performance of which may be 
 compelled for the benefit of the person interested. A trust 
 power does not cease to be imperative where the grantee has 
 the right to select any, and exclude others, of the persons 
 designated as the beneficiaries of the trust. 
 
 § 138. Distribution when more than one beneficiary. — 
 Where a disposition under a power is directed to be made 
 to, among, or between, two or more persons, without any 
 specification of the share or sum to be allotted to each, all 
 the persons designated shall be entitled to an equal propor- 
 tion ; but when the terms of the power import that the estate 
 or fund is to be distributed among the persons so designated, 
 in such manner or proportions as the grantee of the power 
 thinks proper, the grantee may allot the whole to any one or 
 more of such persons in exclusion of the others. 
 
 § 139. Beneficial power subject to creditors. — .A special 
 and beneficial power is liable to the claims of creditors in the 
 
POWERS. 735 
 
 same manner as other interests that can not be reached by 
 execution; and the execution of the power may be adjudged 
 for the benefit of the creditors entitled. 
 
 § 140. Execution of power on death of trustee. — If the 
 trustee of a power, with the right of selection, dies leaving 
 the power unexecuted, its execution must be adjudged for 
 the benefit, equally, of all the persons designated as benefi- 
 ciaries of the trust. 
 
 § 141. When power devolves on court. — Where a power in 
 trust is created by will, and the testator has omitted to desig- 
 nate by whom the power is to be executed, its execution 
 devolves on the supreme court. 
 
 § 142. When creditors may compel execution of trust 
 power. — The execution, wholly or partly, of a trust power 
 may be adjudged for the benefit of the creditors or assignees 
 of a person entitled as a beneficiary of the trust, to compel its 
 execution, where his interest is assignable. 
 
 § 143. Defective execution of trust power. — Where the exe- 
 cution of a power in trust is defective, wholly or partly, 
 under the provisions of this article, its proper execution may 
 be adjudged in favor of the person designated as the benefi- 
 ciary of the trust. 
 
 § 144. Effect of insolvent assignment. — A beneficial power, 
 and the interest of every person entitled to compel the exe- 
 cution of a trust power, shall pass, respectively, to a trustee 
 or committee of the estate of the person in whom the power 
 or interest is vested, or an assignee for the benefit of creditors. 
 
 § 145. How power must be executed. — A power can be 
 executed only by a written instrument, which would be suffi- 
 cient to pass the estate, or interest, intended to pass under 
 the power, if the person executing the power were the actual 
 owner. 
 
 § 146. Execution by survivors. — Where a power is vested 
 in two or more persons, all must unite in its execution ; but 
 if before its execution, one or more of such persons dies, the 
 power may be executed by the survivor or survivors. 
 
 § 147- Execution of power to dispose by devise. — Where 
 a power to dispose of real property is confined to a disposi- 
 tion by devise or will, the instrument must be a written will, 
 executed as required by law . 
 
736 REAL PROPERTY. 
 
 § 148. Execution of power to dispose by grant. — Where a 
 power is confined to a disposition by grant, it can not be 
 executed by will, although the disposition is not intended 
 to take effect until after the death of the person ex;ecuting the 
 power. 
 
 § 149. When direction by grantor does not render power 
 void. — Where the grantor of a power has directed or author- 
 ized it to be executed by an instrument not sufficient in law 
 to pass the estate, the power is not void, but its execution is 
 to be governed by the provisions of this article. 
 
 § 1 50. When directions by grantor need not be followed. — 
 Where the grantor of a power has directed any fomality to 
 be observed in its execution, in addition to those which would 
 be sufficient by law to pass the estate, the observance of such 
 additional formality is not necessary to the valid execution 
 of the power. 
 
 § 151. Nominal conditions may be disregarded. — Where 
 the conditions annexed to a power are merely nominal, and 
 evince no intention of actual benefit to the party to whom, 
 or in whose favor, they are to be performed, they may be 
 wholly disregarded in the execution of the power. 
 
 § 152. Intent of grantor to be observed. — Except as pro- 
 vided in this article, the intentions of the grantor of a power 
 as to the manner, time and conditions of its execution must 
 be observed; subject to the power of the supreme court, to 
 supply a defective execution as provided in this article. 
 
 § 153. Consent of grantor or third person to execution of 
 power. — Where the consent of the grantor or a third person 
 to the execution of a power is requisite, such consent shall 
 be expressed in the instrument by which the power is exe- 
 cuted, or in a written certificate thereon. In the first 
 case, the instrument of execution, in the second, the certifi- 
 cate, must be subscribed by the person whose consent is 
 necessary ; and to entitle the instrument to be recorded, such 
 signature must be acknowledged or proved and certified in 
 like manner as a deed to be recorded. 
 
 § 1 54. When all must consent. — Where the consent of 
 two or more persons to the execution of a power is requisite, 
 all must consent thereto ; but if, before its execution, one or 
 more of them die, the consent of the survivor or survivors is 
 
POWERS. 737 
 
 sufficient, unless otherwise prescribed by the terms of the 
 power. 
 
 § 155. Omission to recite power. — An instrument executed 
 by the grantee of a power, conveying an estate or creating a 
 charge, which he would have no right to convey or create, 
 except by virtue of the power, shall be deemed a valid exe- 
 cution of the power, although the power be not recited or 
 referred to therein. 
 
 § 156. When devise operates as an execution of the power. 
 — Real property embraced in a power to devise passes by a 
 will purporting to convey all the real property of the testa- 
 tor, unless the intent that the will is not to operate as an 
 execution of the power, appears, either expressly or by neces- 
 sary implication. 
 
 § 157. Disposition not void because too extensive. — A dis- 
 position or charge by virtue of a power is not void on the 
 ground that it is more extensive than was authorized by the 
 power; but an estate or interest so created, so far as em- 
 braced by the terms of the power, is valid. 
 
 § 158. Computation of term of suspension. — The period 
 during which the absolute right of alienation may be sus- 
 pended, by an instrument in execution of a power must be 
 computed, not from the date of such instrument, but from 
 the time of the creation of the power. 
 
 § 1 59. Capacity to take under a power. — An estate or inter- 
 est can not be given or limited to any person, by an instru- 
 ment in execution of a power, unless it would have been 
 valid, if given or limited at the time of the creation of the 
 power. 
 
 § 160. Purchase under defective execution. — A purchaser 
 for a valuable consideration, claiming under a defective exe- 
 cution of a power, is entitled to the same relief as a similar 
 purchaser, claiming under a defective conveyance from an 
 actual owner. 
 
 § 161. Instrument affected by fraud. — An instrument in 
 execution of a power is affected by fraud, in the same man- 
 ner as a conveyance or will, executed by an owner or by a 
 trustee. 
 
 The following is a partial list of the various reports 
 of the State of New York referred to in the citations, — 
 47 
 
738 REAL PROPERTY. 
 
 but not arranged chronologically, It may be pertinent to 
 remark, in this connection, that Barbour, Lansing, Hun, 
 Howard and Abbott represent the intermediary or subordi- 
 nate court decisions of the State, while Johnson, Hopkins, 
 Paige, Edwards, Hoffman, Clarke, and Sanford are the titles 
 that designate the thirty-two volumes of the Chancery 
 Reports starting with Chancellor Kent in 1829. The early 
 numbers of the present Court of Appeals Reports are some- 
 times referred to under the reportorial name of Comstock, 
 Selden, Kernan, Tiffany and Sickles, while the reports of 
 Johnson, Cowan, Wendell, Hill, and Denio, must also be 
 understood as earlier reports of the same State. 
 
 § 259. Powers of attorney. Powers of attorney, or letters of 
 attorney as they are sometimes called, simply authorize 
 some one to act as agent or attorney for another. The subject 
 is more closely related to discussions on agency, but, as such 
 powers frequently confer a right to convey realty, it may be 
 appropriate to observe that where such is the case the power 
 should be conferred with all the solemnities that surround 
 the deed the attorney or agent is expected to execute. 
 These powers of attorney differ from those which derive 
 their attributes from the doctrine of uses. They generally 
 are resorted to to expedite business and perform certain 
 specified acts for absentees. They should be under seal for 
 many purposes, but not all.' If, however, the appointee is 
 to execute a conveyance, the power should be under seal.' 
 By statute in most of the States, such a power to convey real 
 estate should be executed, acknowledged, and duly recorded.* 
 The mere authorization to make a contract for the future 
 conveyance of land need not be under seal, nor even in writ- 
 ing.' Our principle concern, however, is with those powers 
 that directly involve the doctrine of uses. 
 
 § 260. Construction of powers. There is nothing so sacra- 
 mental about a power as to entitle it to any special indul- 
 gence from the courts in the matter of construction. And 
 
 'Watson V. Sherman, 84 111. 263. ■'Stimson's Amer. St. sec. 1670. 
 
 'Rowe V. Ware, 30 Ga. 278; Smith 'Rottman v. Wasson, 5 Kan. 552; 
 V. Dickinson, 6 Humph. 261. Lawrence v. Taylor, 5 Hill, 113. 
 
POWERS. 739 
 
 in all instances, the struggle is, as we have stated, to effectu- 
 ate the intent of the donor, and in determining the scope and 
 nature of this intent the construction will proceed in the 
 light of the surrounding circumstances, always keeping in 
 view the purpose to be accomplished. Mere naked powers 
 are said to be strictly construed.- But in most cases there is a 
 disposition to relax the rules of strict construction, and pro- 
 ceed by common sense methods that will override fanciful 
 impediments and reach a result comporting with a rational 
 view of the ends aimed at.' It frequently happens that in 
 the effort to accomplish the donor's intent some minor design 
 is frustrated. But in all cases the effort is to give full effect 
 to the general intention, wherever it can be done without 
 ignoring some settled rule of law, or contravening some rule 
 of public policy.' The extent of the power is to be settled 
 by the language employed, "aided by the situation of the 
 parties and of the property, the usages of the country, the 
 acts of the parties themselves, and any other circumstance 
 having a legal bearing and throwing light on the question.'" 
 This is the language of Mr. Justice Woodbury of the first 
 circuit. Generally it may be said that in the construction of 
 the instrument creating the power the office of the judge 
 is simply to ascertain and declare what is in terms or in 
 substance contained therein, not to insert what has been 
 omitted, or to omit what has been inserted. And where 
 there are several provisions or particulars, such a construc- 
 tion is; if possible, to be adopted as will give effect to all. 
 The judge should be placed in the position of those whose 
 language he is to interpret. Terms are to be construed 
 in their general acceptation, and written words will con- 
 trol those printed in blank from." Another rule of construc- 
 tion requires the language of a writing to be interpreted 
 according to the meaning it bears in the place of its 
 execution unless the parties have reference to a different 
 place." 
 
 ■^. . ■_, — ... ■ — ^ 
 
 6 Kerr v. Verner, 66 Pa. St. 326; *Leroy v. Beard, 49 U. S. 466. 
 Collins V. Foley, 63 Md. 156. '2 Rice's Ev. 1350. 
 
 ' Wilson v. Troup, 7 Johns. Ch. " Id. 
 25- 
 
740 REAL PROPERTY. 
 
 Of course, every document whatever must, to some extent, 
 be interpreted by circumstances. However accurate and 
 detailed a description of things and persons may be, oral evi- 
 dence is always wanted to show that persons and things 
 answering the description exist ; and, therefore, in every case 
 whatever, every fact must be allowed to be proved to which 
 the document does, or probably may refer." 
 
 " Steph. Dig. note 33; i Rice on Ev. 251. 
 
CHAPTER X\^II. 
 
 EXECUTORY DEVISES. 
 
 Sec. 261. The term defined. 
 
 262. Origin and history. 
 
 a. Note from Chancellor Kent. 
 
 b. From Professor Walker. 
 
 263. Two kinds of executory devises. 
 
 264. Distinction between executory devises and vested remainders. 
 
 265. Not favored by our courts. 
 
 266. Their tendency is to create a perpetuity. 
 
 267. Construction and interpretation. 
 
 268. The construction of wills. 
 
 269. The phrase " dying without issue " explained. 
 
 § 261. The term defined. An executory devise is in a 
 general sense — a devise of a future interest in lands, not to 
 take effect at the testator's death, but limited to arise and 
 vest upon some future contingency.' A disposition of lands 
 by will, by which no estate vests at the death of the devisor, 
 but only on some future contingency." 
 
 In a stricter sense, a limitation by will of a future contin- 
 gent interest in lands, contrary to the rules of the common 
 law.' A limitation by will, of a future estate or interest in 
 land, which cannot, consistently with the rules of law, take 
 effect as a remainder.* 
 
 It is the substitution of another estate on the happening of 
 an event cutting off the prior estate. The term has been 
 used also to denote a proviso determining an estate, with- 
 out itself substituting another ; the best treatises apply the 
 term to the former case only." A condition ends the es- 
 
 'i Fearne on Remainders, 382. 237; Lewis on Perpetuity, 71, 72; i 
 
 ' 2 Bl. Com. 172. Burrill's Law Diet. tit. " Executory 
 
 '4 Kent's Com. 263; i Steph. Com. Devise." 
 
 564- 'See Gray on Restraints on 
 
 *2 Powell on Dev. (by Jarman), Alienation, p. 12, note. 
 
 [741] 
 
742 REAl PROPERTY. 
 
 tate without limitation over — that is, only the heir can 
 enforce it.' 
 
 "Executory devises are not naked possibilities, but are in 
 the nature of contingent remainders ; and there is no doubt 
 but that such estates are transmissible, and consequently 
 devisable. ' ' 
 
 The original purpose of executory devises was to carry 
 into effect the will of the testator, and give effect to limita- 
 tions over, which could not operate as contingent remainders 
 by the rules of the common law. Indeed, the general and 
 comprehensive definition of an executory devise is a limita- 
 tion by will of a future estate or interest in land, which can- 
 not, consistently with the rules of law, take effect as a remain- 
 der. Every devise to a person in derogation of, or substitution 
 for, a preceding estate in fee simple, is an executory devise.' 
 
 Whenever, therefore, a devisor disposes of the whole fee 
 in an estate to one person, but qualifies this disposition, by 
 giving the estate over, upon breach of a condition, or hap- 
 pening of a contingency, to some other person, this creates 
 an executory devise." 
 
 Many of the subjects connected with this particular form 
 of expectancy are among the most abstruse and profound of 
 all the questions brought before courts of justice upon this 
 most difficult branch of the law of real property; they 
 depend upon considerations and distinctions highly techni- 
 cal, artificial and refined, and to render the subject more per- 
 plexing, there is found, upon some points, a most distressing 
 diversity of opinion among eminent jurists, who are regarded 
 as the highest authorities upon most questions of law.' 
 
 'Walker's Amer. Law, p. 360, dispositions, allowed by courts of 
 
 note a. law, and when properly exercised, 
 
 '4 Kent's Com. 264; i Jarman on they pass the legal estate or inter- 
 Wills, 778 ; Lewis on Perp. 72 ; 6 est to all persons in favor of whom 
 Cruise's Dig. tit. 38, chap. 17, sees, the dispositions are made. They 
 I, 2; Purefoy v. Rogers, 2 Saund. are devises to take effect at a certain 
 388a and note. time in the future, or upon a cer- 
 
 '4 Kent's Com. 268; 6 Cruise's tain event, and in favor of certain 
 
 Dig. 38, chap. 17, sec. 2 ; Bac. Ab. persons. Limitations by way of 
 
 Devise, i; i Fearne Cont. Rem. 399. springing or shifting uses are simi- 
 
 ' Mr. Perry says : Executory de- lar in effect, except that they are 
 
 vises are a species of testamentary created by deeds inter vivos, and are 
 
EXECUTORY DEVISES. 743 
 
 While it is substantially true that an executory devise is in 
 substance a remainder created by will, and is distinguished 
 by many of the characteristics that we recognize in a remain- 
 der, it is still true that there are peculiarities of construction 
 that appear only in this form of expectancy, and we shall 
 endeavor in this section to bring them into prominence. It 
 may be regarded as settled beyond the reach of controversy 
 that a future interest in lands will be held to take eilect as a 
 remainder, and not as an executory devise." And another 
 distinction is that through the medium of an executory 
 devise a term of years may be limited over after a life inter- 
 est created in the same." Again, it is familiar law that a 
 remainder must have a particular estate to support it, while 
 an executory devise is not dependent upon anything of the 
 sort. A remainder is always favored, and it is only where 
 the testamentary intent cannot in any way be accomplished 
 except by way of executory devise, that this particular form 
 of estate is recognized." One obvious advantage is enjoyed 
 by this species of estate ; as they are in no way dependent 
 upon a prior estate they cannot be affected, much less de- 
 feated by any act of the holder of the particular estate. Unless 
 
 based upon the Statute of Uses, joyment of the equitable estate from 
 Whenever the event happens when one person to another, in the future, 
 a shifting or springing use is to in a manner analogous to the limita- 
 take effect, the Statute of Uses tions of springing or shifting uses 
 vests the legal seizin and ownership under the Statute of Uses. Courts 
 in the person entitled by virtue of of equity always take special care 
 the use. These executory devises, that future estates or interests shall 
 and shifting and springing uses, not be destroyed by the present 
 must vest in the persons intended user of the property ; and that the 
 to be benefited within the time al- limitations of future equitable inter- 
 lowed by law, or they will be de- ests shall not transcend the limits 
 clared illegal and of no effect. The assigned for the limitation of sinii- 
 same rules apply in equity to trusts, lar legal interests or executory de- 
 In cases of trusts the legal estate is vises, and shifting and springing 
 vested in certain trustees and their uses at law. (i Perry on Trusts, 
 heirs ; but the beneficial interest, 485.) 
 
 or equitable estate, is given by the '" Manderson v. Lukens, 23 Pa. 
 
 grantor, testator, or settler to such St. 31 ; Wolfe v. Van Nastrond, 2 
 
 person or persons, and upon such N. Y. 436. 
 
 terms and upon such events, as he " Hill v. Hill, 74 Pa. St. 173. 
 
 shall declare. The settler can ''' Doe v. Considine, 6 Wall. 445. 
 change and shift the beneficial en- 
 
744 REAL PROPERTY. 
 
 by some recital in the will an act of that character will ope- 
 rate in its destruction." The tendency of legislation in this 
 country is to provide appropriate statutes by which the 
 courts are at liberty to avail themselves of any indication that 
 may appear in the case by which they can hold that a failure 
 of issue, when made the contingency or event upon which a 
 second limitation was to vest, means a failure upon the death 
 of the first taker — the owner of the particular estate. A 
 definite failure of issue is always preferred to an indefinite. 
 The principle decided by the celebrated case of Pells v. 
 Brown, Cor. Jac. 590 (a decision that may be regarded as 
 imparting the breath of life to all executory devises), pro- 
 ceeds upon this theory. A devise to A. and his heirs, and if 
 he die, without living issue, then to B. The devise was held 
 to refer to a failure of issue during the life of B. The phrase 
 so frequently met with, ' ' leaving no issue, or dying without 
 issue," is construed to mean a definite failure of issue." An 
 apt illustration of an executory devise occurs in Brigktman v. 
 Brightman, 100 Mass. 238. Israel Brightman's will, devising 
 certain real estate ' ' to Daniel and John Brightman and to 
 their heirs and assigns, ' ' taken by itself, gave them an estate 
 in fee simple. The subsequent clause providing that "if the 
 said Daniel or John shall decease, leaving no issue of his body 
 lawfully begotten, then what I have devised to such one, I 
 here devise to the survivor thereof and his heirs and assigns, ' ' 
 created an executory devise limited upon that fee simple.'* 
 But the contingency did not happen ; for Daniel died first, 
 and left issue ; and when John died Daniel did not survive 
 him. Upon the decease of Daniel leaving issue, the contin- 
 gency mentioned became impossible, and the estate in fee 
 simple remained. 
 
 The controlling reason influencing courts in their prefer- 
 ence for contingent remainders rather than for executory 
 devises is doubtless due to the fact that estates limited by 
 this latter form of expectancy are indestructible, and do not 
 come under any immediate prospect of free alienation. It 
 
 " Proprietors v. Grant, 3 Gray 303; also Hill v. Hill, 74 Pa. St. 
 
 (Mass.), 146. 173. 
 
 "See the remarks of Judge Ra- ■* Richardson v. Noyes, 2 Mass. 
 
 pallo in Manice v. Manice, 43 N. Y. 56. 
 
EXECUTORY DEVISES. 745 
 
 has been the universal policy of our laws to so regulate the 
 devolution of real property, as to give it the attributes of a 
 commodity easily and frequently transferred. And hence, 
 we find an almost morbid excess of decision to the effect 
 that wherever a contingency is limited to depend upon an 
 estate of freehold which is capable of supporting a remain- 
 der, it shall never be construed as an executory devise, but 
 shall be regarded as a contingent remainder." Indeed, it 
 may be said, that the rules of construction are inflexible. 
 "A future limitation must be regarded as a remainder, 
 unless the language imperatively requires its recognition as 
 an executory devise. ' ' This declaration is clearly deducible 
 from the great Duke of Norfolk's case which, with the earlier 
 case of Pells v. Brown, fully sustains the contention that 
 regards the future limitation as an executory devise when- 
 ever the language of the testator leaves no room for doubt as 
 to his intention. 
 
 § 262. Origin and history. Writers of extreme inquisitive- 
 ness, who have a mania for probing into the source of things, 
 tell us that prior to the case of Pells v. Brown, Cro. Jac. 590, 
 executory devises had a beginning, and although of rare 
 occurrence, the principle they represent was by no means 
 unfamiliar. Be this as it may, certain it is that until the case 
 last cited — which was decided by the Court of King's Bench 
 in 1619 — no authentic record exists in the English law 
 reports of an analogous decision. For all practical purposes 
 Pells V. Brown originated the modern doctrine of executory 
 devises. The English courts, after the passage of the cele- 
 brated Statute of Wills (32 Hen. VIII), in their determined 
 effort to support the intention of the testator followed the 
 analogies furnished in conveyances to uses. And it was an 
 all but inevitable result that they should gradually regard 
 with favor the validity of a limitation not recognized by the 
 common law system of conveyance. To this remorseless 
 determination to sustain at all hazards the testamentary 
 intention is to be traced the origin of that species of property 
 limitations known as executory devises, or the doctrine that 
 a fee mav be limited after a fee by the recitals of the last 
 
 " Nightingale V. Burrill, 15 Piclc. (Mass.) 104. 
 
746 REAL PROPERTY. 
 
 will and testament. Pells v. Brown placed this doctrine be- 
 vond the reach of controversy or argument or even demur. 
 Lord Kenyon says in Porter v. Bradley, 3 Term Rep. 145, 
 that ' ' the case is now regarded as the foundation, and as it 
 were, the magna charta of this branch of the law." For 
 nearly three centuries it has stood as the authoritative utter- 
 ance of the proposition that an executory devise limiting a 
 fee after a fee upon some contingency which operates to 
 defeat the estate of the first taker, otherwise known as the 
 particular estate, is valid, and should be recognized as a 
 common form of assurance. 
 
 The old common law doctrine of repugnancy between the 
 two estates might have been sustained as rational, if we are 
 willing to assume enough in its favor. But it has been 
 utterly annihilated by the unanswerable logic sustaining the 
 contention that the prior gift (the estate of the first taker), 
 although created by words which, standing alone, might im- 
 port an absolute estate, yet as restrained by the subsequent 
 limitation clearly imply an intention to confer only a quali- 
 fied interest or estate. It is true that the particular or prior 
 estate is denominated a fee — because it may last forever — 
 but it is none the less a base or determinable fee because it is 
 constantly menaced with overwhelming defeat whenever the 
 contingency upon which it is limited happens, and this con- 
 tingency is never under the volition and control of the first 
 taker. Under the judicial construction the limitation pre- 
 vents the vesting of a fee absolute in the first taker, and 
 gives him only a qualified or determinable fee. 
 
 While the books fairly teem with learning on this subject, 
 the case oi Jackson v. Bull, 10 Johns. Rep. 19, and Ide v. Ide, 5 
 Mass. 500, are among the earliest decisions in this country 
 which illustrate the principles upon which the doctrine of 
 executory devises rests. In the first case cited. Judge Kent, 
 afterwards Chancellor, wrote the opinion, and it has been a 
 source of contention in the courts from that day to this, 
 although quite generally sustained." 
 
 "a. Note from Chancellor Kent. — mon law, which abhorred perpetui- 
 
 The history of executory devises ties, and the determined spirit of 
 
 presents an interesting view of the the courts of justice to uphold that 
 
 stable policy of the English com- policy, and keep property free 
 
EXECUTORY DEVISES. 
 
 747 
 
 § 263. Two kinds of executory devises. We can evade a 
 great deal of confusion by clearly apprehending the exact 
 di£Eerence between the two kinds of executory devises, and 
 
 from the fetters of entailments, 
 under whatever modification or 
 form they might assume. Perpetui- 
 ties, as applied to real estates, 
 were conducive to the power and 
 grandeur of ancient families, and 
 gratifying to the pride of the 
 aristocracy; but they were ex- 
 tremely disrelished by the nation 
 at large, as being inconsistent with 
 the free and unfettered enjoyment 
 of property. " The reluctant spirit 
 of English liberty,'' said Lord 
 Northington, " would not submit to 
 the statute of entails ; and West- 
 minster Hall, siding with liberty, 
 found means to evade it." Com- 
 mon recoveries were introduced to 
 bar estates tail ; and then, on the 
 other hand, provisos and conditions 
 not to alien with a cessor of the 
 estate or any such attempt by the 
 tenant, were introduced to recall 
 perpetuities. The courts of law 
 would not allow any such restraints 
 t)y condition, upon the power of 
 alienation, to be valid. " Such 
 perpetuities," said Lord Bacon, 
 "would bring in the use of the 
 former inconveniences attached to 
 entail ; ' and he suggested that it 
 was better for the sovereign and 
 the subject that men should be '' in 
 hazard of having their houses un- 
 done by unthrifty posterity, than 
 be tied to the stake by such perpe- 
 tuities." 
 
 Executory limitations were next 
 resorted to, that men might attain 
 the same object. Mr. Hargrave has 
 gleaned from the oldest authorities 
 a few imperfect samples of an ex- 
 ecutory devise ; but this species of 
 
 limitation may be considered as 
 having arisen since the Statute of 
 Uses and of Wills. It was slowly 
 and cautiously admitted, prior to 
 the leading case of Pells v. Brown. 
 Springing uses of the inheritance 
 furnished a precedent for similar 
 limitations in the form of executory 
 devises ; and it was decided in Pells 
 V. Brown that a fee might be limited 
 upon a fee by way of executory de- 
 vise, and that such a limitation 
 could not be barred by a common 
 recovery. (4 Kent's Com. 297.) 
 
 b. From Prof. Walker. — Execu- 
 tory devises. Remainders created 
 by will differ so much from remain- 
 ders created by deed, that they have 
 taken the distinct name of execu- 
 tory devises. These differences 
 are to be ascribed to that indul- 
 gence which the law on all occa- 
 sions shows to testators, by giving 
 effect to their intentions, however 
 untechnically expressed. A state- 
 ment of them will justify what has 
 been said respecting the arbitrary 
 character of the law of remainders, 
 strictly so called. 1. No particular 
 estate is necessary to precede an 
 executory devise, since by will a 
 freehold might always be made to 
 commence at a future time. Thus, 
 if I devise to you an estate in fee, 
 to commence six months after my 
 death, this is a good executory de- 
 vise. 2. The limitation of an es- 
 tate, by will, after an estate in fee- 
 simple, is said to be a good execu- 
 tory devise. For example, if I 
 devise land to you and your heirs 
 forever, but if you die within age, 
 then to your brother and his heirs, 
 
748 
 
 REAL PROPERTY. 
 
 the legal incidents that characterize each particular kind. 
 Suppose an estate is devised to one, but on the happening of 
 some future event that estate is determined — altogether 
 ceases as to the first devisee, and goes over to an altogether 
 different person. These are the characteristics of the first 
 class. Secondly, we will assume that an estate is limited to 
 commence at some future time. Now such estates, it will be 
 remembered, are in direct contravention of the rules of the 
 common law. Until the time arrives for the commencement 
 of the estate the fee of the property is in the heir of the de- 
 visor. These constitute the material characteristics of the 
 
 the limitation to your brother and 
 his heirs is good by way of execu- 
 tory devise, although the first es- 
 tate was a fee-simple. (I take this 
 rule and illustration as I find them 
 in the books. But it seems to me 
 that, after a fee-simple, nothing re- 
 mains ; and that the example here 
 given is one of a fee conditional. 
 See Taylor v. Foster, 17 Ohio St. 
 166; Niles V.Gray, 12 Id. 320; Lap- 
 ham V. Martin, 33 Id. 99; Ratliff v. 
 Warner, 32 id. 334.) 3. Remainders 
 created by deed are defeated by the 
 failure of the particular estate. But 
 this is not the case with executory 
 devises, which cannot be affected 
 by any subsequent alteration of the 
 estates upon which they are limited. 
 (Thompson v. Hoop, 6 Ohio St. 
 480; Holt V. Lamb, 17 Id. 374.) 
 Such is the liberal spirit of the law 
 of executory devises in these three 
 important particulars. For the 
 purpose of effectuating the will of 
 the testator, the law rises above the 
 technical doctrines of remainders, 
 and follows the dictates of reason. 
 Yet it seems to do so with great re- 
 luctance ; for the rule is, that no 
 limitation by will shall be construed 
 as an executory devise when it can 
 be treated as a contingent remain- 
 
 der. And, accordingly, whenever 
 there is a preceding estate, capable 
 of supporting a contingent remain- 
 der, the next estate limited by de- 
 vise is construed to be a remainder; 
 and as such is liable to all the inci- 
 dents of contingent remainders. 
 (Thompson v. Hoop, 6 Ohio St. 
 480.) Executory devises are ex- 
 pressly within the statutory pro- 
 vision before mentioned, restricting 
 the limitation of estates to persons 
 in being and their issue; and they 
 are within the policy of the law 
 which requires the event upon 
 which they are limited to be a com- 
 mon and not a remote possibility. 
 (Walker's Am. Law, 340.) 
 
 See the case of the Church in 
 Brattle Square v. Grant, 3 Gray, 142, 
 where it was declared to be the set- 
 tled rule in England that all limita- 
 tions by way of executory devise, 
 which may not take effect within 
 the term of a life or lives in being 
 at the death of the testator, and 
 twenty-one years afterwards, as a 
 term in gross, or in case of a child 
 en ventre sa mere twenty-one years 
 and nine months, are void as too 
 remote, and tending to create per- 
 petuities. (Walker's Am. Law, 
 341 •) 
 
EXECUTORY DEVISES. 749 
 
 second kind of executory devises. Recapitulating, it appears 
 that estates of the first kind vest immediately, but cease and 
 determine upon the happening of some future event. While 
 estates in the second class do not commence until some future 
 time. But when they do commence they are liable to last 
 forever. '' 
 
 § 264. Distinction between executory devises and vested 
 remainders. The first is such a disposition of lands by will, 
 that thereby no estate vests at the devisor's death, but only 
 on some future contingency. It needs no particular estate 
 to support it. An estate in remainder is one limited to take 
 effect and be enjoyed after another is determined. No 
 remainder can be limited after the grant of a fee simple, 
 because the tenant in fee has the whole." In the case first 
 cited, Chancellor Kent says : ' ' We may lay it down as an 
 incontrovertible rule that where an estate is given to a per- 
 son generally or indefinitely with a power of disposition, it 
 carries a fee, and the only exception to the rule is where the 
 testator gives to the first taker an estate for life only, by cer- 
 tain and express words, and annexes to it a power of dis- 
 posal. In that particular and special case the devisee for life 
 will not take an estate in fee.'"" 
 
 "The essential difference in the quality of the estate, be- 
 tween a remainder and an executory devise is, that the 
 former may be barred at the pleasure of the tenant in tail, by 
 a common recovery, or, in some States, by a conveyance by 
 deed ; but he who holds by force of an executory devise, has 
 an estate above and beyond the power and control of the first 
 taker, who cannot alienate or change it, or prevent its taking 
 effect, according to the terms of the will, upon the happening 
 of the contingency upon which it is limited. It does not 
 depend upon the particular estate, but operates by way of 
 determination of the first estate limited, and the substitution 
 of another in its place.'"" 
 
 '* Nightingale v. Burrell, 15 Pick. '» Doe v. Considine, 6 Wall. 474. 
 
 (Mass.) 104. '" Nightingale v. Burrell, 1 5 Pick. 
 
 " Jackson v. Robbins, 16 Johns. (Mass.) 104. 
 (N.Y.) 537; Downing v.Wherrin, 19 
 N. H. .9, 85. 
 
750 
 
 REAL PROPERTY. 
 
 § 265. Not favored by our courts. Authorities are not want- 
 ing that have directly held, whenever possible, that courts 
 will declare a future interest in land as falling under the 
 rules applicable to contingent remainders, rather than under 
 rules governing an executory devise." And it is a regrettable 
 circumstance that the technical distinction between contin- 
 gent remainders, springing or secondary uses, and executory 
 devises, cannot be entirely abolished — • as they are admirably 
 calculated to mislead and perplex a topic naturally invested 
 with much obscurity. The rules applicable to the subject are 
 exceedingly nice and technical. They are not favored in 
 law, and were originally created and upheld only for the pur- 
 pose of carrying out the intention of testators, so that devises 
 should not fail of effect, which, consistently with rules of 
 law, could not take effect as remainders." Therefore it is an 
 established rule that when an estate is limited to take effect 
 after an estate tail, the future or contingent interest so 
 limited, constitutes an estate in remainder, and does not take 
 effect as an executory devise. The estate tail being a par- 
 ticular estate carved out of the fee, leaves the residue to take 
 effect, after the determination of the particular estate, as a 
 remainder. 
 
 § 266. Their tendency is to create a perpetuity. Executory 
 devises in their nature tend to perpetuities, because they 
 render the estate inalienable during the period allowed for 
 the contingency to happen, though all mankind should join 
 in the conveyance. They cannot be aliened or barred by 
 any mode of conveyance, whether by fine, recovery or other- 
 wise." Hence the necessity of fixing some period beyond 
 which such limitations should not be allowed. It has there- 
 fore long been the settled rule in England, and adopted, as 
 part of the common law of this country, that all limitations, 
 by way of executory devise, which may not take effect within 
 the term of a life or lives in being at the death of the testator, 
 
 ''Manderson v. Lukens, 23 Pa. St. Doe v. Morgan, 3 Tr. 765 ; 4 Kent's 
 
 31; Wolfe V. Van Nostrand, 2 Com. 263; Nightingale v. Burrell, 
 
 Comst. 436; St. Aurorer v. Rivard, 15 Pick. no. 
 
 2 Mich. 294. "4 Kent's Com. 266; 2 Saund. 
 
 ''Purefoy V. Rogers, 2 Sund. 388; 388a, note. 
 
EXECUTORY DEVISES. 751 
 
 and twenty-one years afterwards, as a term in gross, or, in 
 case of a child en ventre sa mere, twenty-one years and nine 
 months, are void as too remote, and tending to create per- 
 petuities." 
 
 § 267. Construction and interpretation. In various States 
 of the Federal Union, the policy has been adopted of constru- 
 ing all devises in a way that will effectuate the manifest 
 intent of the testator, provided this can be done without vio- 
 lence to some settled rule of law or requirement of public 
 policy. The guiding star in all our courts is the intent of 
 the devisor, and to achieve this result great latitude is 
 indulged both as to evidentiary facts and common law regu- 
 lations. 
 
 Lord Hard wicke, i-a. Minchellv . Minchell, i Atkyns, 412, says: 
 "A court never construes a devise void, unless it is so abso- 
 lutely dark that they cannot find out the testator's meaning. ' '" 
 
 A devise to one and his heirs forever, and in case of his 
 death without any heir, then to another, gives a fee to the 
 first taker, and the devise over is void." 
 
 A devise to one and his heirs forever, and if he dies with- 
 out heirs then to a stranger in blood to the devisee, gives 
 the devisee an estate in fee and the devise over is void for 
 remoteness." 
 
 A devise in fee subject to a conditional limitation void for 
 remoteness vests an absolute estate in the first taker." 
 
 " 4 Kent's Com. 267, i Jarm. on 11; Smith v. Smith, 4 Paige (N. Y.), 
 
 Wills, 221; 4 Cruise's Dig. tit. 32, 271 ; Carter v. Bloodgood, 3 Sandf. 
 
 chap. 24, sec. 18; see for full dis- Ch. 393; Terpening v. Skinner, 29 
 
 cussion of "Perpetuities," sec. 270, N. Y. 505; Trustees, etc. v. Col- 
 
 post. grove, 4 Hun, 362 ; Hart v. Marks, 
 
 "Banks v. Phelan, 4 Barb. 90; 4 Bradf. 161. 
 
 Parsons v. Parsons, i Ves. Jr. 266, " Tilbury v. Barbut, 3 Atk. 617. 
 
 and authorities cited; Mann v. **Ware v. Cann, 10 Barn. & C. 
 
 Mann, 14 Johns. (N. Y.);; Roman 433. 
 
 Catholic Orphan Asylum v. Em- " Brattle Square Church Proprs. 
 
 mons, 3 Bradf. Surr. 148 ; see also v. Grant, 3 Gray, 146, 63 Am. Dec. 
 
 Beaumont v. Fell, 2 P. Wms. 140, 725 ; Miller v. Macomb, 26 Wend, 
 
 where Gertrude Yardley was held 229; Ferris v. Gibson, 4 Edw. Ch. 
 
 entitled to a legacy given to Cathe- 707, 6 L. ed. 1027; Conklin v. Conk- 
 
 rineEarnley; Connelly v. Pardon, i lin, 3 Sandf. Ch. 64, 7 L. ed. 771 ; 
 
 Paige, 292 ; Gardner v. Heyer, 2 Id. Ring v. Hardwick, 2 Beav. 352 ; 
 
752 
 
 REAL PROPERTY. 
 
 § 269. The phrase "dying without issue" explained.— 
 
 "Where real estate is devised in terms denoting an intention 
 that the primary devisee shall take a fee on the death of the 
 testator, followed by a devise over in case of his death with- 
 
 Drummond v. Drummond, 26 N. J. 
 Eq. 234 ; Smith v. Townsend, 32 Pa. 
 
 434- 
 
 But the law will allow a devise of 
 lands in fee-simple to one, with an 
 executory devise over to another 
 on a contingency, which must hap- 
 pen within the compass of a life or 
 lives in being, and twenty-one years 
 and a few months after. The 
 twenty-one years are introduced to 
 provide for the minority of a child 
 born, and a few months are allowed 
 to let in a posthumous child. But 
 if the devise over is limited after 
 the devise of a part, and not of the 
 whole of the fee-simple, the second 
 devisee shall take by remainder, 
 either vested or contingent, and 
 not by executory devise. 
 
 As remainders are estates at com- 
 mon law, while executory devises 
 can only be created by will, and 
 are admitted from necessity, to 
 execute the legal intent of the tes- 
 tator, it is an essential principle of 
 law, in the construction of wills, to 
 exclude executory devises, when 
 the estate can pass as a remainder. 
 (Hawley v. Northampton, 8 Tyng. 
 I.) 
 
 The technicalities that infest the 
 law of executory devises as admin- 
 istered by the English courts for 
 the last two hundred years have 
 left many disagreeable impressions 
 upon our own decisions, one of 
 which is that' the same word is lia- 
 ble to receive a different construc- 
 tion by a different court. The 
 words "dying without issue," un- 
 less explained or qualified by other 
 expressions, have acquired a dis- 
 
 tinct and well understood meaning, 
 by a uniform series of decisions 
 both in this country and in Eng- 
 land. They are held to mean an 
 indefinite failure of issue after the 
 death of the first devisee. This 
 rule of construction is founded on 
 the presumed intent of the testator 
 to include the issue of the first de- 
 visee as the objects of his bounty. 
 This purpose is best secured by 
 vesting an estate tail in the first 
 devisee, so that his issue, upon his 
 death, will take in succession, until 
 the issue shall fail, when the re- 
 mainder will take effect in posses- 
 sion from this rule of law, that if 
 an estate is devised to A. and his 
 heirs, which would create a fee- 
 simple, and it is afterwards pro- 
 vided, either in the same clause, or 
 by other parts of the will, that if A. 
 die without issue, then the estate 
 is to go to B., this cuts down the 
 estate of A. to an estate tail by im- 
 plication. The generality of the 
 word " heirs " is restrained, by the 
 subsequent proviso or contingency 
 of dying without issue, to the issue 
 of the first devisee. So that in 
 such case A. would take an estate 
 tail, with a remainder to B. on the 
 determination of the first estate. 
 The law implies, from the use of 
 the word " heirs " in the first clause, 
 in connection with the subsequent 
 contingency of dying without is- 
 sue, that it was meant to designate 
 "heirs of the body," and that it 
 was the intent of the testator to 
 give the estate to the issue of the 
 first devisee, and not to give it 
 over until that issue failed. (4 
 
EXECUTORY DEVISES. 
 
 753 
 
 out issue, it has, I think, been uniformly held in England, 
 and it is the rule supported by the preponderance of judicial 
 authority in this country, that the words refer to a death 
 without issue, in the life-time of the testator, and that the 
 primary devisee surviving the testator takes an absolute 
 estate in fee simple. °° The case of Quackenboss v. Kingsland 
 was that of a devise by the testator of the residue of the real 
 and personal estatee to "my son Daniel Kingsland, and to his 
 heirs, but in case my son Daniel should 'die without lawful 
 issue,' I give and bequeath it to my remaining children, share 
 and share alike;" and it was held, in exact conformity with 
 the decisions to which we have referred, that the words 
 referred to the death of the primary devisee in the life-time 
 of the testator. 
 If real estate is devised upon condition to pay a legacy. 
 
 Kent's Com. 276, 279; Anderson v. 
 Jackson, 16 Johns. (N. Y.) 382; Ida v. 
 Ide, 5 Mass. 500; Hawley v. North- 
 ampton, 8 Mass. 41; Nightingale v. 
 Burrell, 15 Pick. (Mass.) 104; Parker 
 V. Parker, 5 Met. (Mass.) 134; 2 
 Saund. 388, note.) 
 
 If by the words, " decease without 
 issue," the testator intended a defi- 
 nite failure of issue, that is, a fail- 
 ure of issue on the death of the 
 first devisee, then the gift over is 
 an executory devise. 
 
 Section 269, the phrase "dying 
 without issued " explained: 
 
 Judge Napton voices the sense 
 of the authorities when he says : 
 " Conceding that the words ' dying 
 without issue ' mean an indefinite 
 failure of issue, are there other 
 words which, of themselves and in 
 despite of this general manifestation 
 of intention to keep the property 
 indefinitely in the descendants of 
 the first taker, point incontestably 
 and unequivocally to the death of 
 the first taker as the period con- 
 templated by the testator when the 
 limitation over should take effect ? " 
 48 
 
 (Chism V. Williams, 29 Mo. 288.) 
 Under common law rulings a judge 
 should never flinch in declaring 
 that the words "failure of issue" 
 mean an indefinite failure of issue. 
 Unless the evidentiary facts abun- 
 dantly warrant the contra holding. 
 It is said that these strict methods 
 of construction are greatly relaxed 
 in favor of chattel interests, and 
 any vague suggestion or intent 
 will be seized upon as evincive of 
 the testator's wish that the phrase 
 "failure of issue'' should be con- 
 strued as a definite and not an in- 
 definite failure. (Allender v. Sus- 
 san, 33 Md. 11; 3 Amer. Rep. 171 
 ''° Clayton v. Lowe, 5 Barn. & Aid. 
 636; Gee V. Mayor of Manchester, 
 17 Adol. & Ell. (N. S.) 737; Wood- 
 bourne V. Woodbourne, 23 L. J. 
 Ch. 336; Doe V. Sparrow, 13 East. 
 359 ; Quackenboss v. Kingsland. 
 102 N. Y. 128; Livingston v. Greene, 
 52 N. Y. 118; Embury v. Sheldon, 
 68 Id. 227 ; Waugh's Appeal, 70 Pa. 
 St. 436; Muckley's Appeal, 92 Id. 
 514; but see Britton v. Thornton, 
 112 U. S. 526. 
 
754 
 
 REAL PROPERTY. 
 
 or with a direction that the devisee pay the legacy in respect 
 to the estate so devised to him, and because the real estate 
 has thus been devised, such real estate is in equity charge- 
 able with the payment of the legacy, unless there is some- 
 thing in the will to rebut the legal presumption ; or from 
 which it can be inferred that the testator intended to exempt 
 the estate derived from that charge.'' 
 
 *i Harris v. Fly, 7 Paige (,N. Y.), 421; Willard's Eq. 489. 
 
CHAPTER XVIII. 
 
 PERPETUITIES. 
 
 Sec. 270. Definition and nature. 
 
 271. Development of the doctrine. 
 
 a. Views of Mr. Jarman. 
 
 272. Hostility of the modern law. 
 
 273. Not applied to charitable trusts. 
 
 274. Judicial construction. 
 
 275. Tests applied. 
 
 276. Thellusson v. Woodford considered. 
 
 277. Statutory phases of the subject. 
 
 § 270. Definition and nature. In Philadelphia v. Girard, ^i, 
 Pa. St. 9, Lowrie, C. J., said: "Perpetuities are grants of 
 property, wherein the vesting of an estate or interest is un- 
 lawfully postponed/ and they are called perpetuities, not 
 because the grant, as written, would actually make them 
 perpetual, but because they transgress the limits which the 
 law has set in restraint of grants that tend to a perpetual 
 suspense of the title, or of its vesting ; or, as is sometimes, 
 with less accuracy, expressed, to a perpetual prevention of 
 alienation. According to this definition, a present gift to a 
 charity is never a perpetuity, though intended to be inalien- 
 able," and no vested grant is a perpetuity." 
 
 It is any limitation tending to take the subject of it out of 
 commerce for a longer period than a life or lives in being, and 
 twenty-one years beyond ; and in case of a posthumous child, 
 a few months more, allowing for the term of gestation ;' or, it 
 is such a limitation of property as renders it unalienable be- 
 yond the period allowed by law.* 
 
 ' Saunders on Uses and Trusts, Mr. Rand defines a perpetuity 
 
 196. as any limitation tending to take 
 
 '24 How. 495. the subject of it out of commerce 
 
 ' Randell on Perpetuities, 48. for a longer period than a life or 
 
 * Gilbert on Uses, by Sugden, lives in being, and twenty-one 
 
 260, note. years beyond, and in case of a 
 
 [7551 
 
756 
 
 REAL PROPERTY. 
 
 "The particular feature," says Mr. Lewis, in his Treatise 
 on Perpetuities, "in limitations of future interests, with 
 which the rule against perpetuities is connected, is the time 
 of their vesting, or, in other words, of their becoming inter- 
 ests transmissible to the representatives of the grantee, de 
 visee or legatee, and disposable by him. When they are so 
 limited as necessarily to allow this quality, with the legal 
 period of remoteness, they are free from objection in refer- 
 ence to the perpetuity rule. ' ' Upon this question we may 
 also refer to Miffins App. 121 Pa. 205 ; i L. R. A. 453. "If a 
 remainder is vested, that is, if it is ready to take effect when- 
 ever the particular estate determines, it is immaterial that 
 the particular estate is determinable by a contingency which 
 may fall beyond the life or lives in being.'" 
 
 Thus it has repeatedly been held in Massachusetts that "a 
 devise, subject to a conditional limitation void for remote- 
 ness, vests an absolute estate in the first taker.'" The same 
 rule has been sanctioned in New York.' 
 
 posthumous child a few months 
 more allowing for the term of 
 gestation. (Rand, Perp. 48.) While 
 Abbott's definition is a term ap- 
 plied to any attempt to restrict 
 the alienation of land in such a 
 way as forever to retain it for the 
 benefit or in the enjoyment of 
 the persons of a particular line of 
 descent. (Law Diet. tit. " Perpetu-- 
 ity.") 
 
 ' Gray, Perpetuities, 209. 
 
 Mr. Saunders says: "A perpetu- 
 ity may be defined to be a future 
 limitation, restraining the owner of 
 the estate from alienating the fee 
 simple of the property, discharged 
 of such future use or estate, before 
 the event is determined, or the 
 period is arrived when such future 
 use or estate is to arise. If that 
 period is within the bound pre- 
 scribed by law, it is not a perpetu- 
 ity." This describes the thing it- 
 self, and not the rule of law, or the 
 
 length of time, which may vary. 
 Mr. Lewis gives a fuller definition: 
 "A perpetuity is a future limita- 
 tion, whether executory, or byway 
 of remainder, and of either real or 
 personal property, which is not to 
 vest, until after the expiration of, 
 or will not necessarily vest within, 
 the period fixed and prescribed by 
 law for the creation of future es- 
 tates and interests, and which is 
 not destructible by the persons for 
 the time entitled to the property, 
 subject to the future limitation, ex- 
 cept with the concurrence of the 
 individual interested under that 
 limitation." (i Perry on Trusts, 484.) 
 
 « Brattle Square Church Proprs. 
 V. Grant, 3 Gray, 142 (Mass.), 63 
 Am Dec. 725 ; Theological duca- 
 tional Soc. v. Atty.-Gen. 135 Mass. 
 285. 
 
 ' Manice v. Manice, 43 N. Y. 383; 
 Tiers v. Tiers, 98 N. Y. 568 ; Dana 
 V. Murray, 122 N. Y. 604. See, also, 
 
PERPETUITIES. 757 
 
 And generally it may be said that an executory devise 
 must be so limited that by the terms of its creation it must 
 take effect within the period prescribed for the vesting of 
 future estates. 
 
 If the limitation be in such terms that it may or may not 
 vest within that time it is void." 
 
 § 271. Development of the doctrine. The rule against per- 
 petuities is of very extensive application, and in the legisla- 
 tion of every civilized nation on the globe, we find traces 
 more or less italicized of the same idea that is embodied in 
 our rule against perpetuities. Originally the rule owes its 
 inception to judicial decision alone, entirely unaided by 
 legislative enactment. And it will ever stand conspicuous 
 among the many monumental exhibits of purely judge-made 
 law. From time immemorial the English race has been 
 peculiarly sensitive of all laws regulating real property, and 
 in no direction has it displayed more thoroughbred antago- 
 nism than in those methods relating to the free alienation of 
 lands. Aristocratic pretension and royal prerogative have 
 manacled the freedom of transfer by laws of primogeniture 
 and entailment. But the conviction is abroad and is every 
 day gaining in momentum that public policy as well as com- 
 mon justice is opposed to the perpetual settlement of proper- 
 ties in such a manner as to make them practically inalien- 
 able — reserved from the commerce of the world so long as 
 propagation can keep in being a person capable of taking 
 
 Outland v. Bowen, 115 Ind. 150; Fosdick, 6 Allen (Mass.), 41 ; Odell 
 Coggins' App. 124 Pa. 10. v. Odell, 10 Allen (Mass.), l ; Lor- 
 8 Caddell v. Palmer, 1 Clark & F. ing v. Blake, 98 Mass. 253 ; Sears 
 372 ; 4 Kent's Com. 267 ; i Jarmon, v. Putnam, 102 Mass. 5 ; Joscelyn 
 Wills, 221; 4 Cruise, Dig. title 32, v. Nott, 44 Conn. 55; Donohue v. 
 chap. 24, sec. 18 ; Nightingale v. McNichol, 61 Pa. 73 ; Patterson v. 
 Burrell, 15 Pick. (Mass.) Ill ; Atkin- Ellis, 11 Wend. (N. Y.) 259; Haw- 
 son, Conveyancing, 2d ed. 264; ley v. James, 16 Wend. (N. Y.) 120; 
 Brattle Square Church Proprs. v. Schettler v. Smith, 41 N. Y. 344; 
 Grant, 3 Gray, 142 (Mass.), 63 Am. Knox v. Jones, 47 N. Y. 389 . Yates 
 Dec. 725; Lewis, Perpetuity, 163- v. Yates, 9 Barb. (N. Y.) 324; Gott 
 172 ; Hooper v. Hooper, 9 Cush. v. Cook, 7 Paige, 540, 4 L. ed. 256 ; 
 (Mass.) 122; Thorndike v. Loring, Boynton v. Hoyt, i Denio (N.Y), 53. 
 15 Gray (Mass.), 391 ; Fosdick v. 
 
758 REAL PROPERTY. 
 
 who answers the designation of some testator, who seeks to 
 elude the usual effects of burial by forcing unborn gene- 
 rations to recognize his acts. It is quite interesting to trace 
 the attitudes of antagonism assumed by the judiciary from 
 time to time in regard to limitations upon testamentary de- 
 vises. But in England it was not until the administration 
 of Lord Melbourne in 1833 that the cap and bells were added 
 to the rotund figure, and the rule against perpetuities 
 appeared in full regalia. The celebrated case of Cadell v. 
 Palmer, i Clark & Finley, 372, finally determined not only 
 that children en ventre sa mire born after their father's death 
 should be deemed to have been born in his lifetime for all 
 purposes of inheritance, but also that the limitation which 
 arrested the power of alienation for two lives in being should 
 be extended for a period of nine months to allow for the 
 period of gestation. In this manner, all legal estates, cre- 
 ated by executory devise, conditional limitation, or shifting 
 or springing uses — in other words, all estates in the nature 
 of remainders must vest within a life or lives in being at the 
 death of the testator and twenty-one years thereafter plus 
 the period of gestation. And any estate so limited that it 
 cannot vest absolutely in some one within that period is void. 
 It has taken nearly three centuries to work this innovation 
 on the common law, and yet it was regarded as a great 
 achievement in its day. Every position was contested with 
 the utmost violence. The first statute of William and Mary, 
 passed at the close of the seventeenth century, was carried by 
 a bare majority, and it was perilously close to utter extinc- 
 tion during the premiership of Sir Robert Walpole. What- 
 ever its vicissitudes the rule is here — and here to stay. It 
 was always easy to determine whether an executory devise 
 contravenes the rule against perpetuities by this single 
 inquiry, viz: Is it possible that the event or contingency 
 upon which the estate must vest, may not occur or happen 
 within the prescribed period limited by the rule? For if, by 
 any possibility, the event might not happen within the time, 
 the devise is obnoxious to the rule, and hence invalid. In all 
 instances, under all circumstances, the contingency upon which 
 the vesting of the estate hinges must be of such a character 
 that it will infallibly occur sometime within the limit. 
 
PERPETUITIES. 759 
 
 a. Views of Mr. Jarman. The rule against perpetuities is a 
 salutary one, as is very conclusively shown by Mr. Jarman." 
 This distinguished author says: "The necessity will be obvi- 
 ous if we consider for a moment what would be the state of a 
 community in which a considerable proportion of the land 
 and capital was locked up. That free and active circulation 
 of property, which is one of the springs as well as the conse- 
 quences of commerce, would be obstructed, the improve- 
 ment of land checked, its acquisition rendered difficult, the 
 capital of the country gradually withdrawn from trade, and 
 the iQcentives to exertion in every branch of industry dimin- 
 ished. Indeed, such a state of things .would be utterly incon- 
 sistent with national prosperity, and these restrictions which 
 were intended by the donors to guard the objects of their 
 bounty against the effects of their own improvidence, or 
 originated in more exceptional motives, would be baneful to 
 all. ' ' He adds, in a note : ' ' Perhaps these restrictions most 
 frequently spring from the desire to exert a posthumous 
 control over that which can no longer be enjoyed. Te ten- 
 earn moriens is the dying lord's apostrophe to his manor, for 
 which he forges these fetters, that seek by restricting the 
 dominion of others to extend his own. ' ' 
 
 The more common cases of limitations by executory devise, 
 which are held void, as contravening the rule against per- 
 petuities, are when property is given over upon an indefinite 
 failure of issue, or to a class of persons answering a particular 
 description, or specifically named ; as to the children of A. 
 who shall attain the age of twenty-five, or to a person pos- 
 sessing a certain qualification, with which he will not be 
 necessarily clothed within the prescribed period. 
 
 § 272. Hostility of the modern law. As stated previously 
 our laws are inexorably hostile to all efforts tending to clog 
 the I devolution of property, and to concentrate it within a 
 narrow circle of pet beneficiaries who, following the wake of 
 English ideas, seek to fasten the principles of primogeniture 
 and entailment upon the course or property. Perpetuities 
 directly antagonize the ends of social commerce by prevent- 
 ing free alienation and in all of the Federal States enact- 
 
 ' I Jarm. 250. 
 
760 REAL PROPERTY. 
 
 ments exist restraining the perpetuation of an estate beyond 
 the period of two lives in being or one life plus twenty-one 
 years plus the usual period of gestation in cases of posthu- 
 mous birth. All that is required is that the estate shall vest 
 within the prescribed period. The right of possession may 
 be postponed longer and trusts created for beneficent pur- 
 poses are relieved from the operation of the rule. The term 
 has come to import any disposition of real property which is 
 void because it infringes this "rule against perpetuities," 
 such as a gift to A. for life, and after his death to such of his 
 children as shall attain the age of twenty -five years.'" 
 
 § 273. Not applied to charitable trusts. Relaxation of the 
 rule. The rule against perpetuities relaxes in favor of a trust 
 for charitable objects as in such a case it is no objection to 
 the validity of the trust that the property may remain in the 
 hands of trustees and their duly appointed successors for all 
 time to come." Charities are universally favored both at law 
 and in equity. And it would frustrate their beneficent de- 
 signs were the rule against perpetuities allowed to operate. 
 If, however, the charitable trust is to await the determina- 
 tion of a particular estate, and that particular estate may 
 possibly endure beyond the period of a life or lives in being 
 and twenty-one years thereafter, the charity will be held 
 void. The cause of the perpetuity fastened upon the gift in 
 the first taker. '" It seems to me that common sense would 
 suggest holding the charity good, and the particular estate 
 void as in contravention of the rule. In any event it seems 
 inequitable to annul the charity. Both might be preserved 
 by allowing the particular estate to operate within the limi- 
 tation, and not frustrate the testamentary design by recog- 
 nizing the very estate that offends the rule. " 
 
 '" Leak v. Robinson, 2 Meriv. " City of Philadelphia v. Gerard's 
 
 363 ; City of Philadelphia v. Gir- Heirs, 9 Wright, 29. 
 
 ard's Heirs, 45 Pa. St. 26; Mc- " See Jones v. Habersham, 107 U. 
 
 A.uther v. Scott, 113 U. S. 382; S. 185; Detwiller v. Hartman, 37 
 
 Ould V. Washington Hospital, 95 N. J. Eq. 354. 
 
 U. S. 312; DeWolf V. Lawson, 61 Charitable trusts usually com- 
 
 Wis. 473. See 141 Mass, 403. mence \n prcesenti, and on this ac- 
 
 " Andrews v. Andrews, no 111. count the question of remoteness 
 
 223. seldom arises; they may, however, 
 
PERPETUITIES. 761 
 
 In Odell V. Odell, 10 Allen (Mass.), 6, Gray, J., said: "The 
 rule of public policy -which forbids estates to be indefinitely 
 inalienable in the hands of individuals does not apply to chari- 
 ties. These being established for objects of public, general 
 and lasting benefits are allowed by the law to be as perma- 
 nent as any human institution can be, and courts will readily 
 infer an intention in the donor that they should be perpetual. ' ' 
 
 § 274. Judicial construction. A cardinal rule of construc- 
 tion whenever questions relating to perpetuities have been 
 before the courts is to regard the limitation as measured by 
 lives only, or by some term that cannot in any event exceed 
 two lives in being. Real property is never inalienable un- 
 less there is a contingent remainder, and the contingency 
 has not yet occurred, and this is the meaning of the prohibi- 
 tion of perpetuities. Allowing that the cross-remainders are 
 contingent they must be respected when they are within the 
 period of two lives in being." Where there is an absolute 
 suspension of the ownership for the prohibited period, the 
 avails of the fund go to the residuary legatee." 
 
 In the case of Smith v. Edwards, 88 N. Y. 92, the testator 
 directed that $30,000 should be kept invested until his young- 
 est grandchild then born, or that might thereafter be born 
 before the final distribution of his estate, should be of age. 
 He then directed his executors to make distribution when his 
 youngest grandchild born, and that might within twenty 
 
 begin in some future time, in which cution if there be a trustee named 
 case they are not exempt from the clothed with discretionary power 
 operation of the rule against perpe- to carry out the general objects of 
 tuities. the power. (Zeisweiss v. James, 63 
 A charitable trust differs from Pa. St. 465 ; Whitman v. Lex, 17 S. 
 others in that it has no definite & R. [Pa.], 88 ; Mayor, etc. of 
 cestui que trust. There is no deter- Philadelphia v. Elliott, 3 Rawie 
 minate person or persons possess- [Pa.], 170; Burke v. Roper, 79 Ala. 
 ing such positive right to the prop- 142 ; See Holland v. Alcc^ck, 108 
 erty given in trust as would enable N. Y. 312, 33; Am. and Eng. Ency. 
 him to transfer his interest by of Law, Vol. XVIII, p. 362. 
 deed. It is no objection to a devise " Kane v. Gott, 24 Werid. (N. Y.) 
 for a charity that it is so vague and 641 ; Knox v. Jones, 47 N. Y. 398. 
 indefinite that no particular person " Westerfield v. Westeriield, i 
 may have such an interest as will Brad. (N. Y.) 140; see Rice's Pro- 
 give him a right to demand its exe- bate Law, 120. 
 
762 REAL PROPERTY. 
 
 years be born, should arrive at full age, or if a granddaugh- 
 ter, -when she should be lawfully married. The parties to 
 whom distribution was to be made were left uncertain until 
 such time should arrive. The court held the bequest void 
 by their statute of perpetuities." 
 
 In the case of Heald v. Heald, 56 Md. 300, it was decided 
 that where A. gave an equitable life estate to C, and a simi- 
 lar estate to his children surviving him, and the remainder 
 absolutely to the issue of such children, it was held that the last 
 limitation was void, as violating the rule against perpetuities. 
 
 § 275. Tests applied. In the application of this rule, in 
 order to test the legality of a limitation, it is not sufl&cient 
 that it be capable of taking effect within the prescribed 
 period ; it must be so framed as ex necessitate to take effect, if 
 at all, within that time. If, therefore, a limitation is made 
 to depend upon an event which may happen immediately 
 after the death of the testator, but which may not occur until 
 after the lapse of the prescribed period, the limitation is void. 
 The object of the rule is to prevent any limitation which 
 may restrain the alienation of property beyond the precise 
 period within which it must by law take effect. If the event 
 upon which the limitation over is to take effect may, by pos- 
 sibility, not occur within the allowed period, the executory 
 devise is too remote, and cannot take effect." These rules 
 are stated with great precision in 2 Atkinson on Conveyanc- 
 ing, 2d ed., 264. 
 
 The true test, by which to ascertain whether a limitation 
 over is void for remoteness, is very simple. It does not 
 depend on the character or nature of the contingency or 
 event upon which it is to take effect. These may be varied 
 to any extent. But it turns on the single question whether 
 the prescribed contingency or event may not arise until after 
 the time allowed by law, within which the gift over must 
 take effect. 
 
 '* See, also, Roberts v. Corning, "Nightingale v. Burrell, 15 Pick. 
 
 89 N. Y. 225 ; Purdy v. Hayt, 92 N. (Mass.) in ; 4 Kent's Com. 283; 6 
 Y. 446 ; Schettler v. Smith, 41 N. Cruise, Dig. tit. 38, c. 17, sec. 23. 
 Y. 334 ; see Rice's Am. Probate 
 Law, 270. 
 
PERPETUITIES. 763 
 
 To the sugestion that a will violates the rule against per- 
 petuities or remoteness which prohibits the tying upof prop- 
 erty beyond a life or lives in being and twenty-one years 
 and a fraction thereafter, this test may be applied. Will the 
 property within the period above named become vested in 
 persons capable of conveying it?" The old common law 
 judges, acting under the tyranny of a thousand associations 
 imperceptible to others, displayed the putrid sores of their 
 pent up agony in ineffectual railings at the rule, and they 
 employed the rich resources of scorn and invective in trav- 
 esty of the principles upon which it was founded, only 
 relinquishing their disparagement when death had silenced 
 utterance. But let us not judge by the more liberal spirit of 
 one generation those whose ideas were formed under the 
 impulses and formulas of a generation that is past. 
 
 I 276. Thellusson v. Woodford, 4 Ves. 227, considered. If 
 
 it were necessary to vindicate the wisdom of our modern 
 legislation on the subject of perpetuities, we have only to 
 refer to this justly celebrated case as furnishing a most con- 
 clusive argument. One Thellusson, an English cutler, accu- 
 mulated a property valued at about $3,000,000. And in his 
 anxiety to be regarded as the progenitor of a great ducal 
 house he made a will in strict conformity with the then ex- 
 isting law, by which the immediate claims of children and 
 grandchildren were utterly ignored, and the estate placed in 
 the hands of trustees for investment with directions that it 
 should be allowed to accumulate during the lives of all of his 
 children and also during the lives of all of their children, 
 and during the life of the survivor of the grandchildren — 
 on the death of this last grandchild the property with its 
 
 '^ Waldo V. Cummings, 45 111. and twenty-one years and ten 
 
 421 ; Lunt V. Lunt, 108 111. 307. months thereafter." (Ky. Gen. St. 
 
 The Kentucky law is almost ch. 63, art. i, sec. 27.) Regulations 
 epigrammatic. " The absolute pow- of a similar import are all but uni- 
 er of alienation shall not be sus- versal, but no form of statutory ex- 
 pended by any limitation or con- pression has equaled the preci- 
 dition whatever for a longer sion of the Kentucky enactment on 
 period than during the continu- this subject, while they all aim at 
 ance of a life or lives in be- the same result, and struggle to 
 ing at the creation of the estate, effectuate the same purpose. 
 
764 REAL PROPERTY. 
 
 accumulations was to be paid over to the eldest male heir. 
 By every ordinary process of arithmetical calculation it will 
 be seen that starting with the time of the testator's death, 
 1796, and continuing down to date, the fund in question 
 would amount to considerably over $100,000,000. A choice 
 consistory of the ablest barristers in Great Britain contested 
 this will through nine years of vehement litigation. But the 
 House of Lords was obliged to decide, 1805, that the recitals of 
 the will were not obnoxious to the rules of the common law, 
 and . that this pitiful exhibit of sumptuous vanity must be 
 allowed to stand. It is doubtful if the entire range of Eng- 
 lish jurisprudence can furnish a more conclusive commentary 
 upon the utter imbecility of common law provision. The 
 courts successfully subdued a violent and imprudent passion 
 for overriding the idiotic law, and it was the merciful mis- 
 sion of the case to inaugurate some drastic legislation that 
 has since prevented the repetition of such an outrage. In 
 this country, very generally, accumulations are allowed dur- 
 ing the minority of one or more persons to commence with 
 the creation of the estate out of which the accumulation is to 
 spring, and to end with the minority of the persons desig- 
 nated. But it would appear that there are a few States still 
 under the tyranny of the common law. And it would be 
 highly interesting to know if, nearly a century after the 
 passage of Thellusson's act by the English Parliament, such 
 an outrageous testamentary scheme could be successfully 
 developed in this country. 
 
 It is never to be expected that peaceful remonstrance or 
 animated discussion will disturb the serenity of the com- 
 mon law zealot. Immersed in the deepest ooze of bigotry he 
 can see nothing but celestial marvels in the old common law 
 processes; nothing but wonders that are certainly "hid from 
 the wise and prudent and revealed to babes. ' ' With this pet 
 variety of monomaniac the fact that American law has 
 reached its greatest development along lines widely diverg- 
 ing from English models is of no significance or moment. 
 They are joined to their idols — let them alone. 
 
CHAPTER XIX. 
 
 ESTATES UPON CONDITION. 
 
 Sec. 278. Nature and definition. 
 
 279. Kinds of condition. 
 
 280. How created. 
 
 281. When conditions must be annexed. 
 
 282. Conditions not favored. 
 
 • 283. What conditions are repugnant to the estate gfranted. 
 
 284. Distinction between a condition precedent and a condition sub- 
 
 sequent. 
 
 a. Partial review of the authorities. 
 
 285. InvaUd or void conditions. 
 286 Time of performance. 
 
 287. Rules relating to conditions. 
 
 288. To what estates conditions are annexed. 
 
 289. Distinction between estates upon limitation and conditional 
 
 limitations. 
 
 290. Distinction between a condition and a limitation. 
 
 291. Who may enter for breach of condition subsequent. 
 
 292. Rule against perpetuities does not affect. 
 
 § 278. Nature and definition. An estate upon condition is 
 such that its existence depends upon the happening or not 
 happening of some uncertain event, -whereby the estate may- 
 be either originally created or enlarged, or finally defeated.' 
 The operative -words that are held to create a condition are 
 "provided," "on account of," "if," and other -words expres- 
 sive of the intention. "Upon condition" is appropriate but 
 it does not of necessity create a condition." To fasten a con- 
 dition upon the estate these -words must be used in their tech- 
 nical sense. A condition precedent calls for the happening 
 of some act or event before the estate can vest or be en- 
 larged and a condition subsequent implies a non-performance 
 or failure that -will defeat an estate already vested, or effec- 
 
 ' 2 Bl. Com. 152. Wright v. Wilkins, 2 B. & S. 232 ; 
 
 ' See Stanley v. Colt, 5 Wall. 119; Cassey v. Casey. 55 Vt. 520. 
 
 [765] 
 
766 REAL PROPERTY. 
 
 tually prevent an estate from vesting in the future.' It is 
 one that follows the agreement and tends to defeat or annul 
 it upon the failure of either party to the transaction to com- 
 ply with its terms.'' To determine the presence of either a 
 condition precedent or subsequent resort must be had to the 
 entire instrument and if its recitals clearly imply such an 
 intent a qualification, restriction or stipulation will be con- 
 strued as a condition that binds both parties.' One distinc- 
 tion pervades the decisions on this subject which must be 
 always borne in mind. A condition subsequent tends to 
 defeat the vesting of estates, and is, therefore, in disfavor as 
 creating friction and uncertainty, hence it will be strictly 
 construed while a condition precedent must be literally 
 observed, but as it is frequently dependent upon the perform- 
 ance of agreements to pay the consideration agreed upon, it 
 is more equitable, although a failure to perform it will bar 
 all relief, while our courts of equity are swift to relieve 
 against a condition subsequent on the principle that if it was 
 possible at the time of making it but the logic of events has 
 been such as to render its performance impossible, as by act 
 of God, the law, or the contumacy of the grantor, it would 
 be a hardship to enforce its terms.' Where the conditions 
 are dependent and enter into the very essence of the contract, 
 the performance of one hinges upon the performance of the 
 other, and the prior condition must be first performed. In 
 all cases where either party may be compensated for a 
 breach of the condition they are regarded as mutual and 
 independent.' Conditions precedent, like all agreements, 
 are frequently modified or mutually waived, which, of course, 
 dispenses with their observance. 
 
 Repugnant conditions tend to subvert the estate and are 
 properly disfavored, but conditions which prohibit certain 
 uses of the property only are steadily enforced. Examples 
 of such conditions occur in cases where the conveyance con- 
 tains an inhibition as to the uses the property shall be de- 
 
 *2B1. Com. 154. « Davis v. Gray, 16 Wall. 229; 
 
 ■* Jones V. United States, 96 U. S. Schulenburg v. Harriman, 21 Wall. 
 
 27 ; Story, Cont, sec. 40 et seq. 63. 
 
 °4 Kent, 130; Lowber v. Bangs, 'Ruch v. Rock Island, 97 U.S. 
 
 2 Wall. 736. 693. 
 
ESTATES UPON CONDITION. 767 
 
 voted to, such as distillery, liquor nuisance, livery stable, 
 tannery, soap factory, slaughter house, rubber factory, and 
 the like. Such restrictions merely seek to limit the uses of 
 the property.' 
 
 It is said in Wheeler v. Walker, 2 Conn. 196, s. c. 7 Am. 
 Dec. 264, that "an estate on condition expressed in the grant 
 or devise itself is where the estate granted has a qualification 
 annexed whereby the estate shall commence, be enlarged, or 
 defeated upon performance or breach of such qualification or 
 condition. ' ' 
 
 Wherever the law annexes a condition it is because none 
 are specified in the deed that will effectuate the purposes for 
 which the estate was granted. Instances of such annexations 
 frequently occur in the cases of corporate franchises, but in 
 no case will conditions, however granted or annexed, be 
 sustained if repugnant to the estate granted.' 
 
 § 279. Kinds of conditions. Conditions are of two kinds — 
 conditions precedent and conditions subsequent. A condition 
 precedent is a condition upon the happening of which an 
 estate will vest. A condition subsequent defeats an estate 
 already vested. 
 
 It is a general rule as to conditions subsequent, that to be 
 valid they must not be repugnant to the estate given or de- 
 vised. They must not be an exception to the very thing, 
 that is, to the substance of the gift ; if so, they are void, and 
 the estate granted will stand unaffected by such conditions. 
 Thus, in Blackstone Bank v. Davis, 21 Pick. 42, it was held 
 that "a condition in a grant or devise that the grantee shall 
 not alienate, is void, because repugnant to the estate." 
 Also, in Bradley v. Peixoto, 3 Ves. 324, it was held that an 
 exception to the very thing itself by way of condition is null. 
 2 Washb. on Real Prop. 6, lays down the doctrine clearly 
 that a condition subsequent, inconsistent with and repugnant 
 to, the amplitude of the powers of the estate granted, is void, 
 and therefore, no condition. " 
 
 Some of the text books indulge in considerable refinement 
 
 * Camp V. Clearly, "jd Va. 143 ; ' §chermerhorn v. Negus, i Den. 
 Cowell V. Colo. Spgs. Co. 100 U. S. (N.Y.) 448. 
 57 ; Smith v. Barrie, 56 Mich. 317. '» Rice, Am. Pro. Law, 1471. 
 
768 REAL PROPERTY. 
 
 over "conditions positive" or "conditions affirmative," and 
 conditions negative or collateral. ' ' These are all mere fanci- 
 ful forms of condition, — just as we have chemical, electrical 
 and thermal facts, but if we observe the corollary that here 
 concerns us, it will be abundantly apparent that such attenu- 
 ated reasoning only obscures a subject already intricate, while 
 it accomplishes no practical result. Copulative or disjunctive 
 conditions, possible and impossible conditions, are, after all, as 
 matter of law, regarded as either "subsequent" or "prece- 
 dent, ' ' and as such are amenable to the action of the court 
 upon the due exhibition of a proper bill or declaration. It is a 
 mystery ever pressing for interpretation, how these hyper- 
 critical "views" obtained a lodgement in our substantive law 
 unless upon the theory that pedantic specialists, anxious to 
 discover something that does not exist, seek to impose upon 
 the profession some "barbaric yawp in the form of fool- 
 frenzy about conditions negative." Sir William Hamilton 
 in his trenchant criticism of Cousin says "no one was ever 
 either edified or fructified by senseless refinements. ' ' Gene- 
 rally it may be affirmed that our courts treat with scant respect 
 a construction that tends to a forfeiture of the estate. Uni- 
 formly they will hold words which may reasonably be treated 
 as covenants or restrictions, as not amounting to a condition." 
 
 § 280. How created. This estate springs into being either 
 by virtue of express words contained in a deed or conveyance 
 
 "Adams v. Valentine, 33 Fed. ionized. There is a constant itch 
 
 Rep. 4, see opinion of Wallace, J. to display profundity, scholarship 
 
 Jurists of great eminence have and research, by parading terms 
 constantly declaimed against the that are suggestive only of refine- 
 mania for perpetuating the sense- ment. How many times we meet 
 less jargon of the dark ages in our with the phrase ^'cestui que trust," 
 legal annals, and publicists of equal an aglomeration of bastard Latin, 
 eminence have studiously avoided that simply means "beneficiary.'' 
 the constant parade of obsolete The entire science of the law is 
 medieval terms in their legal die- permeated with this error, and it is 
 tion. Many text writers have been among the aims of the present un- 
 equally sturdy in their evasion of dertaking to avoid as far as possible 
 technique, but unfortunately the any perpetuation of this abomina- 
 fad seems inherent with many tion by substituting the English 
 others to perpetuate names and equivalents for all these Latinized 
 phrases that should become obliv- terms. 
 
ESTATES UPON CONDITION. 769 
 
 ((conditions in deed), or by implication of law (conditions in 
 law). It is all but universal to create a condition by the use 
 of such phrases as ' ' provided always, " or " if it should so 
 happen, " or " this is with the express proviso, ' ' or words of 
 similar import. Conditions are regarded in a dual aspect. 
 I, As general; in which case, if the condition is violated, 
 there is an end of the tenancy immediately on entry for 
 breach of the conditions ; and, 2, As special ; in which event 
 the reversioner only is at liberty to enter, and hold the land 
 as security until the condition be fulfilled. '" 
 
 § 281. When conditions must be annexed. On this side of 
 the Atlantic estates upon condition or conditional estates are 
 -of comparatively rare occurrence. In nearly all leases we can 
 detect the presence of conditions, and the same remark 
 applies to mortgages. But both of these interests in real 
 property are sufficiently eminent to constitute a class by 
 themselves. Public policy seems to insist that real property 
 should always be in a transferable condition — more of a 
 commodity than in former times, and more easily converted 
 into its cash equivalent. Wherever conditions do exist they 
 must invariably be annexed at the time the estate is created 
 in which they appear as an incident. The reason is very 
 obvious, for the grantor, after parting with the title to the 
 property, is powerless to fasten any conditions upon it — the 
 estate has passed from him. He is no longer in control, the 
 conditions he would like to annex are then impossible, except 
 with the concurrence of the new grantee, who would be most 
 apt to resent any clogging of bis fee ; hence, whatever con- 
 ditions accompany an estate must be annexed thereto at the 
 time the estate is created.'' The condition, if subsequent, 
 will never limit or abridge the title. Whatever quality of 
 estate passes with a condition subsequent is in no way deter- 
 mined by the condition. It does not manifest itself in any 
 obnoxious manner except when it appears for the purpose of 
 annihilating the estate. It strikes but once. Not to mar or 
 deface, but for the sole purpose of blotting out of existence. 
 It may well be then that such a power should always be 
 
 "Co. Litt, 2oia; 4 Kent's Com. "2 Co. Litt. 236b. 
 
 36; 2 Bl. Com. 154. 
 
 49 
 
770 REAL PROPERTY. 
 
 incorporated in the recitals of the instrument which creates 
 the' estate to the end that, whoever takes a property, menaced 
 by a condition subsequent, may know the exact scope and 
 nature of the condition he is dealing with. And how can he 
 know this unless the grantor be required to indicate the con- 
 dition at the time he creates the estate. 
 
 § 282. Conditions not favored. It is a rule of extended ap- 
 plication in this country — one always in the ascendancy — 
 that all forms of conditions subsequent which tend to defeat 
 the estate should be discouraged. Such elements impart a 
 degree of uncertainty as to the tenure that should not be 
 encouraged — they foist an element of distrust into real 
 estate holdings, and they breed a litigous spirit that it is one 
 object of all law to allay. Hence it has become a settled rule 
 of construction that a condition will be strictly interpreted, 
 and where effect is given to one it must be because the lan- 
 guage employed is so directly pointed as to have but one 
 object, and one meaning, viz., the creation of a condition 
 subsequent." 
 
 § 283. What conditions are repugnant to the estate granted. 
 
 ' ' The owner of property has a right to dispose of it with a 
 limited restriction on its use, however much the restriction 
 may affect the value or the nature of the estate. Repugnant 
 conditions are those which tend to the utter subversion of 
 the estate, such as prohibit entirely the alienation or use of 
 the property. Conditions which prohibit its alienation to 
 particular persons or for a limited period, or its subjection to 
 particular uses, are not subversive of the estate ; they do not 
 destroy or limit its alienable or inheritable character." The 
 reports are full of cases where conditions imposing restric- 
 tions upon the uses to which property conveyed in fee may 
 be subjected have been upheld. In this way slaughter 
 houses, soap factories, distilleries, livery stables, tanneries, 
 and machine shops have, in a multitude of instances, been 
 excluded from particular localities, which, thus freed from 
 
 "Craig V. Wells, 11 N. Y. 315; Cullen v. Sprigg, 83 Cal. 56 ; Sum- 
 Chute V. Washburn, 44 Minn. 312; ner v. Darnell, 128 Ind. 38. 
 
 "Sheppard, Touch. 129, 131. 
 
ESTATES UPON CONDITION. 7/1 
 
 ■unpleasant sights, noxious vapors, or disturbing noises, have 
 become desirable as places for residences of families. To 
 hold that conditions for their exclusion from premises con- 
 veyed are inoperative, would defeat numerous arrangements 
 jn our large cities for the health and comfort of whole neigh- 
 borhoods."" 
 
 If an estate is granted and conditions repugnant to the 
 estate granted are annexed thereto, the latter will be void, 
 and the estate will pass freed from such conditions. " 
 
 The right of alienation is an inherent and inseparable 
 quality of an estate in fee simple. In a devise of land in fee 
 simple, therefore, a condition against all alienation is void, 
 because repugnant to the estate devised." For the same 
 reason a limitation over, in case the first devisee shall alien, 
 is equally void, whether the estate be legal or equitable." 
 And on principle, and according to the weight of authority, 
 a restriction, whether by way of condition or of devise over, 
 not forbidding alienation to particular persons only, but 
 against any and all alienation whatever during a limited 
 time, of an estate in fee, is likewise void, as repugnant to the 
 estate devised to the first taker, by depriving him during that 
 time of the inherent power of alienation.''" 
 
 " Field, J., in Cowell v. Springs, R. 38 Ch. Div. 176; Corbett v. Cor- 
 
 Co. 100 U. S. 55. bett, L. R. 13 Prob. Div. 136; Steib 
 
 "Wilkinson V.Wilkinson, 3 Swanst. v. Whitehead, in 111. 247, 251; 
 
 515 ; Re Macleay, L. R. 20 Eq. 187 ; Kelley v. Mains, 135 Mass. 231, and 
 
 Smith v. Bell, 31 U. S. 6 Pet. 68 (8: cases there cited. 
 
 322) ; Caruthers V. McNeill, 97 111. ^» Roosevelt v. Thurman, i Johns. 
 
 256; Murfitt v. Jessop, 94 111. 158; Ch. 220; i L. ed. 119; Mandlebaum 
 
 Rountree v. Talcot, 89 111. 246 ; v. McDonnell, 29 Mich. 78 ; Ander- 
 
 Brownfield v. Wilson, 78 111. 470 ; son v. Gary, 36 Ohio St. 506 ; 
 
 Markillie v. Ragland, 77 III. 98; Twitty v. Camp, Phil. Eq. (N. C), 
 
 Lowrie v. Ryland, 65 Iowa, 584, 61 ; Re Roscher, L. R. 26 Ch. Div. 
 
 '^Lit. sec. 360; Co. Litt, 206b, 801. 
 
 223a; 4 Kent's Com. 131; McDon- The weight of authority, and es- 
 
 ough v. Murdoch (56 U. S.), 15 pecially of reasoned authority, is 
 
 How. 367, 373, 375, 412 (14: 732, against the validity of restraints 
 
 73S- 736. 752-) upon alienation, however limited 
 
 "Howard v. Carusi, 109 U. S. in time, i, A restraint against 
 
 725 (27 : 1089) ; Ware v. Cann, 10 alienation until the devisee's eldest 
 
 Barn. & C. 433 ; Shaw v. Ford, L. (unborn) son reaches twenty-one, 
 
 R. 7 Ch. Div. 669 ; Re Dugdale, L. was held bad in Roosevelt v. Thur- 
 
772 REAL PROPERTY. 
 
 The authorities are very generally agreed that property 
 cannot be conveyed, devised, or bequeathed with a restriction 
 against it, or any portion of it, going to assignees in bank- 
 ruptcy or in any form to creditors, although a grant may be 
 made which shall be determinable by way of cessor, or by 
 limitation of the estate over to another upon the occurrence 
 of a certain event ; such as insolvency, bankruptcy, or the 
 occurrence of any other act or event arising out of the conduct 
 or neglect of the grantee or devisee. The bounty of a 
 grantor or testator may, however, be secured to another by 
 means of a trust — a "spendthrift's," as it is sometimes 
 called; so that the periodical income of the estate cannot be 
 anticipated by the cestui que trust, but may be paid to him 
 from time to time, beyond the power of creditors to inter- 
 cept or reach it. Many such cases are collated and cited in 
 Nichols^. Eaton, 91 U. S. 717, 727; 23 L. ed. 254, 257, and the 
 whole subject is fully considered in Broadway Nat. Bank v. 
 Adams, 133 Mass. 170; 43 Am. Rep. 504, and Foster v. 
 Foster, 133 Mass. 179. This topic has received extended 
 treatment in the chapter on Uses and Trusts. 
 
 § 284. Distinction between a condition precedent and a con- 
 dition subsequent. There is a wide distinction between a 
 condition precedent, where no title has vested and none is to 
 vest until the condition is performed, and a condition subse- 
 quent, operating by way of defeasance. In the former case 
 equity can give no relief. The failure to perform is an 
 inevitable bar. No right can ever vest. The result is very 
 different where the condition is subsequent. There equity 
 will interpose and relieve against the forfeiture upon the 
 principle of compensation, where that principle can be 
 
 man, i Johns. Ch. 220 ; 2, Oxley v. bad in Twitty v. Camp, Phil. Eq. 
 Lane, 35 N. Y. 340, 346, 347. Here (N. C), 61 ; 4, Mandlebaum v. Mc- 
 the court, after saying that it had Donnell, 29 Mich. 78. Here Chris- 
 been doubted whether conditions tiancy, J., in an elaborate opinion, 
 imposing partial restrictions upon shows the lack of authority for the 
 alienation were good, held that validity of restraints against aliena- 
 they were certainly bad if they vio- tion limited in time, and the court 
 lated the rule against perpetuities ; holds that such restraints are void 
 3, A condition not to sell until the (Cited from Gray on Restraints on 
 devisee reached thirty-five was held Alienation, p. 31.) 
 
ESTATES UPON CONDITION. 773 
 
 applied, giving damages, if damages should be given, and 
 the proper amount can be ascertained." By the common law 
 a freehold estate could not be created -without livery of 
 seizin, and it could not be determined without some act in 
 pais of equal notoriety. Conditions subsequent are not 
 favored in law," and when they are sought to be enforced 
 in an action at law, there must have been a re-entry, or 
 something equivalent to it, or the suit must fail. The right 
 to sue at law for the breach is not alienable. The action must 
 be brought by the grantor or some one in privity of blood 
 with him." In Dumpnr's Case, 4 Co. 119, it was decided that 
 a condition not to alien without license is finally determined 
 by the first license given. 
 
 The rule at law is, that if a condition subsequent be possible 
 at the time of making it, and becomes afterwards impossible 
 to be complied with, by the act of God, or the law, or the 
 grantor, the estate having once vested, is not thereby divested, 
 but becomes absolute." 
 
 a. Partial review of the authorities. Conditions, as pre- 
 viously stated, are either precedent or subsequent ; in other 
 words, either the performance of them is made to precede 
 the vesting of an estate, or the non-performance to determine 
 an estate antecedently vested." 
 
 Conditions precedent are such as must happen or be per- 
 formed before the estate can vest or be enlarged ; they admit 
 of no latitude ; they must be strictly, literally and punctually 
 performed/" Where one takes an estate with power to sell, 
 depending on a contingency, the happening of the contin- 
 gency is a condition precedent to his right to sell. A deed 
 raade by him before is void." 
 
 A devise of land "for the purpose of building a school 
 house, for the use of a school, provided it be built" on a 
 
 ^' Wells V. Smith, 2 Edw. Ch. " Co. Litt. 206a, 208b ; 2 Bl. Com. 
 
 (N. Y.) 78; Beaty V. Harkey, 2 Sm. 156; 4 Kent's Com. 130; Davis v. 
 
 & M. 563. Gray, 83 U. S. 203. 
 
 '''' \ Kent's Com. 129. '' i Jarm. on Wills (2d Am. ed.), 
 
 23Nicoll V. R. R. Co. 12 N. Y. 671, marg. p. 796. 
 
 121 ; Ludlow V. R. R. Co. 12 Barb. *« Van Home v. Dorrance, 2 Dall. 
 
 (N. Y.) 440; Webster v. Cooper, 14 317, per Patterson, J. 
 
 How. Pr. (N. Y.) 488. "Minot v. Prescott, 14 Mass. 495. 
 
774 REAL PROPERTY. 
 
 certain site, is a condition subsequent." So of a devise to a 
 town, to use and improve forever, and not to be sold, but 
 rented out, and the rents applied to the ministry of tbe town." 
 
 Where there is a general devise in words importing a pres- 
 ent interest, in a will making no other disposition of the 
 property, on a condition that may be performed at any time, 
 the condition is subsequent.'" And where a testator devises 
 his estate to his wife ' ' to hold the same to her and her heirs for- 
 ever, on condition, however, that my said wife shall support 
 and maintain in a comfortable and suitable manner my aged 
 and infirm mother, should my mother survive me," the 
 devise is upon a condition subsequent, and the estate is sub- 
 ject to forfeiture for neglect of performance." The devisee 
 becomes entitled to enter upon and enjoy the estate until 
 forfeited ; and no one can take advantage of a breach of such 
 condition, and make an entry to create a forfeiture of the 
 estate, but an heir-at-law of the devisor." 
 
 Where a devise of real estate is made on a condition subse- 
 quent, and, after the devisee becomes lawfully seized, a 
 breach of the condition happens, the estate thereby passes to 
 the residuary devisee, and not the heirs-at-law. And on the 
 death of the residuary devisee before condition broken, the 
 estate passes to his heirs.'' 
 
 If performance of a condition subsequent be rendered im- 
 possible, the estate to which it is annexed becomes, by that 
 event, absolute." 
 
 It is far from clear, however, that this principle applies 
 even to conditions subsequent, if the property be given over 
 on non-performance." 
 
 '* Hayden v. Stoughton, 5 Pick. "Thomas v. Howell, i Salk. 170; 
 
 (Mass.) 528. Laughter'^ case, 5 Rep. 22 ; 2 P. 
 
 '' Brigham v. Shattuck, 10 Pick. Wm. 626 ; 2 Story, Eq. Jur., sec. 
 
 (Mass.) 306. 1304, ct s^g-: 4 Kent (7th ed.), 124- 
 
 ™ Finley V. King, 3 Pet. 376. 127; McLachlan v. McLachlan, 9 
 
 2' Marwick v. Andrews, 25 Me. Paige (N. Y.), 534; Merrill v. Emory, 
 
 525. 10 Pick. (Mass.) 507 ; Hughes v. 
 
 '' Id. Edward, post, 489. 
 
 ^' Hayden v. Stoughton, 5 Pick. ^' i Jarm. on Wills (2d Am. ed.), 
 
 (Mass.) 528 ; Brigham v. Shattuck, 679, marg. p. 807 ; 2 Atk. 16 ; Pey- 
 
 10 Id. 306; Clapp V. Stoughton, 10 ton v. Bury, 2 P. W. 626; King v. 
 
 Id. 463. Withers, i Eq. Ca. Ab. 112, pi. 10. 
 
ESTATES UPON CONDITION. 775 
 
 A condition, in view of the common law, is regarded as im- 
 possible only when it cannot, by any human means, take 
 eifect. But if it be only in a high degree improbable, and 
 such as it is beyond the power of the obligee to effect, it is 
 then not deemed impossible." 
 
 If a grant is made on a condition subsequent, and the per- 
 formance becomes impossible by the act of the grantor, the 
 condition is void." 
 
 In Houston v. Randolph County Contrs., 20 Ind. 398, the con- 
 veyance was to ' ' the board of trustees of the county seminary 
 of Randolph county, and their successors in office, forever to 
 have and to hold the premises aforesaid, with all the appur- 
 tenances, to the only proper use, benefit and behoof of said 
 board of trustees, for the use of said seminary forever. ' ' It 
 was claimed that this created a condition subsequent, and that 
 the premises ceased to -be used as a seminary, the grantor 
 was to receive the land. The court held that the corporation 
 received an unconditional title, which was not defeated, by 
 the alleged failure to use the premises for the purposes of a 
 seminary, or by using them for other purposes, that there 
 was nothing in the deed that imports a condition; and that if 
 the grantor intended that the property conveyed should only 
 be used for a seminary edifice, or, in case it should be used 
 otherwise, that the estate should be forfeited and revert ; the 
 condition should have been expressed or fairly implied. In 
 Seeboldv. Shitler, 34 Pa. 133, land upon which a court house 
 and jail had been erected was conveyed to the commissioners 
 by name, and their successors in office, ' ' in trust for the use 
 of said county, in fee simple." The county was subse- 
 quently divided, the seat of justice removed, and the trustees 
 appointed to sell the lots. Held, that there was no reverter. 
 
 The citation of authorities to this effect might be greatly 
 extended, but we will refer to the following :" 
 
 2«2 Story, Eq. Jur., sec. 1305. 77; Columbia First M. E. Church 
 
 '' United States v. Arredondo, 6 v. Old Columbia Pub. G. Co. 103 
 
 Pet. 691, 745; Whitney V. Spencer, Pa. 608 ; Paschall v. Passmore, 15 
 
 4 Cow. (N. Y.) 39. Id. 307 ; Rawson v. Uxbridge 
 
 ^* Raley V. County of Umatilla, 15 School Dist. No. 5, 7 Allen (Mass.), 
 
 Or. 173; Portland V. Terwilliger, 16 125; Packard v. Ames, 16 Gray 
 
 Id. 465 ; Coffin v. Portland, 16 Id. (Mass.), 327 ; Crane v. Hyde Park, 
 
TJ^ REAL PROPERTY. 
 
 In Clark v. Jones, i Den. 576, Chief Justice Bronson, after 
 a critical review of the authorities, felt constrained to carry- 
 the rule as to conditions subsequent to an extent heretofore 
 unknown in the decisions of this country. He emphatically 
 denied the right of a tenant to take advantage of his owu 
 wrong, and terminate a lease by a willful omission to pay 
 rent. Where, says he, there is a condition in a lease that 
 upon the neglect or failure of the tenant to pay rent — or for 
 some other default or improper conduct on his part, the lease 
 shall cease and determine, or shall become null and void — 
 the neglect to pay rent or the like will not render the lease 
 absolutely void. It is void as to the estate of the lessee who 
 has done the wrong, but as to the lessor the lease is voidable 
 only. He may dispense with the forfeiture, and affirm the 
 continuance of the lease. 
 
 § 285. Invalid or void conditions. A condition may be so 
 manifestly absurd — so obviously beyond the possibility of 
 accomplishment — that the courts will declare it void ab initio- 
 by simply resorting to the familiar maxim : ' ' The law never 
 requires an impossibility." Testators frequently seek to 
 maintain their quarrels after death by annexing an illegal 
 condition to a devise, as "provided and on the condition my 
 said son shall cease to live with his present wife, ' ' etc. 
 
 In Blackstone Bank v. Davis, 21 Pick. 41, 32 Am. Dec. 241, 
 it was held that a provision, in a devise of land, that the land 
 should not "be subject or liable to conveyance or attach- 
 ment," was void, because contrary to law, which makes 
 a man's property liable for the payment of his debts. In 
 that case, the condition was unlimited in point of time ; and 
 it was declared to be " an attempt to impose a restraint upon 
 property, which the law would not allow." 
 
 In Bramhallv. Ferris, 14 N. Y. 44, d"] Am. Dec. 113, while 
 sustaining the provision there in question, it was said that 
 
 135 Mass. 147 ; Sohier v. Trinity 47 Mich. 131 ; Gage v. School Dist. 
 
 Church, 109 Id. i ; Board of Suprs. No. 7, 64 N. H. 232, 4 New Eng. 
 
 V. Patterson, 56 111. iii ; Lawe v. Rep. 284; Page v. Palmer, 48 N. H. 
 
 Hyde, 39 Wis. 347 ; Weir v. Sim- 387 ; Morrill v. Wabash, St. L. & 
 
 mens, 55 Id. 637; Brown v. Cadwell, P. R. Co. 96 Mo. 174; Thornton v. 
 
 23 W. Va. 187 ; Southard V. Central Trammell, 39 Ga. 202. 
 R. Co. 26 N. J. L. 14 ; Barrie v. Smith, 
 
ESTATES UPON CONDITION. "JJJ 
 
 "any attempt to make the interest of the beneficiary inalien- 
 able, or to withdraw it from the claims of creditors, would 
 have been nugatory, * * * would clearly be repugnant 
 to the estate in fact devised and bequeathed, and would be 
 ineffectual for that reason, as well as upon the policy of the 
 law." This view is sustained in Hahn v. Hutchinson, 159 Pa. 
 I33> 1 38-141 ; StansburyY. Hubner, 73 Md. 228; 11 L. R. A. 204; 
 Steib V. Whitehead, in 111. 251; McCormick Harvesting Machine 
 Co. V. Gates, 75 Iowa, 343 ; Ehrisnmn v. Sener, 162 Pa. 577. 
 
 § 286. Time of performance. Where the testator seeks to 
 make a payment of money or any other specific act as a con- 
 dition precedent to the enjoyment of the estate, but neglects 
 to specify when the act is to be done, the courts will usually 
 insist upon performance within a reasonable time." Of 
 course, if the time is specified in the instrument creating the 
 estate, the time must govern. In other cases the time of 
 performance will be regulated by the general condition of 
 the estate, situation of the parties, and the probable inten- 
 tion of the one creating the condition. 
 
 § 287. Important rules relating to conditions. Text writers 
 have been conspicuously unfortunate in their general treat- 
 ment of estates upon condition, in that certain fundamental 
 rules that are always of application seem to have been en- 
 tirely ignored or but incidentally referred to. After labori- 
 ous investigation I have discovered but one writer who has 
 successfully grouped the various rules relating to conditions, 
 and by displaying them in logical order has greatly abridged 
 and simplified the entire subject. The writer is Professor 
 Walker, in his inimitable work known as "American Law." 
 Indeed it may be said that this book, in its tenth edition, is 
 the most marvelous piece of condensation in the entire range 
 of legal literature. Its merits are universally acknowledged, 
 and I merely add to a great weight of present obligation by 
 referring to section 142, where will be found a complete tabu- 
 lation of the important rules relating to estates upon condi- 
 tion. Those rules are phrased by Dr. Walker in the manner 
 following : 
 
 39Nicoll V. N. Y. & E. R. R. Co. 13 N. Y. 121. 
 
778 REAL PROPERTY. 
 
 1 . Conditions must be annexed at the time of creating the 
 estate, and not afterwards ; because, when an estate is once 
 created, the grantor's power is at an end. 
 
 2. Conditions must operate upon the whole estate. But a 
 condition may operate upon part of the land and not upon 
 the rest. Thus, one-half might be made to revert, upon a 
 certain event. There may be good reason for this distinc- 
 tion under the technical rules of the common law, but I can 
 perceive none in the nature of the subject. And a condition 
 cannot be severed. A grant of a part of the reversion will 
 defeat the whole condition." 
 
 3. Conditions can only be reserved to the grantor and his 
 heirs. Except by statutory provision, they cannot be reserved 
 to strangers." Forfeiture, by breach of condition, can only 
 be taken advantage of by the grantor or his heirs." A right 
 of entry on condition broken passes only to heirs, and is not 
 devisable or assignable." 
 
 4. Conditions which are impossible at the time of making 
 them, or which afterwards become impossible by the act of 
 God, or by the act of the grantor himself, are void ; and an 
 estate already vested thus becomes absolute. The reason is, 
 that the moment that a condition becomes impossible, it 
 ceases to be "a condition in the sense intended by the grant ; 
 and when this is not the fault of the grantee, he is not to be 
 prejudiced thereby. Accordingly, the estate being vested, 
 he holds it discharged of the condition. 
 
 5. Conditions, the performance of which is unlawful, are 
 void. Thus, if I grant you an estate, the continuance of 
 which depends upon your doing something which is illegal 
 or immoral, or omitting something which is your duty, the 
 condition is void, and the estate which is vested becomes 
 absolute." 
 
 6. Conditions which are repugnant to the nature of the 
 
 ""Tinkham v. Erie R. R. Co. 53 « Southard v. Cent. R. R. Co. 2 
 
 Barb. (N. Y.) 393. Dutch. 13; Norris v. Nilner, 2oGa. 
 
 " Underhill v. Saratoga & Wash- 563. 
 
 ington R. R. Co. Barb. (N. Y.) 455. " Bradford v. Bradford, 19 Ohio 
 
 '" Dewey v. Williams, 40 N. H. St. 546, 548. 
 222 ; Hooper v. Cummings, 45 Me. 
 359- 
 
ESTATES UPON CONDITION. 779 
 
 estate are void. But the grantor may prohibit alienation to 
 a particular person ;" for this is not within the reason of the 
 rule. So, if the estate be for life or years, a condition against 
 alienation will be good, for here is no repugnancy to the na- 
 ture of the estate. And in this case, a sale on execution will 
 not be considered as an alienation so as to defeat the estate. 
 But the condition may interfere with or control the mode of 
 enjoyment of the estate. Thus, a condition against partition 
 has been held valid." So, also, one against the sale of in- 
 toxicating liquors on the premises sold." And a condition 
 in a grant of a fee-simple, that a perpetual rent shall be paid- 
 is valid." 
 
 Two rules may be framed as being generally accepted: 
 I , A forfeiture or limitation over an alienation of a fee-simple 
 is void, unless alienation merely to specific persons is forbid- 
 den, or unless the condition takes efifect to prevent the estate 
 vesting, i. e. , is a condition precedent to its vesting. But as 
 to all other estates, whether in tail, for life, or for years, 
 such a limitation is valid. 2, A clause prohibiting aliena- 
 tion, but without forfeiture or limitation over, i. e. , leaving 
 the estate in the owner's hands without power to alienate, is 
 wholly void as to every estate, whether legal or in trust, ex- 
 cepting only married women's separate property trusts. See 
 Gray on Restraints on Alienation for a full statement of 
 rules and all the cases. In Ohio it has been specifically 
 ruled that a condition in a devise in fee restraining aliena- 
 tion is void." So is a condition that land be exempt from 
 the devisee's creditors. °° So is a condition forbidding aliena- 
 tion, except to a certain person, even for a few years. °' An 
 exception to the second rule above given occurs in Pennsyl- 
 vania, and lately in Massachusetts. "" And see, also. Miller, 
 J., in Nichols v. Eaton, gi U. S. 716, permitting a testator to 
 devise a life interest or lesser interest in trust for the support 
 
 ** Langdon v. Ingram, 28 Ind.360. ™Hobbs v. Smith, 15 Id. 419. 
 
 " Hunt V. Wright, 47 N. H. 396. " Anderson v. Cary, 36 Ohio St. 
 
 ■" Plum V. Tubbs, 41 N. Y. 442. 506. 
 
 ■"Van Rensselaer v. Barringer, ^'^ Broadway Bank v. Adams, 133 
 
 39 N. Y. 9. Mass. 170. 
 
 *' Anderson v. Cary, 36 Ohio St. 
 506. 
 
780 REAL PROPERTY. 
 
 of the beneficiary, but free from claims of his creditors. 
 Some States by statute also allow a certain amount of income 
 to be thus limited. The name of "spendthrift trusts" has 
 attached to these." 
 
 7. Conditions in absolute prevention of marriage are void 
 on grounds of public policy, except in the case of widows 
 taking lands from their deceased husbands." But the grantor 
 may provide that the grantee shall not marry without his 
 consent ; because this does not absolutely prevent marriage. 
 
 8. Conditions may be performed by any person having an 
 interest in the subject-matter. And if a particular time be 
 appointed, the performance must be at or before the time. 
 The law is strict on this subject, though equity will relieve 
 against mere failure in point of time. 
 
 9. Equity will relieve against all forfeitures for breach of 
 conditions, where a compensation can be made in damages ; 
 and this renders the legal doctrines respecting conditions of 
 little practical consequence. A court of equity will not allow 
 its powers to be used in any way to assist to divest an estate 
 for a breach of a condition subsequent." 
 
 10. When the condition has been broken, the grantor may, 
 by his own act, debar himself from taking advantage of it. 
 Thus, where a lease contains a clause for re-entry, for non- 
 payment of rent at a certain time, and the lessor accepts rent 
 afterwards, he cannot enter for condition broken. 
 
 The original maker of the condition cannot enforce it after 
 he has parted with his right of reverter, nor can his alienee 
 take advantage of a breach, because the right was not assign- 
 able." 
 
 To authorize a person to claim a forfeiture of valuable 
 property rights on account of the violation of a condition 
 upon which they are granted, he must proceed to enforce it 
 
 "See Gray on Restraints on *' Smith v. Jewett, 40 N. H. 530; 
 
 AVienation, passim. Livingston v. Tomkins, 4 Johns. 
 
 " Lingart v. Ripley, 19 Ohio St. Ch. 431; Warner v. Bennett, 31 
 
 24; Commonwealth v. Steuffer, 10 Conn. 468. 
 
 Barr. 350; McCullough's Appeal, "Rice v. Boston & Worcester 
 
 12 Pa. St. 197; but see, Parsons v. Railroad Co. 12 Allen (Mass.), 141- 
 Winslow, 6 Mass. 169; Otis v. 
 Prince, 10 Gray (Mass.), 581. 
 
ESTATES UPON CONDITION. 78 1 
 
 at once. He cannot remain passive for a long time after acts 
 have transpired, upon which others have relied in matters of 
 importance to them, and then insist upon the forfeiture in 
 consequence thereof. 
 
 It is quite true that it may be regarded as in some sense a 
 general rule that forfeiture cannot be insisted upon, unless a 
 party entitled to take advantage of the condition first de- 
 mands performance of that upon which the continuance of 
 the estate depends." 
 
 This rule applies in the class of cases where the perform- 
 ance of the condition depends upon something to be done by 
 the party entitled to insist upon performance, or upon his 
 election at pleasure, or upon facts or circumstances pecu- 
 liarly within his personal knowledge. In other words, where 
 it in any way depends on the pleasure of the party for whose 
 benefit the condition is to be performed in what manner or 
 at what time a thing shall be done, or whether it shall be 
 done at all, the party to be benefited must request perform- 
 ance. " 
 
 Where, however, the continuance of an estate depends 
 upon the performance of a specified act which is to be done 
 at a fixed time, no demand is necessary ; because the party 
 bound has equal knowledge of the thing to be done, and of 
 the time when it is to be done. He must, therefore, tender 
 performance at his peril, or make it appear that performance 
 has been expressly waived. " 
 
 While a condition may be waived by a party who has the 
 right to avail himself of it, mere indulgence or silent acqui- 
 escence in the failure to perform is never construed into a 
 waiver, unless some element of estoppel can be invoked. "'' 
 
 Where lands are conveyed subject to certain conditions, 
 and the grantor reserves a right of re-entry for a failure by 
 the grantee, or his heirs, to comply with those conditions, 
 the original grantor or his heirs can maintain ejectment to 
 
 "Lindsey V. Lindsey, 45 Ind. 552; supra; Rowell v. Jewett, 69 Me. 
 
 Cory V. Cory, 86 Id. 567 ; Ellis v. 293 ; Whitton v. Whitton, supra; i 
 
 Elkhart Car Works Co. 97 Id. 247. Shars. & B. Lead. Cas. Real Prop. 
 
 ''Whitton V. Whitton, 38 N. H. 145. 
 
 .127- ™ Carbon Block Coal Co. V. Mur- 
 
 =' Ellis v. Elkhart Car Works Co. phy, loi Ind. 115, and cases cited. 
 
782 REAL PROPERTY. 
 
 retain possession on such breach; but, ordinarily, as before 
 stated, no one else can do so." In such a case all of the 
 original grantors or their heirs must join as plaintiffs." 
 
 Where lands are granted in fee, upon condition of the pay- 
 ment of a yearly rent, reserving a right of re-entry on breach 
 of that condition, the grantor, or his heir, assignee or de- 
 visee, except where restrained by some particular statute, 
 can maintain ejectment for the land in case of default in pay- 
 ment of such rent." If there is more than one heir, each is 
 allowed to sue for his .share." 
 
 § 288. To what estates conditions are annexed. Conditions 
 either precedent or subsequent may be lawfully annexed to 
 any species of real property that takes the form of a trans- 
 ferrable estate. Equitable estates are most frequently 
 clogged with a condition." 
 
 § 289. Distinction between estates upon limitation and con- 
 ditional limitations. This distinction proceeds upon the well 
 recognized qualities of the two estates. An estate upon 
 limitation collapses absolutely upon the happening of an 
 event which may determine it. As where a woman takes an 
 estate so long as she remains a widow. Now, during her 
 widowhood, she holds an estate upon limitation, and the 
 moment of her marriage her estate collapses or determines, 
 and passes to other channels. 
 
 There is a tendency among text writers to overlook the 
 distinction between limitations and conditional limitations, 
 and so eminent an authority as Mr. Washburn falls into this 
 error." But it appears to be the better method to apply the 
 term " conditional limitation" to the estate which takes effect, 
 and "limitation" to the estate which is determined." 
 
 ' ' Between a condition and a conditional limitation there is 
 
 " Nicoll V. N. Y. & Erie R. R. Co. Tiff.) 9; Moore v. Wingate, 53 Me. 
 
 12 N. Y. (2 Kern.) 121 ; Jackson v. 398; Galbraith v. Fenton, 2 Serg. 
 
 Topping, I Wend. (N. Y.) 388. & R. (Pa.) 359. 
 
 «'Cook V. Wardens, etc. of St. "Cruger v. McClaury, 41 N. Y. 
 
 Paul's Church, 5 Hun (N. Y.), 293. (2 Hand) 219. 
 
 "Van Rensselaer V. Slingerland, "2 Bl. Com. 152. 
 
 26N. Y. (12 Smith) 580; Van Rens- «eTiedemanon Real Prop.sec. 281. 
 
 selaer v. Barringer, 39 N. Y. (12 "Id. 
 
ESTATES UPON CONDITION. 
 
 783 
 
 this difference: a condition respects the destruction and 
 determination of an estate ; a conditional limitation relates 
 to the commencement of a new one. A condition brings the 
 estate back to the grantor or his heirs ; a conditional limita- 
 tion carries it over to a stranger."" 
 
 Cases of conditional limitation partake of the nature of 
 
 •' Watkins, Convey. 204. 
 
 A limitation imports an estate so 
 expressly confined and limited by 
 the words of its creation that it 
 cannot endure for a longer time 
 than till the contingency shall hap- 
 pen upon which the estate is to fail. 
 This is denominated a limitation; 
 as, when land is granted to a man 
 while he continues unmarried, or 
 until the rents and profits shall 
 have made a certain sum, and the 
 like ; in these cases the estate is 
 limited, that is, it does not go be- 
 yond the happening of the contin- 
 gency, (2 Bl. Com. 155 ; 10 Co. 41 ; 
 Bac. Ab. Conditions, H., Co. Lift. 
 236b, 4 Kent's Com. 121; Tho. Co. 
 Litt. Index, h. t, 10; Vin. Ab. 218; i 
 Vern. 483, n. ; 4 Ves. Jr. 718.) 
 
 2. There is a difference between 
 a limitation and a condition. When 
 a thing is given until an event shall 
 arrive, this is called a limitation; 
 but when it is given generally, and 
 the gift is to be defeated upon the 
 happening of an uncertain event, 
 then the gift is conditional. (2 
 Bouvier's Law Diet. 50.) 
 
 A conditional limitation is a spe- 
 cies of limitation of an estate, par- 
 taking of the nature of a condition. 
 (4 Kent's Com. 127.) As if a condi- 
 tion subsequent be followed by a 
 limitation over to a third person, in 
 case the condition be not fulfilled, 
 or there be a breach of it, that is 
 termed a conditional limitation. 
 (Id. 126.) Sometimes considered as 
 
 the same with a remainder. (Id. 
 128. notes. Id. 249, 250.) 
 
 This term is used in other senses 
 than the foregoing. Thus, it is 
 said, that a conditional limitation is 
 where an estate is so expressly de- 
 fined, and limited by the words of 
 its creation, that it cannot endure 
 for any longer time than till the 
 contingency happens upon which 
 the estate is to fail, (i Steph. Com. 
 278.) And to this class are referred 
 all base fees and fees simple condi- 
 tional at the common law. (Id.; i 
 Burrill's Law Diet, tit. " Conditional 
 Limitation. "J 
 
 In a note under section 22 of his 
 work, "Restraints on Alienation," 
 Mr. Gray speaks of the confusion 
 of usage as follows: 
 
 "The term 'Conditional Limita- 
 tion ' is used in two senses. In the 
 sense in which it is generally em- 
 ployed by courts and writers, it is a 
 generic term, comprising two spe- 
 cies (i) shifting uses, and (2) execu- 
 tory devises, and is a proviso cut- 
 ting short an estate previously 
 created and substituting another in 
 its stead. It is very convenient to 
 have such a common term for shift- 
 ing uses and executory devises ; 
 but unfortunately, some writers 
 have confused legal nomenclature 
 by attempting to use it in another 
 sense. With them it means a pro- 
 viso operating to determine an 
 estate by intrinsic force, but not by 
 itself substituting another ' 
 
784 REAL PROPERTY. 
 
 conditions; but they are cases of contingency, and to be 
 adjudged upon the principles applicable to contingent estates. 
 Their distinguishing characteristics are, that they contain a 
 condition either to divest an estate vested, or to prevent the 
 vesting of an estate contemplated, and to carry over the 
 interest to another party, or to some other purpose, not to 
 the heir. Whereas, it is indispensable to the legal idea of a 
 condition that it should enure to the benefit of the heir, that 
 he should enter, and that the effect of entry should be the 
 restoration of the original estate, not the creation of a new 
 estate. A conditional limitation is comprised among execu- 
 tory devises, and, therefore, can be created by will alone, 
 but estates on condition may be created by deed or will. As 
 to the estate to be created or carried over, as well as in those 
 instances in which it anticipates or prevents an estate from 
 vesting; it is obvious that conditional limitations must be 
 assimilated to conditions precedent. But as the contingency 
 may also operate to divest an estate taken presently, it is 
 equally obvious that it then approximates to a condition sub- 
 sequent in one of its effects. In either case, however, it is 
 regarded as a contingency, and the law of conditions is not 
 applied to it to any purpose that would defeat the estate of 
 the second taker. It is, on the contrary, so molded and 
 applied as may give effect to the devise over." 
 
 § 290. Distinction between a condition and a limitation. 
 
 While the distinction between a condition and a limitation is 
 sufficiently intelligible, it is surprising to discover the amount 
 of misconception on the subject. Here is a formula that may 
 disembarrass some minds who are a little foggy as to the 
 exact nature of the distinction. A condition does not defeat 
 the estate even in case it is broken, until actual or construc- 
 tive entry of the grantor or his heirs. But words of limita- 
 tion mark the period which determines the estate. The 
 event or contingency beyond which one is not permitted to 
 doubt that the estate has terminated. 
 
 A ' ' condition" determines an estate after breach, upon entry 
 or claim by the grantor or his heir, or the heir of the de- 
 visor. A "limitation" marks the period which determines 
 
 *' Finlay, et al. v. King's Lessee, 3 Pet. 391. 
 
ESTATES UPON CONDITION. 785 
 
 the estate without any act on the part of him who has the 
 next expectant interest. Upon the happening of the pre- 
 scribed contingency, the estate first limited comes at once to 
 an end, and the subsequent estate arises. A "conditional 
 limitation" is, therefore, of a mixed nature, partaking both 
 of a condition and a limitation; of a condition, because it 
 defeats the estate previously limited ; of a limitation, because 
 upon the happening of the contingency the estate passes to 
 the person having the expectant interest, without entry or 
 claim." 
 
 § 291. Who may enter for breach of condition subsequent. 
 
 It must not be inferred that because there has been a breach 
 of a condition subsequent, however notorious such breach 
 may be, that the estate is thereby forfeited. But, on the 
 contrary, it will always require some afifirmative or aggressive 
 act by which the property is reduced to possession before the 
 estate of the grantee will be defeated. The modern action 
 of ejectment is a possessory action having all of the legal 
 effects of the old common law action of entry and detainer. 
 It is the remedy most in vogue for enforcing the rever- 
 sioner's rights in all cases where the estate has been forfeited 
 through the breach of a condition subsequent. The rule is well 
 settled that in order that an estate on condition may revest 
 in the grantor by breach of the condition, he, if not in pos- 
 session, must make entry to bring action, or, if in possession, 
 must manifest intent to hold possession 'by reason of the 
 hreach." 
 
 It is optional with the grantor of an estate upon condition, 
 in case a breach of the condition occurs, whether he will 
 avail himself of the same as a forfeiture of the estate thus 
 granted. To do this requires action on his part ; and if he 
 is not in possession, usually requires an entry for breach of 
 condition. Until such entry, the grantee holds his estate, 
 
 '"Proprietors of Brattle Square iSVes. 433; 2 Washb. R. P. 457-60 ; 
 
 Church V. Grant, 3 Gray (Mass.), 147 Cited from Anderson's Law Diet. 
 
 (1855), Bigelow, J. ; see, also, 4 " Webster v. Cooper. 55 U. S. (14 
 
 Hughes, 594; 16 Me. 160; 5 Neb. 407; How.), 488 ; Chalker v. Chalker, i 
 
 73N. C. 125; 5 R. I. 212; 76 Va. 145; Conn. 79; Dewey v. Williams. 40 
 
 N. H. 222, 
 50 
 
786 REAL PROPERTY. 
 
 liable only to be defeated, but not actually determined by a 
 forfeiture." 
 
 It is equally well settled that a mere breach of conditioiL 
 will not revest an estate in a grantor upon condition, except at 
 his election ; and that he may waive the breach and forfeiture.'* 
 
 It further appears that conditions can only be reserved to 
 the grantor or his heirs, and never to mere strangers. And 
 the grantor must, during his life time, take proper steps to 
 consummate the forfeiture. Or, if he be dead, those in 
 privity of blood with him must adopt the same measures. 
 But, in the meantime — that is, after the breach of the condi- 
 tion subsequent and before any action of re-entry has been 
 commenced — only a right of action subsists, and this mere 
 right of action cannot be conveyed so as to vest the right to 
 sue in a stranger." 
 
 There is a wide distinction between a condition precedent, 
 where no title has vested and none is to vest until the condi- 
 tion is performed, and a condition subsequent, operating by 
 way of defeasance. In the former case equity can give no 
 relief. The failure to perform is an inevitable bar. No 
 right can ever vest. The result is very different where the 
 condition is subsequent. There equity will interpose and 
 relieve against the forfeiture upon the principle of compen- 
 sation, where that principle can be applied, giving damages, 
 if damages should be given, and the proper amount can be 
 ascertained." The action must be brought by the grantor or 
 some one in privity of blood with him." 
 
 There would seem to be some authority for holding that in 
 case the grantor or his heirs are in possession of the prop- 
 erty — actually living on the premises — the estate re-vests 
 immediately upon breach of the condition without any entry 
 or further formal act on his or their part." While it is uni- 
 versally true that a stranger cannot avail himself of a breach 
 
 "Stone V. Ellis, 9. Cush. 95. Y.) 78; Beaty v. Harkey, 2 Sm. & 
 
 "Co. Litt. 211, b ; Coon v. Brick- M. 563. 
 
 ett, 2 N. H. 163; I Shep. Touch- « Nicoll v. R. R. Co. 12 N. Y. 
 
 stone, 152; Pennant's case, 3 Co. 121 ; Ludlow v. R. R. Co. 13 Barb. 
 
 64. (N. Y.) 440; Webster v. Cooper, 14 
 
 " Ruch V. Rock Island, 97 U. S. How. (N. Y.) 488. 
 
 693. " See Lincoln & Kennebec Bank 
 
 "Wells V. Smith, 2 Edw. Ch. (N. v. Drummond, 5 Mass. 321 ; An- 
 
ESTATES UPON CONDITION. 787 
 
 of a condition subsequent, the rule is relaxed in landlord and 
 tenant cases. In all such instances the lessor may assign his 
 right of entry on breach of condition to an entire stranger with 
 or without consideration. Any other holding would seri- 
 ously embarrass property rights of a rentable character. 
 
 And it is settled law that no one can take advantage of the 
 non-performance of a condition subsequent annexed to an 
 estate in fee, but the grantor or his heirs, or the successors of 
 the grantor if the grant proceed from an artificial person, 
 and if they do not see fit to assert their right to enforce a 
 forfeiture on that ground, the title remains unimpaired in the 
 grantee. The authorities on this point, with hardly an 
 exception, are all one way from the Year Books down. And 
 the same doctrine obtains where the grant upon condition 
 proceeds from the government ; no individual can assail the 
 title it has conveyed on the ground that the grantee has 
 failed to perform the conditions annexed." 
 
 In what manner the reserved right of the grantor for 
 breach of the condition must be asserted so as to restore the 
 estate depends upon the character of the grant. If it be a 
 private grant, that right must be asserted by entry or its 
 equivalent. If the grant be a public one, it must be asserted 
 by judicial proceedings authorized by law, the equivalent of 
 an inquest of of&ce at common law, finding the fact of for- 
 feiture and adjudging the restoration of the estate on that 
 ground, or there must be some legislative assertion of owner- 
 ship of the property for breach of the condition, such as an 
 act directing the possession and appropriation of the prop- 
 erty, or that it be offered for sale or settlement. At common 
 law the sovereign could not make an entry in person, and, 
 therefore, an office found was necessary to determine the 
 estate; but, as was said in a late case, "The mode of 
 asserting or resuming the forfeited grant is subject 
 to the legislative authority of the government. It may be 
 
 drews v. Senter, 32 Me. 394 ; Ham- Brown, i Cai. 416 ; U. S. v. Repen- 
 ilton V. Elliott, 5 S. & R. 375; tigny, 5 Wall, 267 (72 U. S. XVIII, 
 Adams v. Ore Knob Copper Co., 645); Dewey v. Williams, 40 N. H. 
 12 Rep. C. C. 166. 222 ; Hooper v. Cummings, 45 Me. 
 
 '« Sheo. Touch., I4Q ; Nicoll V. R. 359; Southard v. R. R. Co., 2 
 
 Dutch. (N. J.) 13. 
 
 2 Kep. C. O. 100. 
 '« Shep. Touch., 149 ; Nicoll v. R. 
 I. Co., 12 N. Y. 121 ; People v. 
 
788 REAL PROPERTY. 
 
 after judicial investigation, or by taking possession directly 
 under the authority of the government without these pre- 
 liminary proceedings."" 
 
 § 292. Rule against perpetuities does not affect. In this 
 country we seem to have ignored the English precedents 
 which subject estates upon condition to the rule against per- 
 petuities, and wholly emancipated such estates from the ope- 
 ration of that very salutary rule. No reason can be assigned 
 for this partiality. We apply the rule in all its rigor to the 
 case of an executory devise, why not to an estate upon con- 
 dition ? A number of instances have arisen where conditions 
 offending the rule against perpetuities have been upheld." 
 In none of these cases last cited, however, did the rule against 
 perpetuities control the action of the court or influence the 
 decision. And the American judiciary seem to have tacitly 
 agreed to the validity of conditions in a conveyance beyond 
 the period allowed by the rule against perpetuities. True 
 there is no decision directly in point. But no court has 
 directly committed itself to the proposition that a condition 
 was void because it seeks to fasten an impediment upon the 
 alienation of real estate beyond the period prescribed by the 
 rule against perpetuities. In the Cowell case, supra, Mr. 
 Justice Field, voicing the unanimous opinion of the United 
 States Supreme Court, held that the condition in the deed, 
 which prohibited the manufacture or sale of intoxicating 
 liquors as a beverage at any place of public resort on the 
 premises, was not subversive of the estate conveyed. It left 
 the estate alienable and inheritable, and free to be subjected 
 to other uses. It was not unlawful nor against public policy, 
 but on the contrary it was imposed in the interest of public 
 health and morality. There is no suggestion in the opinion 
 that the condition might become void by efflux of time, and 
 his honor refers with entire approval to the cases of Plumb v. 
 Tubbs, supra, O'Brien v. Wetherell, 14 Kan. 616, and Gray v. 
 Blanchard, 8 Pick, (Mass.) 284. 
 
 " U. S. V. Repentigny, supra ; 38 Wis. 165 ; Plumb v. Tubbs, 41 N. 
 
 Finch V. Riseley, Poph. 53 ; Schu- Y. 442 ; Indianapolis R. R. Co. v. 
 
 lenberg v. Harriman, 88 U. S. 44. Hood, 60 Ind. 580 ; Cowell v. Colo- 
 
 *" Horner V. Chicago R. R. Co., rado Springs Co., 100 U. S. 55. 
 
CHAPTER XX. 
 
 MORTGAGES. 
 
 Sec. 293. Preliminary remarks. 
 
 294. Nature and definition. 
 
 a. Distinction between a mortgage and a conditional sale. 
 
 b. Regarded as a conveyance. 
 
 c. Trust deeds in the nature of a mortgage. 
 
 d. Absolute deeds construed as mortgages. 
 
 e. Competency of evidence to establish. 
 
 295. Objects of a mortgage. 
 
 296. Classified as legal and equitable — Welsh mortgages obsolete. 
 
 a. Vendor's lien for purchase price. 
 
 297. Essential elements. 
 
 a. No precise form required — rule as to acknowledgment 
 
 and sealing. 
 
 b. The defeasance clause examined. 
 
 298. Covenants and their construction. 
 
 a. Agreement that the whole sum shall become due. 
 
 b. In default of payment mortgagee to have power to sell. 
 
 c. Mortgagor to keep buildings insured. 
 
 d. Mortgagor to give further assurance of title. 
 
 e. Covenants to bind representatives of grantor and mort- 
 
 gagor, and inure to the benefit of whom. 
 
 299. What property may be mortgaged. 
 
 a. Rule as to after-acquired property. 
 
 300. Parties to a mortgage. 
 
 301. Description of mortgaged premises. 
 
 302. Fixtures as between mortgagor and mortgagee. 
 
 303. Validity of the debt secured. 
 
 304. Mortgage for future advances. 
 
 305. Material alterations. 
 
 306. Reformation of mortgages. 
 
 307. Execution, delivery, acceptance and recording. 
 
 308. Rights of mortgagee in possession. 
 
 309. Liability of the grantee of mortgaged premises. 
 
 310. Junior encumbrancers and the principles of subrogation. 
 
 a. Volunteers cannot invoke the doctrine. 
 
 311. Merger and its incidents. 
 
 a. Where the intention is not expressed. 
 
 312. Assignment of mortgages. 
 
 [789] 
 
790 
 
 REAL PROPERTY. 
 
 Sec. 313. 
 
 The equity of redemption and its incidents, 
 
 314- 
 
 Extinguishment and discharge. 
 
 315- 
 
 Foreclosure and its incidents. 
 
 
 a. Preliminary note. 
 
 
 b. The term foreclosure defined. 
 
 
 c. Largely regulated by statute. 
 
 
 d. The rule lis pendens. 
 
 
 e. The final decree of sale. 
 
 
 f. The doctrine of relation. 
 
 
 g. Redemption rights. 
 
 
 h. Rule as to surplus moneys. 
 
 § 293 Preliminary. The assertion is abundantly warranted 
 that of all the topics and subdivisions known to the law of 
 real property, that relating to mortgages has received the 
 most systematic and exhaustive treatment. Bench, bar and 
 commentator have been assiduously engaged for over three 
 hundred years in comparing views, luminating obscurities, 
 eliciting argument, and formulating rules with the sole 
 object of placing the doctrine of mortgages beyond the reach 
 of controversy, to the end that this most important species of 
 property should possess something of the same certainty 
 that is imparted to a promissory note. It would, indeed, be 
 a reproach to the judicial system of the civilized world, if, 
 after all these centuries of exploiting, the principles that 
 underlie the. law of mortgages as well as their variant appli- 
 cations should remain in doubt, especially when we remem- 
 ber that thousands upon thousands of cases have contributed 
 their quota to the subject. Fortunately we are not obliged 
 to chronicle such a failure. On the contrary, the result has 
 been most encouraging, and in these closing hours of the 
 nineteenth century the student in the labyrinth of the laws 
 of real property will be gratified to learn that in one depart- 
 ment, at least, we have reached bed-rock foundation, and 
 that the legal and equitable principles governing the law of 
 mortgages have now assumed all the symmetrical propor- 
 tions of settled law. Whatever confusion may reign in other 
 subdivisions, the rules regulating mortgages, and also deeds, 
 have acquired great precision and uniformity, especially 
 since the phenomenal developthent of our equity jurispru- 
 dence during the last half century. With these introductory 
 remarks, I shall now briefly examine the salient features of 
 
MORTGAGES. 791 
 
 our mortgage law, as related to Real Property and endeavor 
 to present a synoptical review of the very simple principles 
 that underlie the entire superstructure. 
 
 § 294. Nature and definition. A mortgage of realty is a con- 
 tract by which specific property is hypothecated for the per- 
 formance of an act, without the necessity of a change of 
 possession. It can be created, renewed, or extended, only 
 by writing, executed with the formalities required in the case 
 of a grant of real property. ' 
 
 This term imports, under the modern decisions, a provi- 
 sional transfer of property, as security for some indebted- 
 ness already owing or for some definite sum to be hereafter 
 advanced. In judicial contemplation it is simply a lien 
 (although of a very high character) or encumbrance upon the 
 property of the debtor, which becomes discharged by the due 
 performance of the contract of repayment. In effect, it is a 
 sale accompanied with a power of defeasance which, if not 
 observed, may result in an absorption of the title by the 
 mortgagee (the creditor). The sum secured by the mort- 
 gage is called the "mortgage debt," while the method of 
 absorption is technically known as an action of foreclosure — 
 a proceeding long recognized as an effective remedy in the 
 hands of the creditor by which he acquires possession of the 
 security as indemnity for his claim." They are always 
 designed to secure the payment of money or to enforce the 
 performance of some act in futuro. 
 
 Any transaction which ultimately resolves itself into a 
 security for a loan is, in legal contemplation, a mortgage.' 
 
 ' Mr. Coote briefly defines a mort- payment of money, and are usually 
 
 gage as " a debt by specialty se- treated under the head of estates 
 
 cured by a pledge of lands, of which upon condition. (Walker's Am. 
 
 the legal ownership is vested in the Law, sec. 145. 
 
 creditor, but of which, in equity, 'Conrad v. Atlantic Ins. Co. i 
 
 the debtor and those claiming un- Pet. 441 ; 4 Kent's Com. 136; Terrell 
 
 der him remain the actual owners, v. Allison, 21 Wall. 293 ; William- 
 
 until debarred by judicial sentence, ette Mfg. Co. v. Bank, 119 U. S. 
 
 by legislative enactment, or their 198. 
 
 own laches.'' (Coote on Mortg., " Wilcox v. Morris, i Murph. 116, 
 
 139.) And Professor Walker .says 3 Am. Dec. 678; Wilmerding v. 
 
 they are mere pledges to secure the Mitchell, 42 N. J. L. 476 ; New Or- 
 
792 REAL PROPERTY. 
 
 While it may be conceded that no precis?e form of words is 
 necessary to constitute a mortgage, yet, there must be a 
 present purpose of the mortgagor to pledge his land for the 
 payment of a sum of money, or the performance of some 
 other act, or it cannot be construed to be a mortgage." An- 
 other expression of the same idea might assume this lan- 
 guage : An instrument clearly indicating the creation of a 
 lien, accurately describing the property affected by that lien, 
 and the amount of the debt to be secured is, in legal effect, a 
 mortgage. ° The debt is the principal thing to be considered, 
 and the mortgage is merely an incident, although a very 
 important one. The two are inseparable, and whatever dis- 
 charges the debt will discharge the mortgage, but the mort- 
 gage may be discharged without a payment of the debt." 
 
 A mortgage is, in some jurisdictions, held to be a condi- 
 tional sale, vesting the title in the mortgagee upon the non- 
 fulfillment of the condition. Another theory is that it 
 merely creates a lien on the property, to secure the payment 
 of a debt, to be enforced by foreclosure. Some courts incline 
 to take a middle ground not wholly endorsing either of these 
 positions. 
 
 a. Distinction between a mortgage and a conditional sale. The 
 test of the distinction between a mortgage and a conditional 
 sale is this : If the relation of debtor and creditor remains 
 and a debt still subsists it is a mortgage ; but if the debt be 
 extinguished by the agreement of the parties or the money 
 advanced is not by way of a loan, and the grantor has the 
 privilege of refunding, if he pleases, by a given time and 
 thereby entitle himself to a reconveyance, it is a conditional 
 sale.' 
 
 leans Nat. Bk. Assn. v. Adams, 109 Blackwell v. Harnett, 52 Tex. 326 r 
 
 U. S. 211; Peckham v. Haddock, Mack v. Wetzlar, 39 Cal. 247; 
 
 36 111. 38; Heburn v. Warner, 112 Trimm v. Marsh, 54 N. Y. 599; 
 
 Mass. 273. Glass v. Ellison, 9 N. H. 69; Brink- 
 
 ■• New Orleans Nat. Bk. Assn. v. man v. Jones, 44 Wis. 498; Hurley 
 
 Adams, 109 U. S. 211. v. Estes, 6 Neb. 386. 
 
 'Burnside v. Terry, 45 Ga. 621; '4 Kent's Com., 5th ed., 144, note 
 
 Sargent V. Howe, 21 III. 148; Bald- e; Snavely v. Pickle, 29 Gratt. 27, 
 
 win V. Jenkins, 23 Miss. 306. 34, 35 ; Slutz v. Desenberg, 28 
 
 'Vason V. Ball, 56 Ga. 268; Ohio St. 371, 376, 377; Flagg v. 
 
 Timms v. Shannon, 19 Md. 269; Mann, 14 Pick. 467, 478 ; Glover v. 
 
MORTGAGES. 793 
 
 b. Regarded as a conveyance. In Harkrader v. Leiby, 4 Ohio 
 St. 612, the court said: "It is incorrect to say that a mort- 
 gage does no more than to create a mere lien upon the prop- 
 erty. It operates as a conveyance of the estate, by way of 
 pledge or security for the debt, and gives to the mortgagee 
 the benefit of -all the doctrines applicable to bona fide pur- 
 chasers." "A mortgagee is deemed a purchaser sub modo. 
 He is so regarded every day under the statute respecting 
 fraudulent sales, and protected within the saving clause in 
 favor of subsequent purchasers.'" 
 
 c. Trust deeds in the nature of a mortgage. Deeds of trust 
 are quite generally in vogue in several of the States, and 
 have many features of availability that recommend them as 
 ample security for an investment. They take the form of an 
 absolute conveyance to a third person who is clothed with 
 the character of a trustee to sell the property conveyed, dis- 
 charge the incumbrance thereon, and reserve the balance 
 for the benefit of the grantor. These so-called deeds of 
 trust are, in legal contemplation, nothing more than mort- 
 gages, and are subject to all of the legal and equitable inci- 
 dents of a mortgage. Being trust estates they are, of course, 
 in no way liable for any indebtedness of the trustee, and his 
 death, insanity, or incapacity from any cause, in no way im- 
 pairs any rights of a mortgagor or mortgagee, as the court is 
 at all times ready to grant any relief the situation may call 
 for, either by the appointment of a new trustee, or by a 
 restraining writ upon the old one." 
 
 Payn, 19 Wend. 518, 520, 521 ; Slow- States v. Fisher, 6 U. S. 2 Cranch, 
 
 ey V. McMurray, 27 Mo. 113, 115, 2 L. ed. 304. 
 
 116; Gait V. Jackson, 9 Ga. 151, ' See, generally, on the subject of 
 
 156; Spence v. Steadman, 49 Id. trust deeds, McDoald v. Kellogg, 
 
 133, 141 ; West V. Hendrix, 28 Ala. 30 Ark. 170; Fox v. Fraser, 92 Ind. 
 
 227, 234; Riiffier v. Womack, 30 265; Fitch v. Weatherbee, no 111. 
 
 Tex. 332, 341, 342; Pitts V. Cable, 475; Union Company v. Sprague, 
 
 44 III. 103 ; Magnusson v. Johnson, 14 R. I. 452 ; Martin v. Alter, 42 
 
 73 Id. 156; Hicks V. Hicks, 5 Gill Ohio St. 94; State Bank of Bay 
 
 & J. 75, 81, 83, 86; McNamara v. City v. Chappelle, 40 Mich. 447; 
 
 Culver, 22 Kan. 661 ; Budd v. Van Lance's App. 112 Pa. St. 456; Staf- 
 
 Orden, 33 N. J. Eq. 143. ford Nat. Bank v. Sprague, 17 Fed. 
 
 'Per Nelson, Ch. J., in Frisbey Rep. 748. 
 V. Thayer, 25 Wend. 399; United 
 
;r94 real property. 
 
 A deed of trust is a modern invention by which the equity 
 of redemption is supposed to be foreclosed without the aid of 
 a court of equity, and without the vexatious and intermin- 
 able delays incident to a foreclosure suit. " 
 
 d. Absolute deeds construed as mortgages. This topic more 
 properly affiliates with the annotation in the succeeding 
 chapter of Deeds, which see. 
 
 e. Competency of parol evidence to establish the character of the 
 agreement. The Supreme Court of the United States, and the 
 Circuit and District Courts, and most of the State courts are 
 uniform in admitting parol evidence to show that an absolute 
 conveyance is in fact a mortgage." 
 
 § 295. Objects of a mortgage. "The first great object of a 
 mortgage," says Chief Justice Shaw, in Ewer v. Hobbs, 5 
 Met. 1-3, "is, in the form of a conveyance in fee, to give to 
 the mortgagee an effectual security, by the pledge or hypothe- 
 cation of real estate, for the payment of a debt, or the per- 
 formance of some other obligation. The next is to leave to 
 the mortgagor, and to purchasers, creditors, and all others 
 claiming derivatively through him, the full and entire control, 
 disposition and ownership of the estate, subject only to the 
 first purpose — that of securing the mortgagee. ' ' 
 
 So the object of a mortgage may be the payment of a debt, 
 the indemnity of a surety, or the doing or not doing any 
 other act."" 
 
 Courts treat as mortgages conveyances conditioned for the 
 support and maintenance of mortgagees or others. '^ 
 
 '" Conway's Executors V. Alexan- Lanfair, 18 Pick. 304; Erskihe v. 
 
 der, 7 Cranch, 218. Townsend, 2 Mass. 493 ; Mitchell v. 
 
 " Jones, Mortg. 3d ed., sec. 285, Burnham, 44 Me. 299 ; Wing v. 
 
 etseq.; Russell v. Southard, 53 U. Cooper, 37 Vt. 179; Lund v. Lund, 
 
 S. 12 How. 139, 13 L. ed. 927; i N. H. 41. 
 
 Peugh V. Davis, 96 U. S. 332, 24 L. " i Jones, Mort. sec. 388 ; Austin 
 
 ed. 775 ; Morris V. Nixon, 42 U. S. v. Austin, 9 Vt. 420; Fiske v. 
 
 I How. 118, II L. ed. 69; Babcock Fiske, 20 Pick. 499; Flanders v. 
 
 V. Wyman, 60 U. S., 19 How. 289, Lamphear, 8 N. H. 201 ; Daniels v. 
 
 15 L. ed. 644. Eisenlord, 10 Mich. 454; Bresna- 
 
 "2 Swift, Dig. 183; Robinson, ban v. Bresnahan, 46 Wis. 386; 
 
 Elementary Law, sec. 102; 2 Washb. Hiatt v. Parker, 29 Kan. 765 ; 
 
 Real Prop., 4th ed., 475 ; Tiedeman, Bryant v. Erskine, 55 Me. 153. 
 Real Prop. sec. 296 ; Lanfair v. 
 
MORTGAGES. 795 
 
 § 296. Classified as legal and equitable — Welsh mortgages 
 obsolete. For all practical purposes mortgages may be re- 
 garded as falling within one of two different classes. That 
 is to say, they are either legal or equitable. The first com- 
 prise the ordinary well known form of mortgage with which 
 we are so familiar. But the second class rather eludes exact 
 definition. In a vague, general sense, all mortgages may be 
 said to be equitable. But in strict legal parlance, an equit- 
 able mortgage is any lien upon real estate of a character 
 recognized in a court of equity as security for money due. 
 Instances of this grade of mortgage occur in all cases of un- 
 paid purchase money, and the term equitable mortgage is 
 also applied to that form of security created by a law when a 
 creditor, as security for his advances, takes to himself the 
 muniments of title which his debtor has, as evincive of his 
 rights. Under our recording acts, such a security is a very 
 shadowy affair. As between the parties, they are, of course, 
 perfectly valid. But as against a stranger, without notice of 
 any outstanding equities, they are the merest rubbish. 
 There are a class of text writers who cannot restrain a pro- 
 pensity to drone over a third class of mortgages known to the 
 forgotten pundits of the last century as Welsh mortgages. 
 If such securities ever rose to the dignity of forming a dis- 
 tinct class, they have succeeded in extinguishing themselves 
 most effectually, and in this country they are utterly obli- 
 vionized." 
 
 a. Vendor's lien for the purchase price. Equity adopts the 
 theory that until the payment of the price agreed upon, the 
 vendee simply holds the land in the capacity of a trustee. 
 And all persons having knowledge of such facts are bound to 
 recognize it. As between the parties the rule has every fea- 
 ture of commendation. Still it has a tendency to vest the 
 grantee or vendee with the ostensible ownership of property 
 in which he may have very limited interest. And hence, the 
 doctrine is utterly repudiated in several jurisdictions, and 
 doubted in some others." 
 
 " Angier V. Masterson, 6 Cal. 61. 599; Johnson v. McGrew, 42 la. 
 
 " The following cases sustain such 555; Payne v. Avery, 21 Mich. 524; 
 
 liens: Salmon v. Hoffman, 2 Cal. Chase v. Peck, 3: N. Y. 518; Wil- 
 
 138; Kirkham v. Boston, (>^ 111. liams v. Roberts, 5 Ohio, 35; Gor- 
 
796 REAL PROPERTY. 
 
 The Connecticut, New Hampshire, and Rhode Island deci- 
 sions seem to leave the matter in doubt. Ordinarily the lien 
 will last as long as the debt does, but it is subject to waiver, 
 and the Statute of Limitations may be relied upon to defeat 
 it. It attaches to all permanent improvements placed upon 
 the land, and is such an interest in real estate as will pass by 
 assignment. 
 
 As a creditor is at liberty to receive all the securities his 
 debtor is willing to give, if there is any evidence, which, 
 in character and amount, shows an intention to retain both 
 the collateral security and a lien for the purchase price, such 
 intention will be allowed to govern." 
 
 § 297. Essential elements. In every valid mortgage there 
 will be found several essential elements, and each of these 
 elements should appear in the instrument which is relied 
 upon as constituting a mortgage. First, There must be a 
 mortgagor, that is to say, there must be a person or corpora- 
 tion (which is nothing more than an aggregation of indivi- 
 duals), endowed with sufficient capacity to grant, convey, or 
 assign the land mortgaged. And it is a further prerequisite 
 that the person or corporation must not be laboring under 
 any legal impediment or disability. Secondly, There must 
 be a mortgagee, or a person or corporation endowed with 
 capacity to receive a grant or assignment of the land mort- 
 gaged. And, thirdly, There must be a landed estate capable 
 of being mortgaged." 
 
 A fourth essential relates to the consideration, and this 
 must be valuable or good. And lastly, the document should 
 be duly executed, delivered, and recorded." In regard to the 
 consideration necessary to uphold the mortgage it may be 
 
 don V. Bell, 50 Ala. 213 ; Bradford '« Elliott v. Platter, 43 Ohio St. 
 
 V. Marvin, 2 Fla. 463; Yarborough 198. 
 
 V. Wood, 42 Tex. 91; Willard v. "Neligh v. Michenor, 11 N. J. 
 
 Reas, 26 Wis. 540; Shall v. Cisco, Eq. 539. 
 
 18 Ark. 142. The rule is utterly "* Lawrence v. Tucker, 64 U. S- 
 
 repudiated in the following cases : 14 ; Robinson v. Brennan, 1 1 5 
 
 Steven's App., 38 Pa. St. 9; Ahrens Mass. 582; McKinster v. Babcock, 
 
 v. Odiorne, 118 Mass. 261; Phil- 26 N. Y. 378 ; Shirras v. Caig, 1 1 U. 
 
 brook v. Delano, 29 Me. 410 ; Smith S. 34. 
 
 V. Rowland, 13 Kan. 245. 
 
MORTGAGES. 797 
 
 said, that it must be grounded upon the payment of money 
 or its equivalent, or the performance of some specified obli- 
 gation. The term consideration has a fixed legal import. 
 According to Mr. Anderson, a "good consideration" some- 
 times means a consideration which is valid in point of law, 
 and it then includes a meritorious, as well as a valuable, con- 
 sideration. But it is more often used in contradistinction to 
 valuable consideration. " 
 
 a. No precise form required — rule as to acknowledgment and 
 sealing. There is no precise phraseology employed in the 
 drafting of a mortgage. If the court, without doing violence 
 to the plain import of language, can spell out of the terms 
 employed a general intent to pledge property as security for 
 the forbearance or loan of money, the transaction is, in legal 
 effect, a mortgage." Several States have adopted a statu- 
 tory form that it would be well to follow. But there can be 
 no serious objection to adopting some other form, and as 
 mortgages are always within the special cognizance of an 
 equity court, it is inconceivable that the mere failure to 
 observe the puerilities of a form — at least in a transaction of 
 this character — should operate disastrously to any merito- 
 rious litigant. Courts look at the substance not at the 
 shadow, and are not supposed to be infatuated with any par- 
 ticular aggregation of words. Quite generally the mortgage 
 should be witnessed and acknowledged, and a seal will never 
 vitiate, although not in all instances required. The rule as 
 to sealing is far from uniform, and wherever any doubt exists 
 upon the subject the safer method is to put them on." Sign- 
 ing, delivery and acceptance are all necessary."' 
 
 b. The defeasance clause examined. The terms of the defeas- 
 ance may or may not be inserted in the mortgage deed, 
 although the former method is very generally observed."' 
 
 " Anderson's Law Diet. Berkshire, 15 la. 248; Todd v. 
 
 '° Burnside v. Terry, 45 Ga. 621 ; Outlaw, 79 N. C. 235. 
 
 Deleon v. Higuera, 15 Cal. 483. ^'Tisher v. Beckwith, 30 Wis. 55; 
 
 '' Hebron v. Centre Harbor, 1 1 Bell v. Farmers' Bank, 1 1 Bush. 34 ; 
 
 N. H. 571 ; Woods v. Wallace, 22 Goodman v. Randall, 44 Conn. 321. 
 
 Pa. St. 171; Ross V. Worthington, ^'Edrington v. Harper, 3 J. J. 
 
 II Minn. 438; Vanthornilly v. Marsh, 353 ; Whitney v. French, 25 
 
 Peters, 26 Ohio St. 471; Jones v. Vt. 663 ; Warren v. Lovis, 53 Me. 463. 
 
798 REAL PROPERTY. 
 
 And if the latter is adopted the instrument which is evincive 
 of its terms should be of as high a character as the convey- 
 ance it may ultimately defeat, and should be delivered simul- 
 taneously with the mortgage deed, although it is not neces- 
 sarily under the same date." Regarding this matter of date, 
 while it is a matter of great significance, we may say that it 
 is rarely, if ever, of controlling importance. Dates are quite 
 generally subject to contradiction, and an erroneous date or 
 an impossible date does not touch the substance of the 
 matter. The presumption would be indulged that the date 
 given is correct, and that the delivery and execution both 
 occurred on that day, but this presumption may be rebutted."* 
 The vital point is to establish the real day when it was 
 given, but the date on the instrument by no means concludes 
 the inquiry." As previously stated the presumption as to 
 the date is open to explanation and rebuttal." 
 
 § 298. Covenants and their construction. In mortgages of 
 real property, and in bonds secured thereby, the following 
 or similar covenants must be construed as follows: 
 
 a. Agreement that whole sum shall become due. The words 
 "and it is hereby expressly agreed that the whole of the said 
 principal sum shall become due at the option of said mort- 
 gagee or obligee after default in the payment of interest for 
 days, or after default in the payment of any tax or 
 assessment for days, after notice and demand, ' ' must 
 
 be construed as meaning that should any default be made in 
 the payment of the said interest, the aforesaid principal sum, 
 
 '■■Richardson v. Woodbury, 43 (19 How.), 73, 15 L. ed. 525; Sweet- 
 
 Me. 206 ; Guthrie v. Kahle, 46 Pa. ser v. Lowell, 33 Me. 446. 
 
 St. 331 ; Bryant v. Cowart, 21 Ala. " Richardson v. Ellett, 10 Tex. 
 
 92; Ames V. Thompson, 70 Pa. St. 190; Dodge v. Hopkins, 14 Wis. 
 
 434. 630; Cole V. Howe, 50 Vt. 35 ; Ser- 
 
 " Morgan v. Whitmore, 6 Exch. viss v. Stockstill, 30 Ohio St. 418 ; 
 
 726; Glenn v. Grover, 3 Md. 212; Cook v. Knowles, 38 Mich. 316; 
 
 Anderson v. Weston, 6 Bing. N. C. Stockham v. Stockham, 32 Md. 
 
 296; Ellsworth V. Central R. Co. 196; Draper v. Snow, 20 N. Y. 331; 
 
 34N.J. L. 93; Sinclair V. Baggalay, McComb v. Gil key, 29 Miss. 146; 
 
 4 Mees. & W. 312; Williams v. Gately v. Irvine, 51 Cal. 72; Mc- 
 
 Woods, 16 Md. 220. Crary v. Caskey, 27 Ga. 54; 
 
 "'Raines v. Walker, T] Va. 92; Abrams v. Pomeroy, 13 111. 133. 
 United States v. LeBaron, 60 U. S. 
 
MORTGAGES. 799 
 
 with all arrearage of interest thereon, shall, at the option of 
 the said mortgagee or obligee, his executors, administrators, 
 successors or assigns, become and be due and payable imme- 
 diately thereafter. 
 
 b. In default of payment, mortgagee to have power to sell. A 
 covenant that the mortgagor "will pay the indebtedness, as 
 provided in the mortgage, and if default be made in the pay- 
 ment of any part thereof, the mortgagee shall have power to 
 sell the premises therein described, according to law, ' ' must 
 be construed as meaning that the mortgagor for himself, his 
 heirs, executors and administrators or successors, covenants 
 and agrees to pay to the mortgagee, his executors, adminis- 
 trators, successors and assigns, the principal sum of money 
 secured by said mortgage, and also the interest thereon. 
 And if default shall be made in the payment, then and from 
 thenceforth it shall be lawful for the mortgagee, his execu- 
 tors, administrators or successors to sell and dispose of the 
 same, and all benefit and equity of redemption of the said 
 mortgagor, his heirs, executors, administrators, successors 
 or assigns therein, at public auction, and as the attorney of 
 the mortgagor for that purpose duly authorized, constituted 
 and appointed, to make and deliver to the purchaser a good 
 and sufficient deed for the same in fee simple, and out of the 
 moneys arising from such sale, to retain the principal and 
 interest which shall then be due, together with the costs and 
 charges of advertisement and sale of the said premises, ren- 
 dering the overplus of the purchase money unto the mort- 
 gagor, his heirs, executors, administrators, successors or 
 assigns. 
 
 c. Mortgagor to keep buildings insured. A covenant ' ' that the 
 mortgagor will keep the buildings on the said premises 
 insured against loss by fire, for the benefit of the mort- 
 gagee, ' ' must be construed as meaning that the mortgagor, 
 his heirs, successors and assigns will keep the buildings 
 erected on the premises insured against loss or damage by 
 fire, to an amount and in a company to be approved by the 
 mortgagee, and will assign and deliver the policy or policies 
 of such insurance to the mortgagee, his executors, adminis- 
 trators, successors or assigns, and in default of so doing, 
 that the mortgagee or his executors, administrators, succes- 
 
80O REAL PROPERTY. 
 
 sors or assigns, may make such insurance and that the mort- 
 gagor will pay to the mortgagee, his executors, administrators, 
 successors or assigns, such premium or premuims so paid, with 
 interest from the time of payment, on demand, and that the 
 same shall be deemed to be secured by the mortgage. 
 
 d. Mortgagor to give further assurance of title. A covenant 
 that the mortgagor "will execute any further necessary 
 assurance of the title to said premises, and will forever war- 
 rant said title, ' ' must be construed as meaning that the mort- 
 gagor shall and will make, execute, acknowledge and deliver 
 in due form of law, all such further or other deeds or assur- 
 ances as may at any time hereafter be reasonably desired or 
 required for the more fully and effectually conveying the 
 premises by the mortgage described. 
 
 e. Covenants to bind representatives of grantor and mortgagor 
 and enure to the benefit of whom. All covenants contained in 
 any grant or mortgage of real estate binds the heirs, execu- 
 tors, administrators, sucpessors and assigns, of the grantor 
 or mortgagor, and enure to the benefit of the heirs, execu- 
 tors, administrators, successors and assigns of the grantee or 
 mortgagee in the same manner and to the same extent, and 
 with like effect as if such heirs, executors, administrators, 
 successors and assigns were so named in such covenants, 
 unless otherwise in said grant or mortgage expressly pro- 
 vided. 
 
 § 299. What property may be mortgaged- Any interest m 
 real property which is capable of being transferred may be 
 mortgaged. °' But any conveyance of land, in the actual pos- 
 session of a person holding by virtue of a title hostile to that 
 of the grantor, is absolutely void. Still in the case of a 
 mortgage it is entirely competent for the grantor, having a 
 just title, to execute a mortgage on the land i^ot withstanding 
 some person is in adverse possession of the same land. Such 
 is the New York rule, but the doctrine is repudiated in Ala- 
 bama." 
 
 '«Dorsey v. Hall, 7 Neb. 460; Neligh v. Michenor, 11 N. J. Eq. 
 
 Hagar v. Brainard, 44 Vt. 294 ; 539. 
 
 Crane v. Turner, 7 Hun (N. Y.), 357 ; ^' Vandiveer v. Stickney, 75 Ala. 
 
 Sinclairv. Armitage, 12 N. J. Eq. 174; 225. 
 
MORTGAGES. 8oi 
 
 a. Rule as to after-acquired property. A mortgage having 
 the "after-acquired property" clause will be construed as 
 covering not only the property owned by the mortgagor, but 
 all property subsequently acquired which comes within the 
 description of the mortgage/" And this is true, not only as 
 to property to which it acquires the legal title, but also as to 
 that to which it acquires only a full equitable title." 
 
 A mortgage on after-acquired property is an executory 
 agreement for the non-performance of which the mortgagee 
 may recover compensation in damages as against the mort- 
 gagor ; but as against the grantee of the purchaser at the 
 sale, the lien of the mortgage cannot embrace property not 
 acquired by the mortgagor. °" 
 
 § 300. Parties to a mortgage. A good general rule as to 
 parties may be thus stated : Any person having a grantable 
 interest in real estate, and who is not under any legal disa- 
 bility, may execute a valid deed or mortgage." And it is 
 well settled that such a person may delegate his right to 
 another by virtue of a power of attorney. , Where such an 
 instrument authorizes the execution of a deed or mortgage, 
 it must be in writing, subscribed, acknowledged, or proved, 
 certified and recorded in like manner as powers of attorney 
 for grants of real property. For further discussion see ' ' Par- 
 ties to a Lease," ante, p. 257. 
 
 § 301. Description of the mortgaged premises. As there is 
 an extended discussion of this topic in our subsequent chap- 
 
 ^^ Pennock v. Coe, 64 U. S. (23 Watki-ns v. Wyatt, 9 Baxt. (Tenn.), 
 
 How.), 117 (16: 436); Dunham v. 250; Jessup v. Bridge, 11 la. 572; 
 
 Cincinnati, P. & C. R. Co. 68 U. Morrill v. Noyes, 56 Me. 458 ; Wil- 
 
 S. (I Wall.), 254 (17 : 84) ; Galves- liams v. Winsor, 12 R. 1. 9 ; Phillips 
 
 ton, H. & H. R. Co. v. Cowdry, 78 v. Winslow, 18 B. Mon. (Ky.), 431 ; 
 
 U. S. (II Wall.), 459 (20: 199); Beall V. White, 94 U.S. 382; Uni- 
 
 Thompson v. White Water Valley ted States v. New Orleans R. Co. 
 
 R. Co. 132 U. S. 68 (33 : 256). 79 U. S. 362 ; Benjamin v. Elmira 
 
 '■Toledo, D. & B. R. Co. v. Ham- R. Co. 49 Barb. 441, 54 N. Y. 675 ; 
 
 ilton, 134 U. S 296 (33: 905); Can- McCaffrey v. Woodin, 65 N. Y. 
 
 tral Trust Co. of N. Y. v. Knee- 459. 
 land, 138 U. S. 414. ^'Campbell v. Tompkins, 32 N. 
 
 '^Metropolitan Nat. Bank v. St. J. Eq. 170; Payne v. Patterson, Tj 
 
 Louis Dispatch Co. 149 U. S. 436; Pa. St. 134. 
 
 51 
 
802 REAL PROPERTY. 
 
 ter on deeds, it is only necessary in this connection to say 
 that the same rules obtain as to the description of the premi- 
 ses mortgaged as would be resorted to in determining the 
 location of the same premises had they been conveyed by a 
 ■warranty deed. The pivotal concept in each case is to deter- 
 mine the intent of the party. And the tendency is to con- 
 strue the mortgage, in this particular, against the mortgagor 
 as he should not be heard to say that a description framed or 
 dictated by himself was incapable of indefinite location. " 
 
 The cases even go to the extent of holding that the omission 
 of the name of the State or county or township in which the 
 mortgaged premises are situate will not, necessarily, invali- 
 date the mortgage, provided there are other substantial ele- 
 ments of identification that may be resorted to with confidence. 
 
 § 302. Fixtures as between mortgagor and mortgagee. 
 
 Some of the most exasperating questions in the entire law of 
 real property have arisen in controversies about fixtures, and 
 it is said that the question, whenever it arises, between mort- 
 gagor and mortgagee, is to be governed by the same rules 
 that are applied in the case of a grantor and grantee." 
 
 It becomes very apparent that the uncertainty infesting 
 this topic can be greatly harmonized if we cease to look for 
 any arbitrary formula that will fit all cases. 
 
 § 303. Validity of the debt secured. Validity of the mort- 
 gage may be said to depend entirely upon the validity of the 
 debt. If the latter is one condemned by the policy of law, 
 the mortgage given to secure it is a nullity. '° But where a 
 mortgage is given to secure a series of debts, some of which 
 are recognized by law, while others are not, those having a 
 legal status will enjoy the security of the mortgage only." 
 
 ^*See Tryon v. Sutton, 13 Cal. '* Clove v. Lambert, 78 Kan. 224.; 
 
 490 ; Murphy v. Hendricks, 57 Ind. Voorhees v. McGinnis, 48 N. Y. 
 
 593; Ryan v. United States, 136 U. 278; see ante, sec. 15, et seq. 
 
 S. 68 ; Thompson v. Building Asso. ^'Shaw v. Carpenter, 54 Vt. 155 ; 
 
 103 Ind. 279; Starling v. Blair, 4 Gilbert v. Holmes, 64 111. 548; 
 
 Bib. 288 ; Usina v. Wilder, 58 Ga. Feldman v. Gamble, 26 N. J. Eq. 
 
 189; Cowley V. Shelby, 71 Ala. 122; 494. 
 
 Bunker v. Anderson, 32 N. J. Eq. " Shaw v. Carpenter, j«/r«. 
 35 ; Slater v. Breese, 36 Mich. 77. 
 
MORTGAGES. 803 
 
 § 304. Mortgage for future advances. The immense expan- 
 sion of trade and commerce, in recent years, has sanctioned 
 the validity of a mortgage given to secure future advances. 
 And it would seriously embarrass all forms of commercial 
 transaction were the courts to adopt a view hostile to this 
 form of security. They have become a recognized form of 
 security, and have many features of commendation that give 
 them great repute, especially with banking institutions and 
 all those who are directly concerned in loaning money. 
 Whatever arguments may be brought against the practice, 
 nothing can at this late day impeach the validity of such a 
 transaction, or find any substitute for it in the various forms 
 of hypothecation." 
 
 § 305. Material alterations. It is scarcely necessary to state 
 that any material alteration in the recitals of the mortgage, 
 without the consent of both parties, will have the effect of 
 annulling the instrument. This principle permeates the 
 entire scheme of our municipal law so far as regards any 
 written instrument. There is no necessity for stating that a 
 document once solemnly attested, and formally delivered, is 
 incapable of alteration at the mere whim or caprice of any one 
 of the parties. " It is needless to pursue this topic further, as 
 it has long been a matter of settled law." 
 
 § 306. Reformation of mortgages. Discussion of this topic 
 is reserved for our subsequent chapter on Deeds, where will 
 also be found some pertinent remarks upon the subject of 
 cancellation. 
 
 § 307. Execution, delivery, acceptance and recording. 
 
 These several topics also form extended ground for inquiry 
 
 ^* Ackerman V. Hunsicker, 85 N. ''Brown v. Straw, 6 Neb. 537; 
 Y. 43 ; Hubbard v. Savage, 8 Conn. Hunt v. Gray, 35 N. J. L. 227 ; 
 215; Collier v. Falk, 69 Ala. 58; Trigg v. Taylor, 27 Mo. 245 ; Stew- 
 Hook v. Creamer, 34 N. J. Eq. 181 ; art V. Preston, i Fla. 10; Lee v. 
 Berry V. O'Conner, 33 Minn. 29; Alexander, 9 B. Mon. 25; Green- 
 Nelson V. Boyce, 7 Marsh, 401; field Sav. Bk. v. Stowell, 123 Mass. 
 Bank of Utica v. Finch, 3 Barb. 196. 
 
 Ch. 293; Collins v. Castile, 13 Me. "See 2 Rice, Evidence, 850-9. 
 254; Mix V. Coles, 20 Conn. 420. 
 
804 REAL PROPERTY. 
 
 and critical investigation in the chapter on Deeds. And con- 
 siderations of space alone make it undesirable to duplicate 
 any discussion beyond the absolute necessities of the case. 
 
 § 308. Rights of mortgagee in possession. A mortgagee in 
 possession is under a duty to use the premises and property 
 like an ordinary, prudent owner. He is bound to make 
 necessary repairs. He cannot improve the owner out of his 
 equity, nor can he unnecessarily, when the security is ample, 
 encroach upon the body of the property pledged. He is 
 bound to derive a reasonable income from the use of the prop- 
 erty, and apply it first to keeping the interest extinguished, and 
 the surplus to the extinguishment of the principal. He can 
 legally no more commit waste than can the mortgagor. He is 
 chargeable for loss incurred by his willful default. He is not 
 entitled to receive anything for his own personal services." 
 He must account for waste committed by him while in 
 possession." 
 
 § 309. Liability of the grantee of mortgaged premises. 
 
 There can be no quarrel with the proposition that the mere 
 conveyance of land, subject to a mortgage lien, does not 
 create a personal liability on the part of the grantee in the 
 absence of some express assumption of the payment. In 
 
 •"Pom. Eq. Jur., sees. 1215-1217, v. Paige, 14 Me. 132 ; Hubbell v. 
 
 and notes ; Barnett v. Nelson, 54 Moulson, 53 N. Y. 225 ; Harris v. 
 
 la. 41, 37 Am. Rep. 183; Sanders Haines, 34 Vt. 220.) He may make 
 
 V. Wilson, 34 Vt. 318 ; French v. such repairs as are reasonably 
 
 Baron, 2 Atk. 120; Moore v. Cable, necessary for the due preservation 
 
 1 Johns. Ch. 385, I L. ed. 780, and of the estate, but will not be allowed 
 
 note ; Benedict v. Gilman, 4 Paige, to charge for such repairs as are 
 
 58, 3 L. ed. 340, and note; Currier v. merely for his own convenience, 
 
 Webster, 45 N. H. 226 ; 2 Jones, especially if such repairs are in the 
 
 Mortg. sees. 1123, 1125. nature of permanent improvements, 
 
 " It is well settled that if the any other rule would make it more 
 
 mortgagee can obtain possession of difficult for the mortgagor to re- 
 
 the mortgaged premises peaceably deem the property. (Raynor v. 
 
 he will not be dispossessed until Drew, 72 Cal, 307 ; Quinn v. Britian, 
 
 his entire claim is liquidated. (Tall- Hoff Ch. (N.Y.) 353; 3 Pom. Eq. Jur. 
 
 man v. Ely, 6 Wis. 244; Den v. 205; Johnson v. Hosford, no Ind. 
 
 Wright, 7 N. J. L. 175; Pace v. 578.) 
 Chadderdon, 4 Minn. 499 ; Bussey 
 
MORTGAGES. 805 
 
 such instances the mortgagee may, of course, resort to the 
 property mortgaged, but on sale of the premises for a less 
 sum than the face of the mortgage (with interest and costs 
 added), he is without claim against the grantee for any part 
 of the deficiency. The debt follows the land only to the 
 extent of the value of the land, and the result is that any 
 person is at liberty to purchase the mortgaged premises with- 
 out becoming personally responsible for any part of the claim 
 against the property, provided appropriate expressions appear 
 in the conveyance which evidence the intention to exempt 
 him from liability." Such a conveyance leaves the grantor 
 principally liable for a deficiency." 
 
 § 310. Junior encumbrancers and the principle of subrogation. 
 
 A junior encumbrancer is entitled to redeem a prior mort- 
 gage. And the redeeming party, who is not himself liable 
 as a principal debtor, but who is compelled to redeem for the 
 protection of his own lien upon the mortgaged premises, is 
 entitled to subrogation to the rights of the senior mort- 
 gagee." 
 
 After tendering to a senior mortgagee the amount due, and 
 demanding an assignment of the senior mortgage, a junior 
 mortgagee may, by bill in equity, compel such assignment." 
 
 One who has a junior lien by mortgage or judgment is en- 
 titled, upon paying the prior mortgage, to be subrogated to 
 the right of the mortgagee, without any assignment." 
 
 When a man pays a debt which could not properly be 
 called his own, but which it was his interest to pay, the law 
 subrogates him to all the rights of the creditor." 
 
 ^'Belmont v. Coman, 28 N. Y. Com. 162, marg. page; 2 Story Eq. 
 
 438. Jur., sec. 1023; Willard Eq. Jur. 
 
 ■" Brusse v. Paige, i Keyes, 87 ; 447 ; Burnet v. Dennison, 5 Johns. 
 
 Tillotson V. Boyd, 4 Sandf. 516; Ch. 35; Rosevelt v. Bank of 
 
 Munnay V. Smith, I Duer. 412. Niagara, Hopk. 579; Averill v. 
 
 « Jenkins v. Continental Ins. Co. Taylor, 4 Seld. 44. 
 
 12 How. Pr. (N. Y.) ee ; Dauchy v. "' Ellsworth v. Lockwood, 42 
 
 Bennett, 7 How. Pr. (N. Y.) 375 ; N. Y. 89; Cowley v. Shelby, 71 
 
 Russell V. Howard, 2 McLean, 489. Ala. 122 ; Bacon v. Goodnow, 59 
 
 "Pardee v. Van Auken, 3 Barb. N. H. 415; Lucking v. Wesson, 25 
 
 534; Fell V. Brown, 2 Bro. C. C. Mich. 443. 
 
 276; Stonehewer v. Thompson, 2 ** 2 Bouvier, Law. Diet. 417. 
 Atk. 440 ; 3 P. Wms. 331 ; 4 Kent's 
 
8o6 
 
 REAL PROPERTY. 
 
 No contract is necessary upon which to base the right, for 
 it is founded upon principles of equity and benevolence, and 
 may be decreed where no contract exists." 
 
 a. Volunteers cannot invoke the doctrine. Sheldon, in his 
 work on Subrogation, sec. 240, says : ' ' The doctrine of sub- 
 rogation is not applied for the mere stranger or volunteer 
 who has paid the debt of another without any assignment or 
 agreement for subrogation being under no legal obligation to 
 make the payment, and not being compelled to do so for the 
 preservation of any rights or property of his own. "*° 
 
 "A stranger or volunteer, as those terms are used with 
 reference to the subject of subrogation, is one who, in no 
 event resulting from the existing state of affairs, can become 
 
 "Cottrell's Appeal, 23 Pa. St. 
 294 ; Mosier's App., 56 Pa. 80, 93 
 Am. Dec. 783 ; McCormick v. 
 Irwin, 35 Pa. 117; Iron City Tool 
 Works V. Long, 44 Phila. Leg. Int. 28 ; 
 Snelling v. Mclntyre, 6 Abb. N. C. 
 469; Sidener v. Pavey, 77 Ind. 241 ; 
 Bright V. Boyd, i Story C. C. 478; 
 Everston v. Central Bank of Kan- 
 sas, 33 Kan. 352 ; Hammond v. 
 Barker, 61 N. H. 53 ; Payne v. 
 Hathaway, 3 Vt. 212; Gans v. 
 Thieme, 93 N. Y. 225 ; Dixon, Sub- 
 rogation, p. 165 ; Bolman v. Leh- 
 man, 74 Ala. 507 ; Twombley v. 
 Cassidy, 82 N. Y. 155; i Jones, 
 Mortg., sec. 874, C ; Milholland v. 
 Tiffany, 64 Md. 455 ; Keener, Quasi 
 Cont. 388; Graff's Estate, 139 Pa. 
 76; Cottrell's App., 23 Pa. 294; 2 
 Beach, Modern Eq. Jur. 869; Peo- 
 ple's Nat. Bank of Charleston v. 
 Epstin, 44 Fed. Rep. 404 ; Wallace's 
 Estate, 59 Pa. 405 ; Hoover v. 
 Epler, 52 Pa. 524 ; Blackburn Bldg. 
 Soc. V. CunlifFe, L. R. 22 Ch. Div. 
 61 ; Wenlock v. River Dee Co., 
 L. R. 19 Q. B. Div. 155 ; Maurer's 
 App. 86 Pa. 380. 
 
 " Iowa Homestead Co. v. Des 
 
 Moines Nav. & R. Co. 84 U. S., 17 
 Wall. 153, 21 L. ed. 622; Langley 
 v. Chapin, 134 Mass. 82; Moody v. 
 Moody, 68 Me. 155; Allegheny 
 Valley R. Co. v. Dickey, 131 Pa. 
 93 ; Parker's App., 8 Watts. & S. 
 449; Forest Oil Co.'s App., 118 Pa. 
 145 ; McCleary's App., 20 W. N. C. 
 547 ; Downer v. Wilson, 33 Vt. 1 ; 
 Wilson V. Soper, 44 Me. 118; Re 
 North River Constr. Co. 38 N. J. 
 Eq. 433 ; Woods v. Gilson, 17 111. 
 218; Wolff V. Walter, 56 Mo. 292; 
 Cockrum v. West, 122 Ind. 372 ; 
 Gerdine v. Menage, 41 Minn. 417 ; 
 Oury V. Saunders, 77 Tex. 278 ; 
 Dutcher v. Hobby, 10 L. R. A. 
 472, 86 Ga. 198 ; Lockwood v. 
 Marsh, 3 Nev. 138 ; Clark v. Clark, 
 58 Miss. 68 ; Emigrant Industrial 
 Sav. Bank v. Clute, 33 Hun, 82 ; 
 Bolman v. Lohman, 74 Ala. 507 ; 
 Everston v. Central Bank of Kan- 
 sas, 33 Kan. 352 ; Gilbert v. Gilbert, 
 39 Iowa, 657 ; Chaffe v. Oliver, 39 
 Ark. 531 ; Levy v. Martin, 48 Wis. 
 198 ; Flannery v. Utley (Ky.), Dec. 
 6, 1887 ; Fry v. Hamner, 50 Ala. 52; 
 .lEtna L. Ins. Co. v. Buck, 108 Ind. 
 174. 
 
MORTGAGES. 807 
 
 liable for the debt, and whose property is not charged with 
 the payment thereof and cannot be sold therefor." 
 
 § 311. Merger and its incidents. Merger is that operation 
 of law which extinguishes a right by reason of its coinciding 
 with another right of greater legal worth, in the same person. 
 By "operation of law" is meant that it may take place inde- 
 pendently of the wishes of, or the intention of the parties ; 
 and by "greater legal worth" is meant that one right in 
 estimation of law, though not necessarily in fact, is of higher 
 value than the other." The whole title, legal as well as 
 equitable, must unite in one and the same person before 
 there can be a "merger."" 
 
 It is sometimes said that this principle of merger is not 
 favored by courts of equity and that the estates will be kept 
 separate whenever the interests of the parties so require." 
 Undoubtedly this last half of the proposition is true, but the 
 shallow dogmatism of the first half must be quite apparent. 
 It affords one of many instances where the chronic habit of 
 our text writers to perpetuate from age to age some hoary 
 fable about real estate, results in the expose of a pure piece 
 of idiocy. A court of equity has no special antagonism to 
 the principles of merger. True, it will restrain its operation 
 where fraud or injustice spring from such a result, but it 
 will restrain the operation of the Statute of Frauds for the 
 same reason, and yet we have never heard that these courts 
 were specially given to antagonizing those celebrated stat- 
 utes. In multitudes of cases the courts of equity will deny 
 the operation of some well settled legal principle, but always 
 in the furtherance of justice and to repel oppression." 
 
 a. Rule where intention is not expressed. If there is no ex- 
 pression of the intention at the time, then all the circum- 
 
 " Rapalje and Lawrence Law Gresham v. Ware, 79 Ala. 192 ; 
 
 Diet, title " Merger." Lowman v. Lowman, 118 111. 682; 
 
 '^ Jordan v. Cheeney, 74 Me. 362. Lovrein v. Humboldt Safe Deposit 
 
 5s Smith V. Roberts, 91 N. Y. Co. 113 Pa. St. 6; Carpenter v. 
 
 475 ; Gibson v. Crehore, 3 Pick; Gleason, 58 Vt. 244 ; Finch v. 
 
 475. Houghton, 19 Wis. 149; Duncan v. 
 
 ^ Sherwood v. Collier, 3 Dev. L. Smith, 31 N. J. L. 335 ; Fowler v. 
 
 380; Birke v. Abbott, 103 Ind. i ; Fay, 62 111. 375 ; Polk v. Reynolds, 
 
 Patterson v. Mills, 69 la. 755; 31 Md. 106; Davis v. Pierce, iq 
 
8o8 REAL PROPERTY. 
 
 stances will be considered in order to discover what is for 
 the best interests of the party. He will be presumed to 
 have intended that the charge should be kept alive or should 
 merge according to the benefit resulting from either. If a 
 merger would let in other encumbrances which he was not 
 already bound to pay, this is a circumstance almost decisive 
 of an intention not to permit a merger. "" 
 
 If, after the ownership and the charge have become united, 
 the party does any act which clearly shows that he regards 
 the incumbrance as still subsisting, this is a strong, even if 
 not conclusive, evidence of an intent that there should be no 
 merger ;'" as, for example, if he transfers the mortgage and 
 bequeaths the incumbrance in specific terms," or devises the 
 land subject to the charge. "' A devise of the land without 
 mentioning the incumbrances, is some evidence of an inten- 
 tion that it should merge." 
 
 Extinguishment and merger dififer. Merger is only a mode 
 of extinguishment, and applies to estates only under par- 
 ticular circumstances. 
 
 § 312. Assignment of mortgages. The usual mode of effect- 
 ing the assignment, especially since the very general introduc- 
 tion of the recording act, is by instrument in writing. But the 
 assignment may be by parol, although a very unsatisfactory 
 method in any veiw of the case of Kiff^. Weaver, 94 N. C. 
 274. And it has been held that the mere delivery of the 
 mortgaged security is a sufficient assignment of whatever 
 interests the mortgagee may have." However, the assign- 
 Minn. 376 ; Rumpp V. Gerkens, 59 " Blundell v. Stanley, 3 DeG. & 
 Cal. 496; Pennock v. Eagles, 102 S. 433 ; and see Wilkes v. Collins, 
 Pa. St. 290; Andrus v. Vreeland, L. R. 8 Eq. 338. 
 29 N. J. Eq. 394 ; Mallory v. Hitch- ** Hatch v. Skelton, 20 Beav. 453; 
 
 cock, 29 Conn. 127 ; Freeman v. but see for a limitatien, Johnson v. 
 Paul, 3 Me. 260; Knowles v. Car- Webster, 4 DeG. & G. 474; Astley 
 penter, 8 R. I. 548. v. Milles, i Sim. 298. 
 
 " Swinfer v. Swinfer, 29 Beav. " Swinfer v. Swinfer, supra. See 
 
 199 ; Davis v. Barrett, 14 Id. generally on this subject Pomeroy, 
 542; Hatch V. Skelton, 20 Id. Eq. Jur. 729; i Rice, Evidence, 289. 
 453 ; Clarendon v. Barham, i *» Fryer v. Rockefeller, 63 N. Y. 
 
 Younge & C. 688. 276. 
 
 "Powell V. Smith, 30 Mich. 451. 
 
MORTGAGES. 809 
 
 ment may be effected, one result is always prominent — the 
 assignee can only claim what is really due, and his interest 
 is subject to the superior equities of the mortgagor. Any 
 right which might have been enforced against the assignor 
 is equally available as against the assignee. He occupies the 
 same position, and, as a purchaser of a chose in action, he 
 must abide by the case of the person from whom he buys." 
 
 The assignee of a mortgage takes it not only subject to all 
 the equities existing between the parties to the instrument, 
 but also to all equities which third persons could enforce 
 against the assignor." 
 
 § 313. The equity of redemption and its incidents. The 
 
 humane and beneficent principles now embodied in the 
 term equity of redemption did not obtain their ascendancy 
 without a desperate struggle on the part of the common law 
 judges who could never refrain from declaring a forfeiture 
 absolute, whenever the amount due was not paid on the day 
 specified. Their animosity was further inflamed by the 
 strenuous opposition of the English chancellors who steadily 
 refused to sanction the harsh and repulsive features of a 
 common law forfeiture, and insisted upon a more liberalizing 
 policy. The result was that for a considerable period the 
 English decisions presented a series of contradictions, and 
 involved the entire topic in great confusion and uncertainty. 
 The common law courts recognized the mortgagee's interest 
 as absolute immediately on failure to pay, and acting on this 
 theory placed him in possession. The equity jurisdiction as 
 promptly, acting on the contra theory, threw him out of pos- 
 session, and this was followed by a desperate wrangle in the 
 courts which usually resulted in the triumph of the chancery 
 proceeding, and finally led to the abandonment of the com- 
 mon law view. 
 
 *' Woodruff V. Morristown Inst., Id. 88 ; Greene v. Warnick, 64 
 
 34 N.J. Eq. 174; Bush v. Lathrop, Id. 220; Crane v. Turner, 67 
 
 22 N. Y. 535 ; Tabor v. Fay, 56 Id. 437 ; Westbrook v. Gleason, 
 
 Iowa, 539. 79 Id. 23 ; Temple v. Whittier, 5 
 
 «*Bush V. Lathrop, 22 N. Y. 535; West. Rep. 144, 117 III. 282; Ran- 
 
 Schafer v. Reilly, 50 Id. 61 ; ney v. Hardy, i West. Rep. 52, 43 
 
 Union College v. Wheeler, 61 Ohio St. 157. 
 
8lD REAL PROPERTY. 
 
 "The right of redemption, which is the true indicium of a 
 mortgage, remains in the mortgagor and his representatives, 
 until it shall be foreclosed by entry or judgment, with pos- 
 session as described by law, or until, availing himself of his 
 power, the mortgagee shall have made a conveyance pursu- 
 ant to it to some one who shall intend to purchase an irre- 
 deemable estate."" 
 
 The statutory right of redemption after a sale under a 
 decree of foreclosure is a rule of property in most of the 
 States, and must be fully recognized in all instances." 
 
 § 314. Extinguishment or discharge. While it is a rule 
 fully sustained by the authorities that nothing short of full 
 payment is sufficient to discharge the mortgage debt, it is 
 also true that circumstances may be of such a character as to 
 import full payment, although the actual money has not been 
 passed. Thus, the voluntary satisfaction of a mortgage, and 
 the taking of a note signed by a third party, would be con- 
 strued into the relinquishment of a mortgage lien." And if 
 the mortgage lien is shown to have been cancelled, it cannot 
 be revived by any mere agreement of the original parties to 
 the prejudice of a judgment creditor whose lien has been 
 docketed since the mortgage was discharged. °° As to the 
 method of applying the various payments the rule is this : In 
 the absence of any specific instructions on the subject, the 
 creditor is at liberty to at first satisfy such claims as he may 
 hold against the debtor that are not secured, and any balance 
 remaining should be then applied in extinguishment of the 
 mortgage lien." 
 
 Statutory provision exists in all the States by which the 
 lien of a mortgage, so far as its record is concerned, may be 
 
 «' Eaton V. Whiting, 3 Pick. 927) ; Chicago, D. & V. R. Co. v. 
 
 (Mass.) 484. Fosdick, 106 U. S. 47 (27 : 47) : 
 
 "Brine v. Hartford F. Ins. Co. Peugh v. Davis, 96 U. S. 332 (24: 
 
 91 U. S. 627 (24 : 858) ; Swift v. 775 ; Orviss v. Powell, 98 U. S. 176 
 
 Smith, 102 U. S. 442 (26: 193); (25: 238). 
 
 Connecticut Mut. L. Ins. Co. v. ^■'Mattix v. Weand, 19 Ind. 15J. 
 
 Cushman, 108 U. S. 51 (27 : 648) ; =» Boyd v. Parker, 43 Md. 182. 
 
 Hurley v. Flint, 105 U. S. 247 (26 : " Knox v. Johnson, 26 Wis. 41 ; 
 
 986); Shillaber v. Robinson, 97 U. Niagara Bank v. Rosevelt, 9 Cow. 
 
 S. 68 (24: 967); Russell v. South- (N. Y.) 409. 
 ard, 53 U.S. (12 How.), 139 (13: 
 
MORTGAGES. 8ll 
 
 legally discharged. The almost universal method is for the 
 mortgagee to sign a certificate with all the formalities of an 
 original mortgage, which, in effect, directs the clerk or regis- 
 trar of deeds to notice, in the proper way, the discharge of 
 the mortgage upon the record. This is regarded as notice 
 to all the world that the creditor no longer depends upon 
 the mortgaged premises as a security for his claim. This 
 discharge is frequently called a ' ' satisfaction piece, ' ' and is a 
 valid conveyance under the recording acts, as it obviously 
 aifects the title to real property." There is still another 
 method of releasing the lien, and that is by a quit-claim deed 
 from the mortgagee (as grantor), to the owner of the equity 
 of redemption as grantee. This method is frequently resorted 
 to when for any reason it seems desirable to release a part of 
 the mortgaged premises.'" The case last cited decides what 
 should be good law everywhere, that a formal endorsement 
 on the back of the mortgage, if sufficiently explicit, should 
 have the same result. But the difficulty in such a case is at 
 the registry office. Such a "satisfaction piece" is not a suffi- 
 cient compliance with the statute to entitle it to the privilege 
 of recording. 
 
 A mortgage, registered or recorded, must be discharged 
 upon the record, by the recording officer, when there is pre- 
 sented to him a certificate signed by the mortgagee, his per- 
 sonal representative or assignee, and acknowledged or 
 proved, and certified, in like manner as to entitle a convey- 
 ance to be recorded, specifying that the mortgage has been 
 paid, or otherwise satisfied and discharged. The certificate of 
 discharge, and the certificates of its acknowledgment or 
 proof, must be recorded ; and a reference must be made to 
 the book and page containing such record, in the minute of 
 the discharge of such mortgage, made by the officer upon the 
 record. 
 
 § 315. Foreclosure and its incidents, a. Preliminary note. 
 It is entirely foreign to the nature and scope of this present 
 undertaking to indicate mere practice methods relating to the 
 
 '* Bacon v. Van Schoonhoven, 19 607 ; Woodbury v. Aikain, 13 111, 
 Hun (N.Y.), 158. 629; Waters v. Waters, 20 la. 363. 
 
 " See Mason v. Beach, 55 Wis. 
 
8 12 REAL PROPERTY. 
 
 procedure by which a competent tribunal seeks to enforce 
 the mortgagee's equities by means of a foreclosure decree. 
 This procedure is minutely indicated in innumerable special 
 works on practice methods. 
 
 b. The term foreclosure defined. Foreclosure is the remedy 
 pursued by the mortgagor to enforce the payment of the sum 
 due him from the mortgage and has been defined by a well 
 known legal writer as ' ' the process by which the mortgagee 
 acquires or transfers to a purchaser, an absolute title to the 
 property of which he has previously been only a conditional 
 owner, or upon which he has previously had a lien or incum- 
 brance."" All that the process really achieves is the extin- 
 guishment of a right — that of equity of redemption — and 
 the creation of an estate in another person than the mort- 
 gagor." The process has some analogies in the Justinian 
 Code and has been co-ordinate in development with the law 
 of mortgages. There are four methods of effecting this 
 result now in vogue in this country, viz : i , By equitable 
 action; 2, By entry and possession; 3, By advertisement; 
 and, 4, By process without sale or "strict foreclosure." 
 This last is a harsh and repellant remedy, seldom resorted to, 
 while statutory foreclosure is in bad repute owing to the 
 numerous and exasperating technicalities that infest the 
 practice, in fact, equitable foreclosure is by far the most 
 popular and effective method, and is all but universal; even 
 the proceeding known in the New England States as entry 
 and possession, is largely dependent upon the application of 
 equitable rules, but as it requires in most instances three 
 years to perfect a title, I should unhesitatingly condemn the 
 system as unworthy of imitation. 
 
 Two objects are sought to be accomplished in foreclosures 
 on the sale of the mortgaged property by decree — one to 
 give perfect title and apply the moneys arising from the sale 
 upon the mortgage debt ; the other, in case of deficiency, to 
 obtain a personal judgment against the parties liable there- 
 for." A court of equity has, it is said, inherent power to 
 
 ™ 2 Hilliard (Mort.), i ; Goodman "Martin v. Pond, 30 Fed. Rep. 
 V. White, 26 Conn. 317. 18 ; Duncan v. Cobb, 32 Minn. 464. 
 
 " Wiltsie, Mort. Forec. 5. 
 
MORTGAGES. 813 
 
 order a sale of the mortgaged premises for the debt inde- 
 pendent of any statute." 
 
 c. Largely regulated by statute. In most of the States stat- 
 utes have been enacted for the regulation of mortgage fore- 
 closures, giving power to the court, not only to direct the 
 sale of the mortgaged premises and to compel the delivery 
 of the possession thereof to the purchaser, but also to adjust 
 payment by the mortgagor or by any other person liable for 
 the debt of any deficiency that might remain unsatisfied after 
 the sale of the mortgaged premises, and, as in other actions, 
 to issue the necessary execution upon such judgment of defi- 
 ciency." Without statutory authority such an execution 
 could not be issued in a foreclosure against the property of 
 the mortgagor or other person liable for the deficiency 
 remaining unsatisfied after the application of the proceeds of 
 the sale to the payment of the mortgage debt." 
 
 d. The rule lis pendens. Statutory regulations universally 
 require the plaintiff, in any action affecting real property, 
 such as ejectment, foreclosure, partition and the like, to file 
 at the time of the commencement of his suit a notice of the 
 pendency of action. This is, in substance, a brief recital of 
 the nature and scope of the relief demanded together with a 
 description of the real property affected by the action. Pro- 
 vision is made for its due record in a book kept specifically 
 for the purpose, and every abstract of title should contain 
 some evidence that search has been made for notices of this 
 character. Parties are thus charged with notice that the 
 property is in litigation, and any purchase made by them is 
 subject to whatever decree is rendered in the action." 
 
 " Lansing v. Goelet, 9 Cow. 346 ; it possible for the courts to exe- 
 
 Mills V. Dennis, 3 Jolins. Ch. 367. cute their judgments and decrees. 
 
 " N. Y. Code Civ. Proc. sec. As is well said in the leading case 
 
 1627. . of Newman v. Chapman, 2 Rand. 
 
 "Stark V. Mercer, 4 Miss. (3 93: " It is founded upon the neces- 
 
 How.), 377, (1839) ; Wiltsie on sity of such a rule, in order to give 
 
 Mortgage Foreclosures, p. 722. effect to the proceedings in courts 
 
 ""■ Primary object of rule. — It should of justice. Without it the adminis- 
 
 always be borne in mind that the tration of justice might in all cases 
 
 primary object, it might almost be be frustrated by successive aliena- 
 
 said the sole object to be obtained tions of the property which was the 
 
 by the rule lis pendens, is to make subject of litigation, pending the 
 
8 14 REAL PROPERTY. 
 
 e. The final decree of sale. The plaintiff, having duly pro- 
 cured the judgment of foreclosure and sale, and entered the 
 same, is entitled to proceed to have the mortgaged premises 
 sold for the payment of his debt. A sale under such a decree 
 is, in contemplation of the law, the act of the court, although 
 it may be made through the instrumentality of some oflScer 
 designated by statute, or appointed by the court. When the 
 sale is confirmed, it becomes the act of the court, or, in other 
 words, is a judicial sale ; but until such confirmation there is 
 no judicial sale, and no title passes to the purchaser." In 
 New York, however, confirmation of the referee's report of 
 sale is not necessary to pass title. 
 
 The sale may be made by a master in chancery, a referee, 
 trustee, commissioner or sheriff ; and in the federal courts it 
 is usually made by a United States marshal, or by a referee 
 specially appointed for that purpose." Whatever name may 
 be given to the of&cer who makes the sale, he acts as the 
 agent of the court, and must report his proceeding in the 
 execution of its decrees. And it has been said that the 
 sheriff, or other officer to whom the decree of sale is com- 
 mitted, may conduct the sale, though his term of office will 
 expire before the sale can be completed.'" 
 
 f. Doctrine of relation. Under a decree of foreclosure, the 
 
 suit, so that every judgment and fully set forth by Chancellor Kent, 
 
 decree could be rendered abortive, in Murray v. Balou, i Johns. Ch. 
 
 where the recovery of specific prop- (N. Y.), 566; and in Murray v. 
 
 erty was the object. Lylburn, 2 Johns. Ch. N. Y.), 441. 
 
 The necessity of the rule is inex- The whole law on the subject, it has 
 
 orable, tempered by little or no been said, may be found in these two 
 
 consideration of conscience, be- cases, subsequent cases having 
 
 cause a relaxation of the rule, to merely exemplified and applied the 
 
 avoid harsh applications in special law as there expounded by the 
 
 cases, would defeat the object of learned chancellor. See Leitch v. 
 
 the rule itself. Within certain Wells, 48 N. Y. 585; Wiltsie on 
 
 limits, its enforcement is as irapera- Mortgage Foreclosures, p. 365. 
 
 live as the demands of military "Thorn v. Ingram, 25 Ark. 52 
 
 necessity. The very existence and (1867). 
 
 perpetuation of the courts depends " Heyer v. Deaves, 2 Johns. Ch. 
 
 upon its enforcement. (Bennettv. (N. Y.), 154, (1816). 
 
 Lis Pendens, 14.) " Union Dime Savings Inst. v. 
 
 The history and principles of the Andariese, 19 Hun (N, Y.), 310, 
 
 general doctrine of lis pendens are (1879). 
 
MORTGAGES. 815 
 
 title of the purchaser takes effect by "relation" to the date 
 of the mortgage, and supersedes any subsequent lien.'" This 
 doctrine of "relation" is a legal fiction resorted to by equity 
 courts to prevent a frustration of justice. By this method 
 an act done at one time is regarded as done at some other 
 time, nunc pro tunc, as it were. The further design is to pro- 
 tect parties deriving their interest from the claimant, pend- 
 ing proceedings for the confirmation of his title. Effect is 
 given to the confirmation as of the day when the proceedings 
 were instituted." 
 
 g. Redemption rights. Eighteen States have followed New 
 York in refusing to the mortgagor any redemption rights 
 whatever after sale on foreclosure. That event is looked 
 upon as a finality in so far as regards the debtor's interest in 
 the property. But in many other States a contrary rule 
 obtains, whereby for a period ranging all the way from four 
 months in Oregon to three years in Massachusetts the right 
 of redemption is allowed. 
 
 h. Rule as to surplus money. If there is surplus money 
 remaining after payment of the amount due on the mortgage 
 lien or incumbrance, with interest and costs, the court may 
 cause the same to be paid to the person entitled to it, and in 
 the meantime may direct it to be deposited in court.''' 
 
 '"Osterberg v. Union Trust Co. ''^ N. Y. Code Civ. Pro. sec. 1633; 
 
 93 U. S. 428. Cal. Code Civ. Pro. sec. 727. 
 
 " Lynch v. Bernal, 9 Wall. 325 ; 
 Adiar v. Mergentheim, 1 14 Ind. 305. 
 
CHAPTER XXI. 
 
 mechanics' liens. 
 
 Sec. 316. Preliminary note ; nature and object. 
 
 317. Such liens are the creation of statute; unknown to the common 
 
 law; liberally construed. 
 
 318. Rule as to filing. 
 
 319. Cannot be assigned except when. 
 
 320. Extent of the lien. 
 
 321. Rule as to priority of encumbrances. 
 
 322. When lien attaches. 
 
 323. The remedy. 
 
 324. Construction of similar statutes. 
 
 §316. Preliminary — nature and object. Legislation upon 
 the subject of mechanic's liens has been both profuse and 
 variant, and it is utterly impracticable in a work of this 
 character, to attempt anything like a symmetrical co-ordina- 
 tion of the innumerable enactments that have found their 
 way into print. The policy of the entire system has been 
 seriously questioned, and doubts have frequently been ex- 
 pressed as to whether, upon the whole, it has been for the 
 advantage of those for whom it was enacted, but the better 
 view regards the doctrine as resting upon the broad founda- 
 tion of natural equity and commercial necessity. Nothing is 
 more reasonable than that an artificer or business man should 
 have a qualified property in the thing upon which he has 
 bestowed time and labor, or with which he has incorporated 
 his materials. ' 
 
 ' ' The whole design of this statute is to render the proceed- 
 ing on the part of the mechanic or materialman, in imposing 
 and enforcing his lien, as simple as possible, and connected 
 with as little detail as may be consistent with the due pro- 
 tection of the rights of the owner, or of other parties whose 
 interests may be affected by the incumbrance created."" 
 
 ' Mochon V. Sullivan, i Mont. ' Paine v. Bonney, 4 E. D. S.(N.Y.) 
 
 470- 734- 
 
 [816] 
 
mechanics' liens. 817 
 
 Mechanics' lien may be briefly described as a species of secu- 
 rity. It is a right by which a person is entitled to obtain satis- 
 faction of a debt by means of property belonging to the person 
 indebted to him, and it attaches to property that is, or has been, 
 the subject of a transaction between the parties. They arise 
 either by operation of law or by agreement between the parties- 
 It is the special province of the equitable jurisdiction to 
 liberally treat any interest in the nature of a lien. The court 
 will proceed upon the theory that in strictness the lien is 
 not a "jus in re' or a "jus ad rem;" that is neither a property 
 in the thing itself, nor a right of action for the thing. It is 
 rather a charge upon the thing ; a right to possess and retain 
 the property, until some charge attaching to it is paid or dis- 
 charged.' 
 
 § 317. Such liens are the creation of statute — Unknown to 
 the common law. The lien of mechanics and materialmen 
 on buildings and the land upon which they are erected, 
 as security for the amount due them for work done and ma- 
 terials furnished, is the "creation of statute," and was un- 
 known either at common law or in equity.* 
 
 Statutes governing mechanics' liens are remedial, and must 
 be liberally construed.' 
 
 This proceeding is wholly statutory, and, to entitle a 
 claimant to its benefits, the recitals of the enactment must 
 be closely observed ; any substantial failure in this respect 
 will avoid the lien and the court has no authority or power 
 to sustain the proceeding, as a compliance with the require- 
 ments of the statute is necessary to confer jurisdiction, and 
 when that is omitted in any essential particular, the benefit 
 designed by the statute cannot be obtained.' 
 
 Liens of this character are in fact statutory mortgages.' 
 
 » I Story, Eq. Jur., sec. 506. 73 U. S., 6 Wall. 561 ; 18 L. ed. 84; 
 
 * Phillips, Mechanics' Liens, sec. McCoy v. Quick, 30 Wis. 521. 
 
 I, citing Davis v. Farr, 13 Pa. 167; * pjoggj-g y Omaha Hotel Co. 4. 
 
 McNeil V. Borland, 23 Cal. 144 ; Neb. 59. 
 
 Dooliner v. Rogers, 16 Mo. 340; " Brown v. New York, 6 Thomp. 
 
 Avers 'V. Revere, 25 N. J. L. 474; & C. 164; Van Loon v. Lyons, 61 
 
 Spencer v. Barnett, 35 N. Y. 94; N. Y. 22; Burrows v. Ford, 6 Id. 
 
 South Fork Canal Co. v. Gordon, 176; People v. Knowles,47 Id. 415. 
 
 ' Marion v. Skillman, 127 Ind. 130. 
 52 
 
8l8 REAL PROPERTY. 
 
 § 318. Filing. These liens may be filed and become an 
 absolute lien to the full and fair value of all such work and 
 materials to the extent of the right, title and interest then 
 existing of the owner of said premises, in favor of every 
 person or persons who shall be employed by any owner, con- 
 tractor, sub-contractor, jobber or master workman in manner 
 aforesaid. 
 
 § 319. Cannot be assigned except when. The lien under 
 statute of this character is, in general, a personal right given 
 to the mechanic, materialman and laborer, for his own pro- 
 tection, and the right to create it cannot be assigned or trans- 
 ferred to another,' unless the assignment is made for the 
 benefit of the assignor, and to be held as his agent, so that 
 the lien may be preserved.' 
 
 § 320. Extent of the lien. Mechanics may acquire a lien 
 upon the interest of the owner of real property to the extent 
 of the value of the labor done or of the materials furnished, 
 and the liens are not defeated by the fact that the owner be- 
 fore the filing of the liens has paid the contractor in full. It 
 is his duty to know that the contractor has fully indemnified 
 the laborers and materialmen, before he settles with him 
 otherwise gross injustice may be done to those who have 
 entitled themselves to remuneration." 
 
 § 321. Rule as to priority of encumbrances. The priority as 
 between mechanics' liens and mortgages is largely controlled 
 by statutory enactment in the different States." 
 
 « Daubigny V. Duval, 5 T. R. 604 ; 358; White v. Miller, 18 Pa. 52; 
 
 Caldwell v. Lawrence, 10 Wis. 332; Lonkey v. Cook, 15 Nev. 58. 
 
 Pearsons v. Tincker, 36 Me. 384. " Cheshire Provident Inst. v. 
 
 " Urquhart v. Mclvers, 4 Johns. Stone, 52 N. H. 365 ; Chadbourn v. 
 
 102; McComble v. Davies, 7 East, Williams, 71 N. C. 450; Brooks v. 
 
 5. See note to Farmers' Loan & Burlington & S. W. R. Co., loi 
 
 T. Co. V. Canada & St. L. R. Co. U. S. 443, 25 L. ed. 1057 ; Cal. Code 
 
 (Ind.), II L. R. A. 740. Civ. Proc. sec. 11 86; Shepardson v. 
 
 '"Andis v. Davis, 63 Ind. 17; Johnson, 60 Iowa, 239 ; Mass. Gen. 
 
 Clough v. McDonald, 18 Kan. Stat, chap. 150 ; Mellor v. Valen- 
 
 114; Attwood v. Williams, 40 Me. tine, 3 Colo. 258; Davis v. Bils- 
 
 409; Treusch v. Shyrock, 51 Md. land, 85 U. S. 18 Wall. 659, 21 L. 
 
 J62; Laird v. Moonan, 32 Minn. ed. 969. 
 
mechanics' liens. 819 
 
 The first mortgage given in good faith and duly recorded 
 is prior, superior and paramount to a mechanics' lien subse- 
 quently filed." It is the law of Ohio that a mortgage takes 
 effect from the date it is filed for record, and this fact controls 
 its priority." 
 
 If the premises are already incumbered by a mortgage to a 
 bona fide incumbrancer, the claim of the mechanic is subor- 
 dinate to that of the mortgagee ; and this is a well recognized 
 law governing the subject." 
 
 ■The Supreme Court of Minnesota, in the case of Meyer v. 
 Berlandi, 39 Minn. 438, i L. R. A. "JTJ, held the statute of the 
 State, in so far as it assumes to give a mechanics' lien pre- 
 cedence over prior incumbrances, to be unconstitutional and 
 void. The reasoning of the court in this opinion is to the 
 effect that such an act impairs the obligation of contracts, 
 and divests settled right of property. 
 
 § 322. When lien attaches. The lien generally attaches 
 from the commencement of the work or the furnishing of 
 materials, and continues for a limited period of time. In 
 some States, a claim must be filed in the office of the clerk 
 or prothonotary of the court, or a suit brought within a 
 limited time. On the sale of the building these liens are to 
 be paid pro rata. In some States no lien is created unless the 
 work done or the goods furnished amount to a certain speci- 
 fied sum, while in others there is no limit to the amount. In 
 general, none but the original contractors can claim under the 
 law; sometimes, however, sub-contractors have the same 
 right.'' 
 
 § 323. The remedy. The remedy is various; in some 
 States, it is by scire facias on the lien, in others it is by peti- 
 tion to the court for an order of sale ; in some the property 
 is subject to foreclosure, as on a mortgage ; in others, by a 
 common action.'" 
 
 "Coe V. New Jersey M. R. Co. 391 ; Bloom v. Noggle, 4 0hioSt. 52; 
 
 31 N. J. Eq. 127, 128; West v. Bercaw v. Cockerill, 20 OhioSt. 163. 
 
 Klotz, 37 Ohio St. 420; 2 Wood, '" Munger v. Curtis, 42 Hun, 465. 
 
 Railway Law, 292 ; Choteau v. '* 2 Bouv. Law Diet. 48. 
 
 Thompson, 2 Ohio St. 114. "See i Hill, Ab. ch. 40, p. 354; 2 
 
 " King V. Ballentine, 40 Ohio St. Bouv. Law Diet. 48. 
 
820 
 
 REAL PROPERTY. 
 
 § 324. Construction of similar statutes. When a particular 
 
 statute has been adopted in a State from the statutes of an- 
 other, after a judicial construction has been given it in such 
 last mentioned State, it is but just to regard the construc- 
 tion as having been adopted as well as the words. " 
 
 The same rule has been recognized by the Supreme Court 
 of the United States." And this, although the examining 
 court finds that upon similar language, in a statute within 
 their own sovereignty, they would place a different, or even 
 reverse construction. " 
 
 " Bond V. Appleton, 8 Mass. 472, 
 5 Am. Dec. iii; Rutland v. Man- 
 don, I Pick. 154; Com. V. Hart- 
 nett, 3 Gray, 450 ; Waterford & W. 
 Turnp. Co. v. People, 9 Barb. 167 ; 
 Campbell v. Quinlin, 4 111. 288 ; Lit- 
 tle V. Smith, 5 Id. 400; Fisher v, 
 Deering, 60 Id. 114; Langdon v. 
 Applegate, 5 Ind. 327 ; Fall v 
 Hazelrigg, 45 Id. 576, 15 Am. Rep 
 278 ; Ingraham v. Regan, 23 Miss 
 213 ; Adams v. Field, 21 Vt. 256 
 Drennan v. People, 10 Mich. 169 
 Harrison v. Sager, 27 Id. 476 
 Pangborn v. Westlake, 36 la. 546 
 Poertner v. Russell, 33 Wis. 193 
 Myrick v. Hasey, 27 Me. 9, 46 Am 
 Dec. 583; People v. Coleman, i 
 Cal. 46, 60 Am, Dec, 581 ; Bemis v 
 
 Becker, i Kan. 226 ; Walker v. Cin- 
 cinnati, 21 Ohio St. 14, 8 Am. Rep. 
 24 ; Hess v. Pegg, 7 Nev. 23 ; 
 Freese v. Tripp, 70 111. 496 ; Ex 
 parte Matthews, 52 Ala. 51 ; Brad- 
 bury v. Davis, 5 Colo. 265. 
 
 "Walker v. Marks, 84 U. S. (17 
 Wall.), 648, 21 L. ed. 744; Bailey v. 
 Magwire, 89 U. S. (22 Wall.), 215, 
 22 L. ed. 850 ; Galpin v. Page, 85 
 U. S. (18 Wall.), 350, 21 L. ed. 959; 
 Secombe v. Milwaukee & St. P. R. 
 Co. 90 U. S. (23 Wall.), 108, 23 L. 
 ed. 67 ; Burgess v. Seligman, 107 
 U. S. 20, 27 L. ed. 359 ; Bucher v. 
 Cheshire R. Co. 125 U. S. 555, 31 
 L. ed. 795. 
 
 '9 Consult, generally, Phillips on 
 Mechanics' Liens. 
 
CHAPTER XXII. 
 
 TITLE BY DESCENT. 
 
 Sec. 325. Definition and nature. 
 
 326. Object of the statutes of distributions. 
 
 327. Local laws govern the descent of real property. 
 
 328. Who may inherit — views of Professor Walker. 
 
 329. Can a patricide inherit — an extreme case cited. 
 
 330. Rule as to bastards. 
 
 a. Review of the celebrated Miller case. 
 
 331. Legal status of an adopted child. 
 
 332. Advancements. 
 
 a. How adjusted. 
 
 § 325. Definition and nature. Descent. This is the title by 
 ■which a man, on the death of his ancestor succeeds to his 
 rights of property, as his heir-at-law. It is, in effect, nothing 
 more than the doctrine of hereditary succession. As pre- 
 viously remarked, there are but two methods of acquiring 
 property now in vogue — descent and purchase. The first 
 is the method we are discussing, and the second embraces 
 every conceivable mode of acquiring property except by 
 descent. In title by descent, the heir has the inheritance 
 cast upon him, nolens volens, immediately upon the death of 
 the ancestor. The law in this instance operates in an arbi- 
 trary and compulsory way, and suicide is the only relief 
 open to the heir by which he can avoid this pitiless law of 
 inheritance.' Descent of real property in this country is 
 regulated almost entirely by statutory provisions. 
 
 § 326. The objects of the Statutes of Distributions. In 
 
 Edwards v. Freeman, 2 P. Wms. 442, Lord Raymond says : 
 
 'The Louisiana cases hold that of many of the States, and by the 
 the heir may formally renounce his statute now in force in England, 
 inheritance. (Tyler on Ejectment and adverse 
 
 The doctrine of " descent cast '' enjoyment, 87.) 
 has been abrogated by the statutes 
 
 [821] 
 
822 REAL PROPERTY. 
 
 "The Statute of Distributions makes such a will for the 
 intestate as a father, free from the partiality of affections, 
 would himself make ; and this I call a parliamentary will. ' ' 
 So, in Garland v. Harrison, 8 Leigh. (Va.), 368, Parker, J., 
 said, in regard to the Virginia Statute of Descents, that "the 
 intention was to make such a will for the intestate as, if he 
 had died testate, he would have been most likely to have 
 made for himself," and again, that "its obvious policy was 
 to follow the lead of the natural affections, and to consider 
 as most worthy the claims of those who stand nearest to the 
 affections of the last occupant. It ought, therefore, at all 
 times to be liberally construed in favor of those to whom the 
 intestate himself, had he made a will, might be supposed to 
 be most favorable, without reference to common law rules or 
 feudal disabilities. ' ' 
 
 § 327. Local laws govern the descent of real property. All 
 
 questions of the distribution and descent of real estate must 
 be determined by the law of the jurisdiction in which the 
 property is situated. Among a great mass of authorities 
 which sustain this proposition are Boyce v. St. Louis, 29 Barb. 
 650 ; Dawes v. Boylston, 9 Mass. 337, 6 Am. Dec. 72 ; Bryan v. 
 Moore, 11 Mart. (La.), 26, 13 Am. Dec. 347, and authorities 
 cited in note; 3 Am. & Eng. Encyclop. Law, p. 566; Alston 
 V. Abston, 15 La. Ann. 137; Potter v. Titcomb, 22 Me. 300 ; 
 Elliott V. Minto, 6 Madd. Ch. 16 ; Chapman v. Robertson, 6 Paige, 
 627, 3 L. ed. 1 128, 31 Am. Dec. 264. 
 
 § 328. Who may inherit — Views of Professor Walker. 
 
 When heirs take by descent, they take as tenants in common. 
 Posthumous children may inherit. Bastards can inherit and 
 transmit inheritance from the mother. Children born before 
 marriage and acknowledged after, and children born during 
 a marriage void in law, are legitimate, and may inherit. 
 Aliens can inherit and transmit inheritance. Actual seizin 
 of the ancestor is not necessary. Males are not preferred to 
 females, except in case of husband and wife. Descent per 
 capita is where all the heirs in the same degree take alike. 
 Descent per stirpes is where the heirs are of different degrees ; 
 and the children of those dead take together the shares of 
 
TITLE BY DESCENT. 823 
 
 their deceased parents. It extends no further than to chil- 
 dren and their issue, brothers and sisters and their issue, 
 and the brothers and sisters of the ancestor from whom the 
 estate came, and their issue. Ancestral property is realty 
 which came to the intestate by descent or devise from a now 
 dead ancestor, or by deed of actual gift from a living one ; 
 there being no other consideration than that of blood. Non- 
 ancestral property is realty which came to the intestate in any 
 other way, and personalty. Ancestral property passes as 
 follows: I, To the children and their issue, however 
 remote ; 2 , To the husband or wife relict for life ; 3, To the 
 brothers and sisters and their issue, however remote, 
 whether of the half blood or the whole blood, provided they 
 be of the blood of the ancestor; 4, To the ancestor from 
 whom it came, if living; 5, To the ancestor's children, and 
 their issue; then to the ancestor's husband or wife relict if 
 a parent of the decedent, for life; then to the ancestor's 
 brothers and sisters, and their issue; then to the half 
 brothers and sisters of the intestate and their issue though 
 not of the blood of the ancestor ; 6, To the next of kin of the 
 intestate, being of the blood of the ancestor, determined by 
 the rule of the civil law; 7, To the State. Non-ancestral 
 property, including personalty, descends as follows: i, To 
 the children and their issue, however remote; 2, To the 
 intestate's husband, or wife relict; 3, To the brothers and 
 sisters of the whole blood, and their issue, however remote ;" 
 4, To the brothers and sisters of the half blood and their 
 issue, however remote ; 5, To the father, then to the mother ; 
 6, To the next of kin of the blood of the intestate ; 7, To the 
 State. ° 
 
 'Jenks V. Langdon, 21 Ohio St. has made a will without providing 
 
 362. for a posthumous child, such a will 
 
 ^Walker, Am. Law, p. 403. is in some States, as in Pennsyl- 
 
 Posthumous child. — One born af- vania, revoked pro tanto by impli- 
 
 ter the death of its father ; or, when cation. (4 Kent's Com. 506 Dig. 
 
 the Caesarian operation is per- 28, 5, 92 ; Ferriere, Com. h. t.; 
 
 formed, after that of the mother. Domat, Lois Civiles, part 2, liv. 2 
 
 Posthumous children are entitled t. i, s. i ; Marl. Rep. h. t; 2 Bouv. 
 
 to take by descent as if they had Inst. n. 2158; 2 Bouvier's Law Diet. 
 
 been born at the time of their de- 358. 
 
 ceased ancestor. When a father 
 
824 REAL PROPERTY. 
 
 § 329. Can a patricide inherit ? — An extreme case cited. 
 
 The rules regulating the descent of property allow the heirs 
 of a patricide even to inherit the estate acquired by him 
 through this atrocious crime, acknowledged to have been per- 
 petrated solely for the purpose of securing the estate. In a 
 recent case the Supreme Court of Pennsylvania awarded an 
 estate to the heirs of one Carpenter, who had murdered his 
 father solely for the purpose of securing the property,' It is 
 difficult to understand upon what principle of natural justice 
 courts exclude innocent progeny of illicit intercourse from 
 an inheritance through the father but will allow that same 
 father to inherit although branded with the awful crime of 
 patricide. 
 
 The pitiless precision with which the rules regulating the 
 devolution of real property are enforced, is strikingly 
 instanced in the recent case of Owens v. Owens, 100 N. C. 2.0,0, 
 where the wife had been convicted of the murder of the hus- 
 band. The court recognized her right to dower in the estate 
 left by her victim, and it is extremely difficult to see just why 
 this ruling is not correct. Some extenuating circumstances 
 might be shown, that would afford ground for executive 
 pardon, in which case it would be against public policy to 
 leave the widow dependent upon charity for her support, 
 even where she is allowed, in a certain sense, to reap the 
 benefit of her crime by receiving her dower interest. I am 
 clearly aware that this proposition is revolting to every sense 
 of natural justice, and I would only place such a theory upon 
 the ground of public policy. The case referred to was cited 
 and doubted in Riggs v. Palmer, 115 N. Y. 506, where the 
 court of last resort refused to recognize any right to the 
 inheritance in a grandson who had murdered his grandfather 
 in order to secure the estate. It should be added, however, 
 that in the case last cited, both Danforth and Giay dissented, 
 and held with the North Carolina court, that there should be 
 no disturbance of the rules regulating the succession. Obvi- 
 ously, if the murderer suffers the death penalty, he gains 
 nothing by his crime ; and if the circumstances justify the 
 interference of the pardoning power, the exercise of that 
 
 ■* Carpenter's App., 170 Pa. St. 203. 
 
TITLE BY DESCENT. 825 
 
 power must be considered as based upon sufficient reason. 
 In which event, to restore the murderer to society, without 
 his rights of inheritance is, perhaps, to subject him to a 
 mendicant's existence at the expense of others. I must 
 assume that he could only obtain employment in a brief and 
 intermittent way, that he is generally shunned by the com- 
 munity, that few avenues are open to him for individual 
 effort, and that strangers to the very blood he has shed are 
 reaping the advantage of his crime. It is inevitable that 
 some one must have that advantage of that crime, and, harsh 
 as it may seem, what is there in reason or logic, that should 
 prevent the innocent offspring of such murderer from receiv- 
 ing through him the ancestral estate. Personal preference 
 would suggest such legislation as would secure to his pos- 
 terity at least, his inheritable rights. I admit the question 
 one of extreme perplexity, but there is always a ' ' next best 
 thing" in every emergency. 
 
 § 330. Rule as to bastards. Legitimation by subsequent mar- 
 riage. A child born out of lawful wedlock, and legitimated 
 by the subsequent marriage of his parents, carries the status 
 of legitimacy with him wherever he goes, and as a legitimate 
 child is entitled to inherit real property belonging to his 
 father, although that property may be located in another 
 State than the one where the legitimization occurred. This 
 principle was directly established for the first time in this 
 country in the celebrated case of Miller v. Miller, 91 N. Y. 
 320.= 
 
 Bastard. A bastard and his issue cannot take, under the 
 Statute of "Distributions" or "Descent and Distribution," 
 from his mother's collateral kindred." They can inherit and 
 transmit inheritance from the mother. 
 
 a. Review of the celebrated Miller case. Bastards may inherit 
 when legitimated by the subsequent marriage of the parents. 
 By far the most celebrated case involving the question of 
 what status is accorded an ante-nuptial child whose parents 
 subsequently intermarry is that of Miller v. Miller, 91 N. Y. 3 1 5 . 
 This case has attracted wide attention, and was most stub- 
 
 'See Rice on Probate Law, 96- ' Pratt v. Attwood, 108 Mass. 40. 
 553; Ross V. Ross, 129 Mass. 243. 
 
826 REAL PROPERTY. 
 
 bornly fought in all its stages by counsel of exceptional abil- 
 ity. The General Term of the Supreme Court refused to 
 sanction the proposition that the status of legitimacy, which 
 was accorded to the plaintiff by the law of Pennsylvania (in 
 which State he was born, and where his parents subse- 
 quently intermarried), followed him into the State of New 
 York, where the subsequent marriage of the parents of a child 
 born out of lawful wedlock did not endow him with the status 
 of legitimacy. The devolution of real property situate in the 
 State of New York must be governed exclusively by the lex loci 
 rei sites. And in contemplation of law, as interpreted in that 
 jurisdiction, the plaintiff was.still a filius nullius — an illegiti- 
 mate. The Court of Appeals, after the most mature delibe- 
 ration, overthrew the conclusion of the Supreme Court, and 
 utterly repudiated the reasoning upon which it was founded, 
 and held that the status of legitimacy, having been once 
 affixed to a citizen of this country by the laws of a sister 
 State, that status followed him into every jurisdiction into 
 which he may come, and invested him with all the rights 
 and privileges he had previously acquired under the law of 
 that particular State. This case must always stand as one 
 of the beacon lights on this subject.' 
 
 In the later case of Ross v. Ross, 129 Mass. 243, Chief Jus- 
 tice Gray cites and comments upon every case up to that 
 date (1880), and after an exhaustive discussion of the whole 
 subject, comes to the conclusion that the particular reasons 
 that influenced the English court in holding, in Doe v. Var- 
 dill, that an heir to land in England must be actually born in 
 wedlock, do not apply in this country, and that a person 
 declared to be a legitimate child of another, by the law of 
 the State of the domicil, must be held to have all the rights 
 of a legitimate child wherever he goes. 
 
 An examination of these cases will show that the contrary 
 result in England was attempted to be justified by the lan- 
 guage of the statute, so called, of Merton, 20 Hen. Ill, chap. 
 9, which it was claimed, negatively enacted that the English 
 
 'The elaborate discussions of the Vardill, 2 Clark & F. 571, 7 Clark 
 English courts in Doc v. Vardill, & F. 895. 
 5 Barn & C. 438 ; Birtwhistle v. 
 
TITLE BY DESCENT. 827 
 
 heir must be born in lawful wedlock. Lord Brougham, in 2 
 Clark & F. 582, and again in 7 Clark & F. 914, combats this 
 position with arguments that the courts of New York and 
 Massachusetts seemed to think unanswerable.' 
 
 § 331. Legal status of an adopted child. The case of 
 Ross v. Ross, 129 Mass. 243, is particularly instructive on 
 the question of the inheritable rights and legal status of 
 adoptive children. The opinion is exhaustive, and cites 
 in support of the main argument several well considered 
 cases. It sustains all the contentions of the celebrated Miller 
 case, and holds that the act of adoption — under the formulas 
 of the place of domicile — confers certain inalienable rights 
 that follow the child so adopted and enable him to inherit 
 real estate as the true heir of his adopting parents. 
 
 ' ' An adopted child becomes entitled to succeed to the estate 
 of the adopting parent in the same manner as if it had been 
 a child of the blood of such parent, ° and it has been held that if 
 an adopted child dies before its adopting parents, its children 
 will take by right of representation in the same manner as if 
 it had been a natural child." But the adopted child becomes 
 heir to the adopting parent only ; if the law permits adoption 
 by the husband without the assent of his wife, the child so 
 adopted becomes the heir of the husband alone, and sustains 
 no relation to and is not heir of the wife." And, indeed the 
 general effect of the decisions is to deny the right of the 
 adopted child to succeed to the estate of any member of the 
 adopting family other than the adopting parents. So, it has 
 been hel^, that an adopted child does not succeed to the 
 estate of the adopting parents' ancestors,'" nor to the estate 
 of children born to the adopting parents." 
 
 § 332. Advancements. If a child of an intestate shall have 
 been advanced by him, by settlement or portion, real or per- 
 sonal property, the value thereof must be reckoned for the 
 
 ' Dayton v. Adkisson, 4 L. R. A. " Sunderland's estate, 60 la. 732. 
 
 488, 45 N. J. Eq. 603. '3 Keegan v. Geraghty, loi 111. 
 
 ' Barnes v. Allen, 25 Ind. 222. 26 ; cited from 24 Am. & Eng. 
 
 '" Place V. Klink, 51 Ga. 220. Ency. of Law, 424. 
 " Barfihizel v. Ferrell, 47 Ind. 335. 
 
828 REAL PROPERTY. 
 
 purposes of descent and distribution as part of the real and 
 personal property of the intestate descendible to his heirs 
 and to be distributed to his next of kin ; and if such advance- 
 ment be equal to or greater than the amount of the share 
 ■which such child would be entitled to receive of the estate of 
 the deceased, such child and his descendants shall not share 
 in the estate of the intestate ; but if it be less than such 
 share, such child and his descendants shall receive so much, 
 only, of the personal property, and inherit so much only, of 
 the real property, of the intestate, as shall be sufficient to 
 make all the shares of all the children in the whole property, 
 including the advancement, equal. The value of any real or 
 personal property so advanced, shall be deemed to be that, if 
 any, which was acknowledged by the child by an instrument 
 in writing ; otherwise it must be estimated according to the 
 worth of the property when given. Maintaining or educat- 
 ing a child, or giving him money without a view to a portion 
 or settlement in life is not an advancement. An estate or 
 interest given by a parent to a descendant by virtue of a 
 beneficial power, or of a power in trust, with a right of selec- 
 tion, is an advancement. 
 
 a. How adjusted. When an advancement to be adjusted 
 consisted of real property, the adjustment must be made out 
 of the real property descendible to the heirs. When it con- 
 sisted of personal property, the adjustment must be made out 
 of the surplus of the personal property to be distributed to 
 the next of kin. If either species of property is insufficient 
 to enable the adjustment to be fully made, the deficiency 
 must be adjusted out of the other." 
 
 "Laws of New York, chap. 547 (1896). 
 
CHAPTER XXIII. 
 
 TITLE BY PURCHASE. 
 
 Art. I. Limitation and adverse possession. 
 
 Sec. 333. Nature and scope of title by prescription. 
 
 334. Founded on public policy. 
 
 335. The Statute of Limitations in its relations to adverse possession. 
 
 a. Saving clauses. 
 
 336. The rule as to intention stated. 
 
 337. Presumptions arising from lapse of time and notorious posses- 
 
 sion. 
 
 338. Actual residence not necessary, but occupancy must be open 
 
 and notorious. 
 
 339. Time required to perfect the title. 
 
 340. Cannot affect title of the government. 
 
 341. Continuity and privity of possession required. 
 
 342. Constructive adverse possession. 
 
 343. The doctrine of " tacking. " 
 
 344. What evidentiary facts are pertinent. 
 
 345. What constitutes color of title. 
 
 a. Not necessarily founded on a written instrument. 
 
 b. Generally a question of law for the court to decide. 
 
 § 333- Nature and scope of title by prescription. Title by- 
 prescription is a right which a possessor of land acquires by- 
 reason of his adverse possession during a period of time 
 fixed by la-vv, and where it does not originate in fraud, and is 
 under a claim of right or color of title. Prescription is a 
 legal fiction to quiet ancient possession. It rests upon the 
 presumption that there was a grant which by lapse of time 
 (usually twenty years), has become lost. The presumption 
 is rebuttable. The doctrine is broader than that of a Statute 
 of Limitations, although based upon analogous principles of 
 repose to society.' 
 
 ' Anderson's Law Diet., tit. "Pre- tosh, 133 Mass. 226; Thomas v. 
 scription;" citing Burdell v. Blain, England, 71 Cal. 458; Bozeman v. 
 66 Ga. 170; Folsom v. Freeborn, 13 Bozeman, 82 Ala. 391. 
 R. L 205 ; Brookline v. Mackin- 
 
 [829] 
 
830 REAL PROPERTY. 
 
 Title by prescription rests largely upon the theory that no 
 person will submit to a deprivation of his rights for the period 
 prescribed by the Statute of Limitations — usually twenty 
 years — without making an attempt to assert those rights. 
 And there is the further presumption that the possession of 
 property for so long a period is by virtue of some previous 
 grant which has been lost or destroyed." The term prescrip- 
 tion is most frequently applied to easements. ° But in popu- 
 lar parlance, it has been quite generally confounded with 
 title by adverse possession. 
 
 § 334- Founded on public policy. The whole doctrine of 
 prescription is founded on public policy. It is a matter of 
 public interest that title to property should not long remain 
 uncertain and in dispute. 
 
 These prescriptive rights indelibly impress themselves 
 upon every title obtained by adverse possession, and the idea 
 of adverse possession is, on the other hand, indelibly im- 
 pressed with the notion of some set limit, such as is imposed 
 by the recitals of the various Statutes of Limitation. I am 
 far from asserting that adverse possession, title by prescrip- 
 tion, and the Statute of Limitations are co-ordinate topics. 
 On the contrary, I am fully aware of their very divergent 
 meaning and attributes. But I do assert that in any well 
 digested conception of adverse possession, we instinctively 
 associate the period of limitation and the nature and scope of 
 the prescriptive right with the term "adverse possession." 
 The three, in their entirety, comprise our matured and full 
 blown theory of what adverse possession is, and of the legal 
 conceptions upon which it is grounded. 
 
 §335- The statute' of limitations in its relation to adverse 
 possession. The statute of limitations is highly favored 
 under all judicial systems, as a statute intended to quiet con- 
 troversy, settle titles, and extinguish fraud. Such statutes 
 are eminently, and emphatically "statutes of repose," and 
 have been adopted with substantial uniformity by all our 
 States. They impose diligence on, and vigilance in him 
 who is entitled to bring an action. But for its beneficial 
 
 ' Edson V. Munsell, 10 Allen 'See anfe, sect. 90. 
 
 (Mass.) 568. 
 
TITLE BY PURCHASE. 83 1 
 
 functions the courts would be vexed with endless litigation 
 over moribund claims and Silurian titles, that would subvert 
 all elements of value in real property. The principle that 
 they embody was of slow gestation in the English law, but 
 its obvious advantages became widely recognized, and both 
 the English and American courts are fully committed to the 
 principles involved in such enactments.* In brief, they are 
 not to be evaded by construction," and courts are not bound 
 to give them that construction which will operate more pre- 
 judicially to those whose remedies and rights are to be for- 
 feited by them, but rather in favor of the right which in all 
 such cases is imperiled." 
 
 a. Saving clauses. Statutes of Limitation usually contain 
 saving clauses in favor of persons under any disability, such 
 as coverture, infancy, lunacy and the like, and the time of 
 the statute does not run during the continuance of the disa- 
 bility. As a general rule, such saving clauses apply only to 
 cases where the disability existed at the time when ouster 
 occurred, or adverse possession commenced, and the right of 
 action accrued.' 
 
 § 336. The rule as to intention stated. One who by mis- 
 take occupies for twenty years or more land not covered by 
 his deed, with no intention to claim title beyond his actual 
 boundary, wherever that may be, does not, therefore, acquire 
 title by adverse possession to land beyond the true line. ' 
 
 * La Frombois v. Jackson, 8 Cow. ' Mercer v. Selden, i How. 
 
 589; Reformed Church v. School- (U. S.) 37; 17 Peters, 61; Lewis 
 
 craft, 65 N. Y. 134; Bell v. Morri- v. Barksdale, 2 Breck. Marsh. 436; 
 
 son, I Pet. (U. S.) 360; United Walden v. Gratz, i Wheat. 292; 
 
 States V. Wiley, 11 Wall. 508, 513; Roberts v. Moore, 9 Am. Law Reg. 
 
 Spring V. Gray, 5 Mass. (C. C.) 26 ; Hayman v. Keally, 3 Cranch's 
 
 523; Phillip V. Pope, 10 B. Monr. C. C. 325 ; Seawell v. Bunch, 6 
 
 (Ky.) 163; McCarthy v. White, 21 Jones' Law, 197; Tracy v. Ather- 
 
 Cal. 495; Dickenson v. McCamy, 5 ton, 36 Vt. 503; Reimer v. Stuber, 
 
 Ga. 486; Gautier v. Franklin, i 20 Penn. St. 458; Stephens v. Mc- 
 
 Tex. 732 ; Gorman v. Judge of Ne- Cormick, 5 Bush (Ky.), i8i. 
 
 wago Circuit, 27 Mich. 138. » Brown v. Gay, 3 Me. 126; Ross 
 
 'United States v. Wilder, 13 v. Gould, 5 Id. 204; Lincoln v. 
 
 Wall. 251. Edgecomb, 31 Id. 345 ; Worcester 
 
 " Elder v. Bradley, 2 Sneed (Tenn.), v. Lord, 56 Id. 266, 96 Am. Dec. 
 
 247- 456; Dowv. McKinney, 64Me. 138. 
 
832 
 
 REAL PROPERTY. 
 
 We are aware that the soundness of this doctrine has been 
 questioned. It has been said that the possession is not the 
 less adverse because the person possessed intentionally, 
 though innocently, and the further objection has been made 
 that it introduces a new principle, by means of which the 
 stable evidence of visible possession under a claim of right is 
 complicated with an inquiry into the invisible motives and 
 intentions of the occupant." 
 
 § 337- Presumptions arising from lapse of time and noto- 
 rious possession. The postulate we are called upon to sup- 
 port is this : Where the evidence discloses that proprietary 
 rights and privileges have been exercised without objection 
 or demur for a long period of time (usually twenty years), 
 there is a legal presumption that such rights repose upon 
 grant, devise or license, and are of lawful origin, and the law 
 will presume a conveyance from lapse of time;"" as a deed," 
 or a lease," and title to property generally from possession '° 
 
 ' French v. Pearce, 8 Conn. 439, 
 21 Am. Dec. 680; Wood, Lim. Act, 
 sec. 263, and authorities cited. 
 
 Note. — A frequent recurrence to 
 elementary truths in any science is 
 the greatest safeguard against 
 error, and in the ultimate analysis 
 of the doctrine of adverse posses- 
 sion the distinctive element which 
 supports the rule above stated at 
 once becomes apparent. Indeed, 
 it is aptly suggested in the familiar 
 test imposed by Bracton : " Qiiae- 
 rendum est a judice quo animo hoc 
 fecerit." (Co. Litt. 153b ; Macdonel 
 V. Weldon, 8 Mod. 55.) The inquiry 
 must be, quo animo is the posses- 
 sion taken and held } 
 
 '» Field V. Brown, 24 Gratt. (Va.) 
 74 ; Brown v. McKinney, 9 Watts 
 (Pa.), 565 ; Valentine v. Piper, 22 
 Pick. (Mass.) 85 ; Jackson v. Mc- 
 Call, 10 Johns. (N. Y.) 377 ; Fitz- 
 hugh V. Croghan, 2 J. J. Marsh, 
 429; Rooker v. Perkins, 14 Wis. 
 
 79; Frost v. Brown, 2 Bay, 133; 
 Marr v. Gilliam, i Coldw. 488 ; 
 Grimes v. Bastrop, 26 Tex. 310; 
 Taylor v. Watkins, 26 Id. 688; 
 Rhodes v. Whitehead, 27 Id. 304 ; 
 Tinkham v. Arnold, 3 Me. 120; 
 Brattle Square Church Proprs. v. 
 BuUard, 2 Met. (Mass.) 363. 
 
 " Hepburn v. Auld, 9 U. S. 5 
 Cranch, 262, 3 L. ed. 96 ; Weather- 
 head V. Baskerville, 52 U. S. 11 
 How. 329, 13 L. ed. 717 ; Townsend 
 V. Downer, 32 Vt. 183 ; Newman v. 
 Studley, 5 Mo. 291 ; Blair v. Marks, 
 27 Mo. 579 ; Chiles v. Conley, 2 
 Dana, 22. 
 
 'i* Sellick V. Starr, 5 Vt. 255. 
 
 '^ Birmingham v. Anderson, 40 
 Pa. 506 ; Youngman v. Linn, 52 Id. 
 413; Duke V.Thompson, 16 Ohio, 
 35 ; Society Prop. Gosp. v. Young, 
 2 N. H. 310; Cambridge v. Lexing- 
 ton, 17 Pick. 222 ; Fritz v. Bran- 
 don, 78 Pa. 342 ; Jackson v. McCall, 
 10 Johns. (N. Y.) 377; Casey v. 
 
TITLE BY PURCHASE. 833 
 
 Independently of positive statute law, such a possession 
 aflfords a violent presumption that the claimants to the land 
 acquiesce in the claim of the possessor, or that they forbear 
 for some substantial reason to controvert his claim or to dis- 
 turb him in his quiet enjoyment. Secret possession will not 
 -do, as publicity and notoriety are necessary as evidence of 
 notice, and to put adverse claimants upon inquiry. Mere 
 casual occupation is not sufhcient, but adverse and continuous 
 possession is." 
 
 § 338. Actual residence not necessary, but the occupancy 
 must be open and notorious. Actual residence of the claim- 
 ant on the land is not usually deemed necessary to constitute 
 an adverse possession, but it is required by statute in some 
 of the States. But in every case the occupation must be 
 open and notorious, showing an intention to claim owner- 
 ship. It should be of such a character — so defiant and 
 assertive — that the true owner may be supposed to have 
 knowledge of it.'° 
 
 Possession must be continuous, but is not broken by the 
 death of the possessor. 
 
 § 339- Time required to perfect the title. As to the length 
 of possession which the plaintiff must show in order to sus- 
 tain his title, the statutes of the several States differ. In 
 most of them adverse possession, to give the right of action 
 as against the holder of the legal title, must have continued 
 for twenty years." This limit expands to twenty-five years 
 
 Inloes, I Gill. 430; Berthelemy v. '■■ Armstrong v. Morrell, 14 Wall. 
 
 Johnson, 3 B. Mon. (Ky.) go ; Mc- 145. 
 
 Corry v. King, 3 Humph. 267; '"Thompson Sch. Dis. v. Lynch, 
 
 Hoey V. Furman, i Pa. 295 ; Jackson 33 Conn. 330 ; Benge v. Creagli, 21 
 
 V. Moore, 13 Johns. (N. Y.) 516; Ala. 151; Ellicott v. Pearl. 35 N. S. 
 
 Alexander V. Walter, 8 Gill (N. Y.), 412; Faught v. Holloway, 50 Me. 
 
 239 ; Lenior v. Rainey, 15 Ala. 667 ; 24. 
 
 McCall V. Doe, 17 Ala. 533 ; Sparks '« Jackson v. Oltz, 8 Wend. (N. Y.) 
 
 V. Rawls, 17 Id. 211; Wilson v. 440; Holtzapple v. Phillibaum, 4 
 
 Glenn, 68 Id. 383 ; Hanford v. Wash. C. C. 356 ; Carroll v. Mays, 8 
 
 Fitch, 41 Conn. 486; Crow v. Mar- Dana, 178; Chiles v. Conley, 9 Id. 
 
 shall, IS Mo. 499; Colvin v. War- 385; Cannon v. Phillips, 2 Sneed. 
 
 ford, 20 Md. 358; Frantz v. Ireland, 2H ; Abel v. Hutte, 8 Rich. 42. 
 66 Barb. (N. Y.) 386. 
 
 S3 
 
834 REAL PROPERTY. 
 
 in Michigan, while under the Texas statutes it is but two 
 years. As the period is determined by statutes, which are 
 liable to change, it will not be advantageous to attempt to 
 give the time fixed in the several States. The computation 
 of the time begins when the invasion of the owner's right 
 begins." But no length of enjoyment short of the term of 
 prescription gains any right or raises any presumption in 
 favor of the user. " 
 
 § 340. Cannot affect the title of the Federal government. 
 
 While legal title may be lost by the true owner, and be ac- 
 quired by any one holding adversely for twenty years, " yet, 
 where the legal title is in the United States, the Statute of 
 Limitations raises no bar to the action. Mere possession 
 of the land, though open, exclusive and uninterrupted, for the 
 period mentioned, creates no impediment to a recovery by 
 the government and, of course, none to a recovery by one 
 who, within that period, receives its conveyance. '° 
 
 And through analogous principles the title to a public 
 highway cannot be acquired by adverse possession." In 
 New York adverse possession to bar the people must con- 
 tinue forty years."'' 
 
 § 341. Continuity and priority of possession required. If 
 
 the continuity of possession be broken, either by fraud or a 
 wrongful entry, the protection given by the statute is lost." 
 There must not be a break of title between successive hold- 
 ers." If within the period of limitations the premises have 
 been abandoned by the tenant, or by those holding under 
 him, or ander whom he claims, the tenant cannot maintain 
 
 "Branch v. Doane, 17 Conn. "Baker v. Oakwood, 123 N. Y. 
 
 402; s. c. 18 Id. 233; Crosby v. 16. 
 
 Bessey, 49 Me. 543 ; Polly v. Mc- '" Burgess v. Gray, 16 How. 48 ; 
 
 Call, 37 Ala. 29. Doe v. Johnston, 92 U. S. 343. 
 
 >» Campbell V. Smith, 3 Halst. (N. ''Dillon, Municipal Corp. par. 
 
 J.), 140; Oilman v. Tilton, 5 N. H. 530; i Am. & Eng. Ency. of L. 297. 
 
 231; Haight V. Price, 21 N. Y. 241 ; '^La Framboise v. Jackson, 8 
 
 Lawton v. Rivers, 2 McCord (S. C.) Cow. 589, 18 Am. Dec. 463 ; People 
 
 445; Sherwood v. Vliet, 20 Wis. v. Clark, 10 Barb. (N. Y.), 120. 
 
 441 ; Coe V. Wolcottsville Manf. '' Francisco v. Fulde, 37 Cal. 349. 
 
 Co. 35 Conn. 175; Hastings v. ''' Thompson v, Kauffeit, no Pa. 
 
 Merriam, 117 Mass. 245. St. 209. 
 
TITLE BY PURCHASE. 835 
 
 his defense under the statute," and if his occupation has been 
 interrupted in any way within twenty years there can be no 
 title." 
 
 The adverse possessor must not yield nor surrender his 
 possession under the pressure of any legal procedure instituted 
 to oust him, which he can successfully resist, and if he does 
 so, and an entry adverse to him is made, the continuity of 
 his possession will be broken. 
 
 § 342. Constructive adverse possession. A constructive 
 adverse possession will extend over the whole of the tract 
 included in the color of title, though but part be actually 
 occupied." But where a large tract of land, covered by the 
 color of title, is divided into lots, the adverse possession of 
 one lot will not extend over the others." 
 
 § 343- The doctrine of " tacking." Where several persons 
 enter on land in succession, the several possessions cannot be 
 regarded as making a continuous possession without the pres- 
 ence of "privity in their estates." This is regarded as indis- 
 pensable to authorize several successive owners to tack 
 together the whole period of the adverse possession of all. 
 The "privity" mentioned, exists between two successive 
 adverse holders, when the latter takes under the earlier, as 
 in case of descent, will, grant, or voluntary conveyance." 
 
 To make the possession of several successive occupants a 
 continuous adverse possession a privity of estate must be 
 shown between such occupants." 
 
 " Pollingsworth v. Sherman, 81 J., in Den v. Hunt, 20 N. J. L. 
 
 Va. 668. 487. 
 
 2'Stillwell V. Foster, 80 Me. 333. "Sherin v. Brackett, 36 Minn. 
 
 " Woods V. Banks, 14 N. H. loi ; 152; Hollingswortli v. Sherman, 
 
 Jackson v. Camp, 1 Cow. 605 ; supra. 
 
 Munro v. Merchant, 28 N. Y. (i » Potts v. Gilbert, 3 Wash. C. C. 
 
 Tiff.), 9 ; Thompson v. Cragg, 24 475 ; Shuffleton v. Nelson, 2 Sawy. 
 
 Tex. 582; Schultz v. Lindell, 30 540; Doe v. Campbell, 10 Johns. 
 
 Mo. 310; Hinchman V. Whetstone, 475; Wood, Lim. Act, sec. 271; 
 
 23 111. 185; Prescott V. Nevers, 4 Sawyer v. Kendall, 10 Cush. 241; 
 
 Mason, 330. Angell, Limitations, sec. 418, and 
 
 "Jackson v. WoodruflF, i Cow. cases there cited; Sedgw. & W. 
 
 277 ; People v. Livingston, 8 Barb. Trial of Title to Lands, sec. 745, 
 
 253 ; but see remarks of Whitehead 746, and cases cited. 
 
836 REAL PROPERTY. 
 
 § 344. What evidentiary facts are pertinent. The payment 
 of taxes may be shown in support of adverse possession and 
 such payment, while in no sense conclusive, is "powerful 
 evidence" of a claim of right," or it may be shown by the 
 acts and declarations of the parties such as visible and substan- 
 tial enclosure, the erection of buildings, digging a well, and 
 other outward indications of proprietorship."'' 
 
 § 345- VVhat constitutes color of title ? In Brooks v. Bruyan, 
 35 111- 393 > in an action of ejectment, where the defense was 
 adverse possession under the Statute of Limitations, with 
 color of title, the court, by Beckwith, J., said: "Any instru- 
 ment having a grantor and grantee, and containing a descrip- 
 tion of the lands intended to be conveyed, and apt words for 
 their conveyance, gives color of title to the lands described. 
 The law presumes that all men act in good faith, until there 
 is some evidence to the contrary ; and in the absence of evi- 
 dence, color of title is presumed to have been so acquired. ' ' 
 Its strength or weakness is no moment." 
 
 Color of title may be founded upon a judgment or decree 
 of court or upon a written instrument, as a deed of convey- 
 ance, which, if good in form, and duly executed, and pro- 
 fessing to convey the title to lands, gives the grantee color of 
 title, whether in fact it gives a good title or not." 
 
 a. Not necessarily founded 071 a written instrument. I wish in this 
 connection to italicize one fact that has proved a rock of offense 
 to many of my predecessors. Too frequently they leave the 
 student under the impression that some written instrument 
 is necessary to constitute color of title. In the vast majority 
 of instances reliance is placed upon some document. But, 
 
 '• Ewing V. Bernett, 36 U. S. 41, for twenty years, is binding and 
 
 54; Farrar V. Fessenden, 39 N. H. conclusive. (Sheldon v. Atkinson, 
 
 26S ; Paine v. Hutchings, 49 Vt. 38 Kan. 14; Walker v. Simpson. 80 
 
 314; Cornelius v. Giberson, 25 N. Me. 143; Fisher v. Bennehoff, 121 
 
 J. L. 36. 111. 426 ; Cleveland v. Obenchain, 
 
 '2 Ewing V. Bernett, 36 U. S. 53 ; 107 Ind. 591.) 
 
 Dibble v. Rogers, 13 Wend. 536. '' Wright v. Matteson, 18 How. 56. 
 
 It has been held, and it may be ^■t Edgerton v. Bird, 6 Wis. 527; 
 
 regarded as a rule of property Brooks v. Bruyn, 35 111. 394; 
 
 that a division line established by Hodges v. Eddy, 38 Vt. 327; 3 
 
 parol agreement, if acquiesced in Washb. Real Prop. 138. 
 
TITLE BY PURCHASE. 837 
 
 color of title may rest upon a parol gift accompanied by pos- 
 session and a survey and plat. Or it may rest upon open 
 and notorious acts showing the extent of the boundaries of 
 the land claimed, and indicating an intention to regard the 
 occupant as the owner by such unequivocal acts as would 
 create an estoppel." 
 
 It is settled law, quite beyond the reach of legal contro- 
 versy, that one entering upon real estate as donee under a 
 parol gift claiming ownership, and asserting such claim for 
 a period of twenty years, during which time his occupancy 
 is open, exclusive, adverse, and uninterrupted, will be con- 
 sidered to have a perfect title." 
 
 b. Generally a question of law for the court to decide. What 
 constitutes color of title is solely a question of law for the 
 court, but if this question is so implicated with the cognate 
 question good faith, it may become a question to be sub- 
 mitted to the jury. 
 
 TITLE BY PURCHASE.— (Co«^zV2a^^.) 
 
 Art. II. Estoppel. 
 
 Sec. 346. Nature and scope of the doctrine. 
 
 347. Office of estoppel. 
 
 348. Foundation of the rule. 
 
 349. Estoppel in pais — uses of. 
 
 350. Effects of declarations or admissions. 
 
 351. Silence, when fatal. 
 
 352. The element of fraud considered. 
 
 353. Not applied to parties under disability. 
 
 § 346. Nature and scope of the doctrine. It is a principle 
 that has come down to us unsuspected and unchallenged 
 from the remote antiquities of the Roman law, that a grantee 
 will not be heard to deny the validity of a mortgage to which 
 his deed recites that the conveyance to him is subject." 
 
 Indeed, it has been affirmed that the entire development 
 of the modern doctrine of estoppel, with all of its innumera- 
 
 "* See Atkinson v. Patterson, 46 Duff v. Learey, 146 Mass. 533 • 
 
 Vt. 750; Rannels v. Rannels, 52 Comins v. Comins, 21 Conn. 413; 
 
 Mo. 108 ; Cooper v. Ord, 60 Id. International Bank v. Fife, 95 Mo. 
 
 420. 118. 
 
 ^* Pope V. Henry, 24 Vt. 560 ; ^' Howard v. Chase, 107 Mass. 249. 
 
838 REAL PROPERTY. 
 
 ble ramifications, originated in this assertion of the Roman law. 
 But our English ancestors were quick to improve upon it, 
 and by encroachments, irresistible and gradual as those of a 
 glacier, they fastened a multitude of salutary reforms upon 
 the law of pledges, mortgages, deeds, and the like, until at 
 this day we find our entire jurisprudence permeated with 
 this principle of estoppel, which certain writers never tire of 
 stigmatizing as an " oppressive obscuration of truth. ' ' 
 
 § 347. OfBce of estoppel. The office of estoppels at law is 
 like that of injunctions in equity, to preclude rights that can- 
 not be asserted consistently with good faith and justice, and 
 prevent wrongs for which there might be no adequate 
 remedy." 
 
 § 348. Foundation of the rule. In Dickerson v. Colgrove, 100 
 U. S. 578, 580, it is said: "The vital principle of estoppel is 
 that he who by his language or conduct leads another to do 
 what he would not otherwise have done shall not subject such 
 person to loss or injury by disappointing the expectations 
 upon which he acted. Such a change of position is strictly 
 forbidden. It involves fraud and falsehood, and the law 
 abhors both. This remedy is always applied so as to pro- 
 mote the ends of justice. It is available only for protection, 
 and cannot be used as a weapon of assault. It accomplishes 
 that which ought to be done betweeen man and man, and is 
 not permitted to go beyond that limit. It is akin to the prin- 
 ciple involved in the limitation of actions, and does its work 
 of justice and repose where the statute cannot be invoked." 
 
 It has been observed that a title by estoppel is where 
 equity, and in some cases the law, in order to accomplish the 
 purposes of justice which cannot otherwise be reached, draws 
 certain conclusions from the acts of one party in favor of 
 another, in respect to the ownership of lands, which it does 
 not allow the former to controvert or deny."' 
 
 Estoppel by deed extends to persons claiming under the 
 
 ^ Van Rensselaer v. Kearney, ii '^ i Washb. Real. Prop. 464 ; see, 
 
 How. (U. S.), 297 ; Buckingham V. also, Titus v. Morse 40 Me. 348; 
 
 Hanna, 2 Ohio St. 551, 2 Sm. Lead. Horn v. Cole, 51 N. H. 287. 
 Cas. (7th Am. ed.), 672. 
 
TITLE BY PURCHASE. 839 
 
 person estopped in the same manner as an estoppel by record 
 does. No person can avoid his own deed by which an estate 
 has passed on the ground of his own fraud in executing it." 
 
 §349. Estoppel in pais — Uses of. What is an equitable 
 estoppel in pais, as generally understood and applied in the 
 courts? It is usfed to preclude a party from maintaining, by 
 evidence, that which he has before expressly or tacitly 
 denied, or disproving that which he has before expressly or 
 tacitly admitted, when the other party has acted upon the 
 faith of the admission or denial in such a manner that he 
 will be injured unless the same is held conclusive." It is 
 said by Justice Selden, in Crawford^. Lockwood, 9 How. Pr. (N. 
 Y,) 550, "that it is essential to every estoppel in pais that it 
 relates to some matter of fact which has been previously 
 admitted or denied by the party claimed to be estopped. An 
 admission by a person as to the law, or as to the legal effect 
 of his conveyance, is never held to estop him. It is also 
 necessary that the fact should be one of which the party 
 claiming the benefit of the estoppel was ignorant. The 
 basis of an estoppel in pais is fraud. It is not, it is true, 
 essential that there should have been an intention to deceive. 
 But there must have been a confidence reposed, which would 
 be betrayed to the injury of one party, if the other is allowed 
 to retract his admission or denial. ' ' 
 
 It is of the essence of an estoppel in pais that the party 
 having the authority to act in the matter has knowingly 
 done an act to influence the conduct of the other, and that 
 the other has acted on the faith of that act." 
 
 § 350. Effect of declarations or admissions. Declarations 
 or admissions, expressed or implied, made for the purpose of 
 influencing the conduct of another, if the designed effect 
 ensues, are conclusive upon the party making them ; but an 
 estoppel being in its nature defensive, will not be used to 
 
 «Herm. Estoppel, 212 ; see, also, v. Belleville, 10 West. Rep. 608, 122 
 
 House V. McCormick, 57 N. Y. 111. 376; Columbus v. Columbus 
 
 310; Burtners v. Keran, 24 Gratt. St. R. Co. 10 West. Rep. 440, 40 
 
 43 ; 3 Field's Lawyer's Briefs, 209. Ohio St. 98 ; Lux v. Haggin, 69 
 
 " Shapley v. Abbott, 42 N. Y. 443. Cal. 255. 
 
 « St. Louis, A. & T. H. H. R. Co. 
 
640 
 
 REAL PROPERTY. 
 
 effectuate a gain, and will not be enforced further than is 
 requisite to protection from injury." The effect of an 
 estoppel is confined to precluding the parties from contra- 
 dicting the recital or admission on which the estoppel is 
 founded." 
 
 Evidence tending to show that a party sought to be 
 estopped is a stranger to the previous transactions, is always 
 competent. It is error to reject such evidence, as it is a car- 
 dinal principle of the law governing estoppel, either by 
 record, by deed or in pais, that the estoppel must be mutual. 
 Third parties are in a state of alienage to the entire principle 
 underlying this law of estoppel. They own no allegiance to 
 it whatever ; they can assert no rights under it, and are not 
 bound by any of the obligations it enforces." 
 
 § .351. Silence, when fatal. Evidence of a party's passivity 
 in looking on and suffering another to improve land under an. 
 erroneous impression of title without making known his own 
 claim, is always pertinent, and if effective as a means of 
 
 «Adler V. Pin, 80 Ala. 351. 
 
 ■" Philly V. Sanders, 11 Ohio St. 
 490 ; Beaupland v. Keen, 28 Pa. 
 124; Carver v. Astor, 29 U. S. (4 
 Pet.) 17 L. ed. 761. 
 
 " Sewell V. Watson, 31 La. Ann. 
 589 ; Lawrence v. Haynes, 5 N. H. 
 33 ; Whiting v. Independent Mut. 
 Ins. Co. 15 Md. 297; Blake v. 
 Tucker, 12 Vt. 39 ; Stow v. Wyse, 
 7 Conn. 214; Sheldon v. White, 35 
 Me. 370; Sargent v. Salmond, 27 
 Me. 539; Cooley v. Warren, 53 Mo. 
 166 ; State v. O'Goiman, 75 Id. 
 270; Dennie v. Smith, 129 Mass. 
 143; McWilliams v. Kalbach, 55 
 Iowa, no; Grimmet v. Henderson, 
 66 Ala. 521 ; Goodnow v. Litchfield, 
 59 Iowa, 226; Walsh v. Agnew, 12 
 Mo. 520 ; Ray v. Gardner, 82 N. C. 
 146 ; Schench v. Stumpf, 6 Mo. 
 App. 381 ; Galsgow v. Baker, 72 
 Mo. 441 ; Towsley v. Johnson, i 
 
 Neb. 95 ; Corbley v. Wilson, 71 
 111. 209 ; Schuman v. Garratt, 16 
 Cal. 100 ; Hempstead v. Easton, 
 33 Mo. 142 ; Hill V. Epley, 31 Pa. 
 331 ; Lewis v. Castleman, 27 Tex. 
 407; Wright V. Hazen, 24 Vt. 143 \ 
 Massure v. Noble, 11 111. 531 ; Nut- 
 well V. Tongue, 22 Md. 419; Wil- 
 liams V. Chandler, 25 Tex. 4 ; Doe 
 V. Errington, 8 Scott, 210; Catter- 
 lin V. Hardy, 10 Ala. 511 ; Watson 
 V. Hewitt, 45 Tex. 472 ; Simpson v. 
 Pearson, 31 Ind. i ; Wolcot v. 
 Knight, 6 Mass. 418 ; Box v. Law- 
 rence, 14 Tex. 556 ; Walton v. 
 Walton, 80 N. C. 26 ; Carter v. Ben- 
 nett, 4 Fla. 352 ; Smith v. King, 8l 
 Ind. 217; Bell v. Hoagland, 15 
 Miss. 360 ; Thomason v. Odum, 31 
 Ala. 108 ; Comstock v. Smith, 26 
 Mich. 306; Maduska v. Thomas, 
 6 Kan. 153; Dickerson v. Col- 
 grove, 100 U. S. 578, 25 L. ed. 618. 
 
TITLE BY PURCHASE. 84I 
 
 proof, will prevent such party from asserting his superior 
 title against such a ptirchaser." 
 
 The doctrine that a person remaining silent when he 
 ought in the exercise of good faith to have spoken, will not 
 be allowed to speak when he ought in the exercise of good 
 faith to remain silent, cannot be extended to a person who is 
 innocently ignorant of a fact upon which the right depends." 
 
 A party is not to be affected by statements, declarations 
 and admissions made in loose, rambling manner in his pres- 
 ence and under circumstances which do not properly allow a 
 reply ; his surroundings may be such that a denial or a state- 
 ment upon his part would be either impudent or useless, 
 and the determining factor is, was he so situated as we can 
 reasonably expect other men, under like circumstances, to 
 make some protest or answer? 
 
 His duty to speak out is largely governed by the correct 
 apprehension of these facts ; his situation is to be carefully 
 considered, and before an admission can be imputed to his 
 silence it must distinctly appear that the emergency and 
 surroundings were such as to preclude any utterance on his 
 part. 
 
 § 352. The element of fraud. The element of fraud is 
 essential, either in the intention of the party estopped, or in 
 the effect of the evidence he attempts to set up." But it is 
 not necessary to an equitable estoppel that the party should 
 design to mislead." As said by Folger, J., in Continental 
 National Bank v. National Bank of the Commonwealth, 50 N. Y. 
 
 "Kirk V. Hamilton, 102 U. S. ■"Trustees, etc., v. Smith, 118 
 
 68, 26 L. ed. 79. N. Y. 634; Continental National 
 
 •"Tone V. Columbus, 39 Ohio St. Bank v. National Bank of the 
 
 281 ; Frederick v. Missouri River, Commonwealth, 50 Id. 575 ; Blair v. 
 
 Ft. S. & G. R. Co. 82 Mo. 402, Wait, 69 Id. 113, 116; Bank v. Haz- 
 
 ^* Jones V. McPhillips, 82 Ala. ard, 30 Id. 226, 230; Galbraith v. 
 
 102, 116; Shapley v. Abbott, 42 Lunsford, 87 Tenn. 89; Wood v. 
 
 N. Y. 443, 448 ; Henshaw v. Bis- Berkshire Insurance Co. 108 Ind. 
 
 sell, 18 Wall. 255; Dorlarque v. 301, 304; Anderson v. Hubble. 93 
 
 Cress, 71 111. 380; Chandler v. Id. 570; Gillett v. Wiley, 126 111. 
 
 White, 84 Id. 435 ; Hill v. Epley, 310, 323 ; In re Bahia & S. P. Ry. 
 
 31 Pa. St. 331 ; Dezell v. Odell, 3 Co. L. R. 3 Q. B. 584. 
 Hill (N. Y.), 215 ; Matlow v. Cox, 25 
 Tex. 578. 
 
842 REAL PROPERTY. 
 
 575. 583, "it would limit the rule much within the reason of 
 it, if it were restricted to cases where there was an element 
 of fraudulent purpose. In very many of the cases in which 
 the rule has been applied, there was no more than negligence 
 on the part of him so estopped. ' ' This statement is quoted 
 with approval in Leather Manufacturers National Bank v. Mor- 
 gan, 117 U. S. 96, 
 
 § 353- Not applied to parties under disability. Parties under 
 disability, as infants and married women, are not estopped 
 unless their conduct has been intentional.'" Indeed, it is said 
 that no case has gone the length of holding a party estopped 
 by anything he has said or done while he was under age." 
 
 TITLE BY PURCHASE — (Co«^z««^(/.) 
 Art. III. Etninent Domain. 
 
 Sec. 354. Definition and nature. 
 
 355. Carefully guarded and strictly construed. 
 
 356. Due process of law. 
 
 357. No absolute right to trial by jury. 
 
 358. Notice is implied in the phrase "due process of law." 
 
 359. Scope of the power. 
 
 360. What constitutes taking. 
 
 361. The mode of payment. 
 
 362. Evidence of value in condemnation proceedings. 
 
 § 354. Definition and nature. All individual title by what- 
 ever means acquired, is held in strict subordination to the 
 public right of eminent domain, which imports an absolute 
 surrender of any real property to the government, either in 
 whole or in part, whenever the public exigencies, evidenced 
 by established forms of law, demand it. Its exercise is 
 largely confided by the Legislature to some corporate body, 
 either domestic or foreign, and it must always proceed with 
 due notice to the party interested whose land it seeks to 
 condemn, and upon the unqualified tender of just compensa- 
 
 '» See Rogers v. Higgins, 48 111. " Brown v. McCune, 5 Sandf. 
 
 211 ; Oglesby Coal Co. v. Pasco, (N. Y.) 224. See, also, Lowell v. 
 
 79 Id. 164; Miles V. Lingerman, 24 Daniels, 2 Gray (Mass.), 161; Lack- 
 
 Ind. 385; Baines v. Burbridge, 15 man v. Wood, 25 Cal. 147. 
 L. Ann. 628. 
 
TITLE BY PURCHASE. 843 
 
 tion. It may be freely exercised in the first instance, but 
 exhausts its force after one application, and property once 
 condemned or appropriated by this right of eminent domain 
 cannot be again subjected to the same process instituted by 
 some other agent or representative of the State.'" 
 
 Mr. Pierce antagonizes this view of the case by assert- 
 ing that it may ' ' where such appears to be the intent of the 
 statute."" In some States express statutory provision exists 
 whereby the company can resort to further condemnation 
 proceedings in order to secure necessary accommodation. 
 But the question as to whether the use is of such a public 
 character as to warrant this extraordinary power is always 
 open to and dependent upon the decision of the courts." 
 
 § 355- Carefully guarded and strictly construed. The right 
 of eminent domain, or that right by which the sovereign 
 power, for public uses, takes and appropriates the property 
 of the citizen, is one which should be watched with great 
 vigilance. It should never be exercised except when the 
 public interest clearly demands it, and then cautiously and in 
 accordance with law. The right is one which lies dormant 
 in the statute until legislative action is had pointing out the 
 occasion, mode, conditions, and agencies for its exercise."' 
 
 Statutes conferring right of eminent domain are strictly 
 construed. " 
 
 § 356. Due process of law. ' ' No person shall be deprived 
 of life, liberty or property without due process of law, nor 
 
 *^ Mills, Em. Dora. , 58. 66 Me. 26 ; Binney's Case, 2 Bland. 
 
 53 Pierce on Railroad, 150. Ch. 99; Cox v. Tipton, 18 Mo. App. 
 
 " Id. 659; Wood Railroad Law, 479. 420; Belcher Sugar Ref. Co. v. St. 
 
 " Citing Dyckman v. New York, Louis Grain Elevator Co. 82 Mo. 
 
 5 N. Y. 434; Cooley, Const. Lim. 121 ; Watson v. Avquacksnonack 
 
 527; Allen v. Jones, 47 Ind. 438 Water Co. 36 N. J. L. 195 ; Jersey 
 
 (1874). City v. Central R. Co. 40 N. J. Eq. 
 
 ''Sutherland, Stat. Constr. sec. 417; State v. Hudson Terminal R. 
 
 387 ; Gray v. Liverpool & B. R. Co. Co. 46 N. J. L. 289 ; Re Amster- 
 
 9 Beav. 381 ; Martin v. Rushton, 42 dam Water Comrs. 96 N. Y. 351 ; 
 
 Ala. 289; Alabama G. S. R. Co. v. Lea v. Johnston, 31 N. C. 15; 
 
 Gilbert, 71 Ga. 591 ; Chicago & E. Miami Coal Co, v. Wigton, 19 Ohio 
 
 I. R. Co. v. Wiltsie, 116 111. 449; St. 560; Pittsburg & L. E. R. Co. 
 
 Spoflford V. Bucksport & B. R. Co. v. Bruce, 102 Pa. 23. 
 
844 REAL PROPERTY. 
 
 shall private property be taken for public use without just 
 compensation," are provisions of the Federal Constitution 
 which it is intended the courts shall enforce, even against 
 persons assuming to act under the authority of the govern- 
 ment." 
 
 § 357- No absolute right to trial by jury. It is true that the 
 ascertainment of just compensation is a judicial proceeding, 
 but a party has no inherent right to have such compensation 
 fixed by jury. This has been repeatedly held." 
 
 "This requirement of the Constitution is met if the trial is 
 had according to the settled course of judicial proceedings."" 
 That kind of proceedure is due process of law which is suit- 
 able and proper to the nature of the case, and sanctioned by 
 the established customs and usages of the courts." 
 
 § 358. Notice is implied in the phrase "due process of law." 
 
 " Due process of law is not confined to judicial proceedings but 
 extends to every case which may deprive a citizen of life, 
 liberty or property, whether the proceeding be judicial, 
 administrative, or executive in its nature," and, generally 
 stated, it means "an orderly proceeding, adapted to the 
 nature of the case in which the citizen has an opportunity to 
 be heard, and to defend, enforce, and protect his rights."" 
 Consistent with these principles, the property of a citizen 
 cannot be taken by the power of eminent domain without 
 some notice to the owner, or some opportunity being afforded 
 him, at some stage of the proceeding, to be heard as to the 
 compensation to be awarded him. 
 
 " U. S. V. Lee, 106 U. S. 196, 127 L. ed. 478 ; McMillen v. Anderson, 
 
 L. ed. 171. 95 U. S. 37, 41, 42, 24 L. ed. 335, 
 
 '* Kohl V. United States, 91 U. S. 336; Davidson v. New Orleans, 96 
 
 375, 23 L. ed. 452 ; United States v. U. S. 97, 104, 105, 24 L. ed. 616, 619, 
 
 Jones, 109 U. S. 513, 27 L. ed. 1015; 620; Missouri v. Lewis, loi U. S. 
 
 Great Falls Mfg. Co. v. Garland, 22, 31, 25 L. ed. 989, 992. 
 
 25 Fed. Rep. 521 ; Ames v. Lake »»£> parte Wall, 107 U. S. 265, 
 
 Superior & M. R. Co. 21 Minn. 241 ; 289, 290, 27 L. ed. 552, 562; Kansas 
 
 People V. Smith, 21 N. Y. 595. v. Ziebold, 123 U. S. 623, 637, 638, 
 
 " Walker v. Sauvinet, 92 U. S. 654, 31 L. ed. 205, 208. 
 
 90, 92, 93, 23 L. ed. 678, 679; Ken- «' Stuart v. Palmer, 74 N. Y. 191, 
 
 nard v. Louisiana, 92 U. S. 480, 23 30 Am. Rep. 289. 
 
TITLE BY PURCHASE. 845 
 
 § 359- Scope of the power. The right to take private prop- 
 erty for public uses knows no bounds, provided just compen- 
 sation be awarded, and as regards the expediency of exercis- 
 ing the power the legislature is the sole, final, and uncon- 
 trolled judge ; this being a political and not a judicial ques- 
 tion. But whether the use for which the statute proposes to 
 take the property of the citizen be public or private, is a 
 judicial question solely for the courts to decide, concerning 
 which the determination of the Legislature, while entitled to 
 great respect, is not conclusive." It is a cardinal principle 
 of American constitutional law that a legislative enactment 
 may be pronounced unconstitutional by the courts where it 
 assumes to confer power not legislative in its nature or 
 because it offends some specific provision of the National or 
 State constitution." But especially would I call attention to 
 the great case of Taylor v. Porter, 4 Hill (N. Y.), 140, where 
 Mr. Justice Bronson reviews with exhaustive learning and 
 incisive logic the various phases of the intricate and much 
 agitated question. 
 
 §360. What constitutes "taking." Eminent domain. "Tak- 
 ing cannot be limited to the absolute conversion of the realty, 
 but it is construed to include all cases where the value is 
 impaired by irreparable and permanent injury to it. The 
 direct consequences of the appropriation must be consid- 
 ered." Any permanent change in title or incumbrance on 
 property is a taking in contemplation of law and any exclu- 
 sion of the owner or partial destruction of his land is a "tak- 
 ing. " So a deposit of stone, rubbish, sand or other material 
 upon the land of an adjoining owner is a taking and requires 
 compensation at the suit of the owner." In the Pumpelly case, 
 above cited, Mr. Justice Miller employs the following sug- 
 gestive language : "It remains true that where real estate is 
 
 ^^Bankhead v. Brown, 25 la. 540, apolis R. R. Co. 29 Minn. 242; Mills 
 
 and cases cited. on Eminent Domain, 119. 
 
 «Comm V. Maxwell, 27 Pa. St. «' East. P. R. R. Co. v. Schollen- 
 
 456; Mott V. Pa. Cent. R. R. Co. berger, 54 Pa. 144; Glover v. 
 
 30 Pa. St. 9-37, Powell, 10 N. J. 211 ; Cushman v. 
 
 " Pumpelly v. Green Bay Canal Smith, 34 Me. 247 ; Hendershott v. 
 
 Co. 80 U. S. 166 ; Foster V. National Ottumwa, 46 la. 658; Cooley, 
 
 Bk. 57 Vt. 128; Wilmes v. Minne- Const. Lim. 671. 
 
846 REAL PROPERTY. 
 
 actually invaded by superinduced additions of water, earth, 
 sand and other materials, or by having an artificial structure 
 placed upon it, so as to efEectually destroy or impair its use- 
 fulness, it is a taking within the meaning of the Constitution, 
 and that this proposition is not in conflict with the weight of 
 judicial authority in this country and certainly not with 
 sound principle. ' ' These views are sustained by a number 
 of cases and must be edifying reading to some alleged jus- 
 tices who have been propagating the contra view." The 
 language in Ashley v. Port Huron, supra, merits reproduction : 
 "The right of an individual to the occupation and enjoymient 
 of his own premises is exclusive, and the public authorities 
 have no more liberty to trespass upon it than has a private 
 individual. A municipal charter never gives and never could 
 give authority to appropriate the freehold of a citizen with- 
 out just compensation, whether it be done through an actual 
 taking of it for streets or buildings or by flooding it so as to 
 interfere with the owner's rights. ' ' In Green Rapids Co. v. Jar- 
 vis, 30 Mich. 308, the court say that ' ' this is a proposition so 
 self-evident as hardly to admit of illustration by any example 
 which can be made clearer, and which does not need the sup- 
 port of authorities. ' ' 
 
 § 361. The mode of payment. Just compensation, when as- 
 certained, must always be paid in money. Money is the 
 measure of compensation. Compensation represents the 
 money value of property taken or damaged. Just compen- 
 sation can be made in no other medium." Payment need 
 not necessarily precede the condemnation. 
 
 "See Northern Trans. Co. v. land v. Willison, 50 Md. 138; Hay- 
 Chicago, 99 U. S. 635; Eaton v. v. Cohoes Co. 2 N. Y. 159. 
 Boston, C. & M. R. Co. 51 N. H. «' Dill. Mun. Corp. 4th ed. sec. 
 504; Ashley v. Port Huron, 35 612; Cooley, Const. Lira. 963; 
 Mich. 296 ; Aurora v. Reed, 57 111. State v. Ravine Road Sewer Comrs. 
 30; Pettigrew v. Evansville, 25 39 N. J. L. 665 ; Com. v. Peters, 2 
 Wis. 223; Hooker v. New Haven Mass. 125; Chesapeake & O. R. 
 Co. 14 Conn. 146; Rhodes v. Co. v. Halstead, 7 W. Va. 301; 
 Cleveland, 10 Ohio, 159; Chicago Vanborne v. Dorrance, 2 U. S. (2 
 V. Taylor, 125 U. S. 161 ; Cumber- Dall.), 304, i L. ed. 391 ; Mills, Em. 
 
 Dom. sec. 135. 
 
TITLE BY PURCHASE. 847 
 
 § 362. Evidence of value in condemnation proceedings. Any 
 evidence is competent which legitimately bears upon the 
 question of the marketable value of the property sought to 
 be condemned, and as the question of value rests mainly 
 in opinion, persons acquainted with the value are compe- 
 tent to testify on the question of damages." The market 
 value of the land taken is the amount of damage sustained, 
 and supposed future interests or value should be eliminated 
 from the consideration." The inquiry in such cases must 
 be, What is the property worth in the market, viewed not 
 merely with reference to the uses to which it is at the time 
 applied, but with reference to the use to which it is plainly 
 adapted. Property is not to be deemed worthless because the 
 owner allows it to go to waste, or to be regarded as valueless 
 because he is unable to put it to any other use. Others may 
 be able to use it and make it subserve the necessities or con- 
 veniences of life. So many and varied are the circumstances 
 to be taken into account that it is impossible to formulate a 
 rule to govern a condemnation appraisement in all cases. 
 Exceptional circumstances will modify and relax the most 
 carefully guarded rule." 
 
 The following authorities establish the proposition that 
 the compensation to be awarded the owner of the land con- 
 demned cannot be based upon the value of the property to 
 the person or company in charge of the public use, nor by 
 its necessities, and that it is not proper to take into considera- 
 tion the profits which may result from the use of the land, 
 especially where the profits depend upon the expenditure of 
 large sums of money in carrying out the contemplated enter- 
 prise." 
 
 '« Indianapolis D. & S. R. Co. v. " Tide Water Canal Co. v. 
 
 Pugh, 85 Ind. 279; Swan V. Middle- Archer, 9 Gill. & J. 481 ; Gardner 
 
 sex Co. loi Mass. 173; King v. v. Brookline, 127 Mass. 358; Burt 
 
 Minneapolis Union R. Co. 32 v. Wigglesworth, 117 Mass. 302; 
 
 Minn. 224. Reading & P. R. Co. v. Balthaser, 
 
 «» Union Depot S. R. & T. C. v. 126 Pa. i; Dorian v. East Brandy- 
 Brunswick, 31 Minn. 297; Mills, wine & W. R. Co. 46 Pa. 520; 
 Em. Dom., sec. 168. Stockston & C. R. Co. v. Galgiani, 
 
 "Gilmer v. Lime Point, 19 Cal. 49 Cal. 139. 
 47, Field, J. 
 
848 REAL PROPERTY. 
 
 TITLE BY PURCHASE — {ConimueO). 
 
 Art. VI. Executioti. 
 Sec. 363. Controlled by statutory enactments. 
 
 364. Outline of the proceedings to perfect title by execution. 
 
 365. Rights of purchaser. 
 
 366. Title becomes absolute on the issuance of the deed. 
 
 367. Delinquent taxes — execution to satisfy. 
 
 a. What are taxes ? 
 
 b. Taxation for private purposes void. 
 
 c. Views of John Stuart Mill. 
 
 d. Taxes may become charge upon realty. 
 
 e. Execution must rigidly comply with the law. 
 
 f. Purchaser of defective title usually remediless. 
 
 g. Tax deeds are evidence of what ? 
 h. Typical legislation on the subject. 
 
 i. All formalities must be complied with, 
 j. Correction of tax deeds, 
 k. The right to redeem. 
 
 §363- Controlled by statutory enactments. This is a title un- 
 known to the common law, and is largely the creature of mod- 
 ern statutory enactment." Conspicuous instances of this mode 
 of acquiring title are of every-day occurrence. And when- 
 ever a sheriff or referee disposes of a debtor's real estate by 
 virtue of an execution, the title, which the purchaser derives, 
 is a " title by execution, ' ' except, perhaps, in the case of sales 
 to satisfy delinquent taxes. To acquire this form of title 
 there must be the most rigid adhesion to all the methods indi- 
 cated by the statute." While ample provision exists in every 
 jurisdiction for the levy and sale of real property to satisfy a 
 judgment creditor, the phraseology employed, and the 
 methods pursued, are somewhat divergent. But all statutes 
 agree in enforcing the rule "caveat emptor," and the pur- 
 chaser is never allowed to demand a full warranty deed." 
 Whatever infirmities are found lurking in the title, the pur- 
 chaser must accept, as he merely occupies the debtor's posi- 
 
 ''^ Duvall V. Waters, i Bland Ch. 83 ; Dickerman v. Burgess, 20 lU. 
 
 (Md.) 569. 266. 
 
 " Kintz V. Long, 30 Pa. St. 501 ; " Neal v. Gillaspy, 56 Ind. 451 ; 
 
 Tyler v. Wilkerson, 27 Ind. 450; Roberts v. Hughes, 81 111. 130. 
 Pickering v. Reynolds, in Mass. 
 
TITLE BY PURCHASE. 849 
 
 tion as to liabilities of every description, and whatever was 
 a legal charge or lien upon the property before the sale, con- 
 tinues after it." Title by execution is otherwise known as 
 "title by involuntary alienation, " the presumption being that 
 the owner of the property is divested of the fee by some com- 
 pulsory process of the courts that did not originate in any 
 volition of his own. 
 
 § 364. Outline of proceedings to perfect title by execution. 
 
 It is the duty of the sheriff, on receiving an execution, to levy 
 upon the property. In accomplishing this he is not required 
 to take actual physical possession, but rather by some open 
 and notorious act evincive of constructive possession, and 
 his levy is completed by duly returning a description of the 
 realty levied upon. His next step contemplates the appraise- 
 ment of the property, which is effected by the aid of three 
 disinterested freeholders of the county in which the land is 
 situated who are designated and sworn by the sheriff. This 
 appraisement, when made, is properly endorsed and filed for 
 record in the office of the County Clerk, where it has the effect 
 of notice to all persons subsequently dealing with the prop- 
 erty. This is followed by an advertisement of sale, which 
 must appear in some paper published in the county, and if 
 there be none, then in any paper circulating within the 
 county. He is also required to post notices in various public 
 places designated by the statute. The length of time these 
 •various notices must appear, is also regulated by statute in 
 the various States, but is rarely, if ever, less than thirty 
 days. Due time having elapsed, the sale takes place on the 
 day designated. This must be at public auction from the 
 front door of the court house. After which the sheriff makes 
 a return of the execution with his proceedings thereon to the 
 court from which it issues. That court will then proceed to 
 confirm the sale so made, and direct the issuance of a deed. 
 The confirmation may be opposed by any party in interest, 
 but where it appears that the proceedings have been con- 
 ducted with rigid conformity with the statutory require- 
 
 " Frost V. Yonkers Savings Bank, Sharp, 4 Cal. 349; Hildreth v. 
 70 N. Y. 558; Polhemus v. Emp- Sands, 2 Johns. Ch. (N. Y.) 35. 
 son, 27 N. J. Eq. 190 ; Bryan v. 
 
 54 * 
 
850 REAL PROPERTY. 
 
 ments, it is rarely withheld. The deed then issues, and 
 its recitals are largely matters of express statutory provi- 
 sions. 
 
 § 365. Rights of the purchaser. A purchaser of land at an 
 execution sale acquires title to the land if the judgment 
 debtor owned the land at the time of the sale, and may go 
 into equity to set aside a fraudulent deed of the judgment 
 debtor, although he is not in possession of the property." 
 A creditor having a valid lien upon the real estate of his 
 debtor by the levy of an execution issued upon a valid judg- 
 ment may sell such real estate upon his execution, and the 
 purchaser at such sale may impeach a prior fraudulent convey- 
 ance made by the judgment debtor, in an action at law. 
 The purchaser may resort to a bill in aid of execution, but 
 he is not compelled to adopt the equitable remedy." 
 
 § 366. Title becomes absolute on the issuance of the deed. 
 
 Purchasers at execution sales are neither entitled to the pos- 
 session of the property nor to participate in the rents and 
 profits thereof, until their title has become absolute, by the 
 
 "Mohawk Bank v. Atwater, 2 Underwood, 4 Wash. C. C. 129; 
 
 Paige, 54, 2 L. ed. 810; Hager v. Hinde v. Longworth, 24 U. S. (11 
 
 Shindler, 29 Cal. 48; Bunce v. Wheat.), 199, 2 L. ed. 454 ; Doe v. 
 
 Gallagher, 5 Blatchf. 481 ; Ormsby Rowe, 4 Ring. N. C. 737 ; Middle- 
 
 V. Barr, 22 Mich. 80; Jones v. ton v. Sinclair, 5 Cranch, C. C. 409; 
 
 Smith,' 22 Id. 360; Hoxie v. Carter v. Castleberry, 5 Ala. 277; 
 
 Price, 31 Wis. 82 ; Gould v. Steen- Rhodes v. Magonigal, 2 Pa. 39 ; 
 
 berg, 84 111. 170; King V. Carpenter, Webb v. Dean, 21 Id. 29; Eastman 
 
 37 Mich. 363; Newark M. E. v. Schettler, 13 Wis. 324; Warren 
 
 Church V. Clark, 41 Id. 730; v. Williams, 52 Me. 343; Mulford 
 
 Stock Growers' Bank v. Newton, 13 v. Peterson, 35 N. J. L. 127. 
 
 Colo. 245 ; Remington Paper Co. v. The purchaser at an execution 
 
 O'Dougherty, 81 N. Y. 474. sale takes his title subject to such 
 
 "Jackson v. Myers, i8 Johns, liens, easements and equities as it 
 
 425 ; Jackson v. Parker, 9 Cow. 73 ; was subject to in the hands of the 
 
 Jackson v. Timmerman, 7 Wend, defendant in execution, unless he 
 
 (N. Y.)436; Stephens v. Sinclair, i can show that he is a purchaser in 
 
 Hill (N. T.), 143 ; Cleland v. Taylor, 3 good faith and without any notice, 
 
 Mich. 201 ; Chautauqua County Bk. actual or constructive, of the exist- 
 
 v. Risley, 19 N. Y. 369; Bergen v. ence of such lien, easement or 
 
 Carman, 79 N. Y. 146 ; Bridge v. equity." (Freem. Executions, sec. 
 
 Eggleston, 14 Mass. 245 ; Den v. 336.) 
 
TITLE BY PURCHASE. 85 1 
 
 failure of the persons interested to redeem within the time 
 prescribed by law." 
 
 It is true that for the purpose of perfecting his title to the 
 real estate — that which he bought — the confirmation relates 
 back to the sale, and no other person can in the meantime 
 obtain any rights that will affect the title ; but it cannot be 
 held to relate back for the purpose of giving the purchaser 
 the right of possession and the right to the rents and 
 profits." 
 
 §367. Delinquent taxes — Execution to satisfy, a. Wkai 
 are taxes ? By the concurrent opinion of lawyers, lexico- 
 graphers and political economists as well as by the general 
 and popular understanding taxes are burdens or charges im- 
 posed by the Legislature upon persons or property, to raise 
 money for public purposes or to accomplish some governmen- 
 tal end. A tax is a portion of the property of individuals 
 which is taken from them by the government and disposed 
 of by it.*° No authority or even dictum can be found which 
 asserts that there can be any legitimate taxation where the 
 money to be raised does not go into the public treasury or is 
 not destined for the use of the government, or some of the 
 public governmental divisions of the State. In other words, 
 a public governmental use or purpose is involved in, and is 
 essential to the idea of a tax. ' ' I concede, ' ' says Black, Ch. 
 J., in the Sharpless case, 21 Pa. St. 167, "that a law authorizing 
 taxation for any other than public purposes is void. ' ' Again : 
 ' ' A tax for a private purpose is unconstitutional, although it 
 pass through the hands of public officers. ' ' 
 
 b. Taxation for private purposes void. A tax for private pur- 
 poses is, to use the strong yet apt expression of Lowe, J., in 
 the Wapello County case, 13 Iowa, 405, "A solecism in lang- 
 uage." Our system of taxation throughout is inspired by 
 political necessity, as without a revenue there can be no such 
 thing as a stable government, at least on an elaborate scale- 
 Theoretically, the citizen is assumed to receive a compensa- 
 tion for the taxes paid, in the security the law affords to his 
 
 " Rorer, Jud. Sales, p. 387 ; Cas- " Beggs v. Thompson, 2 Ohio, 
 silly V. Rhodes, 12 Ohio, 96; Houts 96, 15 Am. Dec. 539. 
 V. Showalter, 10 Ohio St. 128. ™2i Ency. Brit. 37. 
 
852 REAL PROPERTY. 
 
 person and property, and the guarantees it throws around 
 his business transactions in the ready access it gives to the 
 remedial justice of our courts and in the rigid impartiality 
 with which it enforces the devolution of his property accord- 
 ing to the terms of his last will and testament. 
 
 c. Views of John Stuart Mill. Still the foundation of the 
 taxing power is political necessity, and taxes are in effect, 
 as Mr. Mill contends, sacrifices made for the public good, 
 "equality of sacrifice" being the rule dictated by Justice." 
 Taxation extends to all property and all the persons within 
 the jurisdiction of the State and for the non-payment of 
 lawful tax the property of the citizen may, without judicial 
 proceeding, and without special notice to him be sold at pub- 
 lic auction to pay it. Proceedings so arbitrary and provoca- 
 tive of so much hardship fully justify the remark of the Su- 
 preme Court of Pennsylvania, that the divestiture of owner- 
 ship by the tax laws, and sales thereunder, exhibit "the 
 instance in which a constitutional government approaches 
 most nearly to an unrestrained tyranny. '"" It is only because 
 we recognize the absoluute necessity of some coherent and 
 effective method of sustaining the revenues of the govern- 
 ment upon a steady and ascertainable basis that these pitiless 
 and stringent laws are not repealed as monstrous invasions 
 of our constitutional rights. ' ' If the right to impose a tax 
 exists," says the Supreme Court of the United States, "it is 
 a right which, in its nature, acknowledges no limit."" 
 
 d. Taxes may become a charge upon realty. Taxes levied upon 
 real estate become a charge upon the land itself, and if they 
 are not paid, the land may be sold for the taxes due thereon, 
 and the title will pass to the purchaser regardless of any in- 
 cumbrance resting upon the land." 
 
 ' ' All the property in the State is derived from or protected 
 by its government, and hence it is held subject to its wants 
 
 *' 2 Polit. Econ. 370, 373. Maryland, 4 Wheat. 431 ; Sedgw. 
 
 *' Gault's Appeal, 33 Pa. St. 94. Const. Law, 554; Cooley, Const. 
 
 '^ Weston V. Charleston, 2 Pet. Lim. 482 ; but read contra views in 
 
 449; Bank of Commerce v. New the Income Tax Cases decided May 
 
 York City, 2 Black, 631 ; Warren v. 20, 1895. 
 
 Paul, 22 Ind. 279 ; Herrick v. Ran- *• Cooper v. Corbin, 105 111. 224. 
 dolph, 13 Vt. 529 ; McCuIlough v. 
 
TITLE BY PURCHASE. 
 
 853 
 
 in taxation and to certain important public uses both in war 
 and in peace.'"" Some ground this public right on sover- 
 eignty ;" some on necessity, and for useful purposes ;" some 
 on implied contract." 
 
 e. Execution must rigidly comply with the law. A sale on an 
 execution issued to collect delinquent taxes must, in all of 
 its proceedings and particulars, rigidly conform with the 
 material requirements of the statute.*' 
 
 f. Purchaser of defective title usually remediless. If a pur- 
 chaser at tax sale fails to obtain a clear deed or title to the 
 property purchased, he is remediless unless some statutory 
 enactment requires the refunding of the amount paid in case 
 of a defective title." 
 
 «' Vattel, Law of Nations, sec. 
 244; 2 Kent's Com. 270; i Bl. Com. 
 
 139- 
 
 '*2 Kent's Com. 339; Grotius, 
 bk. I, chap. 1, sec. 6. 
 
 «' Grotius, blc. 8, ch. 14, sec. 7 ; 
 Puffendorf, Law of Nations, bk. 8, 
 ch. 5, sec. 7 ; Bynkershock, Law of 
 War, bk. 2, ch. 15 ; and see note to 
 Gardner v. Newburgh, 2 Johns. Ch. 
 163, I L. ed. 333; West River Bridge 
 Co. V. Dix, 47 U. S. (6 How.) 539, 12 
 Law ed. 548. 
 
 *' Bogert V. United States, 2 Ct. 
 ch. 164. 
 
 "2 Rice on Evidence, 1289, cit- 
 ing Ritter v. Worth, 58 N. Y. 627; 
 Thatcher v. Powell. 19 U. S. (6 
 Wheat.) 119, 5 L. ed. 221 ; Ronken- 
 dorflf V. Taylor, 29 U.S. (4 Pet.) 349, 
 7 L. ed. 882; Clarke v. Strickland, 
 2 Curt. C. C. 439; Miner v. Mc- 
 Lean, 4 McLean, 138; Moore v. 
 Brown, 52 U. S. (11 How.) 414, 13L. 
 ed. 751 ; Parker v. Overman, 59 
 U. S. (18 How.) 137, 15 L. ed. 318, 
 reversing Hempst. 692 ; Ogden v. 
 Harrington, 6 McLean, 418 ; Bush 
 V. Williams, 1 Cooke, 360; Wash- 
 ington V. Pratt, 21 U. S. (8 Wheat.) 
 681, 5 L. ed. 714; Mason v. Fear- 
 
 son, 50 U. S. (9 How.) 248, 13 L. ed. 
 125; Thompson v. Carroll, 63 U. S. 
 (22 How.) 422, 16 L. ed. 387 ; Brad- 
 lay v. Conner, 5 Cranch, C. C. 615 ; 
 Harvey v. Tyler, 69 U. S. (2 Wall.) 
 329, 17 L. ed. 872 ; Denike v. 
 Rourke, 3 Biss. 39; Walker v. 
 Moore, 2 Dill. 256 ; Harkness v. 
 Board of Public Works, i McArth. 
 121 ; LeRoy v. Reeves, 5 Sawy. 102 ; 
 Gould V. Day, 94 U. S. 405, 24 L. 
 ed. 232. 
 
 In an ex parte proceeding, as a 
 sale of land for taxes under a special 
 authority, great strictness is re- 
 quired. To divest an individual of 
 his property against his consent 
 every substantial requisite of the 
 law must be complied with. No 
 presumption can be raised in be- 
 half of a collector who sells real 
 estate for taxes to cure any radical 
 defect in his proceedings, and the 
 proof of regularity devolves upon 
 the person who claims under the 
 collector's sale. (Ronkendorff v. 
 Taylor, 29 U. S. 349.) The maxim 
 caveat emptor is applied in its ut- 
 most rigor. 
 
 '» Desty on Taxation, 850 ; Sulli- 
 van V. Davis, 29 Kan. 28 ; Stevens 
 
854 REAL PROPERTY. 
 
 It is held, however, that the owner of property assessed 
 for taxes should not be caused to suffer by reason of the acts 
 or omissions of the taxing officers." 
 
 So, if the owner applies at the proper office for a list of 
 taxes standing against his land on the book of the office, and 
 through mistake of the officer an incomplete list is furnished, 
 which he pays, it will be deemed a full payment so far as to 
 invalidate a sale for the taxes omitted by the officer. " 
 
 g. Tax deeds are evidence of whatl It is entirely competent 
 for the Legislature to declare a tax deed prima facia evidence 
 that all of the proceedings prior to the sale have been regu- 
 larly conducted, although it is always competent for the oppo- 
 site party to show the contrary." And it has been held that 
 the Legislature may even go a step further and declare a tax 
 deed conclusive evidence of the recitals therein contained." 
 Such an extreme position cannot be successfully maintained." 
 The reasons for the exercise of what may appear on super- 
 ficial glance to be an arbitrary power, are both manifold and 
 conclusive; the various arguments affecting this subject, 
 collated and paraphrased according to their legal effect, 
 would tabulate themselves (i) on grounds of public policy; 
 (2) because without means to enforce the collection of taxes, 
 "government of the people, by the people and for the people" 
 must perish from the earth ; (3) because it is in the nature of 
 a penalty against' laches and contumacy, and this penalty the 
 law-making power can unquestionably impose in this as in 
 countless other instances ; (4) because the trivial sums realized 
 upon such sales afford a perpetual inducement to purchase, 
 and in this way the government can secure the cash to meet its 
 estimated expenses for the fiscal year, (5) because in practical 
 effect it is nothing more than a statute of limitations, as was 
 
 V. Williams, 70 Ind. 536; Cooley on Peo. v. Mitchell, 35 N. Y. 557; 
 
 Taxation, 572 ; Peebles v. Pitts- Stewart v. Corbin, 25 la. 146. 
 
 burg, loi Pa. 304. "Hopkins v. Ladd, 35 111. 178; 
 
 9> Baird v. Gaboon, 5 Watts & S. Tyler v. Peo, 8 Mich. 320 ; Ross v. 
 
 540. Whitman, 6 Call. 351 ; Perham v. 
 
 '" Breisch v. Coxe, 81 Pa. 336; Decatur Co. 9 Ga. 352; McMillian 
 
 Jiska V. Ringgold Co. 57 Iowa, 630. v. Lee Co. 6 la. 391. 
 
 9'Knoxv. Cleveland, 23 Wis. 245; »» See Blackwell, Tax Titles, p. 
 
 Allen V. Armstrong, 16 la. 512; 100. 
 Gwyne v. Neiswauger, 18 Ohio, 406 ; 
 
TITLE BY PURCHASE. 855 
 
 held by the Supreme Court of Wisconsin in Smith v. Cleveland, 
 17 Wis 556. 
 
 h. Typical legislation on the subject. As typical of the statu- 
 tory regulations in this country by virtue of which tax deeds 
 are received in evidence, and are endowed with certain attri- 
 butes, which raise presumptions in their favor, I quote the 
 following provisions from the Revised Statutes of Colorado, 
 chap. 94, 121, Laws of 1883. The provisions were enacted 
 after similar regulations had been in vogue in various 
 States, and whatever infelicities may have disclosed them- 
 selves in the earlier legislation, had been thoroughly ventila- 
 ted in innumerable actions, and had resulted in a mass of 
 judicial interpretation, comment and suggestion, available as 
 data from which an ideal statute could be framed. After 
 exhaustive research, the following provisions are believed 
 to embody the best features of recent legislation on this sub- 
 ject, and may serve to disclose the legislative intent upon a 
 topic which is by no means free from obscurity. 
 
 Tax deed shall be signed by the treasurer in his official 
 capacity, and attested by his official or private seal, and 
 acknowledged by him before some officer authorized to take 
 acknowledgments of deeds, and when substantially thus exe- 
 cuted and recorded in the proper record of titles to real 
 estate, shall vest in the purchaser all the right, title, interest 
 and estate of the former owner in and to the land conveyed, 
 and also all the right, title, and interest and claim of the State 
 and county thereto, and shall be prima facie evidence in all 
 courts of this State in all controversies and suits in relation 
 to the rights of the purchaser, his heirs and assigns, to the 
 land thereby conveyed, of the following facts : 
 
 1. That the real property conveyed was subject to taxation 
 for the year or years stated in the deed. 
 
 2. That the taxes were not paid at any time before the sale. 
 
 3. That the real property conveyed had not been redeemed 
 from the sale at the date of the deed. 
 
 4. That the property had been listed and assessed at the 
 time and in the manner required by law. 
 
 5. That the taxes were levied according to law. 
 
 6. That the property was advertised for sale in the manner 
 and for the length of time required by law. 
 
856 REAL PROPERTY. 
 
 7. That the property was sold for taxes as stated in the 
 deed. 
 
 8. That the grantee naraed in the deed was the purchaser 
 or the heir-at-law, or the assignee of such purchaser. 
 
 9. That the sale was conducted in the manner required by 
 law. 
 
 i. All formalities must be complied with. Evidence is compe- 
 tent in all instances to show substantial compliance with the 
 mandatory provisions of a statute, by virtue of which a sale 
 of real property has been effected, for the purpose of satisfy- 
 ing a tax imposed. Evidence of this character may have for 
 its object proof that the successive steps of the statutory pro- 
 ceedings have been observed and complied with — that all 
 formalities exacted have been adhered to, and that every pre- 
 requisite necessary to the formal investment of the State's 
 grantee, -yvith the muniments of title have been strictly fol- 
 lowed. Further, it must appear that the due execution of 
 the tax deed was made by the properly authorized official." 
 
 It would transcend the province of legislative power to 
 place an arbitrary and conclusive effect upon a tax deed 
 offered in evidence. Such an attempt would contravene 
 guaranteed constitutional rights, and, as Judge Cooley has 
 sententiously phrased it, "there is no power in any American 
 legislature to deprive one of his property by making his 
 adversaries' claim to it, whatever that claim may be, conclu- 
 
 ^^ Minturn v. Smith, 3 Sawy. 142 ; 76; Tallman v. White 2 N. Y. 66 ; 
 Stead V. Course, 8 U. S. (4 Cranch) Polk v. Rose, 25 Md. 153 ; Jordan 
 403, 2 L. ed. 660; Parker v. Rule, v. Rouse, i Jones, L. 119; Sutton 
 13 U. S. (9 Cranch) 64, L. ed. 685 ; v. Calhoun, 14 La. Ann. 209; Rob- 
 Thatcher V. Powell, 19 U. S. (6 son v. Osborn, 13 Tex. 298 ; De- 
 Wheat,) 119, 5 L. ed. 221 ; Pillow v. vine V. McCulloch, 15 Id. 488 
 Roberts, 54 U. S. (13 How.) 472, 14 Thompson v. Gotham, 9 Ohio. 170 
 L. ed. 228 ; Parker v. Overman, 59 Doe v. McQuilkin, 8 Blackf. 335 
 U. S. (18 How.) 142, 15 L. ed. 319; Mason v. Roe, 5 Id. 98; McEntire 
 Littlev. Herndon, 77 U. S. (loWall.) v. Brown, 28 Ind. 347; Barnes y. 
 26, 19 L. ed. 878; Miner V. McLean, Doe, 4 Id. 132 ; Chicago v. Wright, 
 4 McLean, 138; French v. Patter- 32 111. 192; Scammon v. Chicago, 
 son, 61 Me. 203 ; Cahoon v. Coe, 57 40 Id. 146; Scott v. Babcock, 3 G. 
 N. H. 556; Cummingsv. Holt, 56 Vt. Greene, 133; Fitch v. Casey, 2 Id. 
 384; Woodridge v. State, 43 N .J. 300; Morton v. Reeds, 6 Mo. 64; 
 L. 262; Stevens v. Palmer, 10 Nelson v. Goebel, 17 Id. 161; 
 Bosw. 60; Sharp v. Speir, 4 Hill, Bucknall v. Story, 36 Cal. 67. 
 
TITLE BY PURCHASE. 857 
 
 sive of its own validity."" The same distinguished jurist 
 says: "In judicial investigations the law of the land requires 
 an opportunity for a trial, and there can be no trial if only 
 one party is suffered to produce his proofs." A statute, 
 therefore, which should make a tax deed conclusive evidence 
 of a complete title and preclude the owner of the original title 
 from showing its validity, would be void, because being not 
 a law regulating evidence, but an unconstitutional confisca- 
 tion of property." 
 
 j. Correction of tax deeds. There have been strenuous advo- 
 cates of the theory that a tax deed once issued, cannot be 
 reformed or corrected. This position is untenable. The 
 theory that a public officer, in the discharge of a public duty, 
 to secure a public benefit, can, through ignorance or inadvert- 
 ence, or excusable mistake, frustrate the intentions of the 
 Legislature, is a fallacy, and the practitioner will do well to 
 consult White v. Winnie, 19 Wis. 304; a case which holds that 
 where the tax deed first issued to the legal owner of a tax 
 certificate is fatally defective in form, he may demand of 
 the officer a new tax deed in proper from, and if he refuses 
 to execute it, a resort to mandamus may dispel his illusions 
 " eo instanti." This principle received further vindication in 
 the case of Gibson v. Baily, 9 N. H. 168 ; a case which holds it 
 to be "settled law" that such amendments can be made as 
 will conform to the "truth and the fact."" 
 
 k. The right to redeem. If, with a view to redeem the real 
 estate sold under and by virtue of a tax levy, a party in good 
 faith applies to the proper officer and pays the amount 
 demanded by him as a redemption of the premises, and the 
 amount is accepted, it is in fact a redemption, and a deed 
 thereafter issued to another party is void. This proposition 
 
 "Cooley, Taxation, 521. Dickerson v. Acosta, 15 Fla. 614; 
 
 '" Cooley, Const. Lim. 368. These Doe v. Minge, 56 Ala. 121. 
 views meet with judicial endorse- " See Finley v. Brown, 221a 538 ; 
 
 raent in the following cases : Ab- Maxcy v. Clabaugh, i Gilm. (111.) 
 
 bott V. Lindenbower, 42 Mo. 162; 26; Harper v. Sexton, 221a, 442; 
 
 Wright V. Cradlebaugh, 3 Nev. 349 ; Bank of Utica v. Mersereau, 3 Barb! 
 
 Virden v. Bowers, 55 Miss, i; Ch. (N. Y.) 528 ; Blackwell on Tax 
 
 Baker v. Kelley, n Minn. 480; Titles, 372, and especially read 
 
 Oliver v. Robinson, 58 Ala. 46 ; McCready v. Sexton, 29 la. 356, op. 
 
 Groesbeck v. Seeley, 12 Mich. 329 ; by Ch. J. Cole. 
 
858 REAL PROPERTY. 
 
 is in no way affected by the fact that the officer was mis- 
 taken as to the amount due.'°° 
 
 The right to redeem a title of lands sold for taxes is one 
 commonly reserved, and the right is favored by the policy of 
 the law."' 
 
 TITLE BY PURCHASE— (Coniznued.) 
 
 Art. V. Accretion and alluvion. 
 
 Title by accretion and alluvion. It is difficult to understand how 
 this title ever became fastened upon the law of real property. 
 It is in no sense a mode of acquiring land, but properly an 
 incident to real property. No title passes ; no prescriptive 
 right intervenes ; no Statute of Limitation raises a bar ; no 
 estoppel can be invoked. Then why speak of it as a title? 
 However, " we are not confronting a theory, but a condition. " 
 And as long as text writers, commentators, and judges, per- 
 sist in speaking of accretion as a mode of title, it is not for 
 the present writer to obtrude finical objections to the 
 term. 
 
 All islands, sand beds, or other particles of agglomerated 
 or concreted earth which newly arise in rivers, or congre- 
 gate to their banks by alluvion, reliction, or other aqueous 
 means, belong to the owners of the neighboring estates.'" 
 
 The general rules of alluvion apply where the formation 
 is due to artificial causes.'" Alluvion formed on the shore 
 of a navigable river belongs to the shore owner. '" 
 
 The Code Napoleon defines alluvion as an accretion, which 
 forms by imperceptible degrees on land bounded by a 
 
 '^ Bubb V. Tompkins, 47 Pa. St. Jones v. Collins, 16 Wis. 594 ; Cur- 
 
 359 ; Corning Town Co. v. Davis, tis v. Whitney, 13 Wall. 68 (80 U. 
 
 44 la. 622 ; Burroughs on Tax, 360 ; S. XX. 513). 
 
 Cooley on Tax, 540. And particu- '"'Schultes' Aq. Rights, 138. 
 
 larly upon this point see Deitrick ""Godfrey v. City of Alton, 12 
 
 v. Mason, 57 Pa. St. 40. 111. 37; Halsey v. McCormick, 18 
 
 '"' Dubois V. Hepburn, 10 Pet. i ; N. Y. 149 ; Lockwood v. N. Y. & 
 
 Corbett v. Nutt, 10 Wall. 464 (J^ U. H. R. R. Co. 37 Conn. 387. 
 
 S. XIX. 976); Gault's Appeal, 33 i« Stephenson v. Goff, 10 Rob. 
 
 Pa. 94; Rice V. Nelson, 27 Iowa, 99; s. C. 43 Am. Dec. 171. 
 
 148 ; Schenk v. Peay, i Dill. 267 ; '»* Code Civil, title II, sec. 556. 
 Masterson v. Beasley, 3 Ohio, 301 ; 
 
TITLE BY PURCHASE. 859 
 
 Reliction differs from alluvion in this : That the former is 
 applied to land made by the withdrawal of the waters by 
 which it was covered. The withdrawal of the waters must 
 be slow, gradual and imperceptible. The same general rules 
 apply to it as to alluvion."" 
 
 Avulsion is alluvion or dereliction of land which is sudden 
 and considerable. As, where the course of a river is changed 
 by a violent flood and thereby a man loses his ground ; in 
 which case he has, as his recompense, what the river has left 
 in another place."' 
 
 The common law as to non navigable rivers has adopted 
 the civil law, and according to it, an accretion is an addition 
 of soil by gradual deposition, through the operation of natu- 
 ral causes, to the real estate already in possession of the 
 owner."' 
 
 From the foregoing summary we deduct two points : 
 
 1. The accretion must be produced by natural means and 
 not by artificial ones, particularly if such artificial ones are 
 made by other than the riparian owner. 
 
 2. It must be clear and apparent by the grant, that the 
 land to which an accretion is claimed was actually bounded 
 by the river."' 
 
 In the light of the authorities, alluvion may be defined as 
 an addition to riparian land, gradually and imperceptibly 
 made by the water to which the land is contiguous. It is 
 different from reliction, and is the opposite to avulsion. 
 The test as to what is gradual and imperceptible in the sense 
 of the rule is, that though the witnesses may see from time 
 to time that progress has been made, they could not perceive 
 it while the progress was going on. Whether it is the effect 
 of natural or artificial causes makes no difference. The 
 result as to the ownership in either case is the same. The 
 riparian right to future alluvion is a vested right. It is an 
 
 ""Murray v. Sermon, i Hawks, '»* 2 Washb. Real Prop. sec. 551 ; 
 
 56; Warren v. Chambers, 25 Ark. i Bouv. Law Diet. tit. "Alluvion," 
 
 120; s. C. 4 Am. Rep. 23; Boorman 94; 3 Kent, 428; Ang. Water- 
 
 V. Sunnuchs, 42 Wis. 235. Courses, sec. 53. 
 
 '"" Anderson's Law Die. tit. "Avul- '»« Ang. Water-Courses, as to river 
 
 sion." Citing 2 Bl. Com. 262; 3 boundaries, sees, ii, 15, 16, 18, 20, 
 
 Washb. R. P. 452. 23. 
 
86o REAL PROPERTY. 
 
 inherent and essential attribute of the original property. 
 The title to the increment rests in the law of nature. It is 
 the same with that of the owner of a tree to its fruits, and of 
 the owner of flocks and herds to their natural increase. 
 The right is a natural, not a civil one. The maxim "qui 
 sentit onus debet sentire commodum" lies at its foundation. 
 The owner takes the chances of injury and of benefit arising 
 from the situation of the property. If there be a gradual 
 loss, he must bear it ; if a gradual gain, it is his. The prin- 
 ciple applies alike to streams that do, and to those that do not 
 overflow their banks, and where dykes and other defenses 
 are, and where they are not necessary to keep the water 
 within its proper limits.'" 
 
 TITLE BY PVRCnhSE, — {Continued.-) 
 Art. VI. Escheat — Confiscation. 
 
 A. Title by escheat. No one can be so unreasonable as 
 to quarrel with the proposition that the State should take all 
 realty, where there is no other owner. Such title depends, 
 usually, upon positive statute ; but every State in the Ameri- 
 can Union has provided for a reversion of property in case 
 of a default of heirs. The term is of feudal extraction, but 
 it has lost all of its feudal suggestiveness to the modern stu- 
 dent in the law of tenure. To perfect the title the State, 
 at the instance of its attorney-general, institutes and carries 
 on in the name of the people a process known as an "inquest 
 of office, " or " oflfice found. ' ' And on the conclusion of this 
 process, the State becomes invested with whatever title the 
 intestate had. It takes, not in the capacity of the heir — the 
 State has no inheritable blood — it is in no sense "of kin" to 
 the late lamented. Its only excuse for taking is because 
 there are no heirs."' 
 
 B. Title by confiscation. By the process of confiscation 
 the general government does not obtain an unqualified fee 
 
 "«3 Washb. R. Prop. 48; Munic. Commonwealth v. Hite, 6 Leigh. 
 No. 2 V. Orleans Cotton Press, 18 588. Also 4 Kent's Cora, 487; Hub- 
 La. 122. bard v. Goodwin, 3 Leigh. 492 ; Mat- 
 
 '" Crane v. Reeder, 21 Mich. 24; thews v. Ward, 10 Gill. & J. 443- 
 Matter of Desilver, 5 Rawle, 1 1 1 ; 
 
TITLE BY PURCHASE. 86 1 
 
 in the rea. estate of the party offending — but only a life 
 interest — upon the death of the offender his heirs are enti- 
 tled to the fee. In other words it is only a life interest that 
 the government acquires, and even this interest is subject to 
 all equities in the way of lien or mortgage that were in good 
 faith impressed upon the land prior to the confiscation. 
 (French v. Wade, 102 U. S. 132; Wallach et. al. v. Van Ris- 
 wick, 92 U. S. 202.) In this country our law knows nothing 
 of attainder of blood. The Federal Constitution is explicit 
 on this point. ' ' No attainder of treason shall work corrup- 
 tion of blood, or forfeiture, except during the life of the per- 
 son attainted," and "no state shall pass any bill of attainder." 
 The phrases in quotation are familiar passages from the Con- 
 stitution of the United States. 
 
 As to the scope and effect of the confiscation act see Wallach 
 V. Van Riswick, 92 U. S. 202; Semmes v. U. S., 91 U. S. 91. 
 The Wallach case, supra, contains an especially valuable opinion 
 from Mr. Justice Strong, illuminative of the celebrated con- 
 fiscation act of 1862, which provided that after an adjudicated 
 forfeiture and sale of an enemy's land no interest whatever 
 remained which can be the subject of a conveyance. 
 
 TITLE BY ^\J^CnASE — (Continued.) 
 
 Art. VII. Occupancy. 
 
 Title by occupancy. In a primitive condition, while the 
 country was just emerging from a wilderness, it may well be 
 that title by occupancy was of some importance, and merited 
 a discussion in any work pertaining to real property. But 
 conditions have radically changed. Squatter sovereignty is 
 no longer recognized, and the title to all our lands rests 
 either with the government or some individual or corporate 
 body. There may be stray instan^ces where such a title 
 would force itself upon the notice of the courts. But this is 
 extremely doubtful. If the occupancy takes the form of 
 adverse possession, or if it continues for such a period of time 
 as to invoke the protection of the Statute of Limitations, we 
 have in such a case, what is known and recognized in legal 
 nomenclature as title by limitation, or adverse possession, or 
 prescription, or, possibly, by estoppel. But it is not strictly 
 
862 REAL PROPERTY. 
 
 title by occupancy — a phrase that imported, when such title 
 was in vogue, simply and purely the title of an occupying 
 claimant without the least color of title whatever. It was 
 merely a replica of Rob Roy's good old plan, that "they may 
 take who have the power, and they may keep who can.""" 
 Further comment is unnecessary and we are not permitted 
 to broaden the field of inquiry the meager results of such an 
 investigation. 
 
 TITLE BY PURCHASE— (Co«//«a^^. 
 Art. VIII. Public grant. 
 Sec. 368. Nature and scope of pre-emption rights. 
 
 369. Notice of claim must be filed. 
 
 370. What lands are subject to pre-emption. 
 
 371. What constitutes entry. 
 
 a. When it takes effect. 
 
 372. What is " patent for land." 
 
 373. Certificate of entry and receiver's receipt. 
 
 374. When pre-emption rights become vested interest. 
 
 375. Patent may be vacated for fraud. 
 
 376. Liberal policy of the government respecting public domain. 
 
 § 368. Nature and scope of pre-emption rights. By the 
 
 laws of the United States the right given to settlers of public 
 lands, to purchase them in preference to others, is called the 
 pre-emption right. This right is founded upon actual settle- 
 ment, improvement and a continuous residence.'" But non- 
 residence may be excused if occasioned by well founded 
 apprehension of violence — such as Indian raids, epidemics 
 or enlistment in the service of the State or nation, to repel 
 an actual or threatened invasion.'" So forcible invasion of 
 premises already settled upon and improved and enclosed 
 will establish no right.'" 
 
 § 369. Notice of claim must be filed. The pre-emptor must 
 file due notice of his claim in the nearest land office within 
 three months after the plat or the survey is returned to the 
 land office, whereupon the officials of the land office issue a 
 
 '"See Wallier's Am. Law, sec. "■' Bohall v. Dilla, 114 U. S. 47. 
 
 155; Tiedeman on Real Prop. sec. ''= Trenouth v. San Francisco, 
 
 681. 100 U. S. 251. 
 
 "'Hosmerv. Wallace, 97 U. S. 575. 
 
TITLE BY PURCHASE. 863 
 
 certificate of entry which may be regarded as an inchoate 
 title. This title is sufficient to maintain an action of eject- 
 ment against any person not invested with a better one."" 
 No adverse claimant appearing within the statutory time, 
 the United States patent issues, which is regarded as a fee 
 simple to the land."' This case last cited is the celebrated 
 Yosemite Valley case. 
 
 § 370. What lands are subject to pre-emption. The right 
 of pre-emption attaches only to such public lands as are sub- 
 ject to the operation of the general land system of the coun- 
 try, and not to those which have by the act of Congress been 
 taken out of the class of public lands and appropriated to 
 specific objects, or reserved for particular purposes, as for 
 the cultivation of the vine and olive."' 
 
 §371. What constitutes "Entry." The term entry, as 
 applied to appropriations of land, has a signification in 
 the legal nomenclature of the country as fixed and definite as 
 that of many terms borrowed from the common law. It, 
 means that act by which an individual acquires an inceptive 
 right to a portion of the unappropriated soil of the country, 
 by filing his claim in the office of an officer known in the 
 legislation of the several States by the epithet of an entry- 
 taker, and corresponding very much in his functions with 
 the registers of land offices under the acts of the United 
 States. In the natural progress of language, this term has 
 been introduced into the laws of the United States, and is 
 distinctly confined to the appropriation of lands, under the 
 laws of the United States, at private sale."' 
 
 The original entry may be in any name appropriated by 
 the party making the entry. "° The term entry covers a home- 
 stead and townsite entry as well as a private entry. '" And 
 the right to remain on the public land in order to perform 
 these prerequisites is distinctly given by law. "'^ 
 
 "'Callahan v. Davis, 90 Mo. 78; '™ Long v. McDow, 87 Mo. 197. 
 
 Lansdale v. Daniels, 100 U. S. 113. ■" Denny v. Dodson, 32 Fed. Rep 
 
 '" Hutchings v. Low, 82 U. S. 77. 899. 
 
 "*3 Op. Attorney-General, 456. '^^ U. S. v. Waddell, 112 U. S. 76 
 
 "9 Supreme Ct. (1827), Chotard v. 
 Pope, 12 Wheat. 586. 
 
864 REAL PROPERTY. 
 
 a. When it takes effect. After lands have been entered at 
 the land office, and a certificate of entry issued, they cease to 
 be public. By the entry and the giving of the certificate, 
 they are separated from the mass of public lands, and become 
 private property.'"^ 
 
 § 372. What is "Patent for land." Patent for land is 
 simply a deed or conveyance emanating from either the 
 Federal government or from the State and purports to convey 
 some certain tract of the public domain to the grantee named. 
 The various "land offices" designated by the Department of 
 the Interior, supervise the preliminaries of the application 
 for a patent from the general government which must be 
 strictly in accordance -with the statutory methods indicated 
 by the various congressional enactments declaratory of the 
 process. So in cases where the patent originates with the 
 State — as distinguished from the national government — all 
 the proceedings must substantially conform to the require- 
 ment imposed by the Legislature. 
 
 It is the highest evidence of title, and conclusive as against 
 the government and all persons claiming under junior pat- 
 ents or titles until set aside or annulled by some judicial 
 tribunal. A bill in chancery is the most convenient remedy 
 to annul a patent ; which may be done for fraud in the pat- 
 entee; for mistake or want of authority in the officer or 
 because of a higher equity in another claimant.'" 
 
 § 373- Certificate of entry and receiver's receipt. Certifi- 
 cates of entry are not conclusive but preliminary only and 
 subject to review by the officers of the Interior Department 
 of the general government.'" The question of title is con- 
 trolled entirely by the rules and decisions of the general 
 land office."" The title once duly acquired is capable of 
 alienation at the pleasure of the owner.'" 
 
 A receiver's receipt issues to the claimant upon the pay- 
 ment of the consideration for the land, usually a trifling sum 
 
 "' Witherspoon v. Duncan, 4 S. 316; Langdon v. Sherwood, 124 
 
 "Wall. 210. Id. 74; Copp, Land Owner, 17, 181. 
 
 '" United States v. Stone, 2 Wall. "6 Quinby v. Conlan, 104 U. S. 
 
 535. 420. 
 
 '"Harkness v. Underhill, 66 U. '" Close v. Styvesant, 132 III. 607. 
 
TITLE BY PURCHASE. 865 
 
 varying from one dollar to one dollar and a half per acre. It 
 contains a description of the premises or land granted, de- 
 scribing it as a mill site, timber claim, mining lode, claim 
 placer, claim or agricultural lands, as the case may be. 
 
 § 374. When pre-emption rights become vested interests. 
 
 The power of Congress over the land ceases when all the pre- 
 liminary acts, prescribed for the acquisition of the title have 
 been performed by the settler. Then the settler's interest 
 is vested, and he is entitled to a certificate of entry from the 
 local land office, and, ultimately, to a patent from the United 
 States. Until such entry, the settler has only a privilege or 
 preference of pre-emption in case the lands are offered for 
 sale in the usual manner. The United States only declare 
 by the pre-emption laws that if lands are thrown open for 
 sale, the preference of sale, in limited quantities, shall be in 
 the first person who settles and improves them.'" 
 
 § 375- Patent may be vacated for fraud. The government 
 has the same right to demand a cancellation of the convey- 
 ances of the United States when obtained by false and 
 fraudulent representations as a private individual when a 
 conveyance of his lands is obtained in like manner. In this 
 respect the United States as a landed proprietor, stands upon 
 the same footing with the piivate citizen. The burden of 
 proof in such cases is upon the government. The presump- 
 tion attending the patent, even when directly assailed, that 
 it was issufed upon sufficient evidence that the law has been 
 complied with by the officers of the government charged 
 with the alienation of public lands, can only be overcome by 
 clear and convincing proof. In several cases recently before 
 this court the character and degree of proof required to set 
 aside a patent for land of the United States issued in due 
 form by their officers, where they have had jurisdiction over 
 the subject and have observed the various proceedings pre- 
 liminary to its issue required by law, have been discussed 
 and determined, and rules laid down which must control in 
 future cases of the kind.'" 
 
 "'The Yosemite Valley Case, 15 '" Maxwell Land Grant Case, I2i 
 Wall, -n (1872), cases, Field, J. U. S. 325. 
 
 55 
 
866 REAL PROPERTY. 
 
 One obtaining a patent to land from the United States by 
 fraud towards another, or who affects himself with the trust, 
 holds the title thus acquired for the benefit of those who 
 have been injured by his conduct. "° 
 
 § 376. Liberal policy of the government respecting the pub- 
 lic domain. The policy adopted by the United States was 
 that of giving the lands to actual settlers, at a price per acre 
 barely sufficient to pay the cost of survey and of the land 
 department, surveying the lands on lines corresponding to 
 the four cardinal points of the compass, so that the exact 
 location of all lands for transfer, occupancy, or search of title 
 could be expressed by a brief formula. This was done by 
 running a meridian line north and south through some arbi- 
 trary point selected for convenience, then a base line east 
 and west through the same point. One point of this kind 
 exists in Ohio, and the meridian line which runs through it 
 is called the first principal meridian, or in the language of 
 conveyancing "ist P. M." The second principal meridian 
 line is in Indiana, the third makes its point of intersection 
 with the base line at Vandalia, Illinois, the fourth in West- 
 ern Iowa, etc. Lines drawn parallel to the meridian line at 
 intervals of six miles, whether eastward or westward, are 
 called ranges, those to the eastward being range i, 2, 3, etc., 
 east, those to the westward being range i, 2, 3, etc., west of 
 the meridian. Lines drawn parallel with the base line, 
 whether to the northward or southward of it, become town- 
 ship lines, since the intersection of each with the meridian 
 lines marks a plot six miles square, which is the township 
 of the land surveyors. In fact, also, the organization of the 
 people into townships usually follows these lines. The loca- 
 tion of the township, east or west of the meridian, is desig- 
 nated by the range number, and its location north or south 
 of the base line by the township number. Thus, T. 38, 
 
 "° Groves v. Fulsome, 16 Mo. 543, Wall.) 402, 419 (18: 925, 930) ; White 
 
 57 Am. Dec. 247 ; Lewis v. Lewis, v. Cannon, 73 U. S. (6 Wall.) 443 
 
 9 Mo. 182; Bird v. Ward, i Id. 398, (18 : 923) ; Rogers v. Brent, 10 111- 
 
 13 Am.Dec. 506 ; Lindsey V. Hawes, 573, 50 Am. Dec. 422. See, generally, 
 
 67 U. S. (2 Black), 554 (16: 265); Gar- " Morrison's Mining Rights " (6th 
 
 land V. Wynn, 61 U. S. (20 How.) 6 ed.), passim, 
 (15: 801); Stark V. Starr, 73 U. S. (6 
 
TITLE BY PURCHASE. 86/ 
 
 N. R. 14 E. of 3 P. M. in Cook county, 111., designates a 
 township, being the 38th to the northward of the base line, 
 in the range (of townships) which are on the meridian line 
 the 14th eastward from the 3d principal meridian. Each 
 township is divided by similar parallel lines into 36 sections. 
 The sections proceed by halving and quartering, or other- 
 wise, until the definite plot, however small, is reached. 
 Property worth millions may be thus described as lot 44 and 
 N. 1-2 of lot 43, in block 2, Lockwood's subdivision of south 
 half of W. 1-2 of N. E. 1-4 of N. W. 1-4 of section 3, T. 38 
 N. R. 14 E. of 3 P. M. The starting point of this descrip- 
 tion is at Vandalia, "et the land which it accurately describes 
 is near Chicago.'" 
 
 TITLE BY VURCUASE — iConimuea.) 
 
 Art. IX. Private grant — deeds. 
 
 Sec. 377. Definition and nature. 
 
 378. Formal parts and general requisites. 
 
 379. EflEect of grant or mortgage of real property adversely pos- 
 
 sessed. 
 
 380. Consideration. 
 
 a. Parol evidence to contradict consideration expressed. 
 
 381. Sealing. 
 
 382. Rules as to acknowledgments. 
 
 a. Within the State. 
 
 b. In other States. 
 
 383. What passes. 
 
 384. Delivery and its incidents. 
 
 a. Possession and record evidence of delivery and accept- 
 
 ance. 
 
 b. Intention largely governs the question of delivery. 
 
 c. Delivery in escrow. 
 
 385. Description of the premises. 
 
 a. General rule of construction. 
 
 b. Not void for uncertainty, unless. 
 
 c. When map or plat will govern the description. 
 
 d. Monuments control courses and distances. 
 
 e. Ambiguities removed by evidence aliunde. 
 
 386. Judicial construction. 
 
 a. When deed construed to be a mortgage. 
 
 387. Reformation, cancellation, and surrender of deeds. 
 
 "> Denslow's Economic Philosophy, 141. 
 
868 REAL PROPERTY. 
 
 Sec. 388. Nature and scope of quit-claim deeds. 
 
 a. No longer discredited in New York. 
 
 b. U. S. Supreme Court repudiates its doctrine concerning 
 
 them. 
 
 389. Recording and its incidents. 
 
 a. Policy of the recording law. 
 
 390. Nature and scope of covenants. 
 
 a. If against public policy, void. 
 
 b. Five covenants for title. 
 
 c. Collateral warranties discredited. 
 
 d. Construction of covenants in grants of freehold interests. 
 
 e. Seizin. 
 
 f. Quiet enjoyment. 
 
 g. Freedom from incumbrances, 
 h. Further assurance. 
 
 i. Warranty of title. 
 
 j. Grantor has not encumbered. 
 
 1. Of covenants that run with the land. 
 
 391. Deed-poll. 
 
 392. Fraudulent conveyance. 
 
 a. What fraud creates, justice will destroy — not true that 
 
 fraud never can be presumed. 
 
 b. The statute of 13 Elizabeth. 
 
 c. Comments of Mr. May. 
 
 d. Doctrine of Twyne's case considered. 
 
 e. Direct proof of fraud unnecessary. 
 
 f. Indications of fraudulent transfer. 
 
 g. No length of time can purge a fraud. 
 
 h. Distinction between "void" and "voidable." 
 
 i. Fraudulent intent a question of fact. 
 
 j. Debtor may prefer one creditor over another. 
 
 393. The Statute of Frauds in its relation to conveyances. 
 
 a. Extract from the fourth section. 
 
 b. Contracts within the statute not void but voidable. 
 
 c. Does not apply to judicial sales. 
 
 d. The doctrine of part performance — views of Mr. Justice 
 
 Earl. 
 
 e. Analysis of the " memorandum clause." 
 
 f. Parol evidence not admissible to vary the terras of a writ- 
 
 ten instrument. 
 
 g. Object of the last rule. 
 
 h. Relaxed in case of fraud or mistake, 
 i. Three celebrated cases. 
 
 § 377. Definition and nature. In general apprehension 
 this term imports a writing under seal whicli effects a con- 
 
TITLE BY PURCHASE. 869 
 
 veyance of real property, while in its largest sense it includes 
 a mortgage."' Blackstone says : " It is the most solemn and au- 
 thentic act a man can perform with relation to the disposal of 
 property. " A good and sufficient title calls for the usual cove- 
 nants of warranty. While a good deed means in a covenant, 
 a conveyance sufficient to pass whatever right a party has in 
 the land without warranty or personal covenant, it does not 
 imply the conveyance of a good title."" 
 
 , In the more common and narrower meaning, the term deed 
 signifies a writing under seal conveying real estate. It is 
 substantially the same in extension as a conveyance, except 
 that the word "conveyance" points to the transaction, while 
 the word "deed" points to the form — the instrument."' 
 
 "There is no magical meaning in the word 'conveyance;' 
 it denotes an instrument which carries from one person to 
 another an interest in land.""' 
 
 § 378. Formal parts and general requisites. Bouvier says 
 the formal parts of a deed for the conveyance of land are, 
 
 1. The premises, which contain all that precedes the haben- 
 dum, namely the date, the names and descriptions of the 
 parties, the recitals, the consideration, the receipt of the 
 same, the grant, the full description of the thing granted, 
 and the exceptions, if any, 
 
 2. The habendum, which states what estate or interest is 
 granted by the deed ; this is sometimes done in the premises. 
 
 3. The tenendum. This was formerly used to express the 
 tenure by which the estate granted was to be held ; but now 
 that all freehold tenures have been converted into socage, 
 the tenendum is of no use, and it is therefore joined to the 
 habendum, under the formula to have and to hold. 
 
 4. The redendum is that part of the deed by which the 
 grantor reserves something to himself, out of the thing 
 granted, as a rent, under the following formula, yielding and 
 paying. 
 
 5. The conditions upon which the grant is made."' 
 
 '''Peo. V. Caton, 25 Mich. 391. '^'Lord Cairns, L. C, in Creed- 
 
 '^' Greenwood v. Ligon, 18 Miss, land v. Potter (L. R.), 10 Ch. App- 
 
 617. 12. 
 
 "" Abbott's Law Diet. tit. " Deed." "^ Bouvier's Law Diet, title Deeds. 
 
870 REAL PROPERTY. 
 
 6. The warranty is that part by which the grantor war- 
 rants the title to the grantee. This is general when the war- 
 rant is against all persons, or special, when it is only against 
 the grantor, his heirs, and those claiming under him."' 
 
 7. The covenants, if any ; these are inserted to oblige the 
 parties or one of them, to do something beneficial to, or to 
 abstain from something, which, if done, might be prejudicial 
 to the other. 
 
 8. The conclusion, which mentions the execution and the 
 date, either expressly, or by reference to the beginning. 
 
 The circumstances necessarily attendant upon a valid deed 
 are the following : i. It must be written or printed on parch- 
 ment or paper;"' 2, There must be sufficient parties; 3, A 
 proper subject matter, which is the object of the grant; 4, A 
 sufficient consideration ; 5, an agreement properly set forth ; 
 6, It must be read, if desired; 7, It must be signed and 
 sealed; 8, It must be delivered; 9, And attested by wit- 
 nesses; ID, It should be properly acknowledged before a 
 competent officer ; 11, It ought to be recorded. 
 
 § 379. Effect of grant or mortgage of real property ad- 
 versely possessed. A grant of real property is absolutely 
 void, if at the time of the delivery of the deed, such prop- 
 erty is in the actual possession of a person claiming under a 
 title adverse to that of the grantor ; but such possession does 
 not prevent the mortgaging of such property, and such mort- 
 gage, if duly recorded, binds the property from the time the 
 possession is recovered by the mortgagor or his representa- 
 tives, and has preference over any judgment or other instru- 
 ment, subsequent to the recording ; and if there are two or 
 more such mortgages, they severally have preference accord- 
 ing to the date of record. 
 
 § 380. Consideration. Every contract must be supported 
 by a valid consideration. And by referring to the principles 
 which govern the law of contract, we can readily ascertain 
 what consideration will support a deed. Briefly, it may be 
 said, that money, marriage, services performed, or rights 
 relinquished, may be viewed as equivalent terms. And the 
 
 "'See 2 Bouvier, title Warranty. "'Litt. 229, a; 2 Bl. Com. 297. 
 
TITLE BY PURCHASE. 87I 
 
 old mildewed distinction between good and valuable con- 
 sideration no longer obtains."' The common law dictum 
 that a seal imports consideration still applies. And very 
 generally the consideration may be shown by parol evidence. 
 
 a. Parol evidence to contradict consideration expressed. In the 
 absence of fraud,' parol testimony is admissible to prove total 
 lack of consideration for a conveyance purporting to have 
 been made for a consideration."" 
 
 A deed given in good faith for a valuable consideration 
 recited, without fraud, accident or mistake, cannot be shown 
 by parol to be without consideration."' Parol evidence is not 
 admissible to show that there was in fact no consideration for 
 a quit claim deed expressing a consideration in money, and 
 that the grantee agreed by parol to hold the lands for the 
 grantor.'" 
 
 As between immediate parties, it is admissible to impeach 
 the consideration of an instrument.'" Such evidence ought 
 not to be excluded merely because such consideration was 
 expressed in writing distinct from the contract.'" 
 
 § 381. Sealing. Comment under this heading is necessarily 
 very much restricted owing to the fact that the subject is 
 regulated exclusively by local laws, which, though having 
 many elements of similarity, differ in detail. It is impracti- 
 cable to attempt a co-ordination of these different rules, and 
 we may safely rely upon the intelligence of the practitioner 
 who is charitably presumed to be familiar with the rules in 
 vogue in his own State. 
 
 § 382. Rules as to acknowledgments. Acknowledgment is 
 the act of a grantor in appearing before a competent officer 
 and declaring in a formal manner that the instrument he pro- 
 duces is his act and deed. The term is also applied to the 
 official certification of this act having been done.'" This 
 acknowledgment must be appended to every deed or mort- 
 
 "' I Whart. Contr. sec. 497. "' Farwell v. Ensign, 66 Mich. 
 
 "" Gardner v. Liglitfoot, 71 Iowa, 600. 
 
 577- '" Wolf V. Fletemeyer, 83 111. 418. 
 
 '*" Feeney v. Howard, 79 Cal. 525. '« Short v. Coulee, 28 111. 228. 
 "' Salisbury v. Clarke, 61 Vt. 453. 
 
8/2 REAL PROPERTY. 
 
 gage before it is entitled to be recorded, and the obvious 
 design is to prevent imposition upon creditors and encum- 
 brancers, as well as to secure the rights of purchasers. "' 
 
 In several of the States an acknowledgment of a married 
 woman must be taken before the notary, prothonotary, or 
 magistrate by an examination separate and apart from her 
 husband. This is for the purpose of circumventing fraud 
 and securing a due acknowledgment from her that in the 
 matter of the alienation she acts upon her own free will and 
 thoroughly understands the legal effect of the signature she 
 appends to the instrument.'" 
 
 a. A cknowledgments and proofs wit km the State. The acknowl- 
 edgment or proof of a conveyance of real property within the 
 State may be made at any place within the State, before a 
 justice of the Supreme Court ;, or within the district wherein 
 such officer is authorized to perform official duties, before a 
 judge, clerk, deputy clerk, or special deputy clerk of a court, 
 a notary public, or the mayor or recorder of a city, a justice 
 of the peace, surrogate, special surrogate, special county 
 judge, or commissioner of deeds. 
 
 b. Acknowledgments and proof s in other States. The acknowl- 
 edgment or proof of a conveyance of real property, within 
 the State, may be made without the State, but within the 
 United States, before either of the following officers acting 
 within his jurisdiction, or of the court to which he belongs : 
 
 1. A judge of the Supreme Court, of the Circuit Court of 
 Appeals, of the Circuit Court, or of the District Court of the 
 United States. 
 
 2. A judge of the Supreme, Superior, or Circuit Court of 
 a State. 
 
 3. A mayor of a city. 
 
 4. A commissioner appointed for the purpose by the gov- 
 ernor of the State. 
 
 § 383. What passes. ' ' A grant of any principal thing shall 
 be taken to carry all which is necessary to the beneficial 
 enjoyment of the thing granted, and which is in the power 
 
 "« Lessees of Sicard v. Davis, 6 Fed. Rep. 361 ; Hittz v. Jenks, 123 
 Pet. 136. U. S. 301. 
 
 "' See Paxton v. Marshall, 18 
 
TITLE BY PURCHASE. 873 
 
 of the grantor to convey. ' '"' Land will pass by a deed whicli 
 does not contain any description of the land, but -which 
 grants only the structure which is erected upon it."' 
 
 § 384. Delivery and its incidents. The delivery of a deed 
 implies a parting with the possession and a surrender of au- 
 thority over it by the grantor at the time, either absolutely 
 or conditionally ; absolutely, if the effect of the deed is to be 
 immediate and the title to pass or the estate of the grantee 
 to commence at once ; but conditionally, if the operation of 
 the deed is to be postponed or made dependent on the hap- 
 pening of some subsequent event. A conditional delivery is 
 and can only be made by placing the deed in the hands of a 
 third person to be kept by him until the happening of the 
 event of which the deed is to be delivered over by the third 
 person to the grantee. But it is an essential characteristic 
 and an indispensable feature of every delivery, whether abso- 
 lute or conditional, that there must be a parting with the 
 possession of the deed and with all power and control over it 
 by the grantor for the benefit of the grantee at the time of 
 the delivery."" The delivery of a deed is as essential to the 
 passing of the title to the land described in it, as is the sign- 
 ing of it or the acknowledgment. It is the final act without 
 which all other formalities are ineffectual. To constitute a 
 delivery, the grantor must part with the legal possession of 
 the deed and of all right to retain or regain it. The present 
 and future dominion over the deed must pass from the 
 grantor. And all this must happen in the grantor's life- 
 time.'" 
 
 a. Possession and record evidence of delivery and acceptance. 
 The possession and record of a deed are prima facie evidence 
 of delivery and acceptance,''" but where the evidence dis- 
 closes the delivery of the deed in violation of an escrow 
 
 "'Johnson v. Jordan, 2 Met. v. Brown, 34 N. H. 476; Fisher v. 
 
 (Mass.) 239. Hall, 41 N. Y. 421 ; Jackson v. 
 
 i^« Greenwood v. Murdock, 9 Leek, 12 Wend. 105; Fay v. Rich- 
 Grey (Mass.), 107. ardson, 7 Pick. 91 ; Alsop v. Swathel, 
 
 ™ Prutsman v. Baker, 30 Wis. 7 Conn. 503 ; Hoboken City Bank 
 
 ^44- V. Phelps, 34 Id. 103 ; 2 Kent's Com. 
 
 "1 Younge v. Guilbeau, 70 U. S. 439 ; i Bouvier, title Delivery. 
 (3 Wall. I) 636, 18 L. ed. 262; Cook '" Brown v. State, 5 Colo. 496. 
 
874 REAL PROPERTY. 
 
 agreement, such deed can have no force or validity.'" No 
 form of words is necessary in the delivery of the deed. If 
 the evidence shows that the grantor has parted with his 
 dominion over it, with the intent that it shall pass title to 
 the grantee, provided the grantee assents to it, either by 
 himself or his agent, such transfer operates to pass a valid 
 title.'" An admirable discussion of this topic will be found 
 in the case of Martz v. Eggemann, 44 Mich. 430.'" 
 
 b. Intention largely governs the question of delivery. Where 
 the circumstances show unmistakably that one party intended 
 to divest himself of the title, and to invest the other with it, 
 delivery will be considered complete though the instrument 
 still remains in the hands of the grantor.'" Parol evidence 
 may be resorted to in order to show the delivery of a deed.'" 
 
 Intention largely controls the question of delivery and this 
 intent may be shown by the acts and declarations of the 
 party.'" It may be "actual" — that is, by doing something 
 and saying nothing — or verbal — that is, by saying some- 
 thing and doing nothing.'" 
 
 c. Delivery in escrow. A deed delivered as an escrow is 
 without the least vitality or effect until the performance of 
 some stipulated condition, either by the grantee or by some 
 other designated person. All rights by virtue of such an 
 instrument are held in abeyance until the second delivery. 
 Until that event, the transaction is incomplete. Nor can any 
 rights attach to the grantor in such a deed, where the cus- 
 tody of it is obtained by fraud or deceit. Indeed, it may be 
 affirmed as a legal postulate that nothing short of the actual 
 performance of the condition agreed upon will give effect to 
 the conveyance in the hands of the grantee. And the deposi- 
 tary is wholly powerless, in the absence of express authori- 
 zation, to waive the performance of the condition. Even his 
 
 '" Hamill V. Thompson, 3 Colo. '" Robinson v. Robinson, 116 111. 
 
 518. 250. 
 
 '"Warren v. Swett, 31 N. H. 332. "*Hill v. McNichol, 80 Me. 209; 
 
 "' Consult also Jones V. Lovelass, Webber v. Cliristen, 121 111. 91. 
 
 •99 Ind. 327; Miller v. Lullman, 81 "'Fain v. Smith, 14 Ore. 82; 
 
 Mo. 311 ; I Rice, Ev. 223. Dwinnell v. Bliss, 58 Vt. 353; 2 
 
 '*« Ruckman v. Ruckman, 32 N. Washb. Real Prop. 578. 
 J. Eq. 259. 
 
TITLE BY PURCHASE. 875 
 
 voluntary delivery of the document is ineffectual to pass the 
 title."" 
 
 § 385. Description of the premises — boundaries. A de- 
 scription of the premises granted is sufficient, if it identifies 
 the land with reasonable accuracy. If it is true in part that 
 which is false may be rejected and full effect will be allowed 
 to the conveyance if a sufficiently accurate description 
 remains to ascertain its application. Words, and even whole 
 paragraphs, may be ignored, if inconsistent with other 
 recitals of the instrument.'" But when the words of a 
 description can be satisfied, to reject a part would be to give 
 a different interpretation to the form than which the parties 
 have expressed, and therefore intended, and the rule that 
 words may be rejected where they are clearly inconsistent 
 with the rest of the description is not applied."" 
 
 Specifications as to quantity, after a particular description 
 by courses, distances, boundaries, etc., will be held subject 
 to the controlling part of the description. If the grantee 
 gets the distinct parcel of land bargained for he will not be 
 heard to complain of a deficiency in area in the absence of 
 positive fraud."" 
 
 a. General rule of construction. A general rule of construc- 
 tion in relation to boundaries, and one which is well sus- 
 tained by the authorities, is thus stated by Judge Gray in a 
 Massachusetts case :'" "Whenever land is described as bounded 
 by other land, or by a building or structure, the name of 
 which, according to its legal and ordinary meaning, includes 
 the title in the land of which it has been made a part, as a 
 house, a mill, a wharf, or the like, the side of the land or 
 structure referred to as a boundary is the limit of the grant ; 
 but where the boundary line is simply by an object, whether 
 natural or artificial, the name of which is used in ordinary 
 
 '™ Calhoun v. Am. Emigrant Co. "' Sampson v. Security Ins. Co. 
 
 93 U. S. 124; Foster v. Mansfield, 3 133 Mass. 49. 
 
 Met. (Mass.) 412; Watkins v. Nash, '^^^ Kent, 466; i Story, Eq. sec. 
 
 L. R. 20 Eq. 262; 3 Washb. Real 141. 
 
 Prop. (5th ed.) 321. '64 City of Boston v. Richardson, 
 
 '"Litchfield v. Co. of Webster, 13 Allen (Mass.), 154. 
 loi U. S. 775 ; White v. Lunning, 
 98 Id. 524. 
 
876 REAL PROPERTY. 
 
 Speech as defining a boundary, and not as describing a title 
 in fee, and which does not in its description or nature include 
 the earth as far down as the grantor owns, and yet which has 
 width, as in the case of a street, a river, a ditch, a wall, a 
 fence, a tree, or a stake, the center of the thing so running 
 over or standing on the land is the line of boundary of the 
 lot granted.'"" 
 
 b. Not void for uncertainty, unless. A deed or other written 
 contract is not void for uncertainty in the description of the 
 land sold or conveyed if, from the words employed, the de- 
 scription can be made certain by extrinsic evidence of facts, 
 physical conditions, measurements, or monuments referred 
 to in the deed.'" And thus a defective description of land 
 may be aided by the conduct of the parties, such as that the 
 vendor put the purchaser in possession of the premises 
 intended to be conveyed.'"' 
 
 It has been held in a well considered opinion by the 
 Supreme Court of the United States, that if the land granted 
 be so inaccurately described as to render its identity wholly 
 uncertain, the grant is void."' 
 
 c. When map or plat will govern the description. When lands 
 are purchased and conveyed in accordance with a plat, the 
 purchaser will be restricted to the boundaries as shown by 
 the plat.'" 
 
 d. Monuments control courses and distances. Where the boun- 
 daries of land are fixed, known and unquestionable monu- 
 
 "* Motley V. Sargent, 119 Mass. 78 Id. 363; Miller v. Mendenhall, 8 
 
 231. L. R. A. 89, 43 Minn. 95; Provi- 
 
 '" I Devlin, Deeds, sec. 1012; dence Steam Engine Co. v. Provi- 
 
 Smith V. Crawford, 81 111. 296; dence & S. A. R. Co. 12 R. I. 348; 
 
 Rockafeller v. Arlington, 91 Id. 375 ; Peck v. Providence Steam Engine 
 
 Choteau v. Jones, 11 Id. 300, 50 Co. supra , Hanford v. St. Paul & 
 
 Am. Dec. 460; Lyman v. Gedney, D. R. Co. 7 L. R. A. 722, 43 Minn. 
 
 1 14 111. 395, 55 Am. Rep. 871. 104; Barker v. Bates, supra; 
 
 161 Purinton v. Northern Illinois Clarke v. Providence, i L. R. A. 
 
 R. R. Co. 46 111. 297; Ottumwa, C. 725, 16 R. I. 337; Hall V.Whitehall, 
 
 F. & St. P. R. R. Co. v. McWil- W. P. Co. 4 Cent. Rep. 222, 103 N. 
 
 liams, 71 Iowa, 164. Y. 129; Simons v. French, 25 Conn. 
 
 "' Boardman v. The Lessees of 346 ; Wood v. Comrs. of West 
 
 Reed, 6 Pet. 545. Boston & C. Bridge, 122 Mass. 394. 
 
 "'Trustees of Schools v, Schroll, See ante^ sec. 193, as to Dedication 
 
 120 111. 509; McCormick v. Huse, and Platting. 
 
TITLE BY PURCHASE. 8/7 
 
 ments, although neither courses nor distances, nor the com- 
 puted contents correspond, the monuments must govern."" 
 If there are no monuments, the land must be bounded by the 
 courses and distances named in the patent or deed."' 
 
 e. Ambiguities removed by evidence aliunde. "When, upon 
 application of the description to the land, it is doubtful what 
 ■was intended, this is a 'latent ambiguity,' and evidence 
 aliunde may be given; as where the description gives the 
 line as running to a maple tree marked, and two maple trees 
 are found, either of which would answer the description;" 
 and again, ' ' when the true line has been long doubtful, and 
 conveyances have been made, bounding on the reputed or 
 supposed line or lines of acutal holding and possession, and 
 such reputed or supposed line is capable of being shown by 
 proof, such conveyances will have their full effect in passing 
 the land up to such supposed line, though a different line be 
 afterwards fixed by the Legislature as the true line by a de- 
 claratory act.""" 
 
 § 386. Judicial construction. In construing a deed, as in 
 construing other contracts, the primary object and duty of 
 the court are to ascertain, and effectuate the intent of the 
 parties, as gathered from a careful perusal of the entire 
 instrument. Having ascertained the intent, the court will 
 carry it into effect, unless by so doing it will contravene 
 some settled principle of law."' Where the intention is 
 clear, too minute a stress is not to be laid upon the significa- 
 tion of words. False English will not vitiate. Disciplined 
 accuracy in grammar is highly commendable — but it is 
 
 '™ Alshire v. Hulse, 5 Ohio, 534 ; Keenan v. Cavanaugh, 44 Vt. 
 
 Smith V. Dodge, 2 N. H. 303 ; Jack- 268. 
 
 son V. Frost, 5 Cow. (N. Y.) 346 ; '" Hammond v. Ridgley, 5 Harr. 
 
 Yates V. Van De Bogert, 56 N. Y. & J. (Md.) 254; Cherry v. Slade, 3 
 
 526 ; Baxter v. Evett, 7 T. B. Monr. Murph. (N. C.) 82; Chinoweth v. 
 
 (Ky.) 333; Call V. Barker, 12 Me. Haskell, 3 Pet. 96; Drew v. Swift, 
 
 325 ; Dogan v. Seekright, 4 Hen. & 46 N. Y. 204. 
 
 M. (Va.) 125 ; West v. Shaw, 67 N. '"Shaw, J., in Cook v. Babcock, 
 
 C. 489 ; Welder v. Hunt, 34 Tex. 7 Cush. 526 ; Putnam v. Boyd, loo 
 
 44 ; Preston v. Bowraar, 6 Wheat. Mass. 58 ; Hall v. Davis, 36 N. H. 
 
 580 ; Riley v. Griffin, 16 Ga. 141 ; 569. 
 
 Moreland v. Page, 2 Iowa, 139; '"Lively v. Rice, 150 Mass. 171. 
 
878 REAL PROPERTY. 
 
 not a legal requirement. The construction is dependent 
 upon the reading and phraseology of the entire instrument. 
 When other rules fail, the language will be taken most 
 strongly against the grantor, and in placing a construction 
 upon the language, words will be construed, if they are used 
 in both senses, according to their legal significance. If two 
 repugnant recitals appear, the one first in order will control."* 
 The court in its effort to fathom the intent of the parties will 
 endeavor to place itself in the position of the parties at the 
 time of the transaction, and with regard to all of the sur- 
 rounding circumstances. '" 
 
 But whether a specific description comes before or after a 
 general designation, it must prevail upon the underlying 
 principle that the law will always demand the production of 
 the highest evidence, and, as between two descriptions, will 
 prefer that which is most certain."" 
 
 A deed should, if possible, be so construed that some effect 
 will be given it. It will be assumed that the parties did not 
 intend that it should be a nullity, and did intend that it 
 should be operative. It will be upheld, rather than de- 
 feated."' 
 
 A. A deed absolute on its face may, as between the parties, 
 be construed to be a mortgage. This assertion is sanctioned 
 by a vast array of authority. The decisions so holding will 
 be found collated in i Rice Ev. 266-269 ; Kerr Real Prop, sec. 
 2071; Pingrey Real Prop, tjt; Tiedeman Real Prop. 307; 2 
 Wash. Real Prop. 44; i Beach Eq. Jur., sees. 84, 408; 3Pom- 
 eroy's Eq. Jur. sec. 1196. For the decisions of the United 
 States Supreme Court see, ante, p. 794, n. 
 
 § 387. Reformation, Cancellation and surrender of deeds. 
 
 The power and duty of equity to grant reformation or can- 
 cellation of deeds and other writings upon parol evidence of 
 the real intention of the parties, and of the mutual mistake 
 by which they have failed to carry out that intention, is con- 
 stantly stated in more and more unqualified language."' 
 
 114 
 
 3 Kent, 422. "'2 Parsons, Cont. 505; Irwin v. 
 
 '"Cilley V. Childs, 73 Me. 133; Kilburn, 104 Ind. 113 ; Gano v. Ald- 
 
 Moran v. Leazotte, 54 Mich. 86. ridge, 27 Id. 294. 
 
 '"See also i Chitty, Cent, (nth '"See Broadway v. Buxton, 43 
 
 ed.) 140; 2 Parson's Cont. 551; i Conn. 282; 2 Pom. Eq. Jur. sec. 
 
 Addison, Cont. 182. 866; Story, Eq. Jur. sec. 152 ; John- 
 
TITLE BY PURCHASE. 879 
 
 § 388. Nature and scope of quitclaim deeds. Quitclaim 
 implies the surrendering of one's claim or title. In realty- 
 transactions it is tlie name given to a peculiar deed or con- 
 veyance whicli operates in the nature of a release, but con- 
 tains words and phrases importing a grant. It is effectual 
 to pass any and all the right, title and interest the grantor 
 has in the premises, the operative words being "remise, 
 release, and forever quitclaim. ' ' Covenants against encum- 
 brances imposed by the grantor personally are frequently 
 included in quitclaim deeds. It has been said that this par- 
 ticular species of conveyance is always ' ' open to suspicion, 
 but such language is unwarranted. It does imply a doubt as 
 to the extent of the grantee's rights, although if he has in fact 
 a good title, his deed conveys his estate as effectually as a 
 deed of warranty."' The United States Supreme Court 
 holds to the rule that one who takes realty under a quitclaim 
 deed is not a "bona fide" purchaser without notice — the 
 mere fact that such a conveyance is offered is sufficient to 
 put the purchaser upon inquiry."" Under a quitclaim deed 
 the grantor enters into no engagements to protect the 
 grantee against title paramount, or indeed against adverse 
 claims of any kind."" 
 
 a. No longer discredited in New York. The agitation over 
 the status of a quitclaim deed has been in no sense creditable 
 to the common sense of several judges, and is now likely to 
 allay itself for the balance of recorded time since the New 
 York Court of Appeals in the case of Wilhelm v. Wilken, 149 
 N. Y. 447, has mercilessly riddled the argument that dis- 
 credited them, and given to such deeds the same attributes 
 of authenticity and character that belong to any qualified 
 agreement. A purchaser under such a deed for a valuable 
 consideration is a purchaser in good faith, and he is not 
 
 son v. Taber, 10 N. Y. 319; Bush v. v. Peet, 49 Id. 501 ; Palmer v. Hart- 
 Hicks, 60 Id. 298; Tabor v. Cilley, ford F. Ins. Co. 54 Id. 488. 
 53 Vt. 487; May v. Adams, 2 New "'Kyle v. Kavanaugh, 103 Mass. 
 Eng. Rep. 203; 58 Vt. 74; Cham- 359. 
 
 berlain v. Thompson, 10 Conn. '*" May v. LeClaire, n Wall. 232 ; 
 
 243; Stedwell v. Anderson, 21 Id. Dickerson v. Colgrove, 100 U. S. 
 
 139; Bunnell v. Read, Id. 586; 584. 
 
 Knapp v. White, 23 Id. 543; Blake- '*'See Richardson v. Levi, 67 
 
 man v. Blakeman, 39 Id. 320 ; Cake Tex. 364. 
 
88o REAL PROPERTY. 
 
 chargeable with notice of any infirmities in the title that do 
 not appear upon the public records, merely from the fact 
 that he has taken the quitclaim deed, or that one appears on 
 his abstract of title."" 
 
 b. United States Supreme Court repudiates its former doctrine 
 concerning them. It is well to note that the Supreme Court of 
 the United States has receded from the doctrine announced 
 in May v. LeClaire, ii Wall. 232, and in the comparatively 
 recent case of Moelle v. Sherwood, 148 U. S. 21. I note the 
 following expressive language : 
 
 ' ' The doctrine expressed in many cases that the grantee in 
 a quitclaim deed cannot be treated as a bona fide purchaser 
 does not seem to rest upon any sound principle. It is 
 asserted upon the assumption that the form of the instru- 
 ment, that the grantor merely releases to the grantee his 
 claim, whatever it may be, without any warranty of its value, 
 or only passes whatever interest he may have at the time, 
 indicates that there may be other and outstanding claims or 
 interests which may possibly affect the title of the property, 
 and, therefore, it is said that the grantee, in accepting a con- 
 veyance of that kind, cannot be a bona fide purchaser and 
 entitled to protection as such ; and that he is in fact thus noti- 
 fied by his grantor that there may be some defect in his title 
 and he must take it at his risk. This assumption we do not 
 think justified by the language of such deeds or the general 
 opinion of conveyancers. ' ' 
 
 § 389. Recording and its incidents, a. Policy of the Registry 
 Law. The policy of the Registry Law is that the title and 
 all that affects it should be disclosed by the public records, 
 and upon the theory that it is thus shown, the rule obtains 
 that the purchaser may rely upon the title as it appears of 
 record, and that he will be protected against unrecorded 
 conveyances, outstanding equities, secret liens and condi- 
 tions of which he has no notice.'*' 
 
 "' Shotwell V. Harrison, 22 Mich. 603; Rowe v. Beclcett, 30 Ind. 154, 
 
 410; GraflE v. Middleton, 43 Cal. 95 Am. Rep. 676 ; Fox v. Hall, 74 
 
 341 ; Bradbury v. Davis, 5 Col. Mo. 315, 41 Am. Rep. 316. As to 
 
 264; Brown v. Banner C. Co. 97 Tax Deeds, see a«/«, page 851, «^ j£^. 
 
 III. 214, 37 Am. Rep. 105 ; Cutler v. "'Williams v. Jackson, 107 U. S. 
 
 James, 64 Wis. 173, 54 Am. Rep. 478, 27 L. ed. 509; Testart v. Belot, 
 
TITLE BY PURCHASE. 88 1 
 
 A deed is recorded, in contemplation of law, when it is 
 entitled to registration, and is deposited with the recorder in 
 his office for that purpose, and if, through any fraud or 
 neglect or mistake of the recording officer, the proper notice 
 is not conveyed to a subsequent purchaser or encumbrancer, 
 the misfortune will fall upon the subsequent purchaser; 
 while other courts hold the opposite doctrine, that the onus 
 is on the grantee, who deposits his deed with the recorder 
 to see that every step is taken, and every act done, that is 
 prescribed by the Registry Laws. For collated authorities 
 on this question see Mangolds. Barlow, 6i Miss. S97; Wade, 
 Notice, pp. 70-73. 
 
 § 390. Nature and scope of covenants. We may crystallize 
 the sense of innumerable decisions by asserting that all 
 covenants are either express or implied, and that any aggre- 
 gation of words that sufficiently 'discloses the intention of 
 the party to be bound is, in contemplation of law, an express 
 covenant. Again, there is nothing sacramental about these 
 expressed covenants. Assuming that they contravene no 
 rule of law or equity, and are not obnoxious to public policy, 
 the courts will construe them precisely as they would any 
 other agreement, and seek to effectuate the mainfest intent 
 of the party. In achieving this they will resort to such 
 methods of construction as will render operative the entire 
 covenant, and it is a cardinal rule of interpretation to follow 
 the reasonable sense of the language employed; while in 
 doubtful instances they will disclose their partiality for the 
 
 31 La. Ann. 797 ; Quick v. Milligan, mers' & M. Nat. Bank v. Wallace 45 
 
 108 Ind. 419, 58 Am. Rep. 49; Ha- Ohio St. 152; Columbia Bank' v 
 
 thorn V. Maynard,65 Ga. 168; Con- Jacobs, 10 Mich. 349; Hart v Farm- 
 
 necticut Mut. L. Ins. Co. v. Talbot, ers' & M. Bank, 33 Vt. 252 • Hoyte 
 
 12 West. Rep. 289, 113 Ind. 373, 3 v. Jones, 31 Wis. 389; Newhall v 
 
 Am. Rep. 655; Newton V. McLean, Burt, 7 Pick. i57;Ashbrook v 
 
 41 Barb. 285; Cogan v. Cook, 22 Roberts, 82 Ky. 298; Hullett v 
 
 Minn. 137; Ramsey v. Jones, 41 Mutual Ins. Co. 4 Cent Rep 767 
 
 Ohio St. 685; Harrington v. Erie 114 Pa. 142; Wright v. Lassiter 71 
 
 County Sav. Bank, 2 Cent. Rep. Tex. 640; Roll. v. Rea 11 Cent 
 
 170, I N Y. 257 ; Pancake v. CaufF- Rep. 363, 50 N. J. L. 266; Dohertv 
 
 raan,5Cent. Rep. 20s 5i4Pa.ii3; v. Stimmel, 40 Ohio St. 294; 
 
 Bailey v. Myrick, 50 Me. 171 ; Far- Kearnes v. Hill 21 Fla IS? 
 56 
 
882 REAL PROPERTY. 
 
 covenantee ; as, in the case of expressed covenants, they may- 
 be entered into without consideration. We shall have made 
 long strides toward the perfect mastery of this topic if we 
 keep clearly in view the foregoing assertions. For three 
 centuries the legal fraternity has been vexed and bewildered 
 by innumerable decisions said to be expository of the law of 
 covenants. But within the last fifty years the American 
 judiciary, thoroughly disgusted with the inhuman vastness 
 of this alleged "exposition" have been formulating pithy 
 and sententious rules that cover the entire subject. And it 
 is the intent of the present writer to classify and exhibit 
 these various determinations in orderly sequence, and 
 entirely ignore a great mass of refined distinctions that have 
 been developed by Mr. Rawle and his satellites with such 
 exasperating ingenuity. 
 
 Covenants are recitals contained in a conveyance whereby 
 either party stipulates that certain facts are true, or binds 
 himself to perform certain things, or make good certain aver- 
 ments. Thus the grantor of land may covenant that he has a 
 right to convey or for the grantee's quiet enjoyment, and the 
 grantee may reciprocally covenant to make certain repairs, 
 pay rent at stated intervals, discharge all assessed taxes, etc.'" 
 
 It may be said that express covenants are those that are 
 explicitly stated in the body of the instrument. Implied 
 covenants are those that the law raises independently of 
 any statement in the instrument. The first are also desig- 
 nated as covenants in deed; and the latter are known as 
 covenants in law. The simple expression "I covenant," "I 
 agree," "I obligate myself," or any other form of words by 
 which it is apparent that the party intends to be bound, 
 create an express covenant while a covenant may be implied 
 from the use of the term "grant," "bargain and sell," "de- 
 mise."'" Joint covenants are those that seek to bind all 
 parties to the covenant that occupy the situation of cove- 
 nantors, while several covenants bind separately. A fortio- 
 rari, a joint and several covenant, operates upon all or any, 
 at the option of the covenantee. 
 
 Implied promises are to be cautiously and not hastily raised. 
 
 ■8*2 Bl. Com. 304. 'SB See 4 Kent's Com. 468; Con- 
 
 "° bee 4 Kents Uom. 468; 
 dad V. Morehead, 98 N. C. 34. 
 
TITLE BY PURCHASE. 883 
 
 What they are was very well stated in Scranton v. Booth, 29 
 Barb. (N. Y.) 174 ; in Allamon v. Albany, 43 Barb. (N. Y.) 36 ; and 
 in Booth V. Cleveland Roll. Mills Co. 6 Hun (N. Y.), 597. They 
 always exist where equity and justice require the party to do 
 or to refrain from doing the thing in question ; where the cove- 
 nant on one side involves some corresponding obligation on 
 the other ; where by the relations of the parties and the sub- 
 ject matter of the contract a duty is owing by one not ex- 
 pressly bound by the contract to the other party in reference 
 to the subject of it. The courts have thrown some safe- 
 guards about the doctrine to secure its prudent application, 
 and have said that a promise can be implied only where we 
 may rightfully assume that it would have been made if 
 attention had been drawn to it,"° and that it is to be raised 
 only to enforce a manifest equity, or to reach a result which 
 the unequivocal acts of the parties indicate that they intended 
 to effect.'" 
 
 a. If against public policy, void. Covenants which contravene 
 public policy are void.'*' Thus, a covenant in restraint of 
 trade generally, though founded on a good consideration, will 
 
 '86 Dermott v. State, 99 N. Y. loi. import something to be performed 
 "' King V. Leighton, 100 N. Y. • at the same time similarly. De- 
 
 386. claratory covenants are those call- 
 
 Note. To symmetrize our notice of ing for some specific direction as to 
 
 covenants it will be necessary to re- the use of property conveyed, 
 
 fer to various adjectives that have Executory covenants, such as are 
 
 been from time to time applied to to be performed in future, while 
 
 them whenever it is necessary to executed covenants are such as 
 
 specifically designate some particu- have already been performed. Ana- 
 
 lar attribute that distinguishes logy wouid suggest the indefinite 
 
 them. For instance, affirmative extension of these covenants, but 
 
 and negative covenants importing when we find them characterized as 
 
 that has been or shall be done or '' transitive and intransitive," the 
 
 that the same thing shall not be point of nausea has been reached, 
 
 done. Alternative or disjunctive Pedantry in its last gasp cannot 
 
 covenants which offer an election invent anything so utterly absurd 
 
 between several things. Collateral as an intransitive covenant and at 
 
 or connected in some indirect way the same time claim that it is a 
 
 with the grant itself and opposed term recognized in the law of real 
 
 to inherent covenants, which last property. 
 
 affect the subject of the grant im- '" See Bier v. Dozler, 24 Gratt. 
 
 mediately. Concurrent covenants (Va.) i. 
 
884 REAL PROPERTY. 
 
 not be sustained.'" But it is otherwise as to a covenant not 
 to trade in a particular place, for a particular time."" 
 
 A covenant not to rent property to a Chinaman is void as 
 against public policy, as violating the 14th amendment to 
 the United States Constitution providing for equal protec- 
 tion of the laws, and as an infraction of the treaty with China 
 guaranteeing to Chinamen in the United States all the rights, 
 privileges, and immunities accorded to citizens and subjects 
 of the most favored nation. "' 
 
 b. Five covenants for title. As commonly reckoned, there 
 are five covenants for title, viz: i. Covenant for seizin; 2, 
 That the grantor has a perfect right to convey; 3, That the 
 grantee shall quietly possess and enjoy the premises withoiit 
 interruption, called a covenant for quiet enjoyment ; 4, The 
 covenant against encumbrances ; 5, The covenant for further 
 assurance ; 6, Besides these covenants there is another fre- 
 quently resorted to in the United States, which is relied on 
 more, perhaps, than . any other, called the covenant of war- 
 ranty. See Rawle on Covenants for Ttile, where the import 
 and effect of these covenants are elaborately and luminously 
 discussed. The covenant of warranty is the most effective 
 of the covenants in American deeds, and, in some of the 
 States, it is the only one in general use."" 
 
 c. Collateral warranties discredited. There is but very scant 
 respect shown by the law or the judges in this country to the 
 old English doctrine of lineal or collateral warranties. Lord 
 Cowper characterized them "as certainly one of the harshest 
 points of the common law." And Mr. Justice Story was 
 equally vehement in condemnation. "The doctrine of col- 
 lateral warranties is one of the most unjust and indefensible in 
 the whole range of the common law, and in a country like 
 ours would daily work the greatest public mischiefs.'"" It 
 
 '»» Nobles V. Bates, 7 Cow. (N. Y.) '" Gandolfo v. Hartman, 49 Fed. 
 
 307 ; Callahan v. DonnoUy, 45 Cal. Rep. 181. 
 
 152; Maierv. Homan, 4Daly (N.Y.), "'See Leary v. Durham, 4 Ga. 
 
 168 ; Oregon Steam Nav. Co. v. 593, ^01 ; Dickinson v. Hoomes, 8 
 
 Windsor, 20 Wall. 64. Gratt. (Va.) 353, 399. 
 
 "° Id.; and see Perkins v. Clay, 54 "' Sisson v. Seabury, i Sumner, 
 
 N. H. 518; Pierce v. Fuller, 8 Mass. 236. 
 223; Palmer v. Stebbins, 3 Pick. 
 (Mass.) 188. 
 
TITLE BY PURCHASE. 885 
 
 has very generally been repudiated in the United States. "* 
 There appears to be some lingering survival of the law in 
 Kentucky and Pennsylvania. 
 
 d. Construction of covenants in grants of freehold interests. In 
 grants of freehold interests in real property, the following or 
 similar covenants must be construed as follows : 
 
 e. Seizin. A covenant that the grantor "is seized of the 
 said premises (described) in fee simple, and has good right to 
 convey the same, ' ' must be construed as meaning that such 
 grantor, at the time of the execution and delivery of the con- 
 veyance, is lawfully seized of a good, absolute and indefeasi- 
 ble estate of inheritance in fee simple, of and in all and singu- 
 
 ■ lar the premises thereby conveyed, with the tenements, her- 
 editaments and appurtenances thereto belonging, and has 
 good right, full power and lawful authority to grant and 
 convey the same by the said conveyance. 
 
 f. Quiet enjoyment. A covenant that the grantee "shall 
 quietly enjoy the said premises," must be construed as mean- 
 ing that such grantee, his heirs, successors and assigns, shall 
 and may, at all times thereafter, peaceably and quietly have, 
 hold, use, occupy, possess and enjoy the said premises, and 
 every part and parcel thereof, with the appurtenances, with- 
 out any let, suit, trouble, molestation, eviction, or disturb- 
 ance of the grantor, his heirs, successors or assigns, or any 
 person or persons lawfully claiming or to claim the same. 
 
 g. Freedom from encumbrances. A covenant ' ' that the said 
 premises are free from encumbrances, ' ' must be construed as 
 meaning that such premises are free, clear, discharged and 
 unencumbered of and from all former and other gifts, grants, 
 titles, charges, estates, judgments, taxes, assessments, liens 
 and encumbrances, of what nature or kind soever. 
 
 h. Further assurance. A covenant that the grantor will 
 "execute or procure any further necessary assurance of the 
 title to said premises, "must be construed as meaning that 
 the grantor and his heirs, or successors, and all and every 
 person or persons whomsoever lawfully or equitably deriving 
 any estate, right, title or interest of, in, or to the premises 
 conveyed by, from, under, or in trust for him or them, shall 
 
 "*4 Kent's Com. 469, note, 12 Ed. 
 
886 REAL PROPERTY. 
 
 and will at any time or times thereafter upon the reasonable 
 request, and at the proper cost and charges of the grantee, 
 his heirs, successors and assigns, make, do, and execute, or 
 cause to be made, done, and executed, all and every such 
 further and other lawful and reasonable acts, conveyances 
 and assurances in the law for the better and more effectually 
 vesting and confirming the premises thereby granted or so 
 intended to be, in and to the grantee , his heirs, successors or 
 assigns, forever, as by the grantee, his heirs, successors, or 
 assigns, or his or their counsel learned in the law, shall be 
 reasonably advised or required. 
 
 i. Warranty of title. A covenant that the grantor "will 
 forever warrant the title" to the said premises, must be con- 
 strued as meaning that the grantor and his heirs, or succes- 
 sors, the premises granted, and every part and parcel 
 thereof, with the appurtenances, unto the grantee, his heirs, 
 successors, or assigns, against the grantor and his heirs or 
 successors, and against all and every person and persons 
 whomsoever lawfully claiming or to claim the same shall and 
 will warrant and forever defend. 
 
 j. Grantor has not encumbered. A covenant that the grantor 
 "has not done or suffered anything whereby the said premi- 
 ses have been encumbered, ' ' must be construed as meaning 
 that the grantor has not made, done, committed, executed, 
 or suffered any act or acts, thing or things whatsoever, 
 whereby or by means whereof, the above mentioned and 
 described premises, or any part or parcel thereof, now are, 
 or at any time hereafter shall or may be impeached, charged 
 or encumbered in any manner or way whatsoever. 
 
 1. Of covenants that run with the land. Kent states the rule 
 in this language: "The distinction between the covenants 
 that are in gross and covenants that run with the land (and 
 which are covenants real, annexed to or connected with the 
 estate, are beneficial to the owner of it, and to him only), 
 would seem to rest principally upon this ground: that to 
 make a covenant run with the land there must be a subsist- 
 ing privity of estate between the covenanting parties.'"" 
 
 Lord St. Leonards (Mr. Sugden) discusses this question at 
 
 '"4 Kent's Com. 473. 
 
TITLE BY PURCHASE. 88/ 
 
 considerable length and reaches the conclusion that the 
 covenant of a stranger to a title does not run with the 
 land.""' 
 
 Mr. Justice Finch, in Mygatt v. Coe, 142 N. Y. 78, says: 
 "Privity of estate is essential to carry covenants of war- 
 ranty to subsequent grantees so as to support a right of 
 action by them against the original covenantor whenever 
 evicted by a title paramount to his ; that a covenant of war- 
 ranty made by one having neither title nor possession, and so 
 no estate in the land, will not run with it into the hands of sub- 
 sequent grantees, but will stop where the privity of contract 
 ends, and so at the first or original covenantee ; an independ- 
 ent and collateral warrantor — having and transferring no 
 estate in the land, and so in no sense or degree a privy in 
 estate with the subsequent grantees. But privity of estate is 
 not always essential to carry the covenant down the line of 
 successive grantees, and one who conveyed nothing, but 
 covenanted much, like the prior of the covenant who promised 
 perpetual song to the manor chapel, might find his covenant 
 attached to the land, and running with it into hands, and for 
 the benefit, of successive owners. But, while holding and 
 defending this doctrine, Judge Bradley, who wrote the dis- 
 senting opinion in Mygatt v. Coe, 124 N. Y. 212, did not press 
 the point, or rely upon it as the ground of ultimate decision, 
 but insisted that Coe, the covenantor, was not a stranger to 
 the title, because he joined with his wife as a grantor, and 
 assumed to unite with her in transferring the estate which 
 actually passed." 
 
 This view of the case was particularly italicized by Judge 
 Finch on the re-argument of the case last cited (142 N. Y. 78), 
 and his luminous opinion makes it evident that a husband 
 joining with his wife as an ostensible grantor in a convey- 
 ance of land which is the sole and absolute property of the 
 wife, thereby binds himself by a covenant that "runs with 
 the land. " He is not regarded as a stranger to the title, but 
 his mere joint occupancy with his wife imparts to him a 
 
 ™i Sugd. Vend. 716, 718, 719, 51; i Taylor, Land and Ten. 8th ed. 
 
 721 (7th Am. ed. 168, 170, 171, 173), sec. 261 ; Lawyers' Reports, Anno- 
 
 pp. 25, 26, 33-35, 38. See Piatt, tated, Book 11, page 651. 
 Cov. 461 ; Chitty, Cont. 12th ed. 
 
888 REAL PROPERTY. 
 
 qualified form of estate sufficient, at least to give lasting- 
 vitality to his covenant. The three opinions of Finch, Fol- 
 let, and Bradley (dissenting), are an inexhaustible mine of 
 information upon this vexed topic of law. 
 
 To the general rule that between the covenantor and cove- 
 nantee there must be such privity of estate as would formerly 
 have given rise to the rule of tenure, there are in some States 
 well recognized exceptions. Covenants capable of running 
 with an assignment of a present estate in land may, it seems, 
 have that capacity in certain cases, although no estate passes 
 between the covenantor and covenantee at the time of cove- 
 nant made. The obligation of contracts is, in general, lim- 
 ited to the parties making them. Where privity of contract 
 is dispensed with, there must ordinarily be privity of estate ; 
 but justice sometimes even requires that the right to enjoy 
 such contracts should extend to all who have a beneficial 
 interest in their fulfillment, not to impose a burden upon an 
 ignorant and innocent third person, but to enable purchasers 
 of land to avail themselves of the benefit to which they are 
 in justice entitled. The character of a covenant of this kind 
 must depend upon the effect of the entire agreement of 
 which it is a part, and, where the benefit and the burden are 
 so inseparably connected that each is necessary to the exist- 
 ence of the other, both must go together. The liability to the 
 burden will be a necessary incident to the right to the benefit.'" 
 
 There is no rule of law or consideration of public policy to 
 prevent any landowner from making, by express words, any 
 covenant whatever to run with the land, whether it would 
 otherwise do so or not."' 
 
 Mr. Wait tabulates the following covenants which have 
 been held to ' ' run with land :" A covenant by the purchaser of 
 land, not to exercise, or permit to be exercised, any offensive 
 trade upon the premises;'" a covenant that neither the 
 
 "'See note to Spencer's case, i grounds, 12 Cent. Rep. 191, 109 N. 
 
 Smith, Lead. Cas. pt. i, p. 174; T. 153. 
 Coleman v. Coleman, 19 Pa. 100. "' Barron v. Richard, 3 Edw. Ch. 
 
 "*Weyman v. Ringold, i Bradf. (N. Y.) 96 ; S. C, affirmed, 8 Paige 
 
 (N. Y.) 40; Bedell v. Kennedy, (N. Y.), 351 ; and see Jeter v. Glenn, 
 
 38 Hun, 510; affirmed on other 9' Rich. (S. C.) 374; St. Andrew's 
 
 Church'? Appeal, 67 Penn. St. 512. 
 
TITLE BY PURCHASE. 889 
 
 grantor nor his heirs shall make any claim to the land con- 
 veyed;'" a covenant to save the husband from the wife's 
 claim of dower ;'" a covenant that the grantor will leave an 
 adjoining strip ten feet wide, "open forever for the public 
 convenience, and the use of the adjoining lots;"°°''or by a 
 grantor not to erect, or suffer to be erected, any structure or 
 edifice upon a lot adjoining the lot conveyed."" So it is held 
 that a covenant in a conveyance of city lots, that any house 
 which might be erected thereon should be set back a certain 
 distance from the line of the street on which such lots 
 fronted, runs with the land, and binds not only the cove- 
 nantors but all who derive title through their deed.'" 
 
 § 391. Deed poll. A deed made by one party only is not 
 indented, but polled or shaved quite even, and is, for this 
 reason, called a deed poll, or single deed."' 
 
 It is not, strictly speaking, an agreement between two per- 
 sons ; but a declaration of some one particular person, respect- 
 ing an agreement made by him with some other person."" 
 
 Where a grantee accepts a deed poll, and goes into posses- 
 sion of the premises under it, he is bound by the conditions 
 contained in the deed as effectually as if he had signed and 
 sealed the instrument. Although not executing the instru- 
 ment, he should be deemed to have entered into an express 
 undertaking to do what the deed says he is to do ; and such 
 undertaking or obligation imposed upon and assumed by the 
 grantee, if not technically a covenant running with the land, 
 is, nevertheless, an agreement of the grantee, evidenced by 
 his acceptance of the deed, which might bind him and his 
 personal representatives, and by express words, his heirs 
 and assigns."' 
 
 ""> Fairbanks v. Williamson, 7 ^*Winfield v. Henning, 21 N. J. 
 
 Me. 96; and see Trull v. Eastman, Eq. 188; see Grigg v. Landis, Id. 
 
 3 Met. (Mass.) 121. 494; cited from Wait's Ac. & Def. 
 
 =»■ Gaines v. Poor, 3 Mete. (Ky.) Vol. II, p. 394, sect. 8. 
 
 503- ™' Co. Litt. 299, a. 
 
 "« Brew V. Van Deman, 6 Heisk. "« Cruise, Real Prop. 32. 
 
 (Tenn.) 433 ; and see Dailey v. "" See Burbank v. Pillsbury, 48 
 
 Beck, Bright (Penn.), 107. N. H. 475, 97 Am. Dec. 633. 
 
 '"'Trustees of Watertown v. 
 Cowen, 4 Paige (N. Y.), 510. 
 
SgO REAL PROPERTY. 
 
 A decision substantially similar was rendered in Kellogg v. 
 Robinson, 6 Vt. 276, 27 Am. Dec. 550."" 
 
 § 392. Fraudulent conveyances, a. What fraud creates jus- 
 tice will destroy — Not true that fraud never can be presumed- 
 The rule is universal "whatever fraud creates justice will 
 destroy.""" A conveyance of land without consideration, is 
 conclusively presumed to be fraudulent as against creditors, 
 not only without proof of any dishonest intent, but in oppo- 
 sition to the most convincing evidence that the objects and 
 motives of the parties were fair. When creditors are about 
 to be cheated, it is very uncommon for the perpetrators to 
 call in witnesses to see it done. A resort to presumptive 
 evidence, therefore becomes absolutely necessary to protect 
 the rights of honest men from this as from other invasions. 
 "It is not true that fraud never can be presumed.""" Credit- 
 ors are a favored class."" It is not necessary that they should 
 show any actual fraudulent intent, as the requisite intent 
 may be inferred from the circumstances of the case."'" And 
 it is not material to the inquiry to determine what motive 
 actuated the parties, if the necessary effect of the disposi- 
 tion is to hinder and delay creditors."" The old distinction 
 between fraud in fact and fraud in law is very attenuated — 
 has in fact entirely disappeared in all cases involving the 
 fraudulent conveyance of real estate. Only show the trans- 
 action to be covinous and the courts will rectify matters 
 without the least regard to this hoary fiction. Proof of fraud 
 need not, however, be so complete in equity as in law. 
 
 b. The statute of I'i Elizabeth. In Mulford v. Peterson, 35 
 N. J. Law, 133, the court said: "The statute 13 Eliz., c. 5, 
 makes utterly void, frustrate, and of no effect, every feoff- 
 ment, gift, grant, alienation, bargain, and conveyance of 
 lands, tenements, goods, and chattels, or any of them, devised 
 
 ''»8 Maynard v. Moore, 76 N. C. 2i» Black, Ch. J., in Kane v. Weig- 
 
 158; Maule V. Weaver, 7 Pa. St. ley, 22 Pa. St. 183. 
 
 329; Hinsdale v. Humphrey, 15 '"' Fouche v. Brower, 7463.251. 
 
 Conn. 432 ; Georgia Southern Rail- ^'^ Cole v. Tyler, 65 N. Y. TJ. 
 
 road V. Reeves, 64 Ga. 492. '""Moore v. Wood, 100 III. 451. 
 
 S09 Vreeland v. New Jersey Stone 
 Co. 29 N. J. Eq. 190. 
 
TITLE BY PURCHASE. 89I 
 
 and contrived to delay, hinder, or defraud creditors as against 
 such creditors, any pretense, color, feigned consideration, 
 expressing of use, or any other matter or thing to the con- 
 trary. By the 27 Eliz., c. 4, conveyances made to defraud 
 subsequent purchasers, are declared void as to persons de- 
 frauded. The principles of this statute have been adopted 
 in all the States of the American Union. But although such 
 conveyance is void as regards purchasers and creditors, it is 
 valid as between parties. 
 
 c. Comments of Mr. May. "The Statute of 13 Elizabeth 
 is directed not only against such transfers of property as 
 are made with the express intention of defrauding credi- 
 tors, but * * * extends as well to such as virtually 
 and indirectly operate the same mischief, by abusing their 
 confidence, misleading their judgment, or secretly under- 
 mining their interests, to obviate which it has gradually 
 grown into a practice to regard certain acts or circumstances 
 as indicative of a so called fraudulent intention in the con- 
 struction of the statutes, although perhaps there was, in fact 
 no actual fraud or moral turpitude. It is difficult in many 
 cases of this sort to separate the ingredients which belong to 
 positive and intentional fraud from those of a mere construc- 
 tive nature, which the law thus pronounces fraudulent upon 
 principles of public policy.""' 
 
 d. The doctrine of Twyne s Case considered. In McCulloch v. 
 Hutchinson, 7 Watts. (Pa.), 435, Sergeant, J., said: "The 
 statutes on this subject are liberally expounded for the pro- 
 tection of creditors, and to meet the schemes and devices by 
 which a fair exterior may be given to that which is in reality 
 collusive. """ " The statute, ' ' says Allen, J. , " has always had 
 a liberal interpretation, for the prevention of frauds. ' """ The 
 law "loves honesty and fair dealing," and " so construes 
 liberally the statutes to suppress frauds,'"' as far as they 
 annul the fraudulent transactions."'"' As early as Twyne' s 
 
 "'■' May on Fraudulent Convey- 383 ; see Pennington sr. Seal, 49 
 
 ances, p. 4. Miss. 525. 
 
 "*See Cadogan v. Kennett, 2 ^" Citing Twyne's Case, 3 Rep. 8- 
 
 Copw. 432; Gooch's Case, 5 Rep. ob (2 Coke, 212); Cadagon v. Ken- 
 
 60 (3 Coke, 121); Allen v. Rundle, nett, 2 Copw. 432-434. 
 50 Conn. 31. "* Bishop on Written Laws, 192. 
 
 "' Young V. Heermans, 66 N. Y. 
 
892 REAL PROPERTY. 
 
 Case, 3 Rep. 82a, 2 Coke, 219, it was resolved tliat "because 
 fraud and deceit abound in those days more than in former 
 times, * * * all statutes made against fraud should be 
 liberally and beneficially expounded to suppress the fraud. ' ' 
 Twynes Case has taken deep hold in our law, and the main 
 principles that control the determination of the different 
 phases of fraudulent conveyances can generally be traced to 
 this parent roof. That the case should at this late day be so 
 widely cited and relied upon is conclusive proof that it em- 
 bodies a forcible exposition of sound and necessary rules 
 affecting covinous transfers, which neither lapse of time nor 
 change in circumstances can supersede. The case attains 
 the same relative prominence as a precedent in the authori- 
 ties that is accorded to the statute 13 Eliz., c. 5, as a model 
 for modern legislative enactments. 
 
 e. Direct proof of fraud unnecessary. A fraudulent intent is 
 seldom the subject of direct and conclusive proofs; infer- 
 ences more or less convincing in their character must of 
 necessity implicate themselves in a greater or less degree 
 with the evidentiary facts the trial of the case develops. 
 One of these inferences, which is frequently of great import- 
 ance, is that arising from the fact that the debtor has made 
 other fraudulent transfers of his property at or about the 
 time of the transfer in controversy. It follows that evidence 
 calculated to disclose previous or even subsequent fraudulent 
 conveyances is competent, and its rejection is reversible 
 error."" 
 
 In People v. Cook, 8 N. Y. 67, 79, Willard, J., said: "Fraud 
 can never, in judicial proceedings, be predicated of a mere 
 emotion of the mind, disconnected from an act occasioning 
 an injury to some one." 
 
 f . Indications of fraudulent transfer. The entire tenor of 
 
 ^" 2 Rice, Ev. 976, citing Christo- Warren v. Williams, 52 Me. 343 ; 
 
 pher V. Covington, 2 B. Men. (Ky.) Mower v. Hanford, 6 Minn. 535 ; 
 
 357; Crowv. Ruby, 5 Mo. 484; Cram Summers v. Rowland, 2 Baxt. 407; 
 
 V.Mitchell, i Sandf. Ch. (N.Y.)25i, Prewit v. Wilson, 103 U. S. 22, 26 
 
 7L. ed. 318; Whittier V. Varney, 10 L. ed. 360; Stockwell v. Silloway, 
 
 N.H.29r; VanKirk v.Wilds,ii Barb. 113 Mass. 384; Blake v. White, 13 
 
 (N.Y.)52o; Howev.Read, i2Me. 515; N. H. 267; Guerin v. Hunt, 6 
 
 Ford V. Williams, 3 B. Mon. (Ky.) Minn. 375. 
 550; Sarle v. Arnold, 7 R. I. 582; 
 
TITLE BY PURCHASE. 893 
 
 judicial investigation, whenever fraudulent transfers are in- 
 volved, indicates the pertinency of any evidence calculated 
 to disclose : 
 
 1. An unusual term of credit. 
 
 2. Threats of either a civil or criminal action. 
 
 3. Gross inadequacy of consideration. 
 
 4. Allegations of antecedent indebtedness, from husband 
 to wife, father to son. 
 
 5. Absence of security for the purchase price. 
 
 6. Failure to record the deed. 
 
 7. A retention of possession, by the grantor or transferror. 
 Proof of any or all of the above tabulated circumstances is 
 
 competent, and some satisfactory explanation from the par- 
 ties should be required.'"" 
 
 It may be further observed that slight proof is necessary 
 to establish proof of fraudulent intent between parties who 
 occupy confidential or fiduciary relations.'" 
 
 g. No length of time can purge a fraud. Lord Erskine said : 
 ' ' No length of time can prevent the unkennelling of a fraud. 
 In Alden v. Gregory, 2 Eden, 285, Lord Northington exclaims: 
 "The next question is in effect whether delay will purge a 
 fraud? Never, while I sit here! Every delay arising from 
 it adds to the injustice, and multiplies the oppression.""" 
 
 h. Distinction between " void" and '' voidable." I. A fraudu- 
 lent conveyance of real estate by a debtor is not void as to 
 his creditors, but only voidable. Such conveyance passes 
 all the estate and interest in the land from the grantor to the 
 , grantee, and leaves nothing in the debtor to which a judg- 
 ment lien, or the levy of an execution, can attach. Such 
 estate and interest as the debtor previously had in the land 
 remains in the grantee, until the fraudulent conveyance has 
 been set aside, and the legal title thereby restored and re- 
 invested in the grantor. The fallacy underlying all the 
 decisions holding fraudulent conveyances "void" has been 
 shown by late text writers and judicial decisions."'' 
 
 2™Philbrick v. O'Connor, 15 Or. Long v. Mulford, 17 Ohio St. 484, 
 
 15; Little V. Ragan, 83 Ky. 321 ; 93 Am. Dec. 638 ; Fisher v. Bishop, 
 
 Cole V. Terrell. 71 Tex. 549; Hick- 10 Cent. Rep. 707, 108 N. Y. 25. 
 
 man v. Trout, 83 Va. 478; Cooper ''''See Prevost v. Gratz, 6 Wheat. 
 
 V. Davidson, 86 Ala. 368. 497. 
 
 2" Fisher v. Herron, 22 Neb. 183 ; "^ Wait, Fraud. Conv. p. 564. 
 
894 REAL PROPERTY. 
 
 No words are more inaccurately used in the books than 
 "void" and "voidable.""* Void, is held to mean voidable at 
 the suit of creditors."' What is only voidable is often called 
 void."" A deed is not void which is obtained from the grantor 
 by fraud, but only voidable."' 
 
 i. Fraudulent intent, question of fact. The question of 
 fraudulent intent is deemed a question of fact and not of 
 law; and a conveyance or charge shall not be adjudged 
 fraudulent as against creditors, purchasers or encum- 
 brancers, solely on the ground that it was not founded on a 
 valuable consideration. 
 
 j . Debtor may PREFER one creditor over another. " If a debtor is 
 unable to pay all his debts, he commits no fraud (in the ab- 
 sence of any statutory provision regulating the distribution 
 of insolvent estates), by appropriating his property to the 
 satisfaction of one or more of his creditors to the exclusion 
 of all others. Nor does it make any difference that both 
 creditor and debtor know that the effect of such appropria- 
 tion will be to deprive other creditors of the power of reach- 
 ing the debtor's property by legal process, in satisfaction of 
 their claims. If there is no secret trust agreed upon, or 
 understood, between debtor and creditor, in favor of the 
 former, but the sole object of the transfer of property is to 
 pay or secure the payment of a debt, the transaction is a 
 valid one at common law. The distinction between a 
 transfer of property, made solely by way of preference of 
 one creditor over others, is perfectly legal. °" 
 
 § 393- The Statute of Frauds in its relation to conveyances. 
 
 "In dealing with real property it is well to bear in mind that 
 we have upon our books the Statute of Frauds, the chief pur- 
 
 ='^ Bromley v. Goodrich, 40 Wis. Wall.) 237, 17 L. ed. 827; Preston 
 
 139, 22 Am. Rep. 685. v. Cutter, 64 N. H. 461; Jones v. 
 
 '"Merrill v. Englesby, 28 Vt. 150, Bryant, 13 N. H. 53. 
 
 '''^ Larkin v. Saffarans, 1 5 Fed. '"' Cross v. Carstens, 49 Ohio St. 
 
 Rep. 152; see Freeman, Judgm.; 548; Love v. Wells, 25 Ind. 506; 
 
 Freeman, Executions; Kearney v. Wight v. Geer, i Root. 474; Kep- 
 
 Vaughan, 50 Mo. 287 ; Anderson v. ner v. Keefer, 6 Watts, 231 ; Towle 
 
 Roberts, 18 Johns. (N. Y.) 515, 9 v. Larabee, 26 Me. 464; Allen v. 
 
 Am. Dec. 235. Deming, 14 N. H. 133. 
 
 «" Miller v. Sherry, 69 U. S. (2 
 
TITLE BY PURCHASE. 895 
 
 pose of wliicli is to regulate the methods of transmitting title 
 to and protect the owners thereof against unfounded claims. 
 The Statute of Frauds was intended for the security of titles, 
 and its beneficial effects ought not to be swept away by parol 
 testimony, except of the clearest and most convincing char- 
 acter. " It is a wise and politic enactment and accords with 
 the common experience of mankind, and the tendency of the 
 courts of the present day is strongly in favor of sustaining 
 and enforcing its provisions.™ 
 
 a. Extract from Sec. 4. The section which peculiarly affects 
 the law of real property is the fourth, where it is enacted, 
 that ' ' no action shall be brought upon any contract for the 
 sale of lands, tenements, or hereditaments, or any interest in 
 or concerning them ; unless the agreement upon which such 
 action shall be brought, or some memorandum or note 
 thereof, shall be in writing and signed by the party to be 
 charged therewith, or some other person thereunto by him 
 lawfully authorized." 
 
 b. Contracts within the statute not void but voidable. Contracts 
 within the statute are not void, but merely voidable, and the 
 party to be charged may waive the statute and the contract 
 thereby becomes binding upon him."" 
 
 The Statute of Frauds being a purely personal defense, a 
 contract within the statute is good against all the world until 
 the party to be charged repudiates it."' 
 
 c. Does not apply to judicial sales. It has been held in New 
 York, that a judicial sale by an officer of the court is not 
 within the statute."'' An Alabama decision holds that a judi- 
 
 '^''^ Lindsay v. Lynch, 2 Sch. & 132 ; Davis v. Inscoe, 84 N. C. 396 
 
 Lef. I ; Parkhurst v. Van Cort- Cooper v. Hornsby, 71 Ala. 62 
 
 landt, I Johns. Ch. (N. Y.) 285, i L. Christy v. Brien, 14 Pa. 248 
 
 ed. 142; Phillips v. Thompson, i Houser v. L^mont, 55 Pa. 311,93 
 
 Johns. Ch. (N. Y.) 132, i L. ed. 89; Am. Dec. 755 ; Chicago Dock Co. 
 
 German v. Machin, 6 Paige (N. Y.) v. Kinzie, 49 111. 289 ; Wright v. 
 
 289, 3 L. ed. 990; Wallace v. Long, Jones, 105 Ind. 17 ; Savage v. Lee, 
 
 105 Ind. 522. loi Ind. 514; Ames v. Jackson, 115 
 
 ^^ Huffman v. Ackley, 34 Mo. Mass. 508. 
 277; Kratz V. Stocke, 42 Mo. 351 ; ''' Hegeman v. Johnson, 35 Barb. 
 
 Maybee v. Moore, 90 Mo. 340 ; (N. Y.) 200 ; and see Emley v. Drum, 
 
 Aultraan v. Booth, 95 Mo. 385. 36 Pa. St. 123. 
 
 iisi Browne, Stat. Fr. 4th ed. sec. 
 
896 REAL PROPERTY. 
 
 cial sale is taken out of the statute after a decree of confirma- 
 tion, and by virtue thereof, and not before."' But the memo- 
 randum must be sufficient to identify the property sold or it 
 will be invalid."* 
 
 An agreement to procure a conveyance of lands is not 
 within the statute, and admits of proof by parol evidence."' 
 
 d. The doctrine of part performance — Views of Mr. Justice 
 Earl. The statute, as we have seen, requires that a contract 
 concerning realty shall be in writing. Courts of equity 
 have, however, relaxed the rigidity of this rule by holding 
 that a part performance of an oral contract removes the bar 
 of the statute, on the ground that it would be a fraud for a 
 vendor to take advantage from the absence of a written 
 instrument when he has permitted the contract to be partly 
 executed ; especially so, where valuable improvements have 
 been made by the vendee."" But the acts should clearly 
 appear to have been done solely with a view to the agree- 
 ment being performed. On this account acts that are merely 
 introductory or ancillary to an agreement are not considered 
 as a part performance, although attended with expense."" 
 
 This doctrine of part performance is of wide acceptation 
 and must commend itself to every equitable consideration as 
 a salutary method of preventing gross injustice. To evoke 
 its application the existence of the parol contract must be 
 shown with reasonable certainty and it must have been so far 
 performed that compensation in damages would be inade- 
 quate and a rescission both inequitable and unjust to the per- 
 forming party."' 
 
 The attitude of modern equity regarding the Statute of 
 Frauds is admirably expressed by a great jurist who, in voic- 
 ing the opinion of the New York Court of Appeals, employs 
 the following significant language : " It is a mistake to sup- 
 pose that parol agreements relating to land are more valid in 
 
 231 Warren v. Warren, 105 111. 
 576; Plymale v. Comstock, 9 Oreg. 
 318 ; Chitty, Cont. 278; Poll. Cont. 
 
 557- 
 
 ''^^ Brown v. Hoag, 35 Minn. 375 ; 
 Halsey v. Peters, 79 Va. 67. 
 
 '"3 Hutton 
 
 V. Williams, 
 
 35 
 
 Ala. 
 
 503- 
 
 
 
 
 '^'^Ridgway v. Ingram, 
 
 50 
 
 Ind. 
 
 149, 19 Am. 
 
 Rep. 706. 
 
 
 
 235 Bannon 
 
 V. Bean, 9 
 
 Iowa (i 
 
 With.) 493. 
 
 
 
 
 ''*Neale v. 
 
 Neale, 9 Wall. 9. 
 
 
TITLE BY PURCHASE. 897 
 
 equity than in law. They are always and everywhere invalid. 
 Bat courts of equity have general jurisdiction to relieve 
 against frauds ; and where a parol agreement relating to land 
 has been so far partly performed that it would be a fraud upon 
 the party doing the acts unless the agreement should be per- 
 formed by the other party, the court will relieve against this 
 fraud and apply the remedy by enforcing the agreement. It 
 is not the parol agreemnt which lies at the foundation of the 
 jurisdiction in such a case, but the fraud. So in reference to 
 parol trusts in lands. They are invalid in equity as well as 
 in law. But in case of fraud, courts of equity will sometimes 
 imply a trust, and will treat the perpetrator of the fraud as a 
 trustee "ex maleficio" for the purpose of administering a 
 remedy against the fraud. For the same purpose it will take 
 the trust which the parties have attempted to create and en- 
 force it ; and in such a case the fraud, not the parol agree- 
 ment, gives the jurisdiction.'" Neither law nor equity will 
 relieve a party from the operation of the statute who has no 
 tangible interest in the property ; who has not been prejudiced 
 in any way by acting upon the parol agreement, and has per- 
 formed no act in the way of part performance. Simply by 
 coming into court with the allegation that the other party is 
 guilty of a fraud, will avail him nothing, as the court will, in 
 such a case, leave them precisely where it found them.""" 
 
 The rule is well settled that part performance takes a parol 
 agreement for the purchase of land out of the Statute of 
 Frauds."' 
 
 e. The memorandum clause. The memorandum required 
 by the statute must contain all the essential terms of the 
 contract, expressed with such a degree of certainty as to 
 render it unnecessary to resort to parol evidence to deter- 
 
 239 Wheeler v. Reynolds, 66 N. Adrian, 77 N. C. 83; Williams v. 
 
 Y. 227 ; and see Reese v. Wallace, Morris, 95 U. S. 444 ; Hobbs v. 
 
 113 111. 595. Wetherwax, 38 How. (N. Y.) Pr. 
 
 ""Levy V. Brush, 45 N. Y. 589. 390; Wharton v. Stoutenbargh, 35 
 
 "^^ Northrop v. Boone, 66 111. 368 ; N. J. Eq. 266 ; Cannon v. Collins, 3 
 
 Tilton V. Tilton, 9 N. H. 385 ; Wiley Del. Ch. 132 ; Green v. Jones, 76 
 
 v. Bradley, 60 Ind. 62 Ottenhouse Me. 563 ; Haines v. Spanogel, 17 
 
 V. Burleson, 11 Tex. 87; Stoddert Neb. 637. 
 
 V. Tuck, 5 Md. 18 ; Mayer v. 
 
 57 
 
898 REAL PROPERTY. 
 
 mine the intent of the parties thereto.'" The memorandum 
 need only to contain the substance and not a detail of all the 
 particulars of the contract."' The memorandum or note of 
 the agreement should set forth the promise and the con- 
 sideration, either by its own contents, or by reference to 
 something extrinsic, by which it may be rendered certain. It 
 should be signed by one of the parties and the name of the 
 other should appear on it."' 
 
 It is sufficient if it can be collected from the memorandum 
 that there was a consideration and what it was."" 
 
 The words ' ' value received, ' ' are sufficient to express a 
 consideration."" 
 
 f . Parol evidence not admissible to vary the terms of a written 
 instrument. It is an elementary doctrine that parol evidence 
 is not in general admissible between the parties to vary a 
 written instrument, whether the same has been voluntarily 
 adopted, or made in pursuance of a legal necessity. Every 
 jurisdiction in this country, without exception, has given 
 endorsements to the rule stated in the text, and while great 
 misconception and contrariety of view exists as to the nature 
 and scope of the numerous exceptions which have obtained 
 recognition in every State, and have engrafted themselves 
 tenaciously upon the original formula, still it may be affirmed 
 
 "' Hagan v. Domestic S. Mac. Co. Dyer, i Cromp. & J. 461 ; Newbury 
 
 9 Hun, 74, V. Armstrong, 6 Bing. 201 ; Bain- 
 
 "= Ives V. Hazard, 4 R. I. 14; Mc- bridge v. Wade, 16 Q. B. 89 ; Pow- 
 
 Connell v. Brillhart, 17 111. 354; ers v. Fowler, 4 El. & B. 511 ; Sears 
 
 Chase V. Lowell, 7 Gray, (Mass.) 33 ; v. Brink, 3 Johns. (N. Y.) 210; 
 
 Hawkins v. Chace, 19 Pick. (Mass.) Rogers v. Kneeland, 13 Wend. (N. 
 
 502 ; Salmon Falls Mfg. Co. v. God- Y.) 114; Peltier v. Collins, 3 Wend, 
 
 dard, 55 U. S. 14 How. 456, 14 L. ed. (N. Y.) 459 ; Egerton v. Mathews, 
 
 497 ; Sari v. Borrdillon, i C. B. N. S. 6 East, 308. 
 188. "5 Bainbridge v. Wade, 16 Q. B. 
 
 '"Wain V. Walters, 5 East, 10; 89; Steel v. Hoe, 14 Q. B. 431; 
 
 Stadt V. Lill, i Campb. 242, 9 East, Rogers v. Kneeland, 10 Wend. (N. 
 
 348; Saunders V. Pakefield, 4 Barn. Y.) 218; 13 Wend. 114; Laing v. 
 
 & Aid. 595 ; Champion v. Plummer, Lee, 20 N. J. L. 337. 
 4 Bos. & P. 252; Wheeler v. Col- "* Watson v. McLaren, 19 Wend. 
 
 Her, I Mood. & M. 123 ; Jenkins v. (N. Y.) 557; Douglass v. Howland, 
 
 Reynolds, 2 Ball & B. 14 ; Morley 24 Wend. (N. Y.) 35 ; Day v Elmore, 
 
 V. Boothby, 3 Bing. 107; Lees v. 4 Wis. 190; Edelen v. Gough, 5 
 
 Whitcomb, 5 Bing. 34 ; Cole v. Gill, 103. 
 
TITLE BY PURCHASE. 
 
 899 
 
 without fear of contradiction that whenever the evidentiary 
 facts disclose a pertinent case, the courts with -uniform con- 
 sistency apply in all its rigor the provisions of the law as 
 stated."" 
 
 g. Object of the last rule. The principal object of the rule 
 under discussion is to protect the honest, accurate and pru- 
 dent in making contracts, against fraud and false swearing, 
 carelessness and inaccuracy, by furnishing evidence of what 
 was intended by the parties which can always be produced 
 without fear of change, or liability to misconstruction."" 
 
 h. Relaxed in case of fraud or mistake. It is familiar law in 
 the United States — a law exemplified in the daily proceed- 
 ings of our courts of record — that where the evidence dis- 
 
 ™ Rice Ev., citing Eveleth v. Wil- 
 son, 15 Me. 109; Peterson v. Gro- 
 
 ver, 20 Me. 361 ; Morrill v. Robin- 
 son, 71 Me. 24; Smith v. Gibbs, 44 
 N. H. 335 ; Bradley v. Bentley, 8 Vt. 
 243 ; Brandon Mfg. Co. v. Morse, 48 
 Vt. 322 ; Myrick v. Dame, 9 Cush. 
 (Mass.) 248 ; Finney v. Bedford 
 Commercial Ins. Co. 8 Met (Mass.) 
 348; Fay V. Gray, 124 Mass. 500; 
 Drake v. Starks, 45 Conn. 96 ; La 
 Farge v. Rickert, 5 Wend. (N. Y.) 
 187; Spencer v. Tilden, 5 Cow. 
 (N. Y.) 144 ; Clarke v. New York 
 L. Ins. & T. Co. 7 Lans. (N. Y.) 
 323 ; Dalrymple v. Van Syckel, 
 32 N. J. Eq. 826 ; Perrine v. Cheese- 
 man, II N. J. L. 207; Carlton v. 
 Vineland Wine Co. 33 N. J. Eq. 
 466; Heilner v. Imbric, 6 Serg. 
 & R. 401 ; Hagey v. Hill, 75 Pa. 
 108 ; Weiler v. Hottenstein, 102 Pa. 
 499 ; Woodruff v. Frost, 2 N. J. L. 
 322 ; Young V. Frost, 5 Gill, 287 ; 
 Batters v. Sellers, 6 Har. & J. 249 ; 
 Criss V. Withers, 26 Md. 553 : Far- 
 row V. Hayes, 51 Md. 488 ; Balti- 
 more Perm. Bldg. & L. Soc. v. 
 Smith, 54 Md. 187; Hunting v. 
 Emmart, 55 Md. 265 ; McLean v. 
 Piedmont & A. L. Ins. Co. 29 
 
 Gratt. 361 ; Little Kanawha Nav. 
 Co. V. Rice, 8 W. Va. 636 ; Serviss 
 V. Stockstill, 30 Ohio St. 418; 
 Irwin V. Ivers, 7 Ind. 308 ; Davis v. 
 Liberty & C. G. Road Co. 84 Ind. 
 36; Trenton v. Fletcher, 100 Ind. 
 105; Seckler v. Foi, 51 Mich. 92; 
 McClure v. Jeffrey, 8 Ind. 79 ; Ab- 
 rams v. Pomeroy, 13 111. 133 ; Bel- 
 cher V. Mulhall, 57 Tex. 17 ; Pickett 
 V. Furgeson, 45 Ark. 177 ; Koeh- 
 ring V. Muemminghoff, 61 Mo. 403; 
 Porter v. Sandidge, 32 La. Ann. 
 449 ; Elliott V. Connell, 5 Smedes 
 & M. 91 ; Tennessee & C. R. Co. v. 
 East Alabama R. Co. 73 Ala. 426 ; 
 DufiE V. Ivy 3 Stew. 140 ; Smith v. 
 Odom, 63 Ga. 499 ; Falconer v. 
 Garrison, i McCord L. 209 ; Mayer 
 v. Adrian, 77 N. C. 83 ; Chamness 
 V. Crutchfield, 2 Ired. Eq. 148; 
 Lemaster v. Burckhart, 2 Bibb. 25 ; 
 Ruiz v. Norton, 4 Cal. 359 ; Gillis- 
 pie v. Sawyer, 15 Neb. 536; Len- 
 nard v. Vischer, 2 Cal. 37 ; Winona 
 V. Thompson, 24 Minn. 199; 
 Schultz V. Coon, 51 Wis. 416; Dick- 
 son V. Harris, 60 Iowa, 727. 
 
 «« Union Mut. L. Ins. Co. v. 
 Wilkinson, 80 U. S. (13 Wall.) 231, 
 20 L. ed. 621. 
 
900 REAL PROPERTY. 
 
 closes fraud or mistake in a written contract sufficient to 
 demand in equity a reformation of the instrument, the pro- 
 cess of the court may be set in motion to achieve this end. 
 The complainant in such an action must allege the mistake 
 or fraud relied upon as a ground for modification, reforma- 
 tion or specific enforcement, and his proofs must sustain his 
 allegations. It is further a well recognized principle of the 
 equitable jurisdiction, that parol evidence is admissible to 
 sustain averments of mistake, fraud or unconscionable advant- 
 age. The leading case in this country is Keisselbrack v. Liv- 
 ingston, 4 Johns. Ch. 144, i L. ed. 795, decided by Chancellor 
 Kent in 18 19. The decision of the celebrated chancellor is 
 placed broadly and squarely upon well recognized equitable 
 principles. The doctrine is either directly decided or recog- 
 nized by the following cases."' 
 
 j . Three celebrated cases considered. The three cases of Keis- 
 selbrack V. Livingston, Gillespie v. Moon, 2 Johns. Ch. 585, and 
 Glass V. Hulbert, 102 Mass. 24, 3 Am. Rep. 418, should be read 
 consecutively in connection with any extended or discrimi- 
 nating review of this subject. They have been the theme of 
 judicial comment for many years, and the latter case in 
 
 '^'Bellows V. Stone, 14 N. H. 175; Susquehanna Ins. Co. v. Perrine, 
 Smith V. Greeley, Id. 378; Tilton 7 Watts & S. (Pa.) 348; Gower v. 
 V. Tilton, 9 Id. 385; Craig v. Kitt- Sterner, 2 Whart. 75; Bowman v. 
 redge, 23 Id. 231; Beardsley v. Bittenbender, 4 Watts, 290; Clark 
 Knight, 10 Vt. 185; Glass v. Hul- v. Partridge, 2 Pa. 13. 4 Id. 166; 
 bert, 102 Mass. 24, 41 ; Metcalf v. Wesley v. Thomas, 6 Harr. & J. 24 ; 
 Putman, 9 Allen, 97; Quinn v. Moale v. Buchanan, 11 Gill. & J. 
 Roath, 37 Conn. 16; Wooden v. 314, 325; Coutt v. Craig, 2 Hen. & 
 Haviland, 18 Id. loi ; Chamberlain M. 618; Newsom v. Bufferlow, i 
 V. Thompson, 10 Id. 243 ; Gillespie Dev. Eq. 379 ; Brady v. Parker, 4 
 V. Moon, 2 Johns. Ch. (N. Y.) 585, Ired. Eq. 430 ; Clopton v. Martin, 
 I L. ed. 500; Lyman v. United Ins. 11 Ala. 187; Harris v. Columbiana 
 Co. 17 Johns. 373 ; Rosevelt v. Ful- County Mut. Ins. Co. 18 Ohio, 116; 
 ton, 2 Cow. (N. Y.) 129; Coles v. Webster v. Harris, 16 Id. 490; Wor- 
 Browne, 10 Paige (N. Y.), 526, 535, ley v. Tuggle, 4 Bush, 168, 173; 
 4 L. ed. 1076, 1080 ; Gouverneur v. Shelby v. Smith, 2 A. K. Marsh. 
 Titus, I Edw. Ch. 477, 6 L. ed. 217, (Ky.)504; Bailey v. Bailey, 8 Hump. 
 6 Paige, 347, 3 L. ed. 1015 ; Hyde v. (Tenn.) 230; Leitensdorfer v. Del- 
 Tanner, I Barb. (N. Y.) 75 ; Smith phy, 15M0. 160; Murphy v. Rooney, 
 V. Allen, I N. J. Eq. 43 ; Christ v. 45 Cal. 78 ; Murray v. Dake. 46 Id. 
 Diffenbach, i Serg. & R. (Pa.) 464 ; 644. 
 
TITLE BY PURCHASE. 9OI 
 
 particular, decided by Mr. Justice Wells in 1869, supports 
 ■with a great display of reasoning a restrictive view that 
 neither of the other cases suggest or enjoin. They have 
 also been made the subject of very elaborate review by Prof. 
 Pomeroy, in his Equity Jurisprudence, see et seq. 869, and 
 the distinction which underlies the latter case is very clearly 
 indicated in a foot note to that section. The pith and very 
 essence of the prinicple contended for is this: "The parol 
 evidence is introduced not to establish an oral agreement 
 independently of the writing, but to show that the written 
 instrument contains something contrary to or in excess of 
 the real agreement of the parties, or does not properly ex- 
 press that agreement." The learned Chancellor Kent 
 remarks : " It would be a great defect in what Lord Eaton 
 terms the "moral jurisdiction' of the court, if there was no 
 relief in such a case. ' ' 
 
 TITLE BY PURCHASE — (Co«/z>«««rf.) 
 Art. X. Devise or will 
 
 Sec 394. What is a devise ? 
 
 395. The term "will " defined. 
 
 396. The five essentials of a will as stated by Judge Bouvier. 
 
 397. Who may make a will. 
 
 398. Who may be devisees. 
 
 399. Is the word " heirs " necessary to pass a fee ? 
 
 400. Construction and interpretation of wills. 
 
 a. Views of Mr. Jarman. 
 
 b. Of Baron Parke. 
 
 c. Of Vice-Chancellor Wigram. 
 
 401. Codicils and their significance. 
 
 a. Operate as a republication of the last will. 
 
 402. Revocation — how effected. 
 
 a. By subsequent marriage and birth of child. 
 
 403. Lapsed devises. 
 
 404. Nuncupative wills. 
 
 405. Probate procedure. 
 
 §394. What is a devise? The word "devise" simply de- 
 notes a testamentary disposition of land, made by the testa- 
 tor, or devisor."" The devisee is the beneficiary or the party 
 
 '™ Fetrow's Est. 58 Pa. 427. 
 
902 REAL PROPERTY. 
 
 to whom the land is devised or given. This term devise, is 
 frequently employed promiscuously, in the sense of "be- 
 queath" or "bequest," terms that in strictness apply to a 
 legacy of personal property. The technical interpretation is 
 always to be preferred unless it is clearly apparent that the 
 testator employed the terms in a different sense. And when- 
 ever any person becomes the owner of real property by force, 
 or by virtue of some last will or testament, that person is said 
 to hold a "Title by Devise." 
 
 § 395. The term "will" defined. A will is an instrument 
 by which a person makes a disposition of his property to 
 take effect after his decease, and which in its own nature is 
 ambulatory and revocable during his life. It is this ambu- 
 latory quality which forms the characteristic of wills; for 
 though a disposition by deed may postpone the possession or 
 enjoyment, or even the vesting, until the death of the dis- 
 posing party, yet the postponement is, in such cases, pro- 
 duced by the express terms, and does not result from the 
 nature of the instrument. 
 
 The law has not made requisite to the validity of a will 
 that it should assume any particular form, or be couched in 
 language technically appropriate to its testamentary charac- 
 ter. It is sufficient that the instrument, however irregular 
 in form or inartificial in expression, discloses the intention 
 of the maker respecting the posthumous destination of his 
 property; and, if this appear to be the nature of its con- 
 tents, any contrary title or designation which he may have 
 given to it will be disregarded.''" 
 
 The terms "will" and "testament" are synonymous, and 
 they are used indifferently by common lawyers, or one for 
 the other. "° Civilians use the term "testament" only. 
 
 § 396. The five essentials of a will as stated by Judge Bou- 
 vier. I. The testator must be legally capable of making a 
 will. Generally all persons who make valid contracts can 
 dispose of their property by will. This act requires a power 
 of the mind freely to dispose of property. Infants, because 
 of their tender age, and married women, on account of the 
 
 "' I Jarm. 18. "- 1 Swinb., sec. i, 5 ; Bac. Abr., 
 
 Wills, A. 
 
TITLE BY PURCHASE. 903 
 
 supposed influence and control of their husbands, have no 
 capacity to make a will — with these exceptions, that infants 
 at common law may dispose of their personal estate, the 
 males when over fourteen years of age, and the females 
 when over twelve. This rule in relation to infants is not 
 uniform in the United States."' 
 
 2. The testator, at the time of making his will, must have 
 animum testandi, or a serious intention to make such will. If 
 a man, therefore, jestingly or boastingly, and not seriously, 
 writes or says that such a person shall have his goods or be 
 his executor, this is no will."" 
 
 3. The mind of the testator in making his will must be 
 free, and not moved by fear, fraud or flattery. In such cases 
 the will is void, or at least voidable."" 
 
 4. There must be a person to take, capable of taking ; for 
 to render a devise or bequest valid, there must be a donee in 
 esse, or in rerum natura, and one that shall have capacity to 
 take the thing given, when it is to vest, or the gift shall be 
 void."' 
 
 5. The will must be put in proper form. Wills are either 
 written or nuncupative. 
 
 (i) A will in writing must be: i. Written on paper or 
 parchment ; it may be in any language, and in any character, 
 provided it can be read or understood ; 2, It must be signed 
 by the testator or some person authorized by him ; but a 
 sealing has been held to be a sufficient signing."' And it 
 ought to be signed by the attesting witnesses. In some 
 States three witnesses are required, who should sign the will 
 as such at the request and in the presence of the testator and 
 of each other. This formality should generally be pursued, 
 as the testator may have lands in such States which could 
 not pass without it."° It must be published, that is, the tes- 
 
 "' Swinb., p. 2, sec. 2 ; Bac. Abr., "' Plowd. 345. 
 
 Wills, B. ="2 Str. 764; but see 3 Lev. i ; i 
 
 "^ Bac. Abr., Wills, C ; Com. Dig. Const. 343; 18 Ves. 183; 2 Ball & 
 
 Estates by Devise, D, i ; see 4 B. 104 ; 5 Mood. 484, and article to 
 
 Serg. & Rawle, 545 ; 2 Yeates 324 ; sign. 
 
 5 Binn. 490; i Des. 543. «=« See, as to the attestation of 
 
 "5 Bac. Abr., Wills, C ; Serge & wills, Bac. Abr., Wills, D ; Rob. on 
 
 Rawle, 269. Wills, chap, i, pt. 15, 3. 
 
904 
 
 REAL PROPERTY. 
 
 tator must do some act from which it can be concluded that 
 he intended the instrument to operate as his will."" As to 
 the republication of wills, see Bac. Abr. Wills, D, 3 ; and 
 article ' ' Publication. ' ' 
 
 § 397- 'Who may make a will. For centuries we have been 
 asserting in practice and had long before established in theory 
 the right of every man to make a testamentary disposition of 
 his property in such manner as he shall elect, and it is only the 
 most perverted intellect that can fail to see that this right is 
 among the indestructible attributes of the possessory rela- 
 tion. As a general rule all persons who may sell an estate 
 may devise it. 
 
 Every man, under the conditions and in the manner pre- 
 scribed by law, has the right to make a will and dispose of his 
 property in such way and to such persons as shall be most 
 pleasing to him, however absurd, unjust or inequitable the 
 disposition may appear to others. He may do what he will 
 
 "«6 Cm. 79, 4 Burn's Eccl. L 119. 
 
 Under the recitals 'of the cele- 
 brated Statute of Frauds (29 Chas. 
 II, chap. 8, sec. 5), a devise must 
 be attested and subscribed in the 
 presence of the testator by three or 
 four competent witnesses. This 
 attestation may be made by signing 
 only the initials of the name, and 
 the act implies a knowledge of suf- 
 ficient facts to constitute the due 
 execution of a will — in other 
 words, the witness is presumed to 
 be satisfied that the testator is of 
 sound and disposing mind and 
 memory. (Scribner v. Crane, 2 
 Paige Ch. [N. Y.] 147.) In most 
 of the States but two witnesses are 
 required. The witnesses should be 
 persons of repute and credibility, 
 and the testator should acknow- 
 ledge his signature in their pres- 
 ence, although they are not obliged 
 to see him sign. In fact, the sign- 
 ing of their names as witnesses of 
 
 the testamentary act may be before 
 or after the signing by the testator. 
 Ordinarily, the witnesses should 
 follow the New York rule, and an- 
 nex to their signatures their busi- 
 ness address or place of residence 
 — they should also be entirely dis- 
 interested parties, and in no way 
 implicated in the devolution of the 
 property as legatees or devisees or 
 doweress. Hence, a wife is not a 
 competent witness to her husband's 
 will. (Pease v. Allis, no Mass. 
 157; see, generally on the subject 
 of attestation, the following autho- 
 rities: Rugg V. Rugg, 83 N. Y. 592; 
 Will of Maurer, 44 Wis. 393 ; Swift 
 V. Wiley, i B. Mon. 117; Hans v. 
 Palmer, 21 Pa. St. 296; Cheatham 
 V. Hatcher, 30 Gratt. (Va.) 56; 
 Dewey v. Dewey, i Met. (Mass.) 
 349; Den V. Mitten, 12 N. J. L. 70; 
 Remsen v. BrinckerhofI, 26 Wend. 
 (N. Y.) 331; Withinton v. Within- 
 ton, 7 Mo. 589. 
 
TITLE BY PURCHASE. 905 
 
 witli his own."" For example, lie may give all his property 
 to strangers and thus disinherit his relatives. He may exclude 
 his children or divide his estate among them unequally ; and 
 this general power of disposition he possesses down to the 
 last hour of conscious, intelligent existence."" He is not pro- 
 hibited from indulging, in this regard, his passions, his pre- 
 judices or his caprices, and his will is not to be disregarded 
 by the judgment of any tribunal, whether of law or equity, 
 because his dispositions are by them deemed unreasonable, 
 or prompted by passion, prejudice, or unworthy motive. 
 
 No man can live so long as to be legally incapacitated by 
 the mere lapse of years from ordering the disposition which 
 shall after his death be made of his estate. Swinburne's 
 enunciation of this doctrine (part 2, sec. 5), is sound law to- 
 day : " A man may freely make his testament, how old soever 
 he may be ; for it is not the integrity of the body but of the 
 mind that is requisite. ' 
 
 § 398. Who may be devisees. Without entangling our- 
 selves in an interminable discussion, we may summarize the 
 results of various decisions by saying that any person or cor- 
 poration may be a devisee. Charities have always been favo- 
 rites with both law and equity, and a charitable corporation 
 is entitled to the liberal construction of the terms of a devise 
 in order to sustain its right to the testator's bounty.'"'' As 
 regards individuals the decisions go to the extent of affirm- 
 ing the right of a bastard in ventre matris to take real prop- 
 erty by this method. °" And natural children may by parity 
 of reasoning inherit.'" Wives may take from their husbands 
 real estate devised. For the devise does not operate until 
 after the husband's death — an event which dissolves the 
 marriage relation.'" 
 
 ^™ Clapp V. Fullerton, 34 N. Y. 602 ; Rhymer's App. 93 Pa. St. 142 ; 
 
 190 ; Seguine v. Seguine, 3 Keyes Simpson v. Welcome, 72 Me. 496 ; 
 
 (N. Y.) 663-671 ; Reynolds v. Root, Adye v. Smith, 44 Conn. 60 ; Girard 
 
 62 Barb. (N. Y.) 250; Wood v. Bis- v. Philadelphia, 7 Wall. i. 
 
 hop, I Dem. (N. Y.) 512. "^Prettv. Flamar, 5 Harr.&J. 10. 
 
 ^" Hollis V. Drew Theological '"Williinson v. Adams, 12 Price 
 
 Seminary, 95 N. Y. 166 ; Horn v. 407 ; but see Gardner v. Hyer, 2 
 
 Pullman, 72 Id. 269. Paige Ch. (N. Y.) 11. 
 
 ««« Power V. Cassidy, 79 N. Y. '■"= 3 Greenl. Cruise, 21. 
 
906 REAL PROPERTY. 
 
 § 399. Is the word " heirs " necessary to pass a fee ? It is 
 
 familiar learning that the common law required the presence 
 of the word "heirs" in any instrument purporting to convey 
 the fee to real property. And this rule was brought to this 
 country by our ancestors, and during the colonial era was a 
 familiar incident in all conveyancing. Indeed, it may be 
 said that it is good law to-day, in any jurisdiction where the 
 common law requirements in this respect have not been 
 abrogated by statutory enactments. In the majority of the 
 States, however, express legislation is declared, that the 
 word "heirs" is not necessary to pass a fee. But any other 
 words or expressions on the part of the grantor or testator 
 evincive of an intent to pass an absolute estate will now have 
 the same effect, and the intent is to be gathered from a care- 
 ful inspection of the entire instrument.""' 
 
 § 400. Construction and interpretation of wills. "Interpre- 
 tation is the art of finding out the true sense of any form of 
 words ; that is,'the sense which their author intended to con- 
 vey, and of enabling others to derive from them the same 
 idea which the author intended to convey. " "' " The art of 
 interpretation is the art of teaching what is the meaning of 
 another's language; or that skill which enables us to attach 
 to another's language the same meaning that the author has 
 attached to it. ""' 
 
 Construction is the drawing of conclusions respecting sub- 
 jects that lie beyond the direct expression of the text from 
 elements known from and given in the text, conclusions 
 which are in the spirit, though not within the letter, of the 
 text."' "In the most general adaptation of the term, con- 
 struction signifies the representing of an entire whole from 
 given elements by just conclusions.""" "Construction and 
 interpretation of wills are not resorted to for the discovery of 
 a testator's intention, when he has used none but plain, un- 
 equivocal expressions."""' 
 
 "« Payton V. Smith, 4 McCord, 476; "' Leib. Herra, chap, i, sec. 8 
 
 Baker V. Briggs, 12 Pick. (Mass.) 27; note by Hammond. 
 
 Deering v. Adams, 37 Me. 264; Saun- "' Leib. Herm., chap. 3, sec. 2. 
 
 ders V. Mathewson, n Conn. 149. "° Leib. Herm. chap. 3, sec. 4. 
 
 2" Lieb. Herm., chap. I, sec. 8. "• Theall v. Theall, 7 La. Ann. 220. 
 
TITLE BY PURCHASE. (pi 
 
 "Common sense and good faith are the leading stars of all 
 genuine interpretation. Be it repeated, our object is not to 
 bend, twist or shape the text, until at last we may succeed 
 in forcing it into the mold of preconceived ideas, to extend 
 or cut short in the manner of a Procrustes, but simply and 
 solely to fix upon the true intent, whatever that may be.""" 
 
 Coleridge, J., in Shore v. Wilson, 9 CI. & Fin. 255, 525, says: 
 "The object of all exposition of written instruments must 
 be, to ascertain the expressed meaning or intention of the 
 writer, the expressed meaning being equivalent to the inten- 
 tion. ' ' 
 
 a. Views of Mr. Jarman. "In the construction of wills," 
 says Mr. Jarman, "the most unbounded indulgence has been 
 shown to the ignorance, unskillfulness and negligence of tes- 
 tators. No degree of technical informality, or of grammati- 
 cal or orthographical error, nor the most perplexing con- 
 fusion in the collocation of words or sentences, will deter the 
 judicial expositor from diligently entering upon the task of 
 eliciting from the contents of the instrument the intention of 
 its author, the faintest traces of which will be sought out 
 from every part of the will, and the whole carefully weighed 
 together.' "' Said Sir John Leach, Vice-Ch., in Mason v. 
 Robinson, 2 Sim. & Stu. 295: "In order to avoid a will for 
 uncertainty, it must be incapable of any clear meaning. ' ' 
 
 b. Of Baron Parke. " The construction of all written 
 instruments, ' ' says Baron Parke, ' ' belongs to the court 
 alone, whose duty it is to construe all such instruments as 
 soon as the true meaning of the words in which they are 
 couched, and the surrounding circumstances, if any, have 
 been ascertained as facts by the jury ; and it is the duty of 
 the jury to take the construction from the court, either abso- 
 lutely, if there be no words which are to be construed as 
 words of art, or phrases used in commerce, and no surround- 
 ing circumstances to be ascertained ; or conditionally, when 
 those words or circumstances are necessarily referred to 
 them. Unless this were so, there would be no certainty in 
 the law ; for a misconstruction by the court is the proper sub- 
 
 "- Leib. Herm. (Hammond's ed.), ™i Jarm. on Wills, 315. 
 chap. 4, sec. 3. 
 
908 REAL PROPERTY. 
 
 ject, by means of a bill of exceptions, of redress in a court of 
 error ; but a misconstruction by the jury cannot be set right 
 at all, effectually.""' 
 
 These views have received repeated vindications in the 
 American courts, and are supported by a formidable array of 
 authority."' 
 
 c. Of Vice-Chancellor Wigram. Principles of interpretation 
 by Wigram. The rules of interpretations of wills, in Vice- 
 Chancellor Wigram's admirable treatise on the subject, may be 
 safely applied mutato nomine to all other probate instruments. 
 They are contained in seven propositions as the result both 
 of principle and authority, and are thus expressed : 
 
 Proposition I. A testator is also presumed to use the words 
 in which he expresses himself according to their strict and 
 primary acceptation, unless from the context of the will it 
 appears that he has used them in a different sense ; in which 
 case the sense in which he thus appears to have used them 
 will be the sense in which they are to be construed. 
 
 Proposition II. Where there is nothing in the context of a 
 will from which it is apparent that a testator has used the 
 words in which he has expressed himself in any other than 
 their strict and primary sense, and where his words so inter- 
 preted are sensible with reference to extrinsic circumstances, 
 
 "■* Neilson v. Harford, 8 Mees. & 147 ; Wasson v. Rowe, 16 Vt. 525 ; 
 
 W. 823. Illinois Central R. Co. v. Cassell, 
 
 '"Shepherdv. White, II Tex. 346; 17 111. 389; Nash v. Drisco, 51 Me. 
 
 Smith V. Faulkner, 12 Gray (Mass.), 417; Lapeer Ins. Co. v. Doyle, 30 
 
 251 ; Warren v. Jones, 51 Me. 146 ; Mich. 159 ; Moore v. Miller, 4 Serg. 
 
 Williams v. Waters, 36 Ga. 454 ; & R. (Penn.) 279 ; Harris v. Doe, 4 
 
 Rogers v. Colt, 21 N. J. L. 704; Blackf. (Ind.) 369; Kidd v. Crom- 
 
 Parker v. Ibbetson, 4 C. B. (N. S.) well, 17 Ala. 648 ; Warner v. 
 
 345; Burress v. Blair, 61 Mo. 133; Thompson, 35 Kans. 27; Mowry v. 
 
 Woodman v. Chesley, 39 Me. 45; Stogner, 3 S. C. 251, 253; Emery 
 
 Walker v. Bank of Washington, 3 v. Owings, 6 Gill (Md.), 260; Mc- 
 
 How. (U. S.) 62; Dunn V. Rother- Kenna v. Railroad Co. 13 Lea 
 
 nell, 112 Pa. St. 272; State v. Don- (Tenn.), 280, 288. See also Stephen's 
 
 nelly, 9 (Mo.) App. 520; Spaulding Dig. Law of Ev. art. 91, and parti- 
 
 V. Taylor, i Id. 34 ; Higgins v. Mc- cularly Crystie v. Phyfe, 19 N. Y. 
 
 Crea, 116 U. S. 671, 682; Gregory 348, where Mr. Justice Strong states 
 
 V. Underhill, 6 Lea (Tenn.) 207, 211; the rules applicable to testamentary 
 
 Collins V. Benbury, 5 Ired. (N. C.) construction, with rare brevity and 
 
 118; Grady v. Cassidy, 104 N. Y. precision. 
 
TITLE BY PURCHASE. 9O9 
 
 it is an inflexible rule of construction that the words of the 
 will shall be interpreted in their strict and primary sense and 
 in no other, although they may be capable of some popular or 
 secondary interpretation, and although the most conclusive 
 evidence of intention to use them in such popular or second- 
 ary sense be tendered. 
 
 Proposition III. Where there is nothing m the context of 
 a will from which it is apparent that a testator has used the 
 words in which he has expressed himself in any other than 
 their strict and primary sense, but his words so interpreted 
 are insensible with reference to extrinsic circumstances, a 
 court of law may look into the extrinsic circumstances of the 
 case, to see whether the meaning of the words be sensible in 
 any popular or secondary sense of which, with reference to 
 these circumstances, they are capable. 
 
 Proposition IV. Where the characters in which a will is 
 written are difficult to be deciphered, or the language of the 
 will is not understood by the court, the evidence of persons 
 skilled in deciphering writing, or who understand the lan- 
 guage in which the will is written, is admissible to declare 
 what the characters are, or to inform the court of the proper 
 meaning of the words. 
 
 Proposition V. For the purpose of determining the object 
 of a testator's bounty or the subject of disposition or the 
 quantity of interest intended to be given by his will, a court 
 may inquire into every material fact relating to the person 
 -who claims to be interested under the will, and to the prop- 
 erty which is claimed as the subject of disposition, and to the 
 circumstances of the testator and of his family and affairs ; 
 for the purpose of enabling the court to identify the person 
 or thing intended by the testator or to determine the quan- 
 tity of interest he has given by his will. The same, it is 
 conceived, is true of every other disputed point respecting 
 which it can be shown that a knowledge of extrinsic facts 
 can in any way be made ancillary to the right interpretation 
 of a testator's words. 
 
 Proposition VI. Where the words of a will, aided by evi- 
 dence of the material facts of the case, are insufficient to 
 determine the testator's meaning, no evidence will be admis- 
 sible to prove what the testator intended, and the will (ex- 
 
91 REAL PROPERTY. 
 
 cept in certain special cases ; see proposition 7) will be void 
 for uncertainty. 
 
 Proposition VII. Notwithstanding the rule of law which 
 makes a will void for uncertainty, where the words, aided by 
 evidence of the material facts of the case, are insufl&cient to 
 determine the testator's meaning, courts of law, in certain 
 special cases, admit extrinsic evidence of intention, to make 
 certain the person or thing intended where the description 
 in the will is insufficient for the purpose. These cases may 
 be thus defined : Where the object of a testator's bounty or 
 the subject of disposition (i. e., person or thing intended), is 
 described in terms which are applicable indifferently to more 
 than one person or thing, evidence is admissible to prove 
 which of these persons or things so desired was intended by 
 the testator."" See generally on this subject, chap. 17, Ex- 
 ecutory Devises, ante, p. 741. 
 
 § 401. Codicils and their significance. In Beall v. Cunning- 
 ham, 3 B. Monr. (Ky.), 390, decided in 1843, Ewing, Ch. J., 
 in delivering the opinion of the court, says: "A codicil is a 
 part of the will to which it is attached or refers, and both 
 must be taken and construed together as one instrument. 
 The codicil recognizes the existence of the original, changing 
 it in part and affirming it in those parts in which it is not 
 altered ; and hence it has been well established that a codicil 
 executed with the solemnities required by the statute for 
 passing lands is a republication of a will, and both taken 
 together make but one will, and that such republication will 
 have the effect to pass lands acquired after the date of the 
 will, but before the date of the codicil, or to revive and give 
 force and operation to a revoked will. ' '"' 
 
 It may be taken as a well settled general rule that a will 
 and codicil are to be construed together as parts of one and 
 the same instrument, and that a codicil is no revocation of a 
 will further than it is so expressed."' 
 
 a. Operate as a republication of the last will. The codicil 
 
 ™See Wigram on Wills, 11-14. 2186, tit. "Wills,"' and cases refer- 
 
 "" Citing Robertson Wills, 357; red to in these elementary writers. 
 
 Powell on Devises, 610, 620 ; Wms. "* Westcott v. Cady, 5 Johns. (N. 
 
 on Exrs. 103 ; 3 Harrison's Dig. Y.) 343. 
 
TITLE BY PURCHASE. 9II 
 
 Operates as its republication, and all of the will is presumed 
 to be in the mind of the testator at the execution of the 
 codicil."" 
 
 "The effect of a republication, according to all the cases, is 
 to bring down the will to the date of the codicil, so that both 
 instruments are to be considered as speaking at the same date 
 and taking effect at the same time.'""" 
 
 § 402. Revocation, how effected. The Massachusetts stat- 
 ute declares: "No will shall be revoked unless by the burn- 
 ing, tearing, canceling or obliterating of the same, with the 
 intention of revoking it, by the testator himself, or by some 
 person in his presence and by his direction; or by some 
 other writing, signed, attested and subscribed in the same 
 manner that is required in the case of a will; but nothing 
 contained in this section shall prevent the revocation implied 
 by law from subsequent changes in the condition or circum- 
 stances of the testator.""' The provisions of this act are 
 generally recognized in the statutory law of the other States. 
 
 "From the date of the revocation, the will ceases to be a 
 testamentary disposition of the maker's estate. * * * 
 And if the party who made it desires to make a testamentary 
 disposition of his estate, he must make a new will in the 
 
 «9Jarm. on Wills (5th Am. ed.), Y.) 504; Rowland v. Un.Theo. Sem. 
 
 364; Payne v. Payne, 18 Cal. 291; 5 N. Y. 193; Van Alstyne v. Van 
 
 Jones V. Shewmaker, 35 Ga. 151; Alstyne, 28 N. Y. 375; Murray v. 
 
 Duncan v. Duncan, 23 111. 364; Oliver, 6 Ired. Eq. (N. C.) 55; Col- 
 
 Beall V. Cunningham, 3 B. Monr. Her v. Collier's Exrs. 3 Ohio St. 
 
 (Ky.) 390; Armstrong v. Arm- 369; Cole v. Smith, 4 Pa. St. 376; 
 
 strong, 14 Id. 338; 4 Dane's Abr. Smith v. Puryears, 3 Heisk. (Tenn.) 
 
 ch. 127, art. I, sec. 11, p. 550; Ha- 706; R. S. ch. 3, sec. 3, p. 59; Gray 
 
 ven V. Foster, 14 Pick. (Mass.) "534; v. Sherman, 5 Allen (Mass.), 198. 
 
 Washburn V. Sewell, 4 Met. (Mass.) ™Corr v. Porter, 33 Gratt. 278, 
 
 63; Brimmer v. Sohier, i Cush. 283; Payne v. Payne, 18 Cal. 291; 
 
 (Mass.) 118; Tilden v. Tilden, 13 Stover v. Kendall, i Coldw. 557; 
 
 Gray (Mass.), 103; Hoseav. Jacobs, Mooers v. White, 6 Johns. Ch. (N. 
 
 98 Mass. 65; Snow v. Foley, 119 Y.)36o; Rose v. Drayton, 4 Rich. 
 
 Id. 102; Brownell v. DeWolf, 5 260; Murray v. Oliver, 6 Ired. Eq. 
 
 Mason (Me.), 486 ; Van Cortland v. (N. C.) 55. 
 
 Kipp, I Hill (N. Y.), 590; Westcott "' Mass. Pub. Stats. (1882), chap. 
 
 v. Cady, 5 Johns. Ch. (N. Y.) 43; 127, sec. 8. 
 Lynch v. Prendergast, (>^ Barb. (N. 
 
912 REAL PROPERTY. 
 
 manner required by the statute. But, in doing this, he may- 
 use the same form of words, without variations or with vari- 
 ations, and the same written or printed document that was 
 used at first.'"'" 
 
 The rule seems to be well settled that where one delibe- 
 rately destroys, or purposely induces another to destroy, a 
 written instrument of any kind, and the contents of such 
 instrument subsequently become a matter of judicial inquiry 
 between the spoliator and an innocent party, the latter will 
 not be required to make strict proof of the contents of such 
 instrument in order to establish a right founded thereon. In 
 such case slight evidence will suffice."' 
 
 Generally it must be regarded purely as a question of 
 intent, although a decision in Tennessee holds its so 
 called prominence by contesting this view."" The oppos- 
 ing view is very decidedly prominent as may be seen from 
 the following cases :"' 
 
 a. By subseqiie7it marriage and birth of child. Reason is the 
 soul of the law ; and when the reason of any particular law 
 ceases, so does the law itself. In England, it is now enacted 
 that the marriage of either a man or woman shall revoke a 
 pre-existing will, unless it is executed under a power of 
 appointment. In New York they have a statute which de- 
 clares in express terms that the marriage of a woman shall 
 revoke a pre-existing will. In Massachusetts they have a 
 statute which, as construed by the court, has the same effect. 
 Similar statutes exist in several other States. Where such 
 statutes exist, the question we are now considering cannot 
 arise. In other States, where the testamentary laws and the 
 rights and powers of married women are similar to those 
 
 =»« Barker v. Bell 46 Ala. 216, 222. Means v. Moore, 3 McCord (S. C), 
 
 "'' Broom's Legal Maxims, 576. 282 ; Mundy v. Mundy, 15 N. J. Eq. 
 
 ''^ Smiley V. Gambill, 2 Head. 164. 290; Overall v. Overall, Litt. Sel. 
 
 ^^^Harrinv. Allen, 25 Mich. 525; Cas. 513; Brown v. Thorndike, 15 
 
 Patterson v. Hickey, 32 Ga. 156; Pick. (Mass.) 388; Johnson v. 
 
 Durant V. Ashmore, 2 Rich. L. 184; Brailford, 2 Nott & McC. (S. C.) 
 
 Collogan v. Burns, 57 Me. 449; 282; Wright v. Wright, 5 Ind. 389; 
 
 Marr V. Marr, 2 Head (Tenn.), 303; Gains v. Gains, 2 A. K. Marsh. 
 
 Clingam v. Mitcheltree, 31 Pa. St. (Ky.) 190, Smith v. Clark, 34 Barb. 
 
 25 ; Smith v. Dolby, 4 Harr. (Del.), (N. Y.) 140. 
 350; Barker v. Bell, 46 Ala. 216; 
 
TITLE BY PURCHASE. 9^3 
 
 aow existing in Maine, it has been held that the marriage of 
 zfeme sole will not revoke a pre-existing will. It is said in a 
 New Hampshire case that when the incapacity of a married 
 woman to make a will is removed, no reason remains why 
 her will, made before her marriage, should be thereby 
 revoked.'"' 
 
 It must be regarded as the settled rule in Iowa, that the 
 birth of a legitimate child to the testator, subsequent to the 
 making of a will and before the testator's death, will alone 
 operate as an implied revocation of the will."" 
 
 § 403. Lapsed devises. Should the devisee die before the 
 testator, the devise lapses or falls into the residuum of the 
 estate."' But there is no lapse of the devise, if the devisee 
 left issue capable of inheriting, who survive the testator. 
 And where the estate devised is predicated upon a trust, the 
 death of the trustee, during the life of the testator, will not 
 effect the devolution of the property, as the court will, supply 
 a trustee capable of taking. 
 
 § 404. Nuncupative wills. In general, real property cannot 
 be devised by a nuncupative will."' And in several States 
 the amount which may be disposed of through the medium 
 of a nuncupative will is regulated by statute."" 
 
 It is but common learning to add that nuncupative wills 
 are in general accorded but scant respect, and should be sub- 
 jected to the closest scrutiny. The statutes authorizing their 
 existence should be strictly construed."' 
 
 »»« Morey v. Sohier, 63 N. H. 507 ; "' Gibson v. Gibson (Walk; Miss.), 
 
 2 N. E. R. 274. And see Fellows v. 364; Bennett v. Jackson, 2 Phillim. 
 
 Allen, 60 N. H. 439 ; Webb v. Jones, 190 ; Morgan v. Stevens, 78 111. 287 ; 
 
 36 N. J. Eq. 163; Ward's Estate Dorseyv. Sheppard,i2Gill&J. (Md.) 
 
 (Wis.), 35 N. W. Rep. 731; Rice's 192; Yarnall's Will, 2Rawle(Pa.),46; 
 
 Am. Probate Law, 129. Taylor's Appeal, 47 Pa. St. 31 ; Par- 
 
 "*' McCullom V. McKenzie, 26 sons v. Miller, 2 Phillim. 104 ; Bid- 
 Iowa, 510; Negus v. Negus, 46 Id. die v. Biddle, 36 Md. 630 ; Lucas v. 
 487 ; Fallon V.Chichester, Id. 588. Goff, 33 Miss. 629; Mitchell v. 
 
 *«« Hamlin v. Osgood, i Redf. (N. Vickers, 20 Tex. 377. See Rice's 
 
 Y.) 409. Am. Probate Law, 31, for exhaust- 
 
 S89 Pierce v. Pierce, 46 Ind. 86. ive discussion. 
 
 "» Stimson's Am. Stat. Law, sec. 
 2705. 
 
 58 
 
914 REAL PROPERTY. 
 
 § 405. Probate procedure. The term probate, in legal con- 
 templation, signifies the proof of a will before an officer or 
 tribunal having jurisdiction to determine the question of its 
 validity."' In popular apprehension, however, the term 
 refers to the procedure incident to the administration and 
 settlement of decedent estates. The tribunal referred to is 
 indifferently denominated Probate Court, Surrogate's Court, 
 or Orphan's Court, the jurisdiction of which, as to personal 
 property, depends upon the domicile of the testator. But as 
 to real estate it can only exercise jurisdiction over property 
 that is situated within the territorial limits of that jurisdic- 
 tion, whatever it may be. For exhaustive treatment of this 
 entire subject, see Rice's Am. Probate Law; and for eviden- 
 tiary facts, on the subject of probate matters, see 2 Rice, 
 Ev. chap. 54. 
 
 "2 Reno V. McCully, 65 Iowa, 632. 
 
CHAPTER XXIV. 
 
 JOINT ESTATES. 
 Art I . Estates in common — tenancies in common. 
 
 Sec. 406. Definition and nature. 
 
 a. Tenants in common may acquire their estate either by- 
 descent or purchase. 
 
 407. Incidents of tenancies in common. 
 
 408. One tenant cannot convey a distinct parcel of the land. 
 
 409. Dissent from the view last stated. 
 
 410. Tenants in possession cannot assail the common title. 
 
 a. Effects of purchase of an outstanding tax title by a co- 
 
 tenant. 
 
 b. Co-tenant purchasing tax title regarded as a trustee for 
 
 his associates. 
 
 c. Purchase of outstanding title by co-tenant inures to com- 
 
 mon benefit. 
 
 411. Possession of one tenant is the possession of all, unless. 
 
 a. Principles of disseizin examined. 
 
 b. What acts constitute a disseizin. 
 
 412. Contribution between co-tenants. 
 
 413. Rule as to betterments — statement of Mr. Anderson — doctrine 
 
 of Green v. Putnam. 
 
 414. Accounting between co-tenants. 
 
 415. Partnership estates. 
 
 416. Incidents of the partnership relation. 
 
 a. Views of Mr. Justice Mitchell. 
 
 417. Partition and its incidents. 
 
 a. Objects of a partition suit. 
 
 b. Regarded as an absolute right. 
 
 c. Effect on dower. 
 
 d. Allowance for improvements and betterments. 
 
 e. Owelty defined. 
 
 f. Parol partition. 
 
 § 406. Definition and nature. Tenancy in common imports 
 the holding of an estate in lands by several persons, by seve- 
 ral and distinct titles, but by unity of possession.' Or in 
 
 ' 2 Bl. Com. 191 ; 4 Kent's Com. 367. 
 [915] 
 
9l6 REAL PROPERTY. 
 
 extended phrases such tenancy is where two or more hold 
 the same land, with interests accruing under different titles • 
 or accruing under the same title, but at different periods • or 
 conferred by words of limitation importing that the grantees 
 are to take in distinct shares." 
 
 a. Tenants in common may acquire their estate either by descent 
 or purchase. Tenants in common may acquire their estate 
 either by descent or purchase — by deed or will, or by 
 change of title from joint tenancy. It may arise by construc- 
 tion of law, but is severed only by one of two methods, viz., 
 either by a merger of all the titles in one tenant, or by decree 
 duly entered in an action of partition.' 
 
 § 407. Incidents of tenancies in common. One of the inci- 
 dents of a tenancy in common holding the title is, that each 
 of the co-tenants is entitled to the exclusive possession of the 
 entire property, as against the whole world, except his co- 
 tenants. As between tenants in common and a trespasser, 
 each tenant in common is better entitled to possession than a 
 wrong-doer. The former is seized per mi et per tout, and has 
 an interest in the whole, which entitles him to the enjoyment 
 of the entire estate, as against every one except his co- 
 tenants. 
 
 § 408. One tenant cannot convey a distinct parcel of the 
 land. It is a doctrine of long standing that one tenant in 
 common cannot convey a distinct parcel of the common tract 
 so as to bind his co-tenant.* 
 
 Cases might be multiplied upon this point, but these will 
 suffice. Some hold the deed absolutely void, but the greater 
 
 * I Steph. Com. 323. son v. Stevens, 7 Cush. (Mass.) 431 ; 
 
 ' See generally on this subject, 2 Mitchell v. Hazen, 4 Conn. 495 ; 
 
 Bl. Com. 192 ; 2 Prest. on Abstr. Hartford & S. Ore. Co. v. Miller, 41 
 
 75; 4 Kent's Com. 363; i Steph. Conn. 112; Cogswell v. Reed, 12 
 
 Com. 323. Me. 198; Scott v. State, i Sneed, 
 
 ■•Smith V. Benson, 9 Vt. 141, 31 629; Markoe v. Wakeman, 107 111. 
 Am. Dec. 614; Duncan v. Sylves- 263; Worthington v. Staunton, 16 
 ter, 24 Me. 482, 41 Am. Dec. 400; W. Va. 208; Shepardson v. Row- 
 Great Falls Co. V. Worster, 15 N. land, 28 Wis. 108; Jewett v. Slocton, 
 H. 412, 449 ; Bartlett v. Harlow, 12 3 Yerg. 492, 24 Am. Dec. 594; Gris- 
 Mass. 348, 7 Am. Dec. 76 ; Peabody wold v. Johnson, 5 Conn. 363. 
 v. Minot, 24 Pick. (Mass.) 329 ; John- 
 
JOINT ESTATES. 917 
 
 number treat it as valid between the parties, and that, if a 
 partition should be made by which the parcel conveyed 
 should be allotted to the grantor, it would enure to the 
 benefit of the grantee by estoppel. 
 
 § 409. Dissent from the view last stated. The Ohio courts 
 have held that one tenant in common may lawfully convey a 
 part of his undivided estate by specific bounds, and such a 
 conveyance will be given effect so far as it is possible to do 
 so without injury to the other co-tenants.' 
 
 And there is a well recognized tendency in late decisions 
 to hold that such a conveyance may be relied upon to efface 
 all legal and equitable rights formerly held by grantor." 
 
 § 410. Tenants in possession cannot assail the common 
 title. The general theory of the law upon this subject is 
 correctly represented by the following extract from an opin- 
 ion delivered in the highest judicial tribunal of the State of 
 Tennessee : 
 
 "Tenants in common by descent are placed in confidential 
 relations to each other by operation of law, as to the joint 
 property, and the same duties are imposed as if a joint trust 
 were created by contract between them, or the act of a third 
 party. Being associated in interest as tenants in common, 
 an implied obligation exists to sustain the common interest. 
 This reciprocal obligation will be enforced in equity as a 
 trust. These relations of trust and confidence bind all to 
 put forth their best exertions, and to embrace every oppor- 
 tunity to protect and secure the common interest, and forbid 
 the assumption of a hostile attitude by either.'" 
 
 Nothwithstanding all that has been said and written against 
 the assertion of an adverse title by one of several co-tenants, 
 
 'White V. Sayre, 2 Ohio, no; (Ky.), 599, 64 Am. Dec. 775 ; see, 
 
 Prentiss' Case, 7 Id. 473 ; Denni- also. Van Home v. Fonda, 5 Johns, 
 
 son V. Foster, 9 Id. 126; and see Ch. (N. Y.) 388; Lee v. Fox, 6 Dana 
 
 Canipau v. Godfrey, 18 Mich. 32. (Mass.), 171 ; Picot v. Page, 26 Mo. 
 
 « Worthington v. Staunton, 16 421 ; Lafferty v. Turley, 3 Sneed 
 
 West Va. 208; Markoe v. Wake- (Ky.) 182; Saunders v. Woolman, 
 
 man, 107 HI. 263 ; Crook v. Vande- 7 Lea (Va.), 302 ; Williams v. Gid- 
 
 voort, 13 Neb. 505. eon, 7 Heisk (Tenn.), 620. 
 
 'Tisdale v. Tisdale, 2 Sneed 
 
9l8 REAL PROPERTY. 
 
 a critical examination of -the authorities shows that they are 
 not prohibited in all cases from establishing an adverse title. 
 Wherever the interests of the different co-tenants accrue at 
 different times, and owe their inception to entirely different 
 instruments, and where no one tenant has exceptional advant- 
 ages for securing^ the means of information regarding the 
 status of the title, there is certainly no rule of law or morals 
 that precludes the purchase of an outstanding title. Particu- 
 larly is this true where there is no joint possession of the premi- 
 ses, and a corresponding absence of opportunity for knowing 
 the claims of the other parties in the property. This view 
 will be found to have the sanction of the following authori- 
 ties: FrentzY. Klotsch, 28 Wis. 317; King v. Rowan, 10 Heisk, 
 682 ; Brittin v. Handy, 20 Ark. 381 ; Matthews v. Bliss, 22 Pick. 
 43 ; Roberts v. Thorn, 25 Tex. 736. The Illinois courts seem 
 to hold the contra view, and their reasoning is entitled to 
 great respect. But the desirability for a uniform rule in 
 matters of this character is very apparent. And I am inclined 
 to regard a rule which sanctions the free and untrammeled 
 transfer of real property and interests therein as the one 
 which should be upheld both in law and equity.' 
 
 a. Effect of purchase of an outstanding tax title by a co-ten- 
 ant. There is considerable vascillation in the authorities 
 as to the application of the principle ''that one co-tenant can- 
 not subvert the title of the other owners by the purchase of 
 an outstanding tax title. ' ' Some decisions proceed upon the 
 equitable principle that the fiduciary relation existing between 
 the parties forbids a transaction that ignores the rights of 
 one to the emolument and unconscionable advantage of the 
 other — that a healthy manifestation of legal impartiality calls 
 for an utter repudiation of such a claim. Others proceed 
 upon the theory that "no man should receive a title created 
 by his own wrong, ' ' or, in other words, a title founded upon 
 his own default, or neglect of duty. If the co-tenant, who 
 seeks to subvert the title of his fellows, has discharged his 
 obvious duty in the premises there would have been no title 
 to purchase, and there is no foundation for the suggestion, 
 so frequently obtruded in this class of cases, that considera- 
 
 8 See Montague v. Selb, 106 111. 149 ; Bracken v. Cooper, 80 Id. 229. 
 
JOINT ESTATES. 9^9 
 
 tions of public policy require promptitude and certainty in 
 the payment of taxes, and as a menace to the sluggard, this 
 liability of disseizin should be ever present. This argument 
 may be plausible but it does not convince. We should 
 "make the punishment fit the crime," and to deprive a man 
 of a valuable estate for the picayune amount involved in a 
 tax levy, simply as a reward to one who merely discharged 
 his duty by paying what he himself owed, is utterly repug- 
 nant to all common sense and equity. In any event the 
 authorities refuse to sanction such a proposition as unjust 
 and inequitable." There is, however, this modification of 
 what is otherwise an inexorable rule in most jurisdictions, 
 viz : where the purchase of the outstanding tax title is from 
 a stranger, after the period of redemption has expired, the 
 tenant in common may hold the title for his own benefit,"" 
 and in Massachusetts the rule has so far advanced as to allow 
 an assignment of a senior mortgage to one of the co-tenants 
 and permit him to thus defeat an action for partition. " The 
 Supreme Court of Iowa has held that a purchaser of a tax 
 certificate before the period of redemption has expired, by 
 •one who is a stranger to the title at the time, will enure to 
 the benefit of the other tenants in common if he becomes 
 such before the issuance of the tax deed by the proper 
 ofiicials." 
 
 b. Co-tenant purchasing tax title regarded as a trustee for 
 his associates. It is now laid down in authoritative decisions 
 as a general principle that one who ought to pay the taxes on 
 property cannot, by omitting to do so, purchase at a sale of 
 the property for the non-payment of taxes, and thereby 
 strengthen his title ; that the deed to him will convey no title 
 and that the payment of the money will be regarded as the 
 
 ' See Lloyd v. Lynch, 28 Pa. St. '» Watkins v. Eaton, 30 Me. 529 ; 
 
 419; Frentz v. Klotch, 28 Wis. 312; Reinboth v. Zebre Run Imp. Co. 29 
 
 Van Home v. Fonda, 5 Johns. Ch. Pa. St. 139; Keele v. Cunningham, 
 
 (N. Y.) 388 ; Conn. Ins. Co. v. Bulte, 2 Heisk (Tenn.), 288. 
 
 45 Mich. 113; Flinnv. McKinley,44 " Blodget v. Hilldreth, 8 Allen 
 
 la. 68; Voris v. Thomas, 12 111. (Mass.), 186. 
 
 442; Downer v. Smith, 38 Vt. 464; " Tice v. Derby, 59 Iowa, 312; 
 
 Bernal v. Lynch, 36 Cal. 135 ; Piatt following FHnn v. McKinley, 44 Id. 
 
 V. St. Clair, 6 Ohio, 227; Venable v. 68. 
 Beauchamps, 3 Dana (Mass), 321. 
 
920 REAL PROPERTY. 
 
 payment of the tax, and not as a purchase of the property." 
 Other cases hold that such a purchaser invests himself with 
 the attributes of a trustee for his co-tenants, but the pur- 
 chase will enure to the benfit of the joint owners." 
 
 c. Purchase of outstanding title by co-tenant enures to common 
 benefit. In Sharswood & Budds Leading Cases, American 
 Law of Real Property, vol. 3, p. 89, et seq., there is a learned 
 discussion under the following headnote: "Rule that pur- 
 chase of outstanding title by one co-tenant enures to the 
 common benefit. " The author says: "An important result 
 of the intimate relations existing between tenants in common 
 is that one will not be permitted to purchase and set up 
 against his co-tenant outstanding title, and from this it fol- 
 lows that, generally speaking, if one tenant in common take 
 from a third person a conveyance of any title to an estate in 
 the property held in common, such conveyance will enure to 
 the benefit of all the tenants."" The rule announced may 
 be regarded as elementary, and is now entirely removed from 
 discussion in that class of cases where the mutual interests 
 originate under and by virtue of the same instrument, or act 
 of the parties or of the law ; or under agreement between 
 themselves. 
 
 § 411. Possession of one tenant is the possession of all, 
 unless, a. Principles of disseizin examined. It is a generally 
 well received rule of law that the possession of one tenant in 
 common, though absolute and exclusive, if still consistent 
 with the right of his co-tenant, is not to be construed as a 
 disseizin, and that any act amounting as matter of law to an 
 ouster is always necessary to constitute a disseizin of the co- 
 
 '* Middletown Savings Bank v. 5 Johns. Ch. (N.Y.) 409; Knolls v. 
 
 Bacharach, 46 Conn. 513; Johnson Barnhart, 71 N. Y. 474; Jones v. 
 
 V. Smith, 70 Ala. 118. Stanton, 1 1 Mo. 433 ; Lloyd v. Lynch, 
 
 " Weare v. Van Meter, 42 la. 128; 28 Pa. 419; Titsworth v. Stout, 49 
 
 Page V. Webster, 8 Mich. 263 ; Allen 111. 78 ; Brown v. Homan, 1 Neb. 
 
 V. Poole, 54 Miss. 323; Davis v. 448; Mandeville v. Solomon, 39 Cal. 
 
 King, 87 Pa. 261 ; Christy v. Fisher, 125; House v. Fuller, 13 Vt. 165; 
 
 58 Cal. 256. Shell v. Walker, 54 la. 386 ; Dillen- 
 
 '« The following are some of the ger v. Kelly, 84 Mo. 561 ; Moon v. 
 
 authorities cited to support the Jennings, 119 Ind. 130. 
 proposition: Van Home v. Fonda, 
 
JOINT ESTATES. 921 
 
 tenant." This rule was first announced in Lord Hardwicke's 
 time to an audience composed in various proportions of skep- 
 tical inquirers, obstinate opponents, and malignant scoffers, 
 but its final position in the law of real estate has justified the 
 most sanguine predictions of its original sponsors. It is an 
 elementary rule that the entry of one tenant in common, 
 upon the joint property, even if he appropriates the rents, 
 cultivates the land, removes the standing timber, or asserts 
 other positive acts of ownership, must not be construed as 
 an adverse occupation, but rather as an assertion in support 
 of the common title. Where, however, there is knowledge 
 on the part of the co-tenant that such entry is claimed to be 
 adverse, and if such entry is followed by a conveyance of the 
 premises, that ignores the rights of the other tenant, posses- 
 sion under this conveyance, if continued for twenty years, will 
 ripen into a full disseizin of the original co-tenant, and give 
 to the disseizor an invulnerable title by adverse possession. 
 We would be quite emphatic in asserting that there may be 
 such acts and statements as will, when asserted by one co- 
 tenant, amount in time to a practical disseizin, but, gene- 
 rally, acts of ownership, which, if proceeding from a stranger 
 to the title, would result in the annihilation of the co-tenant's 
 title, are entirely harmless if coming from any of the other 
 part owners. 
 
 Acts having a contrary effect must be of such an unequivocal 
 character as to preclude all idea of a joint ownership. Every 
 act must tend to show the utter disregard of the relation, 
 and such acts, taken in connection with the element of knowl- 
 edge on the part of the party disseized or operated against, 
 will constitute a strong presumption that there was an aban- 
 donment of an idea of holding the property. Hence it has 
 been held that "an exclusive appropriation of a part of the 
 land to his own use, by the erection of a permanent struc- 
 ture, would be evidence of an ouster of his co-tenant."" 
 
 b. W/iat acts constitute a disseizin. From the peculiar and 
 intimate connection existing between tenants in common of 
 real estate, the proof of an ouster, by one of another of them, 
 
 "Bellis V. Bellis, 122 Mass. 414. " Bennet v. Clemence, 6 Allen 
 
 (Mass.), 10. 
 
922 REAL PROPERTY. 
 
 ought to be of the most satisfactory nature." The acts and 
 declarations of the party in possession are to be construed 
 much more strongly against him, than where there is no 
 privity of title. " There must be outward acts of exclusive 
 ownership of an unequivocal character, overt and notorious, 
 and of such a nature as by their own import to impart infor- 
 mation and give notice to the co-tenants that an adverse pos- 
 session and an actual disseizin are intended to be asserted 
 against them." There can be no legal doubt that one tenant 
 in common may disseize another. The only difference be- 
 tween that and the other cases is, that the acts which, if done 
 by a stranger, would per se be a disseizin, are, in the case of 
 tenancies in common, susceptible of explanation consistently 
 with the real title. Acts of ownership are not, in tenancies 
 in common, necessarily acts of disseizin. It depends on the 
 intent with which they are done.^' 
 
 § 412. Contribution between co-tenants. Equity has always 
 entertained jurisdiction to compel contribution between joint 
 tenants and tenants in common for reasonable charges and 
 expenditures incurred for the common benefit." It frequently 
 happens that one of two tenants in common discharges a 
 mortgage indebtedness or other incumbrance which it is the 
 primary duty of both to assume in equal proportions. In 
 such a case the excess so paid by one represents an indebted- 
 ness due from the other, and the security held by the original 
 creditor inures to the benefit of the one paying the amount 
 due. Indeed it may be safely affirmed as a settled principle 
 of equity jurisprudence, that one who assumes more than his 
 just share of a common burden is subrogated to the rights of 
 the creditor, and he is invested with this particular relation 
 until the other co-owners have tendered their contribution, 
 either voluntarily or through the compulsory process of the 
 courts." 
 
 '' Adam v. Ames Iron Co. 24 " See Lingard v. Bromley, i V. 
 
 Conn. 235. & Beam. 114; Rogers v. MacKen- 
 
 " Baily V. Trammel], 27 Tex. 328. zie, 4 Ves. 752; Gardner v. Died- 
 
 2» Warfield v. Lindell, 38 Mo. 581. ricks, 41 III. 158. 
 
 '" Prescott V. Nevers, 4 Mason "Lamb v. Montague, 112 Mass. 
 
 C. C. 330 ; Thornton v. York Bank, 352. 
 45 Me. 161. 
 
JOINT ESTATES. 9^3 
 
 Judge Story concludes his very brief notice of the subject 
 of contribution between co-tenants by saying: "It seems 
 unnecessary to dwell upon these cases and others of like 
 nature, as they embrace nothing more than a plain applica- 
 tion of principles already fully expounded. We may con- 
 clude this head with the remark that the remedial justice of 
 courts of equity, in all cases of apportionment and contribu- 
 tion, is so complete and so flexible in its adaptation to all the 
 particular circumstances and equities, that it has, in a great 
 measure, superseded all efforts to obtain redress in any other 
 tribunals."" 
 
 §413. Rule as to betterments — Statement of Mr. Ander- 
 son — Doctrine of Green v. Putnam. Betterments acts are 
 statutes which secure to a purchaser of land for valuable con- 
 sideration, without notice of an infirmity in the title, an 
 interest in the land equal to the value of the improvements 
 or melioration he may have made. 
 
 The rule of the common law is that the owner of land 
 shall not pay an intruder or occupant for unauthorized 
 improvements. This induces diligence in the examination 
 of titles, and prevents wrongful appropriations. Chancery, 
 borrowing from the civil law, made the first innovation upon 
 the doctrine ; and in time held that when a bona fide possessor 
 made meliorations in good faith, under an honest belief of 
 ownership, and the real owner for any reason went into 
 equity, the court, applying the maxim that he who seeks 
 equity must do equity, and adopting the civil law rule of 
 natural equity, compelled the owner to pay for such indus- 
 trial accessions as were permanently beneficial to the estate." 
 
 The occupant must have peaceable possession, under color 
 of title, and honestly believe that he is the owner of the 
 land. Any instrument having a grantor and grantee, con- 
 taining a description of the land, and apt words for their 
 conveyance, gives color of title. Actual notice of an adverse 
 title is proof of the absence of good faith." 
 
 '^ Story's Eq. Jur. sec. 505. 87 (1886), cases. See generally 
 
 " Parsons v. Moses, 16 Iowa, 444- Bright v. Boyd, i Story, 492-98 
 
 46 (1864), cases, Dillon, J. (1841) ; 2 Id. 607 (1843) ; Griswold 
 
 " Beard V. Dansby, 48 Ark. 186- v. Bragg, 18 Blatch. 206 (1880); 
 
924 REAL PROPERTY. 
 
 "Where one tenant in common lays out money in improve- 
 ments on the estate, although the money so paid does not, in 
 strictness, constitute a lien on the estate, yet a court of 
 equity will not grant a partition without first directing an 
 account and a suitable compensation. To entitle the tenant 
 in common to an allowance on a partition in equity, for the 
 improvements made on the premises, it does not appear to 
 be necessary for him to show the assent of his co-tenants to 
 such improvements, or a promise, on their part, to con- 
 tribute their share of the expense ; nor is it necessary for 
 them to show a previous request to join in the improve- 
 ments, and their refusal."" 
 
 The doctrine announced in Green v. Putnam, supra, and the 
 cases following, has been considerably impaired by the 
 remarkable decision of the New York Commission of 
 Appeals, in Scoit v. Guernsey, 48 N. Y. 123. Mr. Commis- 
 sioner Leonard, who wrote for affirmance, with the unani- 
 mous assent of his colleagues (Hunt, Grey, Lott, and Earl), 
 employs a line of argument in regard to this subject of 
 improvements, or more properly, betterments, that has 
 never been successfully controverted. It is true that Mr. 
 Justice Finch, in the subsequent case of Ford v. Knapp, 102 
 N. Y. 135, distinguishes the Scott v. Guernsey case, but at the 
 same time expressly sanctions the principle that it announced, 
 and no discussion of this topic should be considered as even 
 elementary, that leaves out of view a critical analysis of these 
 last two cases. 
 
 Wheeler v. Merriman, 30 Minn. Ch. (N. Y.) 323 ; Swan v. Swan, 8 
 
 376 (1883); Effinger v. Hall, 81 Va. Price, 518; Doughaday v. Crowell, 
 
 102-6 (1885), cases; Green v. Bid- 8 Stock. (N. J.) 204; Dean v. 
 
 die, 8 Wheat. 79 (1823); Jackson v. O'Meara, 47 111. 120; Kurtz v. Hib- 
 
 Loomis (N. Y.), 15 Am. Dec. 347, ner, 55 111. 521 ; Respass v. Brecken- 
 
 cases ; 19 Blatch. 94; 48 Conn. 581 ; ridge, 2 A. K. Marsh. (Ky.) 584; 
 
 II Me. 482; 74 Id. 515; 13 Ohio, Robinson v. McDonald, 11 Tex. 
 
 308; 14 S. C. 338; 17 Vt. 109; 3 390, 62 Am. Dec. 480; Hitchcock v. 
 
 Pomeroy, Eq. sec. 1241, cases; 2 Skinner, Hoff. Ch. (N. Y.), 28; 
 
 Story, Eq. sec. 799, 1237-38, cases ; Younge v. Heffner, 36 Ohio St. 
 
 1 Wash. R. P. 139, cases. (Cited 232; Sarback v. Newell, 30 Kan. 
 
 from Anderson's Law Diet.) 102; Broyles v. Waddell, 11 Heisk, 
 
 " Green v. Putnam, i Barb, 507 ; (Tenn.) 32 ; Bond v. Hill, 37 Tex. 
 
 Martindale v. Alexander, 26 Ind. 626; Baird v. Jackson, 98 111. 78; 
 
 105; St. Felix V. Rankin, 3 Edw. Annely v. De Saussure, 17 S. C. 389. 
 
JOINT ESTATES. 92$ 
 
 § 414. Accounting between co-tenants. A tenant in com- 
 mon may be compelled to account to his co-tenant for the use 
 of the lands held in common, although he has received the 
 benefits thereof without any attempt to exclude the other, 
 or any promise or mutual understanding to give any com- 
 pensation for the profits taken by him." 
 
 It is now well settled law, that where one tenant in com- 
 mon has received from others rents and profits of the com- 
 mon property, he is accountable in an action of assumpsit to 
 his co-tenant for his share." 
 
 § 415. Partnership estates. Where real property is pur- 
 chased and owned by two or more partners, for partnership 
 purposes, and such purchase was made out of partnership 
 funds, the real property so held constitutes an estate in part- 
 nership. The legal title resides in the several partners as 
 tenants in common. For the purpose of liquidating the 
 partnership indebtedness, the real estate of a partnership 
 will be regarded as personalty.'" On the death or dissolution 
 of the partnership the real estate belonging to the firm may 
 be resorted to by any creditor in his efforts to secure pay- 
 ment, and the same may be sold. The surplus, if any, goes 
 to the heirs." 
 
 § 416. Incidents of the partnership relation, Partners who 
 take a deed in their individual right as tenants in common, 
 stand in a different relation to the public from that in which 
 they stand towards each other. Their acts tend to mislead 
 both purchasers and creditors trusting to the apparent state 
 of the title. Partners being the owners of the money which 
 pays for the title, have the power of directing its application 
 to suit their own purposes, and can, if they choose, always 
 secure the identity of its character in the kind of title they 
 take for it. If, therefore, they take title to themselves as 
 
 '* Gage V. Gage, 66 N. H. 282. ^ Meily v. Wood, 71 Pa. St. 488 ; 
 
 '' Buck V. Spofford, 40 Me. 328 ; Shearer v. Shearer, 98 Mass. 107 ; 
 
 Gowen v. Shaw, 40 Id. 58 ; Dyer Coder v. Huling, 27 Pa. St. 84. 
 
 V. Wilbui, 48 Id. 287; Barrel! V. »' Fairchild v. Fairchild, 64 N. Y. 
 
 Barrel!, 25 N. J. Eq. 173; Buclce- 471; Gray v. Palmer, 9 Cal.i 639; 
 
 lew V. Snedelcer, 27 Id. 82 ; Graham Yeatraan v. Woods, 6 Yerg. (Tenn.) 
 
 V. Pierce, 19 Gratt. (Va.) 28. 20; Shearer v. Shearer, supra. 
 
926 REAL PROPERTY. 
 
 tenants in common, instead of as partners, they, by their 
 own election, stamp the character of the title taken as to 
 those who afterwards deal with them.'" 
 
 It is a rule of universal recognition that real estate acquired 
 with partnership funds, or on partnership credit and for 
 partnership purposes, is regarded in a court of equity as part- 
 nership property, and is subject to the payment of partner- 
 ship debts, in preference and priority to the separate debts 
 of the several parties; and it is wholly immaterial, says 
 Judge Story, in the view of a court of equity, in whose name 
 or names the purchase is made and the conveyance taken, 
 whether in the name of one or of all the parties, or in the 
 name of a stranger, alone, or jointly with a partner. In all 
 these cases, let the legal title be where it may, it is in equity 
 deemed partnership property, not subject to survivorship, 
 and the partners are deemed thecesiuis que trustentth.exeior.^^ 
 
 a. Views of Mr. Justice Mitchell. "When a partnership is 
 dissolved and its affairs wound up and completely ended, and 
 any land remains in specie, unconverted, this must be 
 deemed a determination that it is no longer a part of the 
 co-partnership stock, and an election to hold it thereafter, 
 individually, as real estate. During the continuance of the 
 partnership the partners can convey or mortgage it, in the 
 course of their business, whenever they see fit, without their 
 wives joining in the conveyance or mortgage, and the wives 
 would have no dower or other interest in it. This is one of 
 the very objects of treating partnership real estate as per- 
 sonal property, for otherwise the business of the firm might 
 be stopped, and the partners unable to realize on the assets 
 of the firm, by reason of the wife of one of them refusing to 
 join in the conveyance or mortgage. They have the same 
 power of disposition over it for the purposes of a dissolution 
 of the partnership, the payment of its debts, and the distri- 
 bution or division of the capital among themselves ; for until 
 that is done the property has not fulfilled its functions as 
 
 '2 Ebbert's Appeal, 70 Pa. St. 81 ; Offutt v. Scott, 47 Id. 104 ; Coles 
 
 Abbott's Appeal, 50 Id. 238. v. Coles, i Am. Lead. Cas. Hare & 
 
 '' 2 Story, Eq. Jur. sect. 1207 ; W. notes, 492, note ; and Dyer v. 
 
 Hatchett v. Banton, 72 Ala. 435 ; Clark. Id. 495, note. 
 Little V. Snedecor, 52 Id. 167 ; 
 
JOINT ESTATES. 927 
 
 personalty, or ceased to be partnership property. And what 
 the partners may thus do voluntarily, the court may do for 
 them, in an action brought to dissolve the partnership and 
 wind up its affairs."" 
 
 § 417. Partition and its incidents. The division which is 
 made between several persons, of lands, tenements, or 
 hereditaments, or of goods and chattels which belong to 
 them as co-heirs or co-proprietors. The term is more tech- 
 nically applied to the division of real estate made between 
 co-partners, tenants in common, or joint tenants. The act 
 of partition ascertains and fixes what each of the co-pro- 
 prietors is entitled to have in severalty. It is either vol- 
 untary, or involuntary (by compulsion). Voluntary partition 
 is made by the owners of the estate, and by a conveyance or 
 release of that part to each other which is to be held by him 
 in severalty. Compulsory partition is made by virtue of 
 special laws providing that remedy. "It is presumed, ' ' says 
 Chancellor Kent, 4 Com. 360, "that the English Statutes of 
 31 and 32 Henry VIII have been generally re-enacted and 
 adopted in this country, and, probably, with increased facili- 
 ties for partition."" 
 
 a. Objects of a partition suit. "The object of the proceeding 
 in a petition for partition is to turn an estate that is pos- 
 sessed in common into an estate in severalty, and not to fur- 
 nish a mode of settling conflicting titles. It is a general rule 
 that a petition for partition cannot be sustained on a mere 
 right of entry. But there is a distinction between a mere 
 possession of the plaintiff's share by a third person or by the 
 defendant and a legal disseizin. In cases where privity has 
 existed between the parties, as in case of joint tenants or 
 tenants in common, and one tenant ousts his co-tenant by 
 taking all the profits to himself, denying his co-tenant's 
 right, such a possession may be treated as a disseizin, for the 
 purpose of bringing ejectment ; or, he may elect to treat such 
 possession of his co-tenant as his possession, and, in that 
 event, may maintain a petition for partition. But it would 
 
 ^Woodward-HolmesCo. V. Nudd, ''2 Bouvier's Law Die. 290. 
 
 58 Minn. 236. Opinion by Mitch- 
 ell, J. 
 
938 REAL PROPERTY. 
 
 seem from the authorities, if the party in such a case is effec- 
 tually disseized, they no longer hold the estate together, and 
 he is barred of his remedy for partition.'"" 
 
 b. Regarded as an absolute right. The right of partition is 
 an absolute right, which yields to no consideration of hard- 
 ship or inconvenience. " Anything that militates against this 
 right is repugnant to the essential characteristics of co-ten- 
 ancy. °° And the tendency of our times is to greater freedom 
 of sale and transfer of property, unfettered by conditions or 
 limitations of the right of alienation." 
 
 c. Effect on dower. "In Missouri and Ohio the courts have 
 been disposed to treat sales made in partition as conveying 
 title, paramount to the wife's inchoate right of dower. The 
 case of Lee v. Lindell, 22 Mo. 282, 64 Am. Dec. 262, holds that 
 a partition sale during coverture of lands held by a woman's 
 husband in common, divests her right of dower therein, 
 although she was not made a party to the proceeding. The 
 reasoning in this case quite generally commends itself." 
 
 " It is manifest that in proceedings in partition the interest 
 of all parties would be promoted by a sale free from the 
 incumbrance of dower. An uncertain and contingent inter- 
 est of this character would undoubtedly affect the market 
 price of the property to an extent greatly disproportioned to 
 the actual value of that interest."" 
 
 d. Allowance for improvements and betterments. An allow- 
 ance of improvements to which a purchaser in good faith is 
 entitled, may be made in partition proceedings instead of 
 compelling the claimant to bring a separate action to recover 
 his rights. This allowance will be made upon general prin- 
 ciples of equity." And it is well settled that a court of equity 
 once having acquired jurisdiction of a case has power to 
 afford all proper equitable relief that the exigencies of the 
 situation demand." 
 
 ^' Brock V. Eastman, 28 Vt. 660, •"• i Scribner on Dower, 328. 
 
 67 Am. Dec. 733. *' Thorn v. Thorn, 14 la. 55 ; 
 
 "Freeman, Co-Ten. sec. 443. Ford v. Knapp, 102 N. Y. 135; 
 
 ''Mitchell V. Starbuck, 10 Mass. II. Cooter v. Dearborn, 115 111. 509; 
 
 '' Hartmann v. Hartmann, 59 111, but see Scott v. Guernsey, 48 
 
 103 ; Royston v. Royston, 13 Geo. N. Y. i. 
 
 425 ; Higginbottom v. Short, 25 « Green Bay Lumber Co. v. Ire- 
 Miss. 160, 57 Am. Dec. 198. land, ^^ la. 636. 
 
JOINT ESTATES. 9^9 
 
 "Tlie action for betterments, as they are now termed in the 
 local statutes, is given on the supposition that it is intended to 
 secure to the defendant the fruit of his labor, and to the 
 plaintiff all that he is justly entitled to, which is his land in 
 as good a situation as it would have been had no labor been 
 bestowed thereon. The statute is highly equitable in all its 
 provisions, and would do exact justice if the value either of 
 the improvements or of the land was always correctly esti- 
 mated. The principles on which it is founded are taken 
 from the civil law, where ample provision was made for reim- 
 bursing to the joint owner the expense of his improvements. 
 
 "The only objection which can be made is, that it is some- 
 times compelling the joint owner of an estate to sell when 
 he may have been content with the property in its natural 
 state. But this, when weighed against the loss to the bona 
 fide possessor, and against the injustice of depriving him of 
 the fruits of his labor, and giving it to another, who, by his 
 negligence in not sooner enforcing his claim, has in some 
 measure contributed to the mistake under which he has 
 labored, is not entitled to very great consideration."" 
 
 "The right of the occupant to recover the value of his 
 improvements," says the court, "does not depend upon the 
 question whether the real owner has been vigilant or negli- 
 gent in the assertion of his rights. It stands upon a princi- 
 ple of natural justice and equity, viz. , that the occupant in 
 good faith, believing himself to be the owner, has added to 
 the permanent value of the land by his labor and his money ; 
 is in equity entitled to such added value ; and that it would 
 be unjust that the owner of the land should be enriched by 
 acquiring the value of such improvements, without compen- 
 sation to him who made them. This principle of natural 
 justice has been very widely, we may say, universally, recog- 
 nized."" 
 
 e. Owelty defined. Owelty or equality of parti tion. — Owelty, 
 according to Mr. Beach, 2 Eq. Jur. Sec. 993, is an allowance 
 given to equalize the shares on partition of property." It is 
 
 ^' Brown V. Storm, 4 Vt. 37. (N. Y.) 302; Smith v. Smith, 10 
 
 " Whitney v. Richardson, 31 Vt. Paige, 470 (N. Y.) ; Field v. Leitner, 
 306. 117 111. 341. 
 
 " Phelps V. Green, 3 Johns. Ch. 
 
 59 
 
930 REAL PROPERTY. 
 
 not a common law right, but is exclusively equitable in its 
 origin and nature, and is awarded by a court of equity gen- 
 erally wherever partition is made, and it is impracticable to 
 make a fair and equitable division of the lands ; the co-tenant 
 receiving the less valuable portion, being awarded a sum of 
 money or an equivalent." 
 
 Owelty is, however, in many States the subject of legisla- 
 tive provisions," and in some of the States is entirely super- 
 seded by other remedies." 
 
 f. Parol partition. Mr. Washburn, in his work on Real 
 Property, declares, in general terms, that "no parol partition 
 can be effectual unless accompanied by deeds from one co- 
 tenant to the other, inasmuch as the Statute of Frauds applies 
 to such cases."" Mr. Browne, in his Treatise on the Statute 
 of Frauds, sec. 71, after showing some of the decisions on 
 both sides of this question, announces, as his conclusion, 
 that "the decided weight of authority in the United States 
 seems to favor the English view of this question, and to be 
 opposed to allowing a verbal partition to be effectual even to 
 sever the possession of tenants in common."" 
 
 "Although it is laid down that a parol partition is good as 
 between the parties, yet it seems to me that the equitable 
 title only passes, which by adverse possession may ripen into 
 a legal estate. In my opinion, the plaintiff has a right to 
 have this parol partition confirmed by a decree vesting in 
 him whatever title the defendant had in the premises. ' '" But 
 a parol partition, followed by long acquiescence and pos- 
 session, will be upheld."" 
 
 Practice methods by which a partition is effected more 
 properly fall within the scope of some work on Code Proce- 
 dure, and the reader is referred to the various treatises on 
 
 *' Smith V. Smith, 10 Paige (N. «i Washb. on Real Property, 
 
 Y.), 470 ; Earl of Clarendon v. 430. 
 
 Hornby, i P. Wms. 446. ™ Den ex dent Woodhull v. Long- 
 
 ■" Field V. Leitner, 117 111. 341; street, 3 Harr. (18 N. J. Law), 414. 
 
 Smith V. Smith, 10 Paige Ch. (N. " Hazen v. Barnett, 50 Mo. 507. 
 
 Y.) 470. " Brazer v. Schofield, 2 Wash. 
 
 ""^ Field V. Leitner, 117 111. 341. 209; Wright v. Jones, 105 Ind. 17; 
 
 Cited from Beach on Modern Eq. Hank v. McComas, 98 Ind. 460; 
 
 Jur. vol. II, p. 1067, sec. 993. LaBourgeois v. Blank, 8 Mo. App. 
 
 434 
 
JOINT ESTATES. 93 1 
 
 this subject for further elucidation. In a work of this char- 
 acter every form of civil action incident to real property 
 from Trespass and Ejectment to Partition and Foreclosure 
 might be analyzed and expounded, but such an undertaking 
 must be reserved for more ambitious authors than the 
 present. 
 
 JOINT ESTATES,— {Continued.') 
 
 Art. II. Joint tenancy — Coparcenary — Community property. 
 
 Sec 418. Definition and nature. 
 
 419. Distinction between joint and several estates. 
 
 420. Survivorship the distinguishing attribute of joint tenancy. 
 
 421. Joint tenancies not favored — flickering to extinction. 
 
 422. How severed — by the construction of its constituent unities. 
 
 423. Estates in coparcenary. 
 
 424. Community property and its incidents. 
 
 a. Nevada statutory provisions relating to. 
 
 § 418. Definition and nature. Chancellor Kent defines 
 joint tenancy with precision and brevity, viz: "Joint ten- 
 ants are persons who own land by a joint title, created ex- 
 pressly by one and the same deed or will. They uniformly 
 hold by 'purchase' (as distinguished from 'descent.') The 
 estates need not be of the same duration, nature, or interest. 
 The beneficial act of one enures to all tenants. By statute 
 one tenant may maintain an action for waste or of account 
 against his co-tenant. They join and are to be joined in 
 suits. They axe aeiz^d^" per my et per tout." Each has entire 
 possession of every parcel and of the whole. Survivorship 
 is the distinguishing incident ; whence the early law, which 
 was averse to the division of tenures, favored this species of 
 tenancy. In this country the estate is reduced in extent, and 
 the incident of survivorship is abolished, except as to titles 
 held by trustees and conveyances to husband and wife, which 
 conveyances are rather to one person than strict joint ten- 
 ancies."" 
 
 Two or more persons to whom are granted lands or tene- 
 ments to hold in fee simple, fee tail, for life, for years, or at 
 will, are joint tenants and the estate which they thus hold 
 is called an estate in joint tenancy." 
 
 "4 Kent, 357. "2 Bl. Com. 179. 
 
932 REAL PROPERTY. 
 
 § 419. Distinction between "joint " and "several " estates. 
 "Joint tenancy is when two or more persons, not being hus- 
 band and wife at the date of its acquisition, have any subject 
 of property jointly between them in equal shares by pur- 
 chase."" 
 
 All estates are divided as to their qualities in respect to the 
 number of owners into estates in severalty and joint estates. " 
 
 An estate in severalty is one that is held by a person in his 
 own right only, without any other person being joined or 
 connected with him, in point of interest, during his estate 
 therein." 
 
 § 420. Survivorship the distinguishing attribute of joint 
 tenancy. As previously stated the distinguishing attribute 
 of joint tenancy rests in the principle of survivorship, which 
 places the absolute fee of the property in the last survivor 
 without the least reference to the heirs of the former de- 
 ceased co-tenants." Hence it is that two corporations can 
 never be regarded as joint tenants, because the principle 
 of survivorship cannot obtain, as, in contemplation of law, 
 a corporation never dies.'° This principle of survivorship 
 is so palpably unjust as to meet with very general con- 
 demnation. And the rule of survivorship has been quite 
 generally abrogated by statute except, perhaps, in the case 
 of joint trustees. It should be added that an estate in joint 
 tenancy is never created by operation of law, and must exist, 
 if at all, by the specific act of the parties. Such a tenancy is 
 never taken by descent, but the title is invariably acquired 
 by purchase or grant." 
 
 § 421. Joint tenancies not favored — flickering to extinction. 
 
 Estates in joint tenancy are flickering to extinction. They 
 have never received a cordial recognition from our judiciary, 
 and the odious attribute of survivorship which is the lead- 
 ing characteristic of the estate has contributed more than 
 any other incident to its present decreptitude and odium. 
 
 " Cited from Freeman on Co-ten- 289 ; Overton v. Lacy, 6 B. Mon. 
 
 ancy and Partition, p. 64. (Ky.) 13, 17 Am. Dec. iii. 
 
 " 2 Bl. Com. 180. *' DeWitt v. San Francisco, supra, 
 
 "2 Bl. Com. 179. *»2 Bl. Com. i8o; see McPherson 
 
 "DeWitt V. San Francisco, 2 Cal. v. Snowden, 19 Md. 230. 
 
JOINT ESTATES. 933 
 
 Several States, notably Georgia, Ohio, Tennessee and Ore- 
 gon, have utterly oblivionized this species of tenancy. And 
 other States have reached similar results through statutory 
 enactments, which provide for the distribution of a dece- 
 dent's property who had previously held as a joint tenant — ■ 
 "in the same manner as if he were a tenant in common." 
 Still other jurisdictions have struck a blow at the survival of 
 this estate by enactments that require a grantor or devisor to 
 insert specific words importing his intent to create a joint 
 tenancy — otherwise the statute directs that the interest 
 transferred shall be regarded as a tenancy in common. The 
 Connecticut courts, from the very inception of the State's 
 autonomy, quietly ignored the existence of such estates, and 
 manifested their aversion by repeated reference to the "odi- 
 ous principle of survivorship" with its implied resemblance 
 to primogeniture and other medievalisms that the Puritan 
 conscience could not abide." 
 
 § 422. How severed — by the destruction of its constituent 
 unities. "A joint tenancy may be severed in three ways: 
 I, By an act of one of the tenants operating on his own share, 
 and creating a severance as to that share; 2, By mutual 
 agreement; and, 3, By such a course of dealing as intimates 
 that the interests of all were mutually treated as constitut- 
 ing a tenancy in common."" To this may be added, as a 
 fourth means of severance, proceedings against the joint 
 tenant producing an involuntary alienation of his title. In 
 the case of income accruing to joint tenants it seems no act 
 of severance is necessary." 
 
 By the destruction of any of its constituent unities, except 
 that of time, joint tenancy is severed. But where all the 
 joint owners have united in a devise to the survivor, that 
 survivor will take the property in severalty. An early well 
 considered case has held that a severance of the joint tenancy 
 
 " Sergeant V. Steinberger, 2 Ohio, 48; Martin v. Smith, 5 Binn. (Pa.) 
 305; Nichols V. Denny, 37 Miss. 59; 16; Miller v. Miller, 16 Mass. 59. 
 Berdan v. Van Riper, 16 N. J. L. 7 ; '' Williams v. Hensman, i Johns. 
 
 Rogers v. Crider, i Dana (Ky.) 242 ; & H. 557. 
 
 Phelps V. Jepsom, i Root (Conn.) ''Freeman on Co-tenancy and 
 
 Partition, p. 82. 
 
934 REAL PROPERTY. 
 
 may be effected by the due execution, on tlie part of two of 
 three joint tenants of a mortgage which was subsequently 
 foreclosed." 
 
 § 423. Estates in coparcenary. Coparcenary. This title is 
 one of the most formidable in the English text books, where 
 we find a great mass of learning displayed in the exegesis of 
 the subject, which seems to have agitated the legal minds of 
 Bracton's day, and become a well settled principle of the law 
 of real property under the Plantagenets. On this side of the 
 Atlantic the subject is practically ignored, as with us heirs 
 take as tenants in common and may institute a partition suit 
 for the purpose of determining their respective rights. 
 
 It would be entirely profitless to pursue the learning on 
 this subject as it is now encumbered by visionary specula- 
 tions of doubtful value to the American practitioner. That 
 the estate formerly existed sporadically in this country is not 
 denied, but those who wish to view legal situations in their 
 true perspective will no longer obscure their view by misty 
 exhalations from the legal bog of English coparcenary. 
 When the science of the law becomes adulterated with 
 nescience it becomes poisonous and irritating. 
 
 § 424. Community property and its incidents. In the States 
 and territories carved out of the Louisiana purchase, and 
 the cession from Mexico, a species of joint estate has been 
 recognized that was unknown to either the common or civil 
 law. The Code Napoleon created, defined and regulated the 
 community of assets as between husband and wife. But just 
 where these notions of community property crept into the 
 remote provinces of Mexico is a matter of conjecture. Cer- 
 tain it is that the principle of community is there, and appa- 
 
 " Simpson v. Ammons, i Binn. be a tenancy in common, as in New 
 
 (Pa.) 175. York and New Jersey, and where it 
 
 Estates in this country generally is not so declared the effect is the 
 descend to all the children equally, same ; the technical distinction be- 
 there is no substantial difference tween coparcenary and estates in 
 between coparceners and tenants in common may be considered as es- 
 common. The title inherited by sentially extinguished in the United 
 more persons than one, is, in some States. (4 Kent Com. 363 ; Steven- 
 of the States, expressly declared to son v. Cofiferin, 20 N. H. 150. 
 
JOINT ESTATES. 935 
 
 rently to stay. But I can only enjoin upon the practitioner 
 in those jurisdictions the careful observance of the statutory 
 law, as it is impracticable, in a work of this character, to 
 extend the treatment of this subject. 
 
 a. Nevada statutory provisions relating to. Sees, i and 2 of 
 the Act of the Legislature of Nevada defining the rights of 
 husband and wife are as follows : 
 
 Sec. I. "All property of the wife, owned by her before 
 marriage, and that acquired by her afterwards by gift, be- 
 quest, devise, or descent, with the rents, issues, and profits 
 thereof, is her separate property; and all property of the 
 husband, owned by him before marriage, and that acquired 
 by him afterwards by gift, bequest, devise, or descent, with 
 the rents, issues, and profits thereof, is his separate property. ' ' 
 
 Sec. 2. "All other property acquired after marriage, by 
 either husband or wife, or both, except as provided in sec- 
 tions fourteen and fifteen of this act, is community prop- 
 erty."" Sections fourteen and fifteen of the same act are as 
 follows : 
 
 Sec. 14. "The earnings and accumulations of the wife, and 
 of her minor children living with her or in her custody, while 
 she is living separate from her husband, are the separate 
 property of the wife. ' ' 
 
 Sec. 15. "When the husband has allowed the wife to appro- 
 priate to her own use her earnings, the same, with the issues 
 and profits thereof, is deemed a gift from him to her, and is, 
 with such issues and profits, her separate property. ' ' 
 
 The subject of Waste in its relation to joint tenants is fully 
 considered in chapter 10, ante. 
 
 JOINT ESTATES — {Continued:) 
 Art. III. Homestead exemptions. 
 
 Sec 425. Nature of homestead estates — resemble joint tenancies. 
 
 426. Objects of the statutes relating to. 
 
 427. Characteristics of. 
 
 428. Rule in case of double house. 
 
 429. What necessary to create. 
 
 "Comp. Laws Nev. p. 56, sees. 15 1-2. 
 
936 REAL PROPERTY. 
 
 Sec. 430. What constitutes a family. 
 
 431. Will an estate in severalty support the right ? 
 
 432. How construed. 
 
 433. Homestead rights, how alienated. 
 
 434. Effects of divorce. 
 
 § 425. Nature of homestead estates — resemble joint tenan- 
 cies. In considering the nature of the homestead estate. 
 Chief Justice Sawyer, of California, said: "There is no occa- 
 sion to discuss at large the question whether the homestead 
 estate of the husband and wife is exactly the same in all 
 respects, and with all the incidents of a joint tenancy, in the 
 technical sense of the term, as used in the common law, or, 
 whether the term 'joint tenancy' is the best that could be 
 chosen to express the intention of the legislators. But we 
 do not see why the character of the right, as defined, does 
 not substantially approach very near a joint tenancy, although 
 not created in precisely the same way, even if not a techni- 
 cal joint tenancy at common law. In the homestead estate, 
 most of the unities of a joint tenancy are found, for it is cre- 
 ated by the same instrument and at the same time. So far 
 as the homestead right is concerned, ' they have one and the 
 same interest, accruing by one and the same conveyance (or 
 act), commencing at one and the same time, and held by one 
 and the same undivided possession. ' If the husband controls 
 the property during coverture, it is not because he has a 
 greater, more valuable, or different interest in the homestead 
 from that of the wife, but because the law has made him the 
 head of the household and devolved upon him the duty of 
 management, not for his own interest merely but for the 
 joint benefit of both. And since the amendment of 1862, the 
 right of survivorship, the grand incident of joint tenancy is 
 added. The main substantial difference now seems to be the 
 want of power in one of the parties to sever the tenancy, or 
 convey at all, without the concurrence of the other in the 
 mode prescribed. But, however this may be, there is a joint 
 interest in the homestead — a joint holding, if not a joint 
 tenancy. The Legislature did not adopt the provision, that 
 the husband and wife shall be deemed to hold the homestead 
 as 'joint tenants,' without some object, and the term 'joint 
 tenants ' was used as best adapted to express that object. 
 
JOINT ESTATES. 937 
 
 They did not intend to use a meaningless phrase, to be 
 attended by no consequences."" 
 
 § 426. Object of the statutes relating to. Constitutional or 
 statutory provisions exist for the exemption of a certain 
 amount or value of realty, occupied by a person as his home- 
 stead, from a forced sale for the payment of his debts. In 
 some States restraints are placed upon alienation by the 
 owner, and in some the property descends to the widow and 
 minor children free from liability for his debts. The estate 
 is like an estate for life." 
 
 It is settled : i. That the object of the homestead law is to 
 protect the family of the owner in the possession and enjoy- 
 ment of the property; 2, That that construction must be 
 given to such laws as will best advance and secure their 
 object; 3, To divest a homestead estate, there must be a 
 literal compliance with the mode of alienation prescribed by 
 statutes." 
 
 "It (meaning the homestead), is intended to be made, by 
 this constitutional provision, the inviolable sanctuary of the 
 family; not merely the head of the family, but of all its 
 members, whether consisting of husband, wife, and children, 
 or any other combination of human beings, living together 
 in a common interest and having a common object in their 
 pursuits and occupations. Such a combination of persons, so 
 circumstanced, necessarily constitutes a family. ' ' 
 
 The subject of homestead exemptions naturally affiliates 
 with the cognate subjects of a widow's quarantine and main- 
 tenance ; both are the offspring of the humane intendment 
 that those stricken with sudden orphanage or widowhood, 
 thus deprived of the protection and forethought it is their 
 right to anticipate, shall receive on the nomination of the law 
 certain favors and indulgences that will mitigate at least the 
 rigors of a situation made desolate by death. 
 
 § 427. Characteristics of. It is the exemption from sale 
 that distinguishes the homestead from the other lands of its 
 
 " Barber v. Babel, 36 Cal. 16 ; *' Howell v. McCrie, 36 Kan. 644 
 
 McQuade v. Whaley, 31 Id. 531. (1887), cases, Simpson, Commis- 
 
 " Anderson's Law Diet., title sioner. 
 "Homestead Laws.'' 
 
938 REAL PROPERTY. 
 
 owner. It suspends and prevents the remedy of the creditor 
 by execution or other final process as long as it continues." 
 
 The Homestead Law has been a fruitful source of litigation 
 and is quite likely to confound the wisdom of the future if 
 the case last cited with its five separate opinions may be 
 relied upon as warranting one more from us. The home- 
 stead has been called a determinable fee, but no new estate 
 has been conferred upon the owner, and no limitation upon 
 his old estate imposed ; it is obvious that it would be more 
 correct to say that there has been conferred upon him a 
 determinable exemption from the payment of his debts in 
 respect to the particular property allotted to him." Their 
 legal effect is simply to protect the occupant in the enjoy- 
 ment of the land set apart as a homestead unmolested by his 
 creditors. 
 
 The Kentucky statute exempts to the debtor as a home- 
 stead land worth not over $i,ooo, if he be a bona fide house- 
 keeper, with a family. The nature of this right is not fixed 
 by the statute by name. He may sell the property, but is 
 divested of the right to it if he permanently abandons it as 
 his home. It may, perhaps, be said to be a qualified estate. 
 
 It continues after his death, for his widow, during her 
 occupancy of it, though there be no children." 
 
 The husband has the like right in the homestead of the 
 deceased wife. The ciourt has decided that where the right 
 is thus derivative the having of a family is not necessary to 
 its continuance. It is to the creation of the right at the out- 
 set in the husband or wife, but not to the continuance of it 
 in the survivor." 
 
 The exemption of certain property from execution attaches 
 to the proceeds of insurance thereon which the owner intends 
 to invest in similar exempt property." 
 
 There is probably no civilized State or country in the world 
 in which some kind of an exemption is not allowed. These 
 statutes are designed as a protection for poor and destitute 
 
 "Rankin v. Shaw, 94 N. C. 405. "Ellis v. Davis (Ky.) n Ky. L. 
 
 "> Citizens' Nat. Bit. v. Green, 78 Rep. 893. 
 N. C. 247. " Puget Sound Dressed Beef & 
 
 " Gay V. Hanks, 81 Ky. 522. Packing Co. v. Jeffs, 11 Wash. 
 
 466. 
 
JOINT ESTATES. 939 
 
 families. They are based upon considerations of public 
 policy and should be liberally construed." 
 
 Where a homestead dwelling was insured and burned, the 
 Supreme Court of California held that the sum due from the 
 insurance company was not subject to garnishment by a 
 creditor of the husband." 
 
 Property purchased by a pensioner with his pension money 
 is exempt." 
 
 A judgment for the wrongful conversion of property 
 exempt from execution sale is itself exempt." 
 
 The debtor is no more responsible for a change in the 
 character of the property through the destruction of his 
 house by fire than he is for a change in its character the 
 result of a wrongful seizure of his property by which it is 
 transferred into a credit." 
 
 Where several lots form one enclosure and the entire prop- 
 erty does not equal the value of the homestead exemption, it 
 may be claimed in its entirety for the purposes of a home- 
 stead," and it will not defeat the exemption if the premises 
 are occupied in part for purposes of trade or barter, as where 
 the front part of the dwelling is used as a store by the home- 
 steader. °° But if the property is used principally or chiefly for 
 hotel or business purposes, it would be doing violence to the 
 statute to place it under the immunities that surround the 
 exemption laws." 
 
 It is not so much an estate in land itself as a right of occu- 
 
 '*7Am. & Eng. Encyclop. Law, " Bridgers v. Howell, 27 S. C. 425 ; 
 
 pp. 130, 134; Cameron v. Fay, 55 Cone v. Lewis, 64 Tex. 331, 53 Am. 
 
 Tex. 62 ; New Orleans Ins. Asso. v. Rep. 767 ; Rockwell v. Hubbell, 2 
 
 Jameson, 6 Tex. Civ. App. 282 ; Til- Dougl. (Mich.) 197, 45 Am. Dec. 
 
 lotson V. Wolcott, 48 N. Y. 190. 252; Broome v. Davis, 87 Ga. 584; 
 
 "Houghton V. Lee, 50 Cal. loi ; Butner v. Bowser, 104 Ind. 255. 
 
 Ward V. Goggan, 4 Tex. Civ. App. "Geiges v. Greiner, 68 Mich. 153; 
 
 274; Reynolds v. Hanes, 13 L. R. '"Gregg v. Bostwick, 33 Cal. 228 ; 
 
 A. 719, 83 Iowa, 342; Cooney V. Kirtland v. Davis, 43 Ga. 318; 
 
 Cooney. 65 Barb. (N. Y.) 524. Smith v. Quiggans, 65 la. 637; 
 
 " Crow V. Brown, 11 L. R. A. no, Stanron v. Hitchcock, 64 Mich. 328. 
 
 81 Iowa, 344; Yates County Nat. "Green v. Pierse, 60 Wis. 372; 
 
 Bank V. Carpenter, 7 L. R. A. 557, Reinback v. Walter, 27 III. 394; 
 
 119 N. Y. 550. Laughlin v. Wright, 63 Cal. 113. 
 
 " Below v. Robbins, 8 L. R. A. 
 467, 76 Wis. 600. 
 
940 REAL PROPERTY. 
 
 pancy which cannot be disturbed while the homestead char- 
 acter exists. This view of the homestead exemption was 
 first taken by the late lamented Chancellor Judge Edwards 
 H. Fitzhugh, in the case of Richardson v. Butler, reported in 
 
 I Va. L. J. 1 20, and the same general view, although ex- 
 pressed in different language, is found in Scott v. Cheatham, 
 78 Va. 83. 
 
 A homestead may be claimea m a nouse and the village lot 
 on which it is situated although the lot is in extent equal to 
 two lots as the same are platted on the village map under a 
 statute permitting a homestead exemption to be claimed in a 
 quantity of land not exceeding in amount one lot if situated 
 in a village, and the whole amount may be reserved from 
 sale provided it does not exceed the value permitted by the 
 statute. A verbal promise to give security cannot create a 
 mortgage lien upon a homestead." "The debtor, by secur- 
 ing a homestead for himself and family, whether by an 
 arrangement with creditors who might levy on it, or by the 
 purchase of a house, or by moving into a house which he 
 already owns, takes nothing from his creditors which the law 
 has secured to them, or in which they have any vested right. 
 He conceals no property. He merely puts his property into 
 a shape in which it will be the subject of a beneficial provi- 
 sion for himself which the law recognizes and allows."" 
 
 If property has been dedicated as a homestead, and is actu- 
 ally occupied by the owner for that purpose, the fact that the 
 larger portion of the rooms was let to lodgers will not destroy 
 the homestead right in the whole building.*' 
 
 The fact that certain rooms in a single building adapted to 
 one family are rented for an annual paid rent to the owner 
 will not exclude that part from being a portion of the home- 
 stead, the homestead right is not necessarily limited to that 
 portion of the dwelling which is occupied by the family of 
 the owner." 
 
 § 428. Rule in case of double house. Under provisions ex- 
 empting premises "owned and occupied" by a citizen of the 
 
 e^King V. Welborn, 83 Mich. 195. "Goldman v. Clark, i Nev. 608. 
 
 *' Hoar, J., in Tucker v. Drake, *' Mercier v. Chase, 93 Mass. 194. 
 
 I I Allen (Mass.) 146. 
 
JOINT ESTATES. 94 1 
 
 State, a doubie house erected, one-half for the use of the 
 owner and the other half to rent, and actually put to such 
 use, will not be exempt as to the rented part." Where the 
 homestead is defined as the dwelling house in which the 
 claimant resides and the land on which the same is situated, 
 a landowner who erects thereon a double house, with distinct 
 entrances, and no connection between them on the inside, 
 intending one for his residence and the other for tenants, 
 and devoting them to that purpose, cannot claim the rented 
 part as exempt. " 
 
 § 429. What necessary to create. Four things are neces- 
 sary to a homestead exemption: i. It must be confined to 
 one lot and the dwelling house situated thereon with the 
 appurtenances; 2, It must be owned and occupied as such 
 homestead ; 3, It must not exceed in value the sum allowed 
 by statute ; 4, It must be selected as a homestead. In deter- 
 mining whether a building claimed as a homestead is ex- 
 empt as such, the question is whether the principal use of 
 the building was that of a residence for the debtor and his 
 family, especially whether in its architecture it was designed 
 exclusively or properly as a residence." 
 
 In case the homestead right is claimed in property, the 
 value of which is largely in excess of the statutory exemp- 
 tion, covering two lots and a building, built and used for 
 building purposes, and owned by tenants in common who 
 are in no way connected, and hold the property merely for 
 business purposes, there can be no such exemption.'" 
 
 A partner cannot select and establish homestead rights in 
 the real estate of the firm." Where the parcel levied upon 
 includes more than the statutory quantity, then a selection 
 becomes necessary." This homestead right may be varied, 
 
 "Dyson V. Sheley, ii Mich. 528. Rogers, 35 Cal. 319; Re Noah, 73 Cal. 
 
 " Tierman v. His Creditors, 62 590; Laughlin v. Wright, 63Cal. 116. 
 
 Cal. 289. «» Tharp v. Allen, 46 Mich. 391- 
 
 " Thompson, Homestead and Ex- 393; Amphlett v. Hibbard, 29 
 
 emptions, sec. 137 ; Dyson v. She- Mich. 298-300. 
 
 ley, II Mich. 528, 529; Rhodes v. ™ Drake v. Moore, 66 Iowa, 58. 
 
 McCormick, 4 Iowa, 374 ; Ackley " First Nat. Bank of Constantine 
 
 V. Chamberlain, 16 Cal. 183 ; Gregg v. Jacobs, 50 Mich. 340; Riggs v. 
 
 V. Bostwick, 33 Cal. 228 ; Mann v. Sterling, 60 Mich. 651. 
 
942 , REAL PROPERTY. 
 
 however, before the owner has made his election and selec- 
 tion by failure to make the same before sale by the sheriff." 
 In order that the premises may be exempt, they must be 
 set apart as a home by the owner and his family." The law 
 can make no selection for the parties." 
 
 § 430. What constitutes a family. The relation of husband 
 and wife or that of parent and child is not necessary in order 
 to constitute a family. A father and his adult son living 
 together constitute a family." So with unmarried man sup- 
 porting minor sisters." It is said in 7 Am. & Eng. Cy. of 
 Law, 804, note, that "the test of a legal duty (or support) has 
 been rarely applied, and unquestionably a moral duty to 
 support the members of a family is sufl&cient to constitute 
 one its head."" 
 
 A householder does not lose the right of homestead by the 
 death of his wife and departure of his children who have 
 arrived at maturity, or by divorce, as he may adopt other 
 persons as members of his family." 
 
 Upon the question whether the homestead right has been 
 or could be extinguished by the various acts of the parties 
 holding that estate. Dewy, J., said in Doyle v. Coburn, supra: 
 ' ' Nor did the separation of husband and wife, as shown by 
 her withdrawal in 1861, taking with her the child, defeat the 
 homestead estate. The defendant has personally occupied 
 the same as his place of residence up to the present time. 
 He acquired his homestead as a 'householder having a fam- 
 ily. ' It is not necessarily lost by the death or absence of his 
 wife and children. Others may be adopted as members of 
 his household and his homestead retain its existence. ' ' 
 
 '' Riggs V. Sterling, supra; "Citing Thompson's Homesteads 
 
 Beecher v. Baldy, 7 Mich. 505; and Exemptions, sec. 45. 
 
 Laraore v. Frisbie, 42 Id. 189; '* Silloway v. Brown, 12 Allen 
 
 Stevenson v. Jackson, 40 Id. 702 ; (Mass.) 34 ; Doyle v. Coburn, 6 Id. 
 
 Matson v. Melchor, 42 Id. 477. ^l\ Barney v. Leeds, 51 N. H. 253; 
 
 " Dyson V. Sheley, 1 1 Mich. 527. Myers v. Ford, 22 Wis. 139; 
 
 ** Stevenson v. Jackson, 40 Mich. Whalen v. Cadman, 1 1 Iowa, 226 ; 
 
 703. Parsons v. Livingston, Id. 104; 
 
 " Rollings v. Evans. 23 S. C. 237. Stewart v. Brand, 23 Id. 477. 
 
 " Greenwood v. Maddox, 27 Ark. 
 658. 
 
JOINT ESTATES. 943 
 
 A widow who undertakes to keep together, care and sup- 
 port the minor children of her husband by a former wife is 
 the head of a family and as such entitled to have a homestead 
 set off for the benefit of herself and such children, although 
 she was under no obligation to support them." 
 
 § 431. Will an estate in common support the homestead 
 exemption right. The humane and beneficent features of 
 the homestead laws are admitted by all publicists and jurists 
 as worthy of our advanced civilization. But it may well be 
 questioned if it is expedient to allow lands held in common 
 to be subject to this right of homestead exemption. The 
 difficulty is in locating a particular plat upon which the 
 building is situate, as a plat to which that particular tenant 
 in common was entitled. Unless very simple minded the 
 homesteader would naturally select the most available site 
 on the entire joint estate. And what disposition can equity 
 make, that will confirm him in his homestead exemption 
 rights, and at the same time conserve the interests of the 
 other co-tenants. 
 
 Upon the question whether an estate in common will sup- 
 port a right of homestead in one of the co-tenants, or whether 
 it must be an estate in severalty, the authorities are conflict- 
 ing, says Judge Thompson, in his learned Treatise on Home- 
 steads and Exemptions, and he proceeds to give the reasons 
 which support the opposing conclusions."" 
 
 " Holloway v. Holloway, 86 Ga. are cited : Wolf v. Fleischacker, 
 
 576; II L. R. A. 518. Reynolds v. Pixley, Kellersberger, 
 
 "" Thompson, Homesteads and v. Kopp, Bishop v. Hubbard, Elias 
 
 Exemptions, sees. 180-189. ^^ the v. Verdugo, and Seaton v. Son, 
 
 affirmative he cites the following supra ; Kingsley v. Kingsley, 39 
 
 cases: Greenwood v. Maddox, 27 Cal. 665; Cameto v. Dupuy, 47 
 
 Ark. 660 ; Thorn v. Thorn, 14 Id. 79 ; Thurston v. Haddocks, 6 
 
 Iowa, 49 ; Hewitt v. Rankin, 41 Allen, 427 ; Bemis v. DriscoU, loi 
 
 Id. 35; Tarrant v. Swain, 15 Kan. Mass. 421; Amphlett v. Hibbard, 
 
 146; Horn V. Tufts, 39 N. H. 478 ; 29 Mich. 298 ; Ventress v. Collins, 
 
 Lacey v. Clements, 36 Tex. 663 ; 28 La. Ann. 783 ; Simon v. Walker, 
 
 Williams v. Wethered, 37 Id. 130; 28 Id. 608; Borron v. SoUibellos, 
 
 Smith V. Deschaumes, 37 Id. 429; 28 Id. 355; West v. Ward, 26 Wis. 
 
 McClary v. Bixby, 36 Vt. 254. In 580. 
 the negative the following cases 
 
944 REAL PROPERTY. 
 
 § 432. How construed. Statutes exempting real property 
 from sale on execution have received a liberal construction 
 by nearly all the courts of this country."' They say that 
 such statutes are remedial, and should receive such a con- 
 struction as would give effect to the intention of the Legis- 
 lature.'" « 
 
 The courts of some of the States have not adopted this 
 broad rule of liberal construction, but, in our opinion, reason, 
 as well as the weight of authority, is with those that do. 
 
 In the case of Crow v. Brown, 81 Iowa, 344, 11 L. R. A. no, 
 it was held that property purchased with pension money was 
 exempt by virtue of the provisions of the Federal statute 
 which provided that such money should be wholly for the 
 benefit of the pensioner. This decision was made after a 
 careful consideration by that learned court, and the fact that 
 there was a dissenting opinion by one of the judges cannot 
 be said to detract from the authority of the case. On the 
 contrary, the very fact that there was a division among the 
 judges of the court would be likely to cause the case to be 
 more carefully considered than it otherwise would have been. 
 In the case of Below v. Robbins, 76 Wis. 600, 8 L. R. A. 467, it 
 was held by the Supreme Court of Wisconsin that a judg- 
 ment for the wrongful conversion of exempt personal prop- 
 erty was itself exempt, and it is evident that the course of 
 reasoning which led to such a decision would fully sustain 
 the contention of the appellant above referred to. 
 
 I 433. Homestead rights, how aliened. In some of the 
 States, notably Kansas, a constitutional provision exists 
 
 "" See Peverly v. Sayles, 10 N. H. "' See Carpenter v.Herrington, 25 
 356 ; Deere v. Chapman, 25 111. 610, Wend. (N. Y.) 370, 37 Am. Dec. 239 ; 
 79 Am. Dec. 350; Connaughton v. Franklin v. Coffee, 18 Tex. 413, 70 
 Sands, 32 Wis. 387 ; Campbell v. Am. Dec. 292 ; Wassell v. Tunnah, 
 Adair, 45 Miss. 170; Kuntz v. Kin- 25 Ark. loi ; Hawthorne v. Smith, 
 ney, 33 Wis. 510; Robinson v. 3 Nev. 182, 93 Am. Dec. 397; Gil- 
 Wiley, 15 N. Y. 489; Howe V. man v. Williams, 7 Wis. 329, 76 
 Adams, 28 Vt. 541 ; Moss v. War- Am. Dec. 219 ; Alvord v. Lent, 23 
 nes, 10 Cal. 296; Bevan v. Hayden, Mich. 369; State v. Romer, 44 Mo. 
 13 Iowa, 122 ; Montague v. Rich- 99; Good v. Fogg, 61 111. 449, 14 
 ardson, 24 Conn. 338, 63 Am. Dec. Am. Rep. 71 ; Freeman v. Carpen- 
 173. ter, 10 Vt. 433, 33 Am. Dec. 210. 
 
JOINT ESTATES. 945 
 
 "which requires the joint consent of husband and wife to any 
 alienation of the homestead estate. Quite likely statutory 
 regulations of a similar import are in vogue elsewhere. And 
 in either case, any alienation of the homestead must be 
 viewed with reference to these provisions. It is not for the 
 courts to refine away the recitals of a statute, or ignore the 
 fundamental law. Joint consent clearly implies the concur- 
 rent action and mental accord of husband and wife. And 
 public policy clearly suggests the importance of preserving 
 to each family an abiding place, secure against improvident 
 alienation and incumbrance. Nothing will conduce more 
 surely to a higher social environment than a home owned by 
 the occupants — beyond the reach of cunning or greed or 
 dissoluteness. The rule is inflexible in all jurisdictions 
 where joint consent is a legal prerequisite to alienation, that 
 the homestead cannot be conveyed or encumbered by hus- 
 band or wife acting separately at different times, and in 
 different places, and through the medium of different instru- 
 ments. But in all cases, there must be the intelligent joint 
 action of the parties, free from any covinous agreement or 
 intention."' 
 Their separate deeds are not sufficient to pass the title."' 
 The homestead being held in the nature of a joint tenancy 
 with the incident of survivorship attached, separate convey- 
 ances cannot avail to divest the title."' 
 
 Most of the statutes declaratory of the subject provide in 
 terms that no conveyance of the estate in which a homestead 
 exists, or release or waiver thereof, shall operate to defeat 
 the right of the owner or of his wife and children to have a 
 homestead therein, unless such conveyance is by a deed in 
 which the wife of the owner, if he has any, joins for the pur- 
 pbse of releasing such right in the manner in which she may 
 release her dower. 
 
 § 434. Effects of divorce. The Supreme Court of Iowa, 
 quite recently said : " It is true his divorced wife was awarded 
 
 >»2 Ott V. Sprague, 27 Kan. 620 ; "* Dickinson v. McLane, 57 N. H. 
 Howell V. McCrie, 56 Id. 656, 50 31. 
 
 Am. Rep. 584. ■»« Poole V. Girard, 6 Cal, 71 ; 
 
 Bunting v. Saltxz, 64 Cal. 168. 
 60 
 
946 
 
 REAL PROPERTY. 
 
 the custody of his only child, and the court decreed that she 
 could maintain it without charge to the defendant. But this 
 decree does not exonerate him from liability to support the 
 child, in the event of the inability of the mother to do so. It 
 seems fully to accord with the provisions of the homestead 
 law that the exemption should last as long as his liability to 
 support exists, provided he continue in actual occupation of 
 the property. Besides, the provisions of the homestead law 
 are intended for the benefit of the children as well as of the 
 parents. It does not accord with the spirit of the humane 
 provisions of the statute, that the divorcing of the wife and 
 awarding to her of the children, should deprive them of all 
 interest in the homestead property.""' In New Hampshire 
 a divorced wife who was awarded the custody of the children 
 was permitted to sell the homestead under her decree for ali- 
 mony.'" 
 
 106 Woods V. Davis, 34 Iowa, 265. 
 See to same eflfect Doyle v. Co- 
 burn, 6 Allen, 73. 
 
 107 Wiggin V. Buzzell, 50 N. H. 
 
 329- 
 
 "And it is true that courts liberally 
 construe homestead laws, for the 
 purpose of effectuating their wise 
 and beneficent intentions, to the 
 end that no family, through the 
 misfortune of poverty or the death 
 of its legal head, may be deprived 
 of shelter, and where the home- 
 stead consists of a farm, of support. 
 But all the reasons which have in- 
 duced the law to favor the wife or 
 widow in the matter of homestead 
 rights are entirely absent in cases 
 of divorce. There is no action 
 known to the law wherein the en- 
 tire property of both parties is 
 brought more directly within the 
 grasp and control of the chancellor 
 than the action for divorce. In 
 this action the chancellor reviews 
 not only the marital rights and 
 wrongs of the respective parties, 
 
 but their financial status and finan- 
 cial needs. He requires absolute 
 information as to the number, age, 
 and condition of all minor children. 
 He knows it is the duty of the hus- 
 band and father to support the fam- 
 ily and educate the children. He 
 knows that, in case of the death of 
 the husband and father, the law 
 places its hand upon so much of 
 his property as constituted his 
 homestead, and devotes it exclu- 
 sively to the accomplishment of 
 these purposes which it was the 
 duty of the husband and father to 
 accomplish while living. Where a 
 divorce a vinculo is granted to an 
 innocent wife, and she is given the 
 custody of minor children, it is the 
 duty of the chancellor, so far as the 
 circumstances will permit,— and his 
 power in that respect is plenary,— 
 to compensate the innocent family 
 for every right it has lost by reason 
 of the legal separation from an of- 
 fending husband and father." (Ros- 
 holt V. Mehus, 3 N. Dak. 513.) 
 
JOINT ESTATES. 947 
 
 JOINT EST AT'&S — {Continued.) 
 Art. IV. Estates by entireties. 
 
 Sec. 435. How created. 
 
 436. Incidents of this estate. 
 
 437. How affected by married women's Acts. 
 
 438. The separate estate of a married woman. 
 
 439. Husband may convey his interest to his wife. 
 
 440. The separate estate of a married woman — Yale v. Dederer 
 
 examined. 
 
 441. Power of husband over. 
 
 a. Lease by husband. 
 
 442. Husband and wife may take as joint tenants or tenants in 
 
 comon. 
 
 443. Attitude of the courts as to estates by entirety. 
 
 444. Dissolution of the tenancy by death or divorce. 
 
 445. Rule as to moieties. 
 
 § 435. How created. A tenancy by entireties arises when- 
 ever an estate vests in two persons, they being, when it so 
 vests, husband and wife. It may exist in personal as well as 
 real property ; in a chose in action as well as in a chose in 
 possession.'"' The common law rule is that the words which, 
 in a conveyance to unmarried persons, constitute a joint ten- 
 ancy, will create, if the grantees are husband and wife, a ten- 
 ancy by entireties. 
 
 If an estate in fee be given to a man and his wife, they are 
 neither properly joint tenants, nor tenants in common, for, 
 being one person in law, they cannot take the estate by moie- 
 ties, but both are seized of the entirety — the consequence of 
 which is, that neither can dispose of any part without the 
 assent of the other, but the whole must remain to the survi- 
 vor.'"" This assertion is supported by a vast array of autho- 
 rity. 
 
 Under well recognized rules of the common law parties 
 occupying the relation of husband and wife were considered 
 one person, and when land was conveyed to them as such, 
 they held, not as joint tenants, but each being seized of the 
 whole per tout et non per my, so that the survivor takes the 
 
 "» Freem. Co-ten. sees. 63, 68; Gil- '»» 2 Bl. Com. 182 ; Anderson, Law 
 Ian V. Dixon, 65 Pa. 395. Diet. tit. "Entirety." 
 
948 
 
 REAL PROPERTY. 
 
 whole, not by survivorship, but by virtue of the original 
 estate."" 
 
 A dictum in Meeker v. Wright, 'j6 N. Y. 262, supported by a 
 divided court, unsettled the law for some time in the State of 
 New York as it was supposed to indicate an opinion of the 
 Court of Appeals that, in such cases, husband and wife took 
 as tenants in common ; but the question was finally set at rest 
 by the decision in BertlesY. Nunan, 92 N. Y. 152, which held 
 the law to be as stated in the context. This case overruled 
 that of Feeley v. Buckley, 28 Hun (N. Y.), 451."' 
 
 § 436. Incidents of this estate. Husband and wife take as one 
 person. Tenancy by entireties is substantially a joint ten- 
 ancy, modified by the common law doctrine that husband and 
 wife are one person. The various enactments during the 
 last forty years, tending to enlarge the rights of married 
 women, should be construed as not affecting this peculiar 
 tenancy, which remains precisely as it existed at common 
 law. For decisions upholding this assertion see Marburg v. 
 Cole, 49 Md. 402; McCurdy v. Canning, 64 Pa. St. 39; McDuff 
 
 110 Jackson v. Stevens, 16 Johns. 
 (N.Y.) no, 115; Rogers v. Benson, 
 
 5 Johns. Ch. (N.Y.) 431, 437, i L. ed. 
 1 132, 1 139; Barber v. Harris, 15 
 "Wend. (N. Y.) 615-617; Jackson v. 
 McConnell, 19 Id. 175, 177; Dias v. 
 Glover, i Hoff. Ch. (N. Y.) 76, 77, 
 
 6 L. ed. 1069, 1070; Doe v. Howland, 
 8 Cow. (N. Y.) 283 ; Torrey v. Tor- 
 rey, 14 N. Y. 430 ; Den v. Harden- 
 burgh, 10 N. J. L. 49; Shaw v. 
 Hearset, 3 Mass. 521 ; Thornton v. 
 Thornton, 3 Rand. (Va.) 179 ; Ames 
 V. Norman, 4 Sneed (Ky.), 683 ; Rog- 
 ers v. Grider, 1 Dana (Mass.), 242 ; 
 Cochran v. Kerney, 9 Bush. (Ky.) 
 199; Gibson v. Zimmerman, 12 Mo. 
 385; Stuckeyv. Keefe, 26 Pa. 397- 
 399 ; Taul v. Campbell, 7 Yerg. 319 ; 
 4 Kent, Com. 362 ; 2 Bl. Com. 182 ; 
 Fairchild v. Chastelleaux, i Pa. 176; 
 Johnson v. Hart, 6 Watts & S. 319; 
 Ketchum v. Walsworth, 5 Wis. 102; 
 Brownson v. Hull, 16 Vt. 309; 
 
 Fisher V. Provin, 25 Mich. 347-351 ; 
 Davis V. Clark, 26 Ind. 428; Mc- 
 Duff v. Beauchamp, 50 Miss. 531 ; 
 Greenlaw v. Greenlaw, 13 Me. 182- 
 186; 1 Washb. Real Prop. 278; 
 Bertles v. Numan, 92 N. Y. 152. 
 
 '" Gerard, Real Estates Titles. 3d 
 ed. 67. See note to Baker v. Stew- 
 art (Kan.), 2 L. R. A. 434. 
 
 In the oft quoted case of Meeker 
 V. Wright, 76 N. Y. 262, it was de- 
 cided that " Where, since the pas- 
 sage of the Act of i860 concerning 
 the rights and liabilities of husband 
 and wife, lands have been conveyed 
 to the husband and wife jointly, 
 without any statement in the deed 
 as to the manner in which the 
 grantee shall hold, they are tenants 
 in common." Subsequently, in 
 Bertles v. Nunan, 92 N. Y. 152, 
 that decision was overruled by a 
 divided court. 
 
JOINT ESTATES. 949 
 
 V. Beauchamps, 50 Miss. 531 ; Fishery. Previn, 25 Mich. 347; 
 Hulet V. Inlaw, 57 Ind. 412. 
 
 By the common law the right to control the possession of 
 an estate by entireties during the joint lives of the husband 
 and wife is in the former precisely as when the wife is sole 
 seized. 
 
 "Neither can convey during their joint lives so as to bind 
 the other, or defeat the right of the survivor to the whole 
 estate, ""' subject to this limitation. The husband has all the 
 rights that usually pertain to his own estate — all the inci- 
 dents that under the common law attach to the husband by 
 the act of marriage, which includes the absolute control of 
 the wife's estate. He has, during coverture, the usufruct of 
 all the realty which the wife has, either in fee, fee tail, or for 
 life. He has the further right to make a lease of an estate 
 conveyed in fee to himself and wife, which will bind the 
 wife's interest during coverture, and can only be defeated by 
 his death before the wife.'" There is some vacillation in 
 the authorities as to the effect of these various remedial 
 statutes affecting the status of this estate, and while many 
 hold to the views above outlined, others manifest a tendency 
 to more liberal construction and virtually abolish the chief 
 incident of this old and time-honored title. '" 
 
 The doctrine was very exhaustively considered in Chandler 
 V. Cheney, 37 Ind. 391, in which the court say: "As between 
 husband and wife there is but one owner, and that is neither 
 the one nor the other, but both together. The estate belongs 
 as well to the wife as to the husband. Then, how can the hus- 
 band possess any interest separate from the wife, or how can 
 he alienate or encumber the estate, when all the authorities 
 agree that the wife can neither convey nor encumber such 
 estate ? We are of the opinion that from the peculiar nature 
 of this estate, and from the legal relation of the parties, there 
 must be unity of estate, unity of possession, unity of control, 
 
 '" Pierce V. Chase, 108 Mass. 254. child v. Castelleaux, i Barr. 176; 
 
 '"Barber v. Harris, 15 Wend. Polluck v. Kelly, 6 Ir. C. L. 367; 
 
 (N. Y.) 615; Topping v. Sadler, 5 Bertles v. Numan, 92 N. Y. 152. 
 
 Jones (N. C), 357; Washburn v. "<See Cooper v. Cooper, 76 111. 
 
 Burns, 5 Vroom. (N.J.)i8; Amesv. 57; Clark v. Clark, 56 N. H. 105; 
 
 Norman, 4 Sneed (Ky.), 683; Fair- HoflEman v. Steigers, 28 la. 302. 
 
950 REAL PROPERTY. 
 
 and unity in conveying or encumbering it ; and it necessarily 
 and logically results that it cannot be seized and sold upon 
 execution for the separate debts of either the husband or the 
 wife. The estate is placed beyond the exclusive control of 
 either of the parties, or the reach of creditors, unless it can 
 be successfully attacked and set aside for fraud. Any other 
 rule -would create injustice and hardship. If the husband 
 can dispose of the estate during their joint lives, the wife is 
 deprived of the enjoyment without her consent. * * * 
 The property belongs as much to the wife as to the husband, 
 and she has just as clear, undoubted, and equitable a right to 
 the use and enjoyment of the property during the existence 
 of the marriage, as she has to succeed to the estate upon the 
 death of her husband. The opposite doctrine is full of 
 absurdities and gross injustice. If the doctrine contended 
 for by the appellant is correct, the husband may, without the 
 consent and concurrence of his wife, lease the property to a 
 stranger, and compel his wife and children to leave the com- 
 fortable home that belongs as much to her as to him, and 
 compel them to live in some miserable hovel, while the hus- 
 band spends his time in riotous living upon the rent derived 
 from the joint estate. In such a case, the wife can have no 
 relief except in the death of her husband. If the husband has 
 a life estate separate and distinct from his wife, then he may 
 mortgage such estate, or it may be seized and sold upon exe- 
 cution for his debts. In either event, the purchaser would 
 acquire just the same interest that the husband had. The 
 purchaser would be entitled to the possession during the life 
 of the husband, to the exclusion of the wife. The right of 
 the wife to the joint enjoyment of the estate, during the 
 marriage, is as valuable and sacred as the right of taking the 
 entire estate by survivorship upon the death of the husband. 
 The rights of the wife in the joint property are as sacred as 
 those of the husband, and should be as firmly secured, 
 guarded, and protected by law as are his. There is an 
 equity in equality, but there is gross iniquity and injustice 
 in permitting the husband to deprive the wife of the use and 
 enjoyment of an estate that does not belong exclusively to 
 either, but to both, and which belongs as much to the wife 
 as to the husband." The doctrine laid down in Chandler 
 
JOINT ESTATES. 95 I 
 
 V. Cheney, 37 Ind. 391, has been repeatedly followed in 
 Indiana.'" 
 
 It has recently been said that "an examination of the cases 
 which hold that the husband has exclusive control over an 
 estate held by entireties will show that wherever a reason 
 has been given for the rule, it is, that the common law gave 
 the husband such control over the wife's separate real estate, 
 therefore, he had the same rights over the undefinable inter- 
 est she had in an estate held by entireties. Hence, we find 
 that in most of the States where the statutes have clothed the 
 wife with the power to manage, control, and use her separate 
 real estate, the courts, following the logic of the situation, 
 have extended this right to estates by entireties to the extent 
 of denying the right of the husband or his creditors to de- 
 prive her of the use and enjoyment of her interest in such an 
 estate during the life of her husband. " It is so held in Shinn 
 V. Shinn, 42 Kan. i ; Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 
 Am. Rep. 52; McCurdy v. Canning, 64 Pa. St. 39, 41. 
 
 The gift of a fee simple, or a gift of a capital sum of money 
 to the "separate use" of a married woman gives her the same 
 power of alienation over it, as if she were a single woman. 
 The separate use is a creature of equity, and equity says the 
 estate may be so limited to the married woman, as that she 
 can get rid of every possible interest of the husband.'" 
 
 § 437. How affected by the Married Women's Acts. It has 
 been contended, and in some jurisdictions held, that the 
 legislation which secures to the wife the enjoyment of her 
 separate estate is destructive of the legal unity of husband 
 and wife; on which tenancies by entireties depend, but the 
 later view is that such tenancies are not destroyed or im- 
 paired by it.'" 
 
 In Diver v. Diver, 56 Pa. 106, it was expressly decided that 
 the Pennsylvania act of April 11, 1848, did not in any man- 
 
 "s See Dodge v. Kinsey, loi Ind. Pearson, 31 Ind. i ; s. c. 99 Am. 
 
 102 ; Barren Creek Ditching Co. v. Dec. 577 ; Davis v. Clark, 26 Ind. 
 
 Beck, 99 Id. 247; Carver v. Smith, 424; s. c. 89 Am. Dec. 471. 
 
 90. Id 222; s. c. 46 Am. Rep. 210; '"Chapman v. Price, 83 Va. 392. 
 
 Patton V. Rankin, 68 Ind. 245 ; s. '" 8 Am. & Eng. Ency. Law, p. 
 
 c. 34 Am. Rep. 254; Simpson v. 851, and cases cited. 
 
952 REAL PROPERTY. 
 
 ner affect the creation and enjoyment of estates by entire- 
 ties; and Strong, J., in delivering the opinion of the court, 
 said : ' ' To hold it as operating upon the deed conveying land 
 to a wife, making such deed assure a different estate from 
 what it would have assured without the act, is to lose sight 
 of the legislative purpose. Were we to do so it would be- 
 come in many cases a means of divesting her of her property, 
 instead of an instrument of protection.'" 
 
 If we are to follow precedents in preference to principle, 
 the "lawless science of the law" will disclose many of its 
 ulcers. The old barbarian's theory that husband and wife 
 are one person, in contemplation of law, is, in view of our 
 social and institutional environment, without either sub- 
 stance or reason, and it is both useless and illogical to per- 
 petuate such nonsense. The reason for its existence in the 
 common law scheme of landed property was bottomed on 
 the brutal theory that the wife's existence was properly one 
 of poverty and dependence. While the law confirmed 
 wealth, power, and domination upon the husband who be- 
 came the absolute owner of everything belonging to the 
 wife. This theory has had its day. And why we should 
 continue this particular estate as one belonging to the 
 modern law of real property is a mystery ever pressing for 
 determination. 
 
 The common law doctrine of tenancies by the entireties 
 was wholly out of line with the statutes, judicial decisions 
 and the conditions and wants of the people of this country."" 
 
 In I Swift, Syst., 272, Judge Swift remarks that the odious 
 and unjust doctrine of survivorship was never adopted in his 
 State. 
 
 In Cooper v. Cooper, 76 111. 57, it was said that "under the 
 legislation of this State, giving married women the right to 
 acquire property, and hold the same free from their hus- 
 band's control, the reason for the rule which holds that a 
 conveyance to husband and wife makes them tenants by the 
 entirety, with right of survivorship, has ceased to exist and 
 they will, in this State, take and hold as tenants in common. 
 
 '" Re Bramberry's Estate, L. R. "« Shinn v. Shinn, 42 Kan. i. 
 A. 22. 
 
JOINT ESTATES. 953 
 
 In Hoffman v. Stigers, 28 Iowa, 302, it was held that "under 
 our law joint tenancies, and in entirety, are not favored, and 
 a conveyance to two or more persons in their own right cre- 
 ates a tenancy in common, unless a contrary intent is ex- 
 pressed. And this rule, under our statute, applies to a con- 
 veyance, whether by judgment or deed, vesting the estate in 
 the husband and wife jointly. " In the opinion in that case 
 it was also said : ' ' And as the courts in most of the States 
 condemn entailments or perpetuities, so we do and should joint 
 tenancies, or at least their common law incident — the right 
 of survivorship. ' ' 
 
 In New Jersey, when the title to real estate is conveyed 
 to a married woman and paid for out of her separate estate, 
 she is the bona fide owner of it, as if she were single. A hus- 
 band may manage the separate property of his wife without 
 necessarily subjecting it, or the profits arising from his man- 
 agement, to the claims of his creditors."" 
 
 This State has been most liberal in modifying the rules 
 of the common law prescribing the marital rights of the hus- 
 band in the property of his wife and in protecting her against 
 the claims of his creditors. In 1851 a widow was given the 
 right to demand from the personal representative of her de- 
 ceased husband all personal property which, at or immedi- 
 ately before her coverture, belonged to her, or which came 
 to her during coverture by bequest, gift or inheritance, if it 
 remained in his possession at the time of his death.'" In 
 1852 it was enacted that a married woman might receive by 
 
 "" The following cases are upon 26 N. J. Eq. 373 ; Symmes v. 
 
 the question of the construction of Strong, 28 Id. 132 ; Stall v. Fulton, 
 
 the Married Women's acts of New 30 N. J. L. 430 ; Black v. Black, 
 
 Jersey: Horner v. Webster, 33 N. 30 N. J. Eq. 219; S. P. in Penn., 
 
 J. L. 397; Huyler V. Atwood, 26 N. Wells, sec. 178; Vreeland v. Vree- 
 
 J. Eq. 506; Lewis v. Perkins, 36 N. land, 16 N. J. Eq. 523; Atwater. v. 
 
 J. L. 133 ; Green v. Pallas, i Beas. Underhill, 22 Id. 604, citing with 
 
 (12 N. J. Eq.) 267 ; Quidort v. Per- approval the N. Y. case of Knapp 
 
 geaux, 18N. J. Eq. 478 ; Wells Sepa- v. Smith, 27 N. Y. 277; Owen v. 
 
 rate Prop, of Mar. Worn., sec. 144 ; Cowley, 36 Id. 600 ; Naylor v. Field, 
 
 Wilson V. Brown, 2 Beas. (13 N. J. 5 Dutch. 29 N. J. L. 287; Bk. v. 
 
 Eq.) 277 ; Peterson v. Mulford, 36 Sprague, 20 N. J. Eq. 24. 
 N. J. L. 485 ; Court of Errors,'^cit- ''' Laws of 1851, p. 201. 
 
 ing many decisions ; Beal v. Storm, 
 
954 REAL PROPERTY. 
 
 gift, grant, devise or bequest, and hold for her sole and sepa- 
 rate use, real and personal property, and the rents, issues 
 and profits thereof, and that her sole and separate property- 
 should not be subject to the disposal of her husband or liable 
 for the payment of his debts.'" In 1857 married women were 
 authorized to bind themselves by covenants in conveyances 
 of their lands, provided their husbands joined with them in 
 the deeds,"' and in 1862 it was enacted that if a married wo- 
 man transacted business or purchased property, and thereby 
 contracted debts, she might be sued at law for the recovery 
 of the amount, and that any judgment thus obtained should 
 bind her property.'" 
 
 In Illinois, by Act 1861, p. 143, real property belonging to 
 a married woman as her sole and separate property, or which 
 any woman hereafter married owns at the time of her mar- 
 riage, or which any married woman during coverture acquires 
 in good faith from any person, other than her husband, by , 
 descent, devise, or otherwise, together with all the rents, 
 issues, income, and profits thereof, is declared to remain her 
 sole and separate property, under her sole control, as though 
 she were sole; and not subject to the disposal, control, or 
 interference of her husband, or liable for his debts. She may 
 dispose of her separate estate by her last will, in the same 
 manner as a feme sole?'"' 
 
 In New York, since the Married Woman's Act of 1848, a 
 feme covert may create an express charge on her separate 
 estate in the same manner as if she were single."' 
 
 § 439. Husband may convey his interest to his wife. A con- 
 veyance of land to a husband and wife created the peculiar 
 title sometimes called an "estate by entireties" or "in en- 
 tirety." Neither could sever this title so as to defeat or pre- 
 judice the title of the survivor. '" We find nothing, however, 
 to show that it has ever been considered that a husband could 
 
 '"Laws of 1852, p. 407. McNeer, 142 Id. 388 ; Jackson v. 
 
 '" Laws of 1857, p. 485. Jackson, 144 Id. 274. 
 
 '" Laws of 1862, pp. 271, 272. "« Yale v. Dederer, 18 N. Y. 265. 
 
 '''Rev. Stat, 1855, ch. no; Cole '"Pray v. Stebbins, 141 Mass. 
 v. Van Reper, 44 111. 64 ; McNeer v. 219, i New Eng. Rep. 521, 55 Am. 
 
 Rep. 462, and cases cited. 
 
JOINT ESTATES. 955 
 
 not convey his title through a third person to his wife. On 
 the other hand, the peculiar feature of this kind of estate is, 
 that each is secure against an impairment of rights through 
 the sole act of the other."" 
 
 There is nothing in this to prevent the wife's acquiring 
 the title of her husband ; and in Meeker v. Wright, 76 N. Y. 
 262, 272, it was held that this might be done. This part of 
 the decision in Meeker v. Wright was not questioned in Berths 
 V. Nunan, 92 N. Y. 152, 44 Am. Rep. 361, or in Zorntlein v. 
 Brant, 100 N. Y. 12, and we have found nothing in any of the 
 books denying the doctrine. 
 
 § 440. The separate estate of a married woman — Yale v. 
 Dederer examined. The separate estate of a married woman 
 as we have stated, is, in the absence of legislation on the sub- 
 ject, created by conveyance, devise or contract. Its creation 
 gives to her the beneficial use of the property which other- 
 wise would not be brought under her control. As to such 
 property she is regarded in equity as a feme sole, and it was, 
 therefore, formerly held that her general engagements, 
 though not personally binding upon her, could be enforced 
 against the property. This doctrine, however, has been 
 modified in modern times. It is now held that to charge her 
 separate estate with her engagement, it must have been 
 made with an intention on her part to create a charge upon 
 such estate ; that is, with reference to the property, either for 
 its improvement or for her benefit upon its credit. There 
 has been much diversity of opinion and some conflict both in 
 the courts of England and of this country as to what is neces- 
 sary to establish such intention on the part of the wife to 
 charge her separate estate for her contract. It is conceded 
 that there must have been an intention on her part to effect 
 such a charge, otherwise her engagement will not have that 
 effect. 
 
 The Court of Appeals of New York in the case of Yale v. 
 Dederer, 22 N. Y. 450, considered very fully the evidence 
 which would be required to charge the separate estate of the 
 
 "'2 Bl. Com. 182; Cruise, Dig. 132; 4 Id. 362; i Washb. Real.' 
 title 18, chap, i, sees. 44-49; Pres- Prop. 3d ed. 577. 
 ton, Estates, 131 ; 2 Kent's Cora. 
 
9S6 REAL PROPERTY. 
 
 wife upon her contract, and in its examination reviewed the 
 various decisions of the English Court of Chancery, pointing 
 out their many differences and conflicts, and placed its deci- 
 sion upon this ground, that such estate could not be charged 
 by contract unless the intention to charge it was stated in the 
 contract itself or the consideration was one going to the direct 
 benefit of the estate. In that case a married woman signed 
 a promissory note as a surety for her husband, and it was 
 held, though it was her intention to charge such estate, that 
 such intention did not take efifect, as it was not expressed in 
 the contract itself. 
 
 In the case of Willardv. East ham, 15 Gray (Mass.) 328, the 
 same question was elaborately considered by the Supreme 
 Judicial Court of Massachusetts. In that case a debt was 
 contracted by a married woman for the accommodation of an- 
 other person without consideration received by her, and it 
 was held that the contract could not be enforced in equity 
 against her separate estate unless made a charge upon it by 
 an express instrument. And the court concludes, after a full 
 consideration of the subject, by observing that the whole 
 doctrine of the liability of a married woman's separate estate 
 to discharge her general engagements rests upon grounds 
 which are artificial and which depend upon implications too 
 subtle and refined; and that "the true limitations upon the 
 authority of a court of equity in relation to the subject are 
 stated with great clearness and precision in the elaborate 
 and well reasoned opinions of the Court of Appeals of New 
 York in the case of Yale v. Dederer, which we have cited, and 
 says : ' ' Our conclusion is that when by the contract the debt 
 is made expressly a charge upon the separate estate, or is 
 expressly contracted upon its credit or when the considera- 
 tion goes to the benefit of such estate or to enhance its 
 value, then equity will decree that it shall be paid from such 
 estate or its income, to the extent to which the power of dis- 
 posal by the married woman may go. But where she is a 
 mere surety or makes the contract for the accommodation of 
 another, without consideration received by her, the contract 
 being void at law, equity will not enforce it against her 
 estate, unless an express instrument makes the debt a charge 
 upon it." 
 
JOINT ESTATES. 957 
 
 § 441. Power of the husband over. Mr. Chief Justice Beas- 
 ley, in Washburn v. Burns, 34 N. J. L. 18, announces the doc- 
 trine to be " when an estate in land is vested in husband and 
 wife as an entirety under the common law, the husband is 
 entitled to the use and possession of the property during the 
 joint lives of himself and wife. During the period the wife 
 has no interest in or control over the property.'"^" 
 
 The right of the husband to control the estate held by en- 
 tireties is not affected by statutes enabling married women to 
 hold and dispose of their property as if sole unless expressly 
 so stated."" 
 
 a. Lease by husband. By the great weight of authority the 
 husband may lease an estate conveyed to him and his wife in 
 fee, which will be good against the wife during coverture, 
 and will fail only in the event of his wife surviving him. "' 
 
 Husband's control of wife's separate property. The constant 
 agitation of "women's rights," together with the steady ex- 
 pansion of equitable views regarding her property relations, 
 has led to the all but complete subversion of the anti- 
 quated common law rules, which gave to the husband the 
 absolute control of all her worldly possessions. These com- 
 mon law rules on this subject are not only odious but 
 nauseous — what wonder that the late lamented Chief Jus- 
 tice Stephen indignantly characterized the entire rickety 
 fabric as "chaos tempered by Fisher's Digest." Our equity 
 courts have steadily indulged some very advanced views as 
 
 '"See, also, Pray v. Stebbins, 141 111. 57 ; HoflEman v. Stigers, 28 la. 
 
 Mass. 219; Topping v. Saddler, 5 302; Clark v. Clark, 56 N. H. 105. 
 Jones N. C. 357 ; Jones v. Strong, "' Washburn v. Burns, 34 N. J. L. 
 
 6 Ired. L. 367. 18 ; Barber v. Harris, 15 Wend. (N. 
 
 '™ Ibid., citing Robinson v. Eagle, Y.) 615 ; Jackson v. McConnell, 19 
 
 29 Ark. 202; Hulett v. Inlow, 57 Wend. (N. Y.) 175; Berties v. 
 
 Ind. 412 ; Rogers v. Grider, i Dana, Numan, 92 N. Y. 153; Topping v. 
 
 242 ; Marburg v. Cole, 49 Md. 402 ; Saddler, 5 Jones L. 357 ; Fairchild 
 
 Fisher v. Provin, 25 Mich. 347; v. Chastelleux, i Pa. 176; Ames v. 
 
 McDuff V. Beauchamp, 50 Miss. Norman, 4 Sneed, 683 ; Pollok v. 
 
 S3I ; Den v. Hardenbergh, 10 N. J. Kelly, 6 Ir. C. L. 367; Wyckofi v. 
 
 L. 49; Berties v. Numan, 92 N. Y. Gardner, 20 N. J. L. 556; Ward v. 
 
 152; Barber v. Harris, 15 Wend. Ward, L. R. 14 Ch. Div. 506; God- 
 
 615 ; Bennett v. Child, 19 Wis. 362; fray v. Bryan, Id. 516. 
 see, contra. Cooper v. Cooper, 76 
 
95 8 REAL PROPERTY. 
 
 regards the wife's property relations, and wlienever realty lias 
 been devised to a married woman, free from the control of her 
 husband, thes^ courts have held rigidly to the restrictions of 
 the grant, and denied the husband any exercise of lordship 
 or dominion over the property so acquired. We have previ- 
 ously referred tp the liberalizing tendency of modern legis- 
 lation as typified in the various married women's acts, and it 
 only remains to note the fact that judicial determination is 
 constantly exercised in favor of her entire emancipation from 
 the absurd and repellant features of the common law. It is 
 becoming quite general, in this age, to regard her as of suffi- 
 cient capacity to manage her own affairs, and treat her in all 
 respects, so far as regards the control of her property, as 
 though she had not committed the unpardonable sin of matri- 
 mony. Before marriage she is quite generally accorded the 
 free use of her rights. But because she enters into a peculiar 
 contract, which is said to be "highly favored in the law," it 
 is suddenly discovered that her capacity to care for her own 
 interest has become hopelessly atrophied. The mumbled 
 formula of "Holy Church" by which she is pronounced 
 wedded, is found to carry with it a badge of servitude, and 
 an attribute of peonage — she has nothing she can call her 
 own. Such a driveling insult to her intelligence is not likely 
 to long survive. Russia has emancipated its serfs, the 
 blacks are no longer in bondage, the social lepers of every 
 clime and creed are free, and we shall indulge the hope, 
 that through some miraculous combine of common sense and 
 decency our State legislators will accord common justice to 
 the wives and mothers of the generation yet to be. 
 
 § 442. Husband and wife may take as joint tenants or ten- 
 ants in common. Where real property is conveyed to them 
 during coverture, it would not necessarily follow that they 
 would become tenants by the entirety. If nothing was 
 shown to evince a contrary intent, such would undoubtedly 
 be held to be the relationship of the parties as was decided 
 in Berths v. Nunan, 92 N. Y. 152. The New York Court of 
 Appeals has held in the recent case oi Minar v. Brown, 133 
 N. Y. 308, that such tenancy is not created where it appears 
 from the character of the transaction that it was the inten- 
 
JOINT ESTATES. 959. 
 
 tion of the parties that the grantees should take as joint ten- 
 ants or as tenants in common. To the same effect is Jones v. 
 Fey, 129 N. Y. 17. What would be the legal right of the 
 parties where upon a purchase of real property the husband 
 and wife each has contributed from their separate estates, 
 equally or in any other ascertained proportion, to the pay- 
 ment of the consideration, does not as yet seem to have been 
 the subject of judicial decision. It is not necessary, however, 
 to further pursue this mode of reasoning, for it has no value 
 except as it may be instructive by way of analogy. The 
 rights of husband and wife in the personal property of each 
 other, or in that which may be transferred to them jointly, 
 rests upon different grounds than those which support a ten- 
 ancy by the entirety. 
 
 § 443. Attitude of the courts as to estates by the entirety. 
 
 There is a sturdy disposition upon the part of both the State 
 and Federal courts to resist any invasion of the ancient com- 
 mon law doctrine of tenancy by the entirety. "' 
 
 The whole trend of authorities, however, is in the direction 
 of preserving such tenancies where the grantees sustain the 
 relation of husband and wife, unless from the language em- 
 ployed in the deed it is manifest that a different purpose was 
 intended. Where a contrary intention is clearly expressed 
 in the deed, a different rule obtains. ' ' A husband and wife 
 may take real estate as joint tenants or tenants in common, 
 if the instruraent creating the title uses apt words for the 
 purpose.""' 
 
 "And in case of devise and conveyance to husband and 
 wife together, though it has been said that they can take 
 
 "'^ Whiton V. Snyder, 88 N. Y. 299 ; 64; Dexter v. Phillips, 121 Mass. 
 
 Baker V. Lamb, 11 Hun (N. Y.), 519; 178, 23 Am. Rep. 289 ; Gerard, Real 
 
 Wright V. Saddler, 20 N. Y. 320, 17 Estate Titles, 2d ed. 72, 84; Wms. 
 
 Alb. L. J. 393; Pollock V. Webster, Real Estate, 5th ed. 225, note. 
 
 16 Hun (N. Y.), 104; Matteson v. '^^ i Preston, Estates, 132; 3 Bl. 
 
 New York Cent. R. Co. 62 Barb. (N. Com., Sharswood's note ; 4 Kent's 
 
 Y.) 373 ; Wright v. Wright, 54 N. Y. Com. 363 ; i Bishop, Married Wo- 
 
 437; Taylor v. Young, 71 Pa. 81; men, sees. 616 £/j^^./ Freem. Co-ten. 
 
 Laws 1880, chap. 472; 11 Alb. L. J. sec. 72: Fladung v. Rose, 58 Md. 
 
 375, 402; 20 Alb. L. J. 162; Hulett 13-24. 
 V. Inlow, 57 Ind. 412, 26 Am. Rep. 
 
960 REAL PROPERTY. 
 
 only as tenants by entireties, the prevailing rule is that if 
 the instrument expressly so provides, they may take as joint 
 tenants or tenants in common.'"" And as by common la-w- 
 it -was competent to make husband and -wife tenants in com- 
 mon by proper words in the deed or devise, etc.,'" so it seems 
 that husband and -wife may by express -words be made ten- 
 ants in common by gift to theml during coverture."" 
 
 § 444. Dissolution of the tenancy by death or divorce. The 
 
 integrity of the estate is dependent upon the union effectedby 
 the marital relation. Obviously, -whenever this relation is 
 terminated or destroyed, the estate which is but a parasite of 
 the relation of matrimony, dies with it. ' ' One legal person 
 has been resolved by judgment of law into two distinct, indi- 
 vidual persons, having in future no relations to each other; 
 and with this change in their relations must necessarily fol- 
 low a corresponding change of the tenancy dependent upon 
 the previous relation. As they cannot longer hold in joint 
 seizin they must hold by moieties.'"" 
 
 A recent writer expresses the prevailing view in the fol- 
 lowing language: "There are differences of judicial opinion 
 regarding this estate, as for example, lands either jointly or in 
 common, so that whatever the terms of a conveyance to them, 
 they -will hold by the entirety. Others permit them to take 
 and hold as joint tenants or tenants in common if the deed is in 
 express words that they shall. But all agree that this ten- 
 ancy does not and cannot exist where there is no marriage. 
 The consequence is that when the marriage ends by divorce 
 it falls.""' 
 
 ' ' The relation of husband and wife is terminated by a de- 
 cree of divorce, and with it all marital duties. Their interest 
 and duties from thenceforth, as related to each other, were 
 as though they never existed. The estate by the entireties 
 is essentially a joint estate, although it differs in one or two 
 
 '" Stewart, Husb. & W. sees. 307- '" See note to Den. v. Harden- 
 
 310; Tiedeman, Real Prop. sec. 244. bergh, 18 Am. Dec. 371 ; 2 Bright, 
 
 "' Hoffman v. Stigers, 28 Iowa, Husb. & W. 365. 
 
 310 ; Bro(vn v. Brown, 133 Ind. 476. "' Enyeart v. Kepler, 118 Ind. 34, 
 
 "6 McDermott V. French, 15 N.J. 36, 10 Am. St. Rep. 94, 96; Bishop, 
 
 Eq. 80; Preston on Estates, 132, 2 Mar. & Div. sec. 1644. 
 Bl. Comm. 182, Sharswood's note. 
 
JOINT ESTATES. 96 1 
 
 particulars therefrom. The power to hold jointly arose frorn 
 the fact that they were married when the conveyance was 
 made. Had the marriage not existed, the parties would 
 have taken as tenants in common. It was that circumstance, 
 and that alone, which gave to them the joint life estate and 
 the right to joint possession. Wh^n the very thing which 
 by operation of law gave them a joint estate was destroyed 
 by operation of the same law, the joint estate ceased, and 
 they then became vested with an estate per my as tenants in 
 common. They, by that act, and operation of law flowing 
 from it, are not jointly entitled to possession, but, the unity 
 of title and the unity of estate no longer existing with the 
 incidental right of joint possession, it inevitably follows that 
 they then become tenants in common. The termination of 
 the marriage relation having wrought a change in the rights 
 of the parties in the estate, the court should rather hold that 
 the change is broad enough to convert it into an estate in 
 common, than to hold that whatever change was made it left 
 the right of survivorship. But, on principle, we are satisfied 
 the decree of divorce had the effect to make them tenants in 
 common, and that appellees thereby became entitled to par- 
 tition.'"" 
 
 § 445. Rule as to moieties. When a conveyance of land is 
 made to husband and wife, each of the grantees holds the land 
 in fee — not in moieties, but in severalty {-per tout et non per 
 my, as it is technically expressed), with the right of survivor- 
 ship. This is the rule in England and in most of the Ameri- 
 can States. Various legal consequences arise from such a 
 peculiar estate. 
 
 By a decree of divorce, the legal unity of person, on which 
 the estate depended, is destroyed; "one legal person has 
 been resolved by judgment of law into two distinct, indivi- 
 dual persons, having in future no relations to each other ; and 
 with this change in their relations, must necessarily follow a 
 corresponding change of the tenancy dependent upon the 
 previous relation. As they cannot longer hold in joint seizin, 
 they must hold by moieties.'"" 
 
 "' Harver v. Wallner, 80 111. 197. 696 ; 2 Bright on Husband and Wife. 
 '" Ames V. Norman, 4 Sneed (Ky.), 365. 
 61 
 
INDBX- 
 
 [References are to the pages.] 
 
 ABANDONMENT: (See Easements.) 
 
 of easements — how effected, 503. 
 ABEYANCE: (See Estates in Fee.) 
 
 theory of, ridiculed by Mr. Justice Dixon, 113. 
 ABORIGINAL TITLE: (See Indian Title.) 
 
 quite generally disregarded, 80. 
 ABSOLUTE ESTATES : (See Estates in Fee.) 
 ACCEPTANCE : 
 
 of Deed. (See Delivery.) 
 
 of highway by dedication, 428. 
 ACCOUNTING : 
 
 law will compel between all co-tenants, 925. 
 ACCRETION AND ALLUVION : 
 
 definition and nature of, 858, 
 ACCUMULATION: (See Perpetuities.) 
 ACKNOWLEDGMENTS : 
 
 largely regulated by local laws (See Deeds), 871. 
 ACQUIESCENCE: 
 ACT OF GOD : vis Major, 368. 
 ADMEASUREMENT: (See Dower.) 
 ADOPTED CHILD : 
 
 legal status of, as regards the devolution of property, 827, 
 ADULTERY : 
 
 as a bar to dower, 175. 
 ADVANCEMENTS : (See Title by Descent), 827-828. 
 ADVERSE POSSESSION : 
 
 nature and scope of title by, 829. 
 
 founded on public policy, 830. 
 
 Statute of Limitations in its relations to, 830. 
 
 [963] 
 
964 INDEX. 
 
 [References are to the pages.] 
 ADVERSE POSSESSION — Continued: 
 
 saving clauses in Statute of Limitations, 831. 
 rule as to intention stated, 831. 
 
 presumptions arising from lapse of time and notorious possession, 832. 
 occupancy under must be open and notorious, 833. 
 possession under must be continuous, 833. 
 must be of a defiant and assertive character, 833. 
 time required to perfect title by, 833. 
 time largely regulated by statute, 833. 
 title of the federal government unaffected by, 834. 
 continuity and priority of possession required, 834, 
 how continuity of possession may be broken, 835. 
 constructive adverse possession, 835. 
 the doctrine of " tacking" in its relations to, 835. 
 what evidenciary facts are pertinent to establish, 836. 
 what constitutes color of title, 836. 
 what instruments give it, 836. 
 instrument must name a grantor and a grantee, 836. 
 may be founded on a judgment or decree, 836. 
 not necessarily founded on a written instrument, 836. 
 may rest upon a parol gift, 837. 
 
 " " " open and notorious acts, 837. 
 generally a question of law for the court to decide, 837. 
 when asserted between life tenant and reversioner, 146. 
 when asserted by one co-tenant or tenant in common, 921. 
 may be acquired under certain circumstances by a co-tenant, 921. 
 conveyance of property held adversely generally void, 870. 
 ADVERSE USER : (See Easements), 423. 
 ADVERTISEMENT AND SALE : 
 
 of real property on execution, 849. 
 AEROLITES : (See Real Property.) 
 
 regarded as real property, 18. 
 AGE; 
 
 AIR AND LIGHT : (See Easements), 501. 
 ALIENAGE: 
 
 federal legislation on the subject of, in. 
 treaty rights of, 112. 
 
 not an insuperable bar to inheritance, 112. 
 how affecting curtesy, 228. 
 ALIENATIONS : 
 
 under mortmain statutes, 74. 
 lex loci rei sitee governs, 76. 
 
 involuntary alienation — principles of, examined, 103. 
 Nichols V. Eaton reviewed, 103. 
 instances of, 104. 
 
 four methods of, now in vogue, 105. 
 absolute and conditional, losn. 
 of homestead right, how effected, 944. 
 ALIENATION, RESTRAINTS AGAINST: (See Perpetotties,) 
 
INDEX. 965 
 
 [References are to the pages.] 
 ALLODIAL : (See Lands.) 
 
 all lands in this country are, 74. 
 ALLUVION: (See Accretion), 858. 
 ALTERATIONS : 
 
 effect of in mortgage cases, 803. 
 AMBIGUITIES : (See Deeds), 877. 
 
 classified as patent or latent, 877. 
 ANCESTRAL PROPERTY: (See Descent), 823. 
 ANTE-NUPTIAL AGREEMENT: (See Jointure.) 
 APPENDANT AND APPURTENANT : 
 
 what things pass as, 872. 
 APPOINTEE: (See Powers.) 
 APPOINTMENT: (See Powers.) 
 APPORTIONMENT: (See Rent), 347. 
 APPURTENANT: 
 
 things necessary to the beneficial enjoyment are, 872. 
 
 implied grant of things that are necessary to the enjoyment of the main grant, 
 422. 
 ASSENT : 
 
 necessary to the delivery of a valid deed, 874. 
 ASSIGNMENT: 
 
 of leases, 281. 
 
 of mortgage security, 808. 
 
 of real estate mortgages, 808. 
 
 of dower interest. (See Dower.) 
 ATTESTATION: (See Title by Devise.) 
 ATTORNEY: 
 
 powers of, 738. 
 ATTORNMENT: (See Tenant), 268. 
 
 BARBED WIRE FENCES: (See Fences), 499. 
 BARGAIN AND SALE: 
 
 early mode of conveyance now obsolete, 526. 
 BASE FEE: (See Qualipied, Determinable and Conditional Fees), 86 et seq, 
 BASTARDS: 
 
 inheritable rights of, from the mother, 822. 
 
 legitimated by subsequent marriage of parents, 825. 
 
 status of legitimacy once acquired must be recognized everywhere, 825. 
 
 celebrated case of Miller v. Miller examined, 825. 
 BETTERMENTS: 
 
 rule as between co-tenants, 923. 
 
 right to govern by bona fides of the party, 923. 
 
 occupant must have peaceable possession, 923. 
 
 must have color of title, 923. 
 
 must honestly believe that he is the owner, 923. 
 
 what instrument gives color of title, 923. 
 
 purchaser in good faith entitled to, 928. 
 
 equitable considerations as, the rule as to, 929. 
 
 hardships of the rule, 929. 
 
966 INDEX. 
 
 [References are to the pages.] 
 BETTERMENTS — Continued : 
 
 doctrine of Green v. Putnam considered, 924. 
 
 may be adjusted in partition suits, 924. 
 BIRTH: 
 
 of child necessary to perfect title by curtesy, 224. 
 BLACKSTONE, SIR WILLIAM: 
 
 remarkable achievement in codifying the common law, 69. 
 
 preliminary study of his commentaries useless, 69. 
 
 pernicious effects of the Blackstone craze stated, 71 n. 
 BOTES: (See Estovers.) 
 BOUNDARIES: (See Division Fences.) 
 
 as indicated by division fences, 495. 
 
 in conveyance by deed or mortgage. (See Deeds), 875. 
 BREACH: (See Estates Upon Condition.) 
 
 of condition subsequent, 783, 
 BUILDER'S LIEN: (See Mechanic's Lien.) 
 BUILDINGS: (See Land.) 
 
 universally regarded as part of the realty, 22. 
 BURDENS: 
 
 on land. (See Easements.) 
 BURIAL RIGHTS: 
 
 regarded as an easement, 28. 
 BURIAL LOT: 
 
 easement in, may be acquired by prescription, 426. 
 
 CANCELLATION: (See Deeds), 878. 
 
 court of equity may order to promote justice, 878. 
 CAVEAT EMPTOR: 
 
 applies to all purchases on execution, 850. 
 
 rule of, applies to leasing houses, 253. 
 
 applies to all purchases of dower interest, 172. 
 CERTIFICATE OF ENTRY: 864. 
 
 given by registrar of the land office on completion of pre-emption right, 864. 
 CESTUI QUE TRUST: (See Uses and Trusts.) 
 CHAMBER: 
 
 in a house may be the subject of a fee, 23. 
 CHARITABLE GIFTS: (See Uses and Trusts.) 
 CHARITABLE TRUSTS: (See Uses and Trusts.) 
 
 relaxation of the rule against perpetuities in case of, 760. 
 
 how different from other trusts, 76in. 
 CH.A.RTER: (See Franchises and Charter Rights), 377. 
 CHATTEL REAL: 
 
 estates for years regarded as, 241. 
 CHILD: 
 
 adopted may inherit by descent, 827. 
 CIVIL LAW: 
 
 regarded as a rival of the common law, 2i6n. 
 
 largely redacted from the Justinian code, 2x5, 
 COAL IN PLACE: 17. 
 
INDEX. 967 
 
 [References are to the pages.] 
 CODICILS: (See Title by Devise). 901. 
 COLLATERAL LIMITATION : (See Limitation.) 
 COLOR OF TITLE : (See Adverse Possession.) 
 
 what constitutes, 836. 
 
 usually founded on written instruments, 836. 
 
 may be founded on judgment or decree, 836. 
 
 not necessarily founded on written instrument, 836. 
 
 may rest upon open and notorious acts, 837. 
 
 generally a question of law for the court, 837. 
 COMMON SOCAGE: 
 
 a mode of feudal tenure — obsolete, 60. 
 COMMON LAW: 
 
 defined by Sir James Stephen as "Chaos tempered by Fisher's Digest," 957. 
 
 how brought to this country, 66. 
 
 derived from two sources, 64. 
 
 extent of its adoption in America, 67. 
 
 not known as a national customary law, 67. 
 
 its repellant features, 69. 
 
 decadence and disintegration, 72. 
 
 largely supplanted by statutory law, 73, 
 
 great achievements of Blackstone in codifying, 69. 
 
 pernicious effects of preliminary study, 69. 
 
 note on the Blackstone craze, 71. 
 
 rules as to waste repudiated in this country, 266. 
 COMMUNITY PROPERTY : 
 
 incidents of, confined to very few states, 934. 
 
 statutory provisions relating to, in Nevada, 935. 
 CONDEMNATION PROCEEDINGS : (See Eminent Domain), 842. 
 CONDITION : (See Estates upon Condition), 765. 
 CONDITIONAL FEE : 
 
 extended discussion of, 86-87. 
 CONDITIONAL LIMITATIONS : 
 
 defined and illustrated, 783n. 
 
 in what respect distinguished from a remainder, 660. 
 CONDITIONAL SALE: 
 
 As distinguished from a mortgage, 792. 
 CONFIRMATION : 
 
 in case of tax deeds, 849. 
 CONFISCATION : (See Title by Confiscation), 860. 
 
 only the life interest can be sold, 860. 
 CONSIDERATION • • 
 
 what may be in a valid conveyance, 870. 
 CONSTRUCTION • 
 
 liberal principles of, applied to homestead exemptions, 946n, 
 
 principles of, as applied to the interpretation of deeds. (See Deeds.) 
 
 principles of, as applied to the interpretation of wills. (See Title by Devise.) 
 CONSTRUCTIVE-TRUSTS : (See Uses and Trusts.) 
 CONTINGENT REMAINDERS: 
 
 dependent on uncertainty of enjoyment, 665. 
 
968 INDEX. 
 
 [References are to the pages.] 
 CONTINGENT REMAINDERS — Continued: 
 
 for extended discussion (see Estates in Remainder), 657. 
 CONTRIBUTION : 
 
 how regulated between co-tenants, 922. 
 
 how far the principles of subrogation effect, 922. 
 
 views of Mr. Justice Story regarding, 923. 
 CONVERSION : (See Equitable Conversion.) 
 CONVEYANCE : (See Deeds.) 
 
 for support and maintenance treated as a mortgage, 794. 
 
 when mortgage is record as a, 792. 
 COPARCENARY, ESTATES IN: 
 
 obsolete in this country, 931. 
 
 regarded as a tenancy in common, 931, 
 
 formidable in the English law, but of little consequence with us, 934. 
 
 subject of no practical moment, 934. 
 
 in this country heirs take as tenants in common — not as coparceners, 934. 
 
 no substantial difference between coparceners and tenants in common, 9340. 
 COPYHOLD ESTATES: 
 
 a mode of feudal tenure unknown to our law, 60. 
 CORPORATIONS : 
 
 considered with reference to their charter rights, 377. 
 
 character of, determined by their charter recitals, 403. 
 
 may be lessor's or lessee's, 257. 
 
 may sustain the relation of landlord or tenant, 257. 
 
 rule as to reversion of lands held by, 726. 
 
 two corporate bodies cannot be joint tenants, 932. 
 CORPOREAL PROPERTY : (See Land— Real Property), 8. 
 CO-TENANTS : (See Tenants in Common.) 
 COVENANTS : 
 
 in lease, 253. 
 
 not implied against the landlord for expense of repairs, 271. 
 
 regarding leasehold property, 271. 
 
 no restrictions on number of, 274. 
 
 quiet enjoyment, incidents of, 276. 
 
 how construed in cases of eviction, 332, 
 
 rule as to eviction under covenant of seizin, 333. 
 
 construction of, in mortgages, 798. 
 
 agreement that whole sum shall become due, 798. 
 
 in default of payment mortgagee to have power to sell, 799. 
 
 mortgagor to keep buildings insured, 799. 
 
 mortgagor to give further assurance of title, 800. 
 
 binding on representatives of grantor and mortgagor, 800. 
 
 nature and scope of in deed, 881 et seq. 
 COVERTURE: ( See Estates by the Entireties), 947. 
 
 effect upon estates by curtesy, 218, 
 CROPPER : 
 
 nature and definition of the term, 334. (See Lease — Letting on Shares, 
 Estates for Years.) 
 
INDEX. 969 
 
 [References are to the pages.] 
 
 CROPS : 
 
 growing — where passes by deed, 11. 
 
 rule as to severed, 11. 
 
 rule as to present delivery of, 11. 
 
 status before maturity, 12, 13. 
 
 rights of life tenant in, 139, 
 CROSS REMAINDERS : (See Estates in Remainder), 657. 
 CURTESY : (See Estates by Curtesy), 216. 
 CUSTOM AND USAGE: 
 
 when employed to decide the question of waste, 371. 
 CY PRES : (See Uses and Trusts.) 
 
 extended examination of the doctrine, 622. 
 DAMAGES : 
 
 to realty in the nature of waste. (See Waste.) 
 DARTMOUTH COLLEGE CASE : 
 
 critical examination of, 386. 
 DATE: 
 
 presumptions as to, 798. 
 DEATH : 
 
 effect of dissolution of tenancies by the entireties, 960. 
 DECREE : 
 
 of sale in foreclosure cases, 814. 
 DEDICATION : 
 
 of lands for public highway, 426. 
 
 acceptance, how evidenced, 428. 
 
 what rights vest in the public after, 428. 
 
 set form of words unnecessary, 430. 
 
 effect of platting as evidence of, 431. 
 
 common law, rules of, 435. 
 
 for extended discussion. (See Easements and Servitudes), 404. 
 DE DONIS CONDITIONALIBUS — statute of, intended to fetter an estate 
 
 tail, 118. 
 DEEDS : 
 
 definition and nature, 868. 
 
 formal parts and general requisites of, 869. 
 
 habendum, tenendum, redendum, nature and effect of, 869. 
 
 warranty in, 870. 
 
 covenants in, 870. 
 
 incidents of a valid deed, 870. 
 
 of real property held adversely, void, 870. 
 
 consideration, 870. 
 
 parol evidence to contradict consideration, 871. 
 
 sealing, 871. 
 
 rules as to acknowledgment, 871. 
 of married women, 872. 
 made before what officer, 872. 
 if out of the state, before whom, 872. 
 
 what passes by, 872. 
 
 delivery and its incidents, 873. 
 /irima facie evidence of, 873. 
 
97° INDEX. 
 
 [References are to the pages.] 
 DEEDS — Continued: 
 
 delivery, no form of words necessary, 874. 
 
 grantor must part with dominion over deed, 874. 
 
 intention largely governs the question of delivery, 874. 
 
 delivery in escrow, 874. 
 description of the premises — boundaries, 875. 
 rule as to courses and distances, 875. 
 general rules of construction as to boundaries, 875. 
 uncertainty in description may avoid deed, 876. 
 when map or plat will govern description, 876. 
 monuments control courses and distances, 876. 
 ambiguities removed by evidence aliunde, 877. 
 judical construction of deeds, 877. 
 
 intention largely governs, 877. 
 
 false English will not vitiate, 877. 
 
 entire instrument must be considered, 878. 
 
 some effect must be given to instrument if possible, 878. 
 
 may be construed to be a mortgage, 878. 
 reformation, cancellation and surrender of, 878. 
 nature and scope of quit claim deeds, 879. 
 
 effectual to pass all right and title of grantor, 879. 
 
 holder of not a bona fide purchaser, 879. 
 
 last rule discredited in New York. 879. 
 
 U. S. court repudiates its former doctrine concerning, 880. 
 recording and its incidents, 880. 
 nature and scope of covenants, 83i. 
 
 classified as express or implied, 881. 
 
 implied covenants cautiously raised, 882. 
 
 if against public policy, void, 883. 
 
 affirmative — negative — alternative — disjunctive — collateral — concur- 
 rent — executory — transitive and intransitive are terms of little account, 
 883n. 
 
 five covenants usually in every title, 884. 
 
 covenant of seizin, 884. 
 
 of perfect right to convey, 884 
 
 of quiet enjoyment, 884. 
 
 against incumbrances, 884. 
 
 for further assurance, 884. 
 
 of warranty, 884. 
 
 collateral warranties discredited, 884. 
 
 construction of covenants, 885. 
 
 of covenants, that " run with the land," 886. 
 
 view of Sugden and Mr. Justice Finch, 886-887. 
 
 Wait's tabulation of covenants that " run with the land," 888. 
 deeds-poll — nature and effect of, 889. 
 fraudulent deeds, 8go. 
 
 what fraud creates justice will destroy, 890. 
 
 when fraud may be presumed, 890. 
 
 distinction between fraud in fact and fraud in law obsolete, 890. 
 
INDEX. 971 
 
 [References are to the pages.] 
 DEEDS — Continued : 
 fraudulent deeds, Sgo. 
 
 effects of the statute of 13 Elizabeth, 890. 
 comments of Judge May on this statute, 8gi. 
 doctrine of Twyne's case considered, 891. 
 direct proof of fraud unnecessary, 892. 
 what acts will indicate fraud in transfer, 892. 
 no length of time can purge a fraud, 893. 
 distinction between void and voidable, 893. 
 fraudulent intent a question of fact, 894. 
 preference of creditors not necessarily fraud, 894. 
 the statute of frauds in relation to, 894. 
 intended for the security of titles, 895. 
 extract from section 4, 895. 
 
 contracts within the statute not void, but voidable, 895. 
 statute may be waived, 895. 
 does not applj- to judicial sales, 895. 
 doctrine of part performance considered, 896. 
 the memorandum clause examined, 897. 
 
 when parol evidence admissible to vary terms of written instrumeni, 897. 
 relief granted in equity for fraud or mistake, 899-900. 
 of sheriff in execution cases, 849. 
 recitals of, in execution cases, 850. 
 
 when title under, in execution cases becomes absolute, 850. 
 title under, in execution cases relates back to execution sale, 851. 
 
 (See Title by Execution), 848. 
 correction of tax deeds, 856. 
 effect of a co-tenant purchasing tax deed, 918. 
 deed of distinct parcel good as between the parties, 916. 
 of distinct parcel by tenant in common, 916. 
 dissent from the rule last stated, 917. 
 DEED OF TRUST : (See Mortgages), 793- 
 regarded as a mortgage, 793. 
 construction of, instituted estates in fee tail, 119. 
 styled the " family law,'' 123. 
 DEED-POLL : (See Deeds), 889. 
 DEFEASANCE : 
 
 defined and explained, 797. 
 how evidenced in mortgage conveyances, 797. 
 DELIVERY: 
 
 and acceptance of a lease, 256. 
 of a conveyance. (See Deeds), 873 et seq. 
 in escrow. (See Deeds), 874. 
 DEMAND : 
 DEMISE: (See Lease.) 
 DESCENT : (See Title by Descent.) 
 
 tenants in common may acquire their title by (see Title by Descent), 916. 
 
972 INDEX. 
 
 [References are to the pages.] 
 DESCRIPTION: 
 
 of premises subject to mortgage, 8oi. 
 
 of premises embraced in deed, 875. 
 DEVISE : (See Title by Devise), 901. 
 
 of real propert)' clogged with a condition, 774. 
 
 efTect of devisee's death before the testator, 913. 
 
 when devise falls into the residuum of the estate, 913. 
 DISCOVERY, TITLE OF LAND BY : 
 
 effect on tenure — views of Chancellor Kent, 79. 
 DISSEISOR : (See next title.) 
 DISSEIZIN : 
 
 definition and nature of, 81, 
 
 mode of effecting, 92. 
 
 when intent governs question ot disseizin, 922. 
 
 what acts constitute in case of joint tenancy, 920-922. 
 
 what is, as between co-tenants, 920. 
 rule as to ouster, 921. 
 DISTRESS FOR RENT — GENERALLY ABOLISHED • 
 DISTRIBUTION : 
 
 under a power between two or more persons, 734. 
 DISTRIBUTIONS (STATUTES OF) : (See Descent), 821. 
 DIVISION FENCES : (See Fences.) 
 DIVORCE ; 
 
 decree of, effects a dissolution of tenancies by the entireties, 960. 
 
 effects of, on homestead exemption rights, 945. 
 
 effect on dower, 175. 
 
 effect on curtesy, 233. 
 DOMICILE : 
 
 of corporations — how determined, 109. 
 
 of testator governs the execution of will. 
 DOMINANT ESTATES : (See Easements.) 
 DOWER ; 
 
 definition, scope and nature, 151-202. 
 
 requisites at common law, 153. 
 
 influenced by the doctrine of seizin, 154. 
 
 who may be endowed, 156. 
 
 what property is subject to, 156. 
 
 legal incidents of, 159. 
 
 subordinate to vendor's lien, 162. 
 
 while inchoate is a vested right, 163. 
 
 lex loci ret sitm governs, 168. 
 
 how barred, released, or extinguished, 168. 
 
 lost by express agreement — estoppel — joint conveyance — by acceptance of 
 testamentary provision — by divorce, adultery, etc., by proceedings in the 
 nature of eminent domain, 168-182. 
 
 doctrine of election examined, 182. 
 
 widow entitled to know the facts before accepting, 183-189. 
 
 value of dower right, how estimated, 189. 
 
 assignment of, 191. 
 
INDEX. 973 
 
 [References are to the pages.] 
 DOWER — Continued : 
 
 admeasurement of — its incidents and procedure, 196. 
 
 effect of partition on, 928. 
 
 probate courts may exercise jurisdiction in dower matters, 192. 
 
 widow's quarantine, 197. 
 
 typical legislation on the subject of dower, 199. 
 
 rights to in wood land and wild land, 199. 
 
 favored in the law, 150. 
 
 in real estate of deceased husband, 199. 
 
 how released, 200. 
 
 barred by jointure, 200. 
 
 barred by pecuniary provision, 200. 
 
 how assigned, 201. 
 
 when set off by metes and bounds, 201. 
 
 limitation as to claim, 202. 
 
 effects of widow's election, 202. 
 DRAIN : (See Easements.) 
 
 servitude of drain and drip, 502. 
 DRAINAGE : 
 
 right of regarded as an easement, 503. (See Easements.) 
 
 EASEMENTS AND SERVITUDES : 
 definition, scope, and nature, 405. 
 list of principle easements, 409. 
 easements that run with the land, 410. 
 of rights appurtenant and in gross, 413. 
 natural easements and servitudes, 417. 
 implied easements, 417. 
 regarded as an incumbrance, 418. 
 granted by mortgagor before foreclosure, 419. 
 granted by way of reservation, 420. 
 evidence of the right to, 421. 
 created by grant or deed, 421. 
 created by prescription. 423. 
 created by dedication, 426. 
 burden of proof in case of dedication, 427. 
 acceptance of land dedicated must be shown,' 428. 
 no set form of words necessary to constitute dedication, 430. 
 *effect of platting, 431. 
 
 distinction between actual dedication and an offer to dedicate, 433. 
 common-law dedication, 435. 
 rule of strict necessity examined, 436. 
 easements by implication, 436. 
 effect of dividing estates subject to, 437. 
 the terra " right of way " defined, 43B, 
 right of way, how acquired, 438. 
 
 rule as to street railways, telephone and telegraph lines, 442. 
 ways of necessity regarded as easements, 444. 
 miscellaneous authorities on " Easements of Way," 447. 
 
974 INDEX. 
 
 [References are to the pages.] 
 EASEMENTS AND SERVITUDES —Continued: 
 
 light and air, 453. 
 
 English doctrine regarding light and air, repudiated in this country, 458. 
 
 elevated railway cases as affecting the easement of light and air, 461. 
 
 easements of light and air regarded as valuable property, 453. 
 
 lateral and subjacent support, 471. 
 
 party-walls — definition and nature, 485. 
 
 division fences, 495. 
 
 drip and drain, 502. 
 
 abandonment of easements, 503. 
 
 licenses and easements distinguished, 512. 
 
 how license maybe extinguished, 516. 
 ELECTION : (See Dower.) 
 
 rights of widow in dower cases, 182. 
 
 widow entitled to know the facts before making election, 189. 
 
 of defrauded party whose funds have been misapplied, 37. 
 ELOPEMENT : (See Dower.) 
 
 effect on dower, I80. 
 EMBLEMENTS : 
 
 right of tenant for life, to, 199, 141. 
 (See Estates for Life). 
 
 right of tenant at will to, 354. 
 EMINENT DOMAIN— TITLE BY : 
 
 definition and nature, 842. 
 
 doctrine of, carefully guarded and strictly construed, 843. 
 
 due process of law must be observed in cases of, 843. 
 
 no absolute right to trial by jury, 844, 
 
 rule as to notice, 844. 
 
 scope of the power, 845. 
 
 what constitutes a taking, 845. 
 
 the mode of payment in cases of, 846. 
 
 evidence of value, 847. 
 
 exercise of, usually confided to corporate body, 842. 
 
 domestic or foreign corporation may exercise right of, 842, 
 
 right freel)' exercised in first instance, 843. 
 
 exhausts its force after one application, 843. 
 
 all property subject to, 842. 
 
 compensation must be made, 844. 
 
 in its relation to franchises and charter rights, 396. 
 
 effect of its exercise on dower rights, i8i. 
 
 effect of condemnation proceedings on leasehold property, 291. 
 ENABLING ACTS : 
 
 regarding the property rights of married women, 951. 
 ENTAILMENT : (See Estates in Fee Tail.) 
 
 ENTIRETY, ESTATES BY THE : (See Estates by the Entireties.) 
 ENTRY : (See Title by Public Grant), 863. 
 EQUITABLE CONVERSION : 
 
 principles of, examined, 32. 
 
 what must appear before doctrine is applied, 38. 
 
INDEX. 975 
 
 [References are to the pages.] 
 EQUITABLE CONVERSION — Continued: 
 
 regards real property as personal for purposes of justice, 32. 
 
 effect on partnership interests, 33. 
 
 doctrine of, regards substance, and not form, 36. 
 
 election of beneficiary whose property has been misapplied by agent or 
 trustee, 37. 
 EQUITABLE ESTATES: 
 
 are embraced under the following titles: Uses and Trusts, Mortgages 
 Vendor's Lien. 
 EQUITABLE MORTGAGES; (See Mortgages), 795. 
 EQUITY OF REDEMPTION: (See Mortgages), 809. 
 ERASURES IN DEEDS AND MORTG.^GES: (See Deeds.) 
 ESCHEAT: (See Title by Escheat), 860. 
 ESCROW: 
 
 defined and explained. (See Deeds), 874. 
 
 when deed is said to be delivered in, 874. 
 ESTATE: 
 
 extended classification of American estates, 82. 
 
 what is an, 82. 
 
 how classified, 82. 
 
 the four qualities that determine the nature of an estate, 82. 
 
 in fee simple, 83. 
 
 in fee tail, 126. 
 
 for life, 134. 
 
 per autrie vie, 136. 
 
 joint estates, 931. 
 
 during coverture, 931. 
 
 by the entireties. 
 
 by curtesy, 2i6. 
 
 in dower, 151. 
 
 in homestead, 936. 
 
 upon condition, 83. 
 
 upon limitation. 
 
 equitable, 83. 
 
 legal, 83. 
 
 in reversion, 717. 
 
 in possession, 83. 
 
 in expectancy, 84. 
 
 in remainder, 654. 
 
 contingent use, 524. 
 
 springing use, 524. 
 
 shifting uses, 524. 
 
 executory devise or remainders created by will, 741. 
 
 conditional limitations, 83. 
 
 for years, 353. 
 
 at will, 349. 
 
 at sufferance, 351. 
 
 freehold, 82n. 
 
 of inheritance, 82. 
 
976 INDEX. 
 
 [References are to the pages.] 
 ESTATE— Continued: 
 
 not of inheritance, 82. 
 
 leaseholds, 82. 
 
 vested, 84. 
 
 contingent, 84. 
 
 allodial, 84. 
 
 nature and significance of the word, 96. 
 ESTATES AT SUFFERANCE: 
 
 nature and definition of, 351. 
 
 regarded as a tenancy from year to year, 35O. 
 
 what constitutes a year — time, how computed, 350. 
 
 calendar month, and not lunar month, implied in all tenancies, 350. 
 
 distinction between an estate at will and an estate at sufferance, 362. 
 
 this estate is under the judicial ban, 362. 
 
 not favored in law or equity, 362. 
 
 rule regulating the notice to quit, 352. 
 ESTATES AT WILL: 
 
 definition and nature of estates at will, 349, 350. 
 
 definition and nature of estates at sufferance, 351, 352. 
 
 rule regulating the notice to quit, 359-362. 
 
 estates from )rear to year, nature and definition of, 353. 
 
 doubtful tenancies construed to be estates from year to year, 353. 
 
 emblements and away-going crops, 354, 355. 
 
 tenant at will not liable for destruction of the premises, 337. 
 
 judicial hostility to estates at will, 357. 
 
 estates at will, how terminated, 357. 
 
 tenant at will entitled to notice to quit, 359-361. 
 
 tenant at sufferance not entitled to notice, 361. 
 
 notice not necessary unless the relation of landlord and tenant exists, 361. 
 
 distinction between an estate at will and an estate at sufferance, 362. 
 
 incidents of, 354. 
 
 tenant cannot dispute his landlord's title, 356. 
 
 the right to emblements, 355. 
 
 the right to sublet, 355. 
 
 rule as to negligence of tenant, 356. 
 
 judicial hostility to this estate, 357. 
 
 how terminated, 357. 
 
 tenant under has no assignable interest, 358. 
 
 rule as to notice to quit, 359. 
 
 infrequency of this estate, 360. 
 
 Massachusetts and Indiana rule regarding notice to quit, 360, 361. 
 
 tenant not entitled to particular indulgence, 360. 
 
 regarded with suspicion — not favored, 350. 
 ESTATES BY CURTESY : 
 
 origin and history, 216. 
 
 definition and nature, 217. 
 
 requisites of, 2i8. 
 
 how far recognized in this country, 220. 
 
 when the right becomes initiate, 220. 
 
INDEX. 977 
 
 [References are to the pages.] 
 ESTATES BY CURTESY — Continued: 
 rule as to seizin, 221. 
 issue born alive, 224, 
 regarded as a legal estate, 225. 
 what property is subject to, 226. 
 attaches to a determinable fee, 227. 
 alienage how effecting, 228. 
 effect of married women's enabling acts on, 228. 
 not favored by our courts, 232. 
 how lost or barred, 233. 
 effect of divorce, 233. 
 valuation of, how computed, 234. 
 typical legislation on the subject, 234. 
 civil-law incidents, 2i6n. 
 
 species of freehold estate not of inheritance, 218. 
 inchoate during coverture, 218. 
 
 its prerequisites are marriage, seizin, issue and death of the wife, 218-219. 
 viability of the child — how determined, 224. 
 
 must have been " heard to cry," 225. 
 scant respect for the right of curtesy, 229. 
 abolished in several states, 229. 
 ESTATES BY THE ENTIRETIES : 
 how created, 947. 
 may exist in personal . well as real property, 947. 
 
 in a chose in action as well as in a chose in possession. 947. 
 common-law rule for creating, 947. 
 husband and wife regarded as one person, 947. 
 principle of survivorship an attribute of, 947. 
 doctrine of Meeker v. Wright stated, 948. 
 incidents of this estate considered, 948. 
 
 not effected by modern legislation regarding the civil rights of women, 948. 
 neither tenant can convey during the life of co-tenant, 949. 
 extent of husband's control over, 949. 
 
 effect of a gift in fee simple to the separate use of a married women, 951. 
 how effected by the enabling acts, 951. 
 the principle of survivorship generally condemned, 952. 
 joint tenancy and tenancies by the entirety not favored, 953. 
 abstract of recent legislation on this subject, 953. 
 husband may convey his interest to his wife, 954. 
 the separate estate of a married women, 955. 
 
 the celebrated case of Yale v. Dederer examined, 955 
 
 views of the English court of chancery regarding, 956. 
 
 of the supreme judicial court of Massachusetts, 956. 
 
 the conclusion reached, 956. 
 extent of husband's control of the right to lease, 957. 
 loud call for the abolition of this estate, 958. 
 
 husband and wife may take as joint tenants or tenants in common, 958. 
 need not necessarily take as tehants by the entirety, 958. 
 attitude of the courts as to this estate, 959. 
 62 
 
978 INDEX. 
 
 [References are to the pages.] 
 
 ESTATES BY THE ENTIRETIES — Continued; 
 
 dissolution of the tenancy by death or divorce, g6o. 
 
 rules as to moieties, 961. 
 ESTATES FOR LIFE : 
 
 definition and nature, 134. 
 
 how created and classified, r35. 
 
 pur autre vie, 136. 
 
 dower and curtesy created by operation of law, 138. 
 
 right to emblements and crops, 139. 
 
 right to reasonable estovers, 141. 
 
 incidents of estates for life, I4t. 
 
 right to open and work mines, t42. 
 
 power to dispose of, 143. 
 
 the doctrine of waste, as applied to, 144. 
 
 " praying in aid," what is, 145. 
 
 taxes and incumbrances, 145. 
 
 duty of tenant to pay for reasonable repairs, 146. 
 
 adverse possession, as efTecting, 146. 
 
 how terminated, 147-148. 
 
 value of, how computed, 149. 
 
 merger in its relations to, 149. 
 
 insurance premiums should be paid by life tenant, 146. 
 
 tenants for life may remove all crops harvested during his term, 139. 
 ESTATES FOR YEARS : 
 
 nature, scope and definition of, 353. 
 
 doubtful tenancies construed as estates from year to year, 353. 
 
 how created, 354. 
 
 incidents of, 354. 
 ESTATES FOR YEARS — (LANDLORD AND TENANT): 
 
 implies the relation of landlord and tenant, 236. 
 
 must endure for a certain terra, 237. 
 
 nature and definition of, 238. 
 
 how created, 238. 
 
 may result from a devise, 239. 
 
 tenant for years has no seizin, 239. 
 
 may commence in future, 240. 
 
 ' ' interesse termini, " 240. 
 
 regarded in law as a chattel real, 241. 
 
 created by a lease, 239. 
 
 rights to emblements and estovers, 241. 
 
 definition, form and nature of a lease, 244. 
 
 operative words of lease, 246. 
 
 parol leases, 248. 
 , distinction between a present lease and an agreement to lease, 249. 
 
 what may be the subject of a lease, 250. 
 
 delivery and acceptance of a lease, 256. 
 
 parties to a lease, 256. 
 
 beginning of a lease, 270. 
 
 covenants and conditions in leases, 271. 
 
INDEX. 979 
 
 [References are to the pages.] 
 ESTATES FOR YEARS — (LANDLORD AND TENANT) — Continued : 
 assignment and subletting of a lease, 277. 
 termination of leases, 283. 
 effect of holding over, 297. 
 
 landlord's remedies on termination of lease, 299. 
 perpetual leases, 314. 
 Statute of frauds as affecting leases, 316. 
 evictions under a lease, 329. (See Eviction.) 
 letting on shares considered as a lease, 334. 
 judicial construction of leases, 335. 
 (See Leases.) 
 ESTATES FROM YEAR TO YEAR: 
 nature and definition of, 353. 
 all doubtful tenancies are construed to be, 353. 
 how distinguished from Estates at Will, 353. 
 (See " Estates at Will.") 
 ESTATES IN COMMON : 
 
 will they support the homestead exemption right, 943. 
 contradictions in the authorities on this subject, 943. 
 (See Tenants in Common), 915. 
 ESTATES IN COPARCENARY : 
 
 nature, scope and incidents of, 934. 
 ESTATES IN COPARTNERSHIP, or PARTNERSHIP ESTATES : 
 (See Tenants in Common), 925. 
 
 (See Joint Estates.) 
 of no practical importance, 925. 
 ESTATES IN EXPECTANCY • 
 
 embraced under the following headings : 
 Remainders, 654. 
 Reversions, 717. 
 Contingent Uses, 657. 
 Shifting Uses, 712. 
 Springing Uses, 712. 
 Executory Devises, 741. 
 enumeration of, 687. 
 definition of future estates, 687. 
 definition of reversion, 688. 
 when estates are vested — when contingent, 688. 
 power of appointment not to prevent vesting, 688. 
 suspension of power of alienation, 688. 
 limitation of successive estates for life, 688. 
 remainders on estates for life of third person, 689. 
 when to take effect, 689. 
 contingent remainder on term of years, 689. 
 estate for life as remainder for term of years, 689. 
 meaning of " heirs " and " issues " in certain remainders, 68g. 
 limitations of chattel real, 689. 
 creation of future and contingent estates, 689. 
 future estates in the alternative, 690. 
 
980 INDEX. 
 
 [References are to the pages.] 
 
 ESTATES IN EXPECTANCY — Continued: 
 
 future estates valid, though contingency improbable, 690. 
 
 conditional limitations, 6go. 
 
 when heirs of life tenant take as purchasers, 690. 
 
 when remainder, not limited on contingency defeating precedent estates, 
 takes effect, 6go. 
 
 posthumous children, 690. 
 
 when expectant estates are defeated, 691. 
 
 effect of valid remainders of determination of precedent estate before con- 
 tingency, 691. 
 
 qualities of expectant estates, 691. 
 
 dispositions of rents and profits, 6gi. 
 
 of accumulations and their disposition, 6gi. 
 
 undisposed profits, 692. 
 
 when expectant estates are deemed created, 692. 
 ESTATES IN FEE: (Simple). 
 
 nature and definition, 86. 
 
 classified, as fee simple, fees determinable, fees qualified— conditional — tail, 86. 
 ESTATES IN FEE: 
 
 legal incidents of, 98. 
 
 liable for satisfaction of debts due from owner, 98. 
 
 free alienation of, 98. 
 
 not controlled by any condition or limitation whatever, 98. 
 
 subject to eminent domain, gg. 
 
 an estate in perpetuity, gg. 
 
 carries with it all metals and minerals, 100. 
 
 when in abeyance — views of Judge Dixon, 113. 
 ESTATES IN FEE TAIL: 
 
 definition and nature, 117. 
 
 origin and history, 118, 
 
 classification, iig. 
 
 how created, 120. 
 
 how its creation may be avoided, 126. 
 
 incidents of a tenancy in tail, 123. 
 
 dower in, 123. 
 
 how barred or destroyed, 123. 
 
 tenant in tail may commit waste, 123. 
 
 subject to an executory devise, 124. 
 
 rules of construction, 125, 
 
 what property is subject to entailment, 127. 
 
 rules for barring the entail, 127. 
 
 duty of tenant as to taxes, incumbrances, etc., 129. 
 
 how far regulated by statute, 129. 
 
 duty as to taxes and incumbrances, 129. 
 
 will support both curtesy and dower, 129. 
 
 subject to the rule in Shelley's case, 130. 
 
 not favored in this country, 130. 
 
 views of Chancellor Kent, 131. 
 
 repudiated in many jurisdictions, 131. 
 
INDEX. 981 
 
 [References are to the pages.] 
 
 ESTATES IN COPARTNERSHIP : ) ^g^^ .^enants in Common), 925. 
 ESTATES IN PARTNERSHIP : ) '^' 
 
 ESTATES IN REMAINDER: (See Executory Devises), 741. 
 ESTATES IN REVERSION: (See Reversions), 717. 
 ESTATES IN SEVERALTY: 
 
 definition and illustration of, 932. 
 
 classified with American tenures, 84. 
 ESTATES LESS THAN FREEHOLD : 
 These estates are embraced under the following titles : 
 
 estates for years, 353. 
 
 estates at will, 349. 
 
 estates at sufferance, 351. 
 
 estates from year to year, or tenancies from year to year, 353. 
 ESTATES PUR AUTRE VIE : (See Estates for Life.) 
 
 nature and incidents of these estates are a species of descendible freehold, 136. 
 
 of rare occurrence, 136. 
 
 how determined, 138. (See Estates for Life.) 
 ESTATES UPON CONDITION : 765-788. 
 
 nature, scope and definition of, 765. 
 
 how classified — precedent and subsequent, 767. 
 
 how created, 768. 
 
 when condition must be annexed, 769. 
 
 not favored by law or equity, 770. 
 
 when repugnant to the estate granted, 770. 
 
 right of alienation, clogged by, 771. 
 
 distinction between a condition precedent and a condition subsequent, 772. 
 
 devise of real property on condition, 774. 
 
 invalid or void conditions, 776. 
 
 time of performance, 777. 
 
 must be annexed at time of creating the estate, 778. 
 
 must operate upon the whole property, 778. 
 
 can only be reserved to the grantor and his heirs; 778. 
 
 what conditions are void, 778. 
 
 rule as to forfeitures, 779. 
 
 relief against forfeitures in equity, 780. 
 
 conditions may be performed by any person having an interest in the subject 
 matter, 780. 
 
 when forfeiture must be claimed, 780. 
 
 conditions maybe waived by whom, 781. 
 
 conditions may be annexed to any form of real property, 782. 
 
 conditions usually annexed to equitable estates, 782. 
 
 conditions distinguished from limitations, 783n. 
 
 formula for determining the distinction between conditions and limitations, 784. 
 
 who may enter for breach of condition subsequent, 785. 
 
 breach of condition gives option to the grantor, 785. 
 
 effect of breach of condition, 786. 
 
 of conditions operating by way of defeasance, 786. 
 
 who may take advantage of a breach of conditions. 787. 
 
 rule against perpetuities does not effect, 788. 
 
982 INDEX. 
 
 [References are to the pages.] 
 ESTATES UPON CONDITION — Continued: 
 
 how the presence of a condition is determined, 766. 
 
 how conditions may be waived, 766. 
 
 conditions which prohibit certain uses of the property steadily enforced, 766. 
 
 of conditions positive, affirmative, negative, or collateral, 768. 
 
 conditional estate of comparatively rare occurrence, 769. 
 
 occur most frequently in leaseholds, 769. 
 
 conditions when regarded as impossible, 775. 
 
 conditions of forfeiture in lease, how treated, 776. 
 
 who may take advantage of the non-performance of a condition, 787. 
 ESTOPPEL . 
 
 nature and scope of the doctrine, 837. 
 
 office of, 838. 
 
 foundation of the rule, 838. 
 
 estoppel in pais, 839. 
 
 uses of estoppel, 839. 
 
 effects of declarations or admissions in cases of, B39. 
 
 silence as an element in, 840. 
 
 silence when fatal in cases of, 840. 
 
 fraud in relation to, 841. 
 
 not applied to parties under disability, 842. 
 
 estoppel by deed, 838. 
 
 evidence in cases of, 840. 
 
 as applied to dower, 170. 
 
 when enforced against tenant denying landlord's title, 268. 
 
 when applied to conveyances between tenants in common, 917. 
 ESTOVERS : 
 
 in what they consist, 141. 
 
 if reasonable, life tenant has the right to, 141. 
 (See Estates for Life.) 
 
 tenant for years has the dght to, 241. 
 (See Estates for Years.) 
 EVICTION : 
 
 nature and definition of, 320. 
 
 principles of, examined, 320. 
 
 classification of evictions, 322. 
 
 active, constructive, total or partial evictions, 322. 
 
 what constitutes — special acts of, 323. 
 
 partial evictions under title, paramount and eminent domain, 328. 
 
 remedies for, on covenant in lease, 332. 
 
 measure of damages in cases of, 333. 
 
 ouster, 332n. 
 
 effects of, 329. 
 EVIDENCE : 
 
 of fraud in leases, 336. 
 
 parol to vary terms of written instrument, 336. 
 
 rule from the Cal. Code of Civil Procedure, 336. 
 
 as to mistakes and omissions in leases, 337. 
 
 parol to establish deed absolute on its face a mortgage, 794. 
 
INDEX. 983 
 
 [References are to the pages.] 
 EVIDENCE — Continued : 
 
 in case of fraud or mistake in deed, 899. 
 
 liberally admitted in case of fraud or mistake, 899 
 
 parol to contradict consideration expressed in deed, 871. 
 
 of value of real estate in condemnation proceedings, 847. 
 
 of amount of damage to real property in condemnation proceedings, 847. 
 
 of easements created by grant, 421. 
 
 to establish a resulting trust, 649. 
 
 what tax deeds show as, 855. 
 
 that the property conveyed was subject to taxation, 855. 
 
 that the taxes were not paid before sale, 855. 
 
 that the property had not been redeemed, 855. 
 
 that the property had been regularly listed and assessed, 855. 
 
 that the taxes were levied according to law, 855. 
 
 that the property was duly advertised for sale, 855. 
 
 that the property was sold for taxes, 856. 
 
 that the grantee named was the purchaser, 856. 
 
 that the sale was conducted according to law, 856. 
 
 that the officer executing the deed is the proper officer, 856. 
 no conclusive evidentiary effect placed upon a tax deed, 856. 
 non-compliance with formalities in tax sales competent as, 856. 
 correction of lax deeds, 857. 
 redemption. 
 EXCEPTIONS : 
 
 usually annexed to equitable estates, 782. 
 frequently characterize an estate upon condition, 769. 
 EXECUTION,TITLE BY: 
 
 "title by," unknown to the common law, 848. 
 
 otherwise known as " title by involuntary alienation," 849. 
 
 what constitutes a levy on real property, 849. 
 
 outline of proceedings to perfect title by execution, 849. 
 
 notices of sale, where posted, 849. 
 
 sale must be at auction from front door of court house, 849. 
 
 order of confirmation, on sale by, 849. 
 
 confirmation may be opposed by any party in interest, 849. 
 
 rights of purchaser at execution sale, 850. 
 
 purchaser takes title subject to existing equities, Sson. 
 
 of executions to satisfy delinquent taxes, 851. 
 
 what are taxes, 851. 
 
 taxation for private purposes void, 851. 
 
 extends to all property and persons, 852. 
 
 taxes may become a charge upon realty, 852. r 
 
 execution for taxes must rigidly comply with the law, 853. 1 
 
 purchaser of defective tax title usually remediless, 853. 
 
 execution for taxes an ex-parte proceeding, 853. 1 
 
 tax deeds are evidence of what, 854. 
 
 tax deeds show that property was subject to taxation, 855. 
 that the taxes were not paid in due time, 855. 
 that the property had been duly listed and assessed, 835. 
 
984 INDEX. 
 
 [References are to the pages.] 
 EXECUTION, TITLE BY — Continued: 
 
 what are tax deeds, 851. 
 
 tax deeds show that the taxes were levied according to law, 855. 
 that the property was duly advertised for sale, 855. 
 that the property was duly sold for taxes, 856. 
 that the grantee named in the deed was the purchaser, 856. 
 that the sale was legally conducted, 856. 
 
 all formalities prescribed by statute must be complied with, 856. 
 EXECUTORY DEVISES : 
 
 nature, scope and definition, 741. 
 
 a form of estate in expectancy, 741. 
 
 a species of testamentary disposition, 742n. 
 
 origin and history of, 745. 
 
 executory limitations, 747n. 
 
 are substantially remainders created by will, 747n. 
 
 kinds of, 747. 
 
 distinction between executory devises and vested remainders, 749. 
 
 not favored by our courts, 750. 
 
 their tendency is to create a perpetuity, 750. 
 
 construction and interpretation of, 751. 
 
 the phrase "dying without issue " explained, 753. 
 
 are in the nature of contingent remainders, 742. 
 
 abstruse nature of the subject, 742. 
 
 they give effect to limitations over, 742. 
 
 courts prefer a contingent remainder rather than an executory devise, 744. 
 
 subject to the rules against perpetuities, 748n. 
 
 all limitations will be construed as contingent remainders, 748n. 
 
 executory and executed trusts ( See Uses and Trusts), 598. 
 
 executory interests of shifting and springing uses (See Uses and Trusts), 712. 
 
 executory remainders (See Remainders), 668. 
 
 FARM LET : (See Lease.) 
 FEE : (See Estates in Fee Simple), 86. 
 (See Estates in Fee Tail), 167. 
 Classified as 
 
 determinable, 86n. 
 base, 86n. 
 qualified, 86n. 
 conditional, 86n, 
 implies an unlimited estate of inheritance, 87. 
 of streets, is in trust when and where, 467. 
 classification of determinable fees, 721. 
 FEE SIMPLE : (See Estates in Fee Simple), 86. 
 FEE TAIL : (See Estates in Fee Tail), 117. 
 FENCES : 
 
 generally regulated by statute, 496. 
 covenants relating to, 496. 
 rules relating to repairs of, 496. 
 barbed-wire fences, 499. 
 
INDEX. 985 
 
 [References are to the pages.] 
 
 FEN CES — Continued : 
 
 rule where land is enclosed by common, 496. 
 
 where the doctrine of prescription applies, 502. 
 
 where owners of lands not fenced are liable for trespass, 497. 
 
 railroad fences 
 
 company must pay for cattle killed, even where fence is built, 497. 
 Missouri fencing law, 498. 
 duty to fence absolute, 498. 
 
 Massachusetts rule, 499. 
 
 some principles settled by, 499-500. 
 
 covenant to fence runs with the land, 500. 
 
 last rule repudiated in certain jurisdictions, 501. 
 FEOFFMENT: 
 
 definition, nature and scope of, jSn. 
 
 scant survival of, in this country, sSn. 
 FERRY: (See Franchise). 
 FEUDAL LAW: (See Feudal System), 60. 
 FEUDAL SYSTEM: 
 
 historical outline of, 60. 
 FEUDAL TENURES: 
 
 definition and nature, 60. 
 
 scanty survival of, in this country, 61. 
 FIDEI COMMISSIUM: (See Roman Law. See Civil Law.) 
 FILING: (See Recording), 818. 
 FINE AND COMMON RECOVERIES: 
 
 a fiction of the common law, 128. 
 
 a former mode of conveyance, 128. 
 
 generally resorted to for barring an estate tail, 128. 
 FIRE: 
 
 effect of destruction of leasehold premises by, 283-297, 
 FISHERY: 
 
 as a species of easement (See Easements), 409. 
 FIXTURES: 
 
 definition and nature, 39. 
 
 as between mortgagor and mortgagee, 44. 
 
 landlord and tenant, 45. 
 
 trade fixtures, 47. 
 
 removal of fixtures, 48. 
 
 tests by which the character is determined, 50. 
 
 between grantor and grantee, 45. 
 
 between landlord and tenant great liberality indulged, 45. 
 
 views of Professor Washburn — Judge Story, 44, 45. 
 
 common law relaxed as to fixtures, 40. 
 f rolling stock, 41. 
 
 portable furnaces, chandeliers, 41. 
 
 great vacillation in the authorities respecting, 40. 
 
986 INDEX. 
 
 [References are to the pages.] 
 FORCIBLE ENTRY AND DETAINER: 
 
 as landlord's remedy for non-payment of rent, 299. 
 FORECLOSURE (ACTION OF): (See Mortgages), 811 
 FORFEITURES: 
 
 of estate upon condition, 779. 
 
 relief in equity against, 780. 
 
 common-law rule in mortgage cases, 809. 
 
 not applied to trusts held for charity, 616. 
 
 grounds for, in leasehold cases, 292. 
 
 strictly construed in all cases and not favored, 292. 
 
 cannot work corruption of blood, 103. 
 FRANCHISES AND CHARTER RIGHTS: 
 
 nature, scope and definition, 377. 
 
 distinction between charter and franchise, 379. 
 
 what passes with the grant of franchise, 384. 
 
 construed in favor of the public, 385. 
 
 regarded as an irrevocable contract, 385. 
 
 Dartmouth College case reviewed , 386. 
 
 power to repeal examined, 388. 
 
 lease or sale of, generally void, 393. 
 
 railway franchises from a judicial point of view, 395. 
 
 subject to right of eminent domain, 396. 
 
 how lost or forfeited, 397. 
 
 views of Judge Finch in a celebrated case, 399. 
 FRAUD : 
 
 element of, in cases of estoppel, 841. 
 
 fraudulent acts of, trustees how established or evidenced, 569. 
 
 evidence freely admitted that tends to establish, 569. 
 
 in obtaining patents for land from state or federal government, 865. 
 (See Deeds,) 892. 
 FRAUDULENT CONVEYANCES . 
 
 by way of jointure, 212-215. 
 
 evidence tending to show, freely admitted, 569. 
 (See Deeds), 890. 
 FREEHOLD (Estates of) : 
 
 what are, 82. 
 FREEHOLDERS : 
 
 in general all persons may be, 105. 
 
 rule as to corporate bodies stated, 107. 
 
 FRUCTUS INDUSTRATES: \ ,c r- ^ 
 
 „„,, MSee Crops), 12. 
 
 FRUCTUS NATURALIS: T '' 
 
 FURNISHED APARTMENTS: (See Lease.) 
 
 FURTHER ASSURANCE: 
 
 a familiar covenant in deeds, 884. 
 
 (See Deeds.) 
 
 GAS : (See Minerals), 20. 
 GEORGIA : 
 
INDEX. 987 
 
 [References are to the pages.] 
 
 GRAND SARGEANTY: 
 
 a species of feudal tenure, 60. 
 GRANT : 
 
 definition and nature, 96. 
 
 not necessary in a conveyance, 97. 
 
 of franchise, 384. 
 
 (See Title by Public Grant ; Title by Private Grant ; Deeds.) 
 GRANTEE : 
 
 of property already mortgaged, 804. 
 GROWING CROPS : 
 
 their status in the law of real property, 11. 
 
 HABENDUM : (See Deeds.) 
 HAYBOTE: (See Estovers.) 
 HEAD OF FAMILY: (See Homestead Estates), 936. 
 
 what constitutes a, 943. 
 HEIRS: 
 
 effect of the word "heirs" in a grant in fee, 94. 
 
 use of word required under the common law, 94, 
 
 word "heirs " no longer necessary to pass a fee, 95. 
 
 word generally dispensed with by statutory enactment, 906. 
 HEIRLOOMS: 
 
 what are, 10. 
 
 not recognized in this country, 10. 
 
 regarded as real property in England, 10. 
 
 plate-pictures, " doves in cote," pussy horn coat of arms, are regarded as, 19. 
 HEREDITAMENTS ; 
 
 classified as corporeal and incorporeal, 8. 
 
 objections of Mr. Digby to this classification, 8. 
 
 definition of corporeal and incorporeal hereditaments, 8. 
 HIGHWAYS : 
 
 right of the public to the use of, as a monument of description in conveyances. 
 HOLDING OVER, EFFECTS OF: (See Lease.) 
 HOMESTEAD ESTATES : 
 
 nature and incidents of, 936. 
 
 their resemblance to joint tenancies, 936. 
 
 right of survivorship an attribute of, 936. 
 
 objects of the statutes relating to, 937. 
 
 resembles an estate for life, 937. 
 
 characteristics of, 937. 
 
 suspends and prevents the remedy of the creditor, 938. 
 
 a fruitful source of litigation, 938. 
 
 extent of the exemption controlled by statute, 938. 
 
 rule where several lots form one enclosure, 939. 
 
 rule where property is principally used for hotel or business purposes, 939. 
 
 letting rooms does not destroy homestead character, 940. 
 
 rule in case of double house, 940. 
 
 what necessary to create, 941 . 
 
 must be confined to one lot, 941. 
 
988 INDEX. 
 
 [References are to the pages.] 
 HOMESTEAD ESTATES — Continued: 
 what necessary to create, 941. 
 
 must be owned and occupied as a homestead, 941. 
 
 must not exceed in value the sum allowed by statute, 941. 
 
 must be selected as a homestead, 941. 
 
 cannot establish homestead rights in real estate of firm, 941. 
 
 parties must make selection of, 942. 
 what constitutes a family, 942. 
 
 father and adult son, 942. 
 
 father may adopt other persons as members of his family, 942. 
 
 separation of husband and wife, how affecting family relation, 942. 
 
 death or absence of wife or children, how affecting family, 942. 
 
 when widow is head of a family, 943. 
 
 unmarried man supporting adult sisters, 942. 
 will an estate in common support the homestead right, 943. 
 
 conflicts in the decisions relating to this question, 943. 
 
 views of Judge Thompson, 943. 
 
 judicial construction of homestead statutes,' 944. 
 homestead rights, how aliened, 944. 
 
 joint consent of husband and wife, 945. 
 
 their separate deedsnot sufficient, 945. 
 effect of divorce, 945. 
 
 intended for the benefit of children as well as parents, 946. 
 when divorced wife may sell the homestead, 946. 
 courts inclined to liberal construction of, 9460. 
 HOMESTEAD EXEMPTIONS : (See Homestead Estates), 935. 
 HOUSE : 
 
 generally part of the land, 5. 
 one may have a fee in part of, 23. 
 when treated as personal property, 23. 
 has no right of lateral support, 471 . 
 when leased, how far warranted, fit for use, 250. 
 regarded as real property, 22. 
 may be a double ownership in, 100. 
 HUSBAND : (See Dower ; See Curtesy.) 
 
 may settle estate upon wife if creditors are not defrauded thereby, 212. 
 may convey his interest as tenant by the entireties to his wife, 954. 
 extent of his control over a tenancy by the entireties, 948. 
 property of wife not liable for his debts, 232. 
 HUSBAND (AND WIFE) : (See Dower ; See Estates by Curtesy.) 
 when tenants by the entireties, 948. 
 
 may take realty as joint tenants or tenants in common, 958. 
 divorce between as affecting tenancy by the entireties, 960. 
 rights acquired by the husband in the lands of his wife — stated, 223. 
 common law gave all rents and profits of wife's land to husband, 223. 
 rule last stated greatly modified by statute, 223. 
 husband's control over wife's property greatly restricted, 229. 
 enabling acts have impaired the common law rights of the husband, 229n. 
 
INDEX. 989 
 
 [References are to the pages,] 
 
 ILLINOIS : 
 
 enabling acts of, regarding the rights of married women, 954. 
 IMPLIED TRUSTS : (See Uses and Trusts.) 
 IMPROVEMENTS: (See Betterments), 928. 
 
 INCORPOREAL HEREDITAMENTS : (See Land-Hereditaments.) 
 INCUMBRANCES (JUNIOR) : (See Mortgages.) 
 INCUMBRANCE : 
 
 of reversionary interests. (See Reversions), 725. 
 INDEX (OF CONVEYANCES) : (See Recording.) 
 INDIAN TITLE: (See Aboriginal Title.) 
 INJUNCTION : 
 
 restraining the erection of buildings that obstruct light, 420. 
 
 remedy provided for all cases of waste, 373. 
 INSTANTANEOUS SEIZIN : (See Seizin.) 
 
 INSURANCE (COVENANTS OF, IN MORTGAGES) : (See Mortgages.) 
 INTENT: Governs the interpretation of wills. (See Wills.) 
 INTERESSE TERMINI : (See Lease.) 
 INVOLUNTARY ALIENATION : (See Alienation), 103. 
 IOWA: 
 
 rule in, regarding the purchase of tax title by co-tenant, gig. 
 ISSUE : (See Estates by Curtesy), 218. 
 
 what is issue born alive, 2iq. 
 JOINT ESTATES : 
 
 discussion of, embraced in the following titles : 
 joint tenancy, 915. 
 tenants in common, 915. 
 estates in coparcenary, 934. 
 estates by the entirety, 947. 
 estates in partnership, 925. 
 homestead estates, 936. 
 
 definition and nature, 915. 
 JOINT TENANCY ■ (See Joint Estates.) 
 
 nature and definition of, 931. 
 
 tenants in, may maintain action for waste, 931. 
 
 hold by purchase and not by descent, 931. 
 
 estate in, need not be of same duration, nature or interest, 931. 
 
 beneficial act of one tenant inures to all, 931. 
 
 action for accounting may be maintained by one against all, g3i. 
 
 tenants in, should be joined in suits, 931. 
 
 how seized, 931. 
 
 each has entire possession of every parcel, 931. 
 
 may hold in fee simple, fee tail, for life, for years, or at will, 931. 
 
 distinction between joint and several estates, 932. 
 
 survivorship the distinguishing attribute of joint tenancy, 932. 
 
 the principals of survivorship examined, 932. 
 
 two corporations can not be joint tenants, 932. 
 
 rule as to survivorship generally abrogated, 932. 
 
 never created by descent — nor by operation of law, 932. 
 
990 INDEX. 
 
 [References are to the pages.] 
 JOINT TENANCY— Continued: 
 
 exists only by specific act of parties, 932. 
 
 not favored in law or equity, 932. 
 
 entirely abolished in several jurisdictions, 933. 
 
 how severed, 933. 
 
 how constituent unities may be destroyed, 933. 
 
 coparcenary regarded as a joint tenancy, 934. 
 
 of little account in our system of land tenure, 934. 
 community property in its relations to joint tenancy, 934. 
 
 applies only to a restricted area, 934. 
 
 regulated by the provisions of the Code Napoleon, 934. 
 
 Nevada statutory provisions relating to, 935. 
 who are joint tenants, 931. 
 
 survivorship the distinguishing incident, 931. 
 
 incident of survivorship generally abolished, 931. 
 
 may hold title in fee simple, fee tail, for life, for years, or at will, 931. 
 distinction between joint and several estates, 932. 
 
 all estates are either held in severalty or joint estates, 932. 
 
 definition of an estate in severalty, 932. 
 survivorship the distinguishing attribute of joint tenancy, 932. 
 principle of survivorship not favored, 932. 
 joint tenancies not favored, 932. 
 
 entirely abolished in several jurisdictions, 933. 
 how severed, 933. 
 
 by destruction of its constituent unities, 933. 
 
 four methods of severance stated, 933. 
 
 mortgage foreclosure may create a severance, 934. 
 definition and nature, 931. 
 who are joint tenants, 931. 
 hold land by a joint title, 931. 
 created by one and the same deed or will, 931. 
 uniformly hold by purchase, 931. 
 
 estate need not be of the same duration, nature or interest, 931. 
 beneficial act of one inures to all, 931. 
 one may maintain action for waste or accounting, 931. 
 should join in all suits at law or in equity, 931. 
 are seised '' ^er my et per tout" 931. 
 
 tenants in coparcenary in their relation to joint tenancy, 934. 
 no substantial diflFerence between coparceners and tenants in common, 
 
 934" ■ 
 
 distinction between estates in coparcenary and estates in common extin- 
 guished, 934, 
 JOINTURE: 
 
 defined and illustrated, 203. 
 
 the six things necessary to constitute, 204. 
 
 synonymous with the term " marriage settlement," 204. 
 
 legal incidents of, 205. 
 
 distinction between legal and equitable jointure, 207. 
 
INDEX. 991 
 
 [References are to the pages.] 
 
 JOINTURE— Continued : 
 
 no set form of words necessary to create, 207. 
 
 effect of part performance of an agreement for, 206. 
 
 neither settlement nor jointure must impair the rights of creditors, 208. 
 
 favored in the law, 2og. 
 
 in most of the states must consist of land, 205. 
 
 should be evidenced in writing, but is valid if parol, 205. 
 
 if made after marriage, may be waived, and widow claim dower, 214. 
 
 usually regarded as a substitute for dower, 214. 
 
 the statute of frauds in relation to, 206. 
 JUDGMENT LIEN : (See Title by Execution.) 
 
 is based upon a docketed judgment, 850. 
 JUDICIAL SALE : (See Title by Execution.) 
 JUNIOR INCUMBRANCE: (See Mortgage.) 
 JUNIOR MORTGAGE: (See Mortgage.) 
 JURY TRIAL. 
 
 in condemnation proceedings, 844. 
 
 LAND: (See Real Property.) 
 
 definition and nature, 4. 
 
 includes standing trees, buildings, fences, stones and waters shrubbery as 
 well as earth, 5. 
 
 attributes of permanency and immovability, 5. 
 
 law relating to, of mixed origin, 6. 
 
 views of Mr. Digby, Lord Kaimes, Sir Edward Coke, Sir William Black- 
 stone, Judge Bouvier, 5. 
 
 synonymous with real estate, real property, realty, 4. 
 
 co-extensive in meaning with tenements and hereditaments, 7. 
 
 includes all interests, whether in possession, reversion or remainder, 7. 
 LANDLORD AND TENANT: (See Lease.) 
 
 relation created by lease, 224. 
 
 reciprocal duties of, 259. 
 
 landlord's liability for injuries caused by nuisances, 260. 
 
 not responsible for injurious act of tenant, 260. 
 
 extent of landlord's liability for nuisance, 261. 
 
 how the relation may be terminated, 293. 
 
 for extended discussion. See next title. 
 LEASES: 
 
 definition, form and nature of, 244-249. 
 
 requisites of, 248. 
 
 relation of landlord and tenant created by, 245. 
 
 distinction between a present lease and an agreement to lease, 249. 
 
 what may be the subject of a lease, 250. 
 
 delivery and acceptance of, 256. 
 
 parties to a lease — their mutual obligations, 256. 
 
 rights and duties of landlord, 258-263. 
 
 rights and duties of tenant, 263-270. 
 
 tenant cannot dispute the title of his landlord, 266. 
 
 beginning of a lease, 270. 
 
 length of term, 270. 
 
992 INDEX. 
 
 [References are to the pages,] 
 LEASES — Continued : 
 
 covenants and conditions in a lease, 271. 
 
 effect of improvements and repairs on leasehold property, 277. 
 assignment and subletting of leaseholds, 277-283. 
 distinction between assignment and subletting, 281. 
 landlord must secure quiet enjoyment of the premises demised, 259. 
 rules as to repairing demised premises, 259. 
 
 termination of, how effected — destruction by fire — by efflux of time — by 
 condemnation under eminent domain — surrender — merger — forfeit- 
 ure, 283-297. 
 effect of holding over, 297. 
 
 landlord's remedies on termination of lease, 299. 
 notice to quit, 313. 
 perpetual leases, 314-316. 
 statute of frauds as aifecting leases, 316, 
 eviction as terminating (See Eviction), 320-333. 
 principles of eviction examined, 320-333. 
 remedies on covenant in case of eviction, 332. 
 partial evictions under title Paramount and Eminent Domain, 328. 
 measures of damages for eviction, 333. 
 what constitutes an eviction, 323. 
 physical expulsion not necessary, 324. 
 evictions — how classified, 322. 
 leasing or letting on shares, 334. 
 judicial construction of leases, 335. 
 effect of returning key to landlord, 288. 
 
 not canceled by vacating the premises and returning key, 287. 
 rights of landlord where premises are vacated during term, 287. 
 surrender before expiration of term, 284. 
 effect on leases of notice to quit, 290. 
 
 when lease vests in administrator or executor of the tenant, 290. 
 death creates new parties to the lease, 290. 
 rent accruing after lessor's death goes to the executor, 291. 
 surrender of, cannot prejudice sub-tenant, 293. 
 voluntary waste, how affecting, 297. 
 illegal use of premises, how affecting, 297. 
 effect of tenants holding over on expiration of term, 297. 
 renewal of lease implied by act of holding over, 298, 299. 
 lease of furnished apartments, lodgings, separate floors, 250-255. 
 Smith v. Marrable examined, 252. 
 effect of vermin in premises demised, 252. 
 
 doctrine of Smith v. Marrable not universally conceded in this country, 
 252-255. 
 forcible entry and detainer as a remedy, 299. 
 action for trespass, for breach of, 300. 
 the right of re-entry, 300-30in. 
 forcible entry defined, 299. 
 unnecessary force not tolerated, 300. 
 entry must be peaceable, 301. 
 
INDEX. 993 
 
 [References are to the pages.] 
 
 LEASES — Continued : 
 
 notice to quit, 313. 
 
 manorial or perpetual leases, frequent in colonial times, 314. 
 
 how affected by statute of frauds, 316. 
 
 letting on shares, 334. 
 
 separate stratification in coal beds, loi. 
 
 lease or sale of franchise generally void, 393. 
 
 judicial construction of, 335. 
 
 evidence of fraud in, 336. 
 
 when parol evidence may vary the terms of a written instrument, 336. 
 
 landlord's right of re-entry, 284. 
 (See Estates for Years), 299. 
 LEASE AND RELEASE : 
 
 as a former mode of conveyance. 
 LETTING ON SHARES : (See Lease), 334. 
 LICENSES : 504. 
 
 nature, scope and definition, 504. 
 
 their revocable and irrevocable features, 506. 
 
 rights of licensee, 509. 
 
 who may grant, 512. 
 
 of parol licenses, 511. 
 
 how lost or extinguished. (See Easements.) 516. 
 LIENS : 
 
 of taxes on real estate, 852. 
 
 of vendor for purchase price, 795. 
 
 by mortgage how created, 791. 
 
 not given to a vendor in all States, 796. 
 
 judgment creates one on debtor's land, 850. 
 
 for purchase price superior to right of dower, 163. 
 
 created by deposit of title deeds, 795. 
 
 builders. (See Mechanics' Lien.) 816. 
 LIFE ESTATES. (See Estates for Life.) 134, 
 LIFE EXPECTANCY : 
 
 computed by American mortuary tables, 149. 
 LIFE TABLES : 
 
 what are and when used, 149. 
 
 For computing expectancies of life, 149. 
 LIGHT AND AIR : (See Easements.) 
 LIMITATIONS : 
 
 of an estate, what words constitute, 765. 
 
 conditional, defined, 782. 
 
 collateral, defined, 782. 
 
 remoteness of, 788. 
 
 of time within which dower may be claimed, 202. 
 LIMITATIONS, STATUTE OF : 
 
 (See Statute of Limitations.) 
 LINEAL WARRANTY : 
 
 (See Covenant of Warranty.) 
 
 63 
 
994 INDEX. 
 
 [References are to the pages.] 
 
 LIS PENDENS : 
 
 (See Mortgage Foreclosure.) 
 LIVERY : (See Seizin.) 
 MANURE : 
 
 when realty, when personalty, 2g. 
 MAP ■ (See Deeds.) 
 MARRIAGE : 
 
 effect of, on wills, gi2. 
 
 birth of child. (See Title by Devise), gi2. 
 MARRIAGE SETTLEMENTS : (See Jointure.) 
 
 marshaling assets. 
 MARRIED WOMEN : ^See Trusts.) 
 
 trustees for, 651. 
 
 the enabling acts regarding, the effect on curtesy, 258. 
 MARRIED WOMEN'S ACTS : (See Enabling Acts), 951. 
 
 effect of, on curtesy, 228. 
 ■ effect of, on tenancies by the entireties, 751. 
 MASSACHUSETTS : 
 
 how co-tenants may defeat an action for partition in, 919, 
 MECHANIC'S LIENS; 816. 
 
 nature, scope and object of, 816. 
 
 creatures of statute, 817. 
 
 unknown to the common law, 817. 
 
 a species of statutory mortgage, 817. 
 
 filing, rule as to, 818. 
 
 right to create it cannot be assigned, 818. 
 
 extent of, 818. 
 
 rule as to priority of incumbrances 8x8. 
 
 when lien attaches, 8ig. 
 
 how enforced, 819. 
 
 how construed, 820. 
 MERGER : 
 
 doctrine of, as applied to leaseholds, 291. 
 in relation to estates for life, 149. 
 as applied to mortgages, 807. 
 
 intent of parties largely controls the application of, 907. 
 MESSUAGE : 
 METALS : (See Land.) 
 MINES AND MINERALS : (See Land.) 
 
 opening of mines not necessarily waste, 379. 
 MISSOURI 
 
 sales in partition not subject to dower, 928. 
 
 mistake, relief for in equity, 878. 
 MOIETIES : 
 
 when land is not held by, g6i. 
 MONEY- 
 
 when treated as real estate. 32. 
 MONUMENTS: 
 
 controls courses and distances, in fixing boundaries, 876. 
 (See Deeds.) 
 
INDEX. 995 
 
 [References are to the pages. 
 MORTGAGES : 
 
 nature and definition, 791. 
 
 distinction between a mortgage and a conditional sale, 792. 
 
 regarded as a conveyance, 793. 
 
 trust deeds in the nature of a mortgage, 793. 
 
 when absolute deeds are construed as mortgages, 794. 
 
 competency of parol evidence to establish the character of the agreement, 
 
 794- 
 objects of a mortgage, 794. 
 classified as legal and equitable, 795. 
 Welsh mortgages obsolete, 795. 
 vendor's lien for the purchase price, 795. 
 essential elements of, 796. 
 no precise form required, 797. 
 rule as to acknowledgment and sealing, 797. 
 the defeasance clause examined, 797. 
 covenants and their construction, 798. 
 
 agreement that whole sum shall become due, 798. 
 
 in default of payment mortgagee to have power to sell, 799. 
 
 mortgagor to keep buildings insured, 799. 
 
 mortgagor to give further assurance of title, 800. 
 
 covenants to bind representatives of grantor and mortgagor, 800. 
 what property may be mortgaged, 800. 
 mortgage of after acquired property, 801. 
 parties to a mortgage, 801 . 
 description of the mortgaged premises, 801. 
 fixtures as between mortgagor and mortgagee, 802. 
 validity of the debt secured, 802. 
 mortgage for future advances, 803. 
 material alterations in, 803. 
 reformation of mortgages, 803. 
 
 execution, delivery, acceptance and recording of, S03. 
 rights of mortgagee in possession, 804. 
 liability of the grantee of mortgaged premises, 804. 
 junior incumbrances, 805. 
 subrogation and its Incidents examined, 805. 
 volunteers cannot invoke the dpctrine of subrogation, 8o5. 
 merger and its incidents, 807. 
 
 intention largely controls the doctrine of merger, 807. 
 assignment of mortgages, 808. 
 the equity of redemption and its incidents, 809. 
 extinguishment and discharge of, 810, 
 
 receivers may be appointed to protect mortgagee's interest, 374. 
 foreclosure and its incidents, 811. 
 
 the term foreclosure defined, 812. 
 
 objects of foreclosure, 812. 
 
 largely regulated by statute, 813. 
 
 lis pendens, 813. 
 
996 
 
 INDEX. 
 
 [References are to the pages.] 
 MORTGAGES — Continued : 
 
 foreclosure and its incidents, 8ii. 
 
 should be filed in action for dower, 192. 
 primary object of the rule lis pendens, 8i3n. 
 the decree of sale, 814. 
 doctrine of relation, 814. 
 redemption rights, 815. 
 rules as to surplus money, 815. 
 settled nature of the law of, 790. 
 MORTMAIN : (Statute of.) 
 alienations under, 74. 
 subject of trifling importance in this country, 75. 
 
 NAKED OR COLLATERAL POWERS : (See Powers.) 
 
 NAMES. 
 
 NECESSITY: 
 
 ways of, (See Easements.) 
 NEW JERSEY: 
 
 liberal rules in, regarding the rights of married women, 953. 
 NEVADA ; 
 
 statutory provisions relating to comtnunity property, 935. 
 NEW YORK : 
 
 rule in, as to betterments, 924. 
 
 married women's enabling acts of 1848, 954. 
 
 non-user — effect on easements. (See Easements.) 
 NEXT OF KIN • 
 
 non compos mentis. 
 NON-USER: (See Franchise ; Easements.) 
 
 notice to quit. 
 NUISANCE: 
 
 on leased premises, who responsible for, 297. 
 NUNCUPATIVE WILLS: 
 
 subject of no account in the law of real property. (See Title by Devise), 913. 
 
 OBSTRUCTION : 
 
 of light and air. (See Easements.) 
 OCCUPANCY fTITLE BY) : (See Title by Occupancy.) 
 OFFICE-FOUND : 
 
 inquest of, necessary to perfect title in the state. 
 OHIO: 
 
 by law in, tenant in common may convey by specific bounds, 917. 
 
 estates in joint tenancy repudiated in. 933. 
 
 sales in partition suits convey a title free from the right of dower, 928. 
 OIL . (See Oil and Gas.) 
 
 regarded as a mineral, 20. 
 OREGON ■ 
 
 estates in joint ten:incy repudiated in, 933. 
 ORNAMENTAL FIXTURES : (See Fixtures.) 
 
INDEX. 997 
 
 [References are to the pages,] 
 OUSTER: (See Lease — Eviction.) 
 
 what constitutes, in case of co-tenancy, 920. 
 OWELTY: (See Pariition.) 
 
 defined as equality of partition, 929. 
 
 generally regulated by statutory enactments, 929. 
 OWNERSHIP: 
 
 double, in land when, 100. 
 
 of surface may be in one party, 100. 
 
 of mineral stratification, may be in another, loo. 
 
 may be double in house, 100. 
 
 PAROL EVIDENCE: (See Evidence.) 
 
 PAROL LEASES: (See Estates for Years.) 
 
 PAROL LICENSE: (See License.) 
 
 PAROL PARTITION: (See Tenants in Common), 930. 
 
 PARTIES : 
 
 to a mortgage 801. 
 
 to a lease, 256. 
 PARTITION: (See Tenants in Common), 927. 
 PARTNERSHIP: (See Tenants in Common), 925. 
 , PART PERFORMANCE: (See Statute of Frauds), 896. 
 PARTY-WALLS: (See Easements.) 
 PATENT FOR LAND: (See Title by Public Grant.) 
 PAYMENT: 
 
 PENDENTE LITE: (See Lis Pendens.) 
 PERFORMANCE: 
 
 doctrine of part performance examined, 896. 
 (See Statute of Frauds.) 
 PERPETUITIES: 755-764. 
 
 nature, scope and definition, 755. 
 
 development of the doctrine, 757. 
 
 hostility of the modern law to, 759. 
 
 relaxation of the rule in case of charitable trusts, 760. 
 
 judicial construction of, 761. 
 
 tests applied in determining what is a perpetuity, 762. 
 
 Thellusson's case considered, 763. 
 
 effect on executory devises, 757. 
 
 rule against, does not affect estate upon condition, 7S8. 
 
 doctrine of, as related to executory devises, 750. 
 PERSONAL PROPERTY: 
 
 all property either real or, 2. 
 PEWS IN CHURCHES: 
 
 regarded as real estate. 
 PIPES: 
 
 gas and water, part of realty. 
 PLATTING: (See Deeds), 876. 
 
 intent to dedicate land may be inferred from, 431. 
 
 easement may be acquired by act of, 431. 
 PLOUGH-BOTE : 
 
 as an estover. 
 
INDEX. 
 [References are to the pages.] 
 POWERS : 728. 
 
 definition of a power, 730. 
 
 definition of a grantor, grantee, 730. 
 
 division of powers, 731. 
 
 general power, 731. 
 
 special power, 731. 
 
 beneficial power, 731. 
 
 general power in trust, 731. 
 
 special power in trust, 731. 
 
 capacity to grant a power, 731. 
 
 how power may be granted, 731. 
 
 capacity to take and execute a power, 732. 
 
 capacity of married woman to take power, 732. 
 
 capacity to take a special and beneficial power, 732. 
 
 reservation of a power, 732. 
 
 when directions by grantor need not be followed, 736. 
 
 nominal conditions may be disregarded, 736. 
 
 intent of grantor to be observed, 736. 
 
 consent of grantor or third person to execution of power, 736. 
 
 when all must consent, 736. 
 
 omission to recite power, 737. 
 
 when devise operates as an execution of the power, 737. 
 
 disposition not void because too extensive, 737. 
 
 computation of term of suspension, 737. 
 
 capacity to take under a power, 737. 
 
 purchase under defective execution, 737. 
 
 instrument affected by fraud, 737. 
 
 judicial construction of powers, 738. 
 
 effect of power to revoke, 732. 
 
 power to sell in a mortgage, 732. 
 
 when power is a lien, 733. 
 
 when power is irrevocable, 733. 
 
 when estate for life or years is changed into a fee, 733 
 
 certain powers create a fee, 733. 
 
 when grantee of power has absolute fee, 733. 
 
 effect of power to devise in certain cases, 733. 
 
 when power of disposition absolute, 733. 
 
 power subject to condition, 733. 
 
 power of life tenant to make leases, 734. 
 
 effect of mortgage by grantee, 734. 
 
 when a trust power is imperative, 734. 
 
 distribution when more than one beneficiary, 734. 
 
 beneficial power subject to creditors, 734. 
 
 execution of power on death of trustee, 735. 
 
 when power devolves on court, 735. 
 
 when creditors may compel execution of trust power, 735. 
 
 defective execution of trust power, 735. 
 
 effect of insolvent assignment, 735. 
 
 how power must be executed, 735. 
 
INDEX. 999 
 
 [References are to the pages.] 
 POWERS — Continued: 
 
 execution by survivors, 735. 
 
 execution of power to dispose by devise, 735. 
 
 execution of power to dispose by grant, 736. 
 
 when direction by grantor does not render power void, 736. 
 POWERS OF ATTORNEY : 738. 
 POWERS OF SALE ON MORTGAGE : 
 PRECATORY TRUSTS : (See Uses and Trusts.) 
 PRE-EMPTIONS : (See Title by Public Grant.) 
 PREMISES : (See Deeds.) 
 
 PRESCRIPTION, TITLE BY : (See Adverse Possession.) 
 PRIMOGENITURE : 
 PRIORITY : 
 
 of deed or mortgage determined by date of record, S80. 
 PRIVATE GRANT : (See Deeds.) 
 PROBATE : 
 
 meaning of the term, 914. 
 
 limits of jurisdiction defined, 914. 
 PROFITS APRENDRI : 
 
 what are, 407. 
 PROPERTY • 
 
 common law, classification of, 2. 
 
 when abandoned, 103. 
 PUBLIC DOMAIN : (See Title by Public Grant.) 
 PURCHASE : (See Title by Purchase.) 
 
 QUALIFIED FEE : 
 
 in what it consists, 86. 
 QUANTITY : 
 
 of land as an element of description, 840. 
 
 the phrase " more or less " examined. 
 QUARANTINE : (See Dower.) 
 
 rights of widow to, before admeasurement of dower, 196. 
 QUIA EMPTORES (STATUTE OF) : 
 
 statute of, did not abolish qualified fees, 88. 
 
 statute of, abolishes tenure between grantor and grantee, sgn. 
 QUIA EMPTORES TERRORUM (STATUTE OF): (See Quia Emptores^, 
 
 59"- 
 QUIET ENJOYMENT: (See Deeds— Covenants), 885. 
 
 is implied in all cases of leasing, 276. 
 QUIT-CLAIM (DEEDS) : (See Deeds), 879. 
 
 RAILROAD FENCES: (See Fences), 497. 
 RATIFICATION : 
 
 principles of examined. 
 REAL PROPERTY : 
 
 synonymous with real estate. 
 
 definition, nature and classification, i. 
 
 water and ice as real property, 9. 
 
lOOO INDEX. 
 
 [References are to the pages.] 
 REAL PROPERTY — Continued: 
 
 heirlooms, lo. 
 
 crops and trees, ii. 
 
 mines and minerals, i5. 
 
 coal in place, 17. 
 
 aerolites, 18. 
 
 oil and gas, 20. 
 
 water as a mineral, 21. 
 
 buildings regarded as real estate, 22. 
 
 different stories in the same, 23. 
 
 water mains, gas pipes, electric wires, frame of elevated road, etc., 23. 
 
 pews in churches, 24. 
 
 tombs, 24. 
 
 manure when regarded as, 2g. 
 
 sale of on execution for debt, 849. 
 
 sale of on execution for taxes, 849. 
 
 descent of governed by lex loci reisita, 822. 
 RECEIVER : 
 
 maybe appointed of mortgaged property, 374. 
 RECORDING': 
 
 necessity for in case of deed or mortgage, 880. 
 
 operates as constructive notice. 
 
 priority determined by date of record, 880. 
 RECOVERY : (See Fine and Recoveries ) 
 
 once a mode of conveying land now obsolete, 
 REDEMPTION (EQUITY OF) : (See Mortgages.) 
 REDEMPTION RIGHTS : 
 
 as affecting land sold for debt or taxes, 857. 
 RE-ENTRY (RIGHT OF) : 
 
 extended examination, the rule allowing, 300, 30in. 
 
 only allowed in certain cases, 284. 
 REFORMATION OF WRITTEN INSTRUMENTS ; 
 
 when equity will decree, 878. 
 REGISTRY (OF DEEDS AND MORTGAGES); (See Recording.) 
 RELATION (DOCTRINE OF) : 
 
 how and when applied to sales of land, 814. 
 
 instances where title " relates back," 814. 
 RELEASE : 
 
 RELICTION : (See Accretion and Alluvion.) 
 REMAINDERS (ESTATES IN): 
 (See Executory Devise.) 
 
 nature, scope, and definition, 654. 
 
 classified as vested, contingent and cross, 657n. 
 
 regarded as descendible, 659. 
 
 test for distinguishing, 658. 
 
 subject of the doctrine of estoppel, 659. 
 
 conditional limitations and contingent remainders distinguished, 660. 
 
 when vested, 660. 
 
 what are contingent remainders, b65n. 
 
INDEX. lOOI 
 
 [References are to the pages.] 
 REMAINDERS (ESTATES IN) — Continued: 
 
 executory and contingent remainders synonymous, 668. 
 
 how contingent remainders may be destroyed, 668n. 
 
 different kinds of contingent remainders, 669. 
 
 views of Mr. Challis as to, 669. 
 
 modern legislation not favorable to contingent remainders, 672. 
 
 statutory definition of an estate in remainder, 673. 
 
 rule in Shelley's case regarding generally, repealed or altered, 674. 
 
 partiality of the courts for vested remainders, 675. 
 
 is a freehold estate necessary to support a contingent remainder, 676. 
 
 sale of — how regarded, 676. 
 
 cross remainders and their incidents, 677. 
 
 judicial construction of, 678. 
 
 effect of a power of sale annexed to a life estate, 679. 
 
 how destroyed, 679. 
 
 rules as to remoteness or limitation, 681. 
 
 other aspects of limitations, 683. 
 
 merger and surrender, in relation to, 685. 
 
 codification of estates in expectancy, 685-693. 
 
 rule in Shelley's case — origin and history, 693. 
 
 analysis of the rule in Shelley's case, 697, 
 
 views of Chief Justice Gibson on the rule in Shelley's case, 699. 
 
 views of Chancellor Kent, 700. 
 
 views of Mr. Preston, 702. 
 
 repudiation of the rule in Shelley's case, 704. 
 
 comments on the rule, 705. 
 
 future or contingent uses, 711. 
 
 of shifting and springing uses, 712. 
 
 suggestions from Prof. Walker as to remainders, 716. 
 REMOTENESS : (See Perpetuities.) 
 RENT: 
 
 nature and definition, 337-341. 
 
 presumption that payment of, is intended, 338. 
 
 a species of incorporeal hereditaments, 339. 
 
 rent service, rent charge, rent seek, 339. 
 
 ground rent, 340-341. 
 
 rent charge, quit rent, barren rent, 341-342. 
 
 fee farm rent, 342. 
 
 when, where and how payable, 342. 
 
 time of payment, how computed, 343. 
 
 landlord's security for the payment of, 347. 
 
 distress for, abolished, 344. 
 
 landlord's remedies on failure of payment, 345-346. 
 
 action for use and occupation, 345. 
 
 remedy by civil action, 345. 
 
 right to distrain property to secure, 346. \ 
 
 distress for, 346. 
 
 apportionment of, 347. 
 
 not recoverable after condemnation by eminent domain, 347-348. 
 
I002 INDEX. 
 
 [References are to the pages.] 
 RENT — Continued: 
 
 lien on crops in favor of lessor to secure, 343. 
 
 statutory laws relating to lien for rent, 343. 
 
 landlord's remedies on failure to pay, 345. 
 
 action for use and occupation as a remedy for non-payment, 345. 
 
 accruing after lessor's death goes to his executor. 
 REPAIRS : 
 
 liability for, in estates for life, 146. 
 
 liability for, in estates for years, 239. 
 
 liability for, of mortgaged premises, 804. 
 RESTRAINTS (AGAINST ALIENATION) : See Perpetuities. 
 RESULTING TRUSTS : (See Uses and Trusts.) 
 RESULTING USES: (See Uses and Trusts.) 
 REVERSIONS : 
 
 definition and nature, 717. 
 
 result invariably from operation of law, 71S. 
 
 distinction between remainders and reversions, 719. 
 
 the phrase " possibility of reverter" examined, 719. 
 
 incidents of reversions, 721. 
 
 reversioner may have action of waste when, 722. 
 
 sale of reversionary interests, 723. 
 
 incumbrance of reversions, 725. 
 
 reversions in lands held by corporations, 726. 
 
 reversion is something reserved, remainder is something granted, 718. 
 REVERSIONARY INTERESTS : 
 
 sale of, 723. 
 REVOCATION : 
 
 of license. (See License.) 
 
 of will. (See Title by Devise.) 
 RIGHT OF WAY : (See Ways.) 
 
 over halls and stairways, 262. 
 RIPARIAN PROPRIETORS: 
 
 title of, to alluvion and accretion, 858. 
 
 right to cut ice — and the use of running water, 9. 
 RIVERS : 
 
 as boundaries to land, 876. \ 
 
 forming alluvion, 858. 
 ROLLING STOCK : 
 
 of railroads when real estate, 41. 
 
 principles of equitable conversion apply to, 41. 
 ROMAN LAW : (See Civil Law), 2i6n. 
 RULE IN SHELLEY'S CASE : 
 
 origin and history, 693. 
 
 of feudal origin, 695. 
 
 first report of, 694. 
 
 difficulty with the word "heirs," 694. 
 
 theory of the rule, 696. 
 
 the words " lawful issue" in relation to heirs. 696. 
 
 critical analysis of the rule by Mr. Hayes, 697. 
 
INDEX. 1003 
 
 [References are to the pages.] 
 
 RULE IN SHELLEY'S CASE— Continued, 
 further analysis by Mr. Preston, 702. 
 views of Chancellor Kent, 700. 
 views of Chief Justice Gibson, 699. 
 repudiation of the rule in several states, 704. 
 rule yields to the clear intention of the grantor, 704. 
 rule condemned as subversive of the intention, 704. 
 comments on the rule, 705. 
 great relaxation of the early rule, 706. 
 rule not allowed to override the manifest intention, 70S. 
 defenders of the rule, 709. 
 as applied to uses and trusts, 545n . 
 
 SALE OF FRANCHISE : (See Franchise and Charter Rights.) 
 
 generally void, 393. 
 SALE OF LAND : 
 
 by legislative acts under eminent domain, 842. 
 
 under execution, 849. 
 
 for delinquent taxes, 852. 
 
 for non-payment of debts, 849 
 SEALING: 
 
 of deeds, 871. 
 
 no uniform rule in regard to, 797. 
 SEIZIN : 
 
 doctrine of, examined, 89. 
 
 explained and illustrated, 89. 
 
 livery of — its legal import — now obsolete, 90. 
 
 recording deed has same effect as livery of seizin, 90. 
 
 rule as to in curtsey, 221. 
 
 instantaneous, when. 
 SEPARATE ESTATES OF MARRIED WOMEN (See Joint Tenancies.) 
 
 (See Curtesy.) 
 SERVIENT ESTATES; (See Easements and Servitudes.). 
 SERVITUDES: (See Easements.) 
 SETTLEMENT (MARRIAGE) : (See Jointure.) 
 SEVERALTY (ESTATES IN): 
 
 defined and illustrated, 932. 
 
 shares — letting land upon, 334. 
 SHARES OF STOCK : 
 
 sometimes treated in equity as real estate. 
 SHELLEY'S CASE (RULE IN): 
 
 how affecting tenancies in tail, 130. 
 
 in its relation to remainders. (See Remainders), 693. 
 SHERIFF: 
 
 return of writ in case of execution, 849. 
 levy on realty, how made, 849. 
 SHIFTING USES : (See Remainders), 712. 
 SOCAGE: Tenure. 
 SPENDTHRIFT TRUSTS : (See Uses and Trusts.) 
 
I004 INDEX. 
 
 [References are to the pages.] 
 SPRINGING USES : (See Remainders.) 712. 
 STATUTES : 
 
 relating to homestead exemptions, how construed, 944. 
 (See Joint Tenancy.) 
 STATUTE DE DONIS: 719. 
 STATUTE OF DISTRIBUTIONS : 821. 
 
 make such a will as the intestate would probably malce, 822. 
 STATUTE OF 43 ELIZABETH ; 607. 
 STATUTE OF FRAUDS: 
 
 as applied to jointure, 206. 
 
 as relating to parol partition, 936. 
 
 how affecting verbal partition of land, 930. 
 
 as affecting leases, 316. 
 
 in relation to trusts, 546. 
 
 in relation to wills or devises, 904. 
 
 in relation to easements and servitudes, 421. 
 
 in relation to leases, 248. 
 
 in relation to conveyances, 894 et seq, 
 
 extract from sec. 4, 895. 
 
 contracts within, not void but voidable, 895. 
 
 does not ally to judicial sales, 895. 
 
 doctrine of part performance considered, 896. 
 
 the "memorandum clause" examined, 897. 
 STATUTE OF HENRY 8TH. 
 
 full text of the Parliamentary enactment, 715. 
 STATUTE OF LIMITATIONS: 
 
 founded on public policy, 830. 
 
 how differing from prescription and adverse possession, 830. 
 
 saving clauses in, 831. 
 
 may be invoked after occupancy of twenty years, 833. 
 
 twenty years usually the limit set by statutes of, 832. 
 
 cannot be pleaded against the federal government, 834. 
 
 not controlling unless continuity and priority of possession are shown, 
 834. 
 
 the doctrine of "tacking" examined, 835. 
 
 what evidence may be received to show compliance with, 836. 
 
 usually pleaded in actions of ejectment, 836. 
 
 accompanies plea of color of title, 836. 
 (See Adverse Possession), 829. 
 
 its effect upon trusts, 587. 
 
 as affecting title by prescription, 830. 
 
 phrase usually employed in connection with adverse possession, 830. 
 STATUTE QUIA EMPTORES: 719. 
 
 extended examination of, 59. 
 
 views of Judge Christiancy regarding, 99. 
 STATUTE OF USES: (See Uses and Trusts.) 
 STATUTE OF WILLS: (See Title by Devise.) 
 STATUTORY CONSTRUCTION: 820. 
 
 in cases where statute is borrowed from a sister state. 
 
INDEX. 1005 
 
 [References are to the pages.] 
 STATUTORY CONSTRUCTION —Continued: 
 
 Story elevated railroad case, 461. 
 
 stone bote (stone bote). (See Estovers), 141. 
 
 strict foreclosure. (See Mortgage.) 
 SUB-INFEUDATION: 
 
 a principle of the feudal system, 6on. 
 SUB-LETTING: (See Lease — Landlord and Tenant.) 
 SUBROGATION: (See Mortgages.; 
 SUBSTITUTION: (See Mortgages.) 
 SUB-TENANCY: (See Lease— Landlord and Tenant.) 
 SUFFERANCE: (See Estates at Sufferance.) 
 SUPPORT: (See Party-Walls— Easements.) 
 
 agreement for sufficient consideration for deed or mortgage. 
 SURPLUS MONEY: 
 
 application of, in foreclosure cases, 814. 
 SURRENDER: 
 
 of deed or mortgages, compelled when, 848. 
 
 in leasehold cases, 292. 
 
 not favored, strictly construed, 292. 
 SURVIVORSHIP: 
 
 principle of not favored . (See Joint Tenants — Tenants by the Entireties), 
 932. 
 
 TABLES (MORTUARY): 
 
 used in computing life expectancies, 149. 
 
 show life estate to be equal to seven years' purchase of the fee, 149. 
 TACKING: 
 
 possession of successive occupants to give title, 835. 
 
 doctrine of, in case of adverse possession, 835. 
 TAIL ESTATES: (See Estates Tail.) 
 TALTARUM'S CASE: 127, 
 
 designed to ignore the statute de donis, 127. 
 TAXES: 851. 
 
 what are, 851. 
 
 execution to satisfy delinquent taxes, 851. 
 
 taxation for private purposes void, 851. 
 
 theory of compensation to the citizen, 851. 
 
 views of John Stuart Mill, 852. 
 
 taxes may become a charge upon realty, 852. 
 
 execution to satisfy a tax must rigidly comply with the law, 853. 
 
 purchaser of defective tax title usually remediless, 853. 
 
 sale of land for taxes grounded on ex parte proceedings, 853. 
 
 tax deeds are evidence of what ? 854. 
 
 statutory regulations as to tax deeds, 855. 
 
 all statutory formalities must be complied with in tax cases, 856. 
 
 duties of tenant in tail as to, 129, 
 
 duties of life tenant as to, 145. 
 
IOo6 INDEX. 
 
 [References are to the pages.] 
 TAX DEEDS : 
 
 effect of the purchase of, by a tenant in common, 918. 
 (See Deeds.) 
 TAX TITLE : 
 
 regarded as a derivative title, 168. ' 
 
 effect of a co-tenant's purchase of. (See Tenants in Common), 918. 
 TENANTS : (See Estates for Life.) 
 
 by entirety. (See Estates by the Entirety.) 
 
 at sufferance. (See Estates at Sufferance.) 
 
 in severalty. (See Estates in Severalty.) 
 
 in common. (See Estates in Common.) 
 
 at will. (See Estates at Will.) 
 
 may remove fixtures, when. (See Fixtures.) 
 
 rights and duties of, 263. 
 
 not generally liable for taxes, insurance or repairs, 264. 
 
 not generally liable for interest on incumbrances, 264. 
 
 nor for rent of premises made untenantable by fire or flood, 264. 
 
 right to light and air, 265. 
 
 is estopped from disputing his landlord's' title, 266. 
 
 exceptions to the rule last stated, 267-268. 
 
 rule as to the attornment of, 268. 
 TENANT AT WILL : (See Estates at Will.) 
 
 liability for waste, 371, 
 TENANTS FOR LIFE : (See Estates for Life.) 
 TENANTS IN COMMON : 
 
 definition and nature, 915. 
 
 how the title may be acquired, 916. 
 
 each co-tenant is entitled to exclusive possession, gi6. 
 
 one co-tenant cannot convey a distinct parcel of the land, 916. 
 
 dissent from the view last stated, 917. 
 
 tenants in possession cannot assail the common title, 917. 
 
 the relationship of the co-tenants is one of confidence and trust, 9t7. 
 
 their reciprocal obligations will be enforced in equity as a trust, 917. 
 
 the relationship forbids the assumption of a hostile attitude by either, 917. 
 
 when an adverse title may be purchased, gi8. 
 
 effect of purchase of an outstanding title by a tenant in common, 91S. 
 
 rule as to the purchase of tax titles, 918. 
 
 regarded as a trustee for his associates, 919. 
 
 purchase of an outstanding title by co-tenant inures to common jencfil, 920. 
 
 when tax title may be asserted by one against the others, 919. 
 
 possession of one tenant is the possession of all, unless, 920. 
 
 principles of disseizin examined, 920. 
 
 ouster necessary to constitute a disseizin of, 920. 
 
 what acts generally constitute a disseizin of, 921. 
 
 outward acts of exclusive ownership necessary to disseizin, 922. 
 
 contribution between tenants in common, 922. 
 equity may compel, 922. 
 the principle of subrogation applied, 922. 
 views of Mr. Justice Story, 923. 
 
INDEX. 1007 
 
 [References are to the pages.} 
 TENANTS IN COMMON — Continued : 
 
 betterments as applied to tenancies in common, 923. 
 
 betterments — allowance for given party acting in good faitn, 923. 
 
 right to betterments based upon a colorable holding, 923. 
 
 doctrine of Green v. Putnam stated, 924. 
 
 what instrument gives color of title, 923. 
 
 betterments may be allowed by final decree in partition suit, g2a. 
 
 accounting between co-tenants, 925. 
 
 when one becomes trustee for his associates, 919. 
 
 partnership estates regarded as tenancies in common, 925. 
 
 incidents of the partnership relation, 925. 
 
 when partnership realty will be regarded as personalty, 925. 
 
 legal title resides in the several partners, 925. 
 
 partnership realty may be sold to satisfy a firm debt, 925. 
 
 effect of taking title in the name of one partner, 926. 
 
 wives of copartners need not join in mortgage, 926. 
 
 dower does not attach to copartnership real estate, 926. 
 
 partnership realty treated as personalty by a court of equity, 926. 
 partition of tenancies held in common, 927 
 
 nature, scope and effect of suit in partition, 927. 
 
 is either voluntary or involuntary, 927. 
 
 is the result of special legislation, 927. 
 
 objects of a partition suit, 927. 
 
 title in severalty acquired by, 927. 
 
 regarded as an absolute right, 928. 
 
 right to, strictly and jealously guarded, 928. 
 
 effect on dower, 928. 
 
 allowance for improvements in betterments, 928. 
 
 owelty or equality of partition, what is, 929. 
 
 owelty largely the subject of legislation, 930. 
 
 parol partition not favored, 930. 
 
 the statute of frauds in relation to parol partition, 930. 
 
 when parol partition will be respected, 930. 
 
 when held good between the parties, 930. 
 TENANTS, JOINT : (See Joint Tenancy), 931. 
 terms for years, 
 no estates tail in. 
 
 when violative of rule against perpetuities, 
 when one merges into another. 
 (See Estates for Years.) 
 TENEMENTS : 
 
 what included in the term, 4. 
 not applied to incorporeal interests, 5. 
 TENURE : 
 
 nature and definition, 54. 
 
 applied only to land, 55. 
 
 notions of, derived from the feudal law, 55 
 
 effects of the feudal system on, 57. 
 
 effects of the American Revolution on. 
 
I008 INDEX. 
 
 [References are to the pages.] 
 
 TENURE — Continued: 
 
 waning influence of feudal tenure, 24, 61. 
 common law — how affecting, 63. 
 analysis of the common-law system of tenure, 65. 
 how brought to this country, 66. 
 extent of its adoption in America, 67. 
 statute oi quia eniptores, 59. 
 
 views of Judge Bouvier — Prof. Walker — Mr. Burrill, 64. 
 some mode of incident to every government, 55. 
 classification of, 82. 
 freehold interests, 82n. 
 estates from year to year, 83. 
 estates at sufferance, 83. 
 determinable estates, 83. 
 legal and equitable estates, 83. 
 estates upon condition, 83. 
 estates in possession, 83. 
 vested or contingent, 84. 
 Indian title extinguished, 84. 
 leasehold estates, 82. 
 estates in fee or fee simple, 83. 
 determinable estates, 83. 
 executed and executory estates, 84. 
 TESTAMENT: 
 
 a term used by the civilians as synonymous with will, qo3. 
 TESTAMENTARY CAPACITY: (See Title by Devise. ; 
 TESTS: 
 
 for ascertaining fixtures, 50. 
 THELLUSON'S WILL, CASE OF, 763. 
 TIMBER: 
 
 when cutting is waste (See Waste, 371). 
 TIME: 
 
 of prescription same as of limitation, 833. 
 how computed, 834. 
 TITLE: 
 
 muniments of title evincing what, 147. 
 
 when acquired by the purchase of outstanding tax deeds, gi8. 
 
 when acquired by the purchase of outstanding tax deeds, 918. 
 
 effect of such a purchase by a co-tenant, 918, 
 applied to lands — what it implies, 76. 
 may be acquired adversely, 833. 
 acquired by either descent or purchase, 78. 
 by act of law or by act of parties, 78. 
 nature of. aboriginal title, 80. 
 lex loci governs, 76. 
 discovery as affecting, 79. 
 views of eminent publicists regarding, 79. 
 Indian titles — to what extent recognized, 80. 
 
 generally abolished in this country at the present time. 80. 
 
Missing Page 
 
Missing Page 
 
INDEX. lOII 
 
 [References are to the pages.] 
 TITLE BY PRESCRIPTION — Continued: 
 
 color of title necessary in, 836. 
 what is color of title, 836. 
 requisites of an instrument constituting, 836. 
 not necessarily founded on a written instrument, 836. 
 generally a question of law for the court to decide, 836. 
 TITLE BY PUBLIC GRANT : 862. 
 
 nature and scope of pre-emption rights, 862. 
 
 pre-emptor must file notice of claim, 862. 
 
 what lands are subject to pre-emption, 863. 
 
 what constitutes entry, 863. 
 
 when entry takes effect, 864. 
 
 what is " Patent for Land," 864. 
 
 certificate of entry and receiver's receipt, 864. 
 
 when pre-emption rights become vested interest, 865. 
 
 patent may be vacated for fraud, etc., 865. 
 
 liberal policy of the government respecting public domain, 866. 
 TITLE BY PURCHASE: 
 
 universal method of acquiring title except by descent, 821. 
 
 title by adverse possession a species of, 829. 
 
 title by execution, a species of, 848. 
 
 title by eminent domain, a species of, 842. 
 
 title by will or devise, a species of, goi. 
 TITLE DEEDS OR MUNIMENTS OF TITLE : 
 
 when deposit of constitutes mortgage, 795. 
 TRADE FIXTURES: (See Fixtures.) 
 TREES: 
 
 on division line, 15. 
 
 as standing timber, 15. 
 
 when cutting, is waste, 371. 
 
 when cutting of, may be restrained by injunction, 15. 
 TRIAL BY JURY: 
 
 not an absolute right in condemnation proceedings, S44. 
 TRUST DEEDS: 
 
 in the nature of a mortgage, 793. 
 TRUSTEES EX MALEFICIO: (See Uses and Trusts.) 
 TRUSTS: (See Uses and Trusts.) 
 TWYNE'S CASE: 892. 
 
 UNDERLETTING: 
 
 synonymous with subletting, 277. 
 
 (See Estates for Years.) 
 UNINTERRUPTED USER : (See Easements.) 
 UNITY : 
 
 of interest in joint tenants. 
 
 of dominant and servient estate. (See Merger.) 
 USER: (See Easements.) 
 
 use and occupation, 338. 
 (See Estates for Years — Rent — 337. 
 
IOI2 INDEX. 
 
 [References are to the pages.] 
 USES AND TRUSTS: 
 
 nature, scope, and definition of a use, 518. 
 
 historical resumfe, 520. 
 
 text of the English statute, 522. 
 
 comments upon the statute of uses, 523. 
 
 introduction of the statute of uses in this country, 527. 
 
 peculiar vices of the statute of uses, 529. 
 
 distinction between uses and trusts examined, 530. 
 
 review of the New York system relating to uses and trusts, 532. 
 
 the doctrine of, in this country, 542. 
 
 what is a trust, 542. 
 
 how trust created, 546. 
 
 statutory regulations of trusts in California, 549. 
 
 when raised by precatory expressions, 550. 
 
 great caution in accepting prefcatory trusts, 553. 
 
 for what purposes trusts are created, 556. 
 
 parties to a trust, 557. 
 
 corporations as parties, 558n. 
 
 who may be beneficiaries — (Cestuis que trust), 56on. 
 
 quantity of interest held by trustee in trust, 56on, 
 
 beneficiary under trust must be certain, 56on. 
 
 review of the celebrated Tilden will case, 5610. 
 
 trustees of trust estates — their duties and liabilities, 559. 
 
 views of Story, Sugden, Walworth and Kent as to trustees and their liabili- 
 ties, 563. 
 
 fraudulent acts of trustees — how established, 569. 
 
 rule as to preservation and care of trust property, 570. 
 
 trustees acting in good faith treated with indulgence, 573. 
 
 the measure of responsibility imposed upon trustee, 574. 
 
 trustees not guarantors of their investments, 580. 
 
 liability of co-trustees, 581. 
 
 Cal. Code provisions on the subject, 582. 
 
 compensation of trustees, 583. 
 
 trustees ex maleficio, 584. 
 
 Statute of Limitations and its effect upon trusts, 5S7. 
 
 the declaration of trust, 588. 
 
 incidents of trust estates, 589. 
 
 classification of trusts, 593. 
 
 trusts not allowed to fail for want of a trustee, 592. 
 express trusts, 596. 
 
 trusts not allowed to fail for want of trustee, 592. 
 executory and executed trusts, 598. 
 
 illegal trusts, 598. 
 
 implied trusts, 599. 
 
 resulting trusts, 601. 
 
 constructive trusts, 605. 
 
 laches as affecting resulting trusts, 605. 
 
 voluntary trusts, 686. 
 
 charitable trusts, 606. 
 
INDEX. IOI3 
 
 [References are to the pages. J 
 USES AND TRUSTS— Continued: 
 
 the statute of 43 Elizabeth as affecting charitable trusts, 607. 
 
 what is a charitable trust ? 608. 
 
 charitable trusts favored in law, 610. 
 
 distinction between charitable and private trusts, 612. ' 
 
 judicial construction of charitable trusts, 614. 
 
 not forfeited by non-user, 616. 
 
 rules as to religious associations, 617. 
 
 when charitable gifts will not be upheld, 618. 
 
 doctrine of charitable uses rejected in certain states, 620. 
 
 the doctrine of cy pres examined, 622. 
 
 doctrine of spendthrift trusts considered, 630. 
 
 when trust funds are beyond the reach of creditors, 632n. 
 
 review of the Pennsylvania cases relating to spendthrift trusts, 633. 
 
 attitude of the New York court of appeals, 635. 
 
 views of Massachusetts court on spendthrift trusts, 637. 
 
 of Chief Justice Agnew — Mr. Perry, 640, 641. 
 Justice Miller in the great case of Nichols v. Eaton on spendthrift trusts, 642. 
 parol evidence as establishing a resulting trust, 649. 
 trusts for married women, 651. 
 termination of the trust. 652. 
 
 VALUE : 
 
 of life estate, how computed, 149, 
 of dower right, rules for estimating, 189. 
 VENDOR'S LIEN : 
 
 for the purchase price of land (See Mortgages), 795. 
 VESTED ESTATES : 84. 
 
 VESTED REMAINDERS : (See Remainders), 660. 
 VESTING : 
 
 of joint estates at different times, 916. 
 VIS MAJOR : (Act of God), 368. 
 VOID AND VOIDABLE : 895, 
 VOLUNTARY : (Waste), 370. 
 VOLUNTARY CONVEYANCES : 
 WAIVER: 
 
 of forfeiture of estate upon condition, 781. 
 WARRANTY : (See Covenants.) 
 
 that premises are reasonably fit for occupation, 254. 
 
 in lease of separate floor.s, 255. 
 
 not implied in leasehold cases that premises are tenantable, 271, 
 
 covenants of (See Deeds), 884. 
 WASTE : 
 
 right of reversioner 10 damages for, 722. 
 
 nature, scope and definition, 364. 
 
 right of common-law rules repudiated in this country, 366. 
 
 either voluntary or permissive, 367. 
 
 never attributable to one holding the absolute fee, 368. 
 
 vis major — or act of God, 368. 
 
 instances of cutting timber, opening mines, improper tillage, 371. 
 
IOI4 INDEX. 
 
 [References are to the pages.] 
 
 WASTE — Continued: 
 
 rule as to tenant at will, 371. 
 
 remedies for, parties to action, 372. 
 
 action by heirs, devisees, grantors, grantees, guardians, joint tenants, tenants 
 in common, 372. 
 
 view of premises not necessary in action for, 373. 
 
 injunctive relief in cases of, 373. 
 
 as applied to tenants in common, 935. 
 
 doctrine of, as applied to life tenancies, 144. 
 WATER ; (See Real Property ^Minerals), 9-21. 
 
 not a part or product of the soil, 414. 
 
 right to the use of may be in form of easement, 414. 
 
 easement in, can be acquired by prescription, 417. 
 
 riparian proprietor has right to use in reasonable quantities. 9. 
 
 on surface of land may be drained artificially, 417. 
 
 upland proprietor may drain, 417. 
 
 lower proprietor cannot object to drainage of surface water, 417. 
 
 riparian owner may harvest ice crop, 9. 
 WAY : 
 
 of necessity. (See Easements), 444. 
 WELSH MORTGAGES : 
 
 obsolete in this country, 795. 
 WIFE'S SEPARATE ESTATE : (See Estate by the Entireties — Community 
 Property.) 
 
 estate by the entireties. 
 
 estates by curtesy. 
 WIGRAM : 
 
 his rules for the interpretation of wills (See Title by Devise), 908. 
 WILD LANDS : (See Title by Curtesy — Dower.) 
 WILLS : (See Title by Devise.) 
 WITNESSES : (See Title by Devise — Wills.) 
 WOOD : 
 
 cutting of waste under certain circumstances. (See Waste.) 
 
 fire-wood for domestic purposes. (See Estovers.) 
 
KF 570 Ri^9 c.l 
 
 Author 
 
 Vol. 
 
 Rice, Frank Summer 
 
 Tide 
 
 Copy 
 
 A Treatise on the modern law of 
 
 r eali prop erty as cxpoundod ty a 
 
 OTir 
 
 courts of lasr tesort 
 
 Date 
 
 Borrower's Name 
 
■ i